Category Archives: Uncategorized
Nov 7, 2025 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.
Oct 8, 2025 Andrea Katz
Christine Kexel Chabot,
Rejecting the Unitary Executive, __
Utah L. Rev. __ (forthcoming, 2025), available at
SSRN (Sept. 21, 2024).
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.
Sep 8, 2025 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.
Jul 25, 2025 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.
Jun 27, 2025 Leah Litman
Laura Portuondo,
Gendered Liberty, __
Geo. L.J. __ (forthcoming), available at
SSRN. (March 25, 2024).
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).
Jun 4, 2025 Leonid Sirota
Preston Jordan Lim
, The Great Depression and Canada's Major Originalist Decade, __
Osgoode Hall L.J. __ (forthcoming). available at
SSRN. (November 22, 2024).
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 51st 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.
Cite as: Leonid Sirota,
Originalism, Eh?, JOTWELL
(June 4, 2025) (reviewing Preston Jordan Lim
, The Great Depression and Canada's Major Originalist Decade, __
Osgoode Hall L.J. __ (forthcoming). available at SSRN. (November 22, 2024)),
https://conlaw.jotwell.com/originalism-eh/.
