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The Case for Pragmatic Pluralism as the Best Method of Constitutional Interpretation

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How judges should interpret the United States Constitution is an issue as old as the Constitution itself. The myth that the text plays a serious role in constitutional cases can be debunked by simply recognizing that judicial review itself, a power never used by judges anywhere in the world prior to the American colonies, is nowhere mentioned in the Constitution. Nevertheless, as a matter of structure, history, and common sense, the power of judges to refuse to give effect to laws that violate the Constitution is an essential feature of American democracy. Moreover, it is a justifiable conclusion based on a theory of constitutional interpretation I will call pragmatic pluralism (which is a phrase used by some in the sciences as well). Perhaps the best example of judicial pragmatic pluralism comes from one of the most important cases in American history- McCulloch v Maryland . This litigation involved the first important constitutional debate arising after ratification: the constitutio...
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Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 2 of 2)

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For those of us who follow US politics reasonably closely, the 2026 primary season has been quite a ride.  And we are back at it today, with several more states holding primaries.  One of the safest predictions I can make is that lazy pundits and journalists will once again describe conservative Democrats as "moderates," even though there is not even a passing attempt to analyze -- or even to identify -- an affirmative vision of their policy views on economics, foreign affairs, climate, and other issues, much less to show how those views are somehow in the middle of a range of identifiable competing alternatives. Even so, the coverage from both pundits and "straight news" sources will again lean into the same old caricature: wild-eyed lefties versus worried moderates.  How can I be so sure about that?  Because that is what has been happening for years, and the political conversation in this country is nothing if not tediously predictable. Last week, in Part 1 o...
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The Roberts Court Record on Executive Power is Mostly Lose-Lose

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A little over two years ago, in Loper Bright Enterprises v. Raimondo ,   the Supreme Court jettisoned the Chevron  doctrine requiring judicial deference to reasonable administrative agency interpretations of unclear statutes they are charged with enforcing. Because the gears of academic publications turn much more slowly than those of the blogosphere, my article explaining why a key postulate of Loper Bright is wrong has only now been published. I won't claim it was worth the wait, but I do hope that readers will find something worthwhile in it. The paper is titled Deference and the Rule of Law . It's currently available as something called FirstView via Cambridge University Press here . The final version (which will not be subject to any further editing) will appear in the Canadian Journal of Law & Jurisprudence, so if you're reading this blog post in the future and the foregoing link doesn't work, you might need to go to the journal's website . Also, if you...
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About Those Driverless Cars and the Political Power Play Behind Them

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At the end of " Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 1 of 2) " yesterday, I wrote that I would publish Part 2 of that column today.  Upon reflection, however, that topic seems like an unnecessary (and unwelcome) heavy lift on a Friday afternoon, so I have decided to move Part 2 to next week.  Instead, I will end this week with a brief update on a policy matter that is not exactly light reading, but it at least is not about threats to democracy and the rule of law in the United States.  (I have updated yesterday's column accordingly.)  As I like to say,  arguably   too often ): You're welcome. In any event, this is a good time to revisit the subject of driverless cars, aka autonomous vehicles.  One of my current favorite YouTubers is a guy named Dan Toomey at Good Work , whose videos are almost always equal parts informative and hilarious.  Last week, he posted " The fight over driverless cars is her...
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Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 1 of 2)

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Even though the subject matter of today's column is anything but funny, I will begin with a humorous pop-culture reference. In one of the (few) scenes in the movie "Animal House" that is still amusing and inoffensive, one of the Delta fraternity brothers takes the floor at a disciplinary hearing at which his house has been (accurately, albeit vindictively) accused of violating all kinds of Faber College rules. Here is the end of his speech: But you can't hold a whole fraternity responsible for the behavior of a few, sick twisted individuals. For if you do, then shouldn't we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn't this an indictment of our educational institutions in general? I put it to you, Greg - isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America.   That e...
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Precedent and Personnel: When the Justices Change so Does the Constitution

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Readers of this blog know that I am a harsh critic of the Roberts Court (to say the least). The current GOP justices have dramatically altered the constitutional law of abortion, affirmative action, gun control, separation of powers, free speech and free exercise, among many others, in a short period of time. Partisanship is a much more important factor to the Roberts Court than fidelity to precedent, text, or history, and it is not close. The Court's utter disregard for prior cases, however, has long been a feature of Supreme Court decision-making. Constitutional law changes substantially in this country when the justices’ politics and values change, and often for no other reason. The Supreme Court has never been an institution that puts law in any form above the justices' aggregate policy preferences. This disregard of prior law is not a 21st-century problem. A dramatic story rarely told that unfolded more than 150 years ago reveals the true character of the Supreme Court. ...
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When Constitutional Amendments Change Background Assumptions: 22nd Amendment Edition

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As I noted here on the blog last week, I'll be spending the day tomorrow with lawyers, a judge, a journalist, and several other law professors discussing the most recent Supreme Court Term at the Practicing Law Institute's annual Review.  One of the cases that will undoubtedly receive a great deal of attention is Trump v. Slaughter , in which the Court invalidated good-cause removal protection for members of the Federal Trade Commission and, by clear implication, nearly every other independent federal agency. When Slaughter was decided, I wrote a highly critical analysis of the opinion. I stand by my analysis but in today's essay I want to consider another ground for criticizing the ruling that was offered last week by my former colleague, Columbia Law Professor Jeffrey Gordon. In an essay last week on Balkinization , Professor Gordon argues that Slaughter is wrong in light of the 22nd Amendment. Readers will recall that the 22nd Amendment is the one that Donald Trump kee...
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We Must Not Forget that Trump and Reagan Both Became President by Accident

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I should state up front that this column can be added to the "failing to remember history, doomed to repeat it" file.  There is nothing new, of course, to the admonition that it is important to understand history.  Although that is indeed an old point, it nonetheless needs to be repeated again and again, because too many people forget.  And because history inescapably gets longer, while attempts to rewrite it -- especially in this era of pathological lying from the Oval Office -- are part of an ongoing disinformation campaign, the specifics matter. As I will argue below, there is an alarming kind of retroactive triumphalism about Trump's 2016 and 2024 electoral outcomes that is disconnected from reality, a triumphalism that we can also see in contemporary commentary about Ronald Reagan.  Those two accidental presidents are now treated as all but inevitable by people who have simply decided to impute their own spin on what "the American People" said with their vo...
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Fauci Fifth Follow-up

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Yesterday on this blog I discussed Dr. Anthony Fauci's invocation of his Fifth Amendment right against self-incrimination when testifying before the Senate Committee on Homeland Security and Governmental Affairs. I explained why it's not clear that Fauci had such a right, given: (1) that there is no privilege with respect to "anticipatory perjury"; (2) his pardon from President Biden on federal charges for pre-January 20, 2025 conduct; and (3) the implausibility that anything he said would tend to incriminate him for state crimes not covered by the presidential pardon. In response, a number of readers pushed back on (3), pointing to the fact that almost immediately after Fauci's testimony, Florida Attorney General James Uthmeier took to X to announce: "Fauci's lack of candor to Congress is unbelievable. My office is launching an investigation into Dr. Fauci. It's past time we get the truth of what happened during COVID." To state the obvious, an...
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Was Dr. Fauci Entitled to Invoke the Fifth Amendment?

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In response to a subpoena, yesterday, Dr. Anthony Fauci appeared before the Senate Committee on Homeland Security and Governmental Affairs. Citing the fact that Senator Rand Paul is out to get him, Fauci invoked his Fifth Amendment right against self-incrimination . Fauci's characterization of Paul was not fanciful. Paul has said Fauci should be behind bars, and on the eve of Fauci's appearance before the committee, Paul released over 1,100 pages of Fauci's diaries from the latter's time in office. (The diary entries were found on computers in the Department of Health and Human Services and turned over by RFK Jr. to Paul, who chose to release them to the public.) Hold on! Didn't President Biden give Fauci a pardon just before he left office? Indeed he did . So what was Fauci afraid of? The most straightforward answer might be that between receiving his pardon in January 2025 and invoking his Fifth Amendment right on Wednesday, Fauci committed a crime he had reason t...
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