Category Archives: Uncategorized

State Constitutions As A Bulwark Against Oligarchy

Apr 30, 2025 Rebecca ZietlowAdd a Comment

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

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

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

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

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

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

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

“I Love Beating George Washington”

Apr 2, 2025 Paul HorwitzAdd a Comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mar 13, 2025 Mark KendeAdd a Comment

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

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

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

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

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

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

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

Undercover Investigations, Deception, and Democracy

Jan 17, 2025 Helen NortonAdd a Comment

Intentional falsehoods often frustrate the purposes of the Free Speech Clause. They can—and often do—undermine a healthy democracy, interfere with enlightenment and the distribution of knowledge, and frustrate listeners’ autonomous choices. At the same time, however, laws prohibiting lies often trigger First Amendment concern because of the government’s dangerous potential for regulatory abuse.

In Truth and Transparency, Alan Chen and Justin Marceau explore a particularly fascinating slice of deception: lies concealing the speaker’s identity as a journalist or other undercover investigator. We can understand these as lies about the source of speech—in other words, lies about who’s talking to you. And because listeners find it so helpful to know the source of expression when assessing its credibility or value, law often forbids lies about the source of speech. Consider, for example, laws requiring disclosure of the identities of those creating and producing public campaign advertisements—laws upheld by the Supreme Court in the less famous part of Citizens United v. Federal Election Commission. Or laws forbidding folks from pretending to be law enforcement officers or other government officials.

Chen and Marceau nevertheless conclude that in the context of undercover investigations seeking to discover information in the public’s interest to know, lies about the source of speech deserve First Amendment protection. These, they assert, are the unusual lies that actually advance core First Amendment values by exposing the behavior of powerful actors, both governmental and nongovernmental.

Chen and Marceau make a compelling case for why information-gathering is a core First Amendment activity and why deception to gain access to information that’s in the public’s interest to know should be protected by the First Amendment. Examples of laws that restrict such deception—and thus, in their view, violate the First Amendment—include some states’ “ag-gag” statutes that prohibit individuals from seeking access to an agricultural facility through deception. Think, for instance, of an animal rights activist seeking employment at a meatpacking plant to observe and record animals’ treatment, while concealing their reason for seeking access to the facility (for examples, see here and here).

In explaining why these laws might run afoul of the First Amendment, Chen and Marceau point to the Supreme Court’s decision in United States v. Alvarez, where a plurality suggested that lies are protected by the First Amendment unless and until they inflict legally cognizable harm.

The Alvarez plurality didn’t define “legally cognizable” harm, instead offering some illustrative examples. These include the monetary harm inflicted by fraud, the reputational harm imposed by defamatory falsehoods, and the harm to the administration of justice caused by perjury. In contrast, the Alvarez plurality concluded that an individual’s lie about receiving the Congressional Medal of Honor (in violation of federal law criminalizing such lies) to boost his audience’s opinion of him inflicted no such legally cognizable harm. The plurality felt that the disrespect of being lied to—even if it shapes the audience’s decision about whether to listen to this person or spend time with him—is not harm sufficient to strip that falsehood of First Amendment protection given the prospect of governmental overreach.

What the targets of undercover investigations really complain about, Chen and Marceau explain, is their conduct’s exposure to public scrutiny and criticism. And that, the authors assert, is not a legally cognizable harm for First Amendment purposes. Indeed, unlike the lies at issue in Alvarez, deception that reveals matters of public concern can further key First Amendment values.

The constitutional issues triggered by undercover investigations also include whether and when the First Amendment protects the recording of information accessed through deception. And so Chen and Marceau also consider legal bans on recording certain activities or certain places. As we see, the story of undercover investigations is not only a story of law but also of technology. More specifically, it’s a story about the implications of 21^st-century expressive technologies—like drones, and the tiny cameras and recording devices that we carry on our persons all the time—for First Amendment doctrine developed to address very different 20^th century technologies. (For additional perspectives, see here and here).

Most compelling is the case for First Amendment protection for public recording of public officials engaged in public activities (known as “public-cubed” recording). Think, for instance, how little we would have known about what happened to George Floyd without the cell phone recording of his death. Darnella Frazier, the bystander who recorded Mr. Floyd’s killing, received a Pulitzer Prize for this.

Chen and Marceau continue on to argue—more provocatively, as they acknowledge—that the First Amendment should also be understood to protect even nonconsensual recordings on private property, so long as the recording addresses matters of public concern, seeks to serve journalistic or other truth-seeking functions, and the recorder was not trespassing (as would be the case for example, of an employee at a workplace or an invited guest). Under these circumstances, they assert, the First Amendment value of gathering and recording such information to inform the public generally justifies its protection from legal restriction.

To be sure, Chen and Marceau recognize that undercover investigations more generally raise legitimate concerns about invasions of individuals’ privacy. They rely on “public concern” as a key limiting principle that explains whether and when undercover investigations have First Amendment value—and also whether and when those investigations threaten unacceptable moral harm.

More specifically, they assert that undercover investigations “should be conducted only to gather information that is of public concern” and not, for example, to advance “a private vendetta or prurient interest in spying on another’s most intimate private moments.” “[M]isconduct, illegality, or wrongdoing” by powerful institutions and individuals is almost always in the public’s interest to know. Other behaviors likely present closer calls, and some may find “public concern” to have little value as a limiting principle given the Supreme Court’s observation that “the boundaries of the public concern test are not well defined.” Even so, the Court has often relied on that test, however unclear, to do important doctrinal work in defining the contours of defamation law, the free speech protections available (or not) to public employees, and other constitutional rights and responsibilities.

Much of Truth and Transparency addresses the First Amendment issues raised by undercover investigators’ lies of various sorts. But there’s more.

As Chen and Marceau relate, the history of undercover investigations is also a history of newsgathering and of journalism. Their many examples include the mid-1800s work of undercover journalists and abolitionists to observe and document the horrors of enslavement for publication to northern readers. And Nellie Bly’s late-19^th-century undercover work to reveal the awful conditions experienced by women housed in what were then called insane asylums. And the work of 1970s Chicago- Sun Times reporters who opened and operated a tavern on Chicago’s south side to learn about and expose the corruption endemic to the city’s health and safety inspections.

Especially interesting, in my view, is the book’s discussion of ambivalence towards undercover investigations even within the field of journalism, an ambivalence that reveals a complicated view of undercover investigators as both heroes and villains.

For example, Chen and Marceau explain how the Chicago Sun-Times efforts were nominated, but ultimately passed over, for the Pulitzer Prize due to controversy over the journalists’ misrepresentation of their identities (and even though other Pulitzer prize winners had also engaged in deception).

As Chen and Marceau show us, we can still see this ambivalence in some contemporary media organizations’ ethical standards. For example, they describe how the New York Times requires its journalists to disclose their identities to the people they cover (except for its restaurant critics, who can make reservations under fake names). Its policy also generally prohibits secret recordings even in jurisdictions that permit such recordings—except in extremely unusual circumstances where top management agrees that secret recordings are warranted.

For those interested in ethics and moral philosophy, the book explores various perspectives for considering the moral rightness or wrongness of undercover investigations that rely on deception. Such deception raises concerns about the autonomy or dignitary harms they may inflict upon their individual targets. So too do they trigger concerns about more collective harms if such deception undercuts our sense of a duty to be authentic in our communications with others. Chen and Marceau acknowledge the competing ethical frameworks for considering these concerns. Ultimately, they advocate a utilitarian approach to this question, concluding that the collective value of undercover investigations to reveal important information to the public outweighs their costs.

Finally, the book details the authors’ original empirical public opinion research to assess contemporary public attitudes about undercover investigations, in hopes of measuring our intuitions about the moral and instrumental costs and benefits of undercover investigators’ deception. I confess that I was surprised by what they discovered. First, they found considerable public support, regardless of political party affiliation, for the general idea of undercover investigations that include deception. And second, they found that the public’s support rose still higher when asked about specific applications of undercover investigations (for instance, to agricultural facilities or to elected officials) rather than about undercover investigations in the abstract. (The single exception to this trend? Chen and Marceau found that public support for undercover investigations did not rise when those surveyed were specifically asked for their reactions to undercover investigations of abortion providers.)

For those interested in constitutional law, Truth and Transparency challenges us to reconsider when deception does—and doesn’t—contribute to our understanding of the truth and thus when lies do—and don’t—warrant First Amendment protection. And all readers can find plenty to admire in the book’s skillful resort to history, ethics, technology, and social science to shed light on the paradoxical, and often provocative, practice of undercover investigations.

The Personal is Partisan-Political

Nov 25, 2024 Blake EmersonAdd a Comment

Changes in Supreme Court precedent and presidential practice have strengthened the President’s hand while destabilizing and dismantling the regulatory state. In case after case, the Court has maximized the President’s power to control and to fire administrative officials, such as the head of the Consumer Financial Protection Bureau. Administrative law judges, who number in the thousands and hear cases ranging from disability benefits to collective bargaining, may also soon be subject to direct political control. The trend towards presidential direction of administration, even contrary to statute, is only gaining steam. Last term, in Trump v. United States, the Court held that the President’s control over appointed officers is at the “core” of executive power, and thus beyond the reach of criminal accountability.

Presidents have eagerly taken advantage of these developments, and Trump surely will continue to do so in his second term. In his first go-round, President Donald Trump’s “schedule F” executive order purported to remove merit protections for vast swaths of the civil service with “policy-making” responsibilities. While much less aggressive, President Biden’s removal of the head of the Social Security Administration without cause likewise traded on the Court’s sustained effort to break down the wall between “politics” and “administration,” a separation that has been central to executive branch operations for over a century. With Trump preparing to occupy the presidency once more, the trend will likely only increase. Presidents and Justices have collaborated to remake the executive branch into an instrument of the President’s personal power and partisan interest. The second Trump term is likely to tell us much more about this partnership. In particular, we will learn what limits—if any—the Court is willing to place on personal rule. Katherine Shaw’s Partisanship Creep shows how these administrative-law problems are of a piece with other developments in constitutional jurisprudence and practice. These developments have given a greater scope to lawful political partisanship in government decision-making. Cases on public corruption, campaign finance, and partisan gerrymandering have loosened legal controls around purely partisan motives in basic public functions, from election administration to transportation infrastructure.

Shaw shows that this trend is a departure from a pre-existing constitutional settlement that restricted the role of partisanship in various ways. This settlement included legislation guaranteeing an independent, expert, apolitical civil service; case law on constitutional protections for government officers; and executive branch practices such as the norm against presidential direction of law enforcement decisions. Finally, the settlement has emerged from congressional impeachments from Justice Samuel Chase to Trump. All of these areas of law and constitutional practice converged on the view that partisan considerations should not play a role in at least certain kinds of government decisions.

Among these elements, Shaw’s discussion of constitutional cases concerning the civil service is particularly novel and instructive. In rejecting a First Amendment challenge to the Hatch Act in United States Civil Service Commission v. National Association of Letter Carriers (1973), the Court described the principle of “merit performance rather than political service” as a “judgment of history.” Proponents of civil-service impartiality will surely appreciate Shaw’s recovery of this resounding endorsement from the high court.

But Shaw’s study reveals that the exact nature of the civil-service settlement is uncertain. In Elrod v. Burns (1976), a plurality of the Court held patronage dismissals of state employees to violate the First and Fourteenth Amendments. Intriguingly, the concurrence from Justices Stewart and Blackmun focused on the narrower question of whether “nonpolicymaking” officials could be removed for partisan reasons. This category of “policy-making” responsibility is precisely the line at which schedule F would withdraw merit protections from civil servants. It is not clear that any “judgment of history” has been rendered on this contested point.

In defining and critiquing the role of partisanship in government decision-making, Shaw is particularly concerned with what she calls “low politics:” struggles for power between political parties, rather than disputes over ideology or principle. Such power struggles threaten basic constitutional principles such as the separation of powers, the rule of law, and good administration. As Shaw puts it, “one of the basic obligations of government is to treat members of the polity as possessing equal worth and dignity; a broad, merit-based selection process for choosing government workers best advances that goal.”

Unpacking the relationship between equality and dignity, on the one hand, and merit, on the other, will be of crucial significance in thinking through the implications of Shaw’s illuminating article. In particular, one might ask whether respect for the dignity of persons requires due care for the social and natural facts that promote their well-being. Respect for their equality might also require attention to those facts that determine whether or not they are able to enjoy equal opportunity or the equal protection of law. Such inquiries may require expertise and may be imperiled by undue political pressure. At the same time, as we bring facts to bear to determine the actionable content of “equality” and “dignity,” we come quite close to decision-making about contested questions of political value. Are these questions we want civil servants to answer? Under what conditions?

Another key question that Shaw’s analysis leaves open for further normative and descriptive study is the relationship between “partisan” and “personal” power. In Trump’s first impeachment, the House of Representatives found that Trump solicited the interference of Ukraine in the Presidential election “for corrupt purposes in pursuit of personal political benefit.” The impeachment managers referred to the “great personal political value” that a Ukrainian investigation would have for Trump.

When it comes to Trump’s style and practice of rule, the “personal” seems to matter more than the “partisan”—a political trait that is even more glaring in light of his recent appointments, which seem to converge around personal loyalty rather than adherence to a policy or party vision. He seems not to be interested in the health of the Republican Party as such, but rather has coopted it for his own purposes. Likewise, the unitary executive theory can be seen as facilitating the President’s personal rule, and his or her control over national politics, more so than it facilitates the rule of the President’s party. If, however, constitutional case law and presidential practice continue to sweep away the civil service system, it is conceivable that the party system, and Congress, could be reinvigorated by the need to staff agencies and the desire to preserve the party’s future from an idiosyncratic, purely personal presidency. Shaw has provided us with the legal materials and normative insights to pose and answer such urgent questions.

Locke(d) in a Vicious Cycle

Oct 18, 2024 Leah LitmanAdd a Comment

The Supreme Court’s recent opinion in Securities and Exchange Commission v. Jarkesy invalidated the SEC’s mechanism for adjudicating fraud claims seeking civil penalties on the ground that the adjudications violated the Seventh Amendment. To explain that conclusion, the Court invoked, among other sources…Baron de Montesquieu (who was quoted by Alexander Hamilton after all!) and William Blackstone. Debates about constitutional interpretation are often peppered with references to a few Enlightenment thinkers, such as Montesquieu, Blackstone, and John Locke. Indeed, even nonconstitutional interpretation debates are as well; in the Court’s recent decision overturning Chevron deference, Loper Bright Enterprises v. Raimondo, Justice Gorsuch worked in some references to Blackstone in his concurrence.

It’s this phenomenon (at least its constitutional variety) that Christopher Havasy, Joshua Macey, & Brian Richardson seek to inter in Against Political Theory in Constitutional Interpretation. The article first documents the prevalence of invoking thinkers such as Montesquieu, Locke, Blackstone, and Emmerich de Vattel in constitutional debates. The justifications for doing so are often a bit underspecified, but the authors focus on a particular type of Enlightenment-gesturing: the citation of “Enlightenment political theorists as authoritative guides to U.S. constitutional meaning,” or as having “probative value to discerning Founding-era constitutional meaning.” The framers and ratifiers cited and invoked these thinkers in constitutional debates, this argument goes. So if they thought Enlightenment political theory relevant to constitutional interpretation, then we should treat the Enlightenment political theory the Framers invoked as providing authoritative insight into their interpretations of the Constitution.

The authors show why that oh-so-simple rationale cannot justify the practices of the Enlightenment-gesturers. For one thing, as the authors explain, constitutional decisionmakers sometimes try to import wholesale the views of a theorist who was invoked for one idea or another by the drafters and ratifiers—even though the drafters and ratifiers may never have gestured toward other parts or components of the thinker’s theory. Moreover, they show, it would be virtually impossible to conclude that the Constitution adopted the views of all of these thinkers, since their views on political theory and the range of ideal government structures varied, and were sometimes at odds with one another. (As the article notes, Montesquieu “is sometimes thought to have embraced a strict separation of powers,” whereas Vattel “thought it possible for a branch to vest another with ‘full and absolute authority’ so long as the people acquiesced.”) But still, the authors have more. The Constitution, they explain, departs in important respects from the visions and theories of all the Enlightenment political theorists whose views are supposedly embodied in the Constitution.

This was an article that desperately needed to be written. And it is written in razor-sharp ways that methodically expose the many flaws with current interpretive practices that loosely invoke or gesture toward Enlightenment political thought that may or may not have some basis in constitutional law. It concludes with the arresting claim that “that Enlightenment political theory should…be treated no differently than any other text: it possesses no inherent authority apart from its capacity to persuade.” Indeed, the authors’ case against using Enlightenment political theory as probative evidence of the meaning of the Constitution is so persuasive it led me to wonder whether the interpretive practices they document reflect a different kind of practice—one in which decisionmakers sample from the Enlightenment political theory they find persuasive because it matches their own political theory and their own vision for ideal government.

Whatever we may think of the spectacle of judges acting as political theorists, the authors don’t insist that they can never cite or discuss the Founding-era Enlightenment theorists as theorists who might influence today’s interpreters. The Enlightenment writers and their ideas “can provide general background evidence” of the contemporary understanding of particular constitutional “concept[s] or term[s].” But it’s just evidence. And judges citing these thinkers should at least provide “specific evidence of the use of Enlightenment political thought” by “the victors of American constitutional politics at the Founding,” as well as “persuasive evidence of consensus about what the Framers took a specific theorist (or group of theorists) to be saying.” In all, judges should exercise “historical caution and interpretive humility” in invoking the Enlightenment theorists. Of course, all of this—both the provision of serious evidence and the demonstration of caution and humility—is vanishingly rare when Enlightenment-gesturers start throwing around Vattel and Montesquieu.

Despite the power of the arguments in the article, I suspect constitutional decisionmakers are not going to relent in their enthusiasm for loosely sampling inconsistent Enlightenment political theory that is, in important respects, inconsistent with the constitutional design it supposedly helps explain, while insisting that they are providing authoritative evidence of constitutional meaning. Nonetheless, it is clear that Havasy, Macey, and Richardson have the better of the argument. This hazy political theory has little place in constitutional decisionmaking.