The Sport of Attacking Law Review Editors

Earlier this week, Gail Heriot at the Volokh Conspiracy wrote a post criticizing the editors of the Emory Law Journal for refusing to publish an invited article after the author, Larry Alexander, refused to make substantial edits to the piece. Initially, Heriot did not include a copy of the article in her post--it was unclear if she did not have access to it or if she simply declined to do so. Instead, Heriot provided a paraphrased version of portions of the article and some heavily edited quotes from correspondence sent by the Editor-In-Chief to Alexander. Heriot called out the Editor-In-Chief by name--a classy move that was repeated by others (here and here, for example) who jumped on the bandwagon to criticize the decision. 

Here's how Heriot portrayed the Editor-In-Chief's reason for rejecting the article absent substantial revisions:

[The Editor-In-Chief] wrote that the ELJ Executive Board had "unanimously stated they do not feel comfortable publishing this piece as written." "We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive." "Additionally," she wrote, "there are various instances of insensitive language use throughout the essay (e.g. widespread use of the objectifying term 'blacks' and 'the blacks' . . .) . . . ."

And here is Heriot's dissection of this reasoning:

(If the term "black" in reference to African Americans is "objectifying," a lot more than just Larry's essay will need to be canceled. As for "the blacks," I have been told that some consider this to be a rude way to refer collectively to the members of a race. But, even assuming that it would be rude, Larry wasn't using the term that way. He was using it to refer to the particular blacks in one of his hypotheticals. The "the" was intended to make that clear.

In addition to the other bloggers noted above, other scholars leaped to Alexander's defense. Keith Whittington called out the Emory Law Journal's "terrible behavior." Andy Grewal admitted that he hadn't read Alexander's essay, but decided that the incident was enough to stoke fears over the specter of ideological tests for journal content. 

Several hours after Heriot's initial post, Eugene Volokh added his own note at the top of her post with a link to Alexander's article. Here it is--if you dare.

At first, the article appears salvageable--it certainly takes a conservative view towards disparate impact theory and includes legion instances of the "blacks" language that Heriot noted in her initial characterization. But then we get to Part III in which Alexander veers off into an opinionated diatribe on why systemic racism does not exist and is not a problem. Some selections:

One hears a lot these days about so-called “systemic racism.” That term is usually not defined, nor are the “systems” that it refers to identified. 

One such “system” is that of apprehending, trying, and punishing those who murder, rape, rob, burglarize, and batter. It is difficult to see how that “system” is in any way “racist.” One may, of course, object to particular criminal laws, including some that have a disproportionate impact on blacks.30 But that would be a retail objection, not a wholesale objection to the “system” of criminal justice.

[Footnote 30]: A number of criminal laws, including, for example, the various laws against acts of violence, have a disproportionate impact on blacks. But that is because blacks violate those laws disproportionately.

. . . 

There are many causes for why races, however defined, are not proportionately represented in all domains. Asians, for example, are “overrepresented” in science, medicine, and technology. This may be due to native intelligence, cultural preferences, educational diligence, or some combination of factors. The same things may explain the disproportionate number of Jews in the professions, or the disproportionate number of blacks in professional sports. There is nothing racist in the selection processes in any of these fields of endeavor.  [emphasis added]

. . . 

Had there been no slavery, the ancestors of today’s U.S. blacks would have remained in Africa, most often as the slaves of other African tribes. And even more basically, in the absence of slavery, today’s individual blacks would not exist. That is, although blacks might exist in the U.S., the ones who actually exist here would not exist at all. For each of us is the product of a particular sperm and egg. Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be.

. . . 

The real impediment to the advancement of poor blacks – and everyone knows this, regardless of whether they admit it – is the cultural factors that have produced family disintegration, which in turn portends poor educational achievement, crime and poverty. And this problem will only be worsened by reparations, which sends the message that the predicament of poor blacks is others’ fault, that blacks are victims, and that they have no control over their fate.

Once a link to the article was posted, commentators began to speak out in favor of the Emory Law Journal's decision, noting that it exercised reasonable editorial judgment in rejecting an unsupported and needlessly offensive article. Many of Alexander's initial defenders have not reacted to criticism of the article itself, likely out of the hope that by staying silent their defense will be forgotten. Still, some persist, including Robby Soave at Reason who neglects to cite to or attempt to defend Alexander's article, and this incredible post by William Jacobsen (yet another law professor!) who claims that Alexander's article is "not incendiary" and that "[i]t was hard to find the “controversial” portions to excerpt." He then goes on to include lengthy excerpts from the article, none of which include the excerpts quoted above.

Despite Jacobsen's laughably selective excerpting of the article, his post includes some helpful additional information, including what appears to be an unaltered communication from the Editor-In-Chief of the Emory Law Journal to Alexander regarding their concerns with his piece. Here it is:

Hi Professor Alexander,

Thank you for reading the memorandum and considering our edits. I shared the piece with my Executive Board, and they unanimously stated they do not feel comfortable publishing this piece as written. We think there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer. However, we believe this piece would need to be greatly revised to be published in our journal.

We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive. Additionally, there are various instances of insensitive language use throughout the essay (e.g., widespread use of the objectifying term “blacks” and “the blacks” (pages 2, 3, 6, 8, etc.); the discussions on criminality and heredity (pages 11 and 14), the uncited statement that thankfully racism is not an issue today (page 18)). And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.

Can you please modify the piece, removing Part III and focusing on building Parts I & II to discuss the merits of Professor Perry’s work, by Sunday, December 19? We would welcome a manuscript revised along the lines we have suggested, but, absent those revisions, ELJ will not publish this contribution to the festschrift.

Recall that Part III, excerpted above, includes the most flagrant instances of unsupported, incendiary commentary. Additionally, this full communication reveals that Heriot's quoted version at the top of this post was wildly misleading--emphasizing the portions of the communication that were most likely to stoke conservative outrage, and omitting many of the cited bases for demanding revisions.

Jacobsen also quotes Alexander's measured response:

I refuse to eliminate Part III or to modify my language. I cannot believe the censorious tone you are taking towards an invited symposium participant. You don’t have to agree with what I’ve written, but what I’ve written I stand behind.

For what it's worth, I will be copying Alexander's response and using it as a form reply to any partners who attempt to edit my briefs from now on.

The fallout from the Emory Law Journal's decision and the incomplete initial coverage of it continues. At this point, the bulk of the commentary appears to be on the side of the journal--affirming that the editors were within their rights to reject an invited article that turned out to be filled with unsupported nonsense after the author refused to revise away the nonsense. Had the article been published, these same commentators likely would have excoriated both Alexander and the law journal for writing and publishing such a piece.

This likely reaction, and the initial reaction of Alexander's defenders, are examples of the all too common practice of professors criticizing the student editors of law reviews for their editorial capabilities. Starting with Fred Rodell's 1936 article, "Goodbye to Law Reviews," law professors have developed a sub-genre of academic legal literature in which they do little more than criticize the legal publication process itself. Many of these professors are flippant or extreme in their criticism, describing student editors as "incompetents," noting editors' "ignorance, immaturity, [and] inexperience," claims that student editors are uninformed and characterizing the Harvard Law Review's efforts to "ensure adequate representation of minorities and women" as "the fall of the citadel," and others.

These examples are only some of those that have made it into published scholarship. On social media, many professors demonstrate an almost reflexive instinct to criticize the capability of student editors and to lament the state of legal scholarship. To some extent, this instinct is understandable. Decisions over hiring and tenure are largely based on the quantity and placement of professors' scholarship, and for that to be largely in the hands of student editor is a source of frustration for current and prospective professors. Still, when critiquing student editors, law professors often neglect to mention their responsibilities as educators of these students and fail to recognize that they are essentially attacking their own students when they attack journal editors. 

(As an aside, professors and fellows should not discount the significant, innate value in having their name associated with any academic institution when trying to publish legal scholarship. Practitioners like me who are not associated with any law school have the privilege of submitting pieces branded with the "Independent" label--a red flag that many editors likely equate with unserious scholarship. (For evidence and further discussion of this, see here.))

The initial reactions to the Emory Law Journal's decision reflect the eagerness of certain professors to attack their students, as well as the impossible standards to which student editors are held. Without reading the article, multiple professors summarily concluded that the journal had imposed an ideological test on Alexander's submission. After all these are students--why should they be expected to act professionally? Now that article itself has been revealed, it is apparent that the Emory Law Journal exercised good editorial judgment. None of the original critics have recognized this, though, as they have either chosen to double down or remain silent.

And one should not overlook the fact that multiple professors also called out the Editor-In-Chief by name. It is shameful and unprofessional for professors to gang up on a student, even though it should be clear to most that the student was in the right. Those who initially criticized the Emory Law Journal's correct decision not to publish such shoddy scholarship should acknowledge that the editors made the right call. Should they simply remain silent, they should be held to account for the contents of the article itself.

This incident with the Emory Law Journal is revealing. It reveals the candid views of scholars like Alexander and the shoddy arguments they are willing to make in support of their worldviews. It reveals the willingness of (often) conservative critics of legal scholarship to rush to conclusions of bias without seeing all of the relevant facts. And it is a dramatic instance of the all-too-common instinct of professors to bash law review editors. If this messy incident is to have any silver lining, perhaps it can serve as an opportunity for professors to reflect on their scholarly and public treatment of law review editors and to focus on productive reforms rather than bashing their students.

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If a Theory Tends Toward Abuse, It's Probably a Bad Theory

Over at the Originalism Blog, David Weisberg writes about Michael Ramsey's post arguing that originalism has constrained the Supreme Court from actively outlawing abortion on Constitutional grounds. I criticized Ramsey's post here.

Ramsey was responding to Paul Waldman, who wrote in the Washington Post that Supreme Court nominees lied when they testified at their confirmation hearings that originalism was a neutral judicial philosophy. As Weisberg characterizes it:

Paul Waldman, writing in the Washington Post, claims that the recent arguments in Dobbs reveal that Trump’s three Supreme Court nominees perpetrated “a lie, scam, con” when they testified that originalism, as they understood it, was a judicial philosophy that was neutral as to the outcome of any particular legal case or issue.  That is not a criticism of originalism.  It is instead a criticism of particular individuals who identify as originalists.

Originalists often defend their theory against criticism that judges and Justices fail to properly implement it by claiming that this a problem with practice rather than theory. Some have gone so far as to argue that originalism as a standard should be entirely divorced from considerations of implementation.  

Weisberg returns to this theme later in his post:

When one questions the good faith of the practitioners of a legal theory, rather than analyzing and criticizing the legal theory itself, a disheartening symmetry emerges.  Each side can say of the other: we do not believe that the reasons stated in your judicial opinions or your scholarly articles are your true reasons; the one true reason is your policy preference.  Similarly, each side can say: in deciding Case X, we did not adopt the most extreme position on the spectrum of policy preferences; this proves our decision is grounded in law and not in policy preference.  And the “liberal” side says that weakening or overturning Roe is a step toward a future originalist decision that the Constitution bans abortions in almost all circumstances, while the “conservative” side says that Roe itself is a first step toward a future living-constitutionalist holding that the Constitution prohibits any federal or state regulation of abortion.

Both of the claims Weisberg makes fail to make a resounding case for originalism.

If an interpretive theory tends toward abuse, it is probably a bad theory. A theory of constitutional interpretation may, by its nature, lend itself to misapplication or use as a cover for political goals. It's a blanket assumption for most originalists that the broad family of theories that they label "living constitutionalism" (read: just about anything other than originalism), are such theories. Living constitutionalism tends to result in its adherents simply applying their policy preferences rather than engaging in interpretation. A substantial component of originalism's popular appeal is that it supposedly sidesteps this problem. The original public meaning of the Constitution is a verifiable Truth that can guide decisionmakers and prevent them from resorting to deciding cases based on their political whims. 

To be sure, this characterization of originalism versus living constitutionalism is an oversimplification of the academic literature. Much has been written by academics on various sides of the debate arguing for other normative reasons to accept originalism over alternate theories. But this discussion is largely isolated in the academic sphere. In politics and popular discussion, originalism continues to be praised for its constraining power--how it prevents "activist" judges from "legislating from the bench." At least, this is how originalism is praised when it is not used as a barely-concealed synonym for promising conservative results.

If originalism gets its appeal (or a substantial portion of its appeal) from its ability to constrain judges from deciding cases based on policy preferences, then it is concerning if judges use the theory as a cover to reach decisions based on political preferences. This is supposed to be the outcome that originalism should prevent, after all. Weisberg claims that this type of criticism can be leveled against practitioners of any theory, but this isn't always the case. Some theories of interpretation may call for readings of constitutional provisions that lead to certain types of policy outcomes or that have certain practical results. Such an approach would be unacceptably political if explicitly employed by a self-proclaimed originalist, but it defines the approach of the other interpreter. A theory of interpretation that largely is based on policy considerations is not mis-implemented when a judge decides cases based on those considerations. There may be other reasons for disliking the theory--but disingenuous implementation and a lack of transparency is not one of them.

But politicized decision-making is a problem for theories that purport to be neutral--particularly for theories like originalism that gain much of their popular appeal from claiming to be neutral. If a theory, by its nature, tends to be abused in practice--if, when implemented, it consistently results in decisions in line with political preferences rather than its proclaimed neutral principles--this is a problem for the theory. And as much as the theory's proponents may point to instances of misapplication of the theory as problems with judicial actors rather than the theory itself, these instances are evidence that the theory itself tends toward misapplication and abuse. If a purportedly neutral theory ends up being misapplied most of the time, that's a reason to have second thoughts about the theory itself. After all, all of this theorizing about law and interpretation doesn't have an impact on the real world until a court applies the theory.

I've argued elsewhere that originalism tends toward abuse--primarily to the extent that it cannot be rigorously and feasibly implemented, and that this leads to decisions based on other, largely political, considerations. Those like Weisberg who would dismiss this criticism as a problem with practitioners rather than the theory itself forget that law is shaped and enforced by practitioners. Losing this perspective all too often results in ignoring reality for the sake of theory and failing to appreciate the real world implications and consequences that motivate these discussions in the first place.

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Originalism is Neutral Because the Court Hasn't Outlawed Abortion Everywhere?

That seems to what Michael Ramsey argues in response to this column by Paul Waldman.  Waldman argues (fervently) that conservative justices vote their political preferences and are not constrained by purportedly neutral theories of interpretation:

It was all a lie, a scam, a con: the assurances that they were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want: undermining voting rights, enhancing corporate power, constraining the rights of workers, enabling the proliferation of guns, and now most vividly, allowing state governments to force women to carry pregnancies to term against their will.

Ramsey takes issue with this:

But the abortion case actually shows the opposite of Waldman's claim.  The conservative legal movement doesn't want just to overturn Roe; it (or at least part that cares most about the issue) wants to outlaw abortion.  In Dobbs, though, at most the Court may merely withdraw the constitutional bar on abortion restrictions so that the question can be resolved by the political branches. 

Why not do more?  Why wouldn't the Court rule that states that permit abortion violate the Constitution?  If the conservative Court really believes it can "legislate from the bench" to "produce[ ] results conservatives want," isn't that the outcome we would expect?

Surely the Constitution can accommodate that conclusion.  As many on the left have argued, the Constitution's due process and equal protection clauses are open-ended and can be read to appeal to broad principles to be applied in light of contemporary morality and policy.  If, as anti-abortion conservatives believe, human life begins at conception or some point near to it, an aggressive living-constitutionalist conservative could find in those clauses a protection for unborn life.  Far less plausible claims have been made and accepted by courts on behalf of the policies of the left.

The conservative originalist Justices on the Court are not going to rule this way, and Justice Scalia -- as firmly anti-abortion as anyone -- never considered it.  The reason is originalism.  Though a few scholars have argued to the contrary, the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution's original meaning does not protect unborn life.  (See here from Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion.)  It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.  (And originalism is criticized by some conservatives on this ground.)

Ramsey claims that originalism is what prevents conservative Justices from affirmatively outlawing abortion. But this is what overturning Roe would do, to a significant extent. If the Court overturns Roe by upholding a ban on abortion, the effect is that abortion is banned in the affected jurisdiction.  Not only that, but it's immediately banned in 21 other states as well. Overturning Roe has the practical impact of banning abortion immediately in nearly half of the states. 

Sure, it isn't a nationwide ban. But once Roe is overturned, how soon will it be until there is federal legislation to ban abortion nationwide? From betting that's going on in academic spheres, it look like the expectation is a couple of days. With Roe out of the way, lobbying and support for such a law will redouble, backed by assertions that it has the Court's blessing. I hope that this is a pessimistic view of things--maybe the overturning of Roe will light a fire under democrats and prompt them to take action. But I'm not optimistic this will happen.

Such a federal law wouldn't be a constitutional decree. But under this chain of events, the conservative Justices' goal of outlawing abortion would be achieved with no other Court action beyond overturning Roe v. Wade. The Court would not suffer the institutional loss of credibility that an aggressive, constitution-based ban on abortion would entail. The Court would therefore be free to support conservative policies and goals under the guise of originalism's neutrality in any number of other cases and contexts.  Ramsey claims that a refusal to affirmatively outlaw abortion on constitutional grounds is evidence of originalism's constraining effect. A far more plausible explanation is that conservative justices want to preserve their influence and credibility, and can do so at no cost, since most of the work they want to see done will be done for them by other political actors.

Just because the Court doesn't take an immediate and drastic turn to the right and capitulate to the wildest dreams of the most extreme conservatives does not prove that originalism is the neutral, constraining principle that its proponents claim it to be. Claiming that this is what must be demonstrated to prove that originalism covers up political decisions is a disingenuous tactic that moves the goalposts and ignores political context.

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Originalism and Selective Historic Reference Points

A little over a week ago, Michael Dorf wrote an article in Verdict regarding oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen. This is the Supreme Court's most significant Second Amendment case since McDonald v. City of Chicago, in which the Court incorporated the Second Amendment, holding that it applies against state restrictions on the right to keep and bear arms. The Supreme Court's prior opinion in District of Columbia v. Heller, two years before, had only held that the Second Amendment applied to federal restrictions. 

New York State Rifle & Pistol Association, like McDonald, involves a non-federal restriction on firearms. Most rights included in the Bill of Rights have been incorporated to apply against state and local governments--with the Supreme Court basing this incorporation in the Fourteenth Amendment's Due Process Clause. Justice Thomas has previously argued for an alternate approach to incorporation, arguing that the Privileges or Immunities Clause of the Fourteenth Amendment is the basis to apply the Second Amendment (and other rights enshrined in the Bill of Rights) against the states.

Dorf focuses on a question that Justice Thomas asked during oral argument:

Attorney Paul Clement argued the case for the plaintiffs. He contended that “history and tradition” supported his position. Justice Thomas, who, more than any of his colleagues, espouses originalism, understood Clement’s invocation of history to imply that the Court should look at what the constitutional text meant to the People who ratified it. But that then raised a question. Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

Clement, a former Solicitor General of the United States, is an excellent lawyer, so he gave the answer that best served his clients: it doesn’t matter. Whether you look at the original public meaning in 1791, when the Second Amendment was ratified, or at the original public meaning in 1868, you will find the same answer: a right of generally law-abiding citizens to carry firearms in public.

Is that right? As I discussed in an article published in the Northwestern University Law Review earlier this year, there is reason to believe (and sources cited in footnote 37 of my article conclude) that the People who ratified the Second Amendment understood its language to prevent the federal government from disarming state militias but not to have many implications for individual firearms possession, while the People who ratified the Fourteenth Amendment in 1868 understood at least some kind of individual right to keep and bear arms to be among the privileges and immunities that the provision secured against state interference. (emphasis added).

Dorf notes that the Court, both historically and now, has refused to find that constitutional amendments incorporated through the Fourteenth Amendment offer differing limits on the power of state governments compared to the federal government:

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

Dorf notes that Thomas, as well as other justices who've authored or signed opinions regarding the scope of incorporated amendments (including Justice Gorsuch in Ramos) claim to be originalists. I've written about originalism before, both here and in longer work. Most modern versions of originalism hold that the meaning of the Constitution and its amendments are fixed at the time of ratification, and that the original public meaning of those provisions at the time of enactment is the same meaning that should be applied today. That notion of fixed meaning (sometimes described as the "fixation thesis") is accepted by most modern academic originalists.

But if meaning is fixed at the time of ratification, then most of the amendments in the Bill of Rights likely apply differently against state and local law than they do against federal laws. That's because these amendments don't apply directly to state laws. Instead, they apply to states via the Fourteenth Amendment, which was ratified 1868--many years after the amendments were originally enacted at the end of the 1700s. During those years, the public's understanding of the often broad, abstract, and value-charged language of these amendments likely changed to some degree. And yet, self-proclaimed originalists on the Court pay little mind to this--indeed some have explicitly rejected it. Take McDonald, the case that incorporated the Second Amendment against the states. There, Justice Scalia--recognized as the highest profile originalist to sit on the court--joined in the portion of Justice Alito's opinion that explicitly rejected the notion that the Fourteenth Amendment may provide a different level of protection to the right to bear arms:

[Justice Stevens] would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." Post, at 3093.

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice STEVENS' theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.

Justice Thomas, it should be noted, did not join in this portion of the opinion.

Alito's view is hardly without historic support. The Court has long refused to recognize differing levels of protection by the Fourteenth Amendment, warning against a potential dilution of protection against state law enforcement compared with federal law enforcement and raising the specter of incongruous enforcement of constitutional rights against different government actors. Take Justice Brennan's opinion for the Court in Malloy v. Hogan:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights," Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (dissenting opinion). If Cohen v. Hurley, 366 U. S. 117, and Adamson v. California, supra, suggest such an application of the privilege against self-incrimination, that suggestion cannot survive recognition of the degree to which the Twining view of the privilege has been eroded. What is accorded is a privilege of refusing to incriminate one's self, and the feared prosecution may be by either federal or state authorities. Murphy v. Waterfront Comm'n, post, p. 52. It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. (emphasis added).

Incongruous as such a legal regime would be, it would at least be an originalist one. Refusing to apply two different standards rejects the fixation thesis in favor of the broader goal of a consistent set of rules governing the scope of constitutional amendments. This goal may be sensible, but it isn't consistent with originalism. And this ignorance of basic originalist principles may not always be in the service of such noble goals, as Dorf argues:

To be sure, in Ramos, as in McDonald, Justice Thomas concurred separately to insist that the Privileges or Immunities Clause, rather than the Due Process Clause, does the work of incorporation. But for him as well as his colleagues, originalism—which allows for changed meanings between 1791 and 1868—stood as no obstacle to full incorporation, which they favored on what pretty clearly appeared to be policy grounds.

In that respect, the irrelevance of Justice Thomas’s question—1791 or 1868?—jibes with everything else we know about originalism. In the most hotly contested cases that come before the Supreme Court, arguments rooted in original meaning typically serve a rhetorical function. Justices invoke them to justify decisions taken on other, ideological, grounds.

What are the implications of all of this? 

First, it suggests that as much as originalist scholars may argue in favor of originalism, these arguments seem to have little impact on the Court's actual practice, which consistently ignores (and is based in a history of ignoring) the notion that constitutional provisions' meanings are fixed at the time of enactment. Originalists may respond that failures to appropriately apply originalism should not count against the theory itself. Indeed, some argue that the recognition of such failures by the professoriate turns out to be a point in favor of originalism. Leaving a thorough response to that peculiar defense for another day, I will note for now that if the Court continues to consistently misapply originalism (and reach decisions based on the foundation of jot-for-jot case law), there ought to come a point where originalists should ask themselves whether everything they are working for is really worth it. 

Second, the longstanding failure of the Court to recognize that the meaning of constitutional provisions are fixed at the time of reenactment in the Fourteenth Amendment context threatens a recent trend in originalist scholarship arguing for a positivist take on the theory. This "positivist turn" in originalist theory (very broadly and briefly summarized), argues that originalism is our law, and that it should be followed because judges promise to follow the law. If the Court's history of failing to apply the original public meaning of the Fourteenth Amendment forms the basis for a great deal of constitutional law, the thesis that originalism is, in fact, our law is significantly undermined.

Third, the issue of whether to interpret early Amendments based on their meaning at the time of the founding or at the time of the Fourteenth Amendment's ratification represents a subsection of a debate over when the Constitution's meaning should be fixed. For the most part, this debate is sadly limited--originalists argue for fixation at the time of ratification, a few people (and I) argue that provisions should be read based on present public meaning, and the Court apparently favors fixation at the time of the founding, 1868 be damned. But there are more options. Why should we consider the meaning of the Constitution as fixed at any point before the Fifteenth Amendment barred the United States and the states from denying the right to vote based on race in 1870? Why shouldn't the meaning of the Constitution be fixed in 1920 when the 19th Amendment's ratification guaranteed women the right to vote? Some may argue that the Constitution has mechanisms for amendments built in, and that this "potential sovereignty" somehow ameliorates the failure of earlier iterations of the Constitution to accommodate the democratic input of those it governs and protects. But this doesn't account for the fact that determinations of original public meaning tend to focus on the voices of those who played a role in the drafting, adoption, and ratification of constitutional provisions, and that the voices of women and African Americans were absent from these contexts for centuries. Those historically excluded from voting may not want to completely do away with the Constitution and amendments as they're worded, but they ought to have some sort of a say in the meaning of these provisions if we're going to claim with a straight face that the Constitution represents the popular will of a supermajority of Americans.

While I have dozens of depositions and hundreds of other projects and emergencies to worry about over the next few months, I'm sure I'll find the time to write more on these issues. In the meantime, we'll see if any of the Justices make an effort to differentiate between or justify particular historic reference points for their constitutional interpretations when the opinion in New York State Rifle & Pistol Association is eventually issued.

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Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

 At Volokh Conspiracy, Eugene Volokh flags a brief article that he coauthored with Adam Candeub that was recently published in the Journal of Free Speech Law. Here's the abstract:

[Communications Decency Act] Section 230(c)(2) immunizes platforms' decisions to block material that they "consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The ejusdem generis interpretive canon suggests that "otherwise objectionable" should be read "to embrace only objects similar in nature to those objects enumerated by the preceding specific words."

In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on "the basis of its political or religious content" were not viewed as generally permissible, even in electronic communications.

Candeub and Volokh argue that "otherwise objectionable" material should not be interpreted as a catch all category, but should instead be construed in light of the other terms in Section 230(c)(2)'s list of materials. As a result, they urge that Section 230(c)(2) be read as immunizing Internet companies and websites from restricting "obscene, lewd, lascivious, filthy, excessively violent, or harassing communications," and that the statute not be read to immunize these actors from the removal of content that is objectionable based on its political content.

I think there are several problems with this argument. With the caveats that these are my initial impressions and that it's been a while since I've done intensive research into Section 230, these concerns are listed below. I've tried to list my objections in order of most technical and specific first, followed by broader points.

First, I think the ejusdem generis interpretive canon has less power in the particular context here because Section 230(c)(2) immunizes platforms' decisions to block "otherwise objectionable" content rather than "other objectionable" content. The latter wording would be a clear example of specific terms followed by a general term, and would be in line with most examples in Candeub's and Volokh's article which involve statutes listing examples, followed by "other" things. But the way the statute is actually worded includes the term, "otherwise," which suggests material that is objectionable in ways that are distinct from the preceding examples. Candeub and Volokh do not address this, and their esjudem generis argument therefore seems stronger than the language of the statute warrants, as it implicitly reads the statute as prohibiting "other objectionable" content rather than "otherwise objectionable" content.

Second, this reading takes an overly narrow view of the purpose of the provision it analyzes and the Stratton Oakmont, Inc. v. Prodigy Services Co. case that played a significant role in prompting the inclusion of the provision. In Stratton Oakmont, the plaintiff sued a website message board for defamation based on several allegedly defamatory posts from message board users. The plaintiff alleged that the message board was liable because it exercised editorial control over the message board, noting that the site set forth detailed content guidelines that discourage the posting of "insulting" notes, as well as notes that "harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community" stating that such content would be removed when brought to the site's attention. The court cited this choice to engage in this editorial control as opening up the site to greater liability than other sites that did not take such measures. 

Congress was aware of this case when it passed Section 230, which Candeub and Volokh recognize. But they only focus on remarks from legislators who cite the blocking of material that is not "family-friendly," which (sort of) lines up with their restrictive reading of the statute. But this narrow focus ignores the extent of editorial restrictions at play in Stratton Oakmont, which included guidelines for the removal of "insulting," [non]-harmonious," and "bad taste" comments. It also suggests a narrow view of "family friendly," content, which may well exclude truthful, politically significant content such as images and discussions of war or terrorism, litigation and legislation over sexual privacy and abortion, and other such political content. Stratton Oakmont illustrated the danger of any sort of editorial policy giving rise to heightened liability, and Section 230(c)(2) was the response. Candeub and Volokh's narrow reading is inconsistent with this broad concern that prompted the immunity provision.

Third, a reading of the statute that removes immunity concerning the removal of political content while immunizing the removal of other content would run into significant First Amendment problems. Those who run websites or forums may have their own political preferences, and may moderate content based on these preferences. Limiting this ability would infringe on those providers' First Amendment rights--an aspect of online content moderation that is often ignored by Section 230 critics (and misinterpreters) who prefer to focus only on the purported rights of users.

To Candeub's and Volokh's credit, they recognize that the First Amendment may be relevant, but set it aside for the purpose of their article. Because of this, though, the article's analysis is in a misleading vacuum.  What is the point of this discussion about ejusdem generis if the First Amendment will ultimately require a different reading? Indeed, the First Amendment may well be relevant to discussions of interpretive canons: to the extent that the narrow reading of "otherwise objectionable" content leads to First Amendment problems, the canon of constitutional avoidance would weigh in favor of an expansive interpretation that avoids this issue.

These are my initial concerns with the conclusions in the article, but I'll be interested in seeing what others have to say--particularly those who are more involved in Section 230 research and litigation than me.

READ MORE - Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

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Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

A recent editorial from TN Online reports:

State Rep. Karen Boback, a Republican whose district includes parts of Luzerne and Lackawanna counties, says she is going to introduce legislation that provides penalties for walkers who are inattentive while crossing a street or highway.

In a memo to legislative colleagues seeking co-sponsors for her bill, Boback said that distracting walking is a “very real and serious issue.”

Boback is most concerned with pedestrians who are inattentive because they are engrossed in conversations on their cellphones or are listening to music or other programming.

“Technology has invaded our life, and, as a result, people have stopped paying attention to their surroundings,” Boback wrote.

More reporting on this is available at Patch. It isn't clear why Boback is choosing to take a stand against "distracted walking." The TN Online writer notes that fewer pedestrians were killed by drivers in 2020 than in 2019. Of those 145 deaths, there is no indication how many of them, if any, were due to pedestrians who were distracted. 

Seeking to do Boback's job of justifying her proposed policy, the article cites a Governors Highway Safety Association Report which purportedly shows that "texting while walking has taken on a key role in pedestrian death in recent years as communication devices have become more mobile, compact, and numerous." The article fails to link to the report, or provide a year for when it was written. It may be citing this 2016 report which speculates that pedestrian distractions are contributing to pedestrian deaths and injuries, although it explicitly states that it "remains unknown" how many pedestrians killed in crashes with distracted drivers were themselves distracted. The report cites instances and studies suggesting that pedestrian distractions are on the rise, but does not draw a link between such distractions and traffic deaths. Indeed, a New York study specifically investigating whether distracted walking contributed to pedestrian fatalities and injuries found "little concrete evidence" of a connection.

The Pennsylvania law appears to be in its early stages, as it does not appear that a statute has been drafted yet. Hopefully Boback will give the bill some more thought and conclude that it isn't worth it. Indeed, her basis for contemplating the bill appears to be anecdotal notions of technology "invading" people's lives. Reports on her proposal have to do the work themselves to dig up evidence supporting measures restricting texting while walking, and these reports often fail to confirm a link between instances of distracted walking and increased pedestrian deaths. As I have noted before, legislators seeking to prevent traffic deaths, and particularly pedestrian deaths, would do better to focus on infrastructure by making cities and towns safer for pedestrians. This includes increasing the number of crosswalks, ensuring adequate lighting, lowering speed limits, and reducing the width of streets, among other measures. Boback herself appears to have been involved in such infrastructure measures in the recent past, which makes it all the more surprising that she is seeking to put the onus on pedestrians--who are most at risk of death or serious injury. A statewide restriction on distracted walking is a blunt instrument that targets the wrong actors and ignores factors that lead to greater risks of pedestrian death and injury.

In addition to being misguided from a public safety perspective, laws against distracted walking criminalize ubiquitous behavior, which promotes selective enforcement. Many people check their phones while walking, including while crossing the street. As a result, police officers tasked with the enforcing the law will use their discretion to determine who to stop and ticket for these violations, meaning that the brunt of any law will likely fall more heavily on people in poorer neighborhoods and racial minorities.

A few cities and municipalities in the United States and other countries have banned various forms of walking while on the phone or while using other electronic devices. All of these measures target a phenomenon that most have likely observed or experienced, but which has little ultimate impact on pedestrian safety--at least when compared with other measures that legislatures can take to reduce traffic deaths and injuries. This story is notable because it suggests that a statewide ban may be possible. One can only hope that the bill, if it is ever written, will fail to gain the support necessary to become law.

READ MORE - Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

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Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

The Law's Definition of "Scapegoating," "Stereotyping," and Specific Defined Concepts

To start, the law defines a few key phrases:

Section 261H.7(1)(a) defines "Race or sex scapegoating" as "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex, or claiming that, consciously or unconsciously, and by virtue of persons' race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

261H.7(1)(b) defines "Race or sex stereotyping" as "ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of the individual's race or sex."

Before moving on to other defined terms, a few thoughts on these definitions.

The "scapegoating" notion is more limited than it may first appear, because it only addresses instances where fault, blame, or bias is attributed to a particular race or sex, or members of a race or sex, because of that person's race or sex. This includes the portion of the definition that addresses conscious and unconscious bias--the definition only applies if that bias is because of the biased person's race or sex. While I am not an expert on the subject, it is my understanding that most discussions of bias often focus on biases being prompted by those being targeted or evaluated, rather than by the holder of the bias. This means that people of all races may have a particular, stereotyped view of a particular race--for example, both White and African-American police officers may hold an unconscious bias against African-American suspects and think that they are more likely to be dangerous. Because such a bias is not dependent on the race of the bias-holder, it would not be encompassed by the definition in the law.

The section on Race or sex stereotyping includes the notion that "privileges" cannot be ascribed to an individual because of their race or sex. This appears to apply to any notion of white privilege, male privilege, or similar concepts. If "Race or sex stereotyping" is prohibited, such a prohibition would prevent teaching or training that teaches people to recognize these types of privilege.

The law then addresses, "Specific defined concepts," which includes:

(1) That one race or sex is inherently superior to another race or sex.

(2) That the United States of America and the state of Iowa are fundamentally or systemically racist or sexist.

(3) That an individual, solely because of the individual's race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

(4) That an individual should be discriminated against or receive adverse treatment solely or partly because of the individual's race or sex.

(5) That members of one race or sex cannot and should not attempt to treat others without respect to race or sex.

(6) That an individual's moral character is necessarily determined by the individual's race or sex.

(7) That an individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.

(8) That any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of that individual's race or sex.

(9) That meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

(10) Any other form of race or sex scapegoating or any other form of race or sex stereotyping.

I haven't dug into the history of this bill or of the Trump Order on which it was based, so I am not sure where this list of defined concepts comes from. There is a bit of overlap with tenets of critical race theory (again, based on my limited knowledge and exposure of it), but this list is largely imprecise, all over the map, and prone to abuse.

To start, the terms "racist" and "sexist" aren't defined. It's therefore unclear whether those notions refer to conscious, intentional racism and sexism, unconscious bias, or disparate impacts of policies and practices that result from historic racism that is no longer as overt (or legally sanctioned) as it once was. For example, concept number 9--the notion that "meritocracy" is racist or sexist--could be implicated by training or teaching that points out that standardized tests tend to favor more privileged white people. While those who write these tests and use these tests in admissions practices likely aren't sitting down and saying "I can't wait to write/evaluate this test in a manner that disadvantages racial minorities!" the imprecise and undefined wording of the statute seems to go beyond this, and prohibit discussion of disparate impacts based on race or sex.

This causes problems for other concepts on the list, including number 2, which addresses fundamental and systemic racism of the United States and the state of Iowa. Perhaps those who hear charges of systemic racism think that critics are accusing most or all people in government of being intentionally biased against particular groups. But such explicit, biased actions are often hidden behind racially-coded proxies (e.g., heightening police presence in "high crime" areas; discussions of "inner cities," and many more examples). Systemic racism may also manifest through facially neutral laws or policies that end up having a disparate impact as a result of historic power structures and discrimination. All of this may be characterized as systemic racism, and all of this may be encompassed by this concept--which is a shame, because there is a great deal of truth behind these concerns.

Affirmative action may also be covered by this list to the extent that its opponents describe it as "reverse racism." If affirmative action is framed as taking away opportunities for, say, white people in favor of racial minorities, it can easily fall under concept number 4, which prohibits adverse treatment because of race or sex.

Number 8 is also particularly concerning: while it is limited to the concept that people "should" feel discomfort of guilt because of their race or sex, it will likely be implemented to prohibit the teaching of any concept that happens to cause such discomfort in members of the audience. The teaching itself may not demand that those in the audience feel discomfort or shame--it may instead call on them to view the world from a different perspective, recognize their privilege, and consider how their seemingly benign conduct may cause greater harm than they realize. Many people confronted with these notions will likely feel uncomfortable, though, which will likely lead them to accuse the teacher of asserting that they should feel uncomfortable. This concept may therefore be used to ban the teaching or training of any concept that happens to cause discomfort in certain audience members and creates a significant potential for abuse.

What Practices Does the Law Affect?

While the law devotes a lot of space to defining stereotyping, scapegoating, and specific concepts, the scope of the law appears, at first, to be limited. Section 25A.1 applies to training by and for members of governmental entities or agencies. It requires that the heads of those agencies:

ensure that any mandatory staff training provided by an employee of an agency, governmental entity, or governmental subdivision, or by a contractor hired by the agency, governmental entity, or governmental subdivision does not teach, advocate, encourage, promote, or act upon stereotyping, scapegoating, or prejudice toward others on the basis of demographic group membership or identity.

I have no idea what this means, primarily because it uses only portions of terms defined at length elsewhere in the law. This provision prohibits the teaching, advocating, encouraging, or promoting of "stereotyping" and "scapegoating." First, this does not explicitly prohibit the teaching of the "Specific defined concepts," nor does it even explicitly prohibit "Race or sex stereotyping" or "Race or sex scapegoating"--as it only uses the (undefined) terms, "stereotyping" and "scapegoating." Are those terms broader than the defined terms? Do they encompass the same behaviors, but with applicability to demographics beyond race and sex? It's unclear. Second, the broad "encouraging" and "promoting" terms may encompass a far broader set of behaviors than actually teaching the specific defined concepts or notions that fall under those defined Race or sex stereotyping/scapegoating. This blog post, for instance, by criticizing the definitions and breadth of the specific defined concepts, may be viewed as "encouraging" or "promoting" those concepts. These imprecise terms will likely result in overcautious behavior by those arranging for training, resulting in the unnecessary chilling of speech (for more background on the problem of vagueness in the First Amendment context, see here).

This section tries to save itself with a list of items it purports not to do, including preventing agencies and entities from promoting diversity and prohibiting a curriculum that teaches sexism, slavery, racial oppression and segregation, and related topics. But the failure to define the scope of what is prohibited and what is not prohibited leaves everything vague--are the restrictions supposed to be read broadly? Are the exceptions supposed to be read broadly? If there is an apparent conflict, which provision wins out?

These problems, which apply to training by and for members of governmental entities or agencies, apply to the law's restrictions on school districts as well. Section 279.74 includes the same vague language--prohibiting any curriculum or student training that "advocate[s], encourage[s], promote[s], or act[s] upon specific stereotyping and scapegoating toward others on the basis of demographic group membership or identity." Again, none of these terms are defined, and the broad "encourage" and "promote" language urges a broad reading that will result in restricted curricula. While the law does not explicitly say that teachers are prohibited from teaching the specific defined concepts, I'd be willing to bet that those who drafted the law would think that doing so would "encourage" or "promote" stereotyping or scapegoating.

The only restriction in the law that mentions the defined terms is the restriction on "each public institution of higher education," from allowing training that happens to "teach, advocate, act upon, or promote specific defined concepts." Why the section about higher educational institutions is the only one that explicitly mentions the "specific defined concepts" is unclear.

This law purports to take on "Critical Race Theory," a notion that the bill's proponents almost certainly do not understand. It takes an imprecise, scattershot approach at banning the teaching and training of various concepts. Through its use of broad notions of "encouraging" or "promoting" undefined notions of "stereotyping" and "scapegoating," the law will almost certainly chill a great deal of speech--including the teaching of facts and well-accepted concepts that happen to make certain audience members uncomfortable. I won't get into the law's constitutional implications and whether it would survive a challenge, as this post is long enough as it is, but it's a shame to see the passage of such a shortsighted and poorly written law.

READ MORE - Iowa's Law Targeting "Critical Race Theory"

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Does the Constitution Prohibit DC Statehood?

With the Democratic party in control of the House and Senate, discussions have been picking up over whether the District of Columbia will be granted statehood.  Proponents argue that residents of the District, many of whom are African American, lack sufficient representation in Congress and the Senate, and point to the fact that DC's population is larger than Wyoming, which has a representative and two senators.  Critics argue that DC statehood is a political effort to increase the number of Democratic senators.  

Politically charged debates often prompt accusations of unconstitutionality by one side or the other, even if the Constitution truly has no say on the matter. Critics of DC statehood are advancing such arguments, exemplified by this article published yesterday by the Wall Street Journal's Editorial Page.

The WSJ Editorial Board's primary argument is that the Constitution mandates that DC remain a district that is not a state, and Democratic statehood proposals violate this provision of the Constitution:

Fashioning an independent seat of government in a federal system while affording representation to its residents is a dilemma dating to the founding. The Framers provided in the Constitution’s Article I that Congress could, “by cession of particular states,” control a small area in which the federal government would operate. In 1790 part of the territories of Virginia and Maryland, two of the 13 states that ratified the Constitution, were delineated for federal control.

Advocates of statehood brush aside the constitutional concerns and frame their cause as a simple question of democracy. It’s true that the roughly 700,000 residents of the District don’t have the ability to elect voting Members of Congress. Many hold influence over the federal government as employees and contractors or in other positions, and in the Founding era proximity to the seat of power was itself considered a form of representation.

 

Yet the natural remedy for the imperfect status quo, if representation is the real concern, would be for Congress to do something it has done before—return part of the District to the state that ceded it in the first place. That’s what happened in 1846 when Congress reinstated Virginia’s control over the D.C. suburbs of Arlington and Alexandria.

 . . .

There could be constitutional challenges to retrocession to Maryland. But the creation of an independent state to supplant the District, as the current House legislation proposes, is certainly unconstitutional. The Founders deliberately created a federal district under the control of Congress because it didn’t want the federal government to be subject to the sway of any one state. Statehood imposed by statute would strip Congress of one of its enumerated powers—effectively amending the Constitution without an amendment process.

Others advance similar claims that the Constitution "mandated" creation of the District of Columbia. They all appear to be citing Article I, Section 8, Clause 17 of the Constitution, which provides that:

The Congress shall have the power . . . [t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings

First, these arguments do not appear to have any force against what Democrats are proposing. Democrats are not advocating the complete elimination of the District described in the Constitution. Instead, they are proposing that the District be limited to a much smaller area, with the rest of DC becoming a separate state. The Constitution does mandate a particular location or size (beyond a maximum size) for the District, and shrinking the District is therefore consistent with this constitutional provision.

But critics' arguments run into an even more fundamental problem--they are based on an assumption that the Constitution mandates the creation of the District of Columbia. This is not apparent from the language of Article I, which grants a power to Congress to exercise exclusive legislation over whatever District "as may" become the seat of the United States' government. This isn't to say that creating such a District isn't a good idea, as certain founders recognized. But permitting Congress to exercise a particular power is a far cry from mandating that Congress do so.

I suspect that this reading of Article I is inconsistent with most of these same critics' approach to other provisions of Article I, like Congress's power to regulate commerce. Conservatives have long opposed extensive application of Article I's Commerce Clause to federal legislation governing sales transactions that take place within a single state. In opposing broad application of the commerce clause, they argue that the founders sought to create a limited federal government, and that Article I should be interpreted as providing a limited set of powers that Congress may exercise. This constrained reading of Congress's power is undermined by the more aggressive reading in the District of Columbia Context--the assertion that Congress must create a District to serve as the seat of the federal government.

Critics of DC statehood may also contend that the founders never intended for Washington D.C. to be a state, as Senator Mike Rounds did earlier in March:

The Founding Fathers never intended for Washington D.C. to be a state.#DCStatehood is really about packing the Senate with Democrats in order to pass a left-wing agenda.

Just look at the DC voter registration data:
🔵 76.4% Democrat
🔴 5.7% Republican

— Senator Mike Rounds (@SenatorRounds) March 22, 2021

Responses to this particular tweet have been largely cheeky--noting that Senator Rounds represents South Dakota, which was not a state at the time of the founding. These responses miss the point.

The response, instead, should be that based on what the Constitution says, it appears that there was an expectation that there would be a District, but whether that district would be DC, or whether it could ever change in size or location (other than remaining below 10 square miles) appears to be an open question. 

Moreover, proponents of originalist methodology should scold Senator Rounds for his shoddy attempt at engaging in originalist analysis. Virtually all originalist scholars will tell you that modern originalism focuses on the original public meaning of constitutional provisions--not on the intentions of the founders. When left-wing commentators refer to the original intent of the founders in criticizing originalism, they are met with a flurry of indignant responses from academic originalists. I haven't seen a similar set of responses to Senator Rounds' tweet though. Perhaps I missed them.

In the end, DC statehood is a political debate. Critics and proponents of statehood may try bringing the Constitution into the picture, but these efforts are misguided do nothing more than muddy the waters.

EDIT - APRIL 22, 2021

I have left out a discussion of whether DC statehood violates the 23rd Amendment, a secondary argument that the WSJ advances and that others focus on in more detail elsewhere. While I avoided discussion of the 23rd Amendment issue to save space, it is not apparent that DC statehood would violate the amendment, which grants DC electors in the electoral college. While the size of the district may be reduced, this would not undermine the appointment of electors. And DC statehood is certainly not inconsistent with the spirit of the 23rd Amendment, which is to grant political representation to those in the District--statehood would permit residents to have not only representation in executive elections, but in the legislature as well. If statehood passes and the three electoral votes for the shrunken district remain a widespread concern, the 23rd Amendment may be repealed should it be deemed no longer necessary.

READ MORE - Does the Constitution Prohibit DC Statehood?

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Experiments with ScholarSift: An Interesting, But Opaque Platform

A few days ago, I wrote about Brian Frye's article in Techdirt where he discussed ScholarSift, a new platform for legal research. A broader discussion of that platform and my concerns with it are in my earlier post--in short, users can submit an article on ScholarSift (either a draft article of theirs, or a copy of a completed article), and the platform analyzes the text and citations to return "relevant" results. Notably, the platform highlights relevant results that are not included in the citations, which may help direct writers to authors and articles that they may have otherwise missed in their research.

I ended up getting credentials to try out the system and submitted a few articles--both draft articles and completed articles. It was an mixed experience. For the drafts that I submitted, I found a few articles that I had not tracked down in my research thus far. And for some of the articles I tried out, there was a nice diversity of results, although it was sometime difficult to sort through the long list of results that some of the articles generated. While the organization of results was sometime unclear and difficult to sift through, the ability to filter between journal articles, books, and cases was a welcome feature. The basis for the organization remained unclear though--with little more indication of why results were listed in a particular order beyond a vague "relevance" criterion that was measured in unknown degrees.

Some articles I tried out caused the system to turn out some odd, unhelpful results. I submitted one article, a draft paper surveying state self-defense laws and applying philosophical takes on freedom of belief to determine the ideal approach to this area of the law. The draft included a few pages that discussed the phenomena of self-defense in cases where the defendant was trapped in a cycle of domestic abuse and violence prior to killing their domestic partner and whether that history of abuse may factor into the defendant's mindset--a scenario that much of the literature describes as the "battered woman" defense. The "battered woman" phrase seemed to have a disproportionate impact on the results that were generated as nearly all of the articles and cases addressed this phenomenon, even though that discussion was only a small portion of the article itself. I suspect this may have been a result of the contents of the database of articles from which ScholarSift draws its results, or it may have been because the "battered woman" phrase was repeated several times in the text and citations (although the phrase "self-defense" was used even more frequently).

I also submitted my article, Shooting Fish, to see how the platform might respond to an article on an unconventional topic with a wide range of statutory citations. The results brought back a disproportionate number of articles about fishing rights and practices in the context of American Indian tribes. This was, admittedly, an area I did not address in the article. I made the decision not to explore tribal laws partly because I wanted to limit the scope of the article (for the same reason, I relegate my discussion of federal restrictions to under a page). I also am not as familiar with tribal law and was concerned that I would not be able to conduct systematic and thorough research of those laws. While I acknowledge that ScholarSift fulfilled its purpose of identifying an area of the literature that I did not address, it's overwhelming focus on that area of literature ended up crowding out other results that were related to laws and issues that I did address in the article. The platform did generate several relevant results (I was familiar with several of the articles it generated from research I'd done in related areas), but the disproportionate focus on literature related to American Indian laws, treaties, and rights made the results a bit more difficult to navigate. 

Other articles I submitted suggested that there's still a way to go with the database. I submitted a draft article I'm writing on trial by combat in American law--the results ended up being all over the map. While trial by combat is not a subject of common discussion in modern legal literature, it is addressed more frequently in history articles. While I occasionally got results for some papers from journals outside the legal field (some different articles I submitted resulted in citations to medical and psychological journal articles), historic literature on trial by combat was conspicuously absent from the results. 

Similarly, I submitted an article on pew rights and related legal disputes to stress-test the database's capabilities. The results ended up being as helpful as I could have expected. There was a lot of First Amendment literature in the results that did not really match up, but I was pleasantly surprised by the number of hits for articles discussing intra-church disputes and court treatment of canon law.

I also noticed that I kept having to sign out and log back in after every two or three article searches. This was not a substantial burden, but it made me feel judged.  Perhaps I was offending the system with the bizarre articles I was submitting.

From my experience so far, I stand by my the conclusions in my earlier post. I think that ScholarSift is a useful tool to have available for legal research and writing. At this stage, it certainly is not sufficient to serve as the only tool--after all, it is designed to analyzed near-complete drafts to determine what sources and citations are already missing, and authors need to be able to do the research to get to that stage of the draft. I still have qualms with how the platform works--the metrics behind the "relevancy" determinations remain entirely unclear, as do the contents of the database from which the platform draws. If ScholarSift's database continues to expand to older works and articles in non-legal fields, it will be a welcome addition to other research platforms that are currently available.

READ MORE - Experiments with ScholarSift: An Interesting, But Opaque Platform

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The Flawed Ideal of the Unfazed Lawyer: A Response to Volokh

Yesterday I saw this series of tweets by Matthew Stiegler regarding Professor Eugene Volokh's decision to use the n-word in class, and Volokh's arguments for doing so. Stiegler refers to Volokh's post here where he notes that the dean of UCLA Law School had issued an apology for Volokh's behavior, which states:

Earlier in the year, Professor Eugene Volokh used the "n-word," both in class—in teaching a First Amendment case—and outside of class when recounting the incident to a colleague. As you may know, Professor Volokh has strong views about why he chooses to use incendiary language—even when vile—in his classroom, without euphemism or alteration. While he has the right to make that choice as a matter of academic freedom and First Amendment rights, so long as he is not using this or other words with animus, many of us—myself included—strongly believe that he could achieve his learning goals more effectively and empathetically without repeating the word itself. That is equally true in casual settings outside the classroom. Slurs, even when mentioned for pedagogical purposes, hurt people. The n-word is inextricably associated with anti-Black prejudice, racism and slavery; it is a word that carries with it the weight of our shameful history and the reality of ongoing anti-Black racism. I am deeply sorry for the pain and offense the use of this word has caused, and I very much respect the important work our Black Law Students Association undertook, using speech to counter speech, in the flowchart they distributed around the building.

Volokh's reply?

I want to respond here by explaining why I think I was right, and why I will continue to accurately quote things in class and outside it.

Volokh offers five (5) justifications for his use of the word. Stiegler took particular issue with one of them:

[4.] Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be. They need to read cases that contain nasty words and describe nastier actions.

. . .

And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material. They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down.

. . . 

I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else. I think that, as law students and law professors, we should follow this example.

Volokh's argument relies on an inaccurate view legal practice and the ideal attorney, does not account for the dynamic between professors and students, and fails to acknowledge the impact that his words have on his audience.



First, there's a difference between being "debilitated" by something and suffering stress, offense, or discomfort as a result of something. While lawyers may not always become debilitated in the circumstances Volokh describes, it's unrealistic to claim that they do not suffer some form of stress. Students, likewise, may not be debilitated by Volokh's use of the n-word, but it adds to the already stressful environment in which most, if not all, law students operate.

Second, Volokh's claim that attorneys don't let "casual cruelty, callousness, and hatred . . . get them down," is false. Volokh uses an idealized, unfazed attorney as a model that law students should not only aspire to be, but should already be. Shannon Kilpatrick makes this point in a series of tweets reacting to Stiegler--noting that lawyers should not aspire to be "unemotional robots" and that having an emotional response to negative circumstances motivates attorneys to right wrongs. It is, at best, questionable that a professor's use of offensive language in a law school class will effectively desensitize students against that sort of language. But if such a desensitization scheme were to succeed, the result would be a group of jaded, unemotional attorneys unable to effectively react to instances of vile behavior. Taking offense at the behavior of one's own client or adversary is crucial--as attorneys can work to control their client's behavior, or exploit the bad behavior of an adverse witness, party, or attorney.

Third, Volokh's overall claim is false: lawyers often do become debilitated by the stresses of the job. Much has been written on the stress of the legal profession, and the impact of this stress on attorneys' mental health. Many attorneys think that their mental health is worse off because of their work. As for mental health issues in legal academia, I highly recommend this three-part series of posts by Brian Clarke (here, here, and here). One instance of offensive language often will not result in the depression and anxiety that these articles and posts describe. But each instance contributes to the broad range of stressors that students and attorneys face every day.

Volokh's fifth argument in his post is worth noting as well:

[5.] Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain [the n-word] because they find it so "painful" or "challenging" (to quote the Dean of Wake Forest's law school) or offensive or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices—in courtrooms, in depositions, in witness interviews, wherever it is part of the facts of a case or of a relevant precedent. If this were true, then this would suggest that black lawyers are going to be less effective than white lawyers, because they are so pained, challenged, disturbed, and distracted by simply hearing the word.

As I mentioned in item 4 above, I do not for a moment believe that black lawyers actually are less effective lawyers, precisely because I do not believe that they are so easily wounded simply by hearing the facts of a case. But I also don't believe that black law students (or other law students) are likewise so easily wounded.

I believe that students and lawyers of all identities are perfectly capable of handling the often ugly reality of the world, as reflected in the precedents and in the cases before them. And I think it does them no service to tell them that they are somehow entitled to be so shielded from that reality that they don't even hear some aspects of that reality.

Volokh's point in his fifth argument ignores the backlash to his use of the n-word, as well as students' requests that he not use the word. It also uses his students as a shield for his own behavior by claiming that because they are tough and capable, he should be able to act in ways that these tough students will be able to withstand. Doing so shifts the spotlight from Volokh's own behavior onto his students and accusers.

Volokh attempts to shift the onus to whoever is accusing him of insensitivity--claiming that criticism of his use of the n-word implies that students will be "sharply disturbed" by his doing so, and that the accuser is therefore "suggest[ing]" that African-American lawyers will be less effective than white lawyers. This argument goes a step too far with its unsupported assumption that if people are disturbed or offended by certain language, they will be less effective lawyers. People can be offended, but still get their jobs done. And as I've already noted above, being affected by vile language or facts is a mark of empathy, not ineffectiveness--and recognizing the impact this language has on oneself and others can help attorneys craft arguments that appeal to a range of judges or jurors.

Even though people can perform under difficult circumstances, this does not mean that multiple instances of offensive language or behavior do not eventually take a toll. And it does not mean that people in Volokh's position shouldn't take steps to minimize the negative impact their actions will have on others. Taking such steps isn't coddling, it's basic decency.

Moreover, attorneys faced with similar instances of offensive or vile language and behavior operate under different circumstances than law students. Many attorneys choose their clients, and if a potential client behaves in a way that the attorney finds offensive, the attorney may simply choose not to work for that client. Some attorneys like public defenders have clients appointed to them, but these attorneys can exert pressure on their clients to change their behavior, as offensive actions and remarks are unlikely to play well with judges and juries. Attorneys with existing clients, or who have less of a choice of who they choose as clients, can exercise this control as well--using the threat of a bad outcome or sanctions as motivation to get clients in line. And if it is the other side that is acting badly, effective attorneys will document this behavior to use it against the other side at deposition, trial, or in a motion for sanctions.

Beyond choosing whether to take his class in the first place, students in Volokh's class have little ability to exert control over Volokh's actions. And the limited availability of classes or spaces in those classes often removes students' ability to choose what course to take altogether. Volokh's post makes it clear that he is unwilling to change, as an apology from the dean resulted in nothing more than him doubling down on his behavior.

Volokh's arguments rely on an unrealistic portrayal of practicing attorneys, a failure to acknowledge the stress of the legal profession, and a refusal to consider the dynamics between professors and students.

My original plan for this post was to expand on the argument that Stiegler made in his series of tweets and the argument I made in my own thread here. That argument--in short--criticizes the (all too common) use of bad practices in the legal world to justify unusual and offensive teaching techniques. I'll get to that argument in my next post.

READ MORE - The Flawed Ideal of the Unfazed Lawyer: A Response to Volokh

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