From the blurb for Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, Oct. 2018):

Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption—a story with explosive implications for current debates over constitutional originalism and interpretation.

When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document’s uncertainty, and—over time—how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution’s most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.

Here’s the abstract for William Baude & Jud Campbell, Early American Constitutional History: A Source Guide (Oct. 31, 2018): “This is a concise guide to source materials relevant to late 18th-century and early 19th-century constitutional history in the United States, often with accompanying reflections about using these sources in historical and legal scholarship. The guide aims to be useful to those who are just entering the field as well as to more established historians and lawyers who want to keep up with newly available sources.” Recommended.

Just in time for President Trump’s attack on birthright citizenship: Ernest A. Young has posted Dying Constitutionalism and the Fourteenth Amendment, which is forthcoming in the Marquette Law Review:

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment’s early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution’s core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment’s “lost years” offer precisely the sense of tragedy that might inspire that cultural shift.

Trump called for ending birthright citizenship in his immigration platform during the presidential campaign. Now he has announced that he can achieve that objective by executive order.

Can Trump ban the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil? The legal challenges would force the courts to decide on a constitutional debate over the 14th Amendment. The 14th Amendment, ratified in 1868, states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” For more, see Experts weigh in on Trump’s ability to end birthright citizenship on Axios.

Drawing Trump Naked: Curbing the Right of Publicity to Protect Portrayals of Real People, Maryland Law Review, Forthcoming, by Thomas Kadri “argues that to best protect creators and their expressive works under the First Amendment, we must abandon traditional “educative” listener-based models of the First Amendment and instead adopt an approach that also protects the speaker-creator as a central part of enabling public discourse. Failure to adopt this speaker-focused theory in publicity doctrine will perpetuate confusion in the courts and state legislatures, an outcome that will have a chilling effect on creators who seek to portray real people in their work. Yet we must also recognize the privacy interests that publicity rights may serve. As we move into an era of new technology and innovation — from “deep fakes” to revenge porn — this challenge will only intensify. To address it, courts should apply a different framework when publicity rights face off against expressive rights — a framework that not only empowers free expression, but also considers the narrow privacy-based interests that we should all have in preventing certain uses of our images.”

Here is the abstract for Jack Balkin’s The First Amendment in the Second Gilded Age (Buffalo Law Review, 2019 Forthcoming):

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.

To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, in the Second Gilded Age, the judicially created doctrines of First Amendment law become most important as potential obstacles to reform. They create constitutional difficulties for attempts to regulate private infrastructure owners in order to protect free speech values and personal privacy.

Protecting freedom of speech in the Second Gilded Age requires us to focus on the political economy of digital speech: how we pay for the digital public sphere, the dangers the digital political economy creates for end users, and the kinds of reforms that would best protect their interests in speech and privacy.

This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explain how the conditions that make free speech possible have changed from the twentieth to the twenty-first centuries. That controversy is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies make their money and how they affect the public sphere in the process. The scandal also highlights a central problem for freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy and subjects us to dangers of manipulation and overreaching.

The great irony is that an era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The essay concludes by briefly introducing a reform proposal advocated in my previous work: that we should consider digital media companies as information fiduciaries who have duties of care, confidentiality, and loyalty toward their end users.

From the abstract for Jane R. Bambauer & Derek E. Bambauer, Information Libertarianism, 105 California Law Review 335 (2017):

Recent First Amendment precedent is widely attacked as unprincipled: a deregulatory judicial agenda disguised as free speech protection. The scholarly consensus is mistaken. Descriptively, free speech protections scrutinize only information regulation, usefully pushing government to employ more direct regulations with fewer collateral consequences. Even an expansive First Amendment is compatible with the regulatory state, rather than being inherently libertarian. Normatively, courts should be skeptical when the state tries to design socially-beneficial censorship.

This Article advances a structural theory that complements classic First Amendment rationales, arguing that information libertarianism has virtues that transcend political ideology. Regulating information is peculiarly difficult to do well. Cognitive biases cause regulators to systematically overstate risks of speech and to discount its benefits. Speech is strong in its capacity to change behavior, yet politically weak. It is a popular scapegoat for larger societal problems and an attractive tool for rent-seeking interest groups. Collective action, public choice, and government entrenchment problems arise frequently. First Amendment safeguards provide a vital counterpressure. Information libertarianism encourages government to regulate conduct directly because when the state censors communication, the results are often counterproductive. A robust First Amendment deserves support regardless of ideology.

From the abstract for Sonja West, Suing the President for First Amendment Violations, 71 Oklahoma Law Review ___ (2018):

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely clear if or how citizens can hold the President responsible for violating their expressive rights.

This Essay explores some of the potential obstacles facing a person or organization bringing a First Amendment lawsuit against the President such as whether the President can violate the First Amendment at all and how a plaintiff might recover for that violation. It concludes by suggesting a few possible approaches to this problem that could help clarify and secure the rights of all Americans to seek justice—even against the President—if their freedoms of speech and press are violated.

— Joe

The 25th Amendment to the United States Constitution deals with issues related to presidential succession and disability. It was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967. Did The Caine Mutiny (1954 film) shape the meaning of the 25th Amendment?

This Washington Post article explains that some of the drafters of the 25th Amendment looked to The Caine Mutiny and Captain Queeg as examples of what Section Four of the amendment should not permit because the 25th Amendment was not meant for a case where reasonable people could disagree about whether the leader was mentally ill.

Interesting. — Joe

The Senate unanimously passed a resolution Thursday declaring “the press is not the enemy of the people.” The resolution, introduced by Sen. Brian Schatz (D-HI), Senate Democratic Leader Chuck Schumer (D-NY), and Sen. Richard Blumenthal (D-CT), reaffirms the Senate’s commitment to the Constitution’s declaration of the freedom of the press. According to the resolution, the Senate “views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States.” — Joe

Here’s the abstract for Steven G. Calabresi’s Opinion on the Constitutionality of Robert Mueller’s Appointment (2018):

I argue in this Legal Opinion that Deputy Attorney General Rod Rosenstein’s appointment of Robert Mueller is unconstitutional both under the test for officer inferiority set forth in Justice Scalia’s opinion in Edmond v. United States, which is cited as good authority in Free Enterprise Fund v. PCAOB and also under the test for officer inferiority set forth in Chief Justice Rehnquist’s majority opinion in Morrison v. Olson. Under both tests, Mueller is acting as a principal officer even though he has not been nominated by the President and confirmed by the Senate. Mueller’s appointment is therefore unconstitutional.

H/T Criminal Law Prof Blog. — Joe

Here’s the response to Trump’s White House counsel by a group of prominent ConLawProfs. Their conclusion:

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created–and did not create–a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons. In sum, both Article II and the criminal laws of this country forbid the president from engaging in corrupt and self-dealing conduct, even when exercising Article II powers to execute the laws.

H/T Constitutional Law Prof Blog. — Joe

From the abstract for Gregory E. Maggs’ A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning, 49 Conn. L. Rev. 1069 (2017):

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.

— Joe

From the blurb for Randy Kozel’s Settled Versus Right: A Theory of Precedent (Cambridge UP, 2017):

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel’s account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

— Joe

From the abstract of John Mikhail’s The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523-1806:

In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”

Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792.

— Joe

On Constitutional Law Prof Blog, Steven Schwinn wrote

The State of Illinois yesterday [May 30, 2018] became the 37th state to ratify the Equal Rights Amendment, 45 years after Congress proposed it. This leave the ERA just one state short of the 38 (three-fourths of the states) required for amendment.

But Illinois’s vote comes well after the (already extended) congressional deadline of June 30, 1982. So does it count toward validation as an amendment? Given the deadline and putative ratification rescissions by five states, can the ERA come into force under any circumstances? Or does it need to be re-proposed, and re-ratified?

He then calls attention to this CRS report, The Proposed Equal Rights Amendment: Contemporary Ratification Issues (R42979, May 9, 2013), because it addresses the questions he posed. — Joe

Ethan J. Leib and Jed Handelsman Shugerman’s Fiduciary Constitutionalism and ‘Faithful Execution’: Two Legal Conclusions, Georgetown Journal of Law & Public Policy, Forthcoming, “explores the Constitution’s requirement that the President “take Care that the Laws be faithfully executed” and the requirement that he take an oath to “faithfully execute the Office of President of the United States.” The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign’s exercise of its political power must be constrained by fiduciary standards – like the duties of loyalty and care – is not new. But we are collecting more and more evidence that the framers of the U.S. Constitution rather self-consciously sought to design a “the fiduciary law of public power” in which the government’s “conduct would mimic that of the private-law fiduciary.” Here we show how the distinctive fiduciary language that appears in Article II reinforces a strain of work in fiduciary constitutionalism by Robert Natelson, Gary Lawson, and Guy Seidman.

“After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what the fact of the fiduciary constitution may mean for modern issues in constitutional law. First, we argue that fiduciary constraint has implications for the legal validity of presidential pardons that are not efforts to pursue the public interest. Because the core duty of all fiduciaries is to be loyal to beneficiaries and not to pursue their own self-interest, pardons in derogation of a president’s fiduciary obligation are invalid. Second, we suggest that when properly conceived as a trust instrument, we can both appreciate where the non-delegation doctrine came from and why it is consistent with the original meaning of the Constitution to have a much relaxed rule about delegation today. By way of conclusion, we meditate on how to convert legal conclusions that flow from the fact of our fiduciary constitution into remedies that make sense for the potentially sui generis fiduciary law that is constitutional law.”

Here’s the abstract for Baylen J. Linnekin’s ‘Tavern Talk’ & the Origins of the Assembly Clause: Tracing the First Amendment’s Assembly Clause Back to Its Roots in Colonial Taverns (2011):

The First Amendment to the Constitution is “a cluster of distinct but related rights.” The freedom of assembly protected therein is one right that Americans exercise every day. With perhaps the exception of speech, assembly is the most widely and commonly practiced action that is enumerated in the Bill of Rights.

This freedom is also one of our least understood and least considered rights. Sometimes ignored and other times grouped with other freedoms, the right of those in America to come together peaceably deserves to be studied, respected, and celebrated.

To better understand the freedom of assembly in America, one must explore and understand its origins. Tracing the evolution of the freedom of assembly requires placing this freedom “within the context of culture.” Exploring the origins of the freedom of assembly in the context of culture requires tracing the right – as practiced – back to its fundamental situs, a term that can be used to ground rights in their proper place or places.

The proper situs of the Assembly Clause, research reveals, is in its birthplace: colonial America’s taverns. Colonial taverns served not just as establishments for drinking alcohol but as vital centers where colonists of reputations great and small gathered to read printed tracts, speak with one another on important issues of the day, debate the news, organize boycotts, draft treatises and demands, plot the expulsion of their British overlords, and establish a new nation.

In Part II I trace the early history of taverns in colonial America. In Part III I discuss the role that colonists assembling in taverns played both in fostering the freedom of assembly and in combating growing British attacks on the rights of American colonists. In Part IV I analyze the brief but informative legislative history of the Assembly Clause. In Part V I describe how tavern talk places the situs of the freedom of assembly squarely in taverns. In Part VI I conclude that in taverns and tavern talk are the origins of the Assembly Clause.

Interesting. — Joe

Deborah Sills’ The Foreign Emoluments Clause: Protecting Our National Security Interests, 26 Brooklyn Journal of Law and Policy ___ (2018) “focuses on the significance of the Emoluments Clause to the protection of the American public and security of our country. Part I provides a historical overview of the Emoluments Clause. Part II discusses the parameters of the Emoluments Clause and considers the varying interpretations of the provision. Part III examines how the clause protects our national security interests by: (1) requiring that federal officials remain free from corrupt influences to prevent harm to our country; (2) mandating transparency and accountability concerning possible influences of foreign states; and (3) fostering trust of federal officials. These national security considerations should be central to the interpretation of the scope of this constitutional provision. Extraordinary care must be taken to comply with the Emoluments Clause to ensure that the interests of the American people and the United States—not the self-interests of government officials or foreign powers—determine the way in which our country is governed.” — Joe