Punish Treason, Protect Loyalty—and Advance the Declaration of Independence Project!

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Rogers M. Smith

Punish Treason, Reward Loyalty is the first of a multi-volume series that Mark A. Graber is writing on the Reconstruction amendments. That series will be a monumental scholarly contribution, both enduring and timely.

When first published, Punish Treason, Reward Loyalty was all too timely. It abundantly vindicates Graber’s longstanding argument that it is usually a mistake to read constitutions as quasi-philosophic statements of principles chiefly designed to be interpreted by judges, other officials, and citizens seeking to act in accordance with those principles. Constitutions are, as Graber aptly puts it, political efforts to structure power to “privilege coalitions with particular interests and values” (p. xxxi). Central to the 14th Amendment, this book persuasively argues, was an effort to restructure power in the American constitutional system so that those who had been loyal to the Union, and the interests and values they saw it as serving, would hold governing power in the United States in perpetuity--not the treasonous rebels of the Confederacy.

Democrats risk becoming Trumpified in defending Biden

Andrew Koppelman

If anything unites the Democratic Party today, it is disdain for the “Trumpified” Republicans. Most leading Republican officeholders know that their presidential candidate is unfit for the job, but they won’t say so because they fear Trump’s retribution.  Yet now, weirdly, Democrats are reproducing the same pathology within their own ranks.

I elaborate in a new column at The Hill.

Graber on Reconstruction

Stephen Griffin

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

With Punish Treason, Reward Loyalty, Mark Graber launches a remarkable scholarly project aimed at decisively shifting our understanding of the Fourteenth Amendment and the Reconstruction Amendments generally.  This multi-volume effort is called “The Forgotten Fourteenth Amendment,” which refers to Graber’s principal objective of demonstrating that our historical understanding of the Reconstruction amendments is radically incomplete.

Graber’s project decenters (without necessarily deemphasizing) section 1 of the Fourteenth Amendment, the fount of an enormous river of judicial doctrine.  Why?  Graber foregrounds the political and constitutional objectives of the Republican Party in the immediate aftermath of the Civil War.  The effect is to treat the Party as an institution co-equal to the branches of government.  Situating the Republican Party in those fraught circumstances in turn foregrounds a key issue well known to historians, but not much featured in today’s law school casebooks – what conditions Republicans should impose on the former rebel states before readmitting them to Congress and thus to national politics itself.  Placing the emphasis on the readmission issue has the initial and somewhat startling effect of making us realize that Republicans had to be up to more than advancing the cause of human rights in formulating the Fourteenth Amendment.

Graber advances his claims with high confidence because he realized a substantial trove of evidence on the Reconstruction Congress had been overlooked.  It appears scholars, especially legal scholars, concentrating on discussions of section 1 in the 39^th Congress as recorded in the Congressional Globe were using only a fraction of the relevant evidence.  Graber describes how there were many discussions relevant to the Fourteenth Amendment that were not explicitly identified in the Globe as such.  Discussions revolving around readmission, for example, were extensive and shed considerable light on the objectives of Republicans in formulating the Reconstruction Amendments.

Graber’s analysis and conclusions are thus based on a far wider array of historical evidence than any previous discussion of the Fourteenth Amendment, at least by legal academics.  What does his analysis show?  Republicans realized they were confronting an intransigent South whose elites had no intention of changing their ways.  They sought to continue slavery after the War, even if in another form.  Further, Republicans had concrete reason to think that once back in Congress, Southern Democrats would demand the payment of Confederate war debts and continuation of de facto rebel rule.  In order to respond to this looming challenge, Graber describes how Republicans wanted to create a situation in which the former rebel states would have to provide various guarantees.  Guarantees of rights were certainly part of the Republican plan, but they were not the principal focus.  Graber’s key thesis might be described as structure over rights.  As he puts it: “The Republicans who framed the Fourteenth Amendment thought constitutions work by configuring politics.  They regarded constitutions as mechanisms that privilege coalitions with particular interests and values. . . . The point of constitutional reform was to configure politics in such a way that would enable the people who remained loyal to the Union to control how the Thirteenth Amendment was interpreted and implemented in the foreseeable future.”

Moyle and Abortion’s New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs

Guest Blogger

Reva Siegel & Mary Ziegler 

In this post, we discuss the Supreme Court’s most recent abortion decision in Moyle v. United States, in which a splintered Court addressed emergency obstetric litigation under federal and state law. We illuminate the social-movement conflicts shaping debate in Moyle, and we show that these struggles turn partly on a constitutional question that was never raised in Moyle or even Dobbs itself: Is there a history-and-tradition right to healthcare access after Dobbs?

Rewarding Loyalty and the Fifteenth Amendment

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Travis Crum 

In Punish Treason, Reward Loyalty, Mark Graber re-orients our attention to the constitutional politics behind the Fourteenth Amendment. According to Graber, “proponents of congressional Reconstruction were far more interested in empowering and protecting themselves and white people like themselves than in empowering and protecting persons of color.” In short, racial equality took a backseat to partisan politics, and the former was advanced only when it served the Republican Party’s interests. In support of this claim, Graber de-emphasizes Section One—which he claims was uncontroversial and thus less important—and focuses on the “forgotten” provisions of the Fourteenth Amendment—namely Sections Two, Three, and Four—which sought to entrench the Republican Party in power. I’m confident that others in this symposium will take issue with Graber’s defenestration of Section One, so I want to focus on his book’s substantial contribution to our understanding of the constitutional politics of Reconstruction while also critiquing Graber’s invocation of Derrick Bell’s interest-convergence theory to explain the Reconstruction Framers’ motives.

Missing the Forest for the Trees

Gerard N. Magliocca

The Court's opinion in Trump v. United States quotes Justice Jackson's concurrence in Youngstown early and often. Unfortunately, the Court misses the point of that concurrence. In ruling against the President, Justice Jackson stated:

"I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress."

The Court's opinion today does just what Justice Jackson could not be brought to believe. And in doing so, the opinion portrays the presidency as a fragile institution in need of a judicial crutch. I cannot be brought to believe that either.   

UPDATE: I would also note, FWIW, that the Court erroneously says that Justice Jackson cited the President's removal power as a Category Three question. He, in fact, said that this could fall within Category Two or Category Three.

The Principled Aims of Constitutional Reconstruction

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Alexander Tsesis

            Professor Graber has written a marvelously engaging book, Punish Treason, Reward Loyalty. His focus is on constitutional history rather than solely on how the Reconstruction Amendments apply to various contemporary issues. With that said, the book provides insights relevant to analyzing the Court’s recent decision in Trump v. Anderson, which rejected a claim brought by state voters under Section 3 of the Fourteenth Amendment. The book’s concentration on Sections 2, 3, and 4 of the Fourteenth Amendment refines our understanding of the Republicans’ efforts to maintain partisan primacy of Congress in order to pass nationally enforceable civil rights legislation. Further intriguing is Graber’s plan to eventually deliver a magnum opus that will add three additional tomes about the nation’s Second Founding.

            Punish Treason, Reward Loyalty’s deemphasis of Sections 1 and 5 of the Amendment is unfortunate. True enough, as Graber points out, congressional debates on the Fourteenth Amendment touched relatively little on either of those two provisions. That does not, however, diminish Republicans’ consensus and assiduous commitment in the immediate aftermath of Civil War to the enforcement of equal justice, administration of procedural fairness, and protection of fundamental rights.

What's left of originalism?

Andrew Koppelman

 A book review.

Parchment Barriers versus Political Power

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Narrow Chevron, Broad Chevron

David Super

      Over the past several months, I have been asked to present to numerous advocacy groups and foundations about the impending demise of Chevron v. NRDC.  In the course of these meetings, it has become apparent that people have two very different things in mind when they speak of the Supreme Court’s evisceration of Chevron.  Now that the Court’s decision Loper Bright has finally overruled Chevron, it seems especially important to disentangle these two conceptions and assess what the Supreme Court’s decision means for each of them. 

     The narrower view of what was at stake in Loper Bright is whether agencies’ readings of the statutes they implement are entitled to deference when ordinary tools of statutory construction are not dispositive.  The Court has held that they are not.  The broader meaning of “the assault on Chevron” as many groups conceive of it is an assault on the Administrative State more generally.  In this view, overturning Chevron is an important mile-marker in a comprehensive campaign that has been underway for some time and that may transform life in this country.  On balance, Loper Bright likely advances that agenda, but probably far less than many think on both sides.  How clearly it foreshadows further sweeping attacks on the administrative state from the Supreme Court is far from clear; at a minimum, we face much more severe threats from other sources.

Constitutional Iconoclasm and the Power of the Fourteenth Amendment

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Evan D. Bernick

Mark Graber isn’t a timid man. Nearly two decades ago, Graber contended that Chief Justice Roger Taney’s infamous pro-slavery majority opinion for the Court in Dred Scott v. Sandford articulated a plausible interpretation of a slavery-accommodating Constitution. Now Graber has written Punish Treason, Reward Loyalty (“PTRL”), an ambitious and provocative piece of constitutional iconoclasm which argues that what is today widely regarded as the most important provision of the Fourteenth Amendment was mostly an afterthought for its Framers. To amend Thomas Hobbes’s (possibly apocryphal) reaction to a theological-political treatise by a Dutch contemporary (about whom much more below), few durst write so boldly.

PTRL is an essential resource, not only for law professors but for historians, political scientists, and indeed anyone who is interested in a past that continues to shape the present. It is also flawed in deeply frustrating ways. What follows is a critique of Graber’s iconoclasm and a confession of abiding constitutional faith.

Court rejects unorthodox civil procedure for Purdue Pharma bankruptcy

Abbe Gluck

 Justice Gorsuch's opinion rejecting the deal that allowed the non-debtor Sackler family to contribute to the Purdue Pharma opioid settlement in exchange for discharge from civil liability-- an off-ramp from civil litigation, liability, and accountability--relied almost entirely on the text of the bankruptcy code.  However, this snippet is a nod to our argument, previously blogged about here, that bankruptcy cannot be used as a cure-all for the challenges of complex civil litigation:

"So, yes, bankruptcy law may serve to address some collective-action problems, but no one (save perhaps the dissent) thinks it provides a bankruptcy court with a roving commission to resolve all such problems that happen its way, blind to the role other mechanisms (legislation, class actions, multi-district litigation, consensual settlements, among others) play in addressing them."

and here:

"Thousands of opioid victims voted against the plan too, and many pleaded with the bankruptcy court not to wipe out their claims against the Sacklers without their consent. 635 B. R., at 35. 'Our system of justice,” they wrote, “demands that the allegations against the Sackler family be fully and fairly litigated in a public and open trial, that they be judged by an impartial jury, and that they be held accountable to those they have harmed."

Elizabeth Burch, Adam Zimmerman and I have made the same arguments in much more detail here, adding our view about the public benefits of litigation that are lost when bankruptcy is used to fully short-circuit the process as it was in the Sacklers' case. 

The Mark Graber Problem

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

David S. Schwartz

Mark Graber has made a brilliant career of peering behind the vaporous curtain of U.S. constitutional mythology. Over many years, Graber has zeroed in on those episodes in which (to borrow Reva Seigel’s eloquent conceptual distinction) “constitutional memory” stands in as a misleading or false substitute for “constitutional history.”[1] Thus, for example, Graber showed, among his many other myth-busting insights, that Marbury v. Madison did not, and could not have, “created” or “established” judicial review[2]; and that that the Dred Scott case was not the product of illegitimate judicial behavior or method, but rather a representation of the racial constitutional politics of its time.[3] Graber’s truly impressive body of work as a whole also produces a meta-myth-busting lesson: that constitutional law does not exist independently from constitutional politics and, indeed, inevitably bends toward it. We cannot understand our constitutional law without understanding our constitutional politics, and given our constitutional order’s commitment to a substantial degree of continuity with the past, knowing our constitutional law requires knowing the history of our constitutional politics. In addition to learning this meta-lesson from Graber, I’ve learned an immense amount of constitutional history from Graber’s scholarship. 

In Punish Treason, Reward Loyalty, we now have Graber’s first volume of what promises to be a magisterial, three-volume history of the framing and ratification of the Fourteenth Amendment. Because Graber is professionally, and perhaps even psychologically, uninterested in historical work that merely adds detail to what we already believe, Punish Treason is a work of revisionism. In brief, Punish Treason argues that the framers of the Fourteenth Amendment—the 39^th Congress—were motivated primarily to prevent the restoration of rebel rule in the reconstructed states of the newly defunct Confederacy and to ensure payment of the Union’s financial obligations to northern creditors and war veterans. Constitutionalizing racial equality was a distant second consideration, and indeed perhaps largely an epiphenomenon of those primary concerns. Thus, to the framers, it was sections 2, 3, and 4 of the Fourteenth Amendment, that were the most important. The goals of punishing treason and rewarding loyalty were to be attained in two primary ways. Sections 2 and 3 would constitutionalize the conditions for political control by loyal Republicans, by excluding adult black males denied the right to vote in their states from the basis of representation in the House of Representatives and Electoral College (section 2); and by disabling rebels from eligibility for federal or state office if they had violated their prior oaths to support the Constitution (section 3)—a disability that would functionally extend to any Confederate who had held a federal or state office or served in the federal army prior to secession. Section 4 punished treason and dented the power of secessionist elites by repudiating Confederate war debt and banning its repayment, as well as prohibiting compensation for the emancipation of slaves; while at the same time guaranteeing repayment of public debt to Union creditors and constitutionalizing existing statutory obligations to pay bounties and pensions to Union war veterans. As Graber painstakingly demonstrates through an exhaustive canvasing and categorizing of thematic content in the congressional debates over the Fourteenth Amendment, it was these provisions that took up the lion’s share of attention in Congress. Flipping the conventional script, Graber suggests that section 1, which has utterly dominated the attention of courts and commentators in the ensuing years, was something of an afterthought. He suggests it was little more than the pet project of John Bingham and perhaps a few others.

The evidence Graber has marshaled to demonstrate the predominance of congressional concern over the issues underlying sections 2, 3, and 4, and the relative lack of concern about section 1, is overwhelming. Yet the argument feels incomplete at this stage. The substantial loose end is this: If the rights of black citizenship, privileges and immunities, due process, and equal protection, were indeed so relatively unimportant to the framers of the Fourteenth Amendment, why did these provisions get pride of place in section 1? Why was the amendment drafted so that the “afterthought” comes first? Presumably, Graber will answer this question in volume two, but I suspect that much of the criticism that Punish Treason garners going forward—revisionist works are always heavily criticized, and Graber’s personally thick skin is thus a crucial professional asset—will be some variant of this question.

Although this question struck me with some force, I assume Graber will have an explanation that sustains his thesis. To me, the bigger question about Punish Treason and the rest of the forthcoming trilogy is: what do we do with this new knowledge? This brings me to the title of this essay. The “Mark Graber Problem” is essentially this: When a largely salutary constitutional consensus has been built on a myth, what do we do when that myth is busted?

The Ugly Rhetoric of Dobbs, or, Why Jack Balkin is History

Andrew Koppelman

is the title of a paper I just posted on SSRN.  Here is the abstract:

This essay, part of a symposium on Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation, has three claims. First, I want to emphasize an underappreciated ethical virtue elicited by the practice of rhetoric: it demands that the speaker get out of his own head and focus on his audience and what they care about. The rhetorical deployment of historical narrative in political discourse can help to forge a collective identity in which we all can recognize ourselves, and so make the polity more inclusive. Second, if this aspect of rhetoric is understood, we will notice when it is offered in a way that marginalizes some citizens by excluding them from its audience and implying that they don’t matter and that their concerns are beneath notice. Justice Alito’s opinion for the Court in Dobbs v. Jackson Women’s Health Organization is an example, the nastiness of which is best appreciated when one considers it as a rhetorical exercise. And third, the work of exposing these abuses supports one of Balkin’s central methodological points, which is that liberals and progressives should not denounce originalism, but rather should master its techniques and learn to deploy its rhetorical power.

Fashioning a More Coherent Past

Guest Blogger

Balkinization Symposium on Mark Graber, Punish Treason, Reward Loyalty

JB

This week at Balkinization we are hosting a symposium on Mark Graber's new book, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

We have assembled a terrific group of commentators, including Evan Bernick (Northern Illinois), Travis Crum (Washington U.), Steve Griffin (Tulane), David Schwartz (Wisconsin), Rogers Smith (Penn), Alex Tsesis (Florida State), Anne Twitty (Stanford), and Rebecca Zietlow (Toledo).

At the conclusion, Mark will respond to the commentators.

My Supreme Court Lecture on Bushrod Washington

Gerard N. Magliocca

The video is here, with a very kind introduction by Justice Kavanaugh.

“Levels of Generality” in Dobbs, Rahimi, Muñoz, and Skrmetti – How Historical Facts Can Express Judicial Values

Guest Blogger

Reva Siegel

Two years ago the Supreme Court overturned the abortion right in Dobbs v. Jackson Women’s Health Org. Today, it marked that anniversary by taking for argument in the coming Term United States v. Skrmetti, a case authorizing a Tennessee ban on gender affirming care. Skrmetti draws authority from Dobbs: both Dobbs’s reasoning about level of generality in substantive due process law as well as its dicta reviving a 1974 decision on equal protection and pregnancy discrimination. The Sixth Circuit decision in Skrmetti authorized a ban on gender-affirming care that could put in play both the Court’s substantive due process decisions and its equal protection-sex discrimination decisions.

In 2022, the conservative Justices embraced history-and-tradition standards that tied the Constitution’s meaning to particular historical facts, both in Dobbs and in a Second Amendment decision New York State Rifle & Pistol Ass’n v. Bruen. The Justices claimed that tying judicial decisions to particular facts in the past would constrain judges and prevent them from acting on their policy preferences.  This debate over “levels of generality” in Dobbs has continued to structure debate this Term. It appeared in debates over interpreting the 14^th Amendment’s liberty guarantee in Department of State v. Muñoz, and in United States v Rahimi, the several Justices invoked “levels of generality” (both expressly and implicitly) in debating interpretation of the Second Amendment.

Can Originalism Be Indeterminate?

Gerard N. Magliocca

Here is one way to think about the discussion of history and tradition in Rahimi: If we cannot determine what the relevant original public meaning is, then we should rely on post-ratification history and practice. 

One problem with the proposition as stated, though, is that I'm not sure whether originalist judges would concede that sometimes the relevant original public meaning is unknown or inconclusive. It seems to me that originalists always think that there is an answer under that method. Reasonable people may disagree on what that answer is. Or the answer may conflict with subsequent judicial precedent. But I can't recall an opinion in recent times that says something like: "Unfortunately, the original materials are obscure or not helpful, so we need to turn to something else for guidance."

Sandra Day O'Connor versus Oliver Cromwell

Mark Tushnet

Reading recently published tributes to the late Justice O'Connor reminded me of the throw pillow she had in her office, with an inscription: "Maybe in error but never in doubt." It's always struck me that without elaboration that's exactly the wrong attitude a judge should have. For me Oliver Cromwell provides better guidance: "I beseech you, in the bowels of Christ, think it possible that you may be mistaken."

Maybe Cromwell's aphorism can be used to improve on O'Connor's. As a judge you have to make decisions, but you should always remind yourself that your decision might be mistaken--and that reminder should come after the decision as well as before it. That doesn't mean that you lose sleep over the decision you made, but it does mean that you have to keep an open mind when someone says, "That decision was wrong and should be ignored/limited as substantially as possible." You shouldn't get psychologically invested in defending the decision simply because you made it ("It was the best I found myself able to do under the circumstances but maybe I was mistaken"). So: never in doubt at the moment of choice, but after that always aware of the possibility that you were mistaken.

I suspect, though, that people who become Supreme Court justices (and find out that other people, especially lawyers, defer to them in interpersonal interactions--stand up when they enter a room, for example) aren't psychologically constituted to take Cromwell's advice. (I can't retrieve the exact quotation or source right now, but I think that's what Jerome Frank [I believe] had in mind when referring to Holmes [I believe] as a fully mature jurist [I believe]--in contrast to other less mature judges [say, a substantial majority of the justices now sitting on the Supreme Court]. Whether that's an accurate characterization of Holmes and other justices is another matter; I think it is but it's possible that I may be mistaken.)

Rahimi as a Class Essay

Mark Tushnet

Joey Fishkin probably has said all that needs to be said about the various justices' attempts to do constitutional theory in Rahimi. He may be too subtle, though. So here's the hit-you-on-the-head-with-a-hammer version.

Right-wing op ed writers who think they know something about the Constitution (I'm looking at you, George Will, but there are others) are probably already in print, and certainly will be soon enough, with pieces describing the conservative justices' separate opinions as "brilliant," "careful," "important," and other praise words. Acolytes in the legal academy will follow with similar praise perhaps a bit toned down. 

Were the opinions to be submitted as essays in a decent law school course or seminar in constitutional theory, they'd get something close to the median grade (these days, I suppose, a B+). They demonstrate a reasonable grasp of the fundamental issues, though they overlook some subtleties in the best of the works they refer to. They indicate some awareness of the pressure points on their theories but at best offer promissory notes about what future theoretical development might yield. They demonstrate no awareness whatever of the feebleness of what they do offer as moving the ball forward, with Justice Barrett's Goldilocks line being the best evidence of that.

It's not worth going through the opinions in detail with the kinds of comments I'd make on seminar papers; others will surely do that. Here I simply raise a couple of questions. Given that the proper thing to do is extract a guiding principle from the historical and traditional materials, how do you determine the level of generality at which to state that principle? Justice Scalia offered one answer in Michael M. (the most concrete, least abstract level), but it didn't stick, for good reason (it might work for a handful of problems but couldn't work as a general guide). Roberts's opinion says that "responsible" isn't the right level because its too vague--but that's not right either: the term has a reasonably clear but rather large core meaning, with vagueness at the edges, it's just that the core meaning sweeps more broadly than Roberts would like. That suggests another candidate for determining the level of generality of the principle: choose the level that, with respect to the problem at hand (because the level is likely to vary depending upon the problem), yields the best social policy result. But, of course, the opinions can't say that because the point of the exercise is to prevent judges from relying upon their policy preferences when they decide cases. 

Or, maybe not. Maybe you can't rely directly on your policy preferences to justify a decision but you can do so indirectly, through the choice of the level of generality. They can't say that, though, and sustain their criticism of their liberal adversaries, because those adversaries never relied on policy preferences directly either. Maybe "never" is too strong, but one or two aberrations wouldn't weaken the point, and the most commonly offered example fails. The liberals in Griswold didn't strike the statute down because it was uncommonly silly; they offered an account of a constitutional right to privacy in intimate matters that they found rooted in constitutional text and tradition.  Justice Breyer's typical use of policy arguments, to uphold statutes against constitutional challenges, is Thayerism: "I have no views on the policy issues here but here's a lot of evidence to support the proposition that it's reasonable for a legislature to conclude that this is good policy."

The second question is related: How do you escape the suspicion that you're picking the level of generality to produce results that fit with your sense of good policy outcomes? Understandably, no one wrote an opinion in the vein of Kennedy's in the flag-burning case: "I hate the fact that Rahimi isn't going to be allowed to own a gun, but my constitutional theory dictates that Roberts's principle is at the right level." Indeed, in Rahimi it would be really hard to write such an opinion because Roberts's principle is that you can disarm (temporarily) people who are found by a court to pose a credible threat to the physical safety of others--and it's really hard to disagree with that as a matter of policy. (Or is the suggestion that a ban wouldn't be justified if the determination were made by an administrator rather than a judge [after similarly truncated procedures], or if the threat were to the psychological safety of another, or if the threat were to a class of people rather than "another"? I'd like to see the explanation for those possible limitations on the principle's scope.)

Richard Posner once concluded that it was laughable to think that the justices were the nine best lawyers in the country, or were among the best one hundred. He thought that ten thousand might be the right number. Or, to return to the beginning, B+.

It’s Time for a Rahimi Pop Quiz!

Joseph Fishkin

Question: Can you distinguish real Supreme Court justices doing “history-and-tradition” from parody intended to illustrate how the method turns out, oddly enough, to be precisely the thing it says it’s against—an opportunity for judges to reach preferred results?

Directions: The following text is a mishmash of (a) actual quotes from the Supreme Court’s various opinions in today’s Rahimi case (just that case, no others) and (b) fake quotes, some of which, really, no self-respecting Supreme Court Justice should be caught uttering.  Your task is simple: attempt to tell the difference.  Copy-paste this text and try to highlight the actual quotes.  No peeking at the real opinion.  Sometimes a single sentence will include both (a) and (b).  I didn’t say this would be easy.  Answers after the jump.  Good luck!

United States v. Rahimi

Per Curiam

         As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber”—our only lawful role is to apply them in the cases that come before us.  Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer.  In that case it surely would not take 103 dense pages to resolve the question of whether the government may remove guns from domestic abusers.  But judges must act like umpires, and sometimes it takes umpires many pages and several concurrences to distinguish a ball from a strike, especially in the relatively early innings.

         The first stop in this Court’s constitutional decisionmaking is the Court’s precedents—the accumulated wisdom of jurists from Marshall and Story to Harlan and Taft; from Hughes and Black to Jackson and White; from Rehnquist and O’Connor to Kennedy and Scalia; from Warren and Douglas to Brennan and Marshall.  Some may argue that a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy. But we are also mindful of the dangers of approaches based on generalized principles.  Accordingly, in this case we will identify a principle in the Second Amendment that is neither too specific nor too generalized, a perfectly balanced and principled Goldilocks level of generality.

         Unfortunately, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. Only the Constitution is trapped in amber. Developments in the world change, facts on the ground may evolve, and new laws may invite new challenges, but the job of the originalist judge is to paper over all of that and make results that are reasonable today appear to flow inexorably from the authority of history itself.  Reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.

            Judges can choose their sources.  But they absolutely must not extrapolate their own broad new principles from those sources. Because then no one can have any idea how they might rule. Courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. That anchor is the Constitution.  Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.  

         The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. By the time this Court decided Bruen, every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework that incorporated means-end scrutiny. However, that approach involves balancing, and that we shall not do.  The balancing approach requires judges to weigh the benefits of a law against its burdens—a value-laden and political task that is usually reserved for the political branches. And that power in essence vests judges with “a roving commission to second-guess” legislators and administrative officers “concerning what is best for the country.”

         The balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking, entirely unlike originalism. The Court appears to have adopted heightened-scrutiny tests by accident in the 1950s and 1960s.  In contrast, when we adopted originalism in the 1980s, we did it on purpose.  To be sure, today we are less concerned about purpose—or even original public meaning.  What matters is history and tradition.  The balancing approach can be antithetical to the principle that judges must act like umpires. It turns judges into players.  We are not players. We do not play.

         Therefore, the law must comport with the principles underlying the Second Amendment, but it need not be a dead ringer or a historical twin. If not a twin, a cousin?  Perhaps a second cousin once removed who looks more like a principle?  Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.  

         Reasonable minds sometimes disagree about how broad or narrow the controlling principle should be. Here, though, the Court settles on just the right level of generality.  Not so general as to give judges the discretion to reach the result they think is correct in each case, but just general enough to reach the correct result in this case.  Harder level-of-generality problems can await another day.

         One could, of course, argue that laws targeting “dangerous” persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those selfsame “dangerous” person laws to chip away at that Amendment’s guarantee. But “dangerous” is a category sufficiently broad to encompass the law before us, and not so broad as to sound like we judges are exercising judgment.  Therefore we are going with it. An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. 

         The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

On or About January 1979 the World of Legal Scholarship Changed

Mark Tushnet

 A recent workshop paper (and some time on my hands) crystallized a thought about the style of law review writing today. Every article, it seems, must have a road-map paragraph. (Does anyone actually read road-map paragraphs?) When I started writing law review articles in the early 1970s I didn't write such paragraphs and felt no particular need to do so. So, I did a quick and quite informal investigation into the emergence of the road-map paragraph.

I looked at lead articles in the Harvard Law Review to see if they had road-map paragraphs. (There are some classification issues--the spread sheet I developed has a few "sort ofs" and one "No?" in it--but I don't think these problems undermine my core "finding.") I began with the 1960-61 volume, where none of the articles had road maps. Then I skipped to 1970, where one sort of did (out of eleven). Skipping ahead another decade I found that six (of ten) had road maps. So I backfilled, and ended up locating the breaking point in January 1979; before that date road-map paragraphs were uncommon, after it they were regular though not universal features.

Frankly, that's earlier than I had thought. I have no ready explanation for the emergence of the road-map norm (nor, I think, did Virginia Woolf have an explanation for the change in human character she identified). I suspected that it might have something to do with the increasing length of articles but before 1979 there were a fair number of quite long articles without road maps, and--of course--after 1979 there are lots of relatively short articles with road maps (because law review editors now insist on including them no matter what). Maybe there were changes in the way undergraduates were taught expository writing that came to fruition in the mid-1970s and filtered up to law schools.

Anyhow, I don't like road-map paragraphs. I do have two suggestions for people who share my view. We should all begin the road-map paragraph that we're being forced to write in this way: "Like a delicate flower hit by the morning's first rays of sunshine, this article unfolds as follows." And we should end it, "The Conclusion concludes."

Justice Thomas Denounces Wealth Taxation – At the Cost of Transforming “Originalism” into a Parody of Itself

Bruce Ackerman

       My Initial Reactions to Justice Thomas' Sweeping Denunciation of Wealth Taxation

    These comments remain provisional, of course, and I would very much appreciate hearing your own reactions – since Moore may well serve only as a preliminary to a more fundamental confrontation by the Court, and the American people,with the constitutional issues raised by wealth taxation in the years ahead:

    Justice Kavanaugh's majority opinion in Moore upholds the very special tax on wealth at issue in this particular case. Yet Justice Thomas' responds with a lengthy and outraged dissent (joined by Justice Gorsuch). He argues that the taxation provisions of the original constitution reflected a "delicate compromise" without which "the Constitution could easily have been rejected," and which the Sixteenth Amendment "only slightly altered" – and that, even in the special case raised  by Moore, the government’s taxation effort is unconstitutional.

          In presenting his sweeping arguments, Thomas cites a key section, at the beginning of Article one, which explicitly states that the tax provisions are only part a larger "three-fifths" compromise guaranteeing the Slave States dramatically enhanced representation in the House of Representatives. Nevertheless, he utterly fails to consider the extent to which the Reconstruction Amendments destroyed the very foundations of his "delicate compromise." Instead, he treats the 13th, 14th, and 15th Amendments as if they were minor modifications of the Original Understanding.

          This is not the first time that Thomas has engaged in the trivialization of the Reconstruction Amendments. But the historical evidence in this case is particularly compelling – establishing that Americans of the 1860s self-consciously repudiated the "delicate compromise” of the 1780s when committing themselves to  transformative principles under which We the People reconstructed their democracy on the basis of political and social equality. In ignoring this fundamental point, Thomas and Gorsuch transform “originalism” into ancestor worship of the Founding Fathers.

          At the very least, they owe it to their readers to explain why the efforts by Radical Republicans to redeem the full promise of Lincoln’s Emancipation Proclamation did not sweep away the Founders’ “delicate compromise.”  Yet they utterly fail to do so. For more elaborate discussions of the constitutional revolutions of the 19th century, see Joseph Fishkin & William Forbath, The Anti-Oligarchy Constitution (Harvard: 2022), as well as volume 2 of my We the People: Transformations, especially chaps. 6-8 (1998).

          All three of us also submitted an amicus brief that confronts other lawyerly efforts to evade the implications of the original understanding of Reconstruction.

Less is Moore

Joseph Fishkin

The Trump Hush-Money Prosecution and Militant Democracy

Jonathan Hafetz

To some, former President Donald Trump’s prosecution and conviction in New York vindicates the principle that no person is above the law; to others, it is a witch-hunt, the product of a “rigged” system. While the case’s critics often grossly distort what transpired in New York, they are not wrong that the prosecution was informed by politics in some sense. But that does not mean the prosecution was improper or shouldn’t have been brought. 

At trial, Judge Juan Merchan afforded Trump all the procedural protections due a criminal defendant, and then some. Any other defendant, for example, would likely have been jailed for contempt the second or third time they violated the gag order; Trump notched 10 contempt citations but received only fines. Critics who complain about certain procedures, such as the jury not being given a written copy of the instructions, are simply ignorant of local practice, as doing so is prohibited under New York law.   

As for the substance, District Attorney Alvin Bragg’s office adopted an aggressive interpretation of the law in attempting to step up Trump’s violation of New York’s falsification of business records statute (a misdemeanor) to a felony by demonstrating it was committed with the intent to commit or cover up another crime (the object offense). The prosecution offered three possible object offenses: violations of federal election, state election, and tax law, although it relied most heavily at trial on the New York election law statute, which prohibits promoting a person’s election by “unlawful means”.  Attempting to step up falsification of business records from a misdemeanor to a felony based on a state election law in a federal election raises novel legal questions, and Trump will have issues to litigate on appeal (though how strong the grounds for appeal are disputed). But prosecutors commonly interpret statutes aggressively, and even if the conviction is ultimately reversed, Bragg had a legitimate basis to interpret the law in this manner.

But the fact that Trump received a fair trial does not negate the fact that larger considerations likely factored into the decision to prosecute him. The choice to criminally charge a former president for the first time in U.S. history was not made in a hermetically sealed vacuum, cut off from the world outside.

Here’s where the “no person is above the law” theme starts to break down: it means that New York should—and would—have prosecuted Trump even if he had not attempted to overturn the 2020 election or, alternatively, if he had done so, but declined to run again. 

The Supreme Court is Overly Insulated from Democratic Control

Ian Ayres

A few days ago, I published an op-ed in the L.A. Times detailing how disconnected the composition of the Supreme Court has become from electoral influence.  Justices nominated by Republican presidents have constituted a majority of the court for more than 50 years and, unless something changes, will continue to do so far into the future.

A natural comparison is to imagine what the composition of the court would look like if presidents were given two appointments each four-year term (one for each two-year Congressional session). 

E. Donald Elliott has shown that regular presidential appointments were once more the norm for forty years (from 1952 to 1992), with presidents on average nominating and winning confirmation for two Supreme Court justices every four-year term.  But from 1992 to 2016 that average “dropped to only one per term,” as show in this figure from the same article:

The Law of AI is the Law of Risky Agents Without Intentions

JB

 I have posted a draft of an article by Ian Ayres and me, The Law of AI is the Law of Risky Agents Without Intentions, on SSRN. Here is the abstract:

Many areas of the law, including freedom of speech, copyright, and criminal law, make liability turn on whether the actor who causes harm (or creates a risk of harm) has a certain mens rea or intention. But AI agents—at least the ones we currently have—do not have intentions in the way that humans do. If liability turns on intention, that might immunize the use of AI programs from liability.

Of course, the AI programs themselves are not the responsible actors; instead, they are technologies designed, deployed and by human beings that have effects on other human beings. The people who design, deploy, and use AI are the real parties in interest.

We can think of AI programs as acting on behalf of human beings. In this sense AI programs are like agents that lack intentions but that create risks of harm to people. Hence the law of AI is the law of risky agents without intentions.

The law should hold these risky agents to objective standards of behavior, which are familiar in many different parts of the law. These legal standards ascribe intentions to actors—for example, that given the state of their knowledge, actors are presumed to intend the reasonable and foreseeable consequences of their actions. Or legal doctrines may hold actors to objective standards of conduct, for example, a duty of reasonable care or strict liability.

Holding AI agents to objective standards of behavior, in turn, means holding the people and organizations that implement these technologies to objective standards of care and requirements of reasonable reduction of risk.

Take defamation law. Mens rea requirements like the actual malice rule protect human liberty and prevent chilling people’s discussion of public issues. But these concerns do not apply to AI programs, which do not exercise human liberty and cannot be chilled. The proper analogy is not to a negligent or reckless journalist but to a defectively designed product—produced by many people in a chain of production—that causes injury to a consumer. The law can give the different players in the chain of production incentives to mitigate AI-created risks.

In copyright law, we should think of AI systems as risky agents that create pervasive risks of copyright infringement at scale. The law should require that AI companies take a series of reasonable steps that reduce the risk of copyright infringement even if they cannot completely eliminate it. A fair use defense tied to these requirements is akin to a safe harbor rule. Instead of litigating in each case whether a particular output of a particular AI prompt violated copyright, this approach asks whether the AI company has put sufficient efforts into risk reduction. If it has, its practices constitute fair use.

These examples suggest why AI systems may require changes in many different areas of the law. But we should always view AI technology in terms of the people and companies that design, deploy, offer and use it. To properly regulate AI, we need to keep our focus on the human beings behind it.

Justice Alito knows which side he’s on

Andrew Koppelman

People disagree what to make of Supreme Court Justice Samuel Alito’s recent remark that in today’s climate of political polarization, “one side or the other is going to win.”  It has been interpreted as an “anodyne” description of that polarization, or as a “horrific” claim that compromise is impossible and that he is one of the partisans.  Either reading is possible, standing alone.  In the context of his considered views as presented in his judicial opinions, the nastier view is the more persuasive. 

I explain in a new column at The Hill.

Intimidation at Columbia and Harvard

Andrew Koppelman

Last week, the Columbia Law Review’s board of directors shut down its website briefly because of concerns about the process by which the review published an article critical of Israel. The decision quickly called forth charges of censorship. Then the board reactivated the website, leading to allegations that it had “buckled.”

Both the editors and the board pushed against the boundaries of normal procedure.  But we should focus on the broader context that shaped everyone’s behavior.  An organized right-wing movement is in the business of destroying young people’s careers if they say the wrong thing. That climate of fear is the real threat to higher education, one that reaches far beyond Columbia.

In an earlier incident, a Harvard graduate student, Rabea Eghbariah, wrote a short piece for the Harvard Law Review blog accusing Israel of genocide in Gaza.  (Whatever you think of that accusation, it isn’t idiosyncratic. Its merits are best discussed when it is presented in serious scholarly form. More on that anon.)  Eghbariah is a Palestinian lawyer who has argued human rights cases before the Israeli Supreme Court. He has won several prizes for his academic work. (And in case it matters, his dissertation supervisor, Noah Feldman, is a Jew.)

In November, Eghbariah’s essay had already gone through edits when the Review’s editors abruptly withdrew the offer of publication, citing “concerns about editors who might oppose or be offended by the piece, as well as concerns that the piece might provoke a reaction from members of the public who might in turn harass, dox, or otherwise attempt to intimidate our editors, staff, and HLR leadership.”  The Review’s president intervened to delay publication, which was then killed in an emergency meeting of editors.

The editors had some basis for their fears.

Immediately after the October 7 Hamas massacre of Israeli civilians, 34 Harvard student groups posted a statement declaring that they “hold the Israeli regime entirely responsible for all unfolding violence. . . . The apartheid regime is the only one to blame.”  It was a stupid and vicious claim, rationalizing rape and murder (the extent of which, in fairness, was not known at the time of the posting). It garnered widespread condemnation, and several of the organizations quickly retracted their endorsements.

Then at least four websites used publicly available sources to determine who was a member of those organizations, and posted their personal information online. The most prominent of those groups, Accuracy in Media, drove a truck around Harvard Square with a digital billboard displaying those students’ names and photos, captioned “Harvard’s Leading Antisemites.” (A similar truck later appeared at Columbia and other schools, triggered by statements that were far less egregious.) The students (some of whom had never seen the statement before it was posted) feared for their safety.  Some received death threats. Their siblings back at home were harassed.  Wall Street executives asked for lists of names to blacklist. Job offers were withdrawn.

AIM’s president never intends to stop tormenting these students.  He has said that he is considering sending his trucks to park outside businesses who hire them after they graduate. AIM has been reckless in choosing its targets. Its Columbia truck, for instance, displayed a former president of one of that school’s Islamic organizations, who had left the group months before the October attacks. He is suing for defamation.

Ryan Doerfler, a professor at Harvard Law School who had met with law review staff, said that the decision to cancel Eghbariah’s piece “took place amidst a climate of suppression of pro-Palestinian advocacy.”  One of the Harvard editors acknowledged that this climate made it dangerous to have normal conversations about the merits of the article:  “We’re not at a point in time where that debate can happen without your face being put on a truck.”

***

Egbariah’s piece was ultimately published in The Nation.  This whole episode has made him famous.  So what’s the big deal?

The big deal is that the Harvard Law Review has been corrupted by fear. Its value is its capacity to select work for scholarly quality. It now has a de facto political litmus test: The editors know that they anger AIM at their peril and respond prudently to that danger. And AIM, which has existed since 1969, is a collection of right-wing cranks.  It denies climate change, considers COVID-19 “overhyped,” and calls Barack Obama “a member of an international socialist movement.”  These are the last people on earth who should get to veto what the Harvard Law Review can publish.

AIM is of course (occasional defamation aside) legally entitled to do what it does.  It relies on publicly available sources. But that doesn’t excuse it. Its free speech rights are like the free speech rights of Nazis marching in Jewish neighborhoods: unquestionable as a matter of law, but deeply malign. Free speech includes the right to say horrible things that nobody should ever say. And of course AIM’s threat is not only felt at this one journal. It reaches beyond Harvard.

Since the Harvard Law Review affair, AIM has acquired powerful allies, including some members of Congress who grill college presidents on why they tolerate “hate speech.” Not long ago, speech was being targeted as “racist.” Now it’s targeted as "antisemitic." Both types of speech are odious, obviously, but the odium only properly applies to unambiguous cases. Today, though, such terms are being deployed very capaciously, with ever-expanding definitions.

Which brings us to Columbia. According to Associated Press, the Columbia Law Review editors “voted overwhelmingly in December to commission a piece on Palestinian legal issues.” It formed a smaller committee to select that piece. It is not unusual to bypass the regular Articles Committee this way: the same is done for symposia and memorial issues. That group then accepted a long article by Eghbariah, titled “Nakba as a Legal Concept.” The piece argues that Palestinians are subject to a kind of oppression not yet recognized in human rights law, and “proposes to distinguish apartheid, genocide, and Nakba as different, yet overlapping, modalities of crimes against humanity.” (I won’t try to evaluate its scholarly soundness, an issue that is hotly contested. The ensuing controversy had nothing to do with that.) 

The editors did not upload the piece onto a server visible to the entire membership of the law journal and to some administrators. Instead, they put it on a private server available only to those who were editing the piece. That is the big point of contention. The Board of Directors later wrote that the secrecy was “a profound deviation from the norms of respect, trust, and collegiality on which the Review depends.” 

There are two accounts of why the students did this. The first is that a small group illegitimately excluded their colleagues from the editing process. As David Bernstein, a law professor at George Mason, has put it, “the real problem is that a cabal of editors . . . conspired to ensure that anyone who might have objected to publishing the article was kept out of the process.”

The alternative explanation is that the secrecy was an effort to protect the integrity of the process. Intimidation had corrupted decision-making at Harvard. The Columbia editors were guarding against similar corruption. As they put it in a recent statement, “In light of the repressive climate around Palestine, especially in the fall and winter of 2023, we felt this discretion was necessary to ensure that the piece could go through the entire publication process before it was released to the public. We also felt that discretion was not wholly unprecedented, given how CLR has restricted editor access to confidential sources in the past to honor author integrity.”  Erika Lopez, one of the piece’s editors, explained:  “having seen what happened with the HLR,” the Journal leadership “was concerned that early drafts of the piece would be leaked to the public. We worried that early leaks would prevent the piece from ultimately being published, perhaps due to possible intimidation (which is what ultimately happened last Sunday). Last Sunday, we learned that people outside the CLR staff had learned about the piece prior to its publication, which was exactly what we had always feared.”

The two stories are not inconsistent. A small cabal kept the piece secret, but they felt they had good reasons.

The day before the scheduled publication, the article was disclosed to the review’s entire membership. One student complained to the board of directors, a group of faculty members and prominent alumni. The board then asked for publication to be delayed for a few days, in order, as it later explained, “to preserve the status quo and provide student editors some window of opportunity to review the piece, as well as provide time for the Law Review to determine how to proceed.” One wonders what good thing the board imagined could happen during those days.  One might easily anticipate a repeat of the Harvard episode. 

The board claimed that secrecy “inevitably raises questions about the adequacy of the editing and substantiation processes to which the piece was subjected.”  (That seems silly to me. Articles are always edited and cite checked by a subset of the staff, and the rest of the staff is generally too busy to worry about what is happening on other members’ committees.)

***

The law review initially agreed to the board’s request for a delay. According to Lopez, the editor in chief did not consult with the other editors before making that decision, which they refused to support.  So the review reneged on the agreement and posted the article. 

Lopez says:  “Once we had credible evidence that others outside the CLR staff knew about the piece on Sunday night, we feared that we would be intimidated into not publishing at all. The piece committee, in consultation with the current EIC, made the decision to publish early Monday morning to avoid this. It was also the professional thing to do given that Rabea and the six other authors expected the Issue to go live that day.”

That was a poor decision. Even if the delay led to a last-minute rejection like Harvard’s, the review had made a commitment to the board, the editing was done, and the piece was going to be public one way or another.

The board obviously had to respond somehow to this defiance and mendacity. It responded by shutting down the entire website. (Evidently it did not have the technical capacity to just break the link to the article.) 

The delay really did only last a few days. The shutdown was on June 3, and the site was reinstated on June 7, including Eghbariah’s article. That was exactly the delay that the board initially proposed. At the bottom of the home page, there was a link to the board’s statement explaining its actions. It acknowledged that its efforts had proven futile, because the students simply posted the article intact to a different website, where it got a lot of attention on social media.

Public reaction to the shutdown was decidedly negative. The New York Times reported that the “decision to suspend access to the website is the latest example of how American universities have sought to regulate expression that is highly critical of Israel amid concerns that it veers into antisemitism.”  Times Higher Education wrote that the successive blocking of the article by Harvard and Columbia “fits a months-long pattern of US colleges and universities — prominent and otherwise — complying with demands from politically conservative US lawmakers and wealthy donors that they silence criticisms of Israel and its military attacks in Gaza.”

Joshua Mitts, a law professor at Columbia, told me that a different response would have been better.  “Taking down the website,” he said, “exposed the board of directors to allegations of censorship. This was conduct that undermined the procedural integrity of the law review. There was outright deception involved. The appropriate response would be termination of the existing editorial leadership and, at the very least, elimination of their normal ability to select the next year’s leadership.”

The website now displays a statement (somewhat different from the one originally posted) that it had received “multiple credible reports” of a “secretive process” and that “some individuals reporting exclusion expressed concerns with the process and the denial of their opportunity to provide input.” The student editors then voted to go on strike until that statement was removed, demanding total editorial independence.  They refuse to perform their editorial tasks or help select next year’s board until their demands are met. 

The threat posed by AIM, and others eager to suppress pro-Palestinian speech, hangs over the whole affair. The board’s stated concerns included this troubling sentence:  “Whatever your views of this piece, it will clearly be controversial and potentially have an impact on all associated with the Review.” That sounds a lot like a claim that the full membership ought to have had the opportunity to capitulate to anticipated pressure. AP also reported that some of those “involved in the publishing of the article said they heard from a small group of students over the weekend who expressed concerns about threats to their careers and safety if it were to be published.”

Paul Horwitz, of the University of Alabama School of Law, points out that the objection about broken norms cuts both ways. “The board's intervention was clearly highly rare and irregular, clearly had as much or more to do with fear of controversy as with quality or scholarly soundness, and came long after the selection of the article had occurred. Moreover, the board apparently includes alumni, who have no business whatsoever telling a scholarly journal what to publish or not publish.”

  ****

The article, like much legal scholarship, is a piece of advocacy.  (Again, I’m not a Middle East specialist and can’t judge its overall soundness, but quality issues were not what got Eghbariah’s two pieces in trouble.)  Its point of view is not mine. But I am glad to have seen it. It is good to know how the world looks to a lawyer who has represented Palestinians in Netanyahu’s Israel. I appreciate being able to read a smart, articulate and detailed presentation of ideas that many of my fellow citizens hold.  Even where I disagree, it is good to have the opposing view laid out, so that one has a position to respond to. This what universities are for. 

Freedom of thought must include the capacity to entertain controversial, and even terrible, ideas. Students cannot learn to think if they are terrorized into silence.  They must be able to make bad arguments without lasting personal repercussions.  Organizations that harm them for propounding the wrong views are the enemies of education, no less than the thugs who harass Jewish students or vandalize buildings.

The deep issue that this episode exposes is the climate of fear that influenced everyone’s actions, at both journals. Columbia happened in the shadow of Harvard. We ought to blame, not the students or the board, but AIM and its ilk.  It can’t be stopped, but it can be stigmatized.  It should be regarded with disgust, the way we regard the Rev. Fred Phelps, who, the Supreme Court held, had a right to lead cruel anti-gay protests at soldiers’ funerals. It was a great day for freedom when America stopped fearing Senator Joe McCarthy, and it will be just as great when America stops fearing AIM and the other enforcers of orthodoxy on the right and the left.

The above is at the Chronicle of Higher Education, https://www.chronicle.com/article/a-climate-of-fear-comes-for-scholarship.