Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Constitution in 2020 Liveblog Panel 2- Roundtable: About the Constitution in 2020

October 2nd, 2009

Panel Two:
5:30 – 6:30   Roundtable:  About the Constitution in 2020
Moderator:  Neil Siegel, Duke Law School
Interviewing:  Bruce Ackerman, Yale Law School; Jack Balkin, Yale Law School;
Robert Post, Yale Law School; and Reva Siegel, Yale Law School

Update: I attempted to liveblog on my blackberry. In the modern lexicon, the formatting was an epic fail. My apologies. I will bring my laptop tomorrow, and hopefully the generous IT souls at Yale will provide free Wi-Fi. If not, back to the blackberry.

My comments in blue.

Reva Siegel

Siegel began by telling the story of how the Constitution in 2020 emerged. Dawn Johnson hosted conference, where she discussed General Meese’s Constitution in 2000, a document from Reagan white house. This document was restorative and not reconstructive. She attributes this document to the start of originalism.

While the Constitution in 2000 closely tied to politics, Constitution in 2020 makes change possible, and is not fully utopian.

Robert Post
Dean Post began by discussing a theory of democratic contitutionalism. He describes the concept as paradoxical. The best constitution may not be our constitution. Democratic change happens when the people try to take ownership of constitution. We are living with constitution we didn’t make. If we don’t like it we should change. But article 5 is inadequate. Ackerman made the same point, and called Article 5 obsolete. Any other provisions antiquated to Professor B? Maybe the 2nd amendment? How bout the First? The Constitution becomes ours through “norm contestation.” Changing understandings of society make us read the constitution differently. He aims to link cultural values of generation and our understanding of consitution.

Things that don’t appear to be constitutional are. For example same sex marriage. While same sex marriage suits are ostenisbly about states rights and federalism, they are really about same sex marriage. “The constitution is practically at sake.” I suppose this makes sense if Lawrence is extended to SSM, but I recall the majority specifically wrote that SSM is not covered under the DPC. Not yet at least.

Link democratic costitutionalism and originalism? Question.

Jack Balkin

He began, “My name is Jack, and I’m an originalist. Also I’m also a living constitutionalist” Some much needed laughter brought the house down. Balkin considers originalism and the living constitution 2 sides of same coin. Unfortunately, he did not elaborate on this concept.

Balkin posited that there are 3 values to any constitutional theory.
1. Legitimization- a constitutional theory must make whatever government does seem legitimate. In other words, make the unjust appear just.
2. Dissent- The constitution often creates dark times for all people. Balkin’s example was abortion; it is a dark time for pro-life and pro-choice. The Constitution must enable the right of dissent.
3. Persuasion- A constitutional theory  changes when people persuade that what we thought it meant isn’t what it meant. As Balkin explained it, we change what’s off the wall to on the wall. Norms change. What’s unreasonable yesterday may become reasonable today.

Balkin applies his framework to Conservative use of originalism.
Conserv use of orig 1970-95:

1. Legitimization- the processes in the Constitution legitimize the rule of law.
2. Dissent- conservatives argue, and dissent that the Constitution was taken away from them.
3. Persuade them- conservatives seek to persuade public that something is wrong, and has to change

In order ot redeem and restore the constitution, you must move what’s off the wall onto the wall. Transform the unjust to the just. Balkin advises that you need to understand these principles to understand constitutional theory. This discourse was, imho, the highlight of the event.

Balkin turned to the Supreme Court Justice confirmation process. He quipped, that the justices not dying frequently create problems. Lol. Brought the house down again. They used to die or retire every other yars. He bellowed, “Your turn to die” and quipped that these were judicial heath death panels. Guess that Sarah Palin post was pretty influential after all.

Balkin also informed the crowed that Consttution was amended in new deal. You didn’t get memo, he asked? Laughter. Nope, I’m still waiting for my memo.

Balkin Proposal to improve SCOTUS nominations.
1. Snate abolishes 60 vote rule for erything. No amendment to constitution needed, just change intenal rules.
2. Every 2 yrs the President gets new SCOTUS appointee. What to do with all those pesky justices running around? Balkin argues that a quorom is not mandated under the Constitution. Under his approach, the 9 most junior justices decide cases, while the senior justices perform ministerial tasks like the cert pool. I’m skeptical if this is constitutional under Article III.

Bruce Ackerman
Ackerman opened with the two main themes in American history are identity (who are we?) and economic justice.

Unlike Balkin, Ackerman is NOT an originalist. Because society has made a lot of progress on identity, Ackerman wants to turn back to question of economic justice. While there has been progress on national identity, there has been regress on economic justice. Amerca on verge of plutocracy. Top 1 percent own 41 perc of wealth. That’s it?

Ackerman then began on a new path that mirrors Chapter 10 of the Constitution in 2020. He argues that certain “landmark” legislation are “constitutional statements” to “build a constitutional order.”Don’t stick to article 5 which is obsolete, Ackerman argues. Landmark statues for economic justice become part of constitution, even without the Amendment process. I’ll give Ackerman a gold star for creativity in making up these eloquent nomenclatures, such as constitutional statements and constitutional orders, but I don’t see how you can write out Article V based on labeling it obsolete.

Among these landmark statutes are the Civil Rights Act of 1964, the Social Security Act, the Voting Rights Act, and others. Ackerman said that we cannot rely on courts (which unfortunately for the forseeable future are Conservative) to protect these civil rights. Rather, we must rely on the legislature. Neil Siegel quipped that Scalia will only be 83 in 2020, and that 83 is the new 73. Should we wait for const in 2030? Lol

Then Ackerman treaded on a point I have been considering deeply. Would these landmark statutes be considered rights of national citizenship? And if so, would these positive grants of rights be grated as the privileges or immunities of national citizenship under the 14th amendment? If so, would this be a framework for transforming mere “landmark statutes” to the order of a new “constitutional order.” He did not come out and say this in Chapter 10 of his book. But where he is going is clear, in my mind at least.

So I asked him this exact question. His answer, unsurprisingly. Yes.

I also asked Professor Ackerman about his thoughts on the cert grant in McDonald v. Chicago, and the question presented dealing with the privileges or immunities clause. He looked intrigued, but said he hadn’t thought about it.

I also spoke with Professor Balkin about this same point. I will blog further about this later.

This panel was filled with all-stars. I’m entranced listening to them, yet I agree wth litle of what they said. But wow, amazing panelists.

R. Siegel, Balkin, D. Siegel (not sure if they are related), Post, Ackerman

Reva Siegel, Jack Balkin,Neil Siegel (not sure if they are related), Robert Post, Bruce Ackerman (left to right)

Prof. Johnson grades the Original Constitution a B-, Madison rolling over in his grave

October 2nd, 2009

Over at PrawfsBlawg, Professor Johnson, writes that the original Constitution drafted in Philadelphia is not that well written, and contains many scriveners errors and interlinations.

He points out one crucial error that I never noticed:

In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy. The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.] The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”

How can you screw up and write something like that unless you are totally mentally wandering while doing it? This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship?

Johnson references a total of four interlineations in the Constitution: “U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).” Also, Johnson blasts the drafter, Shallus for a shoddy job including “erasures, a misspelling, and wildly inconsistent capitalization”

As Johnson notes, “the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.”

What’s a Textualist to do when the text of the Constitution is flawed? If you saw Scalia, the Textualist who holds the Constitution on his shoulders, if you saw that he stood, blood running down his chest, his knees buckling, his arms trembling but still trying to hold the text of the Constitution aloft with the last of his strength, and the greater his effort the heavier the Constitution bore down upon his shoulders – What would you tell him?


"This Lemon Comes as a Lemon" to be published in George Mason Civil Rights Law Journal

September 29th, 2009

I just accepted an offer to publish my article on the Lemon Test, titled This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose in the George Mason University Civil Rights Law Journal in Volume 20, Issue 3. The issue is slated to be released June 2010.

I originally wrote this paper for a First Amendment seminar I took at Mason, and became fascinated by the Lemon test. Justice Scalia so eloquently described the Lemon test in his dissent in Lamb’s Chapel.

“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence …. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it, when we wish to uphold a practice it forbids, we ignore it entirely …. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”

This Article focuses on the first prong of Lemon, the “purpose prong.” This is the most seldom invoked aspect of Lemon, and I was astounded to find how little had been written on it. Hence, a niche! I explore how the Lemon test forces Judges to consider unreliable sources to ascertain a legislature’s purpose, namely legislative history. I also begin to explore my own theory I’m developing about the evolving nature of legislative history, and why some may be more reliable than others. Stay tuned for future works.

This may be particularly timely in light of Salazar v. Buono which is set for arguments at SCOTUS this term. And yes, the title is inspired by Justice Scalia’s admonition in Morrison v. Olson that “This wolf  comes as a wolf.”