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Constitutional Scholactivism, Foreign and Domestic

Aug 2, 2023 Paul Horwitz3 comments

At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may believe the academy is increasingly welcoming of such approaches. They certainly know that in the United States, scholars of this stripe increasingly are targets for legislative interference. But they won’t puzzle over the word itself. That suggests a question worth examining. This is exactly what Oxford’s Tarunabh Khaitan has done, in an excellent article, along with a subsequent response to critics.

Although scholactivism is celebrated by some, Khaitan voices reasons for concern. His take is striking. It’s not the standard argument for “value neutrality in scholarship or pedagogy.” It has no specific political valence. And although it assumes a particular “role morality” for scholars centered on a devotion to “truth” and “knowledge,” it acknowledges that “every human activity—including scholarship—is permeated by power.” Neither, however, does Khaitan proceed by drawing a line between “good” and “bad” scholarship based on its outputs. Rather, he focuses on a motive-based account of scholactivism, and suggests that even scholactivism’s supporters should reject it for “instrumental reasons.”

Of course there are things to disagree with in the article. But I applaud the fact of the article, and its calm and scholarly critical approach to scholactivism. The fact that his article occasioned a good deal of pushback is to its credit. The fact that none of those reactions have appeared in American law journals, on the other hand, is both cause for concern and a sign of defects in the machinery of American legal scholarship. Those defects suggest that Khaitan’s globally oriented critique is especially relevant for American constitutional scholarship.

Khaitan defines scholactivism as scholarship “distinguished by the existence of a motivation to directly pursue specific material outcomes.” Scholarship, we like to tell ourselves, can ultimately change the world. Scholactivism goes a step further. It has the central and immediate purpose of changing a particular thing in a particular way to achieve a specified end. On this view, an article on gun rights, undertaken with no goal other than knowledge and truth, which concludes that the Second Amendment protects the open carrying of firearms is not scholactivism; an article written with the intent to convince a particular legislature or court to craft a statutory or constitutional open carry right is. His response emphasizes the difference between the scholactivist attempt to achieve “direct, proximate, material [ ] impact through one’s scholarship,” and the scholarly motivation to seek “merely discursive” impact.

Khaitan uses two hypothetical figures to illustrate different problems with scholactivism. The “radical” scholactivist is “irrefutably committed to confirming” a position regardless of the research, or pushes an argument the scholar thinks is unsound but likely to convince a judge. His “activist motivation overrides [his] academic commitment to truth and knowledge.” For Khaitan, such a figure is just a strawman. I’m not so sure. I recall a workshop presenter explaining without embarrassment that his article did not fully represent his own views. Rather, he had chosen the argument he thought was most likely to convince Justice Kennedy to cast a particular vote in a specific case.

The “moderate” scholactivist is also motivated by the direct pursuit of material outcomes, but remains committed to “prioritizing the twin objectives of truth-telling and knowledge dissemination.” She presents a “harder case.” Here, Khaitan turns to instrumental concerns.

At the individual level, even moderate scholactivism “usually requires quick responses to concrete problems in particular places.” Scholarship, by contrast, requires “time for reading, thinking, discussing, workshopping, getting peer reviewed, revising, and so on.” The time crunch lowers the guardrails that prevent error. The focus on a specific narrow result risks overlooking “the potential unintended consequences of their normative claims beyond the temporally and spatially proximate issue at hand.” The attachment to a particular goal erodes the scholar’s fundamental “commitment to skepticism and revisability.” More subtly, the scholactivist’s motives makes it harder to admit mistakes, because she is likely to see error as moral, not just intellectual. Finally, since scholactivists, like everyone else, are subject to the lures of fame, “a scholactivist who is celebrated for her causal rule in achieving direct material outcomes rather than her strict truth-telling” will be tempted to move toward radical scholactivism.

Some of these risks apply systemically as well. Khaitan’s vision of scholarship is rooted in a professional role morality, which requires a community devoted to scholarly norms and values. Without such communal norms, it’s harder for us to do things like publicly admit error. Scholactivism “renders a vocational culture premised on robust public criticism by peers,” in which one is expected to accept criticism and confess error when needed, “inherently fragile.” One might add that if scholactivism leads scholars to see their positions as fundamentally moral, not intellectual, we will not only see less confession of error by authors, but also a weakening in the culture of robust criticism by scholarly readers—especially in the absence of political diversity. Scholars won’t want to be accused of benighted views because they dared voice intellectual objections.

The presence of too many scholactivists, even moderate ones, also poses “a systemic risk for the overall health of the academy.” Such a system will lead scholars away from a fundamental attachment to truth-seeking, provide fewer scholarly role models for the next generation, and—as we have arguably seen in the U.S.—erode public trust in scholars and scholarship. Khaitan concludes that “an academy that incentivizes the pursuit of direct material outcomes through one’s scholarship is less likely to lead to a better world than one that self-consciously tries to maintain direct activism as a potential object of a scholar’s inquiry rather than her additional role.”

Khaitan’s article is sober and careful, and notes the many options available to a scholar concerned with justice. It’s also bracing stuff. His response notes that the initial article “unwittingly stepped on a landmine in the culture wars afflicting the academy, and the with-us-or-against-us demands in such tribal culture wars prey upon nuance and the complexity of one’s internal life.” It would dishonor what he actually wrote to praise it for striking a blow in the culture wars—even a blow for truth-seeking. But one side effect of the academic culture wars is that rather than fierce disagreement, there’s sometimes none at all. Right and left talk about each other, but not to each other. And a variety of factors leave scholars on the left—who, if the term is read loosely, surely constitute the majority of American law professors—reluctant to criticize their ideological allies. A progressive empiricist might think, for example, that scholarship based on “lived experience,” not robust statistical data, is problematic. But she’s unlikely to write a piece saying so.

That may be a prudent decision. But it deprives us of the light and heat of the intramural exchanges we used to see. Khaitan shares the substantive views of some progressive scholactivists, and notes in his reply that there is also plenty of politically conservative scholactivism. Yet he is willing to question scholactivism as such, regardless of its political valence, because that is just what a scholar does. The very existence of the piece is thus jot-worthy.

Much of what Khaitan says is widely applicable. But his article deserves notice in this section, and not just because he’s a constitutional law scholar. A fundamental premise of both pieces is that “while the role of constitutional scholars is unavoidably performative to some extent, the two objectives of truth-seeking and knowledge-dissemination apply to them as much as other scholars.” But the fuzziness of the field, its constant interweaving with moral claims—and, perhaps, the professional and financial incentives that might lead an activism-minded individual to choose a well-paid academic perch over a less comfortable life doing constitutional activism directly—all make our field especially fertile ground for scholactivism, and thus demand a critical evaluation of that approach.

Khaitan’s piece is particularly resonant for American scholars, perhaps in ways he didn’t anticipate. He writes that the nature of activism is “in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Those tensions “put even a moderate scholactivist at risk of failure as a scholar.” The need to publish in a timely fashion to achieve specified goals may lead the scholactivist to, inter alia, “submit the paper to a non-peer-reviewed student-run law review known for its quick publishing decisions and for preferring practice-oriented novel claims over academic rigor.”

For Khaitan, these are perilous moves away from the rigor and role-morality of a true scholar. American legal scholars just call it Tuesday. Seeing these practices through the eye of a non-Stateside scholar reminds us just how few of the ordinary guardrails for serious scholarship are in place in the American legal academy. That strengthens Khaitan’s argument in the United States.

Some responses to Khaitan argue that if a scholactivist takes the short-cuts he worries about, the problem will cure itself, because such work either won’t be published or will be ignored. But the nature of the American legal academic enterprise—the vast number of journals, the reliance on student editors and absence of thorough peer review, the relative lack of political diversity and the two-solitudes relationship between contending sides, the reluctance to criticize the methodologies of one’s friends and allies—exacerbates the risks and weakens the safeguards that both Khaitan and his critics acknowledge. To the usual structural failings, we can add that the current crop of American student law review editors has a marked enthusiasm for scholactivism. They are thus likely to publish more of it, without being able to properly evaluate it (or any other scholarship) for rigor and integrity—and less likely to publish the few critiques of this approach that might emerge from the rather timid U.S. legal academy.

For ardent scholactivists, this might be a plus, not a minus. (They’d be wrong, because these features also weaken the likelihood that any given work will be taken seriously, by courts or anyone else.) But Khaitan’s audience surely includes those who might support moderate scholactivism but are still willing to consider its costs and benefits. For that audience, a look at the actual guardrails for quality within American legal scholarship, in constitutional law and elsewhere—or, rather, the lack of guardrails—will make Khaitan’s arguments much more persuasive.

Some readers may question Khaitan’s framing of scholactivism as “internal and motivational, rather than external and judgmental.” An examination of “an internal dilemma concerning scholarly ethics” is still a worthwhile project. It seems valid to me, moreover, to argue that even a purely internal departure from a scholarly role morality that views truth-seeking and knowledge-dissemination as the “constitutive” traits of a scholar can “be risky (for both truth and justice),” if that sentiment is “widespread and celebrated within an academy.” If he is right that even moderate scholactivism may lead to a rise in the kinds of error that all scholars should worry about, such as failing to engage contrary facts and arguments, then even a motive-centered account that refuses to “give a test for what counts as ‘good’ scholarship” may be beneficial. But I wondered nonetheless whether Khaitan could have said more about scholarly outputs as well as motivations.

More broadly, one might ask whether the systemic risks he warns about require an effort to identify the external indicia of scholactivist work, and a corresponding norm against publishing it. Maybe this is unnecessary, because the indicia of bad scholactivism are the same as those of bad scholarship tout court. But it is possible that we would need to take further steps in the U.S., given our unusual approach to the publishing of legal scholarship. Khaitan argues that 1) scholactivism involves internal motivations that are hard to discern and 2) risks harming the quality of legal scholarship. That suggests an urgent need to pivot away from student editors, who are least qualified to judge both the motives and the quality of scholarship, and toward scholar-edited, peer-reviewed journals. That’s especially true if student editors are both too inexperienced to have assimilated scholarly norms and role morality, and too inclined to favor scholactivism for their own reasons.

Of course, there are compelling reasons to do this regardless of the motives of either scholars or students. The American way of legal academic publishing didn’t suddenly become an embarrassment (which it is) because of the rise of scholactivism. Scholactivism’s rise merely highlights the flaws of the American legal academy’s scholarship structure, reminding us how pitiful our guardrails are.

Regardless, Khaitan has made a valuable contribution, in both his principal piece and his reply, to our thinking about the reasons for and results of legal scholarship. It should be of particular interest to constitutional scholars, and doubly so for American legal scholars. If nothing else, it should encourage and embolden American legal scholars to name and examine the phenomenon of scholactivism—one we are all well aware of, with or without the label—in our own journals. If that doesn’t happen, it will be strong evidence that something has gone wrong with American legal scholars, student editors—or both.

Aren’t We Special?: Article III’s Institutional Design

Jun 27, 2023 Lyrissa B. LidskyAdd a Comment

In Macro-Judging and Article III Exceptionalism, Professor Merritt E. McAlister spotlights largely overlooked aspects of the operation of federal courts that work against the interests of litigants and society. Not only does the article expose the unintended consequences of institutional design choices, but it is written in an engaging and accessible style that more of us should emulate.

Broadly speaking, Professor McAlister analyzes and critiques the reshaping of the operation of the federal courts over the last fifty years through decisions concerning judicial workflow and workload. This reshaping is the product of what she calls “macro-judging,” i.e., “macro-level” decisions made or influenced by Article III judges concerning who decides which cases and how they decide them. Although “macro-judging” decisions over the last fifty years may have enhanced judicial efficiency, the aggregate effect has been to prioritize “the view that Article III courts are ‘special’ places, with elite judges whose work should focus on only the most important federal cases.” In other words, the effect of macro-judging decisions by the Article III judiciary has been to “entrench [ ] . . . Article III exceptionalism.” This article persuasively illustrates that Article III exceptionalism has had negative consequences for the public interest, and it lights a path toward reform.

In framing the problem of Article III exceptionalism, Professor McAlister explains that the reorganization of the operations of the federal judiciary was largely a response to “competing crises,” namely, “a vast rise in the number of small, seemingly pedestrian federal cases and an increase in both the number and complexity of ‘big’ cases.” Instead of lobbying to expand their ranks, Article III judges pushed for addressing the crises through means that preserved and even enhanced their own prestige.

At the trial court level, federal courts shunted their more routine or boring work to less prestigious judicial officers with far less job protection and lower pay. These Article I “adjuncts” to Article III judges include the federal magistrate judges, bankruptcy judges, and administrative law judges who now handle the vast bulk of the federal judicial workload on the civil side. Without them, the federal judicial system would cease to function, but their “lesser” status serves to emphasize the exalted status of their Article III brethren.

Article III judges also used “case management” tactics to exalt their status by keeping the most complex and interesting cases for themselves. Professor McAlister shows how the procedural device that allows a judicial panel to transfer and consolidate federal cases with similar facts to a single district court judges confers “elite status” on the judge to whom the “multidistrict litigation” is transferred. This procedure allows a single judge to resolve thousands of cases in one fell swoop, and these cases sometimes involve the most important, high-profile litigation in the country. The result is that “district court judges over the last fifty years have acted collectively to consolidate their authority, delegate their least sophisticated or valued work to others, and attract higher-profile, more elite civil work for themselves.”

At the federal appeals court level, judges also have taken measures to dispense quickly with cases that appear to be routine, to save their attention and energy for the most interesting and high-profile cases. Under its “triage” system, federal appeals courts do not schedule for oral argument cases that are preliminarily deemed easy; instead, judges resolve these cases without written decision, often by rubber-stamping the recommendations of staff attorneys. As Professor McAlister demonstrates, the effect is to funnel judicial energies toward “important” cases, while shifting their energies away from “unimportant” ones, which disproportionately comprise those brought by unrepresented or other marginalized litigants.

She also traces these same trends through macro-judging decisions reshaping Supreme Court operations. In 1988, the Supreme Court succeeded in convincing Congress to eliminate its mandatory jurisdiction, allowing it to completely control its caseload. The effect? A very dramatic reduction in the number of “merits” cases decided by the Court, providing Justices “more time to devote to their merits docket (including writing longer decisions or more separate decisions) and to engage in other pursuits (like seeking public recognition, getting book advances, and doing high-profile speaking gigs in far-flung locales).”

Meanwhile, and perhaps relatedly, the Court has refused to adopt ethics rules while such matters “are beyond congressional purview.” At the same time, a “judicial cult of personality” has taken hold: with their increased leisure time to write books, give speeches, and draft separate opinions, Justices seem to “have more time for pursuits that exalt themselves.” This affects judicial modesty and restraint, and, as Professor McAlister provocatively argues, may ultimately be detrimental to the public interest.

One of the strongest facets of this remarkably good article is its exploration of the dark side of the intensification of the “special” status of Article III courts. “Macro-judging” (again, the many decisions about how the federal courts operate) runs the risk of tainting “micro-judging,” the individual judicial decisions resolving cases—decisions that change the lives of the litigants and definitively interpret society’s operating rules. Macro-judging decisions that aggrandize judicial power and prestige will often work to the detriment of the least powerful in society: fewer, if any, judicial resources will be dedicated to hearing their cases, and less authoritative rulings will result in matters concerning them. As Professor McAlister points out, this is “reason enough for more aggressive congressional oversight and lawmaking in these areas.”

Professor McAlister’s proposals to counteract Article III exceptionalism are sound. First, she urges reinvigoration of Congress’s operational oversight of the federal courts in ways that would enhance the rule of law and improve the quality of justice for all. Congress must “resist judicial capture” and “act with greater sensitivity to the possibility of judicial aggrandizement—including, especially, by inviting dissenting voices and different constituencies into what formal processes exist.” Congress should be especially skeptical of judicial objections to court expansion, which often are a product of “entrenched (and rampant) elitism.” Building on the work of other scholars, she also urges Congress to consider requiring the Supreme Court to issue, without dissents or concurrences, unsigned per curiam decisions in every case. Or Congress might limit the issuance of nationwide injunctions, expand the federal judiciary, or take other measures to decrease the federal courts’ autonomy over their workload. All these options represent possible avenues for reform worthy of the further consideration this article ought to inspire.

Ultimately, Professor McAlister issues an optimistic call to action rooted in a desire to improve the quality of justice, and not merely the judiciary’s self-perception. She writes:

There’s every reason to think reforms that disturb the exceptionalism narrative of Article III might return the courts to a more passive, minimalist, or public-service orientation. . . .

Design features can encourage or discourage boldness and aggrandizement; they can elevate or diminish the public-service orientation of the federal courts; they, ultimately, have the power to define what is important to our judicial institutions. My point is this: it’s time for the people—acting through our elected representatives— to set our own judicial priorities for the Article III courts. Greater regulation of macro-judging may be one way to re-align those priorities to privilege the public-service mission of the judiciary—that is, a mission that heeds the priorities set by a democratic process—over the aggrandizement of Article III.

As I hope this review illustrates, her article makes a significant contribution to the literature on federal courts by identifying the tremendous and often overlooked costs of Article III exceptionalism. Further, it stands as a useful and timely corrective to a tendency within the legal academy and profession and sometimes the society at large “to romanticize or canonize the federal judiciary.” I hope the article’s sensible proposals for reform will receive the attention they deserve—and not merely within legal academia.

It is a testament to the thought-provoking quality of the article that it made me consider whether other recent Supreme Court practices I have been studying recently, such as anticipatory overruling or shadow docket signaling, might be operational decisions contributing to Article III exceptionalism. The exclusion of cameras in federal courts is another phenomenon suggesting our federal judges are “too special” for the tawdry scrutiny of the masses. (The rhetoric federal judges have used to reject cameras in the courtroom amply supports Professor McAlister’s thesis about judicial self-interest and self-perception.) Her article also made me wonder how the increased difficulty today of obtaining Senate confirmation affects judicial notions of “specialness” or otherwise affects subsequent judicial behavior. All this is to say that this article is generative. It is just the beginning of the tremendous contribution Professor McAlister’s work can make to our understanding, and perhaps reform, of the operation of the federal judiciary.

Bringing Real Harm Back to Canadian Free Speech Law

May 26, 2023 Leonid SirotaAdd a Comment

Among the best-known maxims of freedom of speech in the United States is Justice Holmes’s “freedom for the thought that we hate.” It would not be an apt description of the law of free expression in Canada. As Camden Hutchison explains in Freedom of Expression: Values and Harms, the Supreme Court of Canada (SCC) ranks speech according to subjective judgments of value, and woe to those whose thought it does not think much of. Hutchison makes a compelling case for why this is the wrong approach to adjudicating freedom of expression claims, and an intriguing suggestion for what may replace it.

As Hutchison points out, and as I have noted elsewhere, things didn’t start out this way. At first, the SCC held that any law whose purpose was to restrict expression amounted to a limitation of the freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, which could only be upheld under s. 1 of the Charter if “demonstrably justified in a free and democratic society.” Only when the impugned law affected expression incidentally would the values associated with this right be relevant: political participation, the search for truth, and individual self-fulfillment. If these were impaired, a potential violation of s. 2(b) might still be on the cards, subject to justification under s. 1.

But the tail quickly came to wag the dog. When it was asked to consider the constitutionality of prohibitions on hate speech in R v Keegstra, the SCC chose to assess the expression at issue with reference to these same values. While it held that hate speech was prima facie protected expression, hate speech’s failure in the SCC’s eyes to do much for political participation, the search for truth, or even self-fulfillment meant that bans were justified.

This was so not only for the provisions of Canada’s Criminal Code, which provide a number of important safeguards and defenses, notably truth, but also for prohibitions in anti-discrimination statutes, to which even truth is no defense. As Hutchison summarizes Whatcott v Saskatchewan (Human Rights Commission), the SCC’s most recent decision in this area, “certain forms of expression advance free expression values, while other forms of expression serve to undermine those values. If expression is found to undermine free expression values, then the government will have freer scope to legally restrict it.”

Hutchison’s careful reading of the SCC’s hate speech jurisprudence exposes its incoherence, subjectivity, and indeed failure to protect the values it invokes as constitutive of the freedom of expression. Instead of protecting the search for truth by individuals, however misguided this may sometimes prove to be, this case law rests on the conceit that the SCC has access to the truth, and that little is lost when competing views are prevented from being aired. Since the SCC has upheld hate speech bans that make no exception for true statements, its commitment to the value of truth seems rhetorical at best. The value of self-fulfillment, meanwhile, is turned from a justification for free expression into one for censorship in the name supporting the collective well-being of the groups victimized by hate speech. Last but not least, democracy is made into a synonym for tolerance―which, as Hutchison rightly notes, it isn’t always in Canada, any more than in other places―and, thus, into yet another justification for silencing those who will not get with the program.

Hutchison’s focus is on the SCC’s hate speech cases. However, his charge that the SCC’s invocation of the values that support freedom of expression is no more than a rhetorical smokescreen for restricting expressive freedomis borne out by the SCC’s treatment of other issues. For example, it has upheld the use of compelled speech in the face of a dissenting judge’s protestation that ordering a person to make “statements of facts in which, rightly or wrongly, he may not believe, or which he may find inaccurate, misleading or false” amounts to ordering him “to tell a lie.” So much for the search for truth.

Democratic participation fares little better. As I have pointed out elsewhere, “no debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.” Thus, the SCC has upheld restrictions on independent campaign expenditures so draconian that they prevented the publication of an ad in a national newspaper, back when ads in newspapers were still a thing. This was done, needless to say, in the name of enhancing the democratic process.

To address the flaws he identifies in the SCC’s freedom of expression jurisprudence, Hutchison proposes a new approach to the proportionality analysis that, through s. 1, governs the justification of limitations on Charter rights. This approach would “focus on the impairment of actual expression rather than underlying values,” which can be “easily employed to justify the suppression of disfavoured ideas.”

At the balancing stage of the proportionality analysis, Hutchison argues, the limitation of the freedom of expression should be set off not against the government’s objectives, as is now the case, but “the individual or social harms prevented by the restriction.” The harms, moreover, must be more than speculative—another distinction with current law, which gives considerable leeway to the government’s “reasonable apprehensions” of harms that might be produced by unregulated expression.

The language of harm can be, and in recent years has been, deployed expansively to justify all manner of restrictions on speech. Hutchison proposes a cabined definition to prevent the notion of harm from becoming a stand-in for the “values” he urges the SCC to discard, as well as to promote consistent and predictable adjudication in freedom of expression cases. Drawing on other cases that have considered the notion of harm, he suggests that limitations on the freedom of expression can only be justified where there is “tangible” “evidence that the targeted expression is likely to cause either (1) harm to individuals whose autonomy or liberty may be injured or (2) harm to society by predisposing individuals to antisocial conduct.” Harms that have not yet eventuated need to be discounted by the likelihood of their doing so.

This part of Hutchison’s argument is, I am afraid, vulnerable to criticism. I may trust him with applying the harm test as he frames it ― though, as will presently be apparent, I will not always be happy with the outcomes ― but I do not think I would trust the SCC. Hutchison’s test is an improvement on the Court’s current free-flowing invocation of “values,” but I doubt that whether an individual’s autonomy is injured by speech, let alone whether she will be predisposed to anti-social conduct, are matters that can be objectively resolved on the basis of judicially cognizable evidence. The prospect of manipulation by a willful court—which after all is the reason why Hutchison’s article is necessary and important—still lurks. Even apart from that, these questions are surely subject to reasonable disagreement.

Thus, Hutchison argues that Canada’s criminal hate speech statute would be constitutional on his approach. This is partly because of the various protections, including the defense of truth, available to the accused. Partly, though, this is because he believes that his harm requirement was met on the facts of Keegstra. There, a teacher’s antisemitic rants to his students “targeted a minority group that, within living memory, was subject to one of the deadliest extermination campaigns in human history” and “by denying the reality of the Holocaust itself … might increase the risk of similar tragedies occurring in the future.” One might wonder what tangible evidence there would be for such pessimism. One might also argue, or at any rate I have argued, that it is not hate speech, but the more polished and insidious insinuations of politicians that truly imperil minorities.

Nonetheless, Hutchison’s arguments have the merit of calling attention to the subjectivity of the SCC’s current approach to the justification of limitation on the freedom of expression, and indeed of other rights. His call for a more objective approach is no less important ― perhaps all the more so ― even if there is reason to doubt that his own proposal is objective enough. So is the focus on the costs and benefits to actual people rather than to abstract values. And so too is Hutchison’s insistence on real evidence to support the government’s claim that it has good reason to limit constitutional rights. The Charter itself, after all, only condones limitations “demonstrably justified in a free and democratic society.”

In short, Hutchison has done the Canadian legal community, and indeed the Canadian public, a considerable service. He has shown that the SCC’s long-dominant approach to freedom of expression cases is only a pretense of a defense of this right. In truth, freedom of expression in Canada is a privilege for those whom the SCC considers sufficiently inoffensive to the values of which some its judges have openly proclaimed themselves the ultimate guardians. There is a lesson there, too, for those in the United States and elsewhere who may look to Canada for what they may deem a more balanced approach to reconciling the imperative of the freedom of speech with the reality that speech can, indeed, deserve our hatred. The Canadian model is not a reconciliation, but a usurpation. Be careful what you wish for.

I would conclude with the following observation. Hutchison is not primarily a constitutional lawyer; he is a scholar of corporate law. His ability to challenge the entire framework of freedom of expression law built up by the SCC over more than 30 years ― something that, as Paul Horwitz has noted elsewhere, seldom happens in the cozy world of Canadian public law ― is above all proof of his curiosity and willingness to pursue interesting questions wherever they lead. But it is also testament to the value to scholarship and to legal inquiry more broadly of outsiders, in the broadest possible sense of the word. People who dare cross disciplinary boundaries or, in other cases, jurisdictional, or indeed ideological ones, can teach us more than those who never leave their geographical and metaphorical home.

The Problem is the Court, Not the Constitution

Apr 27, 2023 Jonathan FeingoldAdd a Comment

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.

Of course, “constitutional law” is not some independent and self-executing thing. It is little more than what five Supreme Court Justices say the Constitution means. We might, accordingly, reframe the opening question and instead ask: Has the Supreme Court been faithful to the Constitution? Hasbrouck offers a bold response. Since at least the fall of the Civil War, the Supreme Court’s race jurisprudence has been defined by constitutional infidelity. Hasbrouck views the Constitution as an antiracist document that holds the “tools of abolition democracy.” For the antiracists and abolitionists in the room, Hasbrouck has a message: The Constitution is on our side. Do not misread constitutional law for the Constitution. And to reclaim constitutional law, we must first reclaim the Constitution.

I want Hasbrouck to be right. I want a Constitution that distinguishes Jim Crow from affirmative action; grandfather clauses from race-neutral alternatives; racism from antiracism. I want to believe. But the story Hasbrouck tells would indict 150 years of constitutional jurisprudence. Hasbrouck is prepared. To put it in social-media vernacular, he came armed with receipts.

Through a kaleidoscopic highlight reel, Hasbrouck captains a journey through white supremacy in America. But he cautions that the Constitution is not to blame—at least not our Constitution. In Hasbrouck’s words, one hears echoes of the late Justice Thurgood Marshall, who on our nation’s 200^th birthday refused to celebrate the Constitution of our Founders. “While the Union survived the Civil War,” Marshall underscored, “the Constitution did not.” Our Founders’ Constitution died with the Confederacy. Our Constitution rose in its aftermath.

To understand our Constitution, Hasbrouck uplifts “oft-ignored original public meanings of the Reconstruction Amendments.” This “originalist” turn builds on scholarship that documents how the Reconstruction Congress used and endorsed race-conscious tools to build a new America. Specifically, Hasbrouck features the arguments of antebellum abolitionists and the Reconstruction Amendment’s congressional champions. He also centers an all-too-frequently overlooked constituency: Black Americans. Hasbrouck explores how contemporary Black communities viewed the broader project of Reconstruction—and what this says about the Constitution itself. Black Americans saw the Reconstruction Amendments as integral to a racial project to transform and remake America’s social, economic, and political orders. Taken together, these diverse historical sources of original public meaning reveal a document infused with, and animated by, antiracist and abolitionist commitments.

To complement this history, Hasbrouck interrogates the origins of constitutional colorblindness, a judicial philosophy often deployed to defuse antidiscrimination law’s liberatory promise and potential. Proponents of colorblindness trace the theory to Justice Harlan’s Plessy dissent. Writing for himself in one of the Court’s most notorious cases, Harlan proclaimed that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The ritual of invoking Harlan’s words holds a certain logic. As with right-wing entities that appropriate civil rights icons like Martin Luther King and Brown v. Board of Education, this rhetorical move shrouds racially regressive projects under the veil of equality itself. Hasbrouck pulls back the veil through a simple yet uncommon tactic: he places Harlan’s language in context. As Hasbrouck explains, Harlan was no abolitionist interested in realizing the promise of multiracial democracy. To the contrary, Harlan harbored white supremacist views and believed de jure segregation was unnecessary to uphold America’s racial hierarchy. Harlan’s words speak for themself: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

The Antiracist Constitution leads to a liberating realization. Those on the front lines fighting for an antiracist and abolitionist America enjoy more than moral authority. They also enjoy constitutional authority. Constitutional law continues to impede racial justice in America. But the problem is not the Constitution. The problem is a Supreme Court whose hostility to civil rights comes in spite of, not because of, the Constitution. If such a claim appears bold, one reason is that constitutional fidelity has long been the exception to the rule—the outlier to a constitutional jurisprudence that privileges the status quo over constitutional command.

Against this backdrop, Hasbrouck invites us to reclaim our Constitution. This entails more than locating antiracist and abolitionist politics within the Constitution itself. It also requires recuperating color-consciousness as constitutionally compelled, not just constitutionally permitted. It also requires challenging colorblindness as not simply anti-egalitarian, but also anti-Constitution. One might say Hasbrouck calls on us to shift from racial justice defense to racial justice offense. The Constitution has our back. But first, we must believe.

Former President Trump: Inflammatory Speaker or Criminal

Mar 30, 2023 Mark KendeAdd a Comment

There can be no doubt that January 6, 2021, was one of the worst days in United States history. Outgoing President Donald Trump held a rally with supporters near the Capitol, urged them to keep “fighting” (the adverse election results and more), and sent them to illegally storm the barriers of the U.S. Congress. A Trump supporter lost her life, and numerous Capitol police and security officials were injured trying to defend the site. Many Trump supporters carried weapons but, miraculously, nobody in Congress was injured. Among the attackers were members of right wing extremist groups like the Proud Boys, who Trump encouraged.

One of the key questions in this tragic episode is whether the President himself committed a crime by engaging in inflammatory speech. The January 6 Congressional Committee has urged the U.S. Department of Justice to bring charges against Trump. But one legal defense that President Trump will employ is that the U.S. Constitution’s First Amendment protects his speech. Law professors Alan Z. Rozenshtein and Jed Shugerman answer the question of whether this defense should prevail in their impressive forthcoming article, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.

The article focuses principally on whether the Supreme Court’s famous per curiam decision in Brandenburg v. Ohio protected his speech. In Brandenburg, the Court ruled unconstitutional an Ohio Criminal Syndicalism statute that was being used to prosecute Ku Klux Klan members. The KKK members were verbally advocating disobedience of the law and various racist views. The Court adopted a multi-part test for when a prosecution against inciting speech could be allowed under the First Amendment and said the test had not been satisfied. The test required that a speaker deliberately advocate illegal conduct, and that there be a likelihood of imminent lawlessness taking place. The Court in Brandenburg said mere advocacy of illegality, as opposed to incitement, was not enough. And there was certainly no imminent danger.

Brandenburg is still good law, and there have been cases where the Court seems to have given a very pro-speech interpretation of the test. But it is a very short opinion on a vital topic. It is also not clear how the case applies in certain contexts, like the Internet. Trump’s January 6 speech was ambiguous in that parts of the speech urged fighting, while other parts were more toned down. Yet most people agree that President Trump’s speech encouraged and supported the rioters. Nonetheless, a strong formalistic reading of Brandenburg might protect him. To put it another way, the case’s meaning is not perfectly clear, and the January 6 context is especially difficult.

The authors note these problems, as well as earlier inflammatory incidents in which Trump was involved. The article’s authors argue that “The key lesson from these cases is that ’mere abstract teaching‘ is different than ’preparing a group for violent action.’” The authors use other incitement-type cases to gain a perspective on the problem, such as NAACP v. Claiborne Hardware Co. (NAACP organizer essentially threatens members who are not sufficiently committed to protest effectively).

The authors also reference the one major decision dealing with similar issues regarding President Trump’s actions on January 6, Thompson v. Trump. There, D.C. District Court Judge Amit Mehta conceded that Trump did not “explicitly encourage the imminent of use of violence,” but held that Trump’s lengthy effort to discredit the election could be viewed as “encouraging the attack on the Capitol.” Perhaps inspired by this opinion, the authors argue that the crucial incitement answer is found in the overall context of the situation, which included actions even before the worst statements. Based on this framework, the authors make a strong case that Trump took actions that convert his statements to unprotected incitement.

For example, the authors show that Trump urged security officials to remove the “magnetometers” that were keeping the January 6 crowd farther away from him and the Capitol. Moreover, Trump made a statement that ratified the rioters’ view that Vice-President Pence deserved to be killed for his inaction. And Trump apparently wrestled with his Secret Service driver, in an effort to get the car to the Capitol where the riot broke out. The authors argue that these acts, along with Trump’s earlier fervent rejections of the election results, “represent concrete steps to incite, insurrect, and obstruct.” What makes the article even more interesting is the analogy it draws to incidents involving the era of Aaron Burr. Trump’s actions removed any ambiguity from the intent behind his speech and pushed it into the criminal category.

The one problem with the article—one that shows the difficulty of the issue—is that some of the “actions” that it refers to, as distinct from speech, are actually expression. But overall, the article is helpful in clarifying the incitement principles regarding President Trump’s speech and actions on January 6, 2021.

Belonging, Community and Allegiance: Frederick Douglass’s Theory of Citizenship

Feb 27, 2023 Rebecca ZietlowAdd a Comment

Frederick Douglass was a monumental presence in the antebellum era, a leader in the antislavery movement, and an essential figure in the Reconstruction Era. Until now, however, legal scholars have largely neglected to plumb the depth and breadth of his philosophical works. In Douglass’s Constitutional Citizenship, Bradley Rebeiro presents Douglass as not only a skilled political strategist, but also a sophisticated philosopher who articulated a detailed theory about the link between citizenship and fundamental rights.

According to Rebeiro, Douglass adopted a broad vision of citizenship rights to support his argument that Black people were part of “the People” protected by the United States Constitution. Rebeiro explains, “The Constitution’s Preamble set out a citizenship worthy of one’s allegiance and devotion, if only the Union were to embrace fully the promise of its own aspirations as articulated in the Declaration of Independence and reimagined in the Gettysburg address.” In Dred Scott v. Sandford, the United States Supreme Court reached the opposite conclusion. By contrast, Douglass’ writings provided a blueprint for the full emancipation of enslaved people. It was this emancipatory project—one that entailed not only the end of enslavement, but inclusion as equal citizens in the national polity—that eventually animated the Reconstruction Congress.

Although historians refer to the Reconstruction Era as the Second Founding, constitutional scholars know far too little about the second founders. In recent years, constitutional scholars have turned their attention to the leaders of the antislavery movement who developed constitutional arguments that influenced the Reconstruction Era. Frederick Douglass stands out among those antislavery constitutionalists because of his personal experience, his effective advocacy skills, and his sophisticated analysis of the legal and philosophical issues raised by the fight against slavery and for human rights.

Douglass spoke from a lived experience of enslavement and effectively drew on that experience as an advocate. During the antebellum era, Douglass travelled throughout the United States and abroad to garner support and raise funds for the antislavery effort. During the Civil War, Douglass was one of the few Black leaders to meet personally with President Abraham Lincoln. Douglas helped persuade Lincoln to allow people who had been freed from slavery to serve in the Union army, a key to the success of the Union effort and to the fight for measures granting rights to newly freed slaves. After the war, Douglass continued to advocate for the rights of free Black people, including those freed from slavery. He maintained a high-profile political role for the next thirty years, fighting for voting rights and women’s rights and resisting the era of retrenchment after the demise of Reconstruction.

Rebeiro’s article is part of a group of papers presented at the Salmon P. Chase Symposium, this year, organized by Randy Barnett, who himself has highlighted Douglass in his writings on antislavery constitutionalism.  Douglass has also received attention from other libertarian scholars, and Justice Clarence Thomas quoted Douglass in his dissent to the Court’s decision in Grutter upholding race-based affirmative action. Douglass was a controversial figure in his own time. He began as a protégé of William Lloyd Garrison, who condemned the U.S. Constitution as a “covenant with death and an agreement in hell.” Douglass created a major rift in the abolitionist movement when he announced that he had changed his mind and had come to believe that the Constitution condemned slavery. Regardless of the reason for his change of heart, it is clear that Douglass understood the power that claiming the Constitution as his own would have for his antislavery agenda. Rebeiro’s article helps us to understand why.

In this article, Rebeiro details Douglass’ vision of belonging, community, and allegiance in his writing on the rights of citizenship. Douglass describes an inclusive national community built by its own members, including newly freed slaves. In this inclusive community, government would protect the natural rights of its members in return for their allegiance to the community. As Rebeiro explains, Douglass based his views on the social contractarian ideology of Locke and Hobbs. But by contrast to libertarians like Barnett, Rebeiro argues that community membership, not individual rights, were central to Douglass’ vision of citizenship.

According to Douglass, the central goal of the community is to “maximize the health and well-being of its members” and protect the common good. Among the most important rights in a healthy community is the self-ownership of its members. This right, previously denied to enslaved persons, lays the foundation for self-governance and the primacy of natural rights for all. Other leaders of what historian Kate Mazur has called the first civil rights movement, the movement for equal rights for free Black people, also employed the language of citizenship. Antislavery activists such as John Bingham also seized on citizenship as a source of fundamental rights.

Who would belong to Douglass’s envisioned American political community? Douglass advocated birthright citizenship—that every person born in this country automatically became a citizen. Birthright citizenship was a radical idea in Douglass’s time, although it was shared by some other antislavery constitutionalists, such as Lysander Spooner and Joel Tiffany. Douglass understood that in order to fully belong, free Black people needed to demonstrate their allegiance to the national community. It was especially important to show that free Black people belonged in the country to combat the antebellum colonization movement, leaders of whom argued that free Black people should be sent “back” to Africa. Thus, he encouraged Black men (including those who had just been freed from slavery) to show their allegiance to the national community by volunteering to fight for the Union Army. At the same time, Douglass pushed President Abraham Lincoln to allow Black people to serve in the army. Lincoln eventually agreed, and issued the Emancipation Proclamation as a war measure, justified by the need of the Union army for reinforcement by newly freed slaves. Douglass’s strategy proved successful. During Reconstruction-era debates, members of the Reconstruction Congress cited the sacrifices of Black Union soldiers as they spoke in favor of granting them birthright citizenship and fundamental rights.

Throughout his life of political advocacy, Douglass wrote volumes of political and philosophical works, full of insight that can help scholars to understand the constitutional changes wrought—and promises soon betrayed—by the Reconstruction Era. Readers of Rebeiro’s article will begin to appreciate the depth of Douglass’ insights and yearn to learn more about this fascinating figure. Douglass’ Constitutional Citizenship is an important contribution, not only to the field of legal history but also to the emerging field of scholarship about the constitutionalism of social and political movements. Douglass is finally getting the attention that he deserves from legal scholars, and Rebeiro is poised to be a leader in the field of Douglass studies.