Balkinization an unanticipated consequence of Jack M. Balkin
I have posted a draft of my latest article, Technology and Constitutional Rot , on SSRN. Here is the abstract: Technological change affects the Constitution not only by creating new problems of constitutional interpretation, but also by changing the distribution of economic and political power. New technologies alter what governments and private actors can know, control, predict, and accomplish.…
Despite the lack of constitutional amendments with respect to war powers, there are two inescapable legal changes that must be kept in mind when analyzing questions of war powers in the present. Along the pathway pioneered by Bruce Ackerman, one might call them “amendment-level.” The first is that the United States has global responsibilities (along with the ability to project power) it did not…
How do you sell the idea of free speech to people who worry that words hurt? In the last few years, there have been increasing demands, most prominently on college campuses, to shut down hateful speech. A defense of free speech needs to explain why we should let people say vile things that no one should ever say to anyone. The familiar arguments for free speech aren’t responsive to these concerns.…
It has been difficult for participants in the war powers debate to describe accurately the legal status quo. Is the WPR’s constitutionality in dispute? If it is constitutional, does it play a meaningful role? Are AUMFs the constitutional equivalent of declarations of war? What does the Constitution require in the context of the national security state built after WWII? What is the legal position…
President Trump’s February decision to go to war with Iran has produced a negative reaction in Congress and inspired another round in the war powers debate among pundits and legal commentators. Once again, probably more heat has been generated than light. In particular, there is so much emphasis on whether and to what extent Congress has a role under the Constitution that the issue of why Congress…
Amidst a flurry of wildly erroneous charts and figures President Trump announced his “Liberation Day” tariffs on April 2, 2025. These included the boldest action any U.S. President has ever taken against the Heard and McDonald Islands. After almost a year, the Supreme Court struck them down as unfounded in law. President Trump’s immediate reaction was that he would reimpose broad tariffs on some…
Note: Having just spent the morning writing a short essay about the Twenty-Second Amendment, I was dismayed to find that Jeffrey Gordon had just posted a much more thoughtful piece on the same subject. Accordingly, I have cut away the parts of mine that seem duplicative of his. But I did approach the problem quantitatively and so am posting a stripped down version to make that analysis available.…
Jeffrey N. Gordon Supreme Court decisions of the recent term threaten to undermine the regulatory system that has supported US economic growth and prosperity for nearly 100 years. Many have objected to the Court’s failure to give weight to the risk of such costly destabilization. The Court’s response, presumably, is “it’s the Constitution, not us.” The flaw is that the Court has ignored a critical…
You may have heard of the “ Yale Report ” – in April Yale University released a thoroughly researched response to public concern with universities. Authored by a panel of distinguished scholars, it is titled “Report of the Yale Committee on Trust in Higher Education.” The Committee felt there was not much trust to report. It cited public opinion polls to the effect that public confidence in higher…
Reva Siegel & Mary Ziegler Alliance Defending Freedom (ADF), the conservative Christian legal organization that litigated Dobbs , is now trying to do for the law of equal protection what it has done for the law of due process. Consider the cases it has brought to the Court in West Virginia v. B.P.J. and United States v. Skrmetti. In B.P.J. , the Court upheld, against equal-protection challenge,…
I've posted my latest article, From Off the Wall to On the Wall: How Social Power Shapes Legal Reason , to SSRN. Here is the abstract: Throughout the history of the Constitution legal arguments have moved from being "off the wall"-- crazy, incompetent, and beyond the boundaries of professional reason, to "on the wall"-- plausible claims about which reasonable minds can differ. Some of these claims…
Our nation continues its transition from congressional to presidential fiscal control. Retainers of the ancièn regime (“Members of Congress” to you) fumble around looking for something to do as the Administration becomes increasingly assertive. No single recent event moved me to write, but putting several pieces together reveals a picture that is worth noting. The congressional appropriations…
Arvind Kurian Abraham As fireworks lit up the sky this Fourth of July, the United States of America turned 250. Barring the heatwave, the celebrations were spectacular, the patriotism genuine, and the questions, as ever, complicated. Among the most persistent: Was the United States founded as a Christian nation? The question has gained fresh attention this year. The White House’s Rededicate 250…
Hagiography is an old literary form, dating back to early Christianity. It recounts the lives of the saints in order to elicit the audience’s admiration. Although its reverential character notoriously compromises accuracy, hagiographies can be worth reading as windows into the worldview of believers. That’s the value of Mollie Hemingway’s remarkably uncritical biography, Alito: The Justice Who…
Yesterday I suggested that progressives should reconsider the wisdom of increasing the weight and impact of decisions made in the current political environment. Although supported by only a small minority of progressives, efforts to call an Article V convention are the most dramatic efforts to raise the stakes. They also are the most irresponsible. Progressive proponents of an Article V convention…
Barely a day passes when I do not see some new plan for an anticipated “restoration” after President Trump leaves office. As 2029 approaches, I am sure we will see many more. Alas, I have yet to see a plan that thoughtfully engages with what should be the most foundational question in this process: do we seek a strong federal administration or a weak one? Or, put another way, is the goal to…
Chief Justice John Roberts' legal reasoning in the birthright citizenship case is careful and narrow. But it misses the bigger point: The 14th Amendment was written to prevent a permanent underclass in America. I explain in a new column at USA Today, here .
Daniel Browning The Supreme Court’s 2025 term included several notable First Amendment cases. For example, in Olivier v. City of Brandon, Mississippi , the Court made it easier for First Amendment plaintiffs challenging a law under which they were convicted to seek prospective relief. In Chiles v. Salazar , the Court held that a Colorado law banning “conversion therapy” did not survive strict…
Alec Ewald The best way to celebrate this Fourth of July is to open your draft syllabus and put Frederick Douglass in it. Particularly if it’s a draft con law syllabus, but Douglass goes with anything. (I’m a political scientist, and wouldn’t presume to tell actual law professors what to do – but actually, I kind of would. I think this will be valuable in your classrooms too, and at least one…
Howard Wasserman observes , on Prawfsblawg, that my recent National Affairs essay, “ The First-person Appeal of Free Speech ,” neglects to call out contemporary impulses toward censorship emanating from the right. My piece begins by describing an episode where University of Illinois at Chicago Prof. Jason Kilborn was punished for merely referring to racist episodes on the left, and mentions some…
I have a new piece in National Affairs, i n which I explain (drawing on Milton, Mill, and Aristotle) why exposure to worthless and harmful speech can make you a better person.
In four recent posts, I explained how President Trump is seizing large parts of the Power of the Purse from Congress and how this has led to restructuring within Congress , the Executive Branch , and the courts . In general, those in each branch adept at bipartisan problem-solving have been sidelined in favor of those that are either hyperpartisan themselves or at least unwilling to moderate the…
On Wednesday, President Trump threatened to block the extension of the surveillance program, Section 702 of the Foreign Intelligence Surveillance Act or FISA, which expired on Saturday, unless a measure to reauthorize also included his beloved elections bill, the SAVE America Act . Trump has called passage of the SAVE America Act his chief legislative priority and has continually applied pressure…
Arvind Kurian Abraham Gordon S. Wood, who tragically passed away, was arguably one of the greatest historians of the early American republic of his generation. His death leaves an enormous void, not merely in the academy, but in public life, at precisely the moment when Americans most need the kind of careful, nuanced, evidence-driven historical understanding that Wood devoted his life to…
Eugene Volokh Second Annual Aspiring Free Speech Scholars Workshop jointly sponsored by the Sandra Day O’Connor College of Law (ASU) and the Hoover Institution (Stanford University) Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars Are you a law…
As I previously described, the second Trump Administration has dramatically shifted the Power of the Purse from Congress to the President. Accompanying this change have been internal structural transformations of both Congress and the Executive Branch that have concentrated power in a few highly partisan hands and damaged or destroyed mechanisms that brought a broader range of views to bear. These…