Can the Law of Democracy Save Democracy?

Dec 5, 2025 Helen NortonAdd a Comment

Helen Norton

Can the law of democracy save democracy? Maybe—but not if we’re counting on the courts to save us, answer Guy Uriel-Charles, Luis Fuentes-Rohwer, and Farris Peale in their thought-provoking (and sobering) article, Reconstructing (The Law of) Democracy. Their paper’s key insight observes that today’s most important election law cases involve questions of “partisan existentialism” that are not only entirely absent from earlier election law disputes, but are also beyond courts’ capacity to resolve.

The authors start by explaining why one might have thought that the courts could help us escape from today’s democratic dysfunctions. They describe the series of mid- to late 20^th-century malapportionment, ballot access, and related election law decisions in which the Court was understood as protecting representative democracy from certain democratic dysfunctions. The “perceived success” of that series of cases—which began with Baker v. Carr and continued through Reynolds v. Sims and Williams v. Rhodes, among others—“helped to develop a foundational view: that the Court both could and should intervene to prevent breakdowns in the systems of representative democracy.”

To be sure, even then some were skeptical that the Court could effectively play the role of democracy’s guardian. For instance, as the authors recall, Felix Frankfurter “warned that judicial intervention [in malapportionment cases and related disputes] would produce dire consequences. If the Court weighed in on these questions, it would not only be perceived as meddling in the people’s politics, which was bad enough, but it would also be viewed as a shill for one of the political parties.” Still, for roughly a half-century, many came to view the Court as “necessary for actualizing self-government in a constitutional republic and addressing the dysfunctions of American democracy.”

But that was then and this is now.

What’s different today, the authors assert, is an unprecedented and pathological combination of partisanship and polarization. Partisans on both sides believe that the other side poses unacceptably grave threats to democracy. “Two hyperpolarized and fundamentally divergent parties developed different world views. Unable to reconcile their differences, they took ever more divergent approaches to political competition while cooperating less and less. That cycle of mistrust eventually, and unsurprisingly, led to current political conditions: both existential fear for American democracy and irreconcilable partisan views of the sources of the threat to democracy.”

Both parties cast themselves as the champion of democracy even while they disagree over what democracy requires. The Democratic party embraces “a vision of broad, competitive democracy that aligns with the understanding of electoral competition long held by most political scientists.” In contrast, the Republican party embraces a different “version of republican democracy that includes and emphasizes the many minoritarian features that have long been part of our democracy—such as the electoral college.” Long story short, according to the authors, Republicans emphasize a view of democracy rooted in history, tradition, and security, and that Democrats instead articulate a vision of democracy rooted in change and transformation. “The politics appear existential because both sides believe that at stake is not just a particular policy or issue but a fundamental commitment to liberty, individual, flourishing, and the American constitutional system of self-governance.”

These pathologies have wrought a sea change in what election law cases now call upon courts to do: “Each party seeks the imprimatur of the courts—a judgment that their side is preserving democracy while the other party is illegitimate. Put differently, the Court is not only being asked to adjudicate representative democracy itself, but to pick one side’s view as the defender of the constitutional republic.”

This is something entirely new under the sun, according to the authors. Courts have adjudicated highly partisan disputes and they have adjudicated disputes involving threats to democracy. But never, the authors assert, have courts had to deal with partisan disputes over threats to democracy.

More specifically, courts can handle disputes with significant partisan valence so long as the parties don’t divide over the meaning of democracy: along these lines, the authors propose that Bush v Gore reflected a highly partisan divide but not one where the parties accused each other of authoritarianism (some may have different recollections of that dispute’s tenor). Conversely, the authors assert that courts could handle disputes over malapportionment as a threat to representative democracy so long as those disputes were not described or understood in partisan terms. Until very recently, then, election law disputes “did not ask the Court to choose between two parties both claiming to defend democracy from the other party.”

Surely that cannot be, you might think. What about challenges to White primaries and so many other efforts to exclude people of color from American democracy? Nope, say the authors. To be sure, the White primary cases and related disputes involved “genuine antidemocratic behavior by political elites and extreme interference with the democratic process.” But the authors emphasize what they see as the Court’s deliberate choice to avoid defining these as partisan disputes about whom a representative democracy must include, and its choice instead to frame those disputes solely in racial terms that did not require them to pick winners and losers between the political parties.

To illustrate today’s new generation of what they call “partisan-democracy” cases, the authors describe the parties in Trump v. Anderson as asking the Court to decide whether preserving American democracy requires “President Trump’s exclusion because he had engaged in insurrectionist and authoritarian behavior” or instead requires the rejection of efforts “to exclude President Trump from office because it represented an attempt to interfere with voters’ will and punish a successful political rival.” In other words, today’s Court “is not only being asked to adjudicate representative democracy itself, but to pick one side’s view as the defender of the constitutional republic.”

Courts can expect a continued influx of partisan-democracy cases, the authors predict. They predict, too, that courts will not be competent to decide them: “If the Court repeatedly selects a partisan vision of democracy that the other side views as authoritarian, the Court risks convincing one or both sides that authoritarianism had prevailed and the electoral game is no longer being fairly played.” (Many believe this already.) “It is too tall an order to expect the Court to functionally declare that one of our two major political parties is an authoritarian…. It should surprise no one if the Court is unwilling to play that role.” We must look to someone or something other than the courts to reconstruct democracy to address the pathologies of our contemporary politics, which requires “a political consensus about the nature of representative government that only the people and their representatives can make.”

What, then, to do? And who should do it?

Neither optimistic nor nihilist, the authors sketch a menu of possibilities. To start, they identify steps that the political parties themselves could quickly take to strengthen their internal structures to resist capture by extreme factions and candidates. These include channeling donations through the party leadership for distribution to candidates as well as exercising greater party control over candidate selection (by, for example, turning away from primaries).

Next, the authors suggest changes to our voting systems. Start with the current single-district winner-take-all system that incentivizes the twin pathologies of partisanship and polarization. Replacing that system with any of a variety of proportional voting alternatives would mean that the share of the vote commanded by a party (or other group) would determine the number of representatives elected by that group. Already at work in a number of the globe’s democracies, these systems enable representation of a wider range of political views, and incentivize voter turnout by enabling groups to elect representatives even when they don’t command sufficient numbers to prevail in winner-take-all systems.

Other possibilities include any of a variety of ranked-order voting systems (already in place in some U.S. jurisdictions) that permit voters to rank the available candidates rather than having to pick just one. And nonpartisan primary systems where the top four candidates—regardless of vote share or party affiliation—move onto the general election. This helps escape the tyranny of the primary in jurisdictions where only one party is competitive.

Each of these alternatives can help defuse extreme partisanship and polarization by increasing voters’ choices and creating opportunities for more moderate candidates to be successful. Each requires changes to party rules and practice, or to federal, state, or local state statutes, but not to the Constitution.

Looking at the even bigger picture, the authors suggest that we open up the Constitution for amendment and consider anew whether to keep anti-majoritarian features like the electoral college and the Senate, whether to constitutionalize expanded voting access, and whether to reconsider the role of money in politics. (For various thoughts on what that process might look like, see, for instance, here, here, and here.)

Amending the Constitution is a heavy lift in the best of times. And it’s one that now requires election law scholars, among others, to identify constructive approaches for undertaking this process in our partisan-existentialist time where almost everybody expects their opponents to rig the results. And to be sure, the other, nonconstitutional, options identified by the authors trigger the same doubts: to be successful requires avoiding a descent into partisan-existentialist rhetoric and strategies and the paralysis they so often generate. Even so, the authors counsel, the nature of our contemporary democratic pathologies is such that each of these options, however difficult, is a better bet than relying on the courts.

A History Lesson

Nov 7, 2025 Mae KuykendallAdd a Comment

Mae Kuykendall

In her new book The Age of Choice: A History of Freedom in the Modern World (hereinafter Choice), historian Sophia Rosenfeld has added an engaging new book to her body of work tracing “ideas and assumptions” in liberal democracies.” As is her usual approach, Rosenfeld devotes her skills to recovering popular thought that shapes cultures, rather than to the ideas of major thinkers in the canon of liberal thought. In her brief summary of the primary points in The Age of Choice, she calls herself “a historian of the taken-for-granted.” Here, the taken-for-granted phenomenon is the modern tendency to treat “choice” as a guiding light in our individual and collective lives.

Her scholar’s duty persuades Rosenfeld to provide evaluative commentary on the cultural habits she has served up for inspection. Elsewhere, Rosenfeld—perhaps responding to the choice-glutted, time-starved world her readers inhabit—has offered five key insights from the book. In the list, she opens the door to our seeing downsides to “our reliance and faith in choice.” The door to some evaluation of choice is presented by her foregrounding of women as drivers of “the equation between freedom and choice.” More on that opening follows below.

Rosenfeld’s key skill lies in her ability to bring to the surface trends and ideas embedded in our cultural and democratic practices over time—what she calls a doxa, a sociologist’s coinage referring to “the set of largely taken for granted assumptions that undergird all explicit fights in a given era.” (P. 2.). Although the practices and common views she traces may display a link to big thinkers’ ideas in a period under study, her work is rooted in a perceptive and diligent examination of popular thinking and acts. In Democracy and Truth: A Short History (2018) (hereinafter, Truth), she used this skill to show the underlying complications in our standard, “taken-for-granted” story about the workings of democracy. In the case of Truth, she focused her attention on “the long standing conflict in democracy between different sources of truth and different methods of getting there…” The election in 2016 of a purveyor of lies brought her attention to the present as a starting point. What seemed new, she showed, was in fact situated in a history of contestation over the control of truth in a democracy. Further, as Rosenfeld explains in a forum on Truth, as I will emphasize about Choice, “the book was intended to inspire debate, not to be the last word on the subject… as a thought piece, rooted in historical claims…”

Rosenfeld delivers a historical perspective rather than strong claims about the cultural tendencies she reveals. She does not avoid moral analysis of where we are and the benefits and costs, but she is not mainly set on a course of alarmist moral argument. The payoff of the book is her historical lesson highlighting how choice has grown from modest beginnings to “seem such a natural, unexceptional part of life” rather than “a historically specific behavior.” (P. 6.) Both the forms that “choice” has taken and its treatment as “a hallmark of freedom from consumer capitalism to human rights and feminism are historical developments,” she shows. (P. 6.)

It would be easier for adherents of other disciplines or perspectives to succumb to the temptation of attributing an exaggerated thesis to Professor Rosenfeld’s book. And, to be sure, she provides plenty of grist for the mills of cultural critics, whose views are worthy of a hearing. Nonetheless, Rosenfeld’s undertaking as a historian of choice/freedom is more about the journey than the destination. She seeks to find a tactic to chart how choosing came to be bonded to the idea of freedom—that is, to trace the history of “historically specific but social widespread mental habits” that underlie “political norms” in liberal democracies. (P. 6.) (referring to Hannah Arendt’s great insight).

Rosenfeld charts choosing’s history with control, mastery, and phrasing that carries memorable punch. In pursuing her engagement with our once-emergent and now-ubiquitous shared embrace of choice-infused cultural lives, she collects and memorably describes examples of choosing, great and small. Her subjects, each of them (as her chapter titles suggest) illustrating a different arena for choice, include shopping for goods, making choices about what to believe, voting—even selecting a romantic partner. This culminates in an epilogue exploring “The Past and Future of a Right to Choose.” (Upon seeing those words, can one possibly avoid thinking of Dobbs?)

Rosenfeld’s chapter on “The Sciences of Choice” is especially interesting, given work in this area by law professors as well as scholars in psychology, economics, and other disciplines. Professor Rosenfeld has two sneaky quasi-subtitles at the very beginning of the first paragraph: Capitalism. Democracy. In that connection she gives us a phrase to remember: “choice architects.” (P. 260.) Some may recall that it was first coined by Richard Thaler and the legal academy’s Cass Sunstein. The phrase, without more, hints at a reservation about equating choice with freedom. We spend much of our lives in structures that may be a preview of a light-filled paradise to come—or a bleak hell of forbidding dark. The architecture for our physical lives is not the most inspiring picture of choice as freedom for all.

What Rosenfeld says with a fleeting but telling phrase gives ample opening for those who want to attribute a thesis to her and potentially to adopt it or critique it. In her historian’s examination of the sciences of choice, she points out the effect of income disparity on the shaping of available choices: “Moreover, money continues to hinder choice making for the poor of all races—and maybe even more than in the past, as wealth becomes ever more the key modern facilitator of choice in multiple domains.” (P. 261.) This observation opens up the possibility of significant critique of wealth as a driver in the enhancement or restriction of choices. She concludes this observation with the following summation of its significance: “Choice has rarely been a synonym for equality.” (P. 261.)

The direction she takes with the observation is not to assume a role as a deep critic of capitalism or of democracy, but to maintain her work as a chronicler of the evolving environment in which choices present themselves over the long period of their reign in our shared world.

As the rules and procedures around the business of selection got more formal and standardized, the external moral strictures on the choices themselves started to fall away. They became more and more personal, driven by one’s own predilections, or so at least it seemed. But simultaneously, this very particular kind of decision making, and its increasingly valued neutral and individualized but highly managed form, became an anchor concept within two ascendant and equally abstract systems for organizing human lives: market-based consumer culture and democratic governance. (P. 260.)

If you do cultural criticism of any kind and you can’t make something of that and get going, then you should go back to a new choice for your life plan. (Note, however, that I maintain that you must be careful not to attribute anything to Professor Rosenfeld that is really only yours as a moral or political concern, not hers.)

Rosenfeld muses about her role as a historian, noting the view that “the work of the historian is primarily descriptive,” but engages in a bit of “tiptoeing toward the normative,” which she calls the “lifeblood of most other disciplines.” (P. 356.) While keeping true to her historian’s role, she provides some aid to “critics of choice feminism,” who are seemingly among those who view the “global proliferation” of choice as “usually an illusion and a dangerous one at that.” (P. 358.) Writing in the New York Review of Books, David Bell, who calls his fellow historian Rosenfeld brilliant, sees her putting a thumb on the scale against choice feminism. In that connection, especially given the failure of choice rhetoric to save Roe v. Wade, Bell suggests that Rosenfeld has turned philosopher in her suggestion that “choice itself needs …to be more explicitly linked to basic moral considerations.” In fact, he gives her credit for being willing to venture into polemic while also gaining credibility by being cautious and measured—and, as a result, “arguably more persuasive” than historian/philosopher Hannah Arendt.

It is little surprise than even a historian believes morality should matter to choosers. Practicality also has its place in the historian’s tool box. Rosenfeld provides a sympathetic note for the exhausted consumer confronted with the “contemporary obligation of continuous personal choice making in daily life—whether about sneakers or healthcare…” (P. 359.) Still, she warns against indulging too heavily in anti-choice thinking, given the “severe strain” that liberal democracy faces. (P. 357.)

On a personal note, this consumer is lost in the proliferation of choices for selecting and consuming what is known as content, but once was news and movies. The replacement of three networks with massive variety, the velocity and volume of which has been increased by Substack auteurs, has assigned us all the editorial and curatorial functions once nicely discharged by fewer and well-trained people.

As a historian who captures and organizes aspects of our history in connection with various of our abstractions in liberal democracy, above all Professor Rosenfeld invites us to think. We should and must, but let us be careful that our thoughts are claimed as ours, however inspired by her invitation. Professor Rosenfeld’s acute analysis and description of aspects of our history must remain exclusively hers, untainted by an attempt to recast them into a strong claim for today’s politics or for our preferred cultural critique.

Having done her work to make us understand that choice is not a permanent given in how people think about freedom, it only makes sense for Rosenfeld to raise issues and to point to other ways of imagining both our private lives and our shared collective lives. But one could easily overstate a grand thesis about the good or bad of choice as being her message. Her first work as a historian of abstraction and things overlooked is to make us understand that choice has a history. (P. 6.) Having done that and having highlighted where it does its work in our lives, her method of acute observation discloses paths to reflection of freedom as mainly about choice—be grateful we have it, but also step back to consider what we gain and what we might lose.

The great value of The Age of Choice is to prompt thinking; to prevent mistaken interpretations of the past that impose something that was not present in cultures that did not wed freedom to choice; and to suggest how the benefits of choice might be affected by other cultural progressions.

Falsifying the Unitary Executive: Popperian Empiricism and History’s Uses and Misuses

Oct 8, 2025 Andrea KatzAdd a Comment

Andrea Katz

It’s no secret that the President is having a great run in court. Over the last two decades, the Roberts Court has protected the office from legal process; built out presidential control over foreign affairs, national security, and the hiring, firing, and oversight of officers; and recently hinted it would go further by extending the president’s power to independent agencies. Behind these cases lurks the theory of the unitary executive, which reads the Constitution to give the President far-reaching powers over the executive branch, including the power to fire officers at will. First advanced in modern form by lawyers in the Reagan administration, the theory inspired a generation of originalist scholars who claimed it as an authentic account of the Framers’ thought. Since then, scholars have sharply pushed back, pointing out that the theory is anachronistic, an overreading of the text, and contradicted by early American history and practice. Despite the controversy, the Roberts Court, untroubled, continues to apply it.

Enter Christine Kexel Chabot’s forthcoming article Rejecting the Unitary Executive, which poses the provocative question: What if we required proof that the Founding generation actually believed in a unitary executive? Rejecting does just that, with illuminating results. Applying philosopher Karl Popper’s theory of empirical falsifiability to the realm of legal history, Professor Chabot subjects unitary theory to a rigorous test. In her words, the theory’s main claim is that

Article II’s grant of “the executive power” was originally understood to grant the President an implied and indefeasible power to remove all subordinate officers at will. This claim reflects a hypothesis about the following empirical, historical facts: the consensus in the Founding era was that Article II granted the President indefeasible power to remove all subordinate officers at pleasure (emphasis original).

This claim is falsifiable, and Professor Chabot borrows an example from Popper to show how.

Consider the theory that all swans are white. As Popper showed, it’s impossible to prove the white-swan hypothesis true based on simply observing white swans and nothing else. On the other hand, the discovery of one black swan would suffice to falsify it. By analogy, a constitutional rule that the President’s firing power is absolute cannot be proven true simply by identifying officers in early America whom the president could fire (white swans), but pointing out officers who could not be fired by the president (black swans) would cast the rule into doubt.

Let’s be a little more precise about what the originalist unitary claim is saying, from an empirical perspective. Despite our Constitution’s silence on removal, unitarians argue that to prove the rule, they don’t need to show that every early American understood the President’s powers this way, only that a critical “consensus” did. How high is the threshold to establish a consensus? Originalists have mostly evaded this question, but the very thoughtful Lawrence Solum suggests somewhere between 60 to 90% of the population. Using this definition, unitary originalism can be restated as the following claim: “At least sixty percent of early Americans believed that the President can fire all officers.”

It turns out that, whether we look for evidence that “all” Americans or “most” of them believed in a unitary president, its proponents have failed to take this burden of proof seriously. Instead, the preponderance of such scholarship points only to select examples of white swans: pre-1787 state constitutions that gave governors a removal power, early federal laws making the Cabinet fireable, and scattered statements of early congressmen supporting the unitary position. But each cache of evidence—state constitutions, federal laws, on-the-record statements of congressmen—contains examples pointing the other way. A sizeable number of early legislators believed the power to fire was one that Congress could vest in the President (or not, if it so decided). Laws from before and after the ratification of the Constitution insulated offices from at-will firing or made them removable by actors other than the president (say, deputy marshals, who were fireable by judges). Many laws were in fact enforced by private citizens! With law enforcement so dependent on decentralized, even private authority, the notion of the Founders’ executive branch as a modern, top-down bureaucracy is pure myth.

Far from seeking out such disconfirming evidence, unitary originalists have ignored “black swans” tending to hurt the notion of an early presidentialist consensus, or tried unconvincingly to explain them away. Empirical scholars Lee Epstein and Gary King have written that it would be “ludicrous” for a researcher to consult “congressional debates over the Civil War Amendments” and analyze “only comments and drafts indicating that [they were] right.” Professor Chabot agrees. “Unitary scholars,” she writes, can support their theory “only by limiting their analysis to select historical evidence that is consistent with their views and ignoring the plain historical import of counterevidence. That is no way to prove consensus or historical truth.”

Professor Chabot is a tough but fair-minded critic. Original public meaning, she emphasizes, can be properly applied to answer some historical questions. For instance, while the text of Article II is consistent with a rule that officers may only be removed by impeachment, early laws recognizing the president’s power to fire disprove that theory as a matter of original public meaning. As for the unitary executive, the theory rests on thin-to-nonexistent evidence of historical consensus, and its uncompromising nature is belied by contrary examples. To their credit, when presented with discomfirming evidence, some unitary originalist scholars have walked back more extreme versions of the theory. Troublingly, the Supreme Court has not taken notice. Professor Chabot concludes that the Court has a choice: reject the unitary executive, or reject originalism itself.

During the second Trump term, the unitary president has become what the Framers most feared, a “formula for maximum disruption,” prone to “imposing decisions at will, marginalizing dissent, and to radicalizing opposition.” Meanwhile, the Supreme Court is advancing a winner-takes-all reading of our Constitution in which the President retains all of the tools to control officers of our government and Congress, increasingly, none. As a matter of scholarly truth, whether the unitary executive is dangerous is beside the point: it is, Professor Chabot emphatically writes, a “historical fiction.” Back in the Middle Ages, that all swans were white was considered a statement of scientific truth, until Dutch explorer William de Vlamingh discovered a black swan in present-day Australia in 1697. Perhaps one day, we, too, will allow ourselves to be persuaded by the facts.

Are You the Sum of Your Data? Appropriation of Digital Persona as Appropriation of Likeness

Sep 8, 2025 Lyrissa B. LidskyAdd a Comment

Lyrissa B. Lidsky

In the face of mass digital data harvesting and manipulation, the need for effective data privacy protection is imperative. In Data as Likeness, Professor Zahra Takhshid offers new legal tools to address this need by urging us to reconceptualize one of the common law privacy torts, namely, the tort of appropriation of name or likeness. Her contribution, however, is not limited to reconceptualizing the appropriation tort. She also offers valuable insights into how to secure Article III standing for data privacy harms.

Takhshid’s reconceptualization is built on the insight that “[o]ur digital persona or likeness is our personal data.” Thus, appropriation of our data is an appropriation of our likeness, worthy of compensation through tort law. Takhshid’s reconceptualization turns the appropriation tort into a means to hold Big Tech and others accountable for their ubiquitous collection and transmission of personally identifiable data, which, according to Takhshid, constitute wrongful exploitation of the individual. This approach would also treat deepfake creation, geolocation data collection, and the deployment of facial-recognition technology as exploitations of digital persona.

Takhshid’s approach is built on a nuanced understanding of the development of the privacy torts and identifies their shortcomings in remedying some types of privacy harms stemming from data collection. The tort of appropriation of likeness evolved along two paths—one focused on remedying dignitary harms stemming from unauthorized exploitation of one’s likeness, and one focused on protecting proprietary interests in one’s name or likeness. Takhshid shows that both paths converge upon the protection of identity, and she extrapolates from legal cases involving “look-alikes” and “sound-alikes” the concept of protecting an individual’s “persona.” One’s persona, she argues, includes one’s digital persona, and the unauthorized collection of personal data is therefore a tortious wrong.

According to Takhshid, this adaptation is a necessary step in the appropriation tort’s evolution: “For the appropriation tort to be responsive to the modern technologies and their potential tortious dignitary violations, the privacy law of torts should extend its protection to our personal data, our digital persona.” Takhshid argues that this extension of the tort is justified on both theoretical and practical grounds. Takhshid correctly recognizes that one of the hallmarks of the privacy torts is their adaptability to new harms resulting from new technology. Here, she identifies the harm of having a marketer or a generative AI developer use one’s personal data as dignitary.

The claim that data privacy harms of the sort she describes are dignitary harms is non-obvious. It seems quite clear that the appropriation tort may be used without any significant modification to deter the monetization of a celebrity’s using AI tools, and the same should be true of uses of the personas of private individuals. Yet those harms seem different in kind from some of the other types of data exploitation harms Takhshid describes, such as the unauthorized use of aggregate personal data to train AI, or the collection of composite physiological data from virtual reality headsets. These appropriations may be exploitative in the aggregate, but they do not compromise the individual victims’ abilities to control their images or identities to the same degree as the creation of a digital “look-alike” or “sound-alike.”

Takhshid contends, however, that the individual’s loss of control over personal data through unauthorized use is a cognizable harm worthy of compensation. This wrong, she argues, deserves a remedy. As she explains, “the threshold for what counts as our digital identity and personal likeness is ‘Personally Identifiable Information,’” defined as “any data that is identified or identifiable to a specific living individual.” She further argues that data collection may be unauthorized despite the individual’s assent to a vague privacy policy.

Takhshid’s redesign of the appropriation tort aims not merely to address new types of data privacy wrongs, but also to enable plaintiffs to overcome constitutional barriers to suit rooted in Article III’s standing requirement. Indeed, this may be the most important contribution of the article. Takhshid employs tort theory to confer standing on plaintiffs seeking to recover in federal courts.

In order to have Article III standing, a “plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is . . . concrete and particularized, and . . . ‘actual or imminent, not “conjectural” or “hypothetical.”’” In addition, the injury must be fairly traceable to the defendant’s conduct, and it must be likely that the injury will be redressed by a favorable court ruling. Claims based on data privacy harms have sometimes failed for lack of standing, based on the notion that the harms are merely intangible, future harms.

Takhshid centers her analysis on the Supreme Court’s decision in TransUnion LLC v. Ramirez, which involved a class action suit brought pursuant to the Fair Credit Reporting Act. In that case, the credit reporting agency TransUnion erroneously compiled data about individuals linking them to a government terrorist alert; however, TransUnion sent the erroneous information to creditors in only a fraction of the cases. The Court held that the class members whose claims were based solely on erroneous compilation of their data lacked standing. As Justice Kavanaugh wrote: “Central to assessing concreteness is whether the asserted harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm.”

As Takhshid recognizes, the Transunion holding has implications for plaintiffs suing for statutory privacy violations, making it harder to hold the exploiters of data accountable. Thus, her article is preoccupied with identifying data exploitation as a concrete harm sufficient to establish standing. As she writes, “recognizing data protection through the lens of tort law can help many plaintiffs overcome this hurdle of proving standing for many personal data-related privacy violations.”

To demonstrate the feasibility of her approach, she refutes First Amendment objections by showing how the Supreme Court and lower courts have managed to preserve a sphere of action for the appropriation tort. They have done so in part by carving out exceptions to liability for uses of individual images or likenesses deployed in reporting on newsworthy topics. Although the nuances of this topic could arguably occupy an article unto itself, she provides a sensible argument for how states can regulate data exploitation while preserving a sphere for uses of public information and protection of public discourse.

Data as Likeness is a timely and thought-provoking contribution to an area of law that will only grow more important as technology becomes even more embedded in our lives. Takhshid’s article makes a cogent argument for treating personally identifiable information as a form of persona whose appropriation can constitute a cognizable harm. Like all good articles, it raises yet more questions, and I hope she will address them in future work. Most pressing, from my perspective, is whether mere data collection – as opposed to collection and transmission – should be treated as an appropriation of one’s online persona. Although defendants’ conduct may be wrongful and should be deterred, my experience with the weaponization of defamation law makes me leery of compensating plaintiffs without proof of harm. The proof need not be stringent, but proof requirements help ground even dignitary harm torts such as appropriation in real wrongs.

Originalism and the Insular Cases

Jul 25, 2025 Ilya SominAdd a Comment

Ilya Somin

In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America’s “unincorporated” overseas territories, such as Puerto Rico and other territories acquired as a result of the Spanish-American War of 1898. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights. Only “fundamental” rights were held to constrain the federal government’s powers over the inhabitants of these territories, while other constitutional constraints on federal power did not apply. In a 2022 concurring opinion, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions. Prominent originalist legal scholar Michael Ramsey’s important new article explains why Gorsuch was right.

Ramsey compellingly demonstrates that the Insular Cases were wrongly decided, at least from an originalist standpoint. And his argument has potential implications that go beyond the status of people living in “unincorporated” territories. There have been various previous critiques of the Insular Cases. But Ramsey’s is the first systematic scholarly dismantling undertaken from an originalist perspective.

The unincorporated territories currently include American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, plus some minor islands with little or no human population.

In a detailed examination of the text and original meaning of the Constitution’s Territories Clause and other relevant provisions, Ramsey shows that “under the Territory Clause, Congress’s power over U.S. territory [outside the states] is very broad, essentially amounting to a general police power.” But he argues persuasively that “the grant to Congress of general police power in territories does not suggest that Congress is thereby freed of other specific limitations on Congress’s power arising from the Constitution’s structural and individual rights provisions.” The only exceptions are provisions that explicitly apply only to the states, such as the Guarantee Clause of Article IV, which guarantees to the states a “republican” government.

Ramsey also demonstrates that this conclusion is consistent with federal policy and Supreme Court precedent of the pre-Civil War era. The tradition was continued in the initial aftermath of the Reconstruction Amendments. For example, it was generally understood that children born in federal territories were entitled to birthright citizenship.

That longstanding body of precedent was undercut by the Insular Cases as a result of the racism and imperialism of the late nineteenth and early twentieth centuries–the same period, following the same intellectual trends, that also produced Plessy v. Ferguson.

As Ramsey explains, overruling the Insular Cases would have only modest immediate practical implications today. It would require little or no change to the structure of territorial government. It also would not preclude the United States from granting these territories independence, if, for example Puerto Rico were to vote for it in a referendum.

Some additional constitutional individual rights would be extended to the inhabitants of the territories. For example, they would gain the constitutional right of birthright citizenship under the Fourteenth Amendment. But many constitutional rights, including that one, have already been extended to them by statute (American Samoa is an exception on the birthright citizenship front). Ramsey notes that territorial inhabitants now do not always enjoy the right to civil juries under the Seventh Amendment. Overruling the Insular Cases would remedy that.

On the structural front, Congress could no longer impose additional tariffs on goods imported into the territories and then reexported to the “incorporated” United States. This would have only a minor economic impact, but a beneficial one.

Perhaps most important, a future Congress could no longer strip residents of these territories of some of their constitutional rights. Even if such a possibility seems remote now, it could become a more realistic prospect in the future.

Ramsey’s argument does, however, have potentially important broader implications. The Insular Cases are not the only important nonoriginalist, atextual abrogations of constitutional rights blessed by the Supreme Court as a result of late-19th century racial bigotry. The same is true of the “plenary power” doctrine, which exempts immigration restrictions from many of the constitutional constraints that apply to all other exercises of federal power. While later decisions have called elements of this doctrine into question, enough remains that it is not completely clear whether, for example, the government can deport immigrants for speech protected by the First Amendment. (I argue the answer should be an emphatic “no”, and recent lower court decisions have reached similar conclusions in cases addressing the Trump Administration’s speech-based deportations of non-citizen students). In Trump v. Hawaii, the Supreme Court ruled that a facially neutral restriction on immigration could be upheld despite overwhelming evidence of unconstitutional discriminatory motive that would have led to the invalidation of a similar policy in almost any other context. That doctrine should be reconsidered. One can go further and note that federal power over immigration was the product of the similarly atextual and nonoriginalist Chinese Exclusion Case of 1889, which was also at in large part a product of racial bigotry.

Even if completely invalidating federal immigration restrictions entirely would be too great a break with precedent, federal courts would at least do well to rule that such restrictions are subject to the same individual rights and structural constraints as all other legislative powers. For example, they should be subject to the nondelegation doctrine; if so, Congress cannot grant the president the power to enact sweeping travel bans at his sole discretion, with little or no limitation.

In sum, Ramsey’s originalist critique of the Insular Cases, is compelling. The Supreme Court would do well to follow it. It also has significant potential implications for other areas of constitutional law.

Free To Be You But Not Me?

Jun 27, 2025 Leah LitmanAdd a Comment

Leah Litman

In Gendered Liberty, Prof. Laura Portuondo presents a doctrinal puzzle: While claims to individual liberty are in decline in some spaces, they are ascendant in others. As Portuondo describes things, constitutional law has become increasingly hostile to claims by people who seek to defy gendered stereotypes. That includes the women who, for whatever reason, do not want to become mothers when they are pregnant, as well as the women whose lives, health, or fertility would be in jeopardy if they became mothers. The Supreme Court overruled their claims to liberty in Dobbs v. Jackson Women’s Health Organization.

At the same time, however, the Court has embraced the liberty claims of people who seek to enforce gendered stereotypes (and thereby diminish the liberty of those who seek to defy them). Portuondo points to the Court’s decisions in Fulton v. City of Philadelphia and 303 Creative v. Elenis as examples of this phenomenon. Both cases allowed entities that objected to marriage equality to project their opposition to marriage equality onto the queer people who were defying gender stereotypes by marrying a person of the same sex. Portuondo also notes the rising tide of conscientious objector liberty claims to legal protections for the transgender community. In doing so, Portuondo persuasively debunks the Court’s insinuations (which were most apparent in 303 Creative) that regulation of conduct has “nothing to do with gender at all.”

Portuondo argues that a “gendered vision of liberty” explains the Court’s decisions. To make this claim, she first explores and rejects “reasons beyond the[] [Court’s] decisions” that could “justify th[e] result[s]” of the cases. As Portuondo explains, many of the alternative explanations or justifications boil down to a claim that liberty does not include protections for gendered conduct, a proposition she rejects.

Part of what is powerful about Portuondo’s article is how it illuminates a pattern of courts and commentators laundering the gendered vision and theory of liberty through constitutional theory and interpretive methods. The theories and methods, she explains, purport to be neutral and even-handed; they bury or omit references to gender, gender stereotypes, and sexual minorities. And they obscure the gendered nature of the developing law.

While I hesitate to ever suggest that a law review article should be longer, Portuondo’s synthesis of the Court’s development of gendered liberty raises the question of why. The why question is really a series of additional questions about the religious liberty matters that the article uses mostly as a comparison point for women’s liberty claims. In particular, one wonders, to what extent are the contours of the constitutional protections for liberty tracking certain religious beliefs? Is that coincidental, in which case this might be another aspect of traditionalism, or is it something different? Does it reflect a sense that the constitution, in the hands of the current Court, has religious assumptions baked into it, or that it privileges religious assumptions over others?  Another aspect of this question is something I have explored in some previous and some forthcoming work, which is to what extent are the contours of the constitutional protections for liberty driven by a sense of which individuals—women raising liberty claims to secure their reproductive autonomy versus individuals who share certain religious beliefs—warrant judicial protection today? Perhaps in future work, Portuondo will explore more of why the Court has developed such a two-tiered, gendered approach to liberty.

Portuondo’s synthesis of courts’ gendered accounts of liberty builds on the work of such influential scholars as Reva Siegel, whose work on originalism demonstrated how the political practice of originalism sought to reinforce traditional gender norms about women’s proper role in society. Portuondo’s article is also, as the piece explains, in conversation with the work of Melissa Murray, who has drawn connections between the Court’s jurisprudence on guns, religious liberty, and abortion to argue that the Court is uniquely concerned with the liberty claims of men, and that judgments about gender are influencing the content of the law. Portuondo’s work adds to their scholarship in illuminating what the law is doing, an impressive feat for someone so early in their academic career.

Editor’s note: For an earlier review of Gendered Liberty see Albertina Antognini, Whose Liberty?, JOTWELL (May 8, 2025).

Originalism, Eh?

Jun 4, 2025 Leonid SirotaAdd a Comment

Leonid Sirota

If, as Adam Dodek once put it, originalism was long a “dirty word” in Canadian constitutional law, one reason for that was its perceived foreignness. Another was politics. As Colin Feasby has observed, for the judges and academics of the formative period after the enactment of the Canadian Charter of Rights and Freedoms in 1982, originalism was “a tool of conservative United States legal thinkers.” Preston Jordan Lim shows that they were quite wrong—and ignorant of their own history. Long before it was a gleam in Paul Brest’s eye, originalism was the method by which Great Depression-era Canadian scholars hoped to take their constitution back from the courts—or, more precisely, from the Judicial Committee of the Privy Council (effectively the British Empire’s supreme court, staffed mostly by the United Kingdom’s most senior judges), then the court of last resort for Canada.

Lim shows that “originalism constituted the primary theory of constitutional interpretation through which legal reformers” argued about the interpretation of what today is known as the Constitution Act, 1867—the text that contains most of the Canadian constitution’s key structural provisions. Admittedly, they did not have an especially clear theory of originalism. But it was their practice just the same. And one hardly needs to have parsed the interpretation-construction distinction or pondered whether there is something that interpretation just is to be an originalist—as the development of originalism in American law itself shows.

That originalism became the defining interpretive approach for scholars of the 1930s is, Lim suggests, no accident: “more so than any other major event since Confederation, the Great Depression exposed the frailties of the Canadian political order and caused Canada’s leading legal thinkers to scrutinize the Constitution.” The scrutiny took an especially critical turn when the Privy Council struck down key elements of the “Bennett New Deal,” named after the Prime Minister who instigated its enactment. As in the U.S. and the U.K., erstwhile constitutional certainties seemed just as inadequate to the times as the economic ones.

But, even when they were dissatisfied with the constitutional framework as interpreted by the Privy Council, scholars and authors of the reports of official inquiries tended to regard it as “a sound plan for government,” and demanded not a departure but, as they saw things, a return to it. They argued that judges had gone astray by ignoring evidence of the Canadian constitutional framers’ plans. Far from denigrating the framers of the Constitution Act, 1867, as would become routine in later decades, they sometimes came close, Lim writes, to “ancestor worship.” The framers, they argued, had created a constitutional framework that could have gone a long way towards addressing the issues of the 1930s—if it had just been allowed to operate without judicial meddling, or could be allowed to do so once more with the aid of constitutional amendment.

This, at least, is the broad-strokes picture. The main virtue of Lim’s article is that it adds a great deal of detail to it, drawing on modern originalist theory to analyze and categorize the variety of originalist-sounding arguments made by Depression-era writers, including those who were not necessarily thoroughgoing originalists themselves. Many focused on what they perceived as the intention of the framers—especially Sir John A. Macdonald, who would go on to become Canada’s first prime minister—to create a centralized government in which federal institutions would be able to resolve important economic issues. Others offered a competing account of the framers’ intentions, claiming that these included the preservation of provincial autonomy.

But a minority view foreshadowed “New Originalist” critiques of original-intentions originalism. Advocates of this view argued that one man’s aspirations were not indicative of the framers’ joint intent; that the focus ought to be on the interpretation of the constitutional text, not its authors’ statements. Whether or not they personally accepted this critique, others responded to it, engaging in debates about “the original public meaning of specific phrases” in the constitutional provisions setting out the respective areas of federal and provincial jurisdiction. One of these debates, which Lim recounts in detail, concerned the meaning of the provincial jurisdiction over “property and civil rights,” whose broad interpretation by the courts was at the heart of their rejection of the “Bennett New Deal.”

And to the extent that they saw improvements to be made to the Canadian constitutional arrangements, Depression-era scholars were optimistic about their prospects. Some, Lim explains, adopted a “framework originalist” posture, arguing that the Constitution Act, 1867 was sufficiently flexible to allow for governance responsive to the needs and wishes of succeeding generations. Many, though, acknowledged the need for constitutional amendment to meet the needs of the moment. (In the event, the only constitutional amendment made in response to the Depression was the enactment of section 91(2A), which granted the federal Parliament jurisdiction over “unemployment insurance.”) As Lim points out, this is all the more remarkable since the Constitution Act, 1867 was silent as to the procedure by which it was to be amended.

What most Depression-era writers on the Canadian constitution did not see as a solution is living constitutionalism. Indeed, Lim observes that “an entire chorus of voices saw sharp limits to” both its legal acceptability and to its ability to serve as an “answer to the economic and social woes of the decade.” Only much later would Canadian living constitutionalists embrace as their slogan a metaphor drawn from a Depression-era Privy Council decision, Edwards v Canada (Attorney-General), which they read as having described the Constitution Act, 1867 as “a living tree capable of growth and expansion within its natural limits.” Others have argued that Edwards gave no warrant for living constitutionalism, and I have suggested that its reference to the “living tree” concerned constitutional practice, not constitutional text, though not all Canadian scholars are persuaded. Be that as it may, Lim shows that whatever Edwards’ afterlife has been, the intellectual agenda at the time was ruled by different varieties of originalism—and, even more broadly, the widely shared sense, even among those who were not themselves originalists, that the meaning of a constitutional text is fixed and binding on the courts.

And yet, as Lim notes, “there is no doubt that originalism became less popular in the decades that followed the Depression.” If anything, this is a significant understatement. Even when Canadian courts engage in originalism, as they do from time to time, they would not be caught admitting to it. Lim hypothesizes, briefly, that the reason for this change “is the increased diversity of modern Canada,” as well as a longer historical distance from the founding, resulting in a loss of “affinity for the Fathers of Confederation and the Westminster Parliament.”

This does not seem to me altogether plausible. The rhetorical embrace of living constitutionalism in the 1980s immediately extended to the newly-enacted Canadian Charter of Rights and Freedoms, just drafted in Canada and by Canadians alone. No change in diversity, or desire to distance constitutional law from its British roots, could explain that. Besides, Canada had arguably changed less between the Depression and 1982 than it had between 1867 and 1930, when it had grown from four provinces to nine and welcomed its first large waves of immigrants from outside France and the British Isles.

Other factors were probably at play. Perhaps most significant was a desire not to replicate the experience of the cramped interpretation of the statutory Canadian Bill of Rights, though this arguably was no model of proper originalism at all. Perhaps, as Feasby suggests, Canadian lawyers and judges were by then looking to distance themselves from an interpretive approach that had come to be identified with the American legal conservative movement.

Most cynically, one might point out that, in the 1930s, living constitutionalism would mostly have empowered the British judges of the Privy Council. However, appeals to that court from Canada were completely abolished by 1949. Thus, by the 1980s, living constitutionalism was going to empower Canadian jurists—and, by extension, Canadian lawyers and scholars, who would find it much easier to influence them than to persuade London-based judges.

Whether Lim’s conjecture or my own surmises are right, the Canadian embrace of living constitutionalism was closely connected to the development of Canada’s independence and its own legal culture and tradition. It is hardly necessary to point out that this independence is now under rhetorical, and perhaps actual, threat from those who see ten vast provinces and three territories as one mere 51^st state in waiting. In the circumstances, it will probably be tempting for Canadians to double down on what they think makes their legal culture distinctive, while rejecting what many will perceive, however unfairly, as a legal philosophy associated with that threat.

In addition to its very considerable scholarly merits, it is these circumstances that make Lim’s article especially timely and important. It reminds us that, contrary to what one may be tempted to think, originalism is not a uniquely American phenomenon, let alone a theory reverse-engineered to justify policy outcomes congenial to the American right. As Lim observes, “originalism is deeply-rooted in Canadian legal history,” and its rise in the 1930s went hand-in-hand with “a rise in Canadian nationalism,” as well as, in many cases, with progressive politics. Whether originalism is (still, or again) right for Canada is a question that Canadians must answer on the merits, and not by reference to the views and policies of their former friends.

State Constitutions As A Bulwark Against Oligarchy

Apr 30, 2025 Rebecca ZietlowAdd a Comment

Rebecca Zietlow

What is the proper role for courts to play in ensuring the health of our democracy? In the early 21^st century, the principal threat to democracy is state capture by monied interests and what appears to be a rising oligarchic state. At a time when the president of the United States uses the South Lawn of the White House to record an ad for a car company owned by a billionaire who has donated hundreds of millions of dollars to his campaign, concern about state capture by special interests is one of this country’s most urgent problems. The federal courts have been called upon to police illegal and unconstitutional activity, placing a strain on our judicial system that threatens our democracy. However, they have proven unwilling to address the murkier problem of state capture by powerful and wealthy individuals who use the government to promote their own interests.

In his forthcoming article, Contesting State Capture, Lucien Ferguson shifts our focus from federal to state courts. Ferguson argues that state courts have a special role to play in preventing state capture, in part because state constitutions contain special provisions aimed at preventing this peril. According to Ferguson, some of the most urgent examples of capture include partisan gerrymandering and voter ID laws, which are all designed to aid one political party (the Republican Party), as well as Right to Work Acts that undermine the political power of unions. Ferguson maintains that these laws are “special acts” that violate state constitutions and common law doctrines. One can also think of examples that cut towards the Democratic Party, such as legislation that favors union organizing and plaintiff’s attorneys, significant sources of funding for Democratic candidates. Ferguson calls on state courts to enforce state constitutional provisions to constrain state capture from any source.

During the twentieth century, federal courts were viewed as threats to democracy because of their activist approach to economic legislation during the Lochner Era. At the same time, our country faced a different threat to democracy—the exclusion of African Americans from the political process, which resulted in legislatures enacting racially discriminatory laws. Eventually, the Warren Court adopted heightened scrutiny for racially discriminatory laws and other laws that reflected a failure of the political process. The Warren Court’s scrutiny of race-based government action sought to dismantle capture based on racial hierarchy. However, the Court adopted an attitude of extreme deference towards economic legislation, applying rational basis review to uphold state action which is rationally related to any conceivable government purpose. In cases such as Williamson v. Lee Optical and Ferguson v. Skrupa, the Court acknowledged that capture is a normal attribute of the democratic process. As a result, federal court enforcement of the Equal Protection Clause fails as a tool to contest state capture by private interests for their own private gain. Moreover, in cases such as Citizens United, the Court has erected barriers to campaign finance legislation that might reduce one cause of state capture: excessive spending on politics by private individuals and corporations.

Ferguson points to state constitutional provisions that were adopted during the late nineteenth century—when, as now, concentrations of wealth and powerful monied interests threatened democratic institutions. As Ferguson explains, many states responded by amending their constitutions “for the express purpose of empowering state courts to prevent state capture.” State constitutions include substantive provisions, such as requirements that legislation be general in nature, and serve a public purpose (as opposed to a private purpose). These provisions were intended to prevent special legislation, which they viewed as “a perennial fountain of corruption.” State courts also established the common law public purpose doctrine. Finally, states constitutionalized procedural restraints on legislative processes. According to Ferguson, reformers intended state courts to play an active role in policing the legislative process to prevent capture.

Notwithstanding these state measures, Ferguson argues that capture of state governments has been increasing throughout the country. He calls on state courts to remedy this by enforcing their state constitutions. For example, the Arizona Supreme Court employed the state constitution’s “Gift Clause” to strike down an agreement by the city of Phoenix to pay a private corporation to develop real estate within the city. The Supreme Court of Pennsylvania has enforced the state constitution’s germaneness requirement to prevent private capture of government resources. Other state Supreme Courts, such as Maryland’s, employ heightened scrutiny to evaluate the constitutionality of state subsidies for private development.

Ferguson acknowledges some drawbacks to his approach. Transferring power from representative institutions to judiciaries raises the same concerns about juristocracy that motivated the backlash to Lochner. However, as he points out, legislative bodies are simply not using their power to prevent the evils of state capture. The bigger concern is that unlike federal judges, most state judges are elected—and their elections have become the target of massive interest-based spending equivalent to many legislative races. Given this fact, perhaps Ferguson is unduly optimistic about the willingness and ability of state courts to bear the weight of protecting democracy in these uncertain times. Nonetheless, these times demand precisely the type of thoughtful and innovative approach that Ferguson addresses to solving this urgently pressing problem.

Constitutional scholars spend far too much time focusing on federal courts, and the federal government in general. In this article Ferguson provides a refreshing new perspective, inviting us all to rethink our perspective on both federalism and separation of powers.

“I Love Beating George Washington”

Apr 2, 2025 Paul HorwitzAdd a Comment

Paul Horwitz

Every era gets the constitutional scholarship it needs—after the fact. The Burger Court era saw elaborate efforts to justify the Warren Court. The rise of history and tradition on the Supreme Court has been met by new defenses and criticisms of…standard originalism. The tyro leadership of leading law reviews committed themselves to running constant “Abolish Everything” articles just as abolitionism transitioned from interesting-but-highly-unlikely to politically disastrous fantasy. The bell tolls the end of the fight just as the scholars climb into the ring.

Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing.

Trump’s first term saw the rise of a valuable literature on various direct and indirect aspects of character- and conduct-based examinations of legal actors, focusing on such concepts as political and constitutional “norms” or “role morality.” It also provided a boost to scholarship, predating Trump, that focused on the ways in which fiduciary principles such as the duty of good faith apply in public as well as private law. Leib, writing for himself and with co-authors, has been a leading voice among those arguing for “fiduciary constitutionalism.”

The main job of his latest contribution, evidently a chapter for an edited collection, is to summarize the ways in which good faith is “central to constitutional law, even as the apex Court seems only ambivalently committed to its ability to be useful in deciding cases.” As Leib notes, its centrality begins with the text itself. Just as marriage begins with public vows, so both Article VI and Article II of the Constitution mark the entry from private status to public office with a promise before witnesses: a binding oath to “support this Constitution.” The president is further bound to “faithfully execute” the office of president and the laws of the United States. Other portions of the text, such as the Emoluments Clause, forbid the kind of self-dealing that is an affront to fiduciary duty.

Here and elsewhere, the Constitution relies on the oath-taker’s understanding that any power he exercises stems from the proper execution of the office, not the unfettered will of the individual who occupies it. (“What are the highest places,” as a judge once put it, “but obligations of the greatest dewties?”) At the same time, by swearing, the oath-taker openly acknowledges that his private character and reputation have been fully yoked to his performance of his public duties. Or, as Robert Bolt’s Thomas More puts it, “When a man takes an oath, he’s holding his own self in his own hands like water; and if he opens his fingers then, he needn’t hope to find himself again.” Knowing that men are no angels, the Constitution’s crafters nonetheless envisioned officers who treated one’s conduct in office as a commitment of one’s honor—indeed, of one’s soul.

The commitment to good faith in the performance of one’s duties runs deeply through the Constitution, but not smoothly. The difficulty of discerning bad faith, and the judicial custom of assuming officials’ good faith, means courts are often reluctant to make law turn on tests of good faith and proper motive. Courts often frame defenses and safe harbors for official conduct in terms of their good faith. Conversely, they look for indications of evidence of improper or impermissible motivation when evaluating officials’ actions. In judicial review under both constitutional and administrative law, “smoking out bullshit” is a key function for the reviewer. (“Bullshit,” in the Frankfurtian sense of speaking without regard for the truth. Firing employees with sterling records for “poor performance,” with political appointees telling HR managers to revise past reviews and to cite poor performance regardless of the truth? That would be bullshit. It is also a lie, of course. But central to its bullshitiness is its choice of a barely plausible pretext with a casual indifference to its accuracy. Bullshitting is the dominant mode of discourse of the current Trump regime.)

Against this, Leib acknowledges that such decisions as Trump v. United States and Trump v. Hawaii indicate “irregular support for motivational inquiries on the current court.” That conclusion is further reinforced by the Supreme Court’s move toward history and tradition as the lodestar of rights analysis, in a way that replaces tiers-of-scrutiny inquiry into improper motivations with an effort to identify proper or improper laws by dint of provenance. But at base, Leib argues, concerns with good faith continue to rest “at the very foundation of U.S. constitutional law.” Assumptions about officials’ duties—to avoid self-dealing, to work for the good of others and not themselves, to wield power with care, and so on—remain essential to constitutional and administrative law work, he suggests, even if courts often maintain these values through second-order rules rather than direct investigation.

For Leib, the fact that courts are reluctant to inquire into officials’ good faith is understandable, given concerns about institutional competence; it’s simply another example of the ways in which courts’ “decision rules” often apply more clearly but also more narrowly than the underlying “conduct rules.” And the fact that there can be indeterminacy or under-determinacy in applying the requirement of good faith to constitutional officers, while “frustrating,” can also be seen as consistent with the important role of context in such inquiries. It reflects a desire not to “interrupt fiduciary morality that works better with a little room to grow without getting crowded out by micromanagement.” Leib concludes that good faith remains a central conduct rule for officials—one of “the very foundations of constitutional government in the United States”—even if the judicial treatment of that rule involves “careful calibration.”

This article is, to be clear, summary in nature. It is a starting point for those who may not have thought much about this conception of constitutionalism and the obligations of officials, but who are newly sensitized to the need to do so and would like to learn more in something less than 80 or 90 pages. It is concise and well-sourced, nicely tying together the argument for fiduciary constitutionalism’s relevance inside and outside of the judicial context. Its value lies in these things, not in real or self-alleged “novelty,” a quality prized by student editors because of their inability to select for depth or expertise, and which in turn has become internalized by law professors, acting not as scholars but as market participants.

Its value also, perhaps even primarily, lies in one more thing: its timing. That timing both supports its arguments and raises questions about them, or about their efficacy. Leib’s summation of fiduciary constitutionalism, as well as the work that he and others are continuing to advance, could not be more relevant right now. The current regime has pushed a more thorough-going unitary, centralized approach to the presidency than anyone in modern history, and joined those actions with a reckless rate of change and a slippery view of law and legal duty.

Under those circumstances, even a neutral or supportive observer of this president should be interested in the public duties, virtues, and commitments that are, as a matter of constitutional obligation, supposed to channel and restrain his actions. That person should be equally interested in how the oath, and other fiduciary aspects of office, are supposed to direct subordinates—from Elon Musk and Russell Vought all the way down to a lowly peon, like a Cabinet secretary—in the performance of their duties. One needn’t like or dislike the man or his policies to acknowledge that Trump’s approach to presidential administration demand attention to these questions, and to how they ultimately cash out in the courts.

Of course, one might be less supportive, one’s sense of reality not so purblind. One might see the administration for what it is. “What it is” isn’t incipient fascism, most likely. (Although this administration has shown an unmistakable eagerness to hire, hang out with, and champion fascists, along with Jew-haters, rapists, Blut-und-Boden freaks, and other thugs—and that’s just counting the Trumpian intelligentsia.) But this is certainly a personalist, patrimonialist, authoritarian administration, staffed mostly by the craven and the roguish—and all of it in the service, not of party or ideology, but of the whims, fads, resentments, corruption, and appetites of a walking id. The title of this jot is a quote from Trump himself, as he was delighting, Commodus-like, in Bill O’Reilly’s flattering lie that Trump is the greatest president in American history. In reality, Trump and his administration resemble Washington’s less than they do a semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste. (Historically speaking, the Mob was also much tougher on Russia.)

Leib’s introduction to fiduciary constitutionalism is especially valuable against this real-world backdrop. If nothing else, it provides the measure against which the current regime’s dizzying plunge away from honor and the rule of law can be evaluated. But Leib’s treatment does two things more. On the “conduct rules” side, it encourages us to think about the degree to which constitutionalism generally, and our Constitution specifically, not only assume but demand basic qualities of character and virtue. For all the usual talk of structures, incentives, guardrails, and the like, without those personal qualities all else is mere parchment barrier. The Constitution does not prevent officials from departing from the ordinary politics, policies, and practices we are accustomed to. But it does require something more than ordinary men and women—not only at the top, but also within positions of responsibility throughout the executive branch.

On the “decision rules” side, reading Leib’s piece in the current moment encourages us to think more about the courts’ increasing reluctance to think in terms of character, duty, or motive itself. The reasons for this reluctance are varied, and Leib does a good job of spelling them out in this context. But one wonders whether the courts’ “irregular support for motivational inquiries,” which Leib describes as stemming from nervousness about courts’ competence to judge such matters, does not also reflect those judges’ confident assumptions that the executive branch’s officials possess basic qualities of character and virtue.

Those assumptions rely in substantial part on the ordinary processes and customs that are in place and have been followed by both Republican and Democratic administrations. If those assumptions become plainly unwarranted, perhaps the courts need to adjust their approach to compensate. When the Court in Trump v. Hawaii refused to follow the tweets, it did so in the belief that rounds of litigation had forced the administration into something like a more normal process of interagency consultation, with concomitant amendments to the travel ban. There was some reason in this. What, then, should the justices do when it is clear that this round of the administration just is its tweets—that to strip it of its vulgarity and “hyperbole” is to miss the point entirely—and that the grown-ups who might conduct ordinary business with more than one eye on the law have been banished? The Supreme Court’s approach through the first Trump term was to nudge the administration back within the guardrails of ordinary process, while premising its grants of power on assumptions about the ordinary good faith of those who fill any given executive branch. The Justices are not morons. They know that those assumptions no longer hold. One would not be surprised to see the Court, at the point at which the “acoustic separation” becomes too vast, turn back to a more frequent and explicit use of motive inquiry. It certainly ought to.

We might finally ask whether these questions come too late. If it is, it will not be because of the extraordinary nature of this regime and its Dear Leader alone. It will also have much to do with the degree to which our very culture, both elite and popular, has simply dispensed with the very idea of character and virtue as central and necessary elements of individual and official conduct. The blame could be heaped on social media—and, indeed, one of the most striking aspects of the Trump regime is not that it lives on social media, but that it seeks to make the lies and vulgarity of social media normative offline as well as online: it sees politics as the continuation of Twitter by other means. The problem might be traced further back, to a hollowness at the heart of individualistic, thin versions of liberalism or neo-liberalism. And it might have to do with the extent to which those who reject liberalism, for the purported reason that it does not sufficiently foreground basic requirements of virtue, have instead filled the post-liberal space with paganism, hedonism, grifting, and der Wille zur Macht. Whatever the case, it may simply be that good-faith constitutionalism requires a vocabulary that we as a culture no longer possess. As I said: exquisite lousy timing.

This article certainly cannot answer those questions. But Leib’s chapter provides us with an excellent recapitulation of the basics of fiduciary constitutionalism—its basic tenets, the state of the field, and the issues it faces going forward. It is needed now more than ever and also, quite possibly, comes too late.

Mark Tushnet, Comparativism, and Global South Third Generation Human Rights

Mar 13, 2025 Mark KendeAdd a Comment

Mark Kende

“Retired” Harvard Law professor Mark Tushnet is legendary for the quality and quantity of his scholarship. Earlier in his career, he was a founder of the revolutionary Critical Legal Studies movement. Then in the 1990’s, he became a pioneer, reinvigorating the field of comparative constitutional law.  This important book contains numerous chapters related to Tushnet’s legacy. Although the whole book is worthwhile, I want to give special attention to law and political science professor Ran Hirschl’s spectacular chapter on Tushnet and the evolving field of comparative constitutional law, Comparative Constitutional Law: Reflections on a Field Transformed.

Hirschl initially mentions some of Tushnet’s books and articles on comparative constitutional law. One of Tushnet’s key books is Advanced Introduction to Comparative Constitutional Law. His 1999 Yale Law Journal article on the possibilities of comparative constitutional law, evaluating the different ways in which “comparing constitutional experience elsewhere,” if undertaken in a “cautious and careful” manner, might allow one to “sometimes gain insights into the appropriate interpretation of the U.S. Constitution,” was noteworthy both for its bravura intellectual style—the section on bricolage was especially interesting—and for its critical examination of future directions for the field.

As Hirschl shows, the vitality of that field is now beyond question. Decisions from the Supreme Court of Canada, the German Federal Constitutional Court, and the South African Constitutional Court are now widely known. In recent years substantial interdisciplinary work on autocracy has come to the fore. I would add that some books on comparative autocracy have even jumped academic boundaries and gained popular notice.

Next, Hirschl proceeds to a lengthy discussion of how political science departments overall have not sufficiently kept up courses on law and courts, especially in the comparative realm. He thinks this damages constitutionalism. This omission is especially ironic given the close political connection to law. By contrast, there was an earlier period in the late 20th Century where political scientists achieved fame for their work on real constitutional design. Tushnet—and Hirschl himself—have been substantially responsible for a shift back to cross- and inter-disciplinary work, with the modern field essentially being renamed comparative constitutional “studies.”

Hirschl next dissects the constitutional studies field. He asserts that countries in the North have generally been stagnant regarding constitutional change. He notes that some global Southern nations have been innovative, but that scholarship there has generally focused on a few nations, like South Africa and India. My own work on South Africa fits this category. Yet Hirschl gives exhilarating examples of more significant change in lesser-known nations within the “Global South.”

Numerous such countries have focused their constitutions on climate change and the environment, so-called third generation rights. The Supreme Court of Brazil has even characterized the Paris Agreement as a human rights treaty. Another major focus of some Southern constitutionalism is the dangers of urban density. As Hirschl points out, “If the entire world population (8 billion) lived in similar density conditions as Dhaka or Manila, it would fit within an area the size of Oklahoma.” Hirschl elaborates on how the metrics of political representation must be adjusted to account for increasing urbanization. He concludes by reiterating his powerful arguments that political science should refocus on these issues, and that scholars generally should highlight Global South nations. His survey of this comparative field is breathtaking.

There really are no strong arguments against his chapter, save for a friendly suggestion that some Northern nations may have been catching up some with the pace of change in the Global South. Students in Montana brought a powerful climate change case, though it was ultimately dismissed. France now allows some concrete constitutional review. And there has been a United Kingdom Supreme Court for a while. If study of the field continues to grow, in both the North and South, Tushnet will be due no small measure of the credit.