Of Bridge Parties, the Dating/Marriage Market, and Intimate Racism: Putting The Architecture of Desire and A Passage to India into Conversation

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024). 

Linda C. McClain

By coincidence, I read E. M. Forster’s novel, A Passage to India (1924), while reading Solangel Maldonado’s The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (2024). The coincidence proved to be a productive one. Consider that in 1924, the year Forster published A Passage to India, with its depiction of how British colonial rule in India distorted human relationships, the Commonwealth of Virginia enacted its Racial Integrity Act (a “modern” version of its centuries old antimiscegenation law), struck down four decades later in Loving v. Virginia (1967). Published one hundred years apart, Forster’s and Maldonado’s books have striking resonances in addressing cultural, political, and legal barriers to interracial intimacy.  The first focuses more on barriers to friendship and the second, on barriers to dating and marriage, but both powerfully examine how social distance hinders social contact on terms of equality. 

Early in A Passage to India, Dr. Aziz (a “Moslem”  (Muslim)) and his two friends, Hamidullah and Mahmoud Ali, argue over “whether or no [sic] it is possible to be friends with an Englishman” (pp. 6-7; pages cited are from Harcourt, Inc./Harvest Book 75^th anniversary edition).  A false (later withdrawn) accusation of attempted sexual assault against Dr. Aziz by a young English woman, Miss Adela Quested, reinforces Anglo-Indian views about their racial superiority, the dangerous desire of the “darker” races for the lighter, and the need to hold the line against social contact. The book ends by reprising the opening question, as Aziz and his British (Anglo-Indian) friend, Cyril Fielding, disagree over whether they can be friends before the British leave India and India becomes a nation. The Architecture of Desire begins by revealing how, even with the end of legal prohibitions on interracial marriage four decades ago, cultural and structural obstacles remain.  Maldonado reviews how racial pseudo-science rationalized antimiscegenation laws and legally sanctioned racial segregation and discrimination in public and private spaces. Her book shows how some of those traces remain and shape unequal opportunities for interracial intimacy. The book ends by considering what role law and policy could have in addressing those obstacles.

The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials

Andrew Koppelman

My article, The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials, is now published at Philosophy & Social Criticism, https://doi.org/10.1177/01914537241263290. You can find a non-paywalled version at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4346268. Here is the abstract:

Interracial Intimacy and the Limits of Legal Analysis

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Russell K. Robinson

Professor Solangel Maldonado’s book shines a light on an important subject, which is how racial identity determines access to loving relationships. Race scholars have long focused on education, employment, and voting as measures of racial equality. Fewer have explored how race determines access to intimate, enduring relationships, whether marital or non-marital. Much of Maldonado’s book carefully documents how multiple laws interface to impose structural obstacles to people of different races meeting and forming meaningful relationships. For many decades, state and federal laws prohibited or penalized White people who sought to marry a Black person or another person of color. Moreover, over 50 years after the Supreme Court invalidated miscegenation laws in Loving v. Virginia, laws that appear race neutral on their face continue to foster what I have called “romantic segregation.” For example, Maldonado recounts how residential segregation, including racially restrictive covenants and redlining, reduce opportunities for people to live in neighborhoods that are truly integrated. Because public school assignments typically rely on these segregated neighborhoods, children of color are likely to attend schools that are underfunded and predominantly Black and/or Latine. Maldonado observes that, even when workplaces appear racially integrated, they are often stratified, with White people occupying the most powerful positions and people of color populating the lower rungs. These power differentials influence the nature of cross-race interactions. The cumulative effects of these multiple legal regimes create hurdles for people to meet potential romantic partners of different races. 

An important contribution of Maldonado’s book is that it demonstrates that anti-Blackness suffuses communities of color. That is, in general, Asian-American and Latine people’s perceived distance from Blackness provides them romantic opportunities that do not extend to Black people. The key divide may not be between White people and people of color. Perhaps instead we should delineate between people of color, including many Asian-American, Latine, and multiracial people who can obtain what Maldonado calls “honorary White status” through partnering with a White person, and the Black and other darker-skinned people of color whose phenotype precludes them from such assimilation. Maldonado writes candidly of her own Dominican-American family’s opposition to her dating a Black man, but also how their attitudes apparently changed over time. Her work joins that of Tanya Hernandez in urging us to reckon with anti-Blackness in Latine communities.

Understanding “Racialized” Desire Requires Understanding “Gendered” Desire

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Edward Stein

Solangel Maldonado’s The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (NYU Press, 2024) is an accessible, thoughtful, and provocative book about the role of race in intimate preferences and intimate relationships in the United States.  The book powerfully describes the current racialized character of dating and marriage, and persuasively demonstrates how this existing state of affairs is connected to the social and legal history of race in this country.  

For me, the most engaging parts of this book are its prescriptive conclusions.  Maldonado proposes “several reforms [to] reduce the pernicious effects of the law’s influence on interracial intimacy” (p. 10 [unless indicated otherwise, references are to Architecture of Desire]). Specifically, she proposes changing laws regulating dating platforms, housing, education, and transportation.  My focus, in this short commentary, is on dating platforms and the general approach of her project.  I suggest that the project of Architecture of Desire is incomplete without comparing and contrasting the racialized nature of intimate desires and its relationship to US law, on the one hand, to the gendered nature of intimate desires and its relationship to US law, on the other.

The celebration of interracial intimacy racial mixture as the cure for racism – A Critical View

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Tanya Katerí Hernández 

Solangel Maldonado’s The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality, offers an empirically rich intervention into the presumption that one’s choice of intimate partner is solely the product of individual preference. By methodically assessing all the laws that have shaped how our “choices and preferences” are formed, Maldonado demonstrates that our racially restrictive ideas of who makes a desirable partner are not simply a matter of individual choice. The value of Maldonado’s exhaustive assessment of the role of law in influencing intimate partner choice, is that it dispels the notion that our racially segregated societies are natural.

Peeling back the veil to show the legal machinery that structured and continues to influence intimate partner choice, will hopefully disrupt the societal complacency of accepting racial segregation as a natural consequence of benign personal choice. By doing so, the book is key in the social justice effort to address the great extent to which segregation facilitates racial hierarchy and denial of opportunity even in the present-day absence of Jim Crow laws mandating racial segregation. As a result, the book makes a valuable contribution not only to the U.S. conversation about racism, but also to the transnational consideration of race and racism. This is because the puzzlement over how racism can exist in the contemporary absence of Jim Crow segregation, is a global phenomenon that needs insightful analyses like that of Maldonado.

The Relational Construction of Whiteness and Racial Hierarchy

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Reginald Oh

The thesis of Professor Solangel Maldonado’s important book, The Architecture of Desire: How The Law Shapes Interracial Intimacy and Perpetuates Inequality, is that law shapes and influences “choices of long-term intimate partners in ways that perpetuate racial hierarchy and societal inequality.” (p. 6) She makes the persuasive case that racialized intimacy patterns reinforce a “gendered racial hierarchy with significant economic, social, and political consequences.” (p. 8)

i.

I see two distinct parts to her thesis. The first part is her contention that racialized intimacy patterns reinforce gendered racial hierarchy. The link between racialized relationships and gendered-racial hierarchy cannot be understated, and Professor Maldonado’s centering of racialized relationships in a discussion of race deepens our understanding of race as a social construction. I take one of her central arguments to be that race is socially constructed through relationships. Race is relationally constructed.

Interracial Intimacy: The Past as Prologue, or Something Else?

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Rachel F. Moran

In “The Architecture of Desire,” Professor Solangel Maldonado offers a fresh take on the dynamics of interracial marriage and dating.  I assume that I was asked to join the conversation about Professor Maldonado’s book because I wrote “Interracial Intimacy: The Regulation of Race and Romance,” published by the University of Chicago Press in 2001.  Several decades have passed since my book came out, so I could not help but read Professor Maldonado’s work with an eye to what had changed in the intervening years.

In some important respects, the short answer turns out to be very little.  Take, for example, rates of interracial marriage.  When I wrote about these patterns over twenty years ago, African Americans had the lowest rate of out-marriage, while rates for Asian Americans and Latinos were substantially higher.  Based on Professor Mary Waters’ testimony before Congress in 1997, I reported that “over 93 percent of whites and blacks choose same-race partners as do 70 percent of Asians and Latinos and 33 percent of Native Americans.”  Professor Maldonado’s book tells us that “only 18 percent of African Americans marry out,” while “more than one-third of U.S.-born Asian Americans and Latinos as well as a majority of American Indians . . . marry out.”  This suggests that in the last 27 years, the out-marriage rate for African Americans on average has risen by less than one percent each year.  Meanwhile, the rates for Asian Americans and Latinos have remained about the same.  Some of the reported growth may be due to differences in how the relevant populations are counted.  Professor Maldonado, for instance, looks at only U.S.-born Asian Americans and Latinos, a subset of these populations with higher rates of intermarriage. 

Even assuming that all the growth in intermarriage is real, it is still quite modest.  That is especially true in light of the demographic change that occurred in the United States from 2000 to 2020.  According to research done by William H. Frey for the Brookings Institute, during that time, whites declined from approximately 70 percent to just under 60 percent of the population.  Meanwhile, the Latino population grew from 12.5 percent to 18.7 percent, and the Asian American population increased from 3.6 percent to 5.9 percent.  The black population was relatively stable, remaining at about 12.1 percent.  Based solely on these population shifts, one might have anticipated some increase in intermarriage, and as Professor Maldonado herself observes, “if couples across the United States were randomly matched without regard to race, 44 percent of all marriages would be interracial.”  In fact, only 19 percent are.

Law, Racism, and Interracial Intimacy: The Architecture of Desire by Solangel Maldonado

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Kevin R. Johnson 

As we well know, systemic racism infects every part of U.S. society.  The killing of George Floyd began a national discussion, which appears to have come and gone, of the issue.  Given the prevalence of racism, it should not be surprising in the least that the structures creating racial separation dramatically influence who, how, and where people meet and build romantic relationships.  Is it mere happenstance that the group of close friends in the hit turn-of-the-century television shows Seinfeld and Friends were all white?  Racial separation is reflected in rates of intermarriage, especially between a member of any racial group and an African American person.  We cannot be surprised that anti-Blackness infects intimate choices when it influences so much in our society.

Solangel Maldonado’s fascinating book The Architecture of Desire:  How the Law Shapes Interracial Intimacy and Perpetuates Inequality (NYU Press 2024) insightfully analyzes legal issues surrounding interracial relationships in U.S. society.  It nicely builds on Rachel Moran’s 2003 book Interracial Intimacy: The Regulation of Race and Romance.  A racially separated society, the United States sees relatively few interracial relationships, especially relationships between Black people and members of any other racial group.  In efficiently presenting a wealth of facts and figures, The Architecture of Desire show how law and society effectively discourages interracial relationships.

In the book, Maldonado considers in detail online dating platforms and “sexual racism” (pp. 8, 66, 79, 121) expressed by people who intentionally avoid dating people of certain races.  Many online daters exclude the profiles of African Americans in their search for dating partners.  (pp. 66-70).  Maldonado “agree[s] with scholars who have argued that the law should prohibit dating platforms from facilitating discrimination.”  (p. 83) (footnote omitted); (pp. 131-34).  Such matters are complicated, however, because persons can opt for dating partners of similar races and backgrounds because of the greater likelihood for mutual understanding, cultural appreciation, and similar affinities.

Desire in the Absence of Discrimination

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Aníbal Rosario Lebrón

“It begins with absence and desire.

It begins with blood and fear.

It begins with a discovery of witches.”

Deborah Harkness, A Discovery of Witches

In Deborah Harkness’ bestselling series, All Souls Trilogy, her protagonist – historian and reluctant witch – Diana Bishop, finds herself in an outlawed relationship with a vampire. A species’ covenant in the Middle Ages prohibited daemons, witches, and vampires from interbreeding. This covenant brought prejudices, fear, and death; creating a hierarchy that defined the inequalities in their society.

Diana’s desire for a vampire pushes her to defy the law and takes her on a journey through time to find a way to vindicate her relationship. In her travels, just like scientists recently discovering that some human immunity advantage is due to Neanderthal and Homo Sapiens interbreeding, Diana uncovers that powers have been dwindling across all magical communities because of the interbreeding prohibition and that the key to magic survival was miscegenation, especially daemon DNA which gave rise to weavers, powerful witches like herself. Empowered with this knowledge, Diana gains all species’ acquiescence to rescind the covenant and puts in power the long-marginalized daemons, eradicating their traditional hierarchies.

Much like Diana, in The Architecture of Desire, Professor Solangel Maldonado takes us on a journey to understand how the United States legal system – designed to foster and maintain White supremacy – laid the foundation for a caste system in dating and marriage. Contrary to Diana’s story, Maldonado’s account does not stop at the covenant’s dismantling. Instead, she shows us that racial hierarchies are hard to break down even when the law and society commit to racial equity and that marriage still plays an important role in safeguarding White supremacy.

Would Trump's Chances of Re-election be Substantially Reduced If He Chose Ivanka to be his Running Mate?

Ian Ayres

It is difficult to predict how alternative VPs would play in the swing states that are likely to determine the election (all the more now that it is less clear who the Democratic opponents will be).  Beyond crude voter demographic preferences, some of the electorate might believe that Ivanka as Veep could usefully moderate some of her father's excesses.

But as long as the likelihood of Trump's re-election would not decline too precipitously, there is an argument that choosing his eldest child would further Trump's interests.  Even if Ivanka hurt his chances, Trump might figure he has enough of a lead that he can still win with her on the ticket.  

And if she were elected as vice-president, it would of course set her up to run for president in 2028, which would cheer Trump's base (just as some Obama supporters would welcome his spouse throwing her hat into the ring).  They might believe that President Ivanka Trump would let her father usefully influence her policy decisions after he was constitutionally disabled from running again. 

And if Trump has dynastic ambitions, it might be that he deems Ivanka, for whom he has a special affection, to be his most worthy successor.  Or to paraphrase Sucession, he might consider her to be the most serious person among his offspring.

Dynastic presidential succession is suspect -- as the unsuccessful presidencies of  John Quincy Adams, Benjamin Harrison, and George W. Bush have tended to demonstrate.  And it will strike some voters that having a close relative as your running mate is deeply repugnant to our Constitutional tradition. Akhil Amar has pointed out that George Washington was father of our country in part because he did not have children of his own (and hence would have less temptation to instigate their succession). Then again Robert Kennedy was confirmed as attorney general and thereby placed in the presidential line of succession during his brother's term.

Ivanka, who has chosen to step away from the "dark world" of politics, might not be interested in such a position.   This post is not about her or my preferences or what is best for our nation, but instead asks whether picking Ivanka might best serve Trump's interests.  

In any event, it seems clear to me that Trump would have a second-mover advantage in waiting until the Democratic ticket is solidified before choosing his running mate -- as waiting might give him an opportunity to choose a vice-president that beneficially responds to his opponents.

Interracial Intimacy and Racial Equality

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Dorothy Roberts 

Legal scholars, social scientists, and historians have studied the legal regulation of interracial intimacy because it has served as a critical means of enforcing white supremacy throughout United States history. Legal barriers to interracial unions were essential to establishing the political order that separated human beings into races, policed the boundaries between them, and subordinated people of color to white rule. Laws restricting interracial marriage passed in all but nine states safeguarded both white racial purity and the privileges of legal marriage to a white person. Anti-miscegenation laws were part of the Jim Crow legal regime that took hold after the Civil War and officially separated black people from white people in every aspect of social life, including schools, hospitals, buses, restaurants, hotels, swimming pools, and drinking fountains.

Evaluating the Filibuster in Light of Political Uncertainty

David Super

      In 2021 and 2022, with Democrats holding the White House and slender majorities in both houses of Congress, eliminating the filibuster became an article of faith among progressives.  Those of us that warned against doing so were pilloried as dim, backwards, or impediments to progress.  This relentless pressure persuaded Senate Majority Leader Schumer, who surely knows better, to force a vote on eliminating the filibuster on the Senate floor.  Most Democratic senators who recognized the filibuster’s importance nonetheless voted to end the filibuster, confident that Senators Joe Manchin and Kyrsten Sinema’s votes would preserve it.  Progressives promptly doubled down on the vilification of those two senators, ending their political careers.  But were they right?

     This seems the perfect moment for a thoughtful reconsideration of the merits of ending the filibuster.  At this writing, we are in an unusual moment where it is entirely plausible that either political party could hold a “trifecta” – majorities in the House and Senate plus control of the White House – come January.  If so, the filibuster will be the only leverage the losing party has in the legislative process.  With both prospects in full view, people on both sides of the partisan divide would do well to consider whether the benefits of having free reign over the legislative process if they win outweight the harms of being shut out if they lose.  Although only one party (at most) will have a trifecta next January, with the electorate as evenly balanced as it is between the two parties, and with neither party much interested in broadening its ideological sweep, each party has a plausible chance of holding a trifecta in the reasonably near future.

Deconstructing Desire

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Naomi Cahn

When I teach Loving v. Virginia in family law, I remind students that, in 1967, Virginia was not alone in banning interracial marriage. And I point out  that many of their parents were alive during this era.

This semester, I will follow up to ask if racial preferences continue to shape my students’ dating and relationship choices.  I suspect that they will indignantly declare that such intimate discrimination is a relic of the past.

Balkinization symposium on Solangel Maldonado, The Architecture of Desire

JB

This week at Balkinization we are hosting a symposium on Solangel Maldonado's new book, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

We have assembled a terrific group of commentators, including Rick Banks (Stanford), Naomi Cahn (Virginia), Tanya K. Hernandez (Fordham), Kevin Johnson (UC Davis), Linda C McClain (B.U.), Rachel Moran (Texas A&M), Reginald Oh (Cleveland State), Dorothy Roberts (Penn), Russell Robinson (Berkeley), Aníbal Rosario Lebrón (Rutgers), and Ed Stein (Cardozo)

At the conclusion, Solangel will respond to the commentators.

Today's Supreme Court and the Administrative State

Mark Tushnet

I’ve been thinking about the actual scope of Loper mostly out of intellectual curiosity because I don’t have to teach or write about it in detail. Chevron’s core justification, I think, is that agencies have expertise in the subject matter such that they are more likely to arrive at a better interpretation of an ambiguous statutory term than generalist courts would (and have more democratic accountability than the courts do).

That’s probably right with respect to matters at the core of an agency’s mission—determining levels of safe exposure to pollutants for the EPA, determining whether some new drug is safe and effective for the FDA pursuant to already specified criteria of safety and efficacy. But the interpretive issue in neither Chevron nor Loper lies at the agency’s core expertise. With Chevron political accountability matters (EPA adopted its interpretation of the relevant statutory term because that’s what the Reagan deregulatory agenda sought). So, overruling Chevron might diminish agency political accountability (though most of the critical comments about Loper focus on the expertise dimension),

When I taught Chevron I managed to come up with an account along these lines: The EPA might know more about the details of investment choices polluting companies make with respect to upgrading or replacing buildings within a single complex. And something similar might be said about the Fisheries agency’s knowledge of the business side of fishing, affected by who has to pay for observers. But, it seems to me, if that’s so the agency’s lawyers should be able to explain the content of that knowledge to a generalist judge without extraordinary difficulty. And that, it seems to me, is what one part of Skidmore is about. (Perhaps there’s a form of professional knowledge built upon experience that can’t be communicated effectively to non-specialists—maybe “thinking like a lawyer” is an example, and so might be “thinking like an environmental regulator.”)

So one aspect of thinking about Loper’s impact is to see what kinds of interpretive issues are likely to arise. The NY Times had an article about that, which I’ve mined for the following examples. The bottom-line is that the more detailed examination suggests that Skidmore will deal with some issues, that the mixed-questions-of-law-and-fact doctrine of Hearst Publications will deal with others, and, as Adrian Vermeule points out, the acknowledgement that Congress can and sometimes does delegate interpretive authority, with still others—and the story doesn’t give enough detail about the relevant statutes to be able to assess the academics' comments about Loper’s adverse impacts. Of course there’s going to be a period of litigation uncertainty and in the short run agency lawyers will have to come up with more arguments than they did under the Chevron regime. And of course we don’t know how judges are going to respond to the Skidmore etc. arguments. But, the face of the opinion in Loper gives agency lawyers more than a little to work with.

The easier examples involve “labor agencies,” in the Times’s terms. One deals with “the level below which salaried workers automatically become eligible for time-and-a-half overtime pay.” That seems to me a pretty close replay of Hearst Publications. Another example offered involves whether individual workers who protects working conditions are engaging in protected concerted action. The story notes that the NLRB “often concludes” that they are—which suggests that Skidmore kicks in.

For the FDA the story quotes one pro-life activist who suggests that challenges to approval of mifepristone are “likely to get a better reception ‘when the FDA is no longer given the benefit of the doubt.’” But, the activist doesn’t identify any ambiguous statutory term that the FDA interpreted in approving the medication (perhaps we would say that it applied the statutory term “safe and effective” and in so doing implicitly interpreted it, but that’s not a standard way of describing applications of statutory terms—and the “arbitrary and capricious” test seems designed to deal with applications, not Chevron, so it’s not clear that there’s any issue as to which pre-Loper the FDA was being given the benefit of the doubt). The article refers to industry challenges to the FDA’s power to require pre-market approval but doesn’t refer to relevant statutory language—my guess is that this is indeed a case where Loper might make a difference in methodology (though the long-ish history of pre-market approval suggests that applying Skidmore would be sufficient to sustain the FDA’s practice.) Another story I read suggested that the FDA’s rules about what’s required to show that a medication is safe and effective—the “gold standard” of large enough double blind studies—would be vulnerable. The gold standard is, I think, an agency resolution of a statutory ambiguity, but again my sense is that Skidmore and the mixed-questions doctrine would handle the problem reasonably well.

With respect to health care, the story doesn’t identify statutory language, but here my guess is that Loper will indeed sometimes make a difference. The story does mention “regulation[s] … grounded in interpretations of laws that date back decades,” but—if “date back decades” modifies “interpretations,” we’re in Skidmore land again.

Finally, there’s the EPA, which has been the focus of a lot of the commentary. The Times story actually doesn’t identify any statutory language where Loper might make a difference—it simply says that specific regulations to implement the Inflation Reduction Act “could now be more legally vulnerable.” But, as with Chevron itself, we’d need to know whether resolving statutory ambiguity would implicate the EPA’s core expertise and its political accountability, and we can’t know that without specific example.

My bottom line is that Loper might be a big deal but that built into it are limitations that could substantially reduce its impact depending on how judges interpret both the core holding and the limitations. My guess is that we’re likely to see a battle between the Fifth Circuit and the D.C. Circuit over Loper’s “real” meaning,” with the D.C. Circuit following the notes (“here are a couple of ways to cut back on the modern administrative state, though much is left intact”) and the Fifth Circuit following the tune (“we don’t like the modern administrative state”).

(I don’t plan to say anything about Jarkesy except to note that it’s about limiting the ability of agency actors to award what amount to monetary damages, and that a great deal of the work of the modern administrative state is done through enforcement via injunction and fixed though often way too low fines, which probably aren’t implicated in Jarkesy. Here too it’s a tune versus notes situation.)

Rudyard Kipling: "The Old Issue"

Gerard N. Magliocca

This was one of Justice Robert Jackson's favorite poems, which he quoted in his opening statement at Nuremberg and in his Youngstown opinion. In light of current events, I thought I'd quote this stanza:

All we have of freedom, all we use or know--

This our fathers bought for us long and long ago.

Ancient Right unnoticed as the breath we draw--

Leave to live by no man's leave, underneath the Law.                    

Lance and torch and tumult, steel and grey-goose wing

Wrenched it, inch and ell and all, slowly from the king.

Till our fathers 'stablished, after bloody years,          

How our King is one with us, first among his peers. 

So they bought us freedom--not at little cost--         

Wherefore must we watch the King, lest our gain be lost.

Presidential Immunity: Preliminary and Tentative Thoughts

Mark Tushnet

Some time after September 11, 2001, I started writing about the constitutional dimensions of emergency powers under the US Constitution. I gave up the project after the Bush administration retreated from its most advanced—and interesting—positions. Before I did, I had begun to develop the view that the best way to understand emergency powers, both descriptively and normatively, was captured by terms like “extra-legal” or “extra-constitutional.” Law professor Oren Gross had already used the term (here and here), as had political scientist Benjamin Kleinerman, whose book The Discretionary Presidency: The Peril and Promise of Executive Power I finally got around to reading in my crusade to rid myself of the unread books I’d accumulated over the decades.

Trained in law, I was interested in the institutional implications of describing something in those or similar terms. We all seemed to agree that they implied some sort of retrospective evaluation through some sort of political rather than juridical process. One possibility, to which I was attracted, but now am not, was that the retrospective political process was ordinary politics: A president would act in an emergency and voters would later approve or punish him/her and their party in subsequent elections. Relying on Locke and Madison, Kleinerman correctly points out that ordinary politics might not be sufficient because ordinary politics includes too much “mere” approval or disapproval of outcomes, too little (if any) component of constitutional evaluation. Kleinerman argues that the retrospective evaluation requires that the President “prove” (his term) that the actions taken were truly necessary to preserve the nation—but (perhaps because he’s not a lawyer) he doesn’t spell out the institutional form for making that proof.

Other institutions for retrospective evaluation might be impeachment and Truth and Reconciliation-like commissions, the former explicitly constitutionalized (but perhaps too difficult to use given partisan divisions centered not on constitutional concerns but, again, on approval or disapproval of the merits of the actions taken), and the latters’ ad hoc nature perhaps giving them constitution-like status. (After January 6, 2021, I did suggest the use of such a commission but it turned out that partisanship prevented the creation of one--I initially had this as "Republican partisanship" but I know that Republicans say that the partisanship originated in Nancy Pelosi's rejection of Republican "nominees" for the Select Committee; this "you did it first" back-and-forth is a characteristic of constitutional harfball that I identified in my initial presentation of that idea.)

Trump v. United States brought to my mind my earlier thinking about emergency powers—though it bears emphasizing that that setting had a triggering condition (“emergency”) absent from Trump v. United States. What follows are truly tentative and preliminary thoughts, inconsistent with a tweet I posted invoking Wittgenstein (“Whereof one cannot speak, thereof one must be silent”).

Maybe we should think of immunized presidential action as “extra-criminal.” The starting point would be that presidential action immunized from criminal (or civil) liability remains criminal though unprosecutable. A second preliminary point is that the immunity is the President’s alone (or so it appears). That is, presidential subordinates aren’t immunized directly. So Trump shooting someone on Fifth Avenue is different from Trump directing his chief military aide to do so.

Assuming that Trump is immunized for shooting and for giving the aide the order (not inevitably true depending on circumstances), the aide would be criminally liable absent some defense. The obvious defense is compliance with a superior’s orders, but in the military that’s not available for “manifestly unlawful” orders (and outside the military there’s no such defense, I believe)—and Trump’s order would be manifestly unlawful even if he couldn’t be held liable for giving it. (As the scenario has developed on the internet, that’s why the president’s pardon power comes up: “Go shoot my political opponent. I’ll issue you a pardon immediately upon your completion of the task—or here’s a pardon written out that you can carry in your pocket when you do it.” [I think there’s a serious question about whether a president’s pardon power extends to future actions and, as the military aide’s lawyer I’ll tell him/her that the prospective pardon might be valid but might not be—and that the president might or might not follow through on the promise to pardon.])

The emergency-powers problem differs from this one in another way. In that setting there are (usually) no ways of obtaining a determination, prior to the action being taken, by some institution other than the presidency that there really is an emergency. That’s the burden of the generally though not universally agreed-upon proposition that emergencies take such variegated forms that there’s no realistic way of specifying beforehand what counts as an emergency, at least not in terms that significantly constrain presidential discretion. (One of my favorite examples is the provision in the ICCPR referring to an emergency that “threatens the life of the nation.”) The criminal setting is different because we ordinarily have an institution—the criminal process itself and the jury—to certify that the action was indeed unlawful.

My guess is that retrospective evaluation of an action as criminal will be significantly more difficult than retrospective evaluation of actions taken in an emergency because of the absence of such a certification. I suppose we could think of this as a situation in which, faute de mieux, the people are allowed to “take the [criminal] law in their own hands” through some form of collective action, though of course that phrase has a badly damaged history. (And, notably, in some real-world lynchings in the US West those who took the law in their own hands did so in a situation in which they believe that the institutional certification provided by the criminal process is unavailable because the process couldn’t be deployed until, months later, a judge would be available.) And, equally of course, the suggestion is not that lynching those immunized by Trump v. United States is the correct form of retrospective evaluation. (Given the way social media work these days, I suppose the preceding sentence should be in ALL CAPS.) Following the thoughts about emergency powers, we need some institution different from ordinary politics for performing the retrospective evaluation. At present I’m at a loss to figure out what such an institution would look like.

Trump v. United States as Roe v. Wade

Mark Graber

Conservatives who claim to hate Roe v. Wade apparently repeat all the relevant "mistakes" when deciding Trump v. United States or so I argue in Verfassungsblog.

For a whiff of the argument, 

For half a century, conservatives complained to anyone who would listen that the Supreme Court’s decision protecting abortion rights in Roe v. Wade (1973) was “egregiously” wrong. The Constitution, they shouted in party platforms, on the campaign trail, and in law reviews, does not mention abortion, the authors of the Fourteenth Amendment did not intend to protect abortion, and Americans did not consider abortion a right when the Fourteenth Amendment was framed. Roe, they continued, confused discrete textual protections for some rights related to privacy with a constitutional commitment to privacy rights generally that is nowhere mentioned in the Constitution. Roe’s majority opinion supposedly dramatically overextended dubious precedents protecting other privacy rights when protecting abortion under that umbrella and invented three legal categories of pregnancy when putting in place a regulatory scheme that smacked more of legislation than constitutional law.

Two years after overruling Roe, the Roberts Court’s conservative super-majority justified limiting the capacity of the American people to bring Donald Trump to justice for numerous crimes by employing the very legal technique they condemned when employed to advance women’s reproductive rights. Trump, Trump rules, is largely immune from criminal prosecution, even though the Constitution does not mention presidential immunity, no person responsible for any constitutional provision intended to grant immunity from the criminal law to the president, and no evidence exists that Americans living in 1787 thought presidents enjoyed criminal immunity. Trump confuses particular constitutional practices that facilitate some separation between the different branches of the national government with a constitutional commitment to the separation of powers generally that is nowhere mentioned in the Constitution. The majority opinion dramatically overextends dubious precedents immunizing presidents from civil liability to encompass criminal liability and invented three categories of presidential action when putting in place a regulatory scheme that, coincidentally, smacks more of legislation than constitutional law.

Hit the above link for the rest.

Progressives Should Support a National Constitutional Convention: Answering the Doubters

Guest Blogger

John Davenport

During the last eight years, a radical antifederalist movement has been promoting the idea of calling a new constitutional convention – and scaring liberal and centrist political leaders and organizations along the way. This “convention of states” (CoS) movement, as critics have noted, is funded by Koch Brothers money through ALEC; it aims to destroy federal capacities to steer the economy and hold corporations to basic standards. Backed by Federalist Society lawyers, this movement was created by Texas governor Greg Abbott, former Republican Senator Rick Santorum, and their allies to turn cronies in red state capitols across the nation into convention delegates. They want a convention that will pass a balanced budget requirement, abolish the income tax, and gut the federal government’s powers – although, as I’ve argued in The Democracy Amendments, the principle behind the enumeration of federal powers would today actually entail an expansion of federal authorities to secure national public goods. With astonishing arrogance, the CoS organizers hope to rig a convention so it can discuss only their proposals. 

In this circumstance, it is not surprising that leading Democratic politicians, progressive legal scholars, and centrist or center-left groups like Common Cause have portrayed a new convention called under Article V of the 1787 Constitution as an anathema that would destroy what is left of the federal system sustaining the United States. They have persuaded Democratic-led state governments in at least nine states such as New Jersey, Maryland, and New York to withdraw calls for a national convention that their statehouses issued years ago in hopes of amending the Constitution to allow election spending limits, or to create constitutional voting rights, or to permit public funding of religious schools. In fact, “conventionphobia” – David Pozen’s apt term – has become the near- consensus position among most American progressives (although California Governor Gavin Newsom recently called for a convention to propose a gun control amendment). But, as I will argue, conventionphobia results from wishful thinking about our ordinary legislative process, paranoia about conservative amendment aims, and lack of sorely needed vision. Indeed things are about as bad as they could be in recent progressive thought about holding a new constitutional convention.

The Anti-Banana Republic Principle

Gerard N. Magliocca

Will Baude has an excellent op-ed in today's New York Times on the Court's just-completed Term. He points out there that the Court deviated from its originalist methodology in Trump v. Anderson and Trump v. United States in favor of a consequentialist approach. I want to add a different spin to that point.

One thread that connects these two cases is what I will call an "anti-banana republic" principle. It's not just that ballot exclusion of leading candidates and the criminal prosecution of ex-leaders are seen as contrary to our tradition. It's that they are seen as a tradition in unstable democracies or failed states. During the Trump v. Anderson litigation, I often heard the claim that: "Keep a major presidential candidate off the ballot? That's what they do in banana republics." People make the same point about throwing former leaders into jail. Since we are not a banana republic, the argument goes, those remedies are wrong. (Amicus briefs in both Trump cases invoked the banana republic trope.)

Of course, this is not a textual or originalist principle. (The term "banana republic" was apparently coined by O'Henry around 1900.) Nor is it capable of clear or even-handed application. Suppose an opinion said that regulations to limit corporate power in politics were justified because banana republics are typically places where corporations dominate the state (think of the Cuba scene in "Godfather II"). I think that is a plausible articulation of an anti-banana republic rule that would get torched by most conservative scholars. Perhaps we need an article on "Banana Republic First Principles."  

Textualism and Linguistic Drift

Mark Tushnet

 In thinking about the implications of Trump v. United States for the general issue of conceptualizing emergency powers under the US Constitution, which might be the topic of a subsequent post, I started to wonder about textualism and linguistic drift. The "domestic Violence" clause is by now a standard example of why the Constitution has to resist linguistic drift (though in my view syntax alone would be sufficient in this example: how could the United States protect states against what we now think of as domestic violence?). Similarly with Jack Balkin's "what part of Republican form of government don't you understand?" example (though there too syntax is sufficient--his joke referred to Bush v. Gore, which didn't involved guaranteeing a republican form of government for each state, though I suppose you can apply it to the Court's partisan gerrymandering decision).

What are we to make of the term "invasion," which occurs three times in the Constitution (in the habeas-suspension clause, in the Compact Clause [as "actually invaded"], and in Article IV)? The term has its place in contemporary conservative discourse, which characterizes what's happening at the US southern border as an invasion. One can imagine a Trump administration suspending habeas in connection with those who cross the border without authorization. Conservatives might assert that Article IV places a duty on the United States to protect states against invasions (one of which is occurring) and that the President's failure to do so provides the basis for impeaching him for failing to take care that the laws be faithfully executed. (At least one impeachment resolution invokes this theory.)

Is this an example of (a) impermissible linguistic drift or (b) permissible specification of vague constitutional terms within the bounds of reasonable interpretive flexibility? I did some quick and dirty research (this is a blog post, after all), and came up with this. The 1785 edition of Samuel Johnson's dictionary defines "invasion" as "a hostile entrance upon the rights or possessions of another," and provides four illustrations, of which two involve invasions by organized military forces of hostile nations (and the other two of which seem to me metaphorical). Noah Webster's 1828 dictionary's first definition is: "a hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force. The north of England and south of Scotland were for centuries subject to invasion each from the other. The invasion of England by William the Norman was in 1066." 

My real puzzle isn't about "the" answer to the question posed in the preceding paragraph. (About 15 years ago I suggested, in passing, that the September 11 attacks could plausibly be characterized as an invasion for purposes of habeas suspension, thus assuming that organized attacks by a hostile non-state actor could count as an invasion. What about the ISIS-influenced attack by a single individual at Fort Hood years later?) The puzzle is about how to think about figuring out the answer. My guess is that there's a sophisticated literature in the philosophy of language about the distinction the question draws--and my guess is that that literature, though perhaps a tempting source for legal academics, is likely to be quite unhelpful.

Anyhow, a suggestion for a law review article or student note? For a first stab, see this, from what Wikipedia describes as a conservative think tank. (And perhaps a preliminary to a post on emergency powers.)

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.