Balkinization
Time 2021-11-20 14:08:08Web Name: Balkinization
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margin-bottom: 0in;">In the beginningthere was Salmon Chase and Jeremiah Black. Salmon Chase was a Senator from Ohio, Secretary of the Treasury underPresident Abraham Lincoln and the fifth Chief Justice (counting OliverEllsworth) of the United States Supreme Court. Before occupying these august offices, Chase gained a reputation as theleading lawyer litigating cases on behalf of fugitive slaves. Black was President James Buchanan’s AttorneyGeneral and the author of Buchanan’s presidential message disavowing thepresidential power necessary for responding to secession. After occupying that august office, Blackgained a reputation as the leading lawyer litigating cases designed to crippleReconstruction. Chase and Black were the founding cause lawyers in the United States. Their divergence is a reminder that cause lawyering may be for good or evil.
American by Birth: Wong Kim Arkand the Battle for Citizenship tells the story of a subsequent litigationcampaign in the nineteenth century. Aswas the case with the litigation campaigns on behalf of fugitive slaves andunreconstructed southerners, prominent lawyer-politicians led the fight for the rights of Chinese immigrants and Chinese-Americans on the West Coast. Thomas Riordan, who represented numerous immigrants and children of immigrants caught up in the immigration bureaucracy, was the chair of the San Francisco Republican Committee. J. Hubley Ashton and Maxwell Evarts, whoargued United States v. Wong Kim Ark (1898) before the Supreme Court, were leadingmembers of the bar. Litigation was typically sponsored by the Six Companies, an organization of Chinese merchants dedicated to the rights of Chinese immigrants and their children, theright of Chinese immigrants to remain in this country and the right of theirchildren to be recognized as birthright citizens of the United States.
Read more »Posted 2:30 PM by Mark Graber [link]
Wednesday, November 17, 2021
The Middle Ground in Dobbs
Gerard N. Magliocca
I don't know if any or enough of the Justices are interested in an abortion decision that does something other than reaffirm or overruleCasey. If there are, though, the obvious alternative is Justice O'Connor's dissent in City of Akron v. Akron Center for Reproductive Health, Inc.In that dissent, she argued that the undue burden standard should be used but that fetal viability should not be a bright-line rule. Adopting that test would permit the Court to uphold the Mississippi statute but retain a limited abortion right. Like everyone else, I'll be tuning in on December 1st to hear the arguments in Dobbs.
Posted 8:57 PM by Gerard N. Magliocca [link]
The witch hunt at John Marshall Law
Andrew Koppelman
InJanuary the University of Illinois at Chicago’s School of Law disgraced itself with its foolishpersecution of Jason Kilborn, a professor who was accused of racism for askingstudents to address an ordinary hypothetical, of a kind they are likely toencounter in normal legal practice. That episode has now ballooned into callsfor his firing, with an ill-informed Rev. Jesse Jackson leading protests againsthim. And the university, while it refuses to fire Kilborn, is continuing topunish him for things it knows he didn’t do. The trouble started when, in a“Civil Procedure” exam, Kilborn asked whether a hypothetical company, sued fordiscrimination, must disclose evidence to the plaintiff. In the test’sscenario, a former employee told the company’s lawyer “that she quit her job atEmployer after she attended a meeting in which other managers expressed theiranger at Plaintiff, calling her a ‘n____’ and ‘b____’ (profane expressions forAfrican Americans and women) and vowed to get rid of her.” The exam did notspell out those words, which appeared exactly as you just read them. (This wasjust one of the test’s 50 questions.) Lawyers face such situations all thetime. The question was entirely appropriate. One student, however, declaredthat, on seeing the sentence, she became “incredibly upset” and experienced“heart palpitations.” The Black Law Students Association demanded that Kilbornbe stripped of his committee assignments, denounced him on social media, andfiled a complaint with the university’s OAE (Office for Access and Equity).
Posted 4:58 PM by Andrew Koppelman [link]
Tuesday, November 16, 2021
What the Legal Battles Over Chinese Migration Teach Us
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Robert Tsai InAmerican By Birth, Carol Nackenoff and Julie Novkov tell the story ofWong Kim Ark, whose Supreme Court case interpreted the Fourteenth Amendment soas to secure the principle of birthright citizenship, especially throughpatrilineal descent. Their book is a richly-textured presentation of not only thetwists and turns of that particular litigation, but also other efforts byChinese migrants and their allies to contest the various restrictions on theirability to enter the United States. Ihad the pleasure awhile back to write a review essay on historian Beth Lew-Williams’book, The Chinese Must Go. Nackenoff and Novkov’s offering should beread together with Lew-Williams’ book to get a complete picture of this period.Lew-Williams does the archival work in presenting the complicated forms of extra-legalviolence perpetrated against Chinese migrants as well as the nascent methods offormal interdiction. I have called these “racial purges” to underscore how theChinese removals fell along a broad spectrum of methods for controlling unwantedpopulations. I also treat extra-legal removals of Chinese migrants from Tacoma,Washington, and elsewhere as dark acts of popular sovereignty because they weredefended in such civic terminology, and because these events were ultimately consideredby mainstream figures as coherent expressions of political dissatisfaction,even if they deplored lawbreaking as a tactic. Nackenoffand Novkov remind us that political violence occurred, but they don’t dwell onit. Instead, their focus is on the action that took place within the formalconstitutional order (i.e., the legal system and in Congress). The authors takepains to show how advocacy succeeded in reuniting some migrants with loved onesafter they were wrongly deported or prevented from reentering the UnitedStates. The authors also do an admirable job of presenting the backgrounds andphilosophical leanings of the federal judges on the West Coast who are delugedwith thousands of petitions for writs of habeas corpus. TheWong Kim Ark case forms the heart of the book. Nackenoff and Novkov render avivid account of Kim Ark’s life and his lawsuit challenging the government’srefusal to allow him to reenter the country. Noteworthy are the ways that bothsides invoke the Dred Scott case and how enduring suspicions ofpotentially disloyal people born to non-citizens influence the U.S. government’slegal position.
Posted 9:30 AM by Guest Blogger [link]
Monday, November 15, 2021
Children of Wong Kim Ark
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Bethany Berger I am the daughter of a birthright citizenborn to an illegal immigrant. Mypaternal grandfather came to New York before Congress blocked most migration fromEastern and Southern Europe in 1924. Butwhen my grandmother, a cousin from the same stetl in Galicia, came here, shedid so illegally. My grandparentsmarried in 1926, and my father was born in 1927, the year Congress capped allimmigration at 150,000 annually. In the1930s, as Adolf Hitler rose to power overseas, my grandparents decided tosecure her immigration status. Mygrandmother traveled to Canada with my father, staying with family there for ayear until she could reenter legally as my grandfather’s wife. Over the next decade, my grandparents weptlearning of the deaths of relatives who remained in Europe, and opened theirStaten Island home to those who managed to escape. As with Wong Kim Ark, their story is oneof migration as part of a network of transnational family links, sometimes onthe right side and sometimes on the wrong side of the law.
Posted 9:30 AM by Guest Blogger [link]
Sunday, November 14, 2021
The Unsettledness of Who Can Become a Citizen
Sandy Levinson
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Consider Chief Justice Warren’s laconic statement in Loving v. Virginia (1967), “Over the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ Hirabayashi v. United States, 320 U. S. 81, 100 (1943).” Much could be said about this, but for purposes of this review, it perhaps suffices to say that this is simply one more instance of the fact that justices of the Supreme Court, including its liberal heroes, are all too often an entirely unreliable narrator about the American past. For the Court, every day is “Constitution Day,” with the consequence that all opinions have ultimately to be upbeat, reassuring their readers (who, as a matter of fact, may be most likely to be law professors and their students) that the American past is worth cherishing and the Constitution worth preserving. But, of course, Warren’s statement, to be blunt, is a lie. One literally cannot understand the American past without paying due attention to “distinctions” based on “ancestry.” Perhaps Warren could attempt to save his point by emphasizing the word “citizens.” Among other things, of course, that reminds us of Dred Scott, which ruled that Blacks were simply barred from membership in the American political community as citizens. But even after the new day of the Reconstruction Amendments, African-American citizens were often treated horrendously unequally—and the Supreme Court almost as often legitimated these inequalities, either by claiming that separate fullfilled the condition of equality or by accepting the legitimacy of purportedly non-racial classifications, such as literacy, that just happened to be administered disproportionately against would-be African-American voters.
Carol Nackenoff’s and Julie Novokov’s American by Birth: Wong Kim Ark and the Battle for Citizenship is the rare example of a book that delivers more than the title (and the blurbs) may lead the reader the expect. Especially because the book is being published by the University Press of Kansas, which has published an excellent group of books that focus very explicitly on important cases in American constitutional law, I expected to read a book that similarly focused only on the important case involving Wong Kim Ark. Decided in 1898, it held, by a 6-2 vote, that children of Chinese immigrants, even if the parents were in fact disallowed from becoming American citizens by American law, nonetheless became American citizens by virtue of having been born within the United States, in his case, and not surprisingly, San Francisco. But the book in fact reaches well beyond the specific facts of the case; it is wonderfully informative about the general topic of Chinese immigration, the almost relentless discrimination Chinese immigrants, and the passage of legislation that attempted to shut the door to any further Chinese presence--and, most certainly, to the prospect of naturalization of those Chinese who had been granted permanent residence in the United States. And the last chapter offers a comprehensive overview of the continuing controversy about birthright citizenship where almost all aliens, and not only those from Asia, are the subject of acrimonious attention. Read more »
Posted 9:30 AM by Sandy Levinson [link]
Friday, November 12, 2021
The Whitewashing of Immigration and Nationality Law: Why We Should All Become Historians
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Maureen A. Sweeney As the director of a law school immigration clinic, I cameto Carol Nackenoff and Julie Novkov’s American by Birth: Wong Kim Ark andthe Battle for Citizenship as both an immigration practitioner and ascholar. And under both these hats, I found it helpful and interesting. Thebook is a supremely readable account of the context, including the individualand communal lives, behind the legal decision that established the strongprinciple of jus solis in U.S. law, “even” for the children of Chineseimmigrants. More than the story of oneSupreme Court case, though, I found it an illuminating example of what is anall-too-familiar collision in the immigration sphere between the egalitarianideals of the American constitutional experiment and the realities of race-basedpower politics. Indeed, the tug of warbetween universalist democratic ideals and efforts to use immigration law topreserve the supremacy of Americans of European heritage is the historyof our immigration. The Wong Kim Ark taleis a positive one – and important, as birthright citizenship has indeed proved foundationalto the empowerment of successive immigrant groups in the U.S. – but the authorsdo not shy away from conveying the unabashedly race-based assumptions andjustifications given for legislation and court rulings that contributed to thatdecision and to more recent discussions of birthright citizenship. Nackenoff and Novkov engage in a project of historicalreckoning and reclamation that is precisely what our immigration and nationalitylaw requires at this moment in time. Asa nation, we need to acknowledge that the legal house we live in was constructedof building blocks that were designed and intended to advantage andpromote northern Europeans and their descendants, those Justice Fieldreferred to repeatedly as “our people” in the Chinese Exclusion Case. The structureof the house, in other words, was designed to support whitenationalism. Learning our history is the first step in the process ofunderstanding the substance of our law, of peeling away the layers of paint andwallpaper that now cover those building blocks with a veneer of raceneutrality. Educated with our history, we can learn to look beyondnow-facially-neutral laws and confront the ongoing legacy of racism in ourimmigration legal system. And answer the question: Can we be true to our democratic ideals byremodeling the current legal system or do we need to tear down and rebuild thewhole house?
Posted 9:30 AM by Guest Blogger [link]
Thursday, November 11, 2021
Citizenship and America’s Unfinished Revolution
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Rogers Smith American byBirth’scontributions extend, however, well beyond providing the rich background storyof the Wong Kim Ark decision. Itsbroad scope encompasses the common law origins of the doctrine of birthrightcitizenship and the early American disputes over its significance in Americanlaw; the political and legal battles over Chinese exclusion; the debates,taking off just as Wong Kim Ark wasdecided, over citizenship for residents of America’s newly acquired overseasterritories; and subsequent immigration and citizenship struggles in the 20thand 21st centuries, culminating in tense skirmishes over birthrightcitizenship and executive power and congressional power during the Trump years.As this writer knows all too well, these topics generate often vitriolicdiscussion, even in academic circles, especially because they are undeniablydeeply bound up with the forms of white nationalism that are resurgent today.Nackenoff and Novkov, joined in their last chapter by Marit Vike, do not shyaway from those dimensions of current debates, but they provide a commendablywell-grounded, temperate overview that includes placing American policies in thecontext of global trends. The book’s prose is unfailingly clear and engaging,and it will be of enduring value. Ithas in my judgment only one major limitation. It would have benefited from moreattention to how the American Revolution posed fundamental challenges to theEnglish common law doctrine of birthright citizenship and its doctrine ofperpetual allegiance, in ways that shaped many of the subsequent developmentsthe book examines. American by Birthbegins its examination of birthright citizenship with Calvin’s Case in 1608, as do two older works on citizenship that itdoes not cite, but with which its case discussions are largely consistent:historian James H. Kettner’s classic TheDevelopment of American Citizenship, 1608-1870 (1978), and my own Civic Ideals: Conflicting Visions ofCitizenship in U.S. History (1997). Unlike American by Birth, however, both Kettner and I stressed that SirEdward Coke’s opinion in Calvin’s Casecontended that subjects owed an unbreakable, perpetual allegiance to thesovereign who protected them at birth, and that the American Revolution restedon a fundamental rejection of this doctrine. The revolutionaries claimed aright to expatriate themselves from allegiance to a sovereign who had becometyrannical, and they sought to create systems of republican self-governance inwhich the newly independent American “people” would be sovereign instead.
Posted 9:30 AM by Guest Blogger [link]
Wednesday, November 10, 2021
How America Became American
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Amanda Frost Today, a child born inthe United States is a U.S. citizen, period. Unlike France, Germany, England, and many other countries, Americancitizenship is bestowed by birth on U.S. soil, regardless of the parents’ immigrationstatus or the child’s length of residency. (The only narrow exception being for the children of diplomats). How did the United States come to adopt andkeep (so far) birthright citizenship—a legal rule that historian Eric Foner hasextolled as the “goodkind of American exceptionalism”? In their essential new book, American by Birth: Wong Kim Ark and theBattle for Citizenship, co-authors Carol Nackenoff and Julie Novkov answerthat question. Americanby Birth seamlessly weaves together history, policy, law, andpolitics to tell the fascinating tale of how we got here. The cover art and subtitle suggest that thenarrative is centered on United States v.Wong Kim Ark, the 1898 case in which the Supreme Court held that theFourteenth Amendment guarantees citizenship to all born in the United States. But in truth the book is much broader thanthat one legal battle. Nackenoff and Novkov have produced a much-needed,sweeping historical and intellectual history of a bedrock constitutionalprinciple. I will begin bydescribing the book’s many strengths, in particular its investigation of therelationship between anti-immigration sentiment and opposition to birthrightcitizenship. I conclude with a fewquestions that I hope that Nackenhoff and Novkov will explore in theirresponse, and that may also provide a jumping off point for citizenshipscholars who seek to build on their work.
Posted 9:30 AM by Guest Blogger [link]
Balkinization Symposium on Nackenoff and Novkov, American By Birth
JB
This week at Balkinization we are hosting a symposium onCarol Nackenoff and Julie Novkov's new book, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). At the conclusion, Carol and Julie will respond to the commentators.
We have assembled a terrific group of commentators, including Bethany Berger (U. Conn.), Amanda Frost (American), Mark Graber (Maryland), Sandy Levinson (Texas), Rogers Smith (Penn), Maureen Sweeney (Maryland), and Robert Tsai (B.U.)..
Posted 9:00 AM by JB [link]
Monday, November 08, 2021
Constitutional AMA: Collected Posts
JB
As a result of a twitter exchange, during the summer and early fall of 2020, I invited Charles Barzun, Chris Green, Evan Bernick and Eric Segall to ask me a series of questions about my theory of living originalism. (Eric also invited me to be the first guest on his show, Supreme Myths). I've collected all the posts into one place. Here they are. 1. AMA: Questions from Charles Barzun 2. AMA: Chris Green asks about the Oath 3. AMA: Chris Green asks about "constitutional truthmakers" 4. Eric Segall interviews me on Supreme Myths 5. AMA: Chris Green asks about the thin theory of original public meaning 6. AMA: Chris Green asks about Originalism and Loving v. Virginia 7. AMA: Chris Green asks about the metaphors of "off the wall" and "on the wall" 8. AMA: Evan Bernick asks about liberal originalism 9. AMA: Evan Bernick Asks About Constitutional Dealbreakers 10.AMA: Eric Segall asks about originalism and judicial review 11. Eric Segall responds on originalism and judicial review
Posted 9:30 AM by JB [link]
Sunday, November 07, 2021
Of Guns, Ships, Pens, and Liberals
Mark Graber
For the Balkinization symposium on Linda Colley,The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World(Liveright, 2021). TheGun, the Ship, and the Pen: Warfare, Constitutions, and the Making of theModern World isa scholarly epic. The work is epic inscope. Professor Linda Colley wanders upand down the eighteenth and nineteenth centuries, from Corsica to Japan, fromLiberia to Russia, from Pitcairn Island to the United States. The Gun, the Ship, and the Pen is epicin academic range. Professor Colleyoffers insights from history, law, political science and sociology. There is a good deal of art history, althoughno Beethoven. The epic scope and rangeof the book is matched by the epic thesis.Professor Colley details how the development and spread of writtenconstitutions throughout the entire world was to a fair degree a consequence ofthe more expensive and more frequent wars fought by regimes from the New World,the Old World, the Far East, and what we now call the Global South. If someone fired a shot on land or sea fromthe Seven Years War to World War One that caused another person to take up alegal pen, Professor Colley provides the details. One of the most remarkable featuresof this remarkable book is the granularity of the examples. Most of us spend our lives on approximatelyfour pages of this four-hundred page work.Unsurprisingly, I might describe differently a few details ofconstitutional development during the American Civil War, the four pages of TheGun, the Ship, and the Pen to which I have devoted a half lifetime ofstudy. Others whose academic life is asfocused may have similar concerns about their bailiwick. Those revised details, at least with respectto the American Civil War, would not, however, change the overall thesis ordirection of the book. This is a grandepic that can be bothered with the small facts.Constitutional change in the United States is a product, first of theneed to consolidate a regime to preserve independence after the AmericanRevolution and, second, of the need to construct a constitutional politics toprevent renewed secession after the Civil War.“If men were angels,” to quote Madison, and did not resolve disputes bywar, there would be no need for Americans to write down the rules of governmentor for written constitutions in the United States. The adage that Americans only learn about the United States when they travel abroad applies to Americanists reading Professor Colley.Persons similarly specialized are likely tolearn as much about their small slice of time and place. Professor Colley proposes amaterialist explanation for written constitutions. Written constitutions, like the common law,are a response to social needs. The needfor speed, Howard Schweber’s study of the impact of trains on tort law details,explains northern modifications of negligence rules during the years before the CivilWar. The need to finance, mobilize for, andprevent wars, The Gun, the Ship, and the Pendetails, explains the development and spread of written constitutions. Ideas in that work appear to be epiphonema. Montequieu’s The Spirit of the Laws wasinspired by the “systemic quality of contemporary conflict.” John Locke appears as the author of TheFundamental Constitutions of Carolina, a means for establishing a settlercolony in the New World, but not as the author of The Second Treatise ofGovernment. Liberia is in the index and discussed. Liberalism is not. There is a substantial literature inAmerican political science on war and constitutional development that supports anddeepens Professor Colley’s emphasis on the important of the military. Works on American political development playvariations on Randolph Bourne’s thesis that “war is the health of the state.” Rebecca Thorpe and Steven Griffin haveexamined the political and constitutional changes that occurred when thepresident acquired permanent armies and weapons. Richard Bensel and Bartholomew Sparrow haveexamined the ways in which war dramatically increased the capacity of theAmerican state. Philip Klinkner and Rogers Smith detail how persons of color tend to gain rights onlywhen a major military conflict occurs that requires the government to mobilizeblack men for military service. The modernwarfare state, Professor Colley reminds is, is the modern constitutionalstate. Written constitutions motivatedby military concerns augment presidential power, develop state capacity, andenable minorities to become full or fuller citizens. Scholarship in American politicaldevelopment does raise questions about war as an explanation for constitutionaldevelopment. Mary Dudziak and Mark Brandon suggest the United States is a warfare state that is almost alwaysplanning a war, fighting a war or recovering from a war. TheUnited States is hardly unique as a warfare state. War from thedawn of human political history has been a and usually the central occupationof states and regimes throughout the globe.Most states at most times are planning a war, fighting a war, orrecovering from a war. Often regimes aredoing all three. War is also the most expensive stateactivity. Military budgets typically dwarf budgets for almost all otheractivities.Constitutionalism from this perspective is only one manifestation of the warfare state.Given the pervasiveness andcentrality of war to most politics, almost all state developments, from writtenconstitutions to fundamental rights to the separation of powers are likely tobe closely tied to planning wars, fighting wars, and recovering from wars. The ubiquity of war suggests adeeper dive into Professor Colley’s materialist explanation for the developmentand expansion of written constitutions.Constants, the presence of war, do not explain variables, the developmentand spread of written constitutions. Nationsthroughout the world were at war long before written constitutions. One wonderful feature of The Gun, the Ship,and the Pen is the emphasis that warfare states exist throughout the globe.Not just in Europe. Everyone seems to befighting everyone else for the longest periods of time. Warsprevious to the eighteenth century may not have cost as much as eighteenthcentury wars, but they were expensive enough and their financing led tofundamental regime change. Ask CharlesI. England and France seemed to havebeen at war for as long as regimes existed that could be identified as Englishand French. Regime changes in bothcountries were consequences of those wars.What the mere presence of war cannot explain is why specific regimechanges took the form they did. Constantwars with Native Americans in the seventeenth century had only a limitedinfluence on written constitutionalism.The American Revolution led almost immediately to one written constitution,the Articles of Confederation, and to the Constitution of the United Stateswithin a decade. We might gain more purchase on thedevelopment of written constitutions by focusing, as Professor Colley does, on technology. Technology changed wars in the eighteenthcentury. The wars Professor Colleydiscusses from the eighteenth to the early twentieth century became moreexpense and more deadly. Technologyexplained changes in the nature of warfare.At one point in time, a good defense, such as a heavily fortified castleor city, could beat a good offense. Newweaponry changed the balance of power between offense and defense. By World War One, Robert O'Connell has documented,for the first time in human history, offensive weapons were clearly outpacingdefensive weapons. Mobilization meantmobilization for an offensive war, for while twice armed was the country whose causewas just, thrice armed was the country that got their blow in “furst." Technology also changed the pen. Professor Colley observes that written constitutionsflourished in the eighteenth century because they could be printed and reach aliterate audience. This development wasmade possible only by the invention of the printing press and technologies thatfacilitated the development of newspapers.One virtue of the Constitution of the United States was that the entiretext could be printed by the daily or weekly papers of the time. Written constitutions were a fundamentalelement of regime change beginning in the eighteenth century because only inthe eighteenth century did rulers have the capacity to print writtenconstitutions and have a citizenry capable of reading a written constitution. By changing the gun, the ship, and thepen, technology changed the persons to whom rulers appealed whenmobilizing for war. Before theConstitution was printed, the Bible was printed. The printed Bible altered the audience forregal appeals. People learned to readbecause there was something they had an interest in reading. Having learned to read the Bible, they couldlearn to read other materials, most notably constitutions. The printed Bible altered how peopleread. As people read the Bible, theybegan to think they could interpret the Bible for themselves without the needof priestly interventions. One result ofbeing able to read critically was the Reformation.Another was liberalism. Peoplewho could interpret the Bible for themselves began to think they could also interpretpolitical affairs for themselves. Liberalsneeded to be persuaded to participate in the warfare state. Liberalmilitary service could no more be taken for granted than liberal attendance at Mass on Sunday. These changes in the subjects of rulingappeals changed how rulers appealed when mobilizing populations andresources for warfare. Rulers from the first Adam to Joe Biden have always had to mobilize people and resources for militaryadventures. What was new in the eighteenthand nineteenth centuries is that rulers often had to persuade liberal audiences in order to mobilize people and resources.Rule had to be justified to a geometrically largely set of insiders andoutsiders. Liberal insiders in both proto-democraciesand more authoritarian states had to be persuaded at a minimum that they livedin a coherent regime that could call on them to make military sacrifices. Liberal outsiders had to be persuaded thatthis was the sort of regime that was entitled to rule internally. People had to see this state as furthering a set of interests that were partly determined by their liberal ideas about what interests and whose interests were to be furthered by states. Liberal ideas and military interests are entangled in waysthat rarely permit disaggregation. Politicsrespond to interests, but how people perceive their interests depends on their ideas. Kristin Luker noted many years ago that whilepro-life policies served the interest of pro-life women and pro-choice policiesserved the interest of pro-choice women, whether women adopted pro-life orpro-choice lifestyles depended partly on ideas about the proper role ofwomen. Not everyone thinks spending themorning writing this blog post is serves their interest. Written constitutions similarly combine military interests and liberal ideas. Rulers began writing fundamental laws down because theyhad an interest in mobilizing people and resources for war, but how people aremobilized depends on how they conceive themselves and their interests. Are people who live in my neighborhoodMarylanders or citizens of the United States and, if they are Americans, istheir American identity based on race or the principles of the Declaration ofIndependence? As people became literate and liberal, their interests changed, and appealing to those interests meant understanding the ideas underlying those interests (and the interests that fortify those ideas).We cannot ignore or separateideas and interests when exploring the development of written constitutions or any other political phenomena. The bottom line lesson is that all scholars are in the position of the blindsages who can see only parts of what they study. Professor Colley has seen far more of the elephantthan most. Her insights about the relationships between guns, ships, and pens are invaluableto those who look at only a tiny part of the constitutional mammal and, more important, tothose who want to gain a greater if still incomplete understanding of what written elephantsas a whole might look like. Liberalism also matters to the study of written constitutions. If liberalism is partly constituted by guns, ships, and pens, guns, ships, and pens are also partly constituted by liberalism.
Posted 9:30 AM by Mark Graber [link]
Friday, November 05, 2021
Section Three Action Items
Gerard N. Magliocca
We are fast approaching the first anniversary of the Capitol riot. In that connection, let me suggest two areas that are ripe for action on the application Section Three of the 14th Amendment to that violence. First, the House January 6th Committee should consider the issue. At this point, the Committee is still gathering facts. Media reports indicate that the Committee is also looking at legislative proposals. (One, for example, is a reform of the Electoral Count Act.) If those reports are true, then Section Three action should also be on the table. At a minimum, a House Committee report outlining how Section Three might apply to what occurred on January 6th would be helpful in any subsequent litigation on ballot eligibility. Second, state legislatures need to step up. There is doubt about how Section Three can be enforced due to Chief Justice Chase's 1869 circuit opinion holding that the provision is not self-executing. States, though, can enact their own enforcement legislation. Right now no state says anything about Section Three as a requirement for holding federal or state office. A handful of states have some generally phrased eligibility provisions that arguably encompass Section Three, but that leaves a lot unsaid. To prevent anyone linked to the January 6th chaos from running for or serving in office--state or federal--states should make clear in their law that Section Three is an eligibility requirement for those positions.
Posted 2:12 PM by Gerard N. Magliocca [link]
Constitutional History and the Making of the Modern World
Guest Blogger
For the Balkinization symposium on Linda Colley,The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World(Liveright, 2021). Harshan Kumarasingham There was a time when constitutional historywas a critical part of the curricula in History, Law and Politics. At the beginning of the twentieth century atthe University of Cambridge, for example, a student on the History tripos couldexpect to have 70 lectures in ‘English’ constitutional history and up to 15 oncomparative constitutions. During theperiod, as Linda Colley points out in her global history of constitutions,between the 1820s and 1920s, the publication of new constitutional historiesprinted across Britain increased by almost twenty times (p. 415). Fast forward a hundred years and the realityis very different. History no longerseeks a place at High Table when it comes to covering constitutions and aHistory student in the UK and elsewhere, with a few exceptions, would struggleto find in their reading lists any texts on constitutions or their history, letalone as a key part of their courses.Political Science is transfixed by constitutions, especially now as weare often reminded that we live in ‘interesting times’, but this focus on themoment can blind the ability to use history to complicate and contestassumptions and thereby evade the all too common resort to describe events andissues as ‘unprecedented’. Law hasfilled much of the gap left by History and Political Science. It has in recent years seen a growinganalytical legal-historical approach towards constitutions and a resultingabundance of works on an array of ‘constitutionalisms’ helpfully prefixed todisplay the writer’s (not always unique) contribution. However, many of the volumes of this growinglegal genre while theoretically impressive and ambitious in scope still ignorethe opportunities to look beyond the legal documents and include the richnessof culture, personalities, politics and history that permeate theconstitutionalisms they seek to promote. A powerful and eloquent corrective tothe current deficiencies in these disciplines covering the historicalimportance of constitutions has come in the form of Colley’s scintillating newbook - TheGun, the Ship, and the Pen: Warfare, Constitutions, and the Making of theModern World. The 20thcentury British ‘Constitution-Maker’ Sir Ivor Jennings argued in hisseminal text CabinetGovernment (1936),on thehistory and practices of the British state, that constitutional history is the‘servant of the lawyer and the politician’.He might also have added that training in constitutional history wasonce a critical part of the Historian’s trade. What made Jennings’ statement more powerfuland influential was that despite being about the United Kingdom it was understoodand interpreted by thousands whose land of birth was far from London’s SW1postcode. Students from Trinidad like theAfro-Caribbean Ellis Clarke studying law in 1930s at the London School ofEconomics (later his country’s first president) or those at the University ofCeylon, like Kingsley M. De Silva in the early 1950s (who would become theisland’s premier modern historian) all studied this book as undergraduates. Studentsfrom the ‘white settler’ parts of the British Empire-Commonwealth also sharedthis reading experience like the Australian Maurice Byers at Sydney Universitywho would later draw on Jennings as Solicitor-General during the Australian constitutionalcrisis of 1975, when his opinion was needed on the legality of dismissing aprime minister. Though these stateslacked what Clarkecalled ‘geographicalpropinquity’ to Britain’s constitution these students and others knew itstransnational value, which did not ‘preclude the growth’ or the ‘nuances ofdistinction’ in their own constitutional and cultural contexts. These small linked examples of globalconstitutionalism were by new means unique, but a give a feel for the globalconstitutional ideas and the rich constitutionalhistory of decolonisation in the 20th century, which I recently examined that was oncehighly active in academia as well as used by freedom movements and colonialrulers alike. The power ofColley’s new book is to look earlier at the first real global constitutionalgeneration that whirled with tremendous influence from the 18th and19th centuries. Colley showsthat constitutions were not just for the great powers and their acolytes. Communitiesfrom Corsicans to the Cherokees turned to writing constitutions to prove notjust their modernity, but also their legitimacy to withstand the avariciousattentions of their neighbours. TheCherokee constitution written in 1827 (in English as well as Cherokee) statedunequivocally, the claim that the Cherokee were a ‘free and distinctnation’. As with many such attemptsaround the world the effort to assert independence failed. The US FederalGovernment with its ‘We the People’ constitution and the all-white legislatureof Georgia, where the Cherokees were mainly situated, rejected the Cherokeeconstitution’s legality and validity (p. 150-153). In this Washington rigorously asserted itsmonopoly of constitutions. Nonetheless, themigration and use of constitutions and their ideas as a form of confirmingindependence was an attractive and ubiquitous phenomenon, where constitutionstook the form of a legal and political ‘technology’ (p. 3). The transnational power of these constitutionaltechnologies was such that a revised version of the famous 1812 Cadizconstitution was dedicated by the reformers to their kindred spirit in Bengaliliberal intellectual Rammohan Roy: ‘Alliberalismo del noble, sabio, y virtuoso Brahma Ram-Mohan Roy’. Roy had taken great interest in Cadiz andother liberal experiments (including contributing to a translation of a draftconstitution of Peru) and he was able to learn of such exploits thanks in noshort measure to the rich literary and publishing scene of the great culturalentrepôt of Calcutta (pp. 142-146, 188). The attraction of constitutionalliberalism was global. Even the sparselypopulated Pacific Island of Pitcairn was not immune to the globalconstitutional moment when in 1838 it established through a Scottish Royal NavyCaptain a constitution that contained, for example, progressive clauses toprotect the environment and wildlife and also secured the rights of both womenand men, including in selecting their leader.Here, as throughout the book, Colley is not content to allow the casesit alone. The tiny territory’s historyand constitutional experiment is persuasively shown as part of wider currentsstretching from Poland to Chile (pp. 253-260).Through this wide canvas which sees figures like Japan’s Hirobumi Ito or Tunisia’s Khayr al-Din, who not only read widely, buttravelled extensively in the 19th century, in order to gain ideas asto how to revive their states in the face of growing Western dominance. As Colley shows, once again, constitutionswere to be the vessel of their quest for reform and modernity on one hand, butalso the preservation of local traditions and civilisations on the other. One of the reasons thehistorian of Tudor Government, Sir Geoffrey Elton, believed in the virtues ofconstitutional history was its traditional attention to law and evidence, whichgave the historian ‘excellenttraining in rigorous analysis’.Nonetheless Elton’s well-known faith in archives and documents as therepository of truth blinded him and others to the opportunities of a widerunderstanding of constitutional history.Here in Colley’s book we have global constitutional history that is notonly embracing of so many historical strands of society and life, but alsodeeply alive to the significance of law, the reality of politics and the powerof culture. It is to be hoped that TheGun, the Ship the Pen emboldens an exciting turn in constitutionalhistory (or at least the use of history in studying constitutions) since itshowcases the opportunities a wider understanding constitutional history bringsand the bounty to be found in the scholarly exchange between History, Law andPolitics. Afterall, as Colley bookproves, constitutions and their history made the modern world. Dr H. Kumarasingham is Senior Lecturer inPolitics at the University of Edinburgh.Email: harshan.kumarasingham@ed.ac.uk.
Posted 9:30 AM by Guest Blogger [link]
Tuesday, November 02, 2021
Has the Supreme Court been infected with long Trump syndrome?
Andrew Koppelman
If you’re not a physician, don’t rely on your own medical research. Sounds simple, no? But certain people sometimes must rely on their own guesses: federal judges. They don’t circulate their decisions before they announce them. So it’s hard for them to catch medical errors in their work. You might infer that judges shouldn’t make public health decisions. Three Supreme Court justices disagree. They are flirting with making antivaxxer resistance a constitutional right. I explain in a new piece at The Hill, here. I here acknowledge that the best line in the piece, "Human sacrifice is protected as long as it is actuarial," was made in conversation by Univ. of Virginia Prof. Micah Schwartzman, who kindly read a draft. I swiped it.
Posted 7:45 AM by Andrew Koppelman [link]
Sunday, October 31, 2021
Locating Constitutions in the Modern World
Guest Blogger
For the Balkinization symposium on Linda Colley,The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World(Liveright, 2021). Madhav Khosla Linda Colley’s important new work, The Gun, the Ship, and the Pen:Warfare Constitutions and the Making of the Modern World, arrives at aunique intellectual and political moment. The interest in constitutions acrossspace and time is increasing as historians and lawyers are coming to appreciatethe dramatic place that canonical legal texts have held in the construction of modernpolitical life. Alongside, many of our conventional and establishedconstitutional truths, from the role and power of representative assemblies tothe sanctity of rights and liberties, are facing fresh challenges. On the onehand, we are finally understanding how constitutions are ubiquitous; how theyare far too important to be left to lawyers. On the other hand, the role andvalue of constitutions is being questioned as crises loom large for severalconstitutional democracies whose canonical texts seem to offer few defenses. The Gun, the Ship, and the Pen gives us a profound sense of just how ubiquitous constitutions are. Colleyrightly observes that constitutions are almost invariably studied in thecontext of a specific legal system. Even though legal scholarship has witnesseda notable comparative turn over the past two decades, the study ofconstitutions is still typically performed with reference to a particular legalorder. Through a series of fascinating chapters – refreshing global if underthe shadow of European developments – Colley portrays how constitutions – theiridea, drafting, and content – gripped leaders, revolutionaries, citizens, andsubjects from 1750 onward. From Catherine the Great’s Nakaz to thePhiladelphia delegates, written words and the printed medium were embraced withintent and enthusiasm. What drove this global move towards written canonical texts? The drivingforce, Colley argues, was a change in the character of warfare. The scale andcost of wartime engagement placed profound stresses upon nations, who “electedto experiment with written constitutions as a means to reorder government, markout and lay claim to contested boundaries, and publicize and assert theirposition at home and on the world’s stage”. The performance and management ofwars not only became a key task for leaders, it also often led to alteredpolitical arrangements that invited new canonical texts. Simply put, wars destroyedand created nations; and constitutions were central to that process. But though wars may well have been central to the 18th and 19thcenturies, it is less certain that they fully capture the dramaticpost-colonial constitutional experiments of the 20th century. Whatis special, for example, in the case of India or South Africa is not merelytheir atypical struggles for freedom, but more fundamentally the burden imposedupon the new written constitutional texts. The documents that created thesenations, as I try to argue in the Indian context in India’s Founding Moment,sought to inaugurate an entirely new language for politics. They attempted anew universalism, an embracing of ideas of self-rule in regions wheredemocracy’s assumed ingredients – a certain level of literacy and income, and adegree of state capacity – were lacking. For these nations, democratic politicscould itself create the conditions for its existence; and a constitution heldthe promise of constructing such a politics. These 20th century revolutions and those of prior centuriesgrasped a crucial truth about our political ontology: constitutionalism is aworld-making activity. One of The Gun, the Ship, and the Pen’s manystrengths is the force and brilliance with which it brings this idea to light.Though Colley’s wide-ranging narrative, we are exposed to the radically modernbelief that our political world can indeed be altered, that it can be made andremade, and that constitutionalism is above all about enabling that making and remaking.The rules that govern us in fact make us – they constitute us – a newset of words can bring about a new set of practices. Read at the present moment, Colley’s emphasis on the importance thatconstitutions have enjoyed holds two significant lessons for our time. Thefirst is that the challenge to constitutional democracy that confronts us today– the rise of populism, as it has come to be known – is not merely from thosewho seek to conduct politics on very different terms. It is also, in no smallmeasure, from those who believe that our world cannot change at all. ThroughoutThe Gun, the Ship, and the Pen, one comes to see how constitutionalistsare not only fighting against those with an alternative political proposal;they are also battling political cynicism. To believe that our world cannot bemade and remade, that our political life cannot be conducted in new and freshways, is, to put the point plainly, a deeply anti-constitutionalist sentiment. The second insight that emerges from the work, through an interplay ofpolitical actors and written texts, is that the contemporary concern that issometimes offered that written texts like constitutions cannot save democracy –a concern that carries a certain skepticism towards constitutionalism – somewhatmisses the point of constitutions. One can regard constitutions as vitallyimportant, and as a remarkable means to reorder our political life, withoutseeing them as self-executing. The characters in The Gun, the Ship, and thePen do not believe that their role ends when a constitution comes intoforce. No constitutional order can be possible without some external elitepolitical and deeper social support. The magic of modern constitutionalism isthat the people who commit to a constitutional order are themselves remadethrough working within that order. For decades, we have assumed that ourconstitutional orders are creating democratic citizens of us all. Whether ourcontemporary crises will give rise to a new kind of citizenry remains to beseen; the role of constitutional politics in those changes remains certain. Madhav Khosla is an Associate Professor of Law at Columbia Law School. You can reach him by e-mail at mk3432 at columbia.edu.
Posted 10:30 AM by Guest Blogger [link]
Friday, October 29, 2021
An Essential Book: Linda Colley, on the origin of written constitutionalism
Sandy Levinson
For the Balkinization symposium on Linda Colley,The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World(Liveright, 2021).
By any account Linda Colley’s The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World is a remarkable book. Almost literally every page contains a revelation about the history of that particular political practice called written constitutionalism. Aristotle, of course, suggested long ago that all polities had foundational structures and values that he labeled constitutions. But they were not usually inscribed in foundational documents explicitly called “constitutions.” Their contemporary analogue, perhaps, is the vaunted British Constitution, which consists of a perhaps ungainly collection of what might be termed constitutive statutes, political “conventions,” and, one is sometimes told, the inbred habits of the British people. One can wonder, of course, about the accuracy of this account, particularly in the aftermath of Brexit and Boris Johnson’s apparent misleading of the Queen with regard to proroguing the Parliament in order to facilitate Johnson’s hopes for Brexit. But more important, surely, is the fact that by any measure Great Britain is an outlier. New Zealand, Great Britain, and Israel constitute the set of modern nations that make do without a canonical document called a “constitution” or a close substitute like the Canadian Charter of Rights. How did this proclivity to write things down come to pass, as an historical phenomenon?
Princeton professor Colley gives us a clear answer: Written constitutions are, to a significant extent, the child both of developments in geostrategic warfare and of the development of what we can identify as the beginnings of a print-based mass media. As to the first, wars were increasingly expensive by the 18th century because of what she calls their “hybrid” character. That is, wars were shifting from being carried on predominantly, or even exclusively, on land, to featuring great navies (and naval battles). Trafalgar accompanies Austerlitz in understanding the dynamics of the Napoleonic wars. Unlike old-fashioned armies, which could presumably be hired among mercenaries when it came time to fight a war—think in this case of the Hessians who were among the primary combatants in the American war of 1776-81—navies had to be built (and staffed) in advance, which takes money. Getting the requisite supply of money requires, very often, the willing supply of funds, either through taxes or loans, to the monarchs and their minions who wish to build them.
Echoing the influential work of political scientist Barry Weingast, Colley notes that lenders must be persuaded that they will be repaid, and written constitutions can be useful in offering such reassurance that, for example, monarchs will increasingly be hedged in by restraints on their ability magisterially, as it were, to declare that the debts they had incurred were now erased by the monarch’s performative utterance. L’etat est moi loses its charm if one is a creditor worried about being paid back. Thus the emphasis in her title on the joint importance of guns and ships, on the one hand, and written constitutions, on the other. To be sure, written constitutions are not self-enforcing. They are always subject to the Madisonian critique of “parchment barriers.” That being said, they can serve as useful tokens of pre-commitments, especially if the promises are accompanied by the creation of institutions that are at least to some meaningful extent independent of the would-be monarchical sovereign.
A major theme in some contemporary analyses if American constitutional history is the role that “geostrategy” played at the formative stage. Indeed, if one reads only the first dozen or so essays of The Federalist, one would not really imagine that the new Constitution being defended had much to do with defending quotidian liberties. Instead, the argument is all about the dire future facing the young United States should it fail to unite behind the new Constitution and instead dissolve into two or three separate (and vulnerable) countries along the Atlantic seaboard. Although almost everyone knows about Federalist 10, whether or not anyone actually read it at the time, almost no one today is aware of Federalist 11, which is all about the necessity of building a navy, quickly, to guard against both smugglers and invasions from a variety of European countries. And, suitably, after a raft of further essays about the necessity of establishing a strong national government with basically unlimited powers to defend the Union against what we would today call threats to national security, as well as smugglers seeking to evade the paying of import duties, there follow several essays on the importance of the ability of the new government to engage in direct taxation rather than to continue to rely on the pathos of “requisitions” that were definitely not requited.
But Colley also emphasizes the importance of the rise of what today we can identify as “mass media,” even if, obviously, the actual reach of newspapers and pamphleteers was much less than became in the case in ensuing centuries. By 1787, for example, the text of the new Constitution drafted in Philadelephia could be reprinted and (relatively) widely distributed, and debates could take place in a variety of venues, including the plethora of taverns that were a feature of the developing American city. As Benedict Anderson argued in his famous The Imagined Community, it is far easier to envision oneself as part of a national community if there are easily available newspapers that in effect educate their readers that they are part of a wider community than they might originally have thought was the case.
No one should think, after reading Colley, that the United States truly deserves pride of place as the “first” venue of more-or-less modern constitutionism. She actually begins her book with the story of an attempt to write a constitution for Corsica in 1755. Like many other readers, I suspect, I had no idea that Sweden had preceded the United States (including any of the states within the new country) by leading the way with a 1773 written constitution; nor was I aware that Catherine the Great had drafted a constitution for her vast empire, though it obviously never went into effect.Colley is describing a true zeitgeist in which the Americans partook instead of a world in which all of the world looked to America for inspiration. A major contribution of the book is its almost loving description of many subsequent written constitutions across the worlds on all continents save Antarctica. This includes Pitcairn Island, heretofore notable only as the island on which the mutineers on the Bounty found refuge.
So there is no doubt that anyone interested in comparative constitutional law must read this book. It offers an unparalleled descriptive account, going stunningly beypnd the relatively small group of countries that Ran Hirschl has derided as the “usual suspects” in too much comparative analysis. Whether or not Pitcairn Island will actually enter our syllabi, one can be sure that many of her other examples, including unsuccessful efforts, should do so. And, as already indicated, Colley is also offering an explanatory account that largely focuses on the fact, much emphasized by Hamilton, but, of course, not only by him, that the international political system is basically Hobbesian, featuring rapacious countries that, if not rebuffed by military power, will prey on weaker countries. One gains additional appreciation for the inclusion of providing for the “common Defence” in the Preamble to the United States Constitution. In a very real way, it takes priority, at least causally, over other promises about “establishing justice” or “securing the blessings of liberty.”
No doubt The Gun,the Ship, and the Pen will provide grist for milling dozens of future dissertations that will test her account with regard to specific countries. Like Philip Bobbitt’s The Shield of Achilles, it is a grand, overarching narrative of constitutional development that attributes primary import to geostrategic factors, and, like all overarching narratives, it is undoubtedly subject to inevitable nominalist arguments that Albania or Zanzibar, let alone other countries in between, is importantly different. But even as her thesis is tested and perhaps modified—what accounts, for example, of the failure of China at least so far to develop a sufficient legal tradition, perhaps instantiated in a written constitution, that would reassure lenders to that country that they would be repaid?—the book will serve the purpose of all “classics” in historical political analysis, which is to reorder and existing field and ask important new questions. As the author of Ecclesiastes might have put it, there is a time for sweeping narratives and a time for meticulous monographs. Or, more to the point, any flourishing field needs both, and one suspects that the sweeping narratives often come first, precisely because they serve as the inspiration for the monographs.
So I share Jill Lepore’s enthusiasm for the book, expressed in The New Yorker, which encouraged me to order the book immediately (and, even more notably, to read it very soon after receiving it). Indeed, Lepore that if there were a Nobel Prize in history, she would award it to Colley! So do I have any reservations? The answer is yes, and it has to do with the emphasis on writtenness. Although it is certainly true that many people offer as an almost ontological truth that there is such a thing a singular identifiable constitution that can be found in the four corners of a given document—or in a Google search for “the constitution of country X”—one can, I think, almost always demonstrate that all such written documents are accompanied by unwritten companions in the overall enterprise of “constitutionalism.” The giving of the written law on Mount Sinai, it is said within Judaism, was also accompanied by the revelation at the same time of the “oral law.” Within American constitutionalism, Jonathan Gienapp has demonstrated that the original understanding of what “the Constitution” was, ontologically, in 1789, included reference to a variety of unwritten notions, including natural law or, for some, adherence to certain conventions identified with a British constitution that continued to be admired even its particular monarch was now subject to denunciation as a “tyrant.” Akhil Reed Amar has written a substantial book entitled America’s Unwritten Constitution. No one, I believe, suggested that the title was a simple solecism.
So, even as constitutions were written down and creditors reassured that funds would be available to pay them (at least if wars went well), did that render irrelevant the earlier Aristotelian notion of constitutive understandings? I obviously doubt that the answer is yes, but this, too, is one of the questions that graduate students (and their professors) might usefully examine in an effort further to understand the undoubtedly complex, and often mysterious notion, of a country that purports to organize itself under the aegis of something it (and perhaps onlookers as well) are willing to label a “constitution.” Perhaps “unwritten norms” become replaced by statutes and administrative regulations that are legitimized by reference to authorization by the original constitution. Americans in particular might believe that the basic purpose of a constitution is to limit the power of government, whereas many other people around the world—and even some Americans—might realize that the central task of a constitution is to empower government actually to be able to meet the central challenges that face a given socio-political order.
Posted 10:00 AM by Sandy Levinson [link]
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