Thursday, February 28, 2019

"Some of My Best Wives Are Black!"

by Neil H. Buchanan

Apparently, at least one Democratic presidential candidate (Kamala Harris) is now willing to say out loud that Donald Trump is a racist.  This is only a big deal because Trump and his fellow travelers benefit from well-meaning people's understandable social skittishness about calling anyone a racist.  When good people insist on talking about "racially charged remarks" or "attitudes that some view as racist, but no one can know what is in another person's heart," however, that simply creates space for Trump and other racists to push further.

The Washington Post's Jennifer Rubin (taking a break, I was relieved to see, from her tiresome and misguided crusade about Democrats "handing Trump the election by moving too far left") points out that, although calling Trump a racist is both true and right, it does raise a touchy issue, which is what a Democratic contender will say when the inevitable followup question lands: "Well, if you think he's a racist, do you think his followers are necessarily also racists?"

Rubin offers a perfectly plausible reason why a politician would want to finesse that question, on the theory that even racists in this society do not want to be called racist (and might not even realize it).  Not being a candidate myself, however, I aggressively took that extra step in my most recent Verdict column, published earlier this week: "The Democracy Conundrum: What If Large Numbers of Voters Are Racists? (The Trump/Brexit Tragedies)."

See? "Racists" is right there in the title.  Like many other observers, I have been struggling with this for quite some time, but I decided that some things need to be called what they are, and the non-racist rationalizations for Trump's actions -- and his supporters' continued adoration of him -- work less and less well as every day passes.

How will racists react to being called out?  Glad you asked.

Wednesday, February 27, 2019

Using the Meaning of Words to Obscure Cruelty

by Sherry F. Colb

In my Verdict column for this week, I talk about ways in which the law has used definitions of words to obscure harmful activity. I focus on a new law in Missouri that defines "meat" to exclude plant-based and cultured meats and an older federal law that defined marriage to exclude same-sex couples. In this post, I want to apply the same analysis to the marital rape exemption, which was part of the law in this country from its founding through the late twentieth century.

What is the marital rape exemption? It is an exclusion from the law of rape for perpetrators who rape their wives. In other words, if a perpetrator does to a victim what the law would ordinarily classify as rape, but the two parties are married to each other, then under the exemption, there is no rape. The exemption exemplifies the use of language to conceal or enable harm because of how the law worked. It did not simply say that when a husband raped a wife, he would avoid punishment. It said that a man could not be guilty of raping his wife. In other words, the law provided that marital rape was impossible.

Tuesday, February 26, 2019

"On the Basis of Sex" (and Tax)

by Neil H. Buchanan

[Note to readers: Yesterday, Verdict published the third of a recent flurry of my columns: "The Democracy Conundrum: What If Large Numbers of Voters Are Racists? (The Trump/Brexit Tragedies)."  I might write a followup column on that theme here on Dorf on Law soon.  Today's column below is unrelated, but hopefully still interesting.]

Although we here at Dorf on Law feel free to pepper our writing with references to movies and other bits of pop culture, we typically do not write movie reviews.  Having just seen "On the Basis of Sex," the Hollywood treatment of key points in the life of the young Ruth Bader Ginsburg, I will mostly avoid the temptation simply to review the film, instead using it as a vehicle to make some larger points about law and society.  (Professor Dorf's excellent analysis in 2015 of Clint Eastwood's "Gran Torino" is a particularly good example of a discussion that is more than a film review, which I encourage readers to take the time to click and read.)

I actually have already discussed "On the Basis of Sex" (which I will somewhat awkwardly refer to here as OBOS) in a recent column, where I discussed the relatively late arrival of coeducation at the University of Cambridge, even compared to the snail's pace at which at least de jure sex equality had finally arrived at the elite reaches of American colleges and universities.   Having only seen the trailer for OBOS at that point, I used the film (and Ginsburg's graduation from law school in 1959) as a historical marker indicating how dramatically the terrain of women's rights changed in an astonishingly short time.  When Cambridge finally came around in 1979, only twenty years after Ginsburg's graduation (and ten years after schools like Vassar and Yale had co-educated), it was already an embarrassing anachronism.

Before I get into the central topic of this column, I should say two things about the movie as a movie.  First, I loved it.  Second, it is a very Hollywood-style movie, complete with soaring (and deliberately emotionally manipulative) music and extreme dramatization.  It is worth seeing, but it is not a great film.  No matter what one thinks about the Academy Awards (and the blowback against this year's Best Picture, "Green Book," for being little more than "Driving Miss Daisy 2" seems well-placed, especially given that "BlacKkKlansman" was the best movie that I saw last year), the lack of Oscar nominations for OBOS is completely understandable.  It is good, but not all that good.

That is a more tepid recommendation than I had intended, but there you have it.  Even so, the movie is important in other ways.

Monday, February 25, 2019

Anti-BDS Laws, Anti-Discrimination Laws, Subjective Legislative Intent, and the First Amendment

by Michael C. Dorf

Earlier this month, Eugene Kontorovich wrote an op-ed in the Wall Street Journal calling the ACLU hypocritical for arguing that state laws barring those who participate in the BDS boycott of Israel from doing business with the state violate the First Amendment, while at the same time arguing that those who--like the Masterpiece Cakeshop baker--discriminate on the basis of sexual orientation or other characteristics are not engaged in free speech. In a short post on Balkinization, Andy Koppelman agreed. Koppelman thinks that neither the Masterpiece baker nor the BDS participants should have winning free speech claims. He writes: "Conduct often has semantic significance.  But conduct that sometimes has semantic significance isn’t speech.  That was true in the case of the Colorado baker. It’s true [of the anti-BDS laws] as well." 

Responding to both Kontorovich and Koppelman in an essay cross-posted on Balkinization and TakeCare, Amanda Shanor says that there is a crucial difference between anti-discrimination laws like the one at issue in Masterpiece Cakeshop and anti-BDS laws: "Public accommodations laws aim not at a particular political viewpoint—refusals to sell to white customers, for example, are equally prohibited as refusals to sell to black ones—but instead they aim to ensure equal opportunity to participate in" the economy and social life; whereas anti-BDS laws are "about silencing a particular form of dissent because of its viewpoint."

Which side of this argument is right? The short answer is both--kinda. For the longer answer, keep reading.

Friday, February 22, 2019

How to Test Whether Justice Thomas Favors "Halfway Originalism"

by Michael C. Dorf

On Tuesday, the Supreme Court denied cert in a relatively unimportant case (save for the fact that the respondent was Bill Cosby--yes, that Bill Cosby). The petitioner/plaintiff sought review of a federal appeals court ruling that in order to prevail in her defamation suit against the erstwhile Jell-O pitchman she needed to show "actual malice," because she was a "public figure" for purposes of the case, having "thrust" herself "into the vortex" of a public controversy. The quotation marks indicate terms of art in a line of cases originating with the landmark NY Times v. Sullivan.

I have some sympathy for a certain line of criticism of the post-Sullivan cases. Sullivan itself was a case brought by an elected public official. Later cases--especially Gertz v. Robert Welch, Inc.--extend the doctrine's protection against too-easy defamation liability to criticisms of private citizens. Sullivan sensibly protects core political speech critical of public officials, even if that speech contains inadvertent misstatements of fact. It is not entirely clear that criticism of celebrities based on factual errors, much less criticism of non-celebrities--even those who thrust themselves into a controversy's vortex--should receive the same level of protection. Thus, my colleague and friend Steve Shiffrin argues (at pp 120-22 of his book What's Wrong With the First Amendment?) that in some respects the public figure doctrine provides too much protection for speech and in other respects provides too little protection for speech. He would prefer a doctrine that focuses less on fame and more on power.

Nonetheless, although McKee v. Cosby may have worked an injustice, the Court was right to deny cert if the only issue was whether the appeals court correctly applied Gertz. A more worthy petition would have asked the Court to modify Gertz. And indeed, one justice--Clarence Thomas--wrote a longish concurrence in the denial of cert in McKee in which he argued for reconsidering not just Gertz but Sullivan itself. But whatever the flaws in Gertz, overruling Sullivan would throw the baby out with the bathwater.

Thursday, February 21, 2019

Damaging Infighting Among Those Who Want to Beat Trump

by Neil H. Buchanan

In a pair of Verdict columns this week, I assess the state of play in the incestuous overlapping worlds inhabited by politicians and political pundits.  Specifically, I argue first that there is no reason to be surprised that Donald Trump and the Republicans are screaming "Socialism!! Aaahhhh ..." in response to anything and everything that comes from the mouth of a Democrat.

It is not only that Republicans continue to have nothing popular to offer the voters, but also that they think that they can run an entire campaign by refusing to define the word socialism even as they shout it relentlessly.  Their entire strategy is to make everyone associate bad things with that word. and actually defining it would rob it of its mythical powers.  It is the perfect marriage of Trump's fear-mongering and Republicans' longstanding belief that any attempt to rein in the extremes of capitalism is a Marxist plot.  Fear the commies!

I next argue in today's column that the anti-Trump pundit class needs to stop reinforcing the "Democrats are turning too far to the left" narrative that has recently become popular.  Some, such as Jennifer Rubin of The Washington Post, seem to simply feel on a gut level that they hate Bernie Sanders, apparently because he dares to call his brand of politics democratic socialism.  That Sanders's actual policy positions are not at all radical -- that they are, in fact, indistinguishable from the liberalism that has been utterly mainstream since the 1930's -- seems not to matter to those who allow labels to substitute for content.

But the larger problem is that this claim that the Democrats have "gone too far" is being turned into an assertion that their embrace of what are actually quite popular policy positions is "giving Trump an opening."  Again, there is no opening, and Trump and the Republicans would do what they are doing no matter what.  The danger is only that this group of hyperventilating pundits is repeatedly validating a false narrative.

There is, however, a valid concern about how the Democrats handle themselves, which has to do with internal purity tests and infighting more generally.  It is worth thinking about that potential problem a bit here.

Wednesday, February 20, 2019

Is Trump's Emergency Unconstitutional or "Merely" Illegal? And Does it Matter?

by Michael C. Dorf  (cross-posted on Take Care)

The lawsuit by California and 15 other states seeking to block President Trump from building part of a border wall with redirected funds repeatedly alleges that Trump's emergency declaration and other actions are "unlawful and unconstitutional." The lawsuit includes four claims for relief, alleging: (1) a violation of separation of powers; (2) a violation of the Appropriations Clause (Article I, Section 9, Clause 7), which forbids money from being "drawn from the treasury, but in Consequence of Appropriations made by Law;" (3) that the president has acted ultra vires by exceeding the scope of authority granted him by the Constitution or statutes; and (4) a violation of the National Environmental Policy Act (NEPA), with respect to California and New Mexico, insofar as the proposed border wall construction was not preceded by the preparation of an environmental impact statement (EIS).

That fourth claim pretty clearly alleges a statutory violation only. The Constitution does not require the preparation of an EIS; NEPA does; thus, failure to prepare a required EIS violates NEPA but not the Constitution.

What about the other three claims? Each states that the president acted without constitutional authority. To what do these claims refer?

Trump's emergency declaration claims authority based on "the Constitution and the laws of the United States of America." Insofar as Trump argues that he would have inherent presidential authority to redirect funds even without statutory authorization, the states' lawsuit attacks such a claim by deeming Trump's actions unconstitutional. Trump appears to say that the Constitution gives him power to redirect funds; the states say it does not; that's a pretty clear constitutional issue (and a winning one for the states, if a court reaches the merits).

However, notwithstanding its reference to the Constitution, the emergency declaration does not seem to claim inherent presidential authority to redirect funds. It describes how funds would be used in ways that roughly follow the limitations of the National Emergencies Act (NEA). Of course, the states' lawsuit and other lawsuits that have been or will soon be filed argue that the NEA does not authorize Trump's emergency declaration -- and if neither the NEA nor any other statute authorizes the diversion of funds, then Trump lacks authority to divert funds in light of the Constitution. So in a sense, the states' claim that there is no statutory authority necessarily entails a constitutional claim.

But is that the sense of unconstitutionality we should care about? Should a claim that the president has exceeded or plans to exceed his statutory authority be denominated a constitutional violation? Does it matter?

Tuesday, February 19, 2019

Voters’ Remorse

by Neil H. Buchanan

The scandals roiling Virginia politics have receded a bit from the headlines, but the good news is that there seems to be agreement that the sexual assault and rape charges against Lieutenant Governor Justin Fairfax should be fairly investigated.  Because nothing official has yet been put in motion, that apparent consensus might ultimately break down, but as of this moment, it at least seems possible that the initial chaos will yield to something resembling a real investigation and a deliberative process.

In a column last week, I compared how the Fairfax situation is being handled to the Republicans' shameful mishandling of Brett Kavanaugh's nomination to the Supreme Court last Fall.  In the comments on that column, some readers debated whether it would be appropriate to keep the winner of an election in office after news breaks that might have changed the outcome of the election.  If news emerges that would have reversed the result, should the winner be impeached or forced to resign?

Monday, February 18, 2019

Standing to Challenge the Emergency Declaration

by Michael C. Dorf

Last month, before President Trump had committed to declaring a national emergency in order to obtain funding for his border wall, I wrote a blog post in which I focused on what I called the "big picture" question posed by the statutory framework that allows the president to declare a national emergency that lasts for years. My bottom line was that Congress had failed in its obligation to oversee and participate in important matters of national policy. In my latest Verdict column, I continue focusing on the "big picture" by discussing how we got to Trump's emergency declaration and speculating on how challenges to it will fare in the courts.

Here I want to focus on one of what I called the "lawyers' questions" that I bracketed in my January post. There I warned that focusing on these details in a way concedes too much to Trump and his backers, because it tends to normalize the debate and channel it into a discussion of legal technicalities. In an effort to heed my own warning, I'll try to address today's lawyers' questions from a bird's eye perspective rather than from a worm's eye perspective.

Even so, I want to be clear that in focusing on the prospects for success of litigation attacking Trump's emergency declaration and border wall more broadly, I continue to think that these are secondary issues. The fundamental problem (which my Verdict column tackles directly) is the threat to constitutional democracy that emergency declarations in general and Trump's in particular pose.

Friday, February 15, 2019

Comparing the Handling of the Justin Fairfax and Brett Kavanaugh Situations

by Neil H. Buchanan

The intense media coverage of the situation in Virginia -- with the Governor and Attorney General admitting to having engaged in racist behavior, and the Lieutenant Governor having been accused by two women of sexual assault -- has looked at the situation there from seemingly every angle.  Although I acknowledge that I might have missed it, however, I have not yet seen more than passing remarks comparing the Lieutenant Governor's situation to the grotesquely mishandled confirmation process for now-Supreme Court Justice (ugh) Brett Kavanaugh.

Before trying to fill at least a bit of that apparent void, I should note that I have a somewhat closer than usual six-degrees-of-Kevin-Bacon-style connection to Lt. Governor Justin Fairfax, because a colleague at my law school is an immediate relative of Fairfax.  I am passingly friendly with that colleague, but we are not friends, and I have never met the lieutenant governor.

Even so, it is true that my school took genuine joy and felt a special connection in celebrating the election of a man in a state where his ancestors were once enslaved.  Indeed, on the day that I mentioned in class the moving story about Fairfax having carried the manumission document of his great-great-great grandfather, my eyes were not the only ones in the room that were tearing up.  This was a big moment for Virginia and for America, but it also felt somehow more personal.

Now, Fairfax faces two credible, corroborated claims of rape and sexual assault.  Given this shocking turn of events, we have to ask what people on the left think and are willing to do when one of their best recent feel-good stories takes such a shocking turn.  This is all the more important because Fairfax, at age 39, had been seen as rising star in the Democratic Party.  Although it is now all but impossible to imagine that his career has any remaining upside no matter what happens, it is still important to ask what should be done now.

The good news is that, within an excruciatingly difficult situation, Democrats in Virginia and nationally are handling the Fairfax question rather well -- certainly better than Republicans handled Kavanaugh.  As we have seen so often, Democrats hold themselves to the standards that they expect of others -- even when Republicans repeatedly and shamelessly refuse to do so.

Thursday, February 14, 2019

Green New Meal

by Michael C. Dorf

The Green New Deal (GND) resolution pending in Congress sets ambitious goals for attacking climate change while also promoting job growth. I applaud its authors and sponsors for recognizing the urgency of the problem and the need for bold action. I especially appreciate two aspects of the template: (1) it does not bow to the conventional wisdom that addressing environmental harms conflicts with prosperity, because, after all, a healthy economy ultimately depends on a livable environment; and (2) neither does it compromise in advance with deniers, skeptics, and self-described moderates, because anything that will ultimately make it through Congress (even a Democratic Congress with a future Democratic president) will be watered down somewhat, so one should at least start with what makes sense as policy.

Accordingly, and as a friendly amendment, I want to point out an important omission from the resolution: it fails to recognize or respond to the very large role that animal agriculture plays in generating climate change and other environmental damage. That omission is especially disappointing, because the most prominent spokesperson for the Green New Deal, Rep. Alexandria Ocasio-Cortez, understands that animal agriculture substantially contributes to global warming. She recently touted plant-based milk and urged a group of schoolchildren to avoid meat and dairy for at least one meal per day as a concrete action they can take to reduce their carbon footprint.

Even that advice strikes me as insufficiently bold and thus out of step with point (2) above, but it is still better than what the resolution itself states. In her advice to the schoolchildren, AOC recognized that animal agriculture itself is problematic. The GND resolution does not.

Wednesday, February 13, 2019

Does It Really Matter Why I Do What I Do?

by Sherry F. Colb

This week, my Verdict column takes up the question of the Virginia proposed abortion bill. I specifically focus on the possibility of a doctor approving an abortion for a woman at the very end of her pregnancy. I consider some of the reasons that people have for favoring abortion rights and how each reason, respectively, fares in offering a defense of a third-trimester abortion. I suggest that the reasons for being pro-choice start to matter when some of the reasons provide no coherent rationale for protecting the right to the particular abortion.

Having argued for the proposition that reasons matter, however, I want to reconsider that position. Of course, if one is defending the right to a late third-trimester abortion, one relies on the "non-personhood" of the 30-something-week fetus at one's peril. It is accordingly important that we defend our own positions with arguments that actually bear on those positions and, ideally, that rely on premises that our interlocutors share rather than categorically reject.

Tuesday, February 12, 2019

Coeducation as Radical Reform and Perfectly Normal Reality

by Neil H. Buchanan

The push toward greater empowerment of women is one of the most exciting political and social changes of the past few years (and, viewed from different perspectives, of the past few decades and centuries).  In a time when a knuckle-dragging caricature of the most vulgar kind of sexist became President of the United States -- and did so by running an openly sexist campaign ("Trump that B*tch!") against the first female major party presidential nominee -- one of the most positive developments in our political culture has been the mobilization of outraged women.

From pussy hats to suffragettes' white frocks to six (and counting) women running for president, we are seeing what one hopes is the permanent flowering of a more inclusive politics.  We are still gingerly figuring out the contours of the #MeToo awakening, but as frustratingly slow as the pace of change has been, it seems to have accelerated recently, and it is at least possible to imagine that there will be little to no backsliding -- although Susan Faludi's classic Backlash still serves as an important reminder of the power of regressive forces.

I mentioned in a recent column that I am currently enjoying the honor of being a visiting scholar at the University of Cambridge in England.  One of my affiliations here is with Christ's College, one of the 31 colleges within the university that are essential parts of undergraduates' (and, to a somewhat lesser extent) graduate students' educations.  This year, Christ's is celebrating the fortieth anniversary of coeducation within the college, "40 Years of Christ's Women," which is now noted in a logo on the college's website.

This is, by any measure, an important celebration. As I understand it, 1979 was the year when not just Christ's but nearly all of the university (and other universities here) became almost fully coeducational.  Seeing the college's efforts to note this anniversary has led me to think about how strange it is that it was only forty years ago that this was a radical -- if by then inevitable -- move.  I hereby offer a few thoughts about how that radicalism became so utterly unremarkable within only a few short years.

Monday, February 11, 2019

Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law

By Eric Segall

I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.

The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.

Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.

As I am the author of the essay, "The Constitution Means What the Supreme Court Says it Means," I couldn't let all this pass.

SCOTUS Alabama Imam-less Execution Case and the Chaplain Question

by Michael C. Dorf

The Supreme Court's stay of the Louisiana abortion law on Thursday night overshadowed another 5-4 order it issued roughly simultaneously. In Dunn v. Ray, the Court lifted a stay of execution that the Eleventh Circuit had granted. That court wanted time to consider inmate Ray's claim that Alabama's denial of his request for spiritual counseling from an imam during his execution violated the Establishment Clause, in light of the fact that Alabama "regularly allows a Christian chaplain to be present in the execution chamber." That quotation comes from the dissent of Justice Kagan, who was joined by Justices Ginsburg, Breyer, and Sotomayor.

The justices in the majority did not respond to the dissenters' objection on the merits. The entirety of their analysis consisted of the statement that they could take into account the "last-minute nature of an application to stay execution." Ray's request came a little more than two-and-a-half months after the execution date was set and ten days before the scheduled execution. However, it is hardly clear that Ray sandbagged, given that he was first informed of the relevant prison policy only five days before he filed his federal court complaint. In any event, as a consequence of the Court's order, Ray (who murdered three teenagers in the mid-1990s) was executed--without an imam by his side--about two hours after the Supreme Court ruling.

Thursday, February 07, 2019

The Significance of Chief Justice Roberts Joining in the Stay of the Louisiana Abortion Law

by Michael C. Dorf

Tonight's decision in June Medical Services v. Gee, the Louisiana abortion case, is less significant than it would have been had the Court denied relief--for that would have signaled that five justices could be prepared to overrule the abortion right sooner rather than later. By staying the Fifth Circuit ruling, the Court merely preserved the status quo. In 2016, in Whole Woman's Health v. Hellerstedt,  the Court invalidated a Texas admitting privileges requirement that was not substantially different from the Louisiana requirement that the Fifth Circuit disingenuously distinguished here. One might therefore readily conclude that the granting of the stay is simply a preservation of the status quo.

And yet, while June Medical Services should not be read for more than it is worth, it also should not be read for less than it is worth. No justice who was committed to overruling the Court's abortion jurisprudence has ever voted to block an abortion law from going into effect. (I discount Justice Alito's earlier stay in this very case, which expressly stated that it was not in any way based on the merits.) Thus, the fact that CJ Roberts joined the remaining members of the Whole Woman's Health majority is important.

What Kind of Constitutional Mess Might a Wealth Tax Create?

by Neil H. Buchanan

Republicans and some nominally non-Republican billionaires are becoming increasingly alarmed by the popularity of proposals to increase taxes on the rich.  More accurately, they are apoplectic because many Democrats have finally started to take seriously progressive tax proposals that have in fact been popular for a long time.

In my Verdict column today, "Can We Tax Wealth? Yes, and Even if Not, Still Yes," I gingerly wade into a constitutional claim that some conservatives have floated recently, which they believe will allow the Supreme Court's newly fortified conservative bloc to invalidate anything that a future -- perhaps very near-future -- Democratic president and Congress might pass.

I will get into as few details as possible here, allowing readers with further questions to link to today's column, but the short version is that the Constitution requires that direct taxes be apportioned whereas indirect taxes need not be apportioned (but must be uniform).  Do you suspect that the meanings of each of the italicized terms is highly contestable?  Ubetcha!

Again, my purpose here is not to dive back into the constitutional details that I cover in the column (although some of that is necessary) but rather to explore how a victory on what conservatives view as their devastating argument would actually lead to something unexpected and objectively worse than a standard wealth tax, though still better than the status quo.  The bottom line is that we definitely can have a wealth tax, but conservatives might force us to choose the least sensible version of one.

Wednesday, February 06, 2019

Uncanny Valleys

by Michael C. Dorf

In my latest Verdict column, I discuss the decision by the US and various other countries to recognize Juan Guaidó as the legitimate president of Venezuela. I frame my discussion around the question whether, and if so why, it is appropriate for outside states to deny recognition to Nicolás Maduro on the ground that his election was tainted when such states continue to recognize authoritarian leaders of other countries (I name Saudi Arabia and North Korea) who have no democratic legitimacy.

I offer two answers. First, I note that there are practical/prudential reasons why democratic regimes recognize undemocratic ones. Second, I argue that there is something particularly bad about subverting a democratic regime. To make that second point, however, I need to address the fact that some wholly undemocratic regimes have "sham constitutions" that purport to be democratic. While hardly approving of sham constitutionalism, I nonetheless acknowledge that in most cases (as in North Korea), it is easy enough to see that the constitution was never meant to be taken seriously.

To illustrate the possibility that it could be worse--at least along one dimension--for a leader to subvert his country's genuine democratic norm than for a leader to rule autocratically without the serious pretense of democratic legitimacy, I draw on the concept of an "uncanny valley," familiar from the study of robotics. A robot that looks nothing like a human is not creepy. Neither is an actual human. But a robot who looks pretty close but not quite close enough to a human is creepy. It falls within the uncanny valley. I suggest an analogy for systems of government.

Here I want to ask whether we can find other uncanny valleys. Depending on how loosely one defines the concept, my guess is that we can find a great many.

Tuesday, February 05, 2019

Is the Rule of Law More Important Than Breathing?

by Neil H. Buchanan

Public debates frequently invoke -- in deeply somber tones meant to convey the utmost seriousness of purpose -- the interests of future generations.  "Our children and grandchildren" are the ultimate political prop, favored because they seem so vulnerable and deserving of our protection.

Despite my disparaging tone, I do not at all disagree that we should think about the interests of people in the future when we make public policies.  My cynicism is driven by the blatant dishonesty of so many people who use future generations to justify their agendas, the most obvious being conservative politicians who claim that "we must not pile debt on the backs" of the kids as an excuse for taking away funding for, say, education or early childhood health care.  (No, that is not a fanciful example.  I wish it were.)

There are, however, honest and selfless reasons to adjust our policies to enhance the interests of future generations -- not just the immediately succeeding generations whom we will know and with whom we must coexist at least for a time, but also for generations much further down the road.  Although the philosophical arguments supporting such a long-term obligation are surprisingly tentative (as I explained in a long law review article some years ago), at least in some policy contexts it is easy to motivate concerns for future generations.

The most obvious interest that all generations share, one would think, is to preserve the environment so that all people can live long and healthy lives.  What in the world was I thinking, then, when I wrote last week that "if push comes to shove, democracy and the rule of law must come" before environmental protection?  Can that possibly make sense?

Monday, February 04, 2019

Originalism off the Ground

By Eric Segall

Professors Will Baude and Stephen Sachs are at it again. They have continued their quest to convince the world that originalism is, indeed, our law. Their new article is "Grounding Originalism."

In previous articles and essays, Baude and Sachs have set forth a positivist account of constitutional law, arguing that our law is the Founders' law until properly amended or changed. They have also claimed that our Founders' law allows judges to change old applications of legal principles if new facts require such changes, as long as the constitutional provision at issue was intended, designed or originally meant to allow judges to do just that. In other words, cases such as Brown v. Board of Education and Obergefell v. Hodges, which most scholars categorize as non-originalist, may properly be classified as originalist decisions if, and only if, the 14th Amendment's original meaning embraced evolving applications by judges (an issue that the authors surprisingly have so far ducked).

Baude and Sachs have also argued that lawyers, law professors and judges often criticize or praise Supreme Court decisions based on originalist criteria and make originalist arguments to the Court, thereby demonstrating that our legal vocabulary is originalist, which shows that originalism is our law. In their newest piece, they point to scholarly and lawyerly debates over the Emoluments Clause and what that word originally meant to show the large role that originalism plays in constitutional interpretation. Why argue so ferociously over originalist evidence if originalism isn't our law (well maybe to hide the value judgments that will ultimately decide the case)?

"Grounding Originalism" also contains much discussion of Hartian philosophy and rule of recognition issues, which some critics have used to critique their work. But the authors concede that "the more enduring dispute between us and many of our critics is far more banal: it’s a simple empirical disagreement. Maybe our beliefs seem odd, not because there’s anything wrong with our legal theory, but simply because other readers don’t see how our existing legal practice grounds a form of originalism." This is where I come in.

I'll likely have a further, more detailed law review response, but for now it is enough to rehash a few arguments I've made before in my work criticizing the notion that originalism is our law, while adding a few new thoughts to that critique.

Friday, February 01, 2019

Did a 'Good Government' Reform Inadvertently Narrow Anti-Discrimination Law?

by Neil H. Buchanan

Typically, our columns here on Dorf on Law are very much "of the moment," because we are reacting to a recent court decision or proposed legislation, or because we are analyzing economic evidence and responding to (frequently quite bad) arguments, or often because we are directly engaging in current political analysis (most recently focused on various Democratic presidential candidates).

At the end of the day, however, we are academics; and sometimes it is refreshing to engage in purely academic thinking without worrying (too much) about the immediate relevance of the topic.  What better time than while I am a visiting scholar at the University of Cambridge to take a dive into some historical analysis -- ironically, given my location, sitting in a lecture hall listening to an American historian's lecture about early American legal history?

Yale professor Naomi Lamoreaux is a visiting scholar here at Christ's College.  Earlier this week, she presented the annual Lady Margaret Lecture: "Getting the American Model Right: State Constitutional Revision and the Achievement of General Laws in the Mid-Nineteenth Century U.S."

Here, I will offer a summary (reasonably accurate, I hope) of the historical evidence and argument that Professor Lamoreaux provided in her lecture.  I am doing this mostly because I simply found it fascinating, but also because it is likely to be especially interesting to people who (like many Dorf on Law readers) have studied law.

As the title of this column suggests, however, I found myself (as someone who admittedly does not even qualify as an amateur historian) wondering whether there might be a modern implication of the history that Professor Lamoreaux laid out so beautifully.