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Doctrine by the Numbers

May 22, 2026 Leonid SirotaAdd a Comment

It is not difficult to think of constitutional rules that are criticized, defended, or often both, on normative grounds that are more or less fact-free—not for what they actually are, but for what their critics or defenders believe they are or ought to be. In the United States, the Citizens United decision comes to mind. In the United Kingdom, Lewis Graham argues, a similar fate has befallen section 3 of the Human Rights Act 1998 (“HRA”), which provides that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the … rights” protected by the European Convention on Human Rights.

Graham notes that section 3, “perhaps more than any other provision in the HRA, has been subject to serious criticism in the literature.” He does not mention the Bill of Rights Bill, which the last Conservative government introduced in an ultimately failed attempt to replace the HRA; if enacted, it would have eliminated section 3. For the record, although very critical of the Bill as a whole, I was sympathetic to that aspect of it at the time.

The reason for the hostility section 3 has aroused is that rights-compatible interpretation might, in the hands of a sufficiently adventurous court, amount to a rewriting of the legislation being “interpreted,” and so risk subverting democracy, the separation of powers, and the rule of law. A leading judgment has indeed suggested that, in applying section 3, courts can assign to statutory language an “unnatural or unreasonable” meaning, provided it “is intellectually defensible”, and “do considerable violence to the language and stretch it almost (but not quite) to breaking point”.

Graham’s argument, however, is that—despite these and other provocative statements in some early section 3 cases, on which scholarship (and, I would add, teaching) tends to focus—UK courts have not been so adventurous as to justify this criticism. He develops this argument by identifying and reading all the cases where judges have deployed section 3, and assessing the ways in which they have done so. Beyond the importance of this study for scholars and others interested in the evolution of the UK’s constitution, it offers valuable lessons on the usefulness, and also the limits, of good empirical scholarship in constitutional law.

Graham observes that “after an initial (perhaps understandable) enthusiasm for section 3,” its use has levelled off at a handful of cases a year, from all the levels of UK courts combined. Hardly a torrent of judicial rewriting of legislation, then, but a steady trickle. About one case in three concerns the right to a fair trial, whether in criminal law (which altogether supplies about one in five section 3 cases), or in a civil context. Graham suggests that this “reduces the risk of judges improperly trespassing upon the terrain of other constitutional actors,” which seems fair.

Reinforcing the theme of judicial non-radicalism are Graham’s findings as to the manner in which legislation is “read and given effect” so as to be compatible with Convention rights. Although the cases say that this can be done in fairly disruptive ways, including by effectively replacing statutory language with different, rights-compatible terms, this is rarely done. The most popular technique is to adopt a novel interpretation that “obviates the need for any explicit addition or deletion of the legislative text,” while “additions” are largely preferred to “deletions.” Just how different these methods really are surely depends on the individual case. This is one of the inevitable limitations of empirical scholarship that concerns itself with large numbers of cases rather than focusing on individual examples. But Graham is probably right that the courts’ choices reflect a desire to give effect to legislative intent, adjusting legislation for details that may have been overlooked rather than re-writing it in a manner that would disrupt its scheme.

The longest section of Graham’s article, and perhaps the most compelling in making the case for judicial moderation, if also the most complicated, concerns the self-imposed limits courts have observed in applying section 3. For one thing, “the case law is replete with examples of judges seeking to identify and preserve the intention of the legislature,” though it also contains the odd indication of a willingness to disregard this—normally—central factor in statutory interpretation. For another, although the application of section 3 often means that courts will frequently give statutory words unexpected meanings, the terms of a statute impose limits on this approach, and sometimes prevent it altogether. Analogous cases and on-point precedents matter, as do the views of the parties—most notably the government, which would rather have the court rely on section 3 “than having to respond to a declaration of incompatibility,” which is likely to follow if doing so is not possible. Last but not least, courts may refrain from relying on section 3 when the choice of a rights-compatible interpretation involves considerations of fundamental policy or morality, or consequences judges may not be in a position to anticipate.

Graham concludes that “[s]ection 3 is powerful, but is perhaps not as radical as it is sometimes portrayed as being.” Indeed, “on the rare occasions where the courts have adopted a particularly radical interpretation, this has been at the insistence of all parties to the dispute,” including the government. They are aware of the constitutional limitations on their role, and demonstrate this awareness in how they decide cases—if not always in how they talk about their decisions. Critics should not focus on rhetoric which overtakes the reality, but on what courts actually do.

I have more to say about what the takeaway from Graham’s article for section 3 critics such as me. First, though, let me note the way in which it enriches the conversation and can serve as a model for constitutional scholarship. Writing about a few salient cases, let alone about a few punchy statements made in a few salient cases, is easy. Insofar as this remark is critical, the criticism is directed at myself as much as at any reader who may feel targeted by it. But my point is not that narrowly-focused scholarship has no value. It is, rather, that a survey of an important area of the law, such as that which Graham’s article provides, can, as in this case, supply essential context within which the salient cases and punchy statements can be assessed, and perhaps discounted. If the striking examples set out the direction in which the case law develops, then a focus on them is justified. But if they turn out to be outliers, then the question of why that is so becomes more interesting than criticism.

A survey is better positioned to supply this context when, as here and indeed elsewhere in Graham’s scholarship, it is backed by numbers and not just a vibe-check. But the presence of figures alone is not enough; the trick is to know what to count. The significance of Graham’s study lies in his ability to count not merely outcomes, let alone some personal characteristics of the judges who reached these outcomes, but features of the reasoning of the cases he studies. That is to say, although his work presents itself as empirical, and has the advantage of big-picture rigor that is the attraction of empirical scholarship, it is infused with a doctrinal scholar’s interest in legal reasoning, instead of abstracting it away as empirical legal scholarship too often does. This is where the true value of Graham’s work lies.

That said, the limits of such work, like its strengths, have to do with the questions it asks. This is, of course, not a criticism of Graham’s article, but simply an acknowledgment of the fact that no piece of scholarship, and no method, is by itself sufficient to ask and answer all important questions about a given topic. By design, empirical work can no more than hint at the causes of the trends it brings to light. And while it can and should inform normative views, it cannot and should not define them.

With respect to article 3 of the HRA, Graham makes a strong case that the courts have been more thoughtful than their critics often give them credit for, and more moderate than they themselves sometimes let on. His article is not meant to explain this discrepancy, although his recent post on the UK Constitutional Law Blog, which explores the role of ideology in the ostensibly purely merit-based appointments to the UK Supreme Court might point at one part of the explanation. Another might lie in the existence of a tendency by the various actors in the UK’s “unwritten” constitution to maintain an uncertain equilibrium by staking out ambitious claims without prosecuting them to their full extent, but that is a far more complicated topic than can be explored here.

Graham recognizes that “critics may allege that so long as a more permissive, activist approach is possible we should remain worried,” but argues that we should, at least, discount the possibility, in light of the experience he describes. That is fair, so far as it goes. But that does not answer the question whether Parliament was entitled to delegate a legislation-shaping power to the courts even if they expected it to be used with moderation, or whether this delegation should be retained even though we now have good reason to think that it is and will be used thoughtfully and without radicalism. Even within these constraints, it remains a delegation of legislative power, and is vulnerable to criticism on that basis (purely normative criticism, of course, since there is no question of a non-delegation doctrine applying in the United Kingdom).

However, even if one is inclined to remain critical of section 3 on this basis, as I am, Graham’s article has the virtue of clarifying what lines of criticism can be productive, and which ones should be abandoned. Our views, like those of section 3’s supporters, will be better informed and more focused. Graham’s blend of empirical work and doctrinal reasoning helps us all become better thinkers.

Robby The Robot vs. The Little Platoons

Apr 24, 2026 Paul Horwitz1 comment

A terribly wise man once said—actually, he has said it again and again—that the core crisis of our time is an institutional crisis. The institutions of civil society—public and private, secular and religious—have seen public trust in them plummet in the polls year after year, like a Colorado Rockies fan watching the baseball standings. It’s indicative of the crisis—and the culture that feeds it—that the social-media slogan “burn it all down” rose to popularity among the cosplay revolutionaries of the Bluesky left and then became popular among the cosplay nihilists of the Twitter right.

At the intersection of nihilism and opportunism—which is to say, where we are right now—one can find the inevitable technology enthusiasts. Buoyed by a relentless optimism and unburdened by any sense of community or history, these cheerful Vandals argue that “burning it all down is good, #actually.” They have just the match to start the blaze: AI. There is no shortage of current legal scholarship on AI. (Surely a sentence with a double meaning. There’s lots of current scholarship about AI—and, no one doubts, lots of scholarship written by it, “legal scholarship on AI” in the sense that an addict is “on meth.”) There’s less on the landscape it is altering. So it’s a pleasure to find an article that focuses less on how AI is remaking everything, and more on what AI is remaking—or killing.

How AI Destroys Institutions, by Woodrow Hartzog and Jessica Silbey, focuses our attention on our civic institutions, which “form the invisible but essential backbone of social life.” Hartzog and Silbey argue that AI is “a death sentence” for these institutions. Even an AI non-enthusiast may find a lot to disagree with in this short, sharp paper. But the authors focus their lens commendably and well. It’s not a doctrinal paper. It does not, in fact, mention the Constitution. Not everything that is essential to our constitutional order does. (Arguably the most timely constitutional law book of the day is this one, and the Constitution won’t be the most important element there, either.) But the ongoing crisis of our civic institutions is both fundamentally constitutional in nature and affects our ability to respond to the more conventionally “constitutional” problems we face. AI is deeply embedded in both and should be understood as such.

Following the standard literature, Hartzog and Silbey define institutions as “the commonly circulating norms and values covering a recognizable field of human action, such as medicine or education”—the “rules of the game” for such practices. They distinguish them from organizations, while noting their key role as “the material instantiation of institutions.” Institutions, they argue, are not simply machines for the delivery of outputs, such as an educated pupil or a healthy patient. They “act in terms of extra-organizational social processes according to customs and norms,” including norms of hierarchy that “enable accountability” and norms of independence that avoid corruption. These norms “infuse the organization with value and legitimacy beyond the technical requirements of the task at hand.” The transmission and gradual adaptation of “knowledge and practices across generations of people” cultivates a sense of commitment for those within the institution, and a sense of legitimacy for those who benefit from them. These, they argue, are the features that AI threatens.

Hartzog and Silbey indict AI on three counts. First, they charge that AI “undermine[s] and degrade[s] institutional expertise.” Offloading cognitive functions disrupts the slow “structured transfer of knowledge and know-how” by which expertise is nurtured and maintained in an institution. It substitutes mere technology for true technê.

Second, it “short-circuits decisionmaking.” On this view, institutions generally function best and most responsibly through hierarchical structure, according to institutional rules whose legitimacy is accepted, and with “critical points of reflection and conflict” that enable it to decide better and, sometimes, to change course. Short-cutting those practices corrodes institutional structures “that require buy-in for legitimacy, adaptability, and longevity.” And its removal of opportunities for creativity and dissent deprives institutions of “a source of moral courage and insight, which is necessary for institutions to adapt and thrive.” Having killed technê, it sticks the knife in arête as well.

The final and probably most indisputable charge is that AI “isolates humans.” The “hyper-personalization” it both caters to and encourages “displaces and degrades human-to-human relationships.” People who are unused to “human interactions with all their friction and diversity” and unwilling to adhere to “institutional roles and rules” will not respect, accept, preserve, or even understand institutions and institutional purpose, leaving only “social chaos or the rule of the powerful.” Reader, look around you.

Hartzog and Silbey note the ways in which these phenomena are already reflected in myriad uses of AI to “streamline” government and its functions, in a crude and “opaque” way that has short-circuited judgment and “encouraged abuse, self-dealing, and oppression.” (Think DOGE.) But their primary illustrations and areas of concern lie elsewhere.

In law, they warn that the looming threat of “embedding AI systems in legal decisions” will destroy the accountability to human judgment expressed through reasons that is necessary for the rule of law. In higher education, they worry that whatever gains are realized by using AI to aid research will be outweighed by its destructive effects on our commitment to higher education as a structured, social, time-extended, human activity of transmitting and developing knowledge and the love of inquiry. They worry likewise about the press, where AI slop has already inundated the public sphere with cheap and/or false information. Although journalists have attempted to leverage AI for productivity, they argue that AI systems rob the press of the larger institutional practices and public trust that enable it both to make complex judgments and to “speak with institutional authority and avoid sycophancy.”

Finally, they argue that the isolating and alienating effects of offloading human functions to AI systems will erode “social capital and norms of reciprocity.” In the end, “our center—democracy and civil life—will not hold.” Claude or Grok will scour the collective knowledge of humanity to give us tips on bowling—but we will all be bowling alone.

How AI Destroys Institutions is an article in the prophetic genre, and its warnings are appropriately disquieting. Hartzog and Silbey offer a few prescriptions of a sincere but general, slapdash-universal nature: focus on “root causes,” address inequality, act locally, and the like. But these rather generic suggestions are almost afterthoughts compared to the warning: “AI systems are like a cancer in our struggling democracies,” a “death sentence for civic institutions,” an acid that “weakens to the point of demolition the institutions we created and sustained to survive and thrive together.” No Constitution can sustain a society that has lost any interest in the very concept of being constituted.

One obvious response to this piece is that AI is no more perilous to, say, journalism than was the shift from typewriters and Linotypes to the computer. In some respects, this is obviously true: Institutions not only survive but benefit from technological change. (The typesetters might beg to differ. But then, their resistance to change led to a Canute-like strike that didn’t fend off the technology but did help kill four newspapers, including the great New York Herald Tribune.) The criticism is valid. But it undersells this article’s key virtue: Its focus, not on technology as such, but on how it affects the social and hierarchical elements that give purpose, legitimacy, commitment, and longevity to civic institutions.

Another question readers may have about this grim forecast is conveniently raised in a response by Andrew Perlman, dean of Suffolk University Law School. It requires two asterisks. First, law school deans—who are both nodding to reality and bowing to donors and competitive forces—are mostly leaning in on AI (or saying that they are); Suffolk is doing so enthusiastically. Second, Perlman’s opening note discloses that although he “conceived of the substance of nearly all the points” in his response, “Claude was exceptionally helpful in drafting the text.” (Perlman adds that he did “draft[ ] the footnotes and citations largely the ‘old-fashioned way.’” That seems rather a case of the tail assigning the mindless scutwork to the dog.) Make of these facts what you will.

Nevertheless, Perlman—or, I guess, “Perlman”—raises the obvious question skillfully: AI “destroys institutions compared to…what?” Hartzog and Silbey acknowledge that “our institutions have been fragile and ineffective for some time.” But they describe civic institutions in an abstract or idealized form, focusing on how they are supposed to function rather than on their current flaws. So the question is not whether AI will rob universities of what makes them special. It’s how various AI tools will change actually existing universities, both for better and for worse. Similarly, “‘imperfect GenAI assistance’ versus ‘no assistance at all’ is not the same comparison as ‘imperfect GenAI assistance’ versus ‘competent human lawyer.’” For individuals facing access to justice barriers, the former is closer to their reality than the latter.

Perlman’s response is not unreservedly optimistic. But he counsels “calibration” rather than “paralysis,” inviting us to examine real institutions and their failings, sort carefully among different AI applications, and ask how to address AI “in a way that maximizes benefits and minimizes institutional costs.” One way to think about the difference between the two articles’ measures of how to respond to AI lies precisely in those words. Perlman is arguing for ordinary cost-benefit analysis. One might think of Hartzog and Silbey as arguing, a la Posner and Sunstein, that the threat AI poses to our bedrock civic institutions is so catastrophic and irreversible that it demands a precautionary principle approach.

In a sense, I think the “compared to what” response to this article is somewhat beside the point. But it does suggest that looking at the longer-term corrosion of our civic institutions from the inside, and the decline of trust in them from the outside, would give us a better sense of the ways in which AI both emerges from and responds to these changes. The flattening of hierarchies and lack of commitment to institutional roles and rules that Hartzog and Silbey see as a consequence of AI certainly preexists it. To take an example from an exemplar of one of the institutions they discuss, the flattening of hierarchies was already fully present when reporters at the New York Times criticized opinion-page editor James Bennet in 2020, and its publisher acceded to demands for Bennet to attend all-staff meetings and later fired him.

In a properly functioning journalistic organization, Bennet would have told the restive reporters that the news and editorial pages are separate, and that they have no more voice in such matters than someone in the accounting department does. He would, in short, have told them to do their jobs and mind their own business. Publisher A.G. Sulzberger would have backed him up, instead of capitulating to a staff revolt undertaken against an entirely separate division of the paper. He might then have fired Bennet for not doing his job, but not because of the ultra vires complaints. But the reporters’ statements (and, inevitably, tweets) made clear that many didn’t see things that way. (Notably, the sentiment was especially strong among young reporters who had come up on the Internet rather than the print side of the paper.) They felt entitled to a voice concerning the whole paper; they saw the paper’s traditional divisions as antiquated or irrelevant; and they were indifferent to hierarchy. And Sulzberger, whose job it was to preserve the institution, but who was pinioned by revolt from within and a precarious business model from without, met these forces with a spine of jelly.

One could say similar things about university administrators’ oscillating hot and cold approach to encampments in 2024, and student and faculty complaints that the university is “undemocratic,” as if students’ limited role in governing academic institutions were a bug rather than a feature. Or about White House staffers issuing anonymous protest letters. All of these things were a signal that the notion of committing to a purpose-driven, hierarchical institution and its roles and rules has, first slowly and then very quickly indeed, lost currency. And institutions’ leaders, even setting aside those—like the current president—who lack both the barest knowledge of and the slightest interest in institutions and their norms, have responded with confusion, inconsistency, and surrender. They have been training for years to capitulate—first to their own constituencies, then to Trump’s White House, and now to technology. The center certainly cannot hold if those at the center of the center cannot convince either the members of their own institutions or, ultimately, themselves to stand fast.

All of this suggests both a strength of How AI Destroys Institutions and a looming question about it—and about how we live now. The key strength of the article is that it doesn’t focus on AI as either a magical key to knowledge and efficiency or an infernal engine of falsehood and error. Nor does it focus on institutions as producers of mere outputs. Instead, it rightly demands that the reader see institutions as uniquely valuable social processes, driven by norms and practices. It is unashamed to say that they are hierarchical and rule-based in nature, and that destroying these features destroys the institution—and destroying these civic institutions in turn destroys the constitutional order of which they form the supporting architecture. Its contribution is to ask how AI will affect these very features.

What it does not and perhaps cannot answer is whether, in simultaneously overemphasizing the “autonomy” of atomized and isolated individuals and undermining the authority and autonomy of institutions themselves, AI is simply expressing a preexisting general will. On this view, AI isn’t a match helping a dangerous minority to “burn it all down.” It’s an accelerant, poured over a house that’s already on fire, in a world full of arsonists.

Official Responsibility Against the Unitary Executive

Mar 18, 2026 Blake EmersonAdd a Comment

The unitary executive is on the march. Since the Founding, there has been ongoing—and sometimes fierce—debate concerning the nature and scope of the President’s powers to control, direct, and fire executive and administrative officials. Proponents of the unitary executive argue for a high, if not complete, degree of presidential control. Proponents of executive pluralism argue that Congress has discretion to insulate various officers, employees, and agencies from presidential direction. Over the past 15 years, the Roberts Court has adopted an increasingly deep commitment to the unitary view.

The second Trump administration has taken advantage of this development to fire executive branch officials and to assert power to transform the bureaucracy and even dismantle administrative agencies. In Trump v. Wilcox, the Court stayed district court injunctions on Trump’s removal of members of the independent National Labor Relations Board and the Merit Systems Protection Board, despite statutory restrictions on their removal. In balancing the equities, the Court concluded that “the Government faces greater risk of harm from an order allowing a removed offer to continue exercising her statutory duty than a wrongfully terminated officer faces from being unable to perform her statutory duty.” The rights and duties of the President to control other officers now apparently outweigh those officers’ rights and duties to carry out the law. The Court thus seems to be preparing, in Trump v. Slaughter, to overrule Humphrey’s Executor and expand the President’s power to fire the heads of independent agencies.

Nathaniel Donahue’s splendid new article Officers at Common Law shows how this unitary theory—which is often justified on the basis of originalism—fails to account for the legal forms of official accountability that existed at the Founding and in the early Republic. The common law of officers, drawn from British and colonial practice and transplanted to the federal level, understood executive officers to be personally responsible for the laws they were charged with administering and potentially liable for acting beyond their authority. The system was not principally hierarchical—nor could it be, given the absence of a modern bureaucratic state and the decentralized nature of American governance. Rather, persons injured by administrative actions could sue officers for unlawful interference using common law causes of action, and the courts would hold them liable in their private capacity if they had acted outside the scope of their legal authorities.

This kind of statecraft is structurally inconsistent with the brutalist-modern architecture that the unitary executive contemplates, where the President, vested with a democratic mandate, wields the bureaucracy of the federal government as an instrument of his personal-political power. The “original” government was not a towering monolith, but a sprawling political village made up of multiple officer-freeholds, their owners subject to liability for trespass for injuring the persons or property of the townspeople. This historical context, which Donahue amply documents, casts doubt on the notion that the ambiguous phrases “executive power” or “take care that the laws be faithfully executed” entailed the President’s unilateral control power over all officers.

Donahue is not the first to examine the distinctive role of the law of officers in American political development and administrative law. Karen Orren, Jerry Mashaw, and Nick Parrillo’s classic studies unearthed a lost world of “officers’ rights,” damage suits, and fee-based compensation that provided substantial, but limited, forms of accountability for administrative misfeasance. Donahue’s study is a major contribution to this line of scholarship. It stands out both for its combination of legal and historical granularity and for its critical interventions in contemporary constitutional controversies. Examining a wealth of state and federal case law, as well as treatises and manuals for justices of the peace and other local officers, Donahue uncovers the mazes of personal, legal, and monetary accountability through which the Constitution was initially administered.

This account then yields novel insights for contemporary questions concerning the scope of the President’s control over administrative agencies. The unitary theory suggests that any discretionary decision must be subject to presidential control. Donahue shows, however, that the system of personal-official responsibility at common law sometimes meant that subordinate executive officers retained politically-uncontrolled discretion where the statute confided the decision or even the “opinion” in them. To the extent that scholars and jurists like Professor Jennifer Mascott and Justice Thomas would expand the definition of “officer” to require political appointment deep into the administrative hierarchy, the common law of officers might require such officials to hold independent decisional powers.

This scholarship, like much honest and careful historical scholarship, does not yield clear and unambiguous instructions for courts in answering specific legal questions. While it shows that the unitary theory relies on a vision of bureaucratic hierarchy that was foreign to the Framers, it doesn’t tell us directly whether the President may fire a member of the Federal Reserve Board, and for what cause and with what procedure, or whether the president may fire tens of thousands of civil servants under the guise of a “reduction in force.” One could certainly rely on Donahue’s work to make strong originalist or traditionalist arguments against broad readings of presidential control. But that’s not all the work is useful for, beyond its intrinsic academic merit. From the standpoint of constitutional and political theory, it discloses the risks of our current moment, as well as promising opportunities for non-reformist reform.

As to risks, the argument shows that, whatever unilateral control the President had in the Founding period, it was embedded in and constrained by horizontal patterns of accountability to citizens, to the law, and to the courts. At present, we have an administrative state in which officer suits play a marginal role, at best, and the equitable jurisdiction of the federal courts affords disanalogous and diminishing relief. If the Court and the President continue to institute a maximal form of the unitary executive theory, it will not be constrained by common law in the way Founding-Era practice was. Hierarchy without constraint is a recipe for authoritarianism.

As to reform possibilities, the pluralistic form of official accountability at work in the early Republic opens up possibilities for flattening and distributing the federal executive power. We will not and should not return to quasi-aristocratic rule by local notables. Nor will Jacksonian party-patronage come back in precisely the same form it first arose. But the common law of personal accountability for statutory duties has an important message for the present: The law may fail in its execution unless social structures and political values equip officers with not only the authority, but also the obligation, to administer law faithfully.

Throwing the Supreme Court/Free Speech A Bone

Feb 17, 2026 Leah LitmanAdd a Comment

Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).

That’s not to say there aren’t “free speech” risks from private power—especially in an era where control of major media outlets is concentrated in the hands of a few. And there are hard cases where it may not be clear who is driving the censorship—state actors or private ones.

That’s where Genevieve Lakier’s Enforcing the First Amendment in an Era of Jawboning comes in. Lakier attempts to unpack the law of “jawboning.” In jawboning, the state isn’t wielding the red pencil directly, but neither is the private entity simply making its own decisions in a free and voluntary way. Instead, in these cases nominally private entities make decisions that affect free speech values, but the decisions are being shaped, if not driven, by government action. Lakier wrote and posted this masterful piece before the latest high-profile instances of jawboning, including the Trump administration’s ham-handed efforts to get ABC/Disney (a private corporation) to pull Jimmy Kimmel (a private citizen) off the air for saying something the regime didn’t care for.

The occasion for Lakier’s article is the Supreme Court’s recent decision in National Rifle Association v. Vullo, the unanimous case that was much cited and often trotted out during the Kimmel censorship debacle. In Vullo, the Court concluded that the NRA had stated a complaint against state officials that signaled to regulated parties that their regulatory infractions and legal violations would be met with leniency—if the regulated parties stopped doing business with the NRA. (Sounds a little bit like “we can do this the hard way or we can do this the easy way.”) Vullo is really the second case where the Supreme Court has opined on the legal merits of what looks like a case of jawboning—the previous case, Bantam Books v. Sullivan, was in 1963. (The Court did have another case of alleged jawboning on its docket in the same term as Vullo, Murthy v. Missouri, but it resolved the case on standing/justiciability grounds.)

Lakier’s article surveys how the federal courts have developed the law of jawboning in the wake of Bantam Books. She sifts through different approaches to jawboning and argues that some approaches are consistent with and survive Vullo, whereas others are not. Lakier persuasively reads Vullo as a context-specific, totality-of-the-circumstances inquiry to jawboning. And that, she argues, rules out hard-and-fast rules about what jawboning is or isn’t, such as lower court rules that recognize jawboning only where the government adopts certain tactics.

Lakier’s article is a model of my favorite kind of doctrinal scholarship. It takes a murky, unclear area of law; it does a deep analysis not just of what the Supreme Court is doing, but what the lower courts have done as well; and it imposes some rigor and clarity on the legal domain with rigorous analysis and sharp arguments rooted in careful parsing of case law, assessments of deep constitutional principles and values, and political economy and social context.

But law is law and lawyers are lawyers; and so I still have some questions about the law of jawboning. For example, Lakier frames NRA v. Vullo in terms of a categorical “rule” that prohibits all efforts to coerce or force disassociation. And part of that rule, she argues, reflects a recognition that “even when the coercive pressure the official brings to bear is not so great that it couldn’t reasonably be resisted,” there still might be unconstitutional jawboning. I agree to the extent Lakier means to describe how the regulated entities in NRA v. Vullo could have internalized and borne the costs of the sanctions the government might have sought against them. But the jawboning inquiry still might be sensitive to the extent of the threat, particularly if NRA v. Vullo is a totality-of-the-circumstances test that throws a bunch of different considerations into the mix.

I also wanted to hear more about the Court’s differential approaches to jawboning in Vullo and in Murthy v. Missouri, the case the Court disposed of on standing/justiciability grounds the same term that it issued Vullo. Lakier suggests that Murthy represents a more rigid, formalist judicial approach to jawboning (again, under the guise of standing/justiciability) than Vullo reflects. In Murthy, Lakier argues, the Court seemed to want jawboning plaintiffs to have evidence of “specific causation”—i.e., that the government threats causally resulted in the suppression of particular speech. But making that showing will often be difficult; in any case, NRA v. Vullo didn’t seem to require it, since it recognized that attempted, but unsuccessful, jawboning could also give rise to a constitutional claim. Lakier writes that “Nothing in Murthy suggests that the businesses who are directly targeted by informal government pressure need to show that the pressure caused them to act in order to establish their standing.” I’m less sure that had the social media companies been the plaintiffs in Murthy the result in the case would have been different. However, I agree with Lakier that Murthy is an odd, difficult-to-understand case in part because it was mired by “highly spurious fact finding by lower courts.” And I wonder whether, at least outside the particular lower courts that were involved in Murthy, that’s the best way to understand that decision. I also would have liked to hear a little bit more about how Lakier thought the Murthy case should have been analyzed, on the merits or on standing, and how, given the allegations in the case—which involved federal government efforts to “flag” for social media platforms speech involving “disinformation” concerning both Covid election-related issues—should have come out under the proper understanding of NRA v. Vullo and jawboning.

Still, given all the transparent efforts at jawboning and state-sanctioned censorship that we are seeing, I hope courts read Lakier’s article. And soon—there will surely be more claims headed their way.

Adding Color to the Founding

Jan 19, 2026 Lorianne Updike SchulzkeAdd a Comment

The Founding was for Whites. Or so it would seem, according to most contemporary histories or legal accounts of the era. Black Writers of the Founding Era, edited by Jim Basker and Nicole Seary, adds important color to that history. This edited volume is the most comprehensive compilation of Black-authored editorials, letters, court petitions, sermons, and poems to date, and the first such compilation of Black writings during the Founding in over 50 years.

Very few Black men and women at the Founding were literate. Whereas 90% of the white population was literate in 1790, roughly 90% of the Black population at the Founding were enslaved, and a very small percentage of the entire Black population (5-10%) was literate. In two states—South Carolina and Georgia—teaching an enslaved person to read and write was illegal. The few extant Black writings have been difficult to find, or out of print. The paucity of Black writings from the Framing has inevitably led to their absence in historical and legal accounts. As a result, it has been assumed that the Founding was not for them: the Constitution was not theirs, and the Revolution was fought only for those they served ala. In part, this has led many to conclude, ala Justice Thurgood Marshall’s famous Bicentennial speech, that “We the People” excluded Black Americans and turn to alternative narratives of American history like the 1619 Project.

Enter Black Writers of the Founding Era. This compilation of 200 texts written between 1760 and 1800 gathers known and previously unpublished sources of all varieties—letters, diaries, autobiographies, editorials, sermons, petitions, and poems. It is all the more valuable given the scarcity of Black writings from the period. With each text, the editors have helpfully provided an introductory note containing historical context as well as connecting other documents and writers together.

More, through the anthology, as Annette Gordon-Reed writes in her elegant introduction, early Black Americans find their voice. Via the unmediated words of these early writers, a vibrant story of the Black Founding is told. These free and enslaved men and women powerfully (and universally) campaigned for the freedom of their race even as they advocated for American Independence and the Constitution. They conceived of themselves as freemen, citizens, and Americans. They believed that the best hope for their liberation was bound up in the American quest for liberation from Britain and through the Constitution. They were a part of and helped shape We the People.

This edited volume provides a valuable source for the historical and legal communities alike. Through it, historians can seek to understand the views of Black men and women about a host of subjects: not only about the Revolution and Constitution, but how they conceptualized themselves as political actors and their relationships vis-à-vis one another. They were agents who acted for themselves and on behalf of their communities.

Too, Black Writers should be consulted by advocates and judges who engage in Original Public Meaning interpretation: the view that the Constitution should be interpreted in light of the meaning ascribed it by the public. Such a view has been required in several areas of constitutional law by the Supreme Court. Yet the resultant judicial accounts of the “American public” at the Founding have invariably been White. Now, with the easy accessibility provided by Black Writers, they need not be. The 500,000 Black Founders who fought alongside white soldiers, and those who advocated for the Constitution through editorials and identified themselves as freemen, citizens, and Americans can—and must—be represented. More, inclusion of Black voices within accounts of Original Public Meaning will make that interpretive method more legitimate because more inclusive and complete. As such, Black Writers should become part of the essential library of any serious originalist, along with Madison’s Notes of the Constitutional Convention, the Federalist Papers, and state ratification debates.

To assist historians and to aid judges and legal advocates in providing fuller accounts of Original Public Meaning, Black Writers might be improved in a subsequent or digital edition. Although the volume is roughly organized chronologically, dates are not provided in the table of contents. Too, there is no easy mapping of all writings by a single author. The index mostly lists individuals and place names rather than legal topics. To make the volume more useful for the legal community in particular, it would be helpful if the volume were digitized, made searchable, and indexed in a way that links texts to legal topics, like clauses of the Constitution.

Despite the few areas where it could be improved in a next edition, Black Writers is an invaluable contribution to documentary editing efforts of the Founding. It provides a rich new source for the historical and legal communities, in which Black Founders find a voice and make the Founding theirs.

Can the Law of Democracy Save Democracy?

Dec 5, 2025 Helen NortonAdd a Comment

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.