When at Times the Mob Is Swayed

ALSO BY BURT NEUBORNE

Madison’s Music: On Reading the First Amendment

Civil and Political Rights in the United States (4th ed.),

vol. 1 (with Norman Dorsen and Paul Bender);

vol. 2 (with Norman Dorsen, Paul Bender, and Sylvia Law)

Unquestioning Obedience to the President (with Leon Friedman)

When at Times the Mob Is Swayed

A Citizen’s Guide to Defending Our Republic

Burt Neuborne

For my wife, Helen—

My brilliant friend for sixty years

So when at times the mob is swayed

To carry praise or blame too far

We may choose something like a star

To stay our minds on and be staid.

—Robert Frost, “Choose Something like a Star,” 1916

CONTENTS

1  How Good Are the Brakes on the Democracy Train?

2  Why the Sudden Concern About Fixing the Brakes?

3  Would You Buy This House? Repairing the Cracks in Democracy’s Foundation

4  Do the External Judicial Brakes Work Anymore?

5  The Fortas Fiasco: How Not to Maintain the Brakes

6  What’s Law Got to Do with It? Please Don’t Kill All the Lawyers—Yet

7  In Praise of Seventh-Grade Civics: Separation of Powers in the Time of Trump

8  Applying Separation of Powers in the Time of Trump: Five Test Cases

9 Which Shell Is the Power Under? Federalism as a Protection of the Weak

Epilogue: Night Sweats—What If It All Comes Apart?

A Note on Notes

Index

When at Times the Mob Is Swayed

1

How Good Are the Brakes on the Democracy Train?

In more than fifty-five years of practicing law, I’ve sued every American president since Lyndon Johnson, most of them more than once. When I wasn’t suing presidents, as national legal director of the American Civil Liberties Union and founding legal director of the Brennan Center for Justice, I sued governors, mayors, police chiefs, FBI directors, generals, school boards, city council members, judges, cops, and any other government official I could get my hands on who appeared to be violating the Constitution.

The constitutional enforcement business was pretty good. I never experienced a shortage of customers. Much of the time the judicial system worked just as advertised, shielding vulnerable targets from unfair abuse at the hands of the politically powerful. I’ve learned from bitter experience, though, that without an excellent set of constitutional brakes, American democracy can quickly morph into an angry, fearful mob—a runaway political train fully capable of crushing anyone in its path.

Faced, as we are these days, with a charismatic, authoritarian president named Donald Trump, whose genius for creating scapegoats, bending the truth, and fomenting divisiveness poses a profound threat to many of our constitutional values, it’s long past time to check the brakes on the twenty-first-century American Democracy Express. Are the brakes strong enough to stop a runaway Trumpist train fueled by racism, misogyny, envy, and fear?

The short—and disturbing—answer is that the brakes on the first-class cars, especially the gilded private cars at the head of the train, are still in pretty good shape. But if you’re traveling in coach, or riding outside because you can’t afford a ticket, you run a serious risk of being the victim of an ugly train wreck—because the brakes on the low end of the Democracy Express are in terrible shape. I hope that you will treat this book, in part, as a warning from your neighborhood constitutional cop about the faulty brakes; and, in part, as a repair manual for folks willing to get their hands dirty fixing them.

I am confident that sustained political and legal effort can get us back on track. My most important message, though, is that there is no constitutional mechanic in the sky ready to swoop down and save American democracy from Donald Trump at the head of a populist mob. The fate of American democracy is up to us.

The legendary group of Founders—George Washington, James Madison, John Adams, John Jay, and Alexander Hamilton—who built the railroad were so concerned about runaway democratic trains that they installed a dual braking system—internal and external. In 1787, they designed an “internal” set of self-checking electoral brakes designed to prevent an overheated electoral majority from picking up too much speed in any one direction. As a backup, in 1791, they installed a second, “external” set of brakes empowering independent, politically neutral judges, headed by the Supreme Court, to slow or stop the democracy train if, despite the internal brakes, the electoral majority threatened to run roughshod over vulnerable individuals and groups.

The sad truth is that, today, neither braking system is working well enough to stop a runaway populist train fueled by racism, religious intolerance, and ideological fervor from jumping the constitutional tracks and harming the weak and poor. Anyone who tells you differently either doesn’t understand how the brakes work, doesn’t care who gets run over, or is working for Vladimir Putin.

THE INTERNAL BRAKES

The Founders’ internal brakes haven’t been overhauled in more than two hundred years. They are in dreadful shape. As originally designed, the internal brakes relied on multiple, relatively equal voting blocs with differing, often conflicting, interests to check each other automatically. The theory was that the interaction of competing voting blocs would prevent any single group of voters from accumulating enough governing power to run roughshod over the losers.

As a matter of history, the Founders’ internal electoral braking system worked tolerably well for a long time, with the tragic exception of the Civil War. Today, though, the Founders’ electoral brakes are in shambles. Instead of a self-regulating system based on checks and balances, two dominant political parties—Republican and Democratic—provide a ready path for a single, ideologically linked group of voters to gain complete control of the government and, once in power, to abuse that control by crushing their opponents, along with any other scapegoats that happen to get in the way.

The Founders were remarkable visionaries who literally invented the idea of a mass democracy governing a large geographical area. Much of this book is devoted to their brilliant political innovations. The one thing the Founders didn’t foresee, though, was the crucial role of political parties in organizing and operating the democratic process. In fact, the Founders hated the idea of political parties, disparagingly calling them “factions.” It turns out, though, that you can’t run a mass representative democracy without some coordinating mechanism to organize the process. That’s where political parties come in—like it or not.

For most of our national history, the Founders’ failure to have anticipated the need for political parties didn’t do much harm to their internal braking mechanism because nineteenth- and twentieth-century American political parties tended to be either small regional groupings capable of checking each other, or “big tents” that included a bewildering array of self-checking interests crossing ideological, economic, and racial fault lines. Once upon a time, liberal Republicans were to the left of conservative Democrats, and just as many blacks supported the Republican Party, the party of Abraham Lincoln, as supported the Democrats, long the party of racial segregation.

Today, the Republican and Democratic parties have evolved into competing ideological brand names, functioning as closed political silos with virtually no points of overlap. Too often, adherents of each party demonize their political opponents, receive their political information from diametrically opposed media outlets, and view politics as an apocalyptic struggle between right and wrong. Even worse for the internal braking system, today’s political parties also predictably divide by particularly incendiary criteria such as race, religion, ethnic origin, and economic status, setting the stage for ferocious partisan competition to win bitterly contested elections by narrow margins, followed by ruthless efforts to ram an ideological agenda down the throats of the electoral losers. Thus, instead of organizing a self-checking mechanism governed by compromise, our current hyper-partisan political parties function as accelerants, enabling extreme partisans to set the throttle at full speed without caring much who gets run over.

I’m confident that the current hyper-partisan nature of the Republican and Democratic Parties can be ameliorated by tweaking the rules governing the nomination process, which currently artificially empower the parties’ extreme wings. As we’ll see, the democracy repair manual in chapter 3 calls for changing the nominating ground rules to do a better job of reflecting the preferences of moderates in each party, and even opening the way for potential third-party challenges to the current legally protected political duopoly enjoyed by the Republican and Democratic parties.

The unforeseen impact of ideologically defined political parties is not, however, the only reason the Founders’ electoral brakes don’t work anymore. The real problem is much deeper. The Founders imagined a fair representative democracy where a diverse body of elected “representatives” would accurately reflect the mosaic of American life. In twenty-first-century America, however, the Founders’ ideal of fair political representation has all but fallen apart. In fact, it’s hard to imagine a system of electoral representation more unfair, unequal, and distorted than ours that would have the chutzpah to call itself a real democracy.

We start with the appallingly undemocratic United States Senate, where Wyoming, with fewer than 600,000 residents, elects the same number of senators as California, with 40 million residents—a one-person one-vote distortion of sixty-five to one—and where, in a worst case scenario, senators representing only about 18 percent of the country’s population can cast 51 percent of the votes in the chamber. Current reality is not quite that bad. In the 116th Congress, Republican senators representing just under 40 percent of the population control the upper chamber. That’s not as undemocratic as it could be, but it’s nothing to be proud of if you believe in political equality and majority rule.

It would be bad enough if the Senate’s representational distortion were random. But it’s far from random. It’s structurally biased against urban America, where 80 percent of Americans live, including the vast bulk of Americans of color. Face it. Under the existing Senate structure, sometimes it feels as though New York City is a colony of Wyoming.

How did such a distortion of the Founders’ democratic dream come about? We all remember the story of the “Connecticut Compromise,” where the smaller states agreed to a House of Representatives based on population in return for a Senate where each state would have “equal suffrage” regardless of population. Madison accepted the Connecticut Compromise, but he understood that equal state representation in the Senate regardless of population contravened the principles of representative democracy. In 1787, the Confederation Congress had provided in the Northwest Ordinance that future states formed from the territories would each have about the same population. Despite the compromise with principle, Madison reluctantly went along with the Connecticut Compromise because he believed that modestly overrepresenting several of the original smaller states in the Senate would protect a politically weak minority against possible oppression by the politically powerful majority.

The original compromise with principle was modest. In 1790, Delaware, with about 60,000 residents, elected the same number of senators as Virginia, with more than 750,000 people. Since almost half of the 750,000 Virginians were enslaved people who could not vote, the actual representational deviation was about 6.5 to 1. The one thing Madison never imagined, though, was that a 6.5-to-1 representational deviation in 1790 would metastasize tenfold into a sixty-five-to-one deviation today, empowering a rural, predominantly white minority of the national voting population to dictate policy in the Senate to the nation’s urban majority.

As with the need for political parties, here’s what the Founders did not—and could not have—foreseen. Over more than two hundred years, the United States has evolved from a small agricultural nation hugging the Atlantic coast with fewer than 4 million people (more than one-third of whom were enslaved) into the world’s preeminent industrial and financial power with more than 326 million people spanning the North American continent. Massive, densely populated urban centers dedicated to finance and industry emerged in many states; while other, more sparsely populated states remained primarily rural and agricultural. But, no matter how the national population has grown, and has ebbed and flowed from state to state, from farm to factory, and from town to city, the Constitution’s mandate that each state continue to elect the same number of senators regardless of population currently awards an enormous representational advantage to the folks living in rural America. This edge is particularly dramatic when it comes to electing presidents via the distorted Electoral College and confirming Supreme Court justices in the malapportioned Senate.

Short of scrapping the entire Constitution and starting over, though, there’s probably nothing that can be done about the profoundly undemocratic Senate. The 1787 Constitution has only three explicitly non-amendable provisions: a right to import enslaved people until 1808; a ban on per capita taxation (to protect slave owners against being taxed out of existence); and the right of each state to enjoy “equal suffrage” in the Senate. While, under Article IV of the Constitution, it would be theoretically possible—and perfectly constitutional—for states with large urban populations such as California, Illinois, Texas, Florida, Pennsylvania, and New York (the six states currently suffering a 20-1 representational deficiency in the Senate) to divide like paramecia into multiple states with two senators each giving urban America fairer Senate representation, don’t hold your breath waiting for the moving parts to align. Congress would have to grant permission and the affected states would have to agree on boundaries. Although it’s happened five times in the nation’s history—Vermont from New York (1791); Kentucky from Virginia (1792); Tennessee from North Carolina (1795); Maine from Massachusetts (1820); and West Virginia from Virginia (1863), I doubt that we have the will or ability to act as modern Founders to rescue the Senate from its current undemocratic swamp. While I hope I’m wrong, I’m afraid that we will almost certainly limp into the future with the Founders’ internal electoral brakes warped by the utter collapse of fair and equal legislative representation for urban America in the United States Senate.

The drastic imbalance in the Senate translates into a troubling representational imbalance in the Electoral College, established by the Founders to choose the president indirectly in place of a nationwide popular election. Under the Founders’ system, voters in each state choose presidential electors, who then meet in Washington, DC, as the Electoral College to select the president. It takes a majority vote in the Electoral College to win the presidency. The Constitution awards each state as many electors as it has representatives in Congress. That’s fine when it comes to members of the House of Representatives, all of whom are allocated according to a state’s population. But it’s a representational disaster when applied to the Senate, which, as we’ve seen, is radically unrepresentative. The net result is to tilt the Electoral College toward the same sparsely populated rural states that benefit from the Senate’s failure to reflect democratic principles of one-person one-vote.

That means there is no guarantee that the winner of the national popular vote will become president. In fact, twice in the last sixteen years, Republican candidates for president—George W. Bush in 2000 and Donald Trump in 2016—have won a majority in the Electoral College while losing the national popular vote. Can you imagine what we would say about another nation’s democratic legitimacy if that country chose powerful presidents who had been repeatedly rejected by a clear majority of the voters?

When you combine the representational unfairness in the Senate with the representative distortion in the Electoral College, you emerge with Donald Trump, a minority president who lost the national election by three million votes, representing a Republican Party that lost the popular vote in six out of the last seven national elections—1992, 1996, 2000, 2008, 2012, and 2016—empowered to appoint Neil Gorsuch and Brett Kavanaugh as swing Supreme Court justices, who are then confirmed by fifty-one Republican senators representing fewer than 40 percent of the nation’s population. What would Washington, Madison, and Jefferson think about such sustained representational failure?

And it gets even worse. The one place where the Founders’ internal electoral braking system should still work is the House of Representatives, elected every two years to provide an accurate mirror of the incredibly diverse society it is intended to “represent.” Since 1962, under Article I, Section 2 of the Constitution and the one-person one-vote principle of Baker v. Carr, every member of the House of Representatives must represent an equal number of constituents (currently, about 700,000 persons). So, ideally, the House should function as the Founders’ classic self-limiting democratic institution, a body fairly representing diverse interests of relatively equal political weight, no one of which can dominate the others. The result should be a legislative body characterized by shifting coalitions, moderation, and compromise.

There’s only one catch. The representational integrity of the House of Representatives has been poisoned by an epidemic of excessive partisan gerrymandering—the hyper-partisan drawing of distorted electoral maps designed to lock large numbers of rural and suburban Republican candidates into office, while systematically depriving their Democratic opponents of fair representation in the Congress and the state legislatures. Democrats would love to do it, too, of course, but, except for Maryland, they have lacked the opportunity in recent years.

In many Republican-controlled states, like North Carolina, the boundaries of congressional districts have been carefully drawn so that reliably Republican voters are strategically spread over numerous districts, with just enough Republican votes in each district (usually 55 percent or so) for Republican candidates to be the overwhelmingly likely winners. In such a Republican-leaning district, every Republican vote is important. Democratic voters in the same state are frequently packed into overwhelmingly Democratic urban districts (as much as 80 percent Democratic), where the Democratic candidate predictably wins by an overwhelming majority, but where many of the Democratic votes are “wasted” because they are not needed to win. It’s called “packing and cracking.”

Given the current Republican gerrymandered district boundaries, in order for the Democratic Party to elect 50 percent of the House of Representatives, the Democrats must garner between 55 and 60 percent of the total national congressional vote. The Founders would wince. As the 2018 congressional elections demonstrate, it’s possible for the Democrats to overcome the built-in headwinds and win a majority in the House of Representatives, but it’s also important to note how strong the gerrymandering headwinds can be—in North Carolina, for example, in spite of winning statewide, the Democrats couldn’t flip a single Republican district, leaving the Republican Party with ten of thirteen congressional seats in a state that voted Democratic.

Worse, in recent years, five Republican justices on the Supreme Court have virtually invited cynical politicians to remain in power by making it as hard as possible for many poor people (often of color) to vote at all. That’s where phony voter ID requirements, felon disenfranchisement, and voter registration purge statutes come from. Under the current Supreme Court, the representational breakdown in the House may even get worse. Stay tuned for: (1) Supreme Court acceptance of even more ruthless partisan gerrymanders; (2) Supreme Court approval of an avalanche of phony anti-fraud devices, such as voter ID requirements and purge statutes; and (3) Supreme Court acceptance of efforts by Republican-controlled states to apportion House seats on the basis of citizenship instead of the historical basis of residence, further diminishing the representation of urban America, where large numbers of noncitizens reside (that’s why Republicans are trying to add a citizenship question to the 2020 census).

Stay tuned, as well, for a ferocious rearguard defense of felon disenfranchisement in Florida, where for years it has denied the ballot to 25 percent of the black male electorate. The predictably racially discriminatory impact of felon disenfranchisement is what has enabled predominantly rural white Republican voters to retain control of a rapidly urbanizing state. It almost certainly decided the 2000 presidential election.

In 2018, more than 64 percent of Florida’s voters overwhelmingly rejected felon disenfranchisement, but there is, as yet, no plan for how to restore the many thousands of historically disenfranchised voters to the rolls. Republican election officials are already making noises about how important it is to slow down the implementation of the referendum. And it’s only a matter of time until Republican politicians in Florida and elsewhere try to condition the restoration of voting rights to convicted felons on payments of court fees beyond the reach of poor voters.

Sadly, instead of being a showcase for the Founders’ self-checking internal braking system, the current House of Representative has been turned into a partisan swamp. When you add the representational distortions in the Senate and the Electoral College to the gerrymandered House of Representatives, it’s as though the Constitution’s great Preamble has been hijacked to read: We, a rural minority of the people, do hereby ordain and establish this blueprint for governing the urban majority.

Face it: as far as the weak and poor are concerned, there are no longer any reliable self-checking internal brakes on the Founders’ train. If anything, today’s train is geared to run over the poor folks who live in urban America.

THE EXTERNAL BRAKES

The Founders didn’t rely solely on internal brakes. Somewhat reluctantly, they introduced a backup external braking system, empowering independent, politically neutral judges to slow or stop a runaway democratic train. The good news is that the external brakes still work much of the time, especially when personal autonomy—the right to be left alone—is at stake. The bad news is that the external braking mechanism is so damn complex, with so many moving parts, that it has ceased to be reliable in many settings, especially when the right of the weak to equal treatment is at stake.

The Supreme Court is not shy about touting the Court’s constitutional brakes as a state-of-the-art, fail-safe system capable of stopping even a runaway populist train traveling at breakneck speed. According to the warranty printed on the back of the train ticket, riding on the American Democracy Express is a relatively risk-free proposition because “when at times the mob is swayed / to carry praise or blame too far,” a politically neutral, life-tenured Supreme Court, sworn to enforce constitutional checks on the tyranny of the majority, can be trusted to slow or stop the train before it causes too much damage. The Supreme Court even promises to perform prophylactic maintenance on the braking system by stopping government officials—especially officials of the national government—from acquiring dangerous unilateral power over the train’s throttle.

Like too many warranties these days, the Supreme Court’s earnest assurances that it is standing by to apply politically neutral brakes on a runaway electoral majority by enforcing the constitutional text isn’t entirely accurate. In fact, it comes close to being downright false and misleading. The warranty doesn’t tell you that the precise meaning of the most important rights-bearing provisions of the Constitution—including the First Amendment’s forty-five-word protection of religion, speech, and press; and the Fourteenth Amendment’s guarantee of the “equal protection of the laws”—is almost always up for grabs.

That’s nothing new, of course. The meaning of the Constitution’s text has always been deeply contested. What is new is the utter breakdown of the internal electoral brakes and the emergence of an immensely powerful president who expresses utter contempt for the very ideas of toleration and mutual respect that undergird our constitutional republic.

The Supreme Court’s warranty doesn’t tell you that the justices who actually operate the brakes are more divided than ever these days about how to interpret the Constitution’s ambiguous text. In the many important Supreme Court cases where the constitutional text is ambiguous, binding Supreme Court precedent is either absent or confusing, and/or prime constitutional values such as autonomy (the right to be left alone) and equality (the right to be treated the same) point in different directions, Republican justices have, over the years, tended to read the ambiguous constitutional text to favor the right of individuals to be left alone, repeatedly protecting the powerful from a host of government regulations aimed at protecting the vulnerable. Democratic Supreme Court justices have tended to read the same ambiguous constitutional text to advance the equality-based interests of the weak, often at the expense of the autonomy of the strong. Despite the Supreme Court’s sincere promise of political neutrality, Republican justices are more likely to read the Constitution from the top down, insulating big business, rich campaign spenders, political bosses, dominant racial groups, dominant social groups, insiders, police, the military, and men from government regulations designed to rein in their power. Democratic Supreme Court justices more often read the same text from the bottom up to protect the equality interests of racial and ethnic minorities, gays, women, political and religious dissenters, the poor, immigrants, people seeking the vote, outsiders, consumers, and targets of government suppression.

Don’t get me wrong. I am not asserting that Supreme Court justices consciously advance a partisan agenda, although sometimes, as in Bush v. Gore (the 5–4 case where five Republican justices gave George W. Bush the presidency in 2000 despite his loss of the popular vote and quite possibly his loss of the crucial Florida vote), it looks like that’s what’s happening. Nor do I believe that Supreme Court justices consciously align themselves with the strong or the weak. In fact, I believe that almost all the justices who have served in the modern era would pass lie-detector tests about their nonpolitical commitment to “equal justice under law”—the aspirational motto carved on the façade of the Supreme Court building. But the Supreme Court’s braking mechanism is so complex, so dotted with branching points requiring the exercise of discretion and choice, that in a close case, I believe that a justice’s deeply held values will inevitably affect her views about the relative persuasiveness of the lawyers’ arguments.

The truth is that we have two competing Constitutions—one red, one blue—that blink on and off like neon signs depending on which political party controls the Supreme Court. Partisan control of the Supreme Court has flipped only twice since the Civil War: Republicans controlled the Court from 1865 to 1937; Democrats controlled it from 1937 to 1972; Republicans regained control in 1972 and have held it ever since, most recently by unconstitutionally refusing even to consider Merrick Garland, President Obama’s moderate Democratic nominee to replace Antonin Scalia. That’s really all you need to know to understand the zigs and zags of American constitutional jurisprudence over the past 150 years. Not in every case, every time. But enough cases and enough times to establish an unmistakable pattern.

So, before you put too much trust in the external constitutional brakes on the Democracy Express, it’s a good idea to check on whether the justices operating those brakes are dressed in red or blue. As the legal fate of Donald Trump’s successful effort to ban millions of Muslims from traveling to the United States demonstrates, knowing which political party controls the Supreme Court will tell you more about whether, when, and for whom the runaway train will be stopped than the constitutional text, the constitutional lawbooks, and all the history tomes in your library.

Most importantly, whatever the Supreme Court’s echo chamber says, it’s crucial to remember that, over time, it’s the people—the passengers on the train—who have the power to decide whether Republican or Democratic justices operate the brakes. I believe that each presidential election and every Senate election operate, in part, as rolling constitutional conventions where the people have a chance to choose between a red Constitution enabling the strong and a blue Constitution protecting the weak. That’s why it was so galling to watch a minority president—who lost the presidential election by more than three million votes, who may well hold office only because of his contempt for campaign finance laws and his dalliance with Russian intelligence services, and who represents a political party that has lost the popular vote in six of the last seven national elections—nominate two swing Supreme Court justices likely to cement the red Constitution into place for a generation, who were promptly confirmed by a majority of the Senate representing fewer than 40 percent of the people.

The Supreme Court’s vaunted brake warranty also doesn’t tell you that it may not apply to runaway populist trains traveling at dangerously high speeds. Despite the Supreme Court’s lofty rhetoric, the justices have rarely acted in the teeth of a broad national consensus. Overwhelming patriotic support for World War I translated into Supreme Court decisions affirming criminal convictions and draconian prison sentences for opponents of the war whose only crime was to speak out against it. In the 1920s, overwhelming hostility to communism and other left-wing movements translated into Supreme Court decisions affirming the convictions of so-called “criminal anarchists,” guilty of nothing more than espousing radical political views. In the 1930s, after Franklin D. Roosevelt won the 1936 presidential election in a landslide, carrying every state except Maine and Vermont, the Supreme Court promptly installed an entirely new braking mechanism in economic regulation cases that was much more to FDR’s liking, abandoning many of its earlier precedents along the way. In the 1940s, a lethal combination of racism and jingoistic World War II patriotic fervor stampeded the Democratic Supreme Court into a 6–3 decision upholding the internment of 120,000 Japanese Americans residing on the West Coast. In the 1950s, a spate of national hysteria fueled by fear of communism translated into Supreme Court affirmances of the conviction and imprisonment of the leadership of the American Communist Party for the crime of being the leadership of the American Communist Party. In the 1960s, faced with initial public support for the war in Vietnam, the Supreme Court upheld long prison sentences for draft card burners. The Warren Court couldn’t summon up a single vote for the First Amendment, even though the government conceded that the only reason for enacting a ban on draft card burning was to suppress an effective form of protest. In fact, throughout the decade-long war in Vietnam, the justices never summoned up the will to review the legality of an unconstitutional presidential war in which sixty thousand Americans and upward of two million Asians lost their lives.

In my experience, the Supreme Court is best at enforcing consensus national political and social norms against local outposts of resistance that are out of step with the rest of the nation. It’s no coincidence that the Court didn’t end state-imposed racial segregation until 1954, after the concept had already been rejected by more than three-quarters of the states. And it wasn’t until free speech became a source of national pride in the 1960s that the Court got around to building powerful, maybe too powerful, First Amendment doctrine. The history of the Supreme Court’s women’s rights jurisprudence looks more like a barometer of national public opinion than a principled exercise in law enforcement. Likewise, the Court’s welcome protection of gay rights reflects a dramatic generational change in the nation’s response to sexual orientation.

Don’t despair, though. The Supreme Court’s warranty is neither worthless nor fraudulent. It’s just misleadingly broad. In the relatively rare settings where the constitutional text is clear; the much more numerous settings where well-reasoned judicial precedent commands the justices’ professional respect; and the occasional settings where the prime constitutional values of autonomy and equality point in the same direction, as they often do in cases involving free speech, religious freedom, the ban on racial apartheid, women’s equality, and the protection of gay marriage, I am confident that the Supreme Court will continue to provide a reliable, nonpolitical check on majoritarian excess. In those important settings the brakes will work as advertised, at least in the foreseeable future. So please don’t kill all the lawyers—yet.

If, however, our forty-fifth president, craven Republican legislators, and a tame Supreme Court combine to impose the will of the strong on the backs of the weak, only sustained political involvement on behalf of traditional American values can put the democratic train back on track. It will be a tough job, because, as we’ve seen, the democratic deck is stacked against us. But it is far from impossible if only we use the available tools.

Somehow, we must find the will to act as a re-founding generation. After all, we’re not being asked to live up to past generations who risked their lives by fighting a Revolutionary War to create a nation, waging a bloody Civil War to end slavery, and enduring fifty years of hot and cold war to protect the nation against Hitler and Stalin.

All we have to do is fix the damn brakes.

2

Why the Sudden Concern About Fixing the Brakes?

Most experienced lawyers know that the outcome of hard constitutional cases often turns on who the judge is. I’ve litigated hundreds of constitutional cases. The defining event in many of them—the tough ones where the constitutional text could be read more than one way, the precedents were murky or nonexistent, and important values such as autonomy and equality pulled in different directions—was the moment when I learned the name of the judge.

Once I knew the judge, I had a pretty good idea of the case’s outcome. Not every time. Not every judge. But enough times and enough judges to convince me that a judge’s honest assessment of the persuasive power of closely balanced legal arguments is shaped as much by her values as by the inherently persuasive power of the legal arguments.

I never publicly admitted it. No active constitutional litigator dares to blow that whistle if he wants to keep on litigating. Behaving as if the judge is a politically neutral arbiter in search of a single correct legal answer is the price of being taken seriously in the courtroom. So I kept my mouth shut and labored mightily over my legal arguments as if the outcome of every case depended on each turn of phrase and each asserted precedent.

Sometimes it did. Often, raw material for persuasive legal arguments existed that guided a principled judge to a clearly preferable legal result, rendering the judge’s values irrelevant. Occasionally, I was surprised at the outcome, when principled judges ruled counter to their values. Most of the time, though, the result was predictable and, tolerably often, admirable. The burst of egalitarian precedents that emerged from the Democratic Supreme Court, especially during the years (1954–68) when Earl Warren, a nominal Republican, was chief justice, has salted the legal system with plenty of powerful legal precedents for protecting the weak. And a steady stream of autonomy-protective precedents decided under both Republican and Democratic courts was always available to keep the government at bay.

But then there was Donald Trump, the only president in recent American history to openly despise the twin ideals—individual dignity and fundamental equality—upon which the contemporary United States is built. When you confront the reality of a president like Trump, the state of both sets of brakes—internal and external—become hugely important because Donald Trump’s political train runs on the most potent and dangerous fuel of all: a steady diet of fear, greed, loathing, lies, and envy. It’s a toxic mixture that has destroyed democracies before, and can do so again.

It shouldn’t come as a surprise that Trump is so adept at exploiting fear and inventing scapegoats. He studied at the feet of the master. We know from Ivana Trump’s now sealed testimony at Trump’s first divorce trial, backed up by her lawyer, Michael Kennedy, and from the president himself, that for years a younger Donald Trump slept with a book of Adolf Hitler’s collected political speeches, published in 1941 as My New Order, in a locked cabinet at his bedside. Ugly and appalling as they are, those speeches are masterpieces of demagogic manipulation.

Give Trump credit. He did his homework well and became the twenty-first-century master of divisive rhetoric. We’re used to thinking of Hitler’s Third Reich as the incomparably evil tyranny that it undoubtedly was. But Hitler didn’t take power by force. He used a set of rhetorical tropes codified in Trump’s bedside reading that persuaded enough Germans to welcome Hitler as a populist leader. The Nazis did not overthrow the Weimar Republic. It fell into their hands as the fruit of Hitler’s satanic ability to mesmerize enough Germans to trade their democratic birthright for a pottage of scapegoating, short-term economic gain, xenophobia, and racism. It could happen here.

I lived through McCarthyism. I passionately opposed the undeclared war in Vietnam. I was on Nixon’s enemies list. I served as national legal director of the ACLU during the presidency of Ronald Reagan. Edwin Meese, Ronald Reagan’s attorney general, once described the ACLU under my leadership as “the criminals’ lobby.” But I have never experienced the sense of dread that Trump’s behavior as president has unleashed in my mind and heart.

Why does an ignorant, narcissistic buffoon like Trump trigger such anxiety? Why do so many Americans feel it existentially (not just politically) important to resist our forty-fifth president? Partly it’s just aesthetics. Trump is such a coarse and appalling man that it’s hard to stomach his presence in Abraham Lincoln’s house. But that’s not enough to explain the intensity of my dread. LBJ was coarse. Gerald Ford and George W. Bush were dumb as rocks. Richard Nixon was an anti-Semite. Bill Clinton’s mistreatment of women dishonored his office. Ronald Reagan was a dangerous ideologue. I opposed each of them when they appeared to exceed their constitutional powers. But I never felt a sense of existential dread. I never sensed that the very existence of a tolerant democracy was in play.

Partly it’s politics. Most of my career has been devoted to construing the Constitution to protect the most vulnerable among us: racial minorities, religious iconoclasts, political radicals, women, gays, trans people, the poor. Many of Trump’s policies threaten to unravel the safety net for the weak that the country has painstakingly woven over the past half century. But Trump’s signature political positions, whether taxation, immigration, market deregulation, the environment, or civil rights, are not fundamentally different from the right-wing policies I’ve struggled against for most of my career. I’ve always viewed winning and losing on policy—even constitutional policy—as part of a long-term democratic process that would continue no matter how a given skirmish turned out.

Watching Trump work his crowds, though, I see a dangerously manipulative narcissist unleashing the demagogic spells that he learned from studying Hitler’s speeches—spells that he cannot control and that are capable of eroding the fabric of American democracy. You see, we’ve seen what these rhetorical techniques can do. Much of Trump’s rhetoric—as a candidate and in office—mirrors the strategies, even the language, used by Adolf Hitler in the early 1930s to erode German democracy.

Please don’t misunderstand me. I am not equating Donald Trump with Adolf Hitler. In fact, I’m reluctant to use the names Hitler and Trump in the same sentence. It trivializes Hitler’s obscene crimes to compare them with Donald Trump’s often pathetic foibles. It is also unfair to Trump to cast him as the epitome of evil rather than as the shallow blowhard he is. While our forty-fifth president loves to play at being the boss, I do not believe that Trump hopes or intends to morph into a dictator with an agenda of evil. What Trump does not appear to understand, though, is that the very act of letting Hitler’s genies out of the bottle is playing with the fate of the nation.

Donald Trump’s channeling of Adolf Hitler’s rhetorical techniques is profoundly dangerous to American democracy not because of Trump’s ideas (wrongheaded as many may be), his ignorance (profound as it is), or his disdain for people who do not look or sound just like him (ugly as he makes it appear). It is dangerous because the forty-fifth president, by following Hitler’s playbook, risks unleashing forces of ignorance, anger, misogyny, racism, xenophobia, selfishness, bigotry, fear, and greed that, once set free, can unravel the social fabric of a nation.

In January 1933, most Germans were sure that Hitler, an ignorant, loudmouthed, widely derided minority chancellor of the Weimar Republic, either would blow over or could be harnessed as a tool to advance their own self-interested policies. Today, too many Americans also dismiss Trump as an ignorant buffoon who will eventually self-destruct and disappear. Too many others, especially the congressional leadership of the Republican Party, are following the disastrous path set by the German center-right political establishment in its treatment of Hitler, disdaining Trump as an appalling man but viewing him as a useful path to power who can be controlled and then discarded. By the time the German political establishment woke up, Hitler had spread enough rhetorical poison to doom German democracy.

Like Trump, Hitler never won a majority in a free and open election. Despite massive and unprecedented support from Vladimir Putin’s Russia, Trump lost the 2016 popular election by approximately three million votes. Trump became president with only 46 percent of the vote, compared to the 48.2 percent share won by Hillary Clinton. He became legally entitled to the presidency only because a total of 77,774 voters spread over three crucial states—Wisconsin, Pennsylvania, and Michigan—enabled him to assemble a majority in the Electoral College.

Since the turnout in the 2016 presidential election was just under 55 percent of the eligible electorate, and since Trump received 46 percent of that vote, only about a quarter of eligible voters actually cast their ballots for Donald Trump (55 percent × 0.46 = 25.3 percent).

That’s just a little less than the percentage of the German electorate that turned to the Nazi Party in 1932–33. Unlike the low turnouts in the United States, turnout in Weimar Germany averaged just over 80 percent of eligible voters. Thus, excluding the March 1933 elections, which were administered by the Nazis and badly marred by violence and fraud, in the last free Weimar election in July 1932 that brought the Nazis to power, only about 30 percent of the German electorate actually voted for Hitler (80 percent × 0.37 = 29.6 percent).

Once installed as a minority chancellor in January 1933, Hitler set about demonizing his political opponents, and no one—not the vaunted, intellectually brilliant German judiciary; not the respected, well-trained German police; not the revered, aristocratic German military; not the widely admired, efficient German government bureaucracy; not the wealthy, immensely powerful leaders of German industry; and not the powerful center-right political leaders of the Reichstag—mounted a serious effort to stop him. By the time the Summer Olympics were held in Berlin in 1936, German democracy had been destroyed by a buffoonish laughingstock who had never commanded support from more than 30 percent of the electorate.

How on earth did Hitler pull it off? What satanic magic did Trump find in Hitler’s speeches?

An important part of the answer is on display at Yad Vashem, the Israeli Holocaust Memorial in Jerusalem, where two small green plastic cubes sit almost unnoticed on modest display tables, surviving examples of the many thousands of radios distributed by the Nazi Party during the early 1930s. The radios were free, but there was one catch: they could receive only a single frequency. And that frequency carried the undiluted voice of Adolf Hitler, speaking directly to the 30–40 percent of the German population frightened enough, angry enough, disaffected enough, and—let’s say it—bigoted enough to embrace the Nazi Party’s witches’ brew of falsehoods, half-truths, personal invective, threats, xenophobia, anti-Semitism, national security scares, religious bigotry, white racism, exploitation of economic insecurity, and a never-ending search for scapegoats.

In the end, it was Hitler’s uncanny ability to exploit those cheap plastic radios to manipulate an adoring and disaffected base, never exceeding 30–40 percent of the population, that destroyed the Weimar Republic and eventually plunged the world into catastrophic war.

Donald Trump’s tweets, often delivered between midnight and dawn, are the twenty-first century’s technological embodiment of Hitler’s free plastic radios. Trump’s Twitter account, like Hitler’s radios, enables a charismatic leader to establish and maintain a personal, unfiltered line of communication with an adoring political base of about 30–40 percent of the population, many (but not all) of whom are only too willing, even anxious, to swallow Trump’s witches’ brew of falsehoods, half-truths, personal invective, threats, xenophobia, national security scares, religious bigotry, white racism, exploitation of economic insecurity, and a never-ending search for scapegoats.

The social and economic composition of Trump’s core political base eerily mirrors Hitler’s: both were (and are) relatively poorly educated; patronized, even disdained by smug, better-educated elites; taken for granted, ignored, or worse by the mainstream political parties; and threatened economically and socially by newcomers who do not look, speak, or believe as they do.

By itself, of course, the fact that the social and economic characteristics of core supporters of both Trump and Hitler resemble each other doesn’t mean much. A substantial base of disaffected, insecure, relatively poorly educated citizens, angry at what they perceive as political betrayal and economic injustice, and fearful of losing what’s left of their political power, economic privilege, and social status to “others,” is a longtime staple of right-wing populist politics. But think of those cheap plastic radios broadcasting the unfiltered, deeply personal voice of an ego-driven, power-obsessed leader, spewing an uninterrupted stream of lies, half-truths, insults, vituperation, and innuendo designed to marginalize, demonize, and eventually destroy opponents. Then think of Donald Trump’s odd-hours tweets rattling around inside the heads of millions of his core supporters, spewing an unfiltered stream of racist dog whistles, xenophobic lies, political innuendos, and economic half-truths.

That’s not just populist politics. That’s a proven recipe for the cult of personality and the specter of mobocracy that consumed German democracy.

Hitler used his single-frequency radios to wax hysterical to his adoring base about his pathological racial and religious fantasies glorifying Aryans and demonizing Jews, blaming Jews (among other racial and religious scapegoats) for German society’s ills.

Trump’s tweets and public statements, whether dealing with black-led demonstrations against police violence, white-led racist mob violence, threats posed by undocumented aliens, immigration policy generally, protests by black and white professional athletes, college admission policies, hate speech, even response to hurricane damage in Puerto Rico, also repeatedly carry racially tinged messages calculated to divide whites from people of color.

Hitler’s radio rants blamed most of Germany’s problems on a worldwide conspiracy. He pledged to restore Germany’s greatness by redressing the claimed economic and territorial injustices imposed on Germany by the Treaty of Versailles, which ended World War I. Trump uses his tweets to mimic Hitler, promising to “make America great again” and conjuring a dark, conspiratorial world order where a naive, weakened America is being systematically victimized at every turn by shadowy international forces.

Hitler unleashed, and Trump stridently echoes, warnings of an impending cultural Armageddon, in which the values of the (white) West will battle for survival against an onslaught of inferior, alien races from the (nonwhite) East.

Hitler’s radio harangues demonized his domestic political opponents, calling them parasites, criminals, cockroaches, and various categories of leftist scum. Trump’s tweets and speeches similarly demonize his political opponents. Trump talks about the country being “infested” with dangerous aliens of color. He fantasizes about jailing Hillary Clinton, calls Mexicans rapists, refers to “shithole countries,” degrades anyone who disagrees with him, and dreams of uprooting thousands of allegedly disloyal bureaucrats in the State Department, the Environmental Protection Agency, the FBI, and the CIA, who he calls “the deep state” and who, he claims, are sabotaging American greatness.

Both Trump and Hitler maintained a relentless assault on the very idea of objective truth. Each began the assault by seeking to delegitimize the mainstream press. Hitler quickly coined the epithet Lügenpresse (literally “lying press”) to denigrate the mainstream press. Trump uses a paraphrase of Hitler’s lying press epithet—“fake news”—cribbed, no doubt, from one of Hitler’s speeches. For Trump, the mainstream press is a “lying press” that publishes “fake news.”

Hitler labeled his press opponents as socialist, Jewish, or internationalist, bent on spreading false information to undercut Hitler’s positions. Trump’s tweets fulminate about an allegedly fraudulent mainstream press in the service of the “elites,” a press bent on disseminating “fake news” about him, especially his possible links to the Kremlin.

Trump repeatedly attacks the “failing New York Times,” leads crowds in chanting “CNN sucks,” is personally hostile to most reporters (he initially refused to fly the White House flag at half-mast to mourn the murder of five journalists in Annapolis, Maryland, in late June 2018), and may even have sought to punish CNN by trying to block a merger between AT&T and Time Warner, CNN’s parent. Trump’s hatred of the Washington Post translates into fulminations against Amazon (owned by Jeff Bezos, who also owns the Post) and efforts to undermine Amazon’s use of the U.S. Postal Service to deliver packages.

Both Trump and Hitler intensified their assault on objective truth by deriding scientific experts, especially academics who questioned Hitler’s views on race or Trump’s views on climate change, immigration, or economics. For both Trump and Hitler, the goal is (and was) to eviscerate the very idea of objective truth, turning everything into grist for a populist jury subject to manipulation by a master puppeteer. In both Trump’s and Hitler’s worlds, public opinion ultimately defines what is true and what is false. Trump’s pathological penchant for repeatedly lying about his behavior can succeed only in a world where his supporters feel free to embrace Trump’s “alternative facts” and treat his hyperbolic exaggerations as the gospel truth.

Once Hitler had delegitimized the mainstream media by a series of systematic attacks on its integrity, he constructed a fawning alternative mass media designed to reinforce his direct radio messages and enhance his personal power. Trump is following the same path, simultaneously launching bitter attacks on the mainstream press while embracing the so-called alt-right media, co-opting both Sinclair Broadcasting and the Rupert Murdoch—owned Fox Broadcasting Company as, essentially, a Trump Broadcasting Network.

Once Hitler had cemented his personal communications link with his base via free radios and a fawning media and had badly eroded the idea of objective truth, he reinforced his emotional bond with his base by holding a series of carefully orchestrated mass meetings dedicated to cementing his status as a charismatic leader, or Führer. The powerful personal bond nurtured by Trump’s tweets and Fox’s fawning is also systematically reinforced by periodic, carefully orchestrated mass rallies (even going so far as to co-opt a Boy Scout Jamboree in 2017), reinforcing Trump’s insatiable narcissism and his status as a charismatic leader.

Hitler’s strident appeals to the base invoked an extreme version of German nationalism, extolling a brilliant Germanic past and promising to restore Germany to its rightful place as a preeminent nation. Trump echoes Hitler’s jingoistic appeal to ultranationalist fervor, extolling American exceptionalism right down to the slogan “Make America Great Again,” a paraphrase of Hitler’s promise to restore German greatness

Hitler all but closed Germany’s borders, freezing non-Aryan migration into the country and rendering it impossible for Germans to escape without official permission. Like Hitler, Trump has also made closed borders a centerpiece of his administration. Hitler barred Jews. Trump bars Muslims and seekers of sanctuary from Central America. When the lower courts blocked Trump’s Muslim travel ban, he unilaterally issued executive orders replacing it with a thinly disguised substitute that ultimately narrowly won Supreme Court approval under a theory of extreme deference to the president.

Like Hitler, Trump has presided over mass deportations, promising to rid the nation of millions of undocumented aliens who “infest” the country, most of whom are nonwhite. He promises to build a wall on the border with Mexico to stop Latino migration; has reversed decades of immigration policy aimed at reuniting families; sought to end protection of the “Dreamers,” young people brought unlawfully into the country as small children by their parents; objected to allowing immigration from Haiti and African countries; and, until forced to change course, stooped to tearing children from their parents to punish desperate efforts by migrants to find a better life in the United States. Thousands of children taken from their parents remain missing today.

Hitler promised to make Germany free from Jews and Slavs. Trump promises to slow, stop, and even reverse the flow of non-white immigrants, substituting Muslims, Africans, Mexicans, and Central Americans of color for Jews and Slavs as scapegoats for the nation’s ills. Trump’s efforts to cast dragnets to arrest undocumented aliens where they work, live, and worship, followed by mass deportation to rid the country of alleged “Mexican rapists” and other nonwhite immigrants whom Trump characterizes as “thieves and murderers” who bring “death and destruction,” echo Hitler’s promise to defend Germany’s racial identity.

Like Hitler, Trump seeks to use national borders to protect his favored national industrial interests, threatening to ignite protectionist trade wars with Europe, China, and Japan similar to the trade wars that, in earlier incarnations, helped to ignite World War I and World War II.

Like Hitler, Trump aggressively uses our nation’s political and economic power to favor selected American corporate interests at the expense of foreign competitors and the environment, even at the price of international conflict, massive inefficiency, and irreversible pollution.

Hitler seized the coal-producing Ruhr. Trump has showered benefits on the nation’s carbon-based-energy producers, vitiating years of careful protection of the environment, opening the coastline to energy drilling, and eliminating protection of huge swaths of public land from commercial exploitation.

Hitler’s version of fascism shifted immense power—both political and financial—to the leaders of German industry. In fact, Hitler governed Germany largely through corporate executives. Trump has also presided over a massive empowerment—and enrichment—of corporate America. Under Trump, large corporations exercise immense political power while receiving huge economic windfalls and freedom from regulations designed to protect consumers and the labor force.

Hitler despised the German labor movement, eventually destroying it and imprisoning its leaders. Trump also detests strong unions, seeking to undermine any effort to interfere with the prerogatives of management.

Hitler’s foreign policy rejected international cooperation in favor of military and economic coercion, culminating in the annexation of the Sudetenland, the phony Hitler-Stalin nonaggression pact, the invasion of Czechoslovakia, and the horrors of global war. Like Hitler, Trump is deeply hostile to multinational cooperation, withdrawing from the Trans-Pacific Partnership, the Paris Agreement on climate change, and the nuclear agreement with Iran, threatening to withdraw from the North American Free Trade Agreement, abandoning our Kurdish allies in Syria, and even going so far as to question the value of NATO, our post–World War II military alliance with European democracies against Soviet expansionism.

Instead, Trump has abused his national security powers to impose tariffs on goods from China, Japan, Europe, Canada, and Mexico. Predictably, each nation has retaliated by imposing reciprocal tariffs on goods produced in the United States, creating massive dislocations in affected industries.

Hitler attacked the legitimacy of democracy itself, purging the voting rolls, challenging the integrity of the electoral process, and questioning the ability of democratic government to solve Germany’s problems. He sabotaged the March 1933 legislative elections, barring opposition candidates and unleashing mob violence in the streets, a tactic he repeatedly used to eliminate political opposition. In the end, Hitler turned Germany into a mobocracy, governed by fear and violence.

Trump has also attacked the democratic process, declining to agree to be bound by the outcome of the 2016 elections when he thought he might lose, supporting a massive purge of the voting rolls allegedly designed to avoid (nonexistent) fraud, championing measures that make it harder to vote, tolerating—if not fomenting—massive Russian interference in the 2016 presidential election, encouraging mob violence at rallies, darkly hinting at violence if Democrats hold power, and constantly casting doubt on the legitimacy of elections unless he wins.

Trump may even have mimicked Hitler in attacking democracy frontally by criminally colluding with Russia in influencing the outcome of the 2016 presidential election and then committing felonies by seeking to cover up his crimes.

Hitler politicized and eventually destroyed the vaunted German justice system. Trump also seeks to turn the American justice system into his personal playground. He fired James Comey, a Republican appointed in 2013 as FBI director by President Obama, for refusing to swear an oath of personal loyalty to the president; excoriated and then sacked Jeff Sessions, his handpicked attorney general, for failing to suppress the criminal investigation into the Trump’s possible collusion with Russia in influencing the 2016 elections; repeatedly threatened to dismiss Robert Mueller, the special counsel carrying out the investigation; and called again and again for the jailing of Hillary Clinton, his 2016 opponent, leading crowds in chants of “lock her up.”

Like Hitler, Trump threatens the judicially enforced rule of law, bitterly attacking American judges who rule against him, slyly praising Andrew Jackson for defying the Supreme Court, and abusing the pardon power by pardoning an Arizona sheriff found guilty of criminal contempt of court for disobeying federal court orders to cease violating the Constitution.

Hitler imposed an oath of personal loyalty on all German judges. Many of Trump’s judicial nominees similarly appear to have been selected not for their legal acumen, but for their strongly pro-Trump political views.

Hitler demanded—and was granted—deference from his judges. Trump’s already gotten enough deference from five Republican justices to uphold a largely Muslim travel ban that is the epitome of racial and religious bigotry.

Like Hitler, Trump glorifies the military, staffing his administration with layers of retired generals (who eventually were fired or resigned), relaxing control over the use of lethal force by the military and the police, and demanding a massive increase in military spending. But there is one difference. At least Hitler served with some distinction in World War I. Trump, a cowardly phony, parlayed questionable medical claims about alleged bone spurs in his heel into five consecutive medical exemptions from the Vietnam-era draft, forcing some poor kid to fight and maybe even die in his place. Isn’t it lucky that Trump’s chronic bone spurs miraculously healed once the draft ended, just in time for him to take up golf and tennis?

Like Hitler, Trump openly derides the nation’s great cities, especially the people of color and immigrants who make up a significant portion of urban America, repeatedly targeting his racist message to his predominantly white political base in the overrepresented rural “heartland.”

Like Hitler, Trump has intensified a disturbing trend that predated his administration of governing unilaterally, largely through executive orders or proclamations. Trump imposed his predominantly Muslim travel ban unilaterally, without legislative cooperation or discussion with immigration officials. Trump’s tariffs almost all flow from unilateral decisions that go far beyond any statutory authorization. He announced his ban on transgender participation in the military in a tweet, not even bothering with an executive order. He has aggressively unraveled environmental and health care safety nets by unilateral executive action. Until blocked by two lower federal courts, he tried to unilaterally end the protection for Dreamers, incorrectly branding President Obama’s unilateral efforts to shield them from deportation as unlawful.

Like Hitler, Trump claims the power to overrule Congress and govern all by himself. In 1933, Hitler used the pretext of the Reichstag fire to declare a national emergency and seize the power to govern unilaterally. The German judiciary did nothing to stop him. German democracy never recovered. When Congress refused to give Trump funds for his border wall even after he threw a tantrum and shut down the government, Trump, like Hitler, declared a phony national emergency and claimed the power to ignore Congress.

Don’t count on the Supreme Court to stop him. Five justices gave the game away on the President’s unilateral travel ban. They just might do the same thing on the border wall.

Hitler disdained clear lines of political authority, preferring to set power centers against each other, with Hitler eventually intervening to resolve disputes. Trump also resists orderly lines of governing authority, fostering a chaotic set of competing institutional and personal power centers vying for Trump’s approval.

Finally, Hitler propounded a misogynistic, stereotypical view of women, valuing them exclusively as wives and mothers while excluding them from full participation in German political and economic life. Trump may be the most openly misogynist figure ever to hold high political office in the United States, crassly treating women as sexual objects, using nondisclosure agreements and violating campaign finance laws to shield his sexual misbehavior from public knowledge, attacking women who come forward to accuse men of abusive behavior, undermining reproductive freedom, and opposing efforts by women to achieve economic equality.

What are we to make of such parallels? Possibly very little.

As I’ve suggested, they may simply reflect the inherent nature of populist politics. When you scratch a successful populist movement, like Mussolini’s Italy, Perón’s Argentina, or Huey Long’s Louisiana, there’s always a charismatic leader, a disaffected mass, an adroit use of communications media, economic insecurity, racial or religious fault lines, xenophobia, a turn to violence, and a search for scapegoats.

Even if all that Trump is doing is marching to that populist drum, he is unleashing forces that imperil the fragile fabric of a multicultural democracy. But I think there’s more. The parallels—especially the links between Lügenpresse and “fake news,” and promises to restore German greatness and “Make America Great Again”—are just too close to be coincidental. I’m pretty sure that Trump’s bedside study of Hitler’s speeches—especially the use of personal invective, white racism, and xenophobia—has shaped the way Trump seeks to gain political power in our time. I don’t for a moment believe that Trump admires what Hitler eventually did with his power, but he damn well admires—and is successfully copying—the way that Hitler got it.

And that’s the problem. Hitler wasn’t Hitler until he succeeded in talking enough Germans into giving him unchecked power. Then it was too late. That’s why Trump is so dangerous. If he talks enough Americans into trading the values of toleration and democracy for a Trumpist potion of white supremacy, misogyny, militarism, and xenophobia, it’s impossible to predict what might happen next. That’s why repair of both sets of constitutional brakes is so important.

The brakes may have to withstand a runaway train the likes of which this country has never seen.

3

Would You Buy This House?

Repairing the Cracks in Democracy’s Foundation

On November 9, 1989, when the Berlin Wall finally came down and the Soviet empire imploded, democracy emerged as the victor in a bitter, three-cornered struggle for worldwide supremacy with Nazi fascism and Soviet communism. At that luminous moment, savoring victory in the Cold War and watching jubilant German crowds dismantling the hated wall, democracy seemed the best of all possible political systems in the best of all possible worlds.

Worldwide, the number of countries aspiring to democratic rule peaked at historic levels. In the United States, academics and politicians across the political spectrum competed in delivering smug, self-congratulatory orations celebrating the merits of American democracy. I confess that I delivered more than my share.

After the well-earned burst of democratic triumphalism, reality should have set in. Many of us realized that the task of defending democracy against totalitarianisms of the left or right had been the easy part of the job, precisely because the worst version of democratic governance was—and is—clearly preferable to the best version of government that the Nazis or the Soviets could provide. Understandably, in our zeal to defend democracy against totalitarian challenges from the left and right, we had tended to downplay and even ignore democracy’s warts. Once democracy became the only plausible game in town, though, the really hard work should have begun—the job of building and operating versions of democracy that would earn the confidence and commitment of a free people.

Sadly, the United States—indeed, the entire democratic world—has not done a good job of it. Wherever you look, there is an uneasy feeling that democracy is struggling, failing to fulfill its promise of providing governance that is responsive to the people, supportive of human dignity, and both fair and effective in dealing with society’s needs. Instead, throughout the democratic world, including the United States, many millions of voters are disillusioned with a political system that appears to cater to the rich and powerful, responds primarily to organized special interests, ignores the common good, and routinely generates seemingly unbridgeable partisan divides.

I suspect that at the core of the decision by millions of Americans to elect a deeply flawed man as distrusted and disliked as Donald Trump to be our forty-fifth president was a misguided hope that he would sweep away the detritus of what many perceived as a floundering democracy and replace it with something better. However foolish it was to view a snake-oil salesman as a quick fix for a flawed democracy, when millions of ordinary folks begin to lose confidence in their democracy’s ability to cope fairly and effectively with the nation’s difficult problems, it’s all too easy for a charismatic phony to persuade them to give up and to start over with him.

Don’t get me wrong. I remain convinced that even a flawed democracy is preferable to totalitarianisms of the left or right, or to currently trendy alternatives like (1) Putin’s version of populist authoritarianism (which may well be Trump’s preferred mode as well), where a popular, powerful autocrat rules for extended periods of time pursuant to a series of rigged elections until being overthrown; (2) Adam Smith’s free-market anarchy (often favored by the rich and powerful), where government, even when fairly elected, is rendered so weak that, to quote Thucydides, the rich “do what they will” and the poor “suffer what they must”; or (3) self-appointed deliberative assemblies (often favored by leftist elites), where self-selected so-called experts (like the vanguard of the proletariat) purport to speak for everyone else.

We cannot, however, continue to close our eyes and ignore American democracy’s very real shortcomings. By failing to confront the weaknesses in our democratic system, we sentence ourselves to a parade of demagogic charlatans who will feast on our political discontent. In the end, the only enduring way to resist once and future Trumps of the left or right is to confront the unsightly cracks in the foundation of American democracy and be willing to get our hands dirty in repairing them. Especially the widening cracks in the Founders’ self-regulating electoral braking system.

Some stuff probably can’t be fixed, at least not without an entirely new Constitution. As I’ve lamented, not even a constitutional amendment can cure the radically unrepresentative United States Senate, where Wyoming has a sixty-five-to-one apportionment advantage over California. I have two long-shot solutions for the Senate, but don’t bet your house on either one. First, the Senate rules could be amended to provide for weighted voting, giving each state an equal number of senators, but weighting the impact of their respective votes to reflect the number of people they represent. So, Wyoming’s two senators would cast votes worth 600,000 units and California’s two senators would cast votes worth 40 million units. It would take votes representing a majority of the population to enact legislation or confirm Supreme Court justices.

Changing the Senate voting rules would be relatively easy. It would take a simple majority of the Senate. In 2016, Republicans changed the Senate rules governing the confirmation of Supreme Court justices by a simple majority vote, just as the Democrats had earlier changed the filibuster rules governing Senate confirmation of Presidential appointments to executive positions and the lower federal courts. The real problem is whether such a change, which would leave California with much more actual voting power in the Senate than Wyoming, would violate the constitutional mandate to give each state “equal suffrage” in the Senate.

The strongest legal argument in favor of such a change is the longtime existence of supermajority rules, such as the filibuster, that give forty-one senators voting against something a greater proportional vote than fifty-nine senators voting in favor. If, so the argument goes, filibusters do not violate “equal suffrage,” neither would weighted voting. The problem is that filibusters don’t permanently alter voting power on a state-by-state basis. A senator from the same state can be both helped or hurt by a filibuster. My weighted voting proposal is a one-way street. I award it an A for academic ingenuity, and a D for practical significance.

A more defensible long shot would be the enactment of a congressional statute providing that when the population of an extremely populous state reaches a multiple of the population of the least populous state (let’s say twenty to one), the larger state is automatically given the option, exercisable by the state legislature, to divide into two or more states, with the boundary between the two new states to be drawn by the state legislature.

Under current population figures, that would give California, Florida, Texas, New York, Pennsylvania, and Illinois, each with a population exceeding twelve million (twenty times the current population of Wyoming), the option of doubling the number of senators representing their radically underrepresented populations. If the ratio was set at ten to one, nineteen states would qualify for division. As I’ve noted, the ratio at the Founding between Delaware, the least populous state, and Virginia, the most populous, was approximately six and a half to one if you exclude non-voting enslaved people, or twelve to one if you include them. So all such a statute would do is bring us closer to the Founders’ understanding of the malapportioned Senate.

Unlike my weighted voting scheme, there is no constitutional objection to congressional consent to granting states an option to go forth and multiply. Vermont, Kentucky, Tennessee, Maine, and West Virginia were all formed from the territory of an existing state. All that is needed is state permission and congressional assent. Nothing prevents Congress from granting a blanket permission designed to enhance the democratic legitimacy of the Senate. That would leave it up to the state legislatures. Why would they turn down two more Senate seats?

Once a state was divided, the resulting two new states could agree to enter into regional compacts maintaining uniform bi-state programs, so the only thing that would change would be a doubling of the residents’ voting power in the Senate. If the Democrats win the presidency and control of both houses of Congress in 2020, the enabling legislation could be enacted on January 21, 2020—turning the United States Senate into something roughly resembling a representative organ again.

Finally, the simple, long-overdue act of admitting the District of Columbia and the Commonwealth of Puerto Rico to statehood would provide enhanced Senate representation to populations of color, mitigating (though not eliminating) the current radical over-representation of white voters in the Senate.

The second unfixable problem is, as we’ve seen, the malapportioned Electoral College, where smaller rural states have the power to swing the presidential election to the loser of the popular vote. Unlike the malapportioned Senate, the Electoral College can be fixed by a constitutional amendment. In fact, it can be fixed without one, by the simple expedient of a promise, in the form of an interstate compact among states casting a total of 270 electoral votes or more, to cast their electoral votes for the winner of the national popular vote. As with my nonconstitutional fix for the Senate, though, it won’t happen. Not enough states would join the compact. I don’t see reform of the Senate or the Electoral College succeeding any time soon.

But there is still plenty that can be achieved, even within the confines of the currently stacked system.

WHY DON’T MORE PEOPLE VOTE?

Whether or not the Senate or the Electoral College can be fixed, we start any effort at democratic reform with an unpleasant fact: in most elections in the United States, considerably more than half the eligible voters do not cast a ballot. If you view the act of voting as a referendum on democracy, when you compare the “yes” votes of folks who express confidence in democracy by choosing to cast a ballot with the “no” votes of folks who vote with their feet, American democracy hardly ever wins.

In presidential years, a great turnout barely hits the 60 percent mark. Since the advent of voter registration in the early 1900s, presidential turnout has never exceeded the low sixties. Most of the time it’s been considerably lower, often falling below 50 percent.

In 2016, as I’ve noted, Donald Trump was elected president by 46 percent of the 55 percent of eligible folks who bothered to vote—a “mandate” of 25 percent of the total number of eligible voters. Bill Clinton’s “mandate” was even lower. He was elected in 1992 with 44 percent of the 48 percent of the eligible population who bothered to vote—or an anemic 22 percent.

Turnout in congressional elections, especially off-year elections when the president is not on the ballot, is much lower, routinely dropping well below 50 percent and often hovering in the 30s or lower. We celebrated the increased turnout for the 2018 midterms, but only 48 percent of the eligible population actually voted. Only 34 percent of the eligible electorate voted in the crucial 2014 congressional elections when the Democrats lost the Senate, a loss that, two years later, would cost them control of the Supreme Court.

In many state and local legislative elections, the turnout is even lower, occasionally dipping into the twenties and teens, especially if political bosses have gerrymandered the election’s outcome by rigging the district lines to make it almost impossible for their favored candidate to lose. Governors routinely are elected in statewide contests where fewer than 40 percent of the voters turn out, allowing under 20 percent of the voters to claim the power of “majority rule.”

Participation in most party primaries is scandalously low, sometimes falling below 10 percent of the eligible voters, enabling the extreme 5 percent wings of each major party to dominate a nominating process that is tantamount to election in many gerrymandered districts, or in districts where only one party has a real chance to win.

When you remember that the internal brakes on the Founders’ democracy train rely on multiple competing interest groups with relatively equal electoral power checking each other, you see that large-scale failure to vote pours acid on the Founders’ brakes. If some folks routinely don’t vote, important interest groups are left out of the electoral mix. If enough people don’t vote, one relatively small interest group is able to capture the government and use it to impose its will on everyone else, with no internal correction possible. Thus, large-scale nonvoting not only harms the nonvoters but also strikes at the core of the Founders’ blueprint for American democracy.

Electoral turnout in today’s United States compares very badly with turnout in other countries—Australia, where voting is mandatory, routinely hits 95 percent. Our nineteenth-century presidential elections averaged 75 percent participation, only to plunge after the introduction of voter registration at the beginning of the twentieth century, falling to 44 percent in 1924 before slowly rising to the current 55–60 percent plateau.

The disturbing truth is that such large-scale, serial nonvoting endangers democracy itself. Like health insurance, democracy works best when everyone joins the pool; it works badly, if at all, when too many decide to drop out. When, as in many federal and most state and local elections, more than half the eligible population doesn’t vote, the outcome of an election can be controlled by less than 25 percent of the eligible electorate. When, as in many off-year House elections and too many state and local elections, turnout is less than 30 percent, the winner can be chosen by 15 percent of the population. Take the turnout number down to 10 percent in a typical primary, and 5 percent of the voters choose the winner. When the primary is in a one-party area where the general election is a foregone conclusion, the winner of the general election is chosen by 5 percent of the people. When you increase the turnout to 60 percent in a presidential election, it still takes only a shade over 30 percent of the eligible voting population to win, and less if you factor in the undemocratic nature of the Electoral College, which allows someone to become president with a smaller share of the popular vote than her opponent.

A democracy routinely built on an electoral “mandate” that rarely exceeds 25 to 30 percent of the eligible voters, and often plunges to between 5 and 15 percent in legislative elections, simply will not work well. Special interests can too easily capture or dominate the shrunken electorate. Small, transient ideological movements can much more easily entrench themselves through unfair manipulation of the voting rules. The complex discussions and trade-offs needed to craft wise, enduring legislation become more difficult, perhaps impossible, when only a handful of the stakeholders are in the room. Most important, the representative mandate that underlies democracy’s moral legitimacy is threatened when elected officials “speak” for between 5 and 25 percent of the electorate.

It would be bad enough if a random 50 percent of the country—or even 75 percent of the country—just didn’t pay attention to democracy. At least the 25 to 50 percent of people who were paying attention could be counted on statistically to reflect the needs and concerns of their nonparticipating neighbors. But failing to vote isn’t random. Nonvoters are disproportionately young, poor, and people of color, clustered at the low end of the educational and economic scale.

The sad truth is that the American voting electorate today looks disturbingly like the eligible electorate of a bygone era, when formal impediments to voting skewed the electorate toward the better-educated, wealthier slice of the population. Now that we’ve finally eliminated most of the historic formal barriers to voting, why on earth don’t more people go to the polls?

The standard progressive response is to blame the government for cynically erecting hurdles designed to disenfranchise the weak and the poor. The standard right-wing response is to condemn serial nonvoters as not interested or committed enough to take the trouble to vote. Both sides have a point. Given the stakes for democracy, I confess that I find myself annoyed at people who routinely don’t bother to vote, especially the nonvoters who saddled us with the Trump presidency. Frankly, if I could figure out who those slackers were, I’d make them wear dunce caps and Trump masks. I know it sounds corny, but too many men and women have died on battlefields defending American democracy, or have been killed by lynch mobs, or have suffered through hunger strikes and endured prison terms and beatings for seeking the right to vote, for the modern beneficiaries of their sacrifices to simply walk away from the legacy—and responsibility—of self-government.

We don’t let would-be free riders walk away from their duty to pay taxes, serve on juries, go to school, register for the draft, get vaccinations, buy health insurance, and wear motorcycle helmets. Why do we shrug and let at least half the population walk away—or be pushed away—from its right—and its duty—to vote?

It does not have to be this way. But any serious effort to boost electoral participation cannot concentrate solely on lowering the costs of voting without worrying about the vote’s real and perceived value. Focusing solely on the important task of removing or minimizing barriers to voting without also worrying about why so many disaffected nonvoters are unwilling or unable to step over very low thresholds to cast a ballot may lead to formal changes in the voting rules but will not, I fear, trigger significant additional voting. On the other hand, making voting more attractive without also worrying about removing barriers erected to disenfranchise the poor will intensify alienation and further erode democracy’s moral legitimacy.

Fortunately, an attainable reform agenda exists that could give American democracy a badly needed shot of adrenaline. And you don’t need lawyers or judges to implement much of the plan. An easy place to start would be to shift Election Day from the traditional first Tuesday in November to Veterans Day, already a national holiday that is celebrated a few days later on November 11. What better way to honor those who have suffered to preserve democracy than by turning Election Day into a practical celebration of their sacrifice? Since nothing in the Constitution forces us to vote on any particular day, Congress could change the date for national elections tomorrow. State and local officials don’t even have to wait for Congress: state legislatures even have the constitutional power to set “the time, place, or manner” of federal elections unless Congress objects.

Moving Election Day to an already existing holiday such as Veterans Day would make it much easier for working people and folks with child care responsibilities to vote without imposing any new costs on employers. I estimate that shifting Election Day to Veterans Day would immediately boost turnout by as much as 10 percent, especially if we added significant ceremonies celebrating our veterans’ battlefield defense of democracy, honoring the mostly black victims of domestic terrorism who died trying to vote, and the heroic American women who endured violence, hunger strikes, and jail in their century-long struggle for suffrage.

Trump wants to celebrate Veterans Day with a childish military parade costing more than $20 million. The grown-up way to celebrate Veterans Day would be to turn it into a full-scale, working celebration of democracy.

While moving Election Day to Veterans Day would almost certainly boost turnout without costing a dime, it would, I fear, not cure the problem of large-scale, serial nonvoting. Once upon a time, large-scale nonvoting could be explained by a patchwork of laws and practices designed to disenfranchise voters of color, women, newcomers, the uneducated, and the poor. Once upon a time, a combination of racial and gender bars, poll taxes, literacy tests, property qualifications, durational residence requirements, and physical intimidation delivered a white, male, prosperous electorate. But not anymore. Although a new generation of cynical, thinly disguised disenfranchisement techniques—including requiring voter IDs and purging the voting rolls—has evolved in several Republican-dominated states, and while voter registration and the act of voting itself often remain unnecessarily inconvenient, there really is no legal or practical excuse today for the widespread failure to vote. A half-century of sustained Supreme Court precedent has swept away almost all the historic legal barriers to voting, leaving three pieces of unfinished business in the movement for universal suffrage—the continuing political powerlessness of children and the mentally ill, felon disenfranchisement in a few key states, and the anomalous electoral status of permanent resident aliens.

Children first. In allocating political power, we’ve assumed that children under eighteen, who make up about 25 percent of the population but lack the right to vote, would be virtually (and fairly) represented by their parents and by the community’s assumed interest in protecting its young. Sadly, that’s just not the way it has worked in practice. The young are perennially shortchanged in the American democratic process, precisely because they can’t vote. Billie Holiday was right: “Mama may have, and Papa may have, but God bless the child who’s got his own.” I’d love to have had a chance to talk Madison into creating a political power base for children. Perhaps then we’d treat children’s health and education issues as seriously as we treat social security, 401(k)s, and estate taxes.

I don’t argue for enfranchising twelve-year-olds, but perhaps we should think about artificially increasing the political power of children by designating specially elected individuals pledged to view them as their constituency—a legislative analogy to the use of special guardians in court.

Ending felon disenfranchisement is the next piece of unfinished democratic business. For too many years, felon disenfranchisement has functioned as a covert way to deny the vote disproportionately to millions of black males caught up in the racially discriminatory criminal justice systems of many states. The practice was imposed as a way to keep formerly enslaved persons from voting. In Florida, for example, felon disenfranchisement was added by racists to the 1868 state constitution to subvert the effort to enfranchise black men. Over the years, the practice operated to assure that 25 percent of otherwise eligible black males were locked out of the democratic process because of brushes with Florida’s notoriously racist criminal justice system. Virginia and Kentucky weren’t much better. The Supreme Court actually invalidated the practice in Mississippi because it was so clearly racially motivated, but refused to knock it out everywhere.

Thankfully, with no help from the Supreme Court, denying the vote to folks with criminal convictions looks like it’s on the way out. Kentucky is the last major holdout. Virginia’s Democratic governor ended the practice in 2017. Sixty-four percent of Florida voters overwhelmingly rejected it in 2018. But the struggle is not over. Too many states impose a backdoor disenfranchisement on convicted criminals by denying them the ballot until they pay court costs that can routinely exceed $10,000. A number of states require a complex bureaucratic process before restoring the vote on an individualized basis. Many states deny the vote while on probation or parole. Only Maine and New Hampshire allow voting while incarcerated. And, even when the right to vote is restored, how will folks be put back on the voting rolls? Until now, legal challenges to the racially discriminatory aspects of felon disenfranchisement have failed, whether brought under the Fourteenth Amendment or the Voting Rights Act of 1965. As we’ll see, the First Amendment may provide an alternative path to reform, even before the current Republican Supreme Court. It’s more likely, though, that ending felon disenfranchisement may turn out to be an important example of how democracy can be repaired by the people with no help from the courts.

Finally, to what extent, if any, should noncitizens, especially permanent resident aliens, play a role in American democracy? Some communities invite permanent resident aliens to vote in local elections of particular importance to them, such as school board contests. But the numbers are small. The European Union provides an interesting model for local participation by resident aliens by permitting all citizens of member countries to vote in many local elections.

Even if they can’t vote, should resident aliens be excluded from participating in the electoral process? While resident aliens almost certainly have a right to express themselves in the debate, the Supreme Court has upheld a ban on small campaign contributions in connection with federal elections by aliens residing here on long-term visas.

Should aliens—both documented and undocumented—residing in a community be counted for the purposes of allocating political representation? We have always allocated political representation on the basis of residency, not citizenship. Beware, though. The Trump administration is seeking to add questions about citizenship to the 2020 census, indicating that Republican politicians in states such as Texas, Florida, and Virginia plan to push for excluding aliens from the apportionment process. With so much discrimination against urban America already built into our electoral system, removing political representation for the millions of noncitizens residing in the nation’s great cities would doom urban America to the status of permanent colonies governed by rural states.

What role, if any, may or should foreigners living abroad, or foreign governments themselves, play in our electoral process? Under a 1965 Supreme Court precedent, Lamont v. Postmaster General, Americans enjoy a First Amendment right to hear political or electoral speech from abroad, even when it is sponsored by a foreign government. But, under a 1987 Supreme Court precedent, Meese v. Keene, Americans also have a First Amendment right to know the origin and source of political or electoral speech from abroad.

During the 2016 presidential elections, Russians intelligence agents appear to have engaged in a massive covert effort to support the candidacy of Donald Trump, mounting an extensive social media campaign replete with troll farms and phony posts designed to inflame Trump’s base and discourage potential supporters of Hillary Clinton from turning out to vote. The Russians lied about their identities, making the legal issue easy. It’s clearly a felony for a foreign speaker—whether an individual or a government agent—to deceive his American audience about the true source of electoral speech. The only real legal question is whether the Trump campaign, including the president, knew of, and/or cooperated with, the Russian disinformation operation. That’s what the Mueller investigation is all about. We’ll look more closely in chapter 7 at President Trump’s possible criminal vulnerability for playing footsie with the Russians during the 2016 presidential campaign and then, once he had been elected, obstructing the grand jury’s investigation.

Finally, while getting rid of cynical impediments to voting—such as statutes that require voter ID cards under the phony pretext of preventing fraud, and statutes mandating the purging of voter rolls—must be a priority, I’ve become convinced that the problem of large-scale failure to vote lies much deeper. Unless we insert a chip that responds to a voter’s thoughts, the act of voting will always require some effort. The sad truth is that many people just won’t vote if they believe that the value of their vote is lower than the cost of casting it. Here are a couple of modest proposals for increasing the perceived value of voting (a few of which may be worthy of Jonathan Swift).

American elections are awash in cash. Candidates can’t wait to peddle themselves to the top 1 percent. The top 1 percent can’t wait to buy influence. Why not cut poor voters in on the game in a way that puts a little cash in their pockets? Maybe we should just let voters, especially low-income voters, sell their votes to the highest bidder. Since we already operate an electoral bazaar that invites wealthy individuals and business corporations to buy influence and outcomes, and encourages, even forces, candidates to put themselves on the auction block, a free market in votes would simply make our corrupt election process just a little less hypocritical, while funneling some of the cash to folks who need it.

Why not think of an election as an income-redistribution program that funnels money from the rich to the poor, instead of the current political system devoted to transferring money from the poor to the rich? Imagine what a vote would bring in a swing state in a presidential year. How much would you arrange to pay to assemble the 77,800-odd votes that gave Trump the presidency?

If openly buying and selling votes is a bit too crass for you, at least let folks freely assign their votes to authorized, fully revocable proxies—individuals or organizations—that would compete in promising to cast the votes wisely and in the voter’s best interest. Corporate shareholder elections routinely permit carefully regulated proxy solicitors to assemble the right to cast the votes of most shareholders. Why not allow competing proxy solicitors to assemble the right to cast votes in a political election, especially in primary elections, where low turnouts of between 5 and 10 percent are so destructive and such a disgrace?

While such a fully revocable proxy solicitation process would, of course, risk increasing the already disproportionate role played by money in our elections, to say nothing of risking fraud, at least poor people, who are currently left out of the democratic process, would either get something tangible for their votes; or, at a minimum, be assured that their votes were being assembled and cast in their best interest.

Maybe we should resort to a little bribery. Why not reward voters for their civic engagement by allowing them to go to the head of lines in government offices, airports, the DMV, and post offices? How about voter discounts at national parks? Maybe voters should get their tax refunds first? Why not accelerate passport issuance for voters? How about conditioning access to highway HOV lanes on voting? Maybe we should link voting to a modest tax credit, provide for lower bridge and tunnel tolls, or arrange for small public utility discounts?

Maybe American Express or Chase should create a voting-linked perk on your credit card? How about a premium internet subscription from Facebook or Google, or cheaper cellphone use? How about a year of Amazon Prime? Perhaps the private sector should reward voters by holding post–Election Day sales that provide special discounts for voters? Maybe early boarding or airline upgrades should be a reward for voting?

Or maybe we should just get over it and compel voting, as in Australia, where voter turnout routinely exceeds 95 percent. We could easily shift our voting system from the current opt-in version, which requires a voter to perform a series of mildly annoying tasks in order to register prior to the election, to an opt-out system, which requires voting unless the voter performs the mildly annoying task of “unregistering” for reasons of conscience.

We use the opt-out process for jury service, registration for the military draft, vaccinations, and compulsory public education. Why not voting?

Short of compulsory voting with the ability to opt out, why shouldn’t the government at least have the duty to assemble the rolls of eligible voters without requiring the extra step of voter registration? That’s the way things were done in the nineteenth century, before the advent of voter registration. That’s the way it’s done in virtually every other serious democracy. There wouldn’t be too much of a burden on the government. Just build into every contact between the individual and the government, including high school graduation, getting or renewing a driver’s license, getting a social security card, a Medicare document, or a passport, filing a tax return, reporting for jury duty, registering for the draft, or visiting a national park, the automatic transfer of registration information to appropriate election authorities.

At a minimum, why not allow voter registration to occur simultaneously with voting (often called same-day voter registration)? There’s no risk of fraud, since the first vote you cast under same-day registration can be deemed a provisional ballot subject to postelection verification. States such as Oregon and Minnesota that have shifted to same-day voter registration routinely enjoy a significant spike in voter turnout, especially by poor voters. The cynic in me believes that’s probably the reason so few states have adopted same-day registration. The last thing that many pols want is a destabilizing influx of large numbers of new, unpredictable voters.

Finally, it’s an embarrassment that the richest nation in the world won’t spend enough money to assure competent administration of our elections and has failed to develop voting machinery capable of counting our votes safely and accurately. Even something as mundane as allowing early voting, voting by mail, and/or convenient absentee balloting gets caught up in political controversy and administrative incompetence.

If we are not prepared to offer financial sweeteners to induce folks to vote, turn voting from a right into a duty, or tinker with the voter registration and electoral systems, we can increase the perceived value of voting by making voting intrinsically more important. Not only would that induce folks to vote, but it would rejuvenate democracy for everyone else.

Given the diminished practical importance of a single individual’s vote in too many current elections, especially in elections where the outcomes have been rigged in advance by political bosses, the real question is not why so many Americans don’t vote; it’s why so many of us do. Don’t be fooled by the large number of very close elections in genuinely contestable districts. Genuinely contestable districts are a rarity. In more than 90 percent of the elections for Congress, most of the elections to the fifty state legislatures, and most local elections, the almost certain winner of the general election is known well in advance. Sometimes the outcome is rigged by the adroit manipulation of district lines. Sometimes the winner is predetermined by the tendency of like-minded voters to live close together. But rarely is the winner dictated by the voters themselves in a genuinely contestable election. The best that most voters can do is to ratify a choice made for them by the pols.

Voting in such a rigged election is not meaningless. Exercising the right to vote, even when it’s been reduced to a formality, is an assertion of individual dignity and an expression of confidence in democracy. It also keeps the pols honest by forcing them to subject their decisions to public scrutiny. Most important, though, the act of voting even though you already know who will win is a tribute to how deeply many Americans revere democracy. It is, frankly, heartening that so many Americans care enough about democracy to continue to participate in its rituals in rigged legislative elections and uncontestable Electoral College contests long after voting in those elections has been drained of practical importance.

I believe, though, that the perceived diminished value of a vote is why it is so difficult to marshal real enthusiasm for voting among those who historically have not voted. In my experience, serial non-voters will not vote in large numbers, no matter how low the costs, if they view voting as simply a ritual, not an exercise of real power. Thus, while keeping the perceived costs of voting as low as possible is very important, the real key to the problem of widespread nonvoting is increasing the actual and apparent worth of the vote by making votes count again in genuinely contestable elections.

Non-contestable legislative elections come in two flavors—natural and artificial. A substantial number of non-contestable elections are “naturally” baked into the geography of places where large numbers of politically like-minded people live close together. In the inner-city electoral districts of many urban areas, for example, it is often impossible to find enough likely Republican voters to generate genuinely contestable two-party elections. Similarly, in many rural or extremely wealthy enclaves, there are often not enough Democrats to hold a genuinely contestable two-party legislative election.

While it’s true, of course, that what looks like “natural” sorting of politically like-minded people into dense population pockets is often the result of generations of housing discrimination, manipulation of zoning laws, mortgage redlining, poor public transportation, and economic inequality, once single-party inner-city or gated suburban communities have become established, for whatever reasons, it’s often impossible to draw electoral lines that will deliver genuinely competitive general elections.

But that does not mean that the residents of inner cities, rural farming towns, or gated communities are doomed to a steady diet of meaningless, noncompetitive elections. Voting systems exist capable of transcending geographical sorting. The two that are best known are proportional representation (allocating elected positions in accordance with the percentage of the vote that each party obtains) and multi-member districting (where a large geographical unit elects multiple representatives).

Every vote counts in a system of proportional representation. Almost every vote can be made to count in a multi-member district. Let’s assume that New York City elects ten members of Congress and that New York State elects twenty-seven. If we adopted proportional representation in New York City and the popular vote there was 90 percent Democratic to 10 percent Republican, the city’s congressional delegation would be nine Democrats and one Republican, but every vote would count. If the Republicans mounted a particularly strong showing, they could pick up one or two additional seats. If the Democrats surged, they could shut out the Republicans altogether.

Statewide, the impact would be even more dramatic. Let’s assume a 60 percent to 40 percent Democratic-Republican split, with a twenty-seven-member congressional statewide delegation that included fifteen Democrats and twelve Republicans. It wouldn’t take too many statewide votes to shift the allocation in one direction or another, putting an obvious premium on going to the polls, and an obvious penalty for staying home.

If proportional representation is too radical for your taste (though before you condemn it as too radical, you should know that Germany, France, Italy, and Israel use it), geographical sorting could also be made democratically contestable by expanding the boundaries of existing single-member districts, creating multi-member districts, and allowing each voter to cast as many votes as there are vacancies. Voters can choose to spread their votes among the candidates or to give additional votes (or even all their votes) to a single candidate. This system, called “bullet voting,” is already in use in many state and local settings.

A third alternative, preferential voting, is made possible by the computerization of vote counting. Under a system of preferential voting, numerous candidates run in a large, often multi-member constituency. Voters are encouraged to rank the candidates in order of preference. Candidates receiving a majority of first-place votes are immediately elected. If no candidate receives more than 50 percent of the first-place votes, the candidate with the fewest first-place votes is eliminated, and her second-place votes are allocated among the remaining candidates. The process is repeated until one candidate receives more than 50 percent of the votes. It’s the process that Maine uses to elect members of Congress.

Unlike our present winner-take-all system, which tilts toward the most extreme candidates, the various versions of preferential voting tend to benefit moderate candidates.

Unfortunately, Congress has needlessly limited the states’ power to experiment with at-large or multi-member congressional districting. In 1967, in a commendable effort to protect newly enfranchised black and Latino voters, Congress required that all its members be elected from single-member districts. Congress was probably trying to stop racists from taking pockets of minority voters and submerging them in at-large or multi-member districts where whites voters would outnumber them. But a technique—known as cumulative or “bullet” voting—can protect minority voters in a multimember or at-large district by allowing each voter to cast as many votes as there are vacancies to fill, and then allowing them to cast all their votes for a single candidate. Do the math. It would allow minority voters to self-organize and elect a candidate of their choice. It’s time to repeal the 1967 statute and give the power to experiment back to the states, with a proviso that all multi-member or at-large congressional districts must adopt bullet voting. Fortunately, the 1967 ban does not stop the states from experimenting with preferential voting. Maine uses it today and makes every vote matter.

The irony is that the Founders used multi-member districts as a common way of electing the members of Congress. It was routine in the early 1800s for the representatives from a state to be elected in a single, at-large election. It wasn’t until after the Civil War that at-large or multi-member congressional districts became rare, largely because we had not yet invented bullet voting. Maybe it’s time to bring multi-member congressional districts back. Congress could do it tomorrow.

Although I would consider it a long shot, it’s even possible that a state could insist on experimenting with at-large or multi-member congressional districting allowing bullet voting, even in the teeth of the 1967 congressional statute banning it. But that’s a question for the federalism issues discussed in chapter 9.

Even under a single-member, winner-take-all system, it’s possible to inject genuine choice into an election district that is overwhelmingly controlled by one or another political party by making sure that the nominating process is genuinely contestable. The majorparty nominating process was once run by political bosses. That wasn’t all bad. Professional politicians tended to choose moderate candidates with the best chance of winning the general election. As fewer and fewer general elections became genuinely contestable, however, the pols’ incentive to choose moderate, balanced tickets decreased. Once they didn’t have to worry about fielding the strongest candidate in order to win a contestable general election, the smoke-filled-room candidate selection process became deeply corrupt and wholly unmoored from voter choice. That’s the point where wealthy special interests were able to exercise almost uncontrollable leverage: buying candidates who promised to advance their interests, with those candidates then guaranteed to win the noncompetitive election.

Faced with such a corrupt process, most states have done away with the old boss-controlled nominating process, opting for primary elections that place the power to choose candidates with the voters, not the party bosses. The results have been mixed. As we’ve seen, voter turnout in primary elections is notoriously low, often falling below 10 percent of the eligible electorate, allowing small blocs of ideologically driven voters to drive both parties further apart by selecting candidates at the extreme left or right, and punishing moderates in the center. In today’s political world, the threat of a bruising, expensive primary dominated by a small ideological bloc can drive sitting legislators in both major parties to the extremes, even if they long to move to the center. It’s why no Republican officeholder dares to cross or even criticize President Trump. It’s why so many moderate Republican legislators have chosen to retire. When, as now, members of Congress fail to perform their checking role because they fear retaliation from the president in the form of a primary contest dominated by a small ideological minority, a dangerous concentration of power is created in the hands of a president.

Since moving nominations back to the corrupt bosses is, for me, a democratic nonstarter, we should concentrate on breaking the existing ideological stranglehold on the primary process. The best way to do it is by increasing voter participation in primary elections so that 5 to 10 percent of the eligible electorate can’t dominate the process. My not-so-facetious suggestion is that we use proxy solicitors, perhaps armed with a little cash, to drive up the value of primary voting.

If you don’t want to experiment with proxies in the general election, how about using proxy solicitors in primaries, to make sure the political center is heard? A political party choosing a candidate isn’t all that different from shareholders electing a board of directors. Proxies and proxy solicitors have been used successfully in corporate elections for many years. Why not give them a try in primary elections?

If that’s too radical for your taste, there is a more traditional way to rescue primaries from the ideological extremes: by opening them to as many voters as possible. The more primary voters there are, the harder it is for the extreme wing to dominate the outcome. When primaries were imposed on them, many powerful political leaders sought to retain control of the nomination process by adopting “closed” primaries, open only to enrolled members of the party. New York and Illinois, states with powerful political machines, took the closed primary process even further by requiring an extensive waiting period before a newly enrolled party member could vote in a primary. New York snuck an eleven-month waiting period past a divided Supreme Court. I know. I lost the case 5–4. Illinois set the waiting period at twenty-three months, effectively freezing out new voters and making it almost impossible to mount a successful primary challenge. That was too much even for the Supreme Court.

Check your state’s rules about who can participate in primaries. If independents, new voters, and members of other parties are frozen out, the outcomes of primary elections in your state will either drift to the extremes or mirror what the bosses want. Either way, the primary will have failed to enhance voter choice.

One antidote is a move to “open” primaries—full or partial. Many states have adopted partially open primaries, allowing independents and first-time voters to participate even if they are not formal members of the party. A larger number of states have adopted fully open primaries, where any registered voter can participate. California even sought to allow all voters to skip back and forth, candidate by candidate, from one major party to another in a single “blanket” primary, designating one preferred candidate for each office regardless of party affiliation.

It worked: California turnout spiked, candidates became more moderate, and the public’s faith in democracy ticked up. Alas, the Supreme Court shut down the blanket primary because, according to five Republican justices, it violated freedom of association by permitting non–party members too much influence in selecting a party nominee. That leaves the Washington State primary, where all candidates regardless of party membership run in a single non-partisan primary with no party labels, with the top two vote-getters qualifying for the general election ballot, as the best available option for increasing voter participation in the nominating process.

The Supreme Court has upheld the top-two Washington State process, as long as there is no confusion about the party affiliation of the candidates. The top-two single primary system—or, at a minimum, genuinely open primary elections held by each major party—is our best bet for bringing democracy and voter choice into “naturally” uncontestable single-member, winner-take-all districts.

The second flavor of uncontestable election is “artificial.” At least half, probably more, of the country’s uncontestable legislative districts are “artificial,” the result of partisan gerrymandering—careful manipulation of district lines to create rigged election districts where, based on voter registration and past electoral patterns, the candidate of one major party starts out at least 10 percentage points ahead of any potential opponent. While it’s theoretically possible for the handicapped candidate to make up the 10 percent difference, it’s also theoretically possible for pigs to fly.

When a gerrymandered district starts out 60–40 percent in favor of one of the major party candidates, political scientists label it as a “landslide” district. When the spread is 55–45 percent, they call the district “safe.” The few districts that come in at 53–47 or 54–46 percent are labeled “contestable,” while a 52–48 percent spread is called a “swing” district.

Take a good look at the party registration numbers in the congressional districts and state legislative districts in your state. See how many are close enough to fit into the “swing” or “contestable” slots. You’ll be both astonished and disheartened to see how rare it is for you to have a genuinely contestable legislative election, one in which voters, not political bosses, decide the outcome. The usual game these days is for the dominant political party in a state to engage in “pack and crack”—taking advantage of modern technology and data collection to draw lines that pack as many of their opponents as they can into a relatively few landslide districts, while cracking the rest into “safe” districts dominated by the current majority. That allows the dominant party to skew the outcomes of enough legislative elections to entrench its majority for the foreseeable future, even if the political winds change.

As we’ve seen, only an electoral hurricane can upset a well-done partisan political gerrymander. In 2018, in Republican-gerrymandered North Carolina, 53 percent of the eligible voters turned out, with Democrats winning four statewide races (one state Supreme Court seat, giving Democrats a 5–2 majority; and three intermediate appeals court seats), polling about 50 percent of the statewide vote. But the state’s Republican-gerrymandered congressional districts performed exactly as expected—three overwhelming Democratic wins; and ten relatively close Republican victories. So in a state tilting Democratic statewide, voters elected ten Republicans to the House from thirteen districts.

Nowadays, such gerrymanders are primarily a Republican game, but the Democrats did it for years. The single most important step in increasing the worth of the vote in American democracy would be to outlaw excessive partisan gerrymandering. And to do that you don’t need lawyers or the Supreme Court’s permission.

One approach, which has worked in California, Colorado, and Arizona, is to use nonpartisan (or, sometimes, bipartisan) districting commissions to draw fair district lines that seek to enhance contestability and produce a legislature that roughly reflects the political complexion of the state. The problem, of course, is that political bosses don’t want to let go of their stranglehold on the electoral process. One way of going around them is by referendum or initiative. Check to see whether in your state it would be possible to leapfrog the boss-controlled state legislature to place a nonpartisan districting commission before the voters. Arizona voters did exactly that, and the idea was overwhelmingly embraced by the electorate. The Supreme Court upheld it.

If it’s impossible or too expensive to follow the referendum route, the issue can be projected into political debate by having a sympathetic legislator introduce a bill establishing the nonpartisan commission, forcing each member of the legislature to take a stand one way or the other. The problem is getting the issue to an up-or-down vote in the teeth of opposition from the pols, who don’t want to create a clear issue for the voters. If an up-or-down vote is blocked, once the nonpartisan reapportionment issue is on the state’s political radar, it should be possible to launch a slate of highly prominent state legislative candidates who would pledge to enact a fair, nonpartisan districting process and then resign and return to private life, forcing a new election under the new, fair system. Imagine the power of such a single-issue citizen-powered reform slate.

Finally, there’s the courts. Thus far, the Supreme Court has declined to intervene in political gerrymandering cases. Four Republican Supreme Court justices have consistently ruled that partisan gerrymandering can’t be dealt with judicially because it is impossible for judges to decide whether a partisan gerrymander is too “unfair” or too “unequal.” Four Democratic justices have consistently argued that judicially manageable criteria exist that identify when a political gerrymander has gone too far. One justice—Justice Anthony Kennedy—agreed that while political equality doesn’t provide an adequate standard because it’s too subjective, the First Amendment might provide adequate guidance.

Hopes were high in the 2017 term of the Supreme Court that Justice Kennedy would use his power as the swing justice to provide a way out of the partisan gerrymandering swamp. Instead, he joined his four Republican colleagues in ducking the issue yet again, voting to dismiss partisan gerrymandering cases from Wisconsin and Maryland on technicalities and then stepping down from the Court at eighty-two years of age.

President Trump’s nominee to replace him, Judge Brett Kavanaugh, is a Republican stalwart who is likely to join his four Republican colleagues in continuing to reject equality-based challenges to partisan gerrymandering. It’s a long shot, but my sense is that the only chance at persuading a Republican-dominated Court to outlaw excessive partisan gerrymandering is to follow Justice Kennedy’s advice and to couch it as a First Amendment issue. I have long believed that excessive political gerrymandering (indeed, any interference with the right to vote) violates the First Amendment. To my mind, voting is the quintessential act of political expression and association. As such, it deserves intense First Amendment—based judicial protection.

The Founders’ Constitution, drafted in 1787, has at least two embarrassing holes in it. For starters, unlike the roughly contemporaneous French Declaration of the Rights of Man, it says absolutely nothing about equality. Not a word. How could it, when the very creation of the new American nation depended on a bargain with the devil about the perpetuation of slavery?

Nor did “equality” get mentioned in the first Bill of Rights, ratified in 1791, which brilliantly protects the individual’s right to be let alone (individual autonomy) but continues to ignore the right of all persons to be treated by the government as an equal. The concept of equality does not make its way into the Constitution until after the Civil War with the adoption of the Thirteenth Amendment in 1865 (barring slavery), the Fourteenth Amendment in 1868 (guaranteeing equal protection of the laws to all persons), and the Fifteenth Amendment in 1870 (barring racial discrimination in access to the ballot). In chapter 4, we’ll look at the doctrinal consequences of giving autonomy a seventy-five-year constitutional head start over equality.

The second embarrassing hole in the Founders’ Constitution directly impacts democracy. The 1787 Constitution, the world’s oldest continuous charter of democratic governance, doesn’t say a word about the right to vote. Neither does the 1791 Bill of Rights.

I like to think that the Founders punted on the voting issue, the way they punted on equality, because they couldn’t bring themselves to codify the then-prevailing, extremely narrow idea of the franchise that excluded women, Jews, Muslims, Native Americans, free people of color, and the poor. I choose to believe that, faced with such an unappealing political reality, the Founders opted to remain silent about voting, leaving the constitutional power to expand the franchise to the future. All in all, the future responded well. Eleven of the seventeen constitutional amendments since 1791 have tried the fill the hole in the Constitution where the right to vote should be. The Twelfth Amendment, adopted in 1804, requires separate Electoral College ballots for president and vice president to prevent a recurrence of the Electoral College tie between Thomas Jefferson and his running mate, Aaron Burr, that almost capsized the election of 1800.

Section 2 of the Fourteenth Amendment experimented with a congressional apportionment formula designed to pressure southern states into allowing recently freed people of color to vote. The experimental formula was never tested because it was superseded two years later by the Fifteenth Amendment, outlawing racial discrimination in access to the ballot. Ironically, the only impact of Section 2 of the Fourteenth Amendment has been to provide a tortured constitutional fig leaf for continuing felon disenfranchisement, a principal technique for preventing black men from voting.

The Seventeenth Amendment (1913) provided for the direct election of senators, taking the power away from deeply corrupt state legislatures. The Nineteenth Amendment (1920) outlawed gender discrimination in access to the ballot. The Twentieth Amendment (1933) shortened the “lame-duck” period that elapses between the November election and the entry into office of newly elected presidents and members of Congress. Originally, the old lame ducks served until March. The Twentieth Amendment seats the new Congress on January 1 and the newly elected president in mid-January. The Twenty-Second Amendment (1951) imposed a two-term limit on the president. The Twenty-Third Amendment (1961) allowed residents of the District of Columbia to vote in presidential but not congressional elections. The Twenty-Fourth Amendment (1964) outlawed the poll tax, which had required voters to pay a fee to vote. The Twenty-Fifth Amendment (1967) clarified presidential succession if a president becomes unable to discharge his or her duties. The Twenty-Sixth Amendment (1971) protected persons eighteen years or older from age discrimination in access to the ballot.

But no constitutional amendment talks about a general right to vote or run for office.

Given the textual hole where the right to vote should be, for most of its existence the Supreme Court said little or nothing about a constitutional right to vote. Apart from a series of important cases seeking to prevent discrimination against voters of color in violation of the Fourteenth and Fifteenth Amendments, the Court for more than 150 years made no serious attempt to protect the rights to vote, run for office, and/or enjoy fair political representation, leaving vulnerable members of the electorate to the tender mercies of local politicians. The result of the Supreme Court’s initial inaction was massive denial of voting rights, especially to voters of color, the hobbling of third parties, rampant malapportionment in favor of rural America, and widespread political gerrymandering by both parties.

The constitutional ground rules changed in 1962, with the Supreme Court’s decisions in Baker v. Carr and Reynolds v. Sims, the famous “one person, one vote” cases, requiring all elected legislators (except United States senators) to represent a roughly equal number of constituents, currently between 700,000 and 750,000 for each House district.

Important as the doctrine of “one person, one vote” is, the unmistakable, if implied, message sent by the justices’ opinions in Baker and Reynolds was even more important—the Court’s acceptance of responsibility for the care and feeding of equal participation in the American democratic process. In the more than fifty years since the Supreme Court’s seminal decision in Baker, the Court has invoked the concept of equality embedded in the Fourteenth Amendment as a backdoor way to protect the general right to participate in the democratic process. The Court’s equality-based reasoning is deceptively simple. If, a majority of the justices reasoned, some people are allowed to vote, run for office, or be represented in the legislature, everyone else must, as a matter of constitutional equality, be allowed to exercise a similar fundamental right, unless the government produces an overwhelmingly persuasive explanation for any unequal political treatment.

Since, as a practical matter, at least one person is almost always going to be allowed to vote, the Court’s equality reasoning functions usefully as a de facto equality-based guarantee of everyone’s right to vote, as long as the Court insists upon a highly persuasive explanation for denying someone the equal enjoyment of the fundamental right to participate in the democratic process. In the decade following Baker v. Carr, the Court did just that, requiring government to prove that any law denying someone an equal opportunity to participate in the democratic process was genuinely necessary to advance a “compelling” governmental interest that could not be advanced by “less drastic means,” a carbon copy of the so-called strict scrutiny test used in many First Amendment cases.

Strict scrutiny is almost always lethal. Whether the context is First Amendment protection of autonomy or Fourteenth Amendment protection of equality, it’s been virtually impossible for a government regulation to survive strict scrutiny. During the 1960s and early 1970s, the Supreme Court, brandishing strict scrutiny, unleashed a remarkable burst of democratic reform, sweeping away most of the barriers that had unfairly hampered participation in the democratic process, especially by the weak and poor. In Reynolds v. Sims, in the name of equal participation in democracy, the Court insisted that all legislative election districts in a state, eventually including both houses of the state’s legislature, must represent approximately the same number of people. In Carrington v. Rash, the Court ruled that soldiers temporarily stationed in Texas were entitled to vote in state and local as well as federal elections as long as the soldiers, who were often black, viewed their military base as their principal place of residence. In Harper v. Virginia Board of Elections, the Court invalidated the poll tax, dooming almost all property qualifications for voting and holding office. In Williams v. Rhodes, the Court recognized an equality-based constitutional right to run for office as a third-party candidate. In Kramer v. Union School District, the Court ruled that all residents affected by an election must enjoy an equal right to vote in it. In Cipriano v. Houma, the Court invalidated a statute limiting the franchise in municipal utility bond elections to property owners and in Phoenix v. Kolodziejski, the Court struck down a property ownership requirement for voting in a local general obligation bond election. In Dunn v. Blumstein, the Court capped a remarkable decade by ending all durational residence requirements for voting.

Brilliantly successful as the Court was in sweeping away most formal restrictions on the franchise in the name of equality, the Court’s equality-based protection of the vote ran out of gas before the job was done. As the Court’s personnel changed, beginning in 1973, the new Republican majority made it much easier for the government to justify rules blocking access to the ballot for some but not others. Instead of strict scrutiny, the Republican justices asked whether a regulation blocking voting or access to the ballot was supported by a “substantial” (as opposed to a “compelling”) government interest, whether it was “narrowly tailored” (not whether it was the “least drastic means” of dealing with the issue), and whether it was a reasonable, good-faith effort to advance the government’s interests.

Unlike strict scrutiny, government wins most of the cases under such a watered-down test, which parallels the watered-down First Amendment standard used to review—and uphold—the government’s ban on burning one’s draft card to protest the war in Vietnam. Most important, the Supreme Court ruled in 1976 that proof of bad motive was necessary before the justices would unlimber Fifth and Fourteenth Amendment strict scrutiny artillery, empowering cynical politicians seeking to disenfranchise certain classes of voters to sneak under the Court’s radar by pretending to be doing something legitimate.

Under the Court’s current equality-based defense of democracy, state and local politicians can purge the registration rolls, force folks to show state-issued IDs, and make the act of voting less convenient, even when it’s clear that such harsh behavior isn’t really necessary and even when the new rules disproportionately disenfranchise poor voters of color. The sad truth is that, today, cynical politicians can often get around equality-based protections of democracy by lying about why they are making it harder for certain people—usually poor voters, often of color—to vote.

Equality-based protection of democracy also fails to protect against the widespread practice of political gerrymandering. While the Court has repeatedly confronted race-based gerrymandering, it has refused to intervene in partisan gerrymandering disputes, claiming that an equality-based challenge must provide the justices with an objective way to measure whether a gerrymander flunks the test of political fairness. Reformers have tried five times in the Supreme Court in recent years to come up with such a baseline. The five Republican justices keep saying “not objective enough.”

Hope springs eternal, though. Courts throughout the country, including state courts operating under state constitutions—most recently Pennsylvania—appear to be waking up to the irreparable damage that excessive partisan gerrymandering is inflicting on American democracy. And, although the Supreme Court once again ducked the issue during the 2017 term, the matter continues to percolate through the lower courts. North Carolina’s blatant statewide congressional gerrymander, which reliably delivers ten safe Republican congressional seats, leaving three seats for Democrats, even when the Democrats win the statewide election, has been invalidated by a federal trial court, while Pennsylvania’s equally egregious congressional gerrymander has been struck down under the state constitution by the Pennsylvania Supreme Court. Maybe in the North Carolina case five members of the Court will bite on a fancy new mathematical formula for measuring unfair electoral inequality that measures the number of wasted votes caused by an excessively partisan gerrymander. But I doubt it. Maybe North Carolina’s own Supreme Court will clean up the mess.

Time has taught me, at least, that the time has come to tie the law of democracy much more closely to the First Amendment. Using equality to protect the right to vote is fine as far as it goes. But it doesn’t go far enough. For one thing, the Supreme Court requires proof of a bad motive. For another, it insists on an objective ideal baseline to measure whether the challenged practice deviates too far from the ideal.

Phony voter ID requirements sneak under the radar because challengers can’t prove a bad motive. Everyone in the country, except a narrow majority of the Supreme Court, knows that the rash of voter ID requirements are aimed at knocking out poor voters. Extreme partisan gerrymandering thrives because, until now, five justices have insisted on an objective definition of fair representation—an impossible task—before deciding when a partisan gerrymander crosses the line and becomes so unfair as to be unconstitutional.

I believe that casting a vote in a competitive election is the quintessential exercise of free speech and association. If, as the Supreme Court has already held, campaign spending is “pure” speech, entitled to the highest level of free speech protection, how can voting be granted no First Amendment constitutional protection at all? Listening to the candidates, assessing their ideas, and casting a ballot for your favorite is at the core of what it means to be an autonomous citizen, free to speak and associate. It seems crystal clear (at least to me) that the right to vote is baked into the idea of individual autonomy and human dignity that is at the heart of the First Amendment.

If, for example, the state permitted a speaker to talk but eliminated the audience, the existential, self-affirming act of speech would not be meaningless (think Prometheus raging at the gods), but it would fall far short of the First Amendment’s protection of the right to chart your own destiny. Similarly, carrying out the democratic ritual of voting in a rigged election, knowing that the outcome of the election has already been fixed by political bosses, is not wholly meaningless. It is an existential act of faith in democracy and an important assertion of individual dignity. But it falls far short of the right to self-government and the individual and collective intensity that infuses genuine First Amendment activity when a speaker or voter believes that her speech or her vote actually matters in shaping her destiny.

More than twenty-five years ago, in Burdick v. Takushi, a majority of the Supreme Court held (wrongly, I believe) that voting is merely a technical way to cumulate preferences, not an exercise in speech or association. Accordingly, the majority ruled that there is no First Amendment right to cast a write-in ballot. But as Justice Kennedy recognized in his dissent, the act of voting, as the culmination of an election campaign, is far more than a mere technicality designed to identify a winner. Parents do not take their children to the polls to celebrate technicalities. Newly enfranchised citizens voting for the first time do not weep because they are engaging in a technical exercise. Millions of Americans did not fight, and too many die, to preserve a mere technical device. Blacks and women did not suffer for centuries in quest of a technicality. Justice White notwithstanding, the act of voting, even if not treated as a form of “pure” speech, should be imbued with First Amendment protection as the communicative act by which a voter expresses his or her preference for self-government. Justice Kennedy was correct in arguing twenty-five years ago that banning write-in votes was unconstitutional because it imposed a significant burden on voter choice, which is protected under the First Amendment.

The excessive gerrymandering cases from Wisconsin and Maryland before the Supreme Court during the 2017 term were Justice Kennedy’s great opportunity to use his Burdick dissent to rejuvenate the democratic process. Sadly, at eighty-two years of age, Justice Kennedy seemed unable to muster the intellectual force needed to stand against his four Republican colleagues. Instead, with history in his grasp, Justice Kennedy slipped away into a well-earned retirement without putting his 1992 dissent into law. It was a tragedy for American democracy. Partisan gerrymandering, unnecessary voter ID requirements, and unfair voter purge statutes could not have survived a renewed recognition by Justice Kennedy that voting is protected by the First Amendment.

Challengers to extreme partisan gerrymandering returned to the Supreme Court in the 2018 term, this time facing Justice Brett Kavanaugh, who succeeded Justice Kennedy. The new case involves the effort by the Republican-dominated North Carolina legislature to gerrymander Congressional lines to give Republicans a 10–3 edge in a 50–50 state. The case is once again paired with a Democratic effort to gerrymander a single safe congressional seat in Maryland. If the five Republican justices continue to refuse to invalidate partisan gerrymandering this time around, I fear that the issue will be all but dead in the federal courts until the Court’s personnel changes—by the ordinary processes of retirement, or the extraordinary process of court-packing.

Nothing in the Constitution requires a nine-person Supreme Court. The Court began in 1788 with six members, then went down to five in 1800, then back to six in 1801, then seven, eight, and nine, even reaching ten before the number slipped back to the present nine. Franklin D. Roosevelt, frustrated by the Court’s refusal to approve the New Deal, threatened to add six additional justices, one for each justice over seventy. Roosevelt’s effort failed as a formal matter, but it probably bluffed several justices into changing course and upholding the National Labor Relations Act. Contemporary observers called it “the switch in time that saved nine.”

If one issue could justify a modern effort to pack the Court, it would be the need to protect the right to vote and the right to fair representation from a Court that refuses to lift a finger to protect American democracy.

But the fight is not over. The Wisconsin and Maryland cases are before the Supreme Court once again, albeit a Court without Justice Kennedy. Maybe the justices will honor Kennedy’s thirty years of service on the Court by finally accepting his dissent in Burdick. Partisan gerrymandering can also be attacked in the state legislatures, in state courts under state constitutions, and in federal courts under the First Amendment. Viewing the vote as an exercise in communication is deeply rooted in our national heritage. Indeed, for much of the nation’s early history, voting was a public act by which an adherent openly declared himself as a supporter of one or another of the candidates. We called it viva voce voting. George Washington, Thomas Jefferson, James Madison, Benjamin Franklin, John Adams, John Jay, and Alexander Hamilton—the Founders who built our nation—all proudly cast their ballots publicly, viva voce. It’s the way Congress votes today.

The adoption of the secret ballot (a reform imported from Australia) during the late nineteenth century shifted the declaration of support from a public setting to a private voting booth, but the expressive nature of the vote remained unchanged, except that it was now a form of anonymous speech directed toward the government official who counts the votes. Whether public or anonymous, though, the communicative act of voting is the declarative culmination of a quintessential exercise in human dignity that cries out for First Amendment protection.

Surely, a fair opportunity to declare your support for a candidate with a genuine chance to win is as entitled to First Amendment protection against systematic state attack as is unlimited campaign spending, unlimited campaign fund-raising, nude dancing, flag burning, cross burning, hate-mongering, lying, selling violent video games to children, depicting the violent death of small animals, advertising toothpaste, threatening an ex-spouse on the internet, spewing racist epithets, and wearing T-shirts with political slogans to the polls, all of which have been granted First Amendment protection by the current Supreme Court.

It wouldn’t take much for the Court to recognize a First Amendment right to vote. On numerous occasions the Court has opined that voting, running for office, participating in electoral campaigns, and interacting with a democratically elected representative are quintessential exercises of free speech, association, and redress of grievances at the core of the First Amendment. Justice Hugo Black said it most eloquently in Wesberry v. Sanders, one of the one-person, one-vote cases: “No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

It is time to convert the Court’s often eloquent rhetoric about the intimate relationship between participating in the democratic process and the First Amendment into a First Amendment–based law of democracy.

Deploying the First Amendment to protect the right to vote would mean the end of phony voter ID requirements and excessive partisan gerrymandering. It would also be the end of the slow strangulation of third parties as a serious potential challenge to the duopoly of political power exercised by the two major parties.

During the nineteenth century, American democracy experienced a vibrant multi-party culture, enabling voters to launch repeated challenges to entrenched special interests. The early years of the twentieth century also saw significant third-party movements that forced the major parties to confront difficult issues: Teddy Roosevelt’s Bull Moose run for the presidency; Robert La Follette Sr.’s Progressive Party, which urged restrictions on big business; Eugene Debs’s Socialist Party challenge to the fundamental postulates of capitalism.

While the third-party challengers ultimately failed to attain power, they provided a significant vehicle for voters unwilling to support the two major parties and forced the major parties to alter their platforms in an effort to win back third-party voters. It didn’t take long for the two major parties to cement their duopoly status by freezing third parties out of the game.

Despite the Supreme Court’s belated recognition in 1968 of a constitutional right to run as a third-party candidate, the pols in both parties have succeeded in making it as hard as they can for third parties to run candidates, skating as close to the constitutional line as possible. Often, state law requires third-party or independent candidates to gather a substantial number of signatures on a petition in a short period of time long before the election as the price of getting on the ballot. Often, voters who are associated with a major party are blocked from signing a petition to place a third-party candidate on the ballot. Often, the petitions require detailed information such as a signatory’s Election District. Many third-party candidates can’t satisfy the ballot access requirements. Even when they do, they have been forced to use up most of their limited resources getting on the ballot, leaving them with little or no funding in the general election.

The pols’ favorite technique for eliminating third parties as a serious threat to their power is to forbid minor parties from opening their nominating processes to major-party voters, while forbidding members of minor parties from voting in the primaries of major parties. The hope of the major parties is to build a legal wall around minor parties to minimize their ability to play anything more than a protest role in the democratic process. The legal wall reaches its highest point in the forty-one states that forbid minor parties from nominating the candidate of a major party, even when the candidate wishes to accept the cross-endorsement.

Shutting down the ability of minor parties to cross-endorse the candidate of a major party sounded their death knell as serious forces in American politics. During the nineteenth century, third parties routinely nominated one of the major parties’ candidates and then assembled enough votes to swing the election. Once a third party demonstrated an ability to swing the election, it could force a major party to bid for its support. The Supreme Court’s 1997 decision in Timmons v. Twin Cities Area New Party upholding laws banning cross-endorsement ended that issue-bending process. It also made it impossible for the supporter of a third party to play a role in who wins the election. Deprived by the cross-endorsement ban of a chance to vote for a candidate with a real chance to win, today’s third-party voter faces the Hobson’s choice of defecting from her party in order to cast a meaningful ballot for a candidate with a chance to win or remaining loyal to her party but giving up any chance to affect the outcome of an election. It even sets up a sophisticated form of election fraud by encouraging major party officials (or others) to support (even create) phony third-party candidates designed to draw support away from the other major party candidate. That’s just what the Russians did in 2016 in a successful effort to induce potential supporters of Hillary Clinton to defect to Green Party candidate Jill Stein.

If we were to recognize that voting is a First Amendment right, it would become impossible to turn the act of casting a ballot into such a manipulated non-event. The obvious solution to the third-party problem is the adoption of the Maine preferential voting system that swung the 2018 congressional election in the Maine 2nd District. As we’ve seen, under the Maine system, voters could cast a first-choice vote for a third party, and a backup vote for a major party candidate to support when the third-party candidate drops out.

DEALING WITH BIG MONEY IN U.S. ELECTIONS

That brings us to the final but absolutely necessary effort to increase the perceived value of voting—limiting the power of big money to dominate American elections.

Even in the rare contestable legislative election, or in statewide races for presidential electors, the Senate, and statewide office, where you can’t gerrymander state lines, many eligible voters do not participate because they believe that when big money talks, genuine democracy walks. Too often they are right.

While the closeness of many national and state elections should make it clear how important each vote can be, many Americans continue to believe that a single vote can’t do much against the tide of massive wealth and organized special interests that appear to dominate our electoral process. As long as American elections resemble auctions, with political power for sale to the highest bidders, millions of eligible voters will not think it worth the trouble to cast a ballot.

Sadly, the alienation of millions of Americans from an electoral process awash in big money is a self-inflicted legal wound imposed by the Supreme Court’s confusion of free speech with unlimited campaign spending. More than a half century ago, Justice Felix Frankfurter warned that the nation would rue the day that judges, functioning as amateur political scientists—or, worse, as disguised political partisans—were given the power to shape American democracy. Most of the time I’m confident that Justice Frankfurter was wrong about trusting judges to defend democracy. On balance, the courts have been a positive force in protecting the democratic process, especially if the justices can finally find a way to deal with runaway partisan gerrymandering. But Justice Frankfurter was surely right in warning that judges would make a mess of campaign financing. No rational legislator would vote for the campaign finance system currently imposed on the United States by the Supreme Court.

By upholding the power to limit the size and source of campaign contributions from both supporters and political parties but striking down all efforts to limit the amounts a candidate or an independent supporter can expend in connection with an election, the justices badly weakened our political parties, but empowered extremely wealthy individuals, huge corporations, and shadowy independent groups to dominate our electoral process. Can you imagine what a competent economist would say about a system that limits supply but refuses to permit limits on demand? It’s Felix Frankfurter’s revenge.

Our dysfunctional, deeply unfair campaign finance process is traceable to six mistakes made by the United States Supreme Court.

Mistake One

In 1976, the justices ruled in Buckley v. Valeo that campaign spending is a form of “pure speech,” entitled to First Amendment strict scrutiny, which requires the government to demonstrate a “compelling state interest” in regulation that cannot be advanced by “less drastic means.” Only one government regulation has ever survived full-scale First Amendment strict scrutiny—the ban on electioneering too close to the polls.

Correction One

Campaign spending is not “pure speech.” Sure, it’s connected to speech. But so are things like burning a draft card, holding a demonstration, and creating a picket line, each of which is treated by the Court as a form of “communicative conduct” entitled to a lesser degree of First Amendment protection, labeled “intermediate scrutiny” by the justices, under which the government often wins.

At most, government efforts to regulate campaign spending should be tested by the more relaxed level of First Amendment protection available to communicative conduct, requiring the government to demonstrate a “substantial interest” in good-faith regulation that is “narrowly tailored” to achieve its goals. What sounds like a lawyer’s technical distinction is enormously important. As a practical matter, almost all efforts at campaign finance reform will flunk strict scrutiny but many will satisfy intermediate scrutiny.

Mistake Two

In Buckley, justices ruled that efforts to place limits on campaign spending by a candidate or a campaign designed to preserve a degree of political equality flunk First Amendment strict scrutiny because, even if the advancement of political equality is deemed a “compelling state interest,” it can be advanced by the “less drastic means” of subsidizing weak political voices, rather than limiting excessively strong ones.

Correction Two

Even if the Supreme Court was right in imposing strict scrutiny on efforts to limit campaign spending by the superrich, the preservation of political equality is unquestionably a compelling governmental interest. The Court’s assumption in 1976 that public financing would provide a less drastic means to preserve equality has been proven wrong, in large part because the Supreme Court has undermined efforts to enact feasible public campaign financing programs.

The hobbled system of campaign subsidies permitted by the Court since 2011 is unable to function as an effective, less drastic means of protecting equality. Most dramatically, after holding public subsidies out in Buckley as a viable alternative to regulation, in Arizona Free Enterprise v. Bennett, five Republican justices invalidated the most effective version of public financing—the granting of matching funds to enable a publicly funded candidate to stay competitive with her privately funded opponent. The five justices reasoned, with absolutely no empirical support, that the prospect of a public match would deter privately funded candidates from raising private funds. In effect, the Court established the First Amendment right of a well-funded candidate to speak without fear of being contradicted. Arizona Free Enterprise Club should be overruled.

Mistake Three

Preventing the appearance or reality of excessive political influence linked to massive aggregate campaign contributions to numerous candidates is not a compelling governmental interest, as long as no single candidate receives a contribution large enough to risk corrupting that candidate. Therefore, the generous six-figure limit on the aggregate amount that a single wealthy individual can contribute to all federal candidates in a given election cycle violates the First Amendment.

Correction Three

Ending the systemic corruption of democracy caused by unequal political access and influence linked solely to wealth should be viewed as a compelling governmental interest. No basis can be found in the Constitution for treating the risk of corrupting a single member of Congress as a greater evil than the risk of corrupting the entire political system by making unlimited aggregate contributions to many candidates.

Mistake Four

Independent electoral expenditures by supporters of a candidate, as first-person speech, are entitled to a higher level of First Amendment protection than campaign contributions to the candidate, which merely empower a third person—the candidate—to speak.

Correction Four

In fact, no legally significant First Amendment difference exists between campaign contributions and independent political expenditures. Campaign contributions are exercises in political association. Independent expenditures are exercises in communicative conduct. Both may be regulated to advance political quality and prevent corruption, or neither may be regulated. But it makes no sense to privilege one over the other.

Mistake Five

While large campaign contributions to a candidate may be regulated because they risk creating the appearance or reality of quid pro quo corruption, independent expenditures by supporters pose no such threat and are therefore immune from regulation.

Correction Five

Both large campaign contributions to a candidate and massive independent expenditures on behalf of a candidate pose significant risks of generating the appearance or reality of corruption, rendering both subject to substantial regulation. It is naive to believe that office holders remain immune to the temptation to reward an independent supporter who spent massive sums to elect the office holder and may do so again in the future.

Mistake Six

No legally significant First Amendment difference exists between the independent campaign spending of individuals and the independent campaign spending of large, for-profit corporations. Therefore, efforts to limit the campaign expenditures of large corporations violate the First Amendment.

Correction Six

For-profit corporations lack First Amendment rights because they lack the dignitary traits of human beings that underlie the very existence of First Amendment freedoms. Nor may corporations rely on the First Amendment rights of potential hearers, because the vast majority of Americans do not wish to be bombarded by corporate political propaganda. Citizens United should be overruled.

Unfortunately, the Supreme Court, as currently constituted, is unlikely to correct any of the six mistakes. Despite such a poor prognosis for short-term success in the current Court, it’s important to continue to remind judges and legislators alike that Buckley and its 2010 offspring Citizens United rest on a series of false premises.

Eventually the Supreme Court will come to its senses and correct one or all of the mistakes. To hasten that day, it is important to keep pressing for judicial change, even when the prospects of success are slim. We cannot allow the existing law mistakenly hobbling campaign finance reform to harden into concrete without constant challenge.

In the short run, though, if we are to rescue American democracy from the monied swamp it currently inhabits, the lifeline will have to come in the form of imaginative ways to fund democracy without selling out to the superrich or to special interests. One way, of course, is to continue to develop the internet as a means of raising significant campaign funds through small contributions. A second is to explore a modest tax credit for political contributions. Arkansas tried a $50 state credit, and it works in encouraging thousands of small contributions without the need for a bureaucracy to distribute the funds. A third imaginative approach, adopted by Seattle and South Dakota for local and state elections, calls for the issuance of Democracy Vouchers or Democracy Credit Cards with balances varying from $50 to $100, allowing all eligible voters to spend modest sums at no cost to themselves to advance a favored candidate. Republicans have engineered repeal of the South Dakota program, but it remains a model for reform.

Finally, several jurisdictions use an enriched matching system, where small private contributions to a candidate are publicly matched in multiples of up to eight to one. New York City has successfully used such a system, which matches at six to one, since 2006.

There is no need to wait for the Supreme Court’s permission to adopt any of these techniques for lessening the influence of the rich on American political life.

Finally, this is the place where I’m supposed to deplore the rabid nature of our political discourse, the profusion of extreme, often fraudulent voices on the internet, the degeneration of cable TV into competing propaganda machines, and the threat posed by Russian meddling in our election campaigns. I dearly wish that we were more civil to one another, that the internet wasn’t such a scary place, that someday cable TV will return to journalism, and that the Russians can be forced to keep their hands to themselves. We should, of course, do all we can to preserve the free press from Trumpist attacks. We should do all we can to police the internet for falsity and dangerousness. We should follow the Russian bread crumbs to the end—and then take steps to stop the meddling once and for all.

I fear, though, that none of those desirable actions will cure our democratic ills. If a nation is unable to cope with irresponsible political speech—by refraining from it, rejecting it, or learning to discount it—even well-functioning democratic institutions will not rescue that nation from political instability and dysfunctional government. If Americans are not fit for self-government because we are incapable of dealing with ugly appeals to bias or systematic dissemination of lies and half-truths, neither government paternalism, nor democratic reforms will save us.

A well-functioning democracy mirrors a society. It does not cure it. That we must do ourselves.

4

Do the External Judicial Brakes Work Anymore?

We’ve just seen that the internal electoral brakes designed by the Founders to slow a runaway democratic train just don’t work anymore. The truth is that if another country operated an electoral system as dysfunctional as ours—with its radically malapportioned Senate, its politically rigged House, an Electoral College that has thwarted majority will twice in the last five presidential elections, systematic disenfranchisement of the poor, and outdated election machinery that can’t count the votes accurately—we’d probably laugh them out of the democracy club.

So it’s a good thing that the Founders didn’t stop with the internal brakes. Somewhat reluctantly—perhaps even accidentally—they granted an unelected, life-tenured federal judiciary, headed by the Supreme Court, the power to defend our fundamental constitutional rights against runaway congressional majorities, state legislatures, local cops, and especially the president. They called it the power of judicial review and envisioned it as a fail-safe external braking mechanism capable of stopping a runaway democratic train.

The justices of the Supreme Court—and the Supreme Court’s vast echo chamber of lawyers and academics—are not shy about celebrating judicial review as a wise and necessary check on the potential “tyranny of the majority.” Faced as we are today with a volatile, impetuous, authoritarian, and deeply ignorant minority president who excels at manipulating mobs and exudes contempt for the very ideas of political toleration and respect for human rights, many Americans, including me, look to the nine life-tenured Supreme Court justices and the nine hundred or so lower federal court judges as the ultimate guarantors of our basic freedoms in a dark time. “It can’t happen here,” we tell ourselves, because an independent, apolitical Supreme Court can be counted on to protect us by enforcing the rights codified in the Constitution.

Two years into the Trump presidency, in the lower federal courts, at least, where good lawyers can cherry-pick reliable Democratic judges by deciding where and when to file their cases, judicial review has functioned exactly as advertised. In case after case, lower federal courts have rebuffed the forty-fifth president, striking down his travel ban, rejecting his refusal to permit transgender people to serve in the military, enjoining his decision to end the Dreamers program, blocking his attempt to punish “sanctuary cities” for refusing to cooperate in the mass deportation of undocumented aliens, stopping his heartless policy of ripping immigrant children away from their parents in an Orwellian effort to frighten desperate people away from seeking asylum in the United States, blocking him from ignoring congressional rules governing asylum, limiting his attempt to roll back environmental protections, blocking his effort to prevent immigrants in federal custody from exercising the right to choose whether to bear a child, and reversing his efforts to muzzle the press by denying disfavored reporters access to the White House.

I very much wish I could believe that such a soothing story of constitutional stability and judicial resistance will continue when the challenges reach the Republican-controlled Supreme Court. I fear, though, that excessive reliance on the Supreme Court to protect the fundamental rights of the politically and economically weak in the time of Trump is doomed to disappointment on two levels.

First, history warns that, apart from an uncharacteristic burst of egalitarianism from 1937 to 1972 (the only time since the Civil War that the Supreme Court has been controlled by the Democrats), a Republican-controlled high court has usually been a bad bet to protect the weak. Far more often than we like to admit, when the autonomy-based interests of the strong to “do what they will” have collided in the Supreme Court with the equality-based interests of the weak, Republican justices have tended to break legal ties in favor of the strong, forcing the weak to “suffer what they must.”

Even before there were Republicans and Democrats as we know them today, during the more than seventy-five years from the Founding to the Civil War, in the absence of any formal protection of equality in the 1787 Constitution or the 1791 Bill of Rights, the justices repeatedly broke legal ties in favor of the autonomy-based rights of the powerful, whether slave owners or budding industrialists, at the expense of equally plausible legal arguments protective of the weak. In Dred Scott v. Sandford, a consensus pick for the Supreme Court’s worst opinion, the Supreme Court enshrined slave ownership as a constitutional property right, denying free blacks any hope of citizenship. The appallingly racist decision in Dred Scott was neither an accident nor, as we like to view it today, an inexplicable exercise in pure evil. Viewed strictly as a formal legal matter, the 1857 decision wasn’t even clearly wrong. It’s what inevitably happens when judges are asked to enforce a Constitution saturated with concern for the rights of powerful individuals to be left alone, but utterly devoid of anything about a countervailing right of equality.

Under such a one-way autonomy-protective Constitution, judges, with no formal equality handholds to grasp, will almost always be persuaded by legal arguments granting the strong a constitutional right to crush the weak. It should come as no surprise that the first state statute declared unconstitutional by the Supreme Court in 1841 was a Pennsylvania anti-kidnapping law designed to protect blacks from being plucked from the streets of Philadelphia as alleged runaway slaves. Faced with a Constitution that protected the right of slave owners to recover escaped slaves but was utterly silent about the existence of any countervailing equality rights, the Supreme Court dutifully read the document as protecting the constitutional right of an autonomous slave owner to use self-help in recovering an alleged runaway slave, with any legal proceedings delayed until the alleged runaway was carried South.

The outcomes and reasoning in Dred Scott and Prigg v. Pennsylvania go a long way to explain why many conservative, autonomy-protective Republican justices such as the late Antonin Scalia and his replacement, Neil Gorsuch, are so besotted with the idea of an “originalist” reading of the constitutional text. As Dred Scott demonstrates, originalism asks modern justices seeking to interpret the current Constitution, which protects both equality and autonomy, to ask what the members of the Founders’ generation would have understood the constitutional text meant. Asking that question enables—indeed, it commands—a justice to ignore the constitutionalization of equality in the post–Civil War amendments. Liberated from the complexity of interpreting the current Constitution protective of both autonomy and equality, originalist justices—like the justices who decided Dred Scott and Prigg—are free to pursue a single-minded defense of individual autonomy in the text of an outdated document that says nothing about equality.

Sadly, the post–Civil War Supreme Court—both Republican and Democratic justices—tended to ignore the newly minted equality rights inserted into the Constitution by the Thirteenth, Fourteenth, and Fifteenth Amendments. Whether the issue was the power of the federal government to protect the rights of freed slaves against local racists, the effort to regulate emerging monopolies, the power to set railroad or utility rates, or the attempt to form labor unions, the late nineteenth-century Supreme Court repeatedly accepted plausible legal arguments designed to protect the autonomy-based right of the strong to be free from regulatory interference (the Court even extended the protection of individual autonomy to corporations), at the expense of equally persuasive equality-friendly legal arguments that would have protected the weak.

During the first third of the twentieth century, in the name of protecting individual autonomy, the Republican-dominated Supreme Court repeatedly vetoed equality-enhancing legislation aimed at protecting vulnerable employees and consumers against the tyranny of an unregulated market and continued to block equality-based efforts to aid racial minorities in the South. The landmark 1905 case of Lochner v. New York, where the Supreme Court struck down minimum-wage and maximum-hour protections, was the twentieth-century economic analogue of Dred Scott. Instead of the autonomy-enhancing constitutional right of the strong to own enslaved people in Dred Scott, the Lochner Court protected the autonomy-enhancing constitutional right of the strong to impose contracts on “wage slaves” free from regulatory interference.

Lochner and the numerous other early twentieth-century cases striking down minimum wage, maximum hours, and safety regulations are examples of what happens when judges decide constitutional cases by unthinkingly glorifying autonomy over equality. It’s important to recognize, though, that aggressive judicial protection of individual autonomy can help the weak, as well as reinforce the strong. The two Supreme Court cases that launched the modern protection of individual human rights—Pierce v. Society of Sisters (1923) and Myers v. Nebraska (1925)—were pure autonomy cases decided under the same substantive due process clause that drove the result in Lochner.

In Pierce, the state of Oregon lashed out at Catholics by forbidding parents from sending their children to private elementary schools. In Myers, post–World War I anti-German feeling caused Nebraska to ban the study of the German language. In both cases, the justices—both Democrats and Republicans—lined up to protect the individual autonomy of the weak against the tyranny of the transient electoral majority. That’s an important lesson for today’s world, where a Republican-controlled Supreme Court is likely to favor legal arguments advancing autonomy for the foreseeable future. It’s one reason not to kill all the lawyers—yet.

As a purely legal matter, things improved considerably for the weak in the Supreme Court from 1937 to 1972, when the only Democratic-controlled Supreme Court since the Civil War conducted a master class in how to read the Constitution from the bottom up instead of from the top down, giving us FDR’s New Deal, Brown v. Board of Education, “one person, one vote,” broad protection for people of color, and the beginning of women’s rights as part of a flood of equality-driven Warren Court constitutional cases that rewrote much of the Constitution.

(Even the Democratic Supreme Court buckled, though, when things really got tough, upholding the confinement of Japanese Americans in concentration camps during World War II, upholding the jailing of the leaders of the American Communist Party during the Cold War, and upholding the jailing of anti–Vietnam War draft card burners in the late 1960s.)

When Republicans regained control of the Court in 1972, the Supreme Court quickly reverted to autonomy-driven top-down form, tilting toward the strong in a series of closely divided cases favoring autonomy over equality that shaped the nation’s approach to, among other things, funding public education, racial justice, violence against women, reform of the democratic process, access to the courts, and criminal procedure.

There’s no reason to expect the current five Republican justices to be more enthusiastic about regulating the strong in order to protect the weak than were the Republican-controlled Supreme Courts of the past. If anything, with the resignation of Justice Anthony Kennedy, a maverick Republican justice who occasionally championed equality rights, things will only get worse as Trump repopulates the Court with handpicked justices, such as Neil Gorsuch and Brett Kavanaugh, likely to further shrink the Supreme Court’s already relatively shallow commitment to equality. Get ready for an effort to push the constitutional balance between autonomy and equality back to where it was before FDR’s New Deal.

That is cause for alarm, but perhaps not complete panic. Remember, the pre–New Deal legal world included the protection of individual autonomy in Pierce and Myers. And, as we’ll see in chapter 6, it’s not so easy to overturn generations of equality-protective Supreme Court precedent.

Let me be clear: I do not claim that Republican justices—past or present—were or are hostile to basic equality. Were the mob to reintroduce racial apartheid or engage in intentional racial discrimination, I am confident that Republican justices would join with their Democratic colleagues in declaring overtly racist behavior unconstitutional. Nor do we face a wholesale repudiation of most existing equality-based precedents. But in areas such as the right to choose, affirmative action, voting rights, campaign finance reform, police abuse, and religion-based exemptions from the legal duty to treat women and gays equally, where a delicate balance must be struck between powerful legal arguments favoring either the autonomy of the strong or the equality of the weak, Republican justices will tend to find plausible legal arguments advancing autonomy more persuasive than equally plausible legal arguments advancing the equality rights of the weak. Democratic justices will dissent. And all nine justices will continue to tell themselves—and everyone else—that they are just applying the law, not making it.

The bottom line is that Supreme Court protection of autonomy-based rights, like free speech and free exercise of religion, is likely to flourish, while protection of equality-based rights is likely to continue to atrophy. That’s good news for the folks riding in first class, but not so good for the rest of us. Perhaps more important, expecting a deus ex machina called the Bill of Rights or the Supreme Court to drop down from democracy heaven and rescue us from Donald Trump at the head of a populist mob is not merely wishful thinking; it’s downright dangerous because it encourages Americans to rely on someone other than themselves—and something other than the vote—to resist a Trumpist drift toward intolerance, authoritarianism, misogyny, and scapegoating. While judicial review can (and, I hope, will) play a significant short-term role in curbing Trump’s worst impulses, in the end the American people will get the Constitution they want—and deserve. Unless Trump is defeated at the polls, he will remake the Supreme Court in his image, altering the meaning of much of the United States Constitution. FDR did it in 1937. Richard Nixon did it in 1972. Trump could do it in 2020. It turns out that the myth of a timeless, apolitical Constitution that embeds our rights in concrete is just about as accurate as one of Donald Trump’s tweets.

Here’s why: Judicial review is, at its core, anti-majoritarian. It licenses unelected, life-tenured mandarins called Supreme Court justices to veto the acts of democratically elected officials. Living with democracy-challenged institutions such as the Electoral College, the malapportioned Senate, and the gerrymandered House is bad enough, but how can anyone who genuinely believes in democracy sit still for nine Platonic guardians telling duly elected officials what they are allowed to do?

To help the anti-democratic medicine go down, we’ve invented a bedtime story. We try to defuse the tension between judicial review and respect for democracy by insisting that when the Supreme Court says no to Congress, elected state officials, or the president, the justices are merely obeying a superior, democratically legitimate command from the Founders. The trouble is that nobody believes that bedtime story anymore. The justices, especially the Republican “originalist” justices, cling to it because it legitimates their power. But the idea that Supreme Court justices engaged in deciding constitutional cases are merely talented archaeologists discovering and enforcing commands from long-dead white men was a self-serving fiction on the day in 1803 that John Marshall invented it in Marbury v. Madison.

The closest thing we have in the United States to a theater of the absurd is a Supreme Court Senate confirmation hearing, where senators and Supreme Court nominees from both parties fall all over each other pledging allegiance to a cartoon version of judicial review where the justices merely apply law made by the Founders but never make it themselves. It’s a wonder that the Supreme Court nominees’ noses don’t get appreciably longer as the Senate hearing drones on. Every one of them knows better but dares not speak the truth. The raw passions on display during the bitterly contested confirmation hearing on the nomination of Brett Kavanaugh to the Supreme Court raised the curtain a bit on the real stakes of who gets to control the Court, but even then, Justice Kavanaugh insisted—and fifty senators took him at his word—that he would serve as a nonpartisan justice dedicated to applying law, not making it.

The actual relationship between judicial review and democracy is much more complex than a false dichotomy between making law and applying it. When, as it is in many important cases, the constitutional text is ambiguous and precedent confused, I believe that the justices’ values—especially their relative ranking of the values of autonomy and equality—drive the outcome whether or not the justices admit it, even to themselves. Once such a values-driven Supreme Court case is decided, however, pursuant to a kind of legal alchemy known only to British and American lawyers, the Supreme Court’s initial value-driven decision enters the pantheon of binding judicial precedent, creating the raw material for future apolitical judicial defense of the rights it announces and protects. It’s like weaving nonpolitical gold from value-driven straw.

In the relatively few cases where the constitutional text is crystal clear, or in the many, many cases where powerful Supreme Court precedent exists, judicial review can—and often does—act as a significant, nonpolitical brake on the ability of the winner of an election to beat up on the losers. The value-driven, partisan heavy lifting in the Supreme Court takes place in the many important cases where the raw material for apolitical judging does not exist. While the Founders did indeed codify our basic individual rights in the 1787 Constitution, the 1791 Bill of Rights, and the post–Civil War equality amendments, the naked constitutional text is almost always maddeningly ambiguous. The hard work of deciphering the precise meaning of a constitutional text in specific settings—“saying what the law is”—falls to fallible human beings who dress in black robes and call themselves judges.

When the raw material for nonpolitical judging—clear text and binding judicial precedent—just isn’t there, Supreme Court justices must use their values to break constitutional ties. There’s no other way to get the job done. Moreover, because Republicans and Democrats tend to embrace characteristically different value hierarchies, Republican and Democratic justices tend to break constitutional ties in characteristically partisan ways. As I’ve argued, Republican justices tend to be persuaded by plausible legal arguments favoring autonomy over equally plausible legal arguments favoring equality. Democratic justices tend to be more receptive to legal arguments favoring equality. Not every justice. Not every time. But enough times to generate a partisan difference that results in two Constitutions—one red, one blue.

I acknowledge that characterizing constitutional judgments as Republican or Democratic borders on heresy. It comes dangerously close to erasing the important distinction between law and politics. But I have no choice. An honest analysis of the constitutional decision-making process makes it clear (to me, at least, after fifty-five years of immersion in the process) that a justice’s hierarchy of values often plays a determinative role in resolving many constitutional cases. The standard defense of judicial review argues that since all that judges do when they exercise judicial review is carry out commands issued by the Founders, judicial review is perfectly compatible with democracy, even when it sets aside the actions of the electoral majority. That defense of judicial review—endorsed by Justice Scalia, Justice Gorsuch, and now Justice Kavanaugh—turns on an indefensible assumption that the constitutional text conveys a single correct command to a faithful judicial reader, rather than a series of plausible choices.

The moment that judicial choice enters Supreme Court Eden, it destroys the fiction that the Founders are doing all the work. If, after all, it’s the justices who ultimately get to choose what the constitutional text means, the political heavy lifting is really being done by a non-elected, life-tenured mandarin, not a democratically privileged mythic Founder.

So the crucial question becomes: “Does the constitutional text convey a command or pose a choice?” In order to harmonize judicial review with democracy, American judges and most academics turn themselves inside out trying to persuade themselves—and everyone else—that the constitutional text conveys a single command from the Founders. But thus far their efforts have all failed. One group of constitutional experts, calling themselves “literalists,” insist that the Constitution’s commands are hiding in plain sight in its 4,543 words. All you really need, they claim, to decipher the Constitution’s one true meaning is a good dictionary (preferably about two hundred years old) and the courage to read the text literally.

Sometimes the literalists are right. When you want to know how many witnesses are needed to convict someone for treason (two), how old the president must be (at least thirty-five), the president’s required citizenship status (native-born, not naturalized), how many votes each state gets in the Electoral College (one for each of the state’s two senators and one for each representative in the House), or how many electoral votes it takes to elect a president (currently 270), the Constitution’s literal words deliver a single, definitive answer.

But useful as literalism is in some settings, everyone agrees that the dictionary has its limits. Many of the Constitution’s words and phrases plausibly carry multiple literal meanings, especially the words and phrases used in the Constitution’s rights-bearing provisions. Consider the free speech clause of the First Amendment: “Congress shall make no law … abridging the freedom of speech.” Even if we wanted to, we couldn’t read the free speech clause literally. First, there is the difficulty of reading the phrase “Congress shall make no law” to apply to the president, the military, and every level of state and local government. Second, the seemingly absolute phrase “no law” turns out to be a semantic dead end. The text does not say “no law abridging speech.” That would be easy enough to apply literally, but the text would also protect threats, extortion, and blackmail. Instead, the text says “no law abridging the freedom of speech.” But what exactly is “the freedom of speech”? Like the term “witnesses” in the treason clause, or “native-born” in the presidential qualifications clause, “the freedom of speech” is a legal concept that must be filled in by human readers of the text. There is no definitive dictionary-based road map for the job.

It only gets harder to impose a single literal meaning on phrases such as the ban on “establishing” religion and the guarantee of “free exercise” of religion in the First Amendment, the prohibition on “unreasonable searches and seizures” in the Fourth Amendment, the guarantee of “due process of law” in the Fifth Amendment, and the prohibition on “cruel and unusual punishment” in the Eighth Amendment. When you add the right to the “equal protection of the laws” in the Fourteenth Amendment and the implied guarantee of equality latent in the Fifth Amendment phrase “due process of law,” to say nothing of the nontextual doctrines of separation of powers and federalism, the idea of a single, literal constitutional command loses all meaning in most important constitutional settings.

Sophisticated textualists such as Justice Scalia and Justice Gorsuch have conceded that most important constitutional provisions can plausibly be read to mean more than one thing. They argue, though, that constitutional ambiguities can be reduced to a single correct meaning by asking what the Founders originally intended the words to mean. They call their approach “originalism” and claim that it resolves the tension between democracy and judicial review by turning the seemingly ambiguous text into a precise command from the Founders.

I have real sympathy for Justice Scalia’s lifelong originalist effort to domesticate the Constitution by turning it into a series of externally imposed commands. If he had been able to pull it off, he would have turned judicial review into nothing more than a politically neutral, democratically legitimate enforcement of the Founders’ commands. But, despite a lifetime of intellectually powerful effort, he couldn’t pull it off. First, it’s unclear why we would want to adopt a method of reading the Constitution in the twenty-first century that refers us back to the mind-set of an earlier era in human history when equality had not yet entered the Constitution, slavery was legal, women were excluded from the polity, the franchise was confined to the rich, and the idea of freedoms of speech, press, and political association was so weak that President John Adams locked up many of the newspaper editors who opposed him in the election of 1800.

Many originalists acknowledge the dangers of looking backward to a constitution bereft of equality but claim that we have no choice if we are to reconcile judicial review and democracy. The democratic legitimacy of the power of an unelected judge to invalidate a congressional or presidential act, they claim, depends upon the existence of a single definitive constitutional command from the Founders capable of binding a reviewing judge. When literalism can’t deliver such a binding command, originalism becomes the textualists’ safety net.

As we’ve seen, though, it’s not clear that originalists are right in claiming that a constitution with a single command is necessary to the democratic legitimacy of judicial review. I have argued that, as a matter of deferred democracy, not only is the exercise of value-laden legal tiebreaking a necessity in deciding many constitutional cases, it is the most desirable way to harmonize judicial review and democracy because it leaves the ultimate choice of the Constitution’s meaning to the people.

Nor are originalists necessarily right in arguing that such a backward-looking exercise in legitimation is worth the price of locking the Constitution into an eighteenth-century mind-set. To my mind, the moral disgrace of Dred Scott just wasn’t—and isn’t—worth it.

Even if you concede both points, though, it turns out that an honest exercise in originalism almost never delivers on its promise to turn the Constitution into a document that can be read only one way. In the first place, it’s a matter of controversy which Founders’ original intent counts—the principal drafters like Madison, the back-bench members of the Philadelphia Constitutional Convention, the 1791 Congress that adopted the Bill of Rights, the members of the various state ratifying conventions, the voters who selected the members of the ratifying conventions, or the late eighteenth-century “general public” (whatever and whoever that means)?

Over the years, originalists have dallied with each category of definitive reader, abandoning each when the proposed reader became intellectually untenable. Current originalists such as Justice Gorsuch ask what an ill-defined slice of the Founders’ generation called the “general public” would have understood the text to mean, without specifying whether the “general public” included women, free blacks, enslaved people, Native Americans, and non-Christians.

Thus, after more than twenty years of trying to define who the originalist readers are, confusion still reigns. If you don’t know for sure whose original understanding you are looking for, it is virtually impossible to deliver a single right answer about the meaning of the constitutional text.

Even more troubling, whichever category of Founders you choose to be the definitive originalist readers, it turns out that if you are intellectually honest, it’s clear they were as confused and divided over the meaning of the Constitution’s ambiguous text as we are today.

You can’t get a more privileged set of Founding insiders than Thomas Jefferson and Alexander Hamilton. Yet they spent most of their time in President Washington’s first cabinet squabbling over how the necessary-and-proper clause affects the scope of Congress’s power to regulate interstate commerce. If Jefferson and Hamilton couldn’t agree on a single correct meaning of the constitutional text even though they participated in the drafting and ratification process and had personal access to the principal drafters, including Madison and John Jay, how can we expect to generate a single, definitive answer to the meaning of the commerce clause more than two hundred years after its adoption?

The repeated failure of originalism to generate single right answers to the meaning of an ambiguous constitutional text is demonstrated by the sheer volume of Supreme Court opinions, such as the Affordable Care Act case, where the justices divide 5–4 over what the Founding generation intended the Constitution’s text to mean. The Court’s tragicomic performance in District of Columbia v. Heller in 2008 is a particularly revealing example of the failure of history to generate clear answers.

Heller dealt with the meaning of the Second Amendment, which reads: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Over the years, two plausible competing readings of the constitutional text emerged, one blue and one red. The blue reading construed the right of the people to keep and bear arms as a way to ensure the ready availability of a pool of armed citizens needed to staff the “well-regulated” citizens’ militia as a protection against military overthrow of the government. The competing red reading argued that the clause about the right to keep and bear arms should be read in isolation from the militia clause because discussion of militias was merely an explanatory preface, not a legal restriction. Under the red reading, the right to bear arms becomes a deep protection of individual autonomy, not an engine of community.

Literalism fails to break the tie between the two competing readings. No matter how many dictionaries you consult, the riddle of which clause should predominate remains unanswered. Stymied literally, all nine justices in Heller embarked on an originalist quest for the true meaning of the Second Amendment, virtually cornering the market on historical texts. When the history smoke cleared, five Republican justices were sure that the Founders had intended the autonomy-protective “bear arms” clause to trump the equality-protective “militia” clause. Four justices—two Democrats and two maverick Republicans, John Paul Stevens and David Souter—after communing with the same historical materials, were equally sure that the “militia” clause trumped the “bear arms” clause.

You can agree or disagree with the result in Heller, but it is simply impossible to claim that the justices’ intensive historical investigation into the Founders’ intentions and understandings about the meaning of the Second Amendment delivered a single right answer to the text’s meaning. The justices’ values broke that legal and historical tie.

If originalism cannot produce a single right answer in a case like Heller, it’s fair to ask why we should look to the eighteenth century, with its quaint world of muskets and rural farmers, for guidance about constitutional law governing gun ownership in a twenty-first-century world of massive firepower in densely populated urban settings. Justice Scalia, a dedicated originalist, answered that even if historical research into original meaning results in more than one plausible answer, it is better for the justices to disagree over history than to disagree over values and politics.

Such a last-ditch defense of originalism might seem more persuasive if, as an empirical matter, a justice’s view of history didn’t almost always reflect the justice’s values. It’s simply amazing how often the members of the eighteenth-century “general public” share the values of the justice who is asking them about the original meaning of an ambiguous constitutional phrase. In Heller, the Founding rascals told one thing to Justice Scalia and another to Justice Stevens.

In fact, experience and common sense teach that whenever uncertainty and legitimate disagreement emerge about the historical meaning of an ambiguous text, originalism becomes a replay of the scene in Guys and Dolls where Big Julie is losing at craps and wants to substitute his own dice. “But Big Julie,” objects Nathan Detroit, “there are no spots on your dice.” Big Julie responds: “I remember where the spots were.” Antonin Scalia couldn’t have put it better.

Constitutional experts and judges spend a great deal of time doubling down on their claims that their particular approach is the Rosetta Stone decoding the Constitution’s one true meaning. If decibels equaled truth, the originalists, who tend to shout the loudest and pound the table, would prevail. But simply shouting louder can’t turn originalism into a way to decipher the Constitution’s one true meaning. In the end, originalism merely licenses justices to maximize autonomy without worrying about equality—and to pretend that Madison made them do it.

While you’ll never find a Democratic justice who embraces Justice Scalia’s brand of originalism, it is possible to generate a Democratic version of originalism that would treat the drafters of the Thirteenth, Fourteenth, and Fifteenth Amendments as a second set of Founders on a par with the first set of Founders in Philadelphia. A Democratic (or principled Republican) originalist judge would then feel bound to insert the idea of equality into the ethos of the Founding and imagine how equality would have interacted with the Founders’ commitment to autonomy. Maybe that’s what justices like Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan actually do.

In fairness, no one else makes a more persuasive case for their recipe for teasing a single correct meaning from the constitutional text. Justice William Brennan Jr., the great liberal icon and my personal hero, called his approach “constructive originalism.” He also claimed to talk to Founders. Unlike Justice Scalia, though, Justice Brennan didn’t pretend that he was talking to a real Founder and discovering an actual historical fact. Instead, he invented a “reasonable Founder,” rotated the reasonable Founder forward two hundred years and asked him (it was always a him) what the text should mean today. He called it a search for “the living Constitution.”

While Justice Brennan’s “living Constitution” approach frees us from the prejudices of the eighteenth century, allows us to factor equality into the text, and, in my opinion, delivered magnificent constitutional law, it hardly qualifies as a serious method of finding a single right answer in the constitutional text. As with Justice Scalia’s real Founders, I wonder whether any of Justice Brennan’s fictive Founders ever disagreed with him. As an effort to derive a single correct objective meaning from the constitutional text, Justice Brennan’s nocturnal conversations with fictive Founders were even worse than Justice Scalia’s scene from Guys and Dolls. It’s closer to Monty Python. Communing with fictive Founders may have assured Justice Brennan that those Founders would wish the Constitution to enshrine the “one person, one vote” principle in Baker v. Carr and the First Amendment “marketplace of ideas” in New York Times v. Sullivan, but the rest of us were just not in on the conversation.

A third approach, often called “purposivism,” championed by, among others, Justice David Souter during his underappreciated nineteen years on the Supreme Court, does not pretend to talk to long-dead Founders, real or imagined. Instead, it seeks to ascertain the underlying “purpose” of a constitutional phrase, using text, precedent, history, values, and the structure of the Constitution as a guide, and to construe doubtful constitutional phrases in a way that advances their underlying purpose. In effect, it’s the Brennan approach without the nocturnal theatrics.

Most American judges, including a majority of the current Supreme Court, use the Souter method today as their preferred way of deciphering the constitutional text. But while constitutional purposivism is capable of producing excellent constitutional law, it too fails to produce single right answers about the Constitution’s true meaning. The twin judicial tasks of ascertaining the dominant purpose of an ambiguous constitutional provision and deciding how best to advance that purpose in the modern era require repeated value-laden judgment calls.

Justice Stephen Breyer’s spin on purposivism takes it to an even higher level of generality. He finds a dominant general purpose to enhance equal participation in democratic self-governance in the Constitution’s deep structure and professes to break legal ties in hard constitutional cases in a way that advances such a laudable ideal. There is, of course, nothing wrong with such a characteristically Democratic, equality-friendly approach. It usually leads to excellent blue outcomes. But it hardly qualifies as a blueprint for single right answers. Why not, for example, treat the characteristically Republican vision of robust individual autonomy as the overarching purpose of the Founders? That would lead to red outcomes.

Finally, a few intrepid souls calling themselves “pragmatists,” led by former judge Richard Posner, acknowledge that the constitutional text is usually too ambiguous to generate single right answers, and that the variants of originalism and purposivism fail to deliver an objectively correct reading of the text. Judge Posner, during his distinguished service on the Court of Appeals for the Seventh Circuit, argued that the Founders’ use of ambiguous constitutional phrases at a high level of generality operated as a grant of power to future generations to interpret the constitutional text pragmatically. That is just what the Supreme Court did in Brown v. Board of Education when, in 1954, it rejected ninety years of contrary precedent to begin the process of ending racial apartheid in the United States. But such a process, wholly dependent on a judge’s personal assessment of what the times require, cannot possibly generate a single right answer.

So the dirty little secret of American constitutional law is that, except for literalism in a few trivial settings, none of the approaches to reading the constitutional text delivers a single constitutional meaning. Like it or not, Supreme Court justices must make choices about the text’s meaning in deciding many constitutional cases. That’s where values come in.

Dirty secrets about judicial role also generate guilt. American judges, trapped between democratic political theory that asks skeptically where the power of value-driven judicial review comes from and a constitutional text that stubbornly resists yielding clear constitutional commands, often harbor guilt complexes about exercising judicial review. It’s what drives many judges into embracing originalism, even though they know it doesn’t work. I wish American judges would get over their guilt complexes and confront the inevitability of judicial choice about what the Constitution means. They have nothing to be ashamed of when their values operate to break legal ties in hard constitutional cases. To the contrary, I believe that American judges should proudly acknowledge that when text, precedent, and consensus values fail to provide a single right legal answer, a justice’s value choices often underlie the act of reading the constitutional text—not merely because such value choices are inevitable in many cases but also because using a justice’s value choices to break textual ties in hard constitutional cases is at the core of the deferred democratic process that harmonizes judicial review with our deep commitment to government by the people.

As I’ve argued, although it markets itself as an apolitical institution operating outside of politics, the Supreme Court often functions politically as a forum of indirect, deferred democracy. Viewed as an institution of deferred democracy, the Supreme Court has been a remarkably stable partisan institution. As we’ve seen, partisan political control of the Court has changed hands only three times since the Civil War. Republicans controlled the Supreme Court from 1865 to 1937. Twenty-one Supreme Court vacancies were filled between 1900 and 1932. Republican presidents filled eighteen, appointing a Republican-dominated Supreme Court that generated a series of autonomy-driven, characteristically Republican constitutional precedents favoring legal arguments protective of autonomy in cases such as Lochner v. New York striking down wage and hours protections for workers and Hammer v. Dagenhart, invalidating child labor laws.

Democrats have controlled the post–Civil War Supreme Court only once, from 1937 to 1972. Twenty-two Supreme Court vacancies were filled between 1932 and 1968. Democratic presidents appointed seventeen (not counting President Eisenhower’s nomination in 1954 of maverick California Republican governor Earl Warren as chief justice), ushering in the nation’s only Democratic-dominated Supreme Court, which repeatedly broke legal ties in favor of the weak, sweeping away two layers of Republican-era blocking precedents and enabling progressive reforms in both the economic and social arenas.

The first layer of dead Republican precedents was swept away by “the switch in time that saved nine”—the about-face by one Republican justice, Owen Roberts, who apparently changed his voting pattern to uphold the National Labor Relations Act in response to President Roosevelt’s threat to pack the Court with six additional Democratic justices—and by FDR’s ability to appoint four new justices between 1937 and 1941. The newly Democratic Supreme Court dramatically expanded the power of Congress (under the commerce clause) and states (under the due process clause) to regulate the economy in order to protect the vulnerable, ushering in the constitutional foundation for the modern regulatory state.

The second layer of dead Republican precedents (such as Plessy v. Ferguson, upholding racial segregation), which had favored the autonomy interests of southern racists over racial equality interests, was swept away by an avalanche of equality-driven cases (such as Brown v. Board of Education) that established the constitutional foundation for mass movements seeking equality for people of color, women, and gays.

Republicans regained majority control of the Supreme Court in 1972 and have held it ever since. In the early 1970s, the newly Republican-controlled Supreme Court quickly reverted to form, announcing a series of constitutional decisions favoring autonomy over equality. The newly minted Republican precedents froze the progressive reform agenda in areas ranging from educational equity to racial fairness, gender equity, access to the courts, democratic fairness, and regulatory authority.

The heightened Republican focus on autonomy provided a welcome boost for women’s equality. It turns out that abortion is one of those areas, like free speech, where autonomy and equality run on parallel tracks. Concern for a woman’s autonomy reinforces her right to control her own body. Concern for women’s equality reinforces the right of a woman to plan her life. In 1973, under a newly Republican Supreme Court, a signature gender-equality precedent, Roe v. Wade’s protection of a woman’s right to control her reproductive life, was established. The majority opinion was written by Harry Blackmun, a Republican justice, and the case was decided 7–2 by a Republican-controlled Court. But recall that Roe was initially viewed as a pure autonomy case, protecting a woman’s right, in consultation with her doctor, to decide what is best for her health, both physical and mental.

Viewed as a case about the right to be left alone, Roe fit neatly into the value system of the Republican justices as a logical extension of the well-established autonomy-driven precedents protecting the right to use contraception. It was not until sustained, religiously motivated insistence that the fetus also deserved autonomy-based protection had eroded the autonomy underpinnings of Roe that Justice Ruth Bader Ginsburg—the “Notorious RBG”—reconceptualized the case in gender equality terms.

As Roe demonstrates, shifting the Supreme Court from Democratic to Republican control does not endanger autonomy-based rights. Indeed, it usually strengthens them. Thus, the development of a Supreme Court jurisprudence deeply protective of free speech, begun in the 1960s under a Democratic Court that viewed free speech as protective of both autonomy and equality, continued with the post-1972 Republican-controlled Supreme Court, in which Republican justices were enthusiastically joined by the Democratic minority to double down on powerful free speech protections.

The Republican justices saw themselves as protecting autonomy. The Democrats extolled the equality-enhancing power of free speech to alter the status quo to protect the weak. Only when the autonomy rationale ran headlong into the equality rationale, as it did in cases involving campaign finance reform, hate speech, and privacy, did the Court fragment into Republican and Democratic First Amendment voting blocs.

Not surprisingly, the post-1972 Republican majority eviscerated many Democratic precedents designed to advance equality, especially the Warren Court’s criminal procedure cases, which were indirect efforts to deal with rampant racial discrimination at every level of the criminal process. And as Roe increasingly became understood as an equality case, it too became the target of a Republican majority bent on eroding it.

With Justice Scalia’s unexpected death in February 2016, the Court reverted to a 4–4 partisan tie. President Obama’s nomination of Chief Judge Merrick Garland, a moderate Democrat, to fill the ninth seat moved the Court to the cusp of a shift to the nation’s second post–Civil War Democratic majority. The Republican Senate’s adamant, unconstitutional refusal even to consider the Garland nomination, followed by President Trump’s unexpected minority victory in the 2016 presidential election and the confirmation of his nominees, Neil Gorsuch and Brett Kavanaugh, by a radically malapportioned Senate narrowly controlled by the Republican Party, not only maintained the Supreme Court’s Republican 5–4 majority but shifted the ideological balance even more firmly in favor of autonomy and against equality.

At best, the current Republican-controlled Supreme Court will value autonomy over equality; at worst, it will permit the erosion of both of those prime constitutional values in the name of deference to the imperial presidency. The process may have already begun in Trump v. Hawaii, the challenge to President Trump’s travel ban targeting predominantly Muslims, where the Court’s five Republican justices subordinated the equality and autonomy-enhancing values of religious toleration to deference to unconstrained presidential authority in national security settings. As the travel ban case illustrates, the greatest risk posed by a Trumpist Supreme Court is not that it will favor autonomy over equality. Republican justices have been doing that for years. As long as we don’t revert to a Dred Scott world where equality is entirely written out of the Constitution, damage to the weak caused by overvaluing autonomy, while deeply troubling, can eventually be reversed at the polls and by future courts.

The greater risk is that additional Trump appointees may share the president’s disdain for both autonomy and equality, as well as the very idea of judicial review. That’s the formula that gave us Korematsu v. United States (upholding the placement of Japanese Americans in concentration camps during World War II), Dennis v. United States (upholding the jailing of the leadership of the American Communist Party during the Cold War), and United States v. O’Brien (upholding the jailing of draft card burners during the Vietnam War). That’s also the formula that upheld the president’s travel ban, despite the chief justice’s pious assertion that the Court’s five-justice majority was rejecting Korematsu. Trump v. Hawaii is simply Korematsu in modern dress. Imagine the damage a narcissistic authoritarian such as Trump can do if the Supreme Court, like the craven German judges in 1938, routinely defers to the leader’s judgment on questions of national security.

In the long run, therefore, the Constitution is not above politics. It is shaped by politics. The meaning of crucial provisions of the Constitution in our time will be decided not in some apolitical legal world by idealized Platonic guardians responding to legal arguments but by whether our presidential and senatorial elections turn the Supreme Court red or blue.

Though that may sound frightening, I believe that’s just the way it should be in a legal and political system genuinely committed to government by the people. When an American judge is confronted with a constitutional case where the text is ambiguous, the precedent weak, and the values point in different directions, the judge has four options: (1) refuse to decide the case, claiming a lack of judicial standards for decision; (2) use criteria unconnected with the merits, such as the race of the litigant, partisan politics, friendship with one of the lawyers, or self-interest; (3) use random criteria such as flipping a coin; or (4) consult his or her—or the society’s—values to determine what is, in the judge’s view, the best way to read the ambiguous text.

The first response—deciding not to decide—is plausible. An entire branch of constitutional law called the “political question doctrine” is devoted to deciding when a judge should decline to exercise judicial review because of a lack of “manageable judicial standards.” It’s how the Supreme Court has ducked dealing with partisan gerrymandering for two generations. If, however, the option of judicial silence is widely invoked whenever the constitutional text can be read in more than one way, most judge-made constitutional law would cease to exist.

We could, like Great Britain, adopt such a minimalist version of judicial review, but only at the cost of reversing Marbury v. Madison and radically altering the American Constitution.

Since the second and third options are clearly unacceptable, that leaves the judge’s values as the only game in town. As we’ve seen, for most of our history, we have lived under a Republican Constitution that privileges autonomy over equality. For one thirty-five-year burst, from 1937 to 1972, we lived under a Democratic Constitution that injected equality into American law as a serious rival to autonomy.

We have lived since 1972 under a Republican Constitution restoring autonomy and security as primary tiebreakers in hard cases, but have continued to enjoy the fruits of the once and future Democratic Constitution in the form of respect for equality-enhancing precedent, and an occasional lurch forward propelled by an alliance between a maverick Republican justice’s principled commitment to autonomy and the four Democratic justices’ sympathy for legal doctrine protective of equality. That’s what brought us constitutional protection of gay marriage.

We are, I believe, about to enter a period of even more intense protection of autonomy and a corresponding weakening of protection for equality. But that won’t last forever. The truth is that the federal judiciary, including the Supreme Court, is constantly being remade by an infusion of newly appointed judges. That infusion reflects the sustained political choices of the people who elect both the appointing and confirming authorities. Over time, therefore, the constitutional balance between autonomy and equality will be decided in the voting booth.

5

The Fortas Fiasco

How Not to Maintain the Brakes

My candidate for the worst political fiasco of the twentieth century is President Lyndon Johnson’s almost inexplicable failure in 1968 to name a Democratic successor to Chief Justice Earl Warren. Johnson’s blunder cost the Democrats control of the Supreme Court for the next fifty years and changed the course of constitutional history.

There was no obvious political excuse for the failure. In 1968, Democrats enjoyed a comfortable 6–3 Supreme Court majority, with Earl Warren, a Republican in name only who had been cross-endorsed by the Democrats when he ran for Governor of California, counted as a Republican. Democrats also enjoyed an overwhelming 66–34 majority in the Senate, even after losing three seats in the 1966 election. LBJ, who had been elected president in a landslide in 1964, was a master legislative tactician who had successfully shepherded more than a hundred administration-supported bills through Congress, including Title VII, barring race and gender discrimination in employment; Title VIII, banning housing discrimination; and the Voting Rights Act of 1965, barring racial discrimination in access to the ballot.

By 1968, though, President Johnson had been weakened politically: his lame-duck status, liberal opposition to the Vietnam War, southern opposition to the 1960s civil rights statutes, and intense Republican-led opposition to the Warren Court’s equality-friendly rulings—triggering a backlash that presaged the ultimate collapse of the Democratic Party in the states of the old Confederacy.

On the other hand, back in 1968, the Supreme Court nomination process had not yet degenerated into its current toxic, hyperpartisan state. The consensus belief in 1968 was that presidents were entitled to appoint Supreme Court nominees of their choice as long as the Senate reviewed and certified the nominee’s ethical and intellectual qualifications. As recently as 1956, President Dwight Eisenhower had used a recess appointment, without the objection of a single senator, to place Justice William Brennan Jr. on the Court.

Although Supreme Court confirmation controversies had broken out regularly in the eighteenth and nineteenth centuries, the first formal Senate committee hearing on a Supreme Court nominee did not take place until 1916, driven by opposition to Justice Louis Brandeis’s nomination to be the first Jewish justice. Even then, Brandeis was not called to testify. In fact, prior to 1968, no Supreme Court nominee had been called to testify before the Senate.

To make things easier for LBJ, Earl Warren, who despised Richard Nixon, tried to ease the transition by giving the president a year’s notice of his intention to resign, and by making his resignation conditional, effective only on the confirmation of a successor. A bulletproof successor was waiting in the wings: Arthur Goldberg, appointed to the Court by President Kennedy in 1962, Goldberg had resigned in 1965 at LBJ’s request to represent the United States at the United Nations. Goldberg would have been a shoo-in the second time around. But LBJ was reportedly reluctant to place a second Jew (and a Kennedy loyalist at that) on the Court.

Instead, he sought to elevate his crony and longtime legal advisor, Associate Justice Abe Fortas, to the chief justiceship. Not only would elevating Fortas reward a political ally, but it would also open a second vacancy, allowing Johnson to appoint another close political ally, Homer Thornberry, formerly a Texas congressman, who was then serving on the Fifth Circuit Court of Appeals.

Then the wheels fell off. Fortas, who prior to Johnson’s nomination as vice president had successfully defended LBJ in litigation arising out of highly plausible allegations of corruption in Texas House and Senate primary elections, had raised eyebrows by continuing to provide informal legal advice to the White House, even after his confirmation in 1965 as an associate justice.

LBJ then alienated the leader of the southern bloc, Senator Richard Russell of Georgia, by stalling on approving Russell’s allegedly racist choice for a Georgia district court nomination. When Fortas was finally forced to testify under oath before the Senate Judiciary Committee, he revealed his ethically doubtful post-appointment legal ties with the White House. Fortas also disclosed a questionable financial relationship with American University under which he received a substantial payment, equal to almost 40 percent of his Supreme Court salary, for teaching a single course at the law school.

The twin admissions allowed senators to claim to be opposing Fortas’s nomination on grounds of ethics and judgment, not because of his legal views. Although a majority of the Senate Judiciary Committee recommended confirmation, the Fortas nomination was in trouble from day one on the Senate floor, where Republicans launched the first filibuster in the Senate’s history against a Supreme Court nomination. In those days, it took as many as sixty-seven votes to break a filibuster. The Fortas nomination never had a chance. President Johnson stubbornly forced a floor vote on breaking the filibuster, hoping to save face by securing a comfortable majority, but the final vote was a bare 45–43 for advancing the Fortas nomination, far less than the two-thirds present and voting needed to break the 1968 version of the filibuster.

It’s ironic that under today’s fiercely politicized rules, a simple 45–43 majority would have been enough to confirm Abe Fortas as chief justice, changing the course of twentieth-century constitutional history. Brett Kavanaugh was confirmed by a vote of 50–48.

In 1968, though, the Fortas nomination, needing a supermajority, was dead in the water. Fortas withdrew his candidacy that afternoon. Since Earl Warren’s resignation was conditional on the confirmation of a successor, Warren remained on the Court as chief justice, along with Fortas. The Court’s 6–3 Democratic majority remained intact through the 1968 presidential election, in which Richard Nixon successfully campaigned against the Warren Court, especially in the South.

Things got much worse in the new year. In February 1969, shortly after Nixon’s inauguration, Fortas admitted to receiving post-appointment legal payments of $20,000 per year (more than $120,000 in today’s dollars) from a shady Wall Street financier, Louis Wolfson, in return for undefined legal advice. When Earl Warren learned of this outrageously unethical arrangement, he demanded Fortas’s resignation to head off impeachment. Fortas resigned in disgrace in May 1969, closely followed by Warren in late June for health reasons at the close of the Supreme Court’s term.

The resignations of Fortas and Warren handed Richard Nixon two unexpected Court vacancies during his first term, which he filled with two Republicans—Warren Burger and, after two failed nomination attempts, Harry Blackmun. When the illness of Justice Hugo Black (a Democrat) and the resignation of Justice John Marshall Harlan II (a Republican) opened two additional vacancies, Nixon filled them with two more Republicans, Lewis Powell and William Rehnquist—shifting the political makeup of the Supreme Court to 5–4 Republican from the 1968 lineup of 6–3 Democratic, with Earl Warren being counted as a Republican.

Had the Warren succession not been bungled, Democrats would almost certainly have maintained no worse than a 5–4 Supreme Court majority, and the constitutional landscape would look very different today. Once they lost their Supreme Court majority on January 7, 1972, the Democrats never regained control of the Supreme Court. Instead, the new Republican Supreme Court majority flipped the switch from equality to autonomy and, with the anomalous exception of Roe v. Wade’s autonomy blip in 1973, stopped the progressive legal movement toward racial, gender, and economic equity dead in its tracks.

It’s hard enough to score in the game of Supreme Court deferred democracy. It’s heartbreaking to have won the game in 1968, only to be undone by the greed and arrogance of a single Democratic nominee and the overweening pride and ambition of a Democratic president. It’s almost as bad as having won the game in 2016, only to have President Obama’s nomination of Merrick Garland unconstitutionally sabotaged by a malapportioned Republican Senate.

Here’s just a sample of the cost of Abe Fortas’s greed, arrogance, and ethical insensitivity, providing a tangible measure of how important it is for progressives to use deferred democracy to regain control of the Supreme Court.

EDUCATIONAL EQUITY

The Warren Court began in 1954 with the Supreme Court’s unanimous rejection of “separate but equal” racially segregated public education, followed by a ferocious, largely successful assault on government-imposed racial apartheid. The Warren Court ended in 1973 with the newly minted Republican Supreme Court’s 5–4 decision in San Antonio v. Rodriguez, upholding separate but unequal, racially polarized public education.

Invoking the right to equal protection of the laws guaranteed by the Fourteenth Amendment, advocates for Hispanic children attending poorly funded public schools in San Antonio, Texas, attacked the constitutionality of Texas’s decision to fund its public education system almost exclusively through local property taxes, resulting in very significant, wholly predictable differences in per capita educational spending depending on whether a child lived in a wealthy white neighborhood with lots of valuable real estate to tax or in a poor black or Latino neighborhood with a minimal tax base. Under the Texas school financing plan, rich white suburbs such as Plano (a wealthy suburb of Dallas) boasted fine, well-funded public schools, while public schools in poor black or Latino neighborhoods in San Antonio were woefully underfunded.

The Supreme Court’s five Republican justices rejected the argument that the Constitution’s promise of the equal protection of the laws forbade Texas from knowingly adopting a school funding program that would spend far more government money per capita on rich white children than on poor black or Latino children. The four Democratic justices dissented, stressing the fundamental nature of education and the social consequences of funding rich white schools more generously than poor black ones.

Viewed from a purely legal perspective, the constitutional arguments in Rodriguez were in rough equipoise. The challengers’ invocation of the Fourteenth Amendment to forbid predictable but unintentional racial discrimination in per capita educational funding was certainly plausible. In 1973, when I directed the ACLU’s Supreme Court docket, I found it overwhelming. It built on Brown and on the Democratic Supreme Court’s refusal to countenance unequal allocation of the right to vote in the absence of a showing of overwhelming need.

But Texas’s counterargument that, in the absence of intentional discrimination, the Fourteenth Amendment required not strict equality in educational spending but merely enough spending to reach a minimal baseline of adequacy was not without legal force, especially since no intent to discriminate on the basis of race was alleged or proven.

I believe that the legal tie in Rodriguez was broken not by the intrinsic merits of the evenly balanced legal arguments but by the degree to which the five Republican justices subordinated the equality claims of the black and Latino challengers to the autonomy claims of white local residents of Texas to fund and control the education of their children as they saw fit.

I am not saying that the Republican justices were hostile to the claims of the black and Latino children. Rather, I assert merely that the Republican justices’ intuitive ranking of the relative importance of the values of autonomy and equality caused them to perceive Texas’s autonomy-advancing legal arguments as more persuasive than equally valid equality-enhancing ones advanced by the challengers. The four Democratic justices disagreed about the legal merits, not because they were smarter or morally superior but because the challengers’ equality-enhancing legal arguments reinforced the Democratic justices’ intuitive sense of the appropriate balance between autonomy and equality. In Rodriguez, when it was impossible to find a legal argument that advanced both autonomy and equality, Republican justices chose the legal argument that advanced autonomy; Democratic justices chose the legal argument that advanced equality. And that has made all the difference.

If LBJ and Abe Fortas had not run the Democratic Supreme Court off the cliff, Rodriguez would have been decided in favor of the poor Hispanic students, dramatically changing the face of public education in America. When someone tells you that voting doesn’t really matter, think about the America that might have been in the last half of the twentieth century if there had been equal funding of public schools in both impoverished inner cities and affluent gated communities.

RACIAL EQUITY

Three years later, in 1976, the same five members of the Republican Supreme Court majority, this time joined by Democratic Justice Byron White (John F. Kennedy’s only serving nominee to the Supreme Court), seriously weakened progressive efforts to use the Fourteenth Amendment’s promise of equal protection of the laws to advance racial equity by holding in Washington v. Davis that the Fourteenth Amendment’s equal protection clause provides protection against intentional racial discrimination but no protection at all against the knowing, reckless, negligent, or careless adoption of government policies that disproportionately harm minorities for no good reason. Three Democratic justices dissented.

The challengers in Washington v. Davis, black applicants for jobs in Washington, DC, argued that the city’s civil service exams were full of questions that unfairly disadvantaged poorly educated black applicants but had little or nothing to do with how well an applicant could perform a particular job. Perfectly competent janitors and bus drivers, the argument went, do not have to know how to multiply and divide complex fractions.

The Democratic Warren Court had already accepted the argument—sometimes called a ban on unjustified “disparate impact”—in connection with the Title VII ban on employment discrimination. Under the Title VII test, once the racially disparate impact of a criterion for employment policy was demonstrated, an employer was obliged to either prove that the criterion was job-related or cease to use it.

In 1976, though, the District of Columbia wasn’t covered by Title VII, which at that time applied only to private employers, so the challengers relied on the due process clause of the Fifth Amendment, with its long-recognized implied protection of equality.

In Washington v. Davis, five Republican justices, plus Justice White, refused to import the disparate-impact test into the Fourteenth Amendment. Instead, they insisted on a “discriminatory purpose” test that prohibits intentional or purposeful racial discrimination but has nothing at all to do with unintentional discrimination caused by knowing disregard, carelessness, negligence, or lack of concern.

The decision was a disaster for racial equity on two levels. First, the plight of racial minorities is never solely the result of purposeful discrimination. Much of the time, the majority makes policy (or fails to make policy) without thinking—or caring—about its potential impact on weak minorities. From the standpoint of a minority job applicant, though, it doesn’t make any difference whether a disqualifying question was included on the test with the purpose of disqualifying black employees or is being asked because no one bothered to think about whether the question would knock out minorities for no good reason. In both settings, the minority applicant is out of a job because of his or her race.

Under Washington v. Davis, the Republican Supreme Court ruled that government has no constitutional duty to think about the foreseeable impact of its actions on vulnerable groups. Imagine what our highways would look like if new drivers were told that they were not allowed to injure someone intentionally but were under no duty to avoid negligent or reckless driving. Washington v. Davis turns vulnerable minorities into sitting ducks on that toxic highway, just waiting for an “accident” to happen. Worse, once you tell a cynical racist that all he has to do is make up a story about why his foreseeably discriminatory actions “unintentionally” harm blacks, how long do you think it will take him to come up with a pretextual explanation? What else do you think is going on when cynical Republican politicians claim that unnecessary voter ID requirements, stringent voter registration rules, or overly broad voter purge statutes are about preventing nonexistent fraud, not keeping poor blacks and Latinos off the voting rolls?

As in Rodriguez, the technical constitutional arguments in Washington v. Davis were, at a minimum, in rough equipoise. The Fifth Amendment’s implied protection of equality could plausibly be read either way. I have no doubt that a Democratic Supreme Court would have broken the legal tie in favor of racial equity. Five Republicans broke the tie in favor of local autonomy. Subsequent Republican Supreme Court decisions extended the necessity of proving discriminatory intent to the Fifteenth Amendment’s protection of voting rights, the Fourteenth Amendment’s protection of women, and the protection of Native American religious exercises inherent in the First Amendment clause guaranteeing the free exercise of religion.

The sorry saga of hundreds of unsuccessful efforts by civil rights lawyers to prove “discriminatory purpose,” as opposed to “disparate impact,” demonstrates the magnitude of the Court’s error—and just how much the Fortas fiasco really cost the movement for racial equity.

FELON DISENFRANCHISEMENT: THE ROOTS OF BUSH V. GORE

The 2016 presidential election wasn’t the first to be hijacked and delivered to a minority president. In 1876, southern racists stole the Hays-Tilden election by disqualifying enough Tilden electors to give Hays a one-vote victory in the Electoral College despite losing the popular vote, in return for Hays’s promise to abandon southern blacks by ending the military occupation of the defeated South. Hays kept his promise, and lynch law swept the South.

In 2016, it was the Russian government’s disinformation campaign and a presidential candidate named Trump willing to violate the campaign finance laws to cover up evidence of his sexual escapades, and perhaps his willingness to cooperate with the Russians that hijacked the Electoral College for the losing candidate.

In 2000, it was a Republican Supreme Court that executed the heist by refusing to permit Florida to complete a recount of the presidential balloting ordered by the Florida Supreme Court, a recount that the Democratic candidate, Al Gore, plausibly expected to win. Largely because of incompetent administration of the paper ballot voting in Palm Beach and Broward Counties (Democratic strongholds), the Republican candidate, George W. Bush, carried Florida by just over six hundred votes after thousands of paper ballot votes for Gore were disallowed on dubious technical grounds.

The Democratic-controlled Florida Supreme Court ordered a careful manual recount of the disqualified paper ballots to ensure the integrity of the election. A five-justice Republican majority on the Supreme Court first stayed the recount, and eventually blocked it as coming too late (because of the stay). George W. Bush carried Florida and became a minority president.

But it should never have been that close. At the time of the 2000 election controversy, a provision of the 1968 Florida constitution that dated from 1868 barred individuals with a criminal record from voting, even after they had fully served their sentences—a ban that disenfranchised 25 percent of Florida’s black male population in that election year. Had even one thousand of the hundreds of thousands of disenfranchised black males been allowed to vote in 2000, Al Gore would probably have been elected president.

Were the 2000 election held under today’s rules, the decision in 2018 of 64 percent of Florida’s voters to end felon disenfranchisement would probably have delivered the state to Gore. Ending felon disenfranchisement may flip Florida from Republican to Democratic in 2020, but only if a substantial proportion of the hundreds of thousands of re-enfranchised black voters are brought back into the process.

Given the massive racial disparities at work in the criminal justice system, it’s no surprise that felon disenfranchisement always falls with discriminatory severity on poor people of color. Imagine two kids arrested for drunk driving in Florida. One’s a young black teenager with no money. He’ll be lucky to be allowed to plead to a felony and get probation. Depending on the judge, he may even serve time. Either way, as a convicted felon, under the old rules, he’d never vote again in Florida.

The other young drunk driver’s name is George W. Bush Jr. He’s represented by high-powered lawyers, appropriately supported by his influential family, and placed into an alcohol treatment program in lieu of facing a criminal charge. The drunk driving charges are dropped after he completes a rehabilitation program. To his credit, the young Bush beats his alcohol problem and goes on to become president of the United States.

We have the Fortas fiasco to thank for the legal and moral disaster of Bush v. Gore and the persistence of felon disenfranchisement. In 1974, in Richardson v. Ramirez, the newly minted five-justice Republican majority made a mockery of the equality-enhancing purpose of the Fourteenth Amendment, reading its Section 2 hyper-technically to permit the continued disenfranchisement of felons, despite the massive disparate impact on black voters. Predictably, the four Democratic justices dissented. A Democratic-controlled Court in 1974 would almost certainly have invalidated the racist practice once and for all, changing the face of American democracy, changing the outcome of the 2000 presidential election, and changing the political composition of the Supreme Court.

At a minimum, no disastrous invasion of Iraq. Perhaps no 2007–8 financial collapse. No Chief Justice John Roberts. No Justice Samuel Alito. No Justice Neil Gorsuch. No Justice Brett Kavanaugh.

In a futile effort to close the barn door after the horses had already escaped, once the 2000 election was over, the Brennan Center challenged the constitutionality of the racially discriminatory impact of Florida’s felon disenfranchisement rules. Washington v. Davis’s insistence on proving “purposeful” discrimination could not save felon disenfranchisement, we argued, because it was clear that felon disenfranchisement had been adopted by Florida in 1868 in an intentional effort to disenfranchise formerly enslaved persons. Even Republican justices reject felon disenfranchisement when it is purposefully imposed to block blacks from voting. Mississippi’s version of felon disenfranchisement was invalidated under the Fifteenth Amendment for just that reason

“Ah,” replied the Republican district judge in Miami, “that’s true.” “But the 1868 Florida constitution is no longer in force. Florida adopted a new constitution in 1968.”

“That’s also true,” we replied, “but the 1968 Florida constitution uses virtually the exact language as the 1868 constitution.” At a minimum, we argued, if Florida repeats the exact language that it once used to discriminate on purpose, surely Florida should be required to prove that its motive has changed, especially when the provision continues to discriminate against black voters. No Democratic judge would have rejected such a plausible, equality-enhancing legal argument. No such luck, though, with Republican judges, for whom Florida’s autonomy was apparently more important than the equality of its black citizens.

After years of bitter litigation, we lost because, in the twenty-first century, there was no surviving formal evidence of what the white pols in Florida had intended in 1968 when they decided to reenact the exact terms of the racist 1868 felon disenfranchisement provisions. The white pols were too smart to admit why they were copying the 1868 language that just happened to block thousands and thousands of black men from voting.

So George W. Bush beat Al Gore in 2000 because the Fortas fiasco cost the Democrats control of the Supreme Court in 1972. Were it not for the Fortas fiasco, felon disenfranchisement would have been struck down in 1974, Al Gore would have been elected president in 2000, and the Supreme Court would be blue today.

VIOLENCE AGAINST WOMEN

Persistent violence committed by men against women is a public health disaster and an enormous drag on the economy. It is a major cause of female absenteeism from work, and the principal reason women are reluctant to work in certain isolated or high-crime areas and at certain times. Violence against women is, of course, against the law in every state. But two centuries of hostility or indifference from too many male-dominated state judiciaries had barely made a dent in the problem.

In 1994, Congress recognized the economic cost of violence against women by exercising its power under the commerce clause to enact the Violence Against Women Act, opening the elite federal trial courts to women seeking redress for gender-motived violence.

For most of their history, those courts, staffed today by more than nine hundred of the nation’s most respected trial judges, had virtually ignored issues of importance to women. The nineteenth-century Supreme Court had rejected a woman’s right to vote and upheld the exclusion of women from the legal profession. It wasn’t until 1934 that President Franklin Roosevelt appointed the first woman to a federal appeals court. President Harry Truman appointed the first woman to the federal trial bench in 1949. Until the Notorious RBG got her hands on it, a judge-made “domestic relations” exception blocked women from asking federal judges to deal with intrafamily disputes, including allegations of marital rape, child abuse, and domestic violence.

For more than two hundred years, women seeking to cope with state judicial and legislative indifference to gender-motivated violence—especially rape—were routinely shunted out of the elite federal courts and back into the very male-dominated state courts whose hostility and indifference had led to the judicial failure to act effectively to protect women in the first place.

The Violence Against Women Act sought to open the federal courts to women who were victims of gender-motivated violence, allowing our elite trial judges to confront the ongoing epidemic. In 2000, in United States v. Morrison, the Republican Supreme Court majority (the same majority that would hijack the presidential election later that year) reached back to pre-FDR Republican precedents limiting Congress’s power to use the commerce clause to protect the weak, and invalidated Congress’s effort to enhance the equality interests of women.

In Morrison, a student at Virginia Polytechnic Institute invoked the Violence Against Women Act to sue the school in federal court for failing to act against an athlete whom she accused of rape. The Republican majority invalidated the federal law, claiming that Congress had not sufficiently linked the statute to the adverse economic effects of gender-motivated violence. It was not enough, held the Republican majority, to demonstrate the economic link after the fact. Congress had to have been actually motivated by the link when it passed the law.

The four Democratic justices dissented, arguing that the issue was not the subjective intention of Congress (whatever that means, since Congress is made up of 535 different people with 535 different motives), but whether gender-motivated violence in fact affects the national economy. If it does, argued the Democratic dissenters, Congress has power to move against it to protect interstate commerce.

A Democratic-controlled Supreme Court would almost certainly have upheld the statute, providing women with a potent new legal remedy for failure to act vigorously against gender-motivated violence. At a minimum, a Democratic majority would have recognized that the equality-enhancing provisions of the Fourteenth Amendment authorize Congress to act to protect women against the indifference of the state courts. In later cases, the Notorious RBG rescued women from part of the problem by persuading a Republican Court to respect the right of a woman trapped in an intrafamily cycle of violence to seek relief in a federal court free from the nineteenth-century domestic relations exception. That’s something, of course. But it’s only a pale shadow of the equality-enhancing right to seek relief in federal court that women would have exercised if a Democratic Court had upheld the Violence Against Women Act.

REPRODUCTIVE FREEDOM

Roe v. Wade, decided in 1973 by a newly minted 5–4 Republican Court, protects a woman’s right to choose whether to bear a child. It’s hard to believe today, but both Republican and Democratic justices initially viewed the constitutional right to choose as an easy legal (if emotionally wrenching moral) case advancing the autonomy interests of the woman and her doctor. Roe was decided by a 7–2 bipartisan vote.

Over the years, though, passionate, often religiously driven opposition to abortion persuaded several Republican justices (who happened to be Catholic) that Roe had underestimated the potential autonomy interest of the fetus. If, the dissenting justices argued, a genuine dispute exists over whose autonomy right to favor, the dispute should be resolved by the democratic process, not by constitutional judges.

Once the autonomy issue became complicated by rival claimants, Ruth Bader Ginsburg, then a judge serving on the District of Columbia Court of Appeals, sought to alter the terms of the debate, arguing that the right to choose was not solely a question of autonomy; rather, she argued, it was central to the attainment of equality for women. No woman, RBG argued, could hope to participate equally in the economic, political, and social life of the nation if she was required by her reproductive organs to involuntarily spend considerable time bearing and then raising children. No society, she observed, had ever attained equality for women without permitting them to control their reproductive lives.

The real legal issue posed by the abortion cases, Justice Ginsburg argued, is whether the unquestionable equality interests of women outweigh the deeply contested alleged autonomy interest of a fetus. Viewed as a collision between conflicting claims to autonomy and the clear equality interests of women, the minority Democratic justices dug in and supported Roe. Republican justices (in particular the male Republican justices), less moved by the equality interests of women, have chipped away at Roe, especially at protections for poor women. Troubled by the implications of overruling a rights-bearing precedent, however, they have stopped short of overruling it.

In 1992, in Planned Parenthood v. Casey, a Republican-controlled Court, this time with a comfortable 8–1 Republican majority (reflecting the deferred democracy consequences of twelve consecutive years of Republican presidents), came within a whisker of overturning Roe v. Wade. At the last minute, cooler Republican heads, committed to the stability and sense of security that respect for precedent provides, declined to overturn Roe but began the process of chipping away at the case—especially when the rights of poor women are at stake.

The watered-down judicial review standard imposed in Casey—whether a regulation poses an “undue burden” on the right to choose—has operated as a green light for anti-choice Republican legislators to pile on as many regulations as possible in an effort to undermine the right to choose whether to bear a child. In Rust v. Sullivan, for example, a 5–4 decision by the Republican majority upheld a federal gag rule banning federally funded doctors from talking to their patients about abortion. The five Republican justices insisted on viewing federally funded doctors for the poor as shills for the government, instead of as full-fledged providers of medical services. Rust should be appalling from both Republican autonomy and Democratic equality perspectives. The case runs roughshod over the autonomy interests of both doctor and patient in service of the government’s decision to advance the highly contested alleged autonomy interest of the fetus. The majority opinion entirely ignores both the equality interests of poor women patients, and the autonomy interests of poor women and their doctors. No Democratic Court would have voted that way.

In 2007, in Gonzales v. Carhart, a five-justice Republican majority further eroded Roe, applying the Casey “undue burden” test to uphold a ban on generally accepted medical procedures for late-second-trimester abortions, further elevating the contested autonomy interest of the fetus at the expense of the autonomy and equality interests of women and their doctors. No Democratic Court would have given such short shrift to the equality values bound up in the question of whether women can control their reproductive lives.

In 2016, in Whole Women’s Health Clinic v. Hellerstedt, in what was Justice Anthony Kennedy’s last hurrah before retiring, the four Democratic justices, plus Justice Kennedy, struck down a Texas anti-abortion law that piled so many onerous restrictions on abortion facilities that they were forced to shut down in large areas of rural Texas, leaving women with no opportunity to exercise what is left of the right to choose. But with Justice Kennedy gone, there’s no guarantee that Justice Kavanaugh will provide a fifth vote in such a case in the future. In fact, it’s quite possible that he’ll join with his four Republican colleagues to render Roe a dead letter for poor women, without the need to overrule it formally. As far as middle-class women are concerned, though, under a Republican Court with a thin commitment to equality, Roe clings to life on the fragile support system of respect for rights-bearing precedents. As we’ll see in chapter 6, the Supreme Court has never overruled a rights-bearing precedent.

EGALITARIAN DEMOCRACY

Modern campaign finance law begins in 1976 in Buckley v. Valeo before a 5–4 Republican Supreme Court. As in Roe, the justices—both Republican and Democratic—initially thought the issue of limiting campaign spending by the rich was an easy autonomy case. The deeply flawed 1974 congressional statute at issue in Buckley capped campaign spending at an unreasonably low figure, making it difficult for a challenger to oust an incumbent with a built-in set of advantages, including name recognition and free mailing privileges. The law limited independent expenditures by supporters to just enough money to buy a quarter-page ad in the New York Times. The statute also discriminated in favor of the two major parties and made it difficult to run for president as an independent.

The Republican justices predictably recoiled at the assault on speaker autonomy imposed by draconian government-imposed political spending limits and gave predictably short shrift to the asserted equality interests of most Americans in limiting the power of the rich to influence the outcome of elections.

The Democratic justices, confronted by such an extreme statute, shared the Republicans’ concern for the autonomy rights of speakers. Since the Democratic justices, led by Justice Brennan, were sure that the equality interests of ordinary voters could be adequately advanced by the prospect of public funding of election campaigns, they did not hesitate to join with Republican colleagues in striking down the 1974 law. The Buckley decision was really a grand bargain, where the Republican justices preserved autonomy and the Democratic justices provided a road map for electoral equality.

As with Roe, however, it soon became apparent that the autonomy and equality interests of participants in the democratic process could not be so easily reconciled. At that point, the Supreme Court fragmented along familiar partisan lines, with the Republican autonomy-friendly majority repeatedly blocking Democratic efforts to promote a more egalitarian democracy at the expense of even a dollop of autonomy. The Democratic minority consistently dissented on egalitarian grounds.

In the 2011 decision in Arizona Free Enterprise v. Bennett, for example, the five-justice Republican majority arguably reneged on the Buckley bargain, striking down Arizona’s plan to provide public funds to poorly funded candidates that roughly matched the spending of rich, privately funded opponents. The Republican majority—deeply committed to protecting speaker autonomy—reasoned that the Arizona matching scheme would violate the autonomy-friendly First Amendment rights of privately funded candidates by potentially deterring them from raising private money. The Democratic minority argued, unsuccessfully, that the First Amendment does not protect the right of the rich to enjoy unanswered campaign speech.

In McCutcheon v. Federal Election Commission (2014), the same five-justice Republican majority struck down generous six-figure limits on the amounts that a single donor could contribute to all candidates for federal office in a single year, rejecting the idea that massive amounts contributed to large numbers of candidates would allow a large donor to exercise excessive, unequal political influence. The five Republican justices reasoned that as long as each contribution was too low to risk influencing a single legislator, no reason existed to interfere with the autonomy interests of someone wishing to contribute unlimited amounts to all legislators. The Democratic minority dissented, unsuccessfully arguing that unlimited contributions to large numbers of candidates was certain to vest the donor with disproportionate political influence with the party’s leadership, if not with each legislator.

Four years earlier, in Citizens United (2010), the same five-justice Republican majority struck down the ban on corporate campaign spending, taking the extraordinary step of recognizing that large proit-making corporations are endowed with the same autonomy interests as human beings.

Stay tuned for the corporate right to bear arms, or, at least a corporate Fifth Amendment right to resist self-incrimination. The Republican Supreme Court has already recognized a corporation’s right to seek religiously based exemptions from the duties of citizenship. If things keep going the way they are in the Supreme Court, soon you’ll be able to be adopted by a corporation. Maybe even marry one. Until then, though, you’ll just have to get used to being screwed by them.

In all three campaign finance reform cases, the five-justice Republican majority broke a legal tie in favor of arguments advancing the autonomy interests of rich speakers—the red Constitution in action. In all three cases, the four-justice Democratic minority fiercely dissented, arguing that under the blue Constitution, campaign finance regulation was constitutional as an effort to advance an egalitarian democracy, with only minimal costs to autonomy. They lost. And they will continue to lose until Democrats regain control of the Supreme Court.

GUN CONTROL

In District of Columbia v. Heller, faced with legal arguments ending in a tie, the Supreme Court split 5–4 on gun control along predictable partisan lines. Five Republican justices embraced legal arguments upholding a pure autonomy-based right to own a gun. A Democratic Court would have upheld equally plausible equality-enhancing legal arguments upholding a ban on gun ownership in the inner cities designed to protect the community against excessively powerful armed thugs.

Chalk up another cost of the Fortas fiasco and the Republican Supreme Court’s hijacking of the 2000 election. The list could go on—gutting criminal procedure protections for the poor, closing the courts to the vulnerable, and the replacement of civil juries with compulsory arbitration. All courtesy of a red Constitution made possible by the Democratic leadership’s failure at the game of deferred democracy.

Imagine what American democracy might look like today if LBJ had not blown the Warren succession—the Supreme Court would be blue; inner-city schools would receive equal funding; the Sheldon Adelsons of the world would not be able to buy elections; black men who had served their time would have been able to vote in Florida and elsewhere; the Voting Rights Act would still protect the voting rights of blacks and Latinos; partisan gerrymandering would no longer protect Republican members of Congress against a nationwide Democratic majority; and the right to vote would be protected by the First Amendment.

THE CLINTON SHIPWRECK

With Democrats in the Supreme Court wilderness after 1972, the process of deferred democracy continued to percolate in the background, initially favoring Republicans in 1976, 1980, 1984, and 1988, eventually producing an 8–1 Republican Supreme Court. Democratic success in the 1992, 1996, 2008, and 2012 presidential elections (Democrats also won the popular vote in 2000 and 2016, only to lose in the Electoral College) translated, through the processes of deferred democracy, into increased Democratic representation on the Supreme Court. The appointments of Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan and the unexpected death of Justice Antonin Scalia in February 2016 allowed the Democrats to claw back to 4–4 status, with control of the Court in their grasp.

As I have noted, had the Supreme Court vacancy opened by the death of Justice Scalia in February 2016 been filled with a fifth Democratic justice, Democrats would have controlled the Supreme Court for the first time since 1972 and only the second time since the Civil War. The stage would have been set for the resurgence of the blue Constitution. But it was not to be. Just as the Fortas fiasco cost the Democratic Party control of the Supreme Court during the last third of the twentieth century and the Supreme Court’s heist of the presidency in 2000 cost Democrats control in the early twenty-first century, the inexplicably anemic Democratic turnout in the 2014 congressional elections cost the Democrats control of the Senate and, hence, of the Supreme Court in 2016.

To my mind, the appallingly low Democratic turnout in the 2014 congressional elections, in which only 34 percent of eligible voters bothered to vote, rivals both the Fortas fiasco and the hijacking of the 2000 presidential election in the annals of Democratic ineptitude in the deferred democracy game. It’s not as though there was some great Republican groundswell in 2014. Republicans won the Senate first, because of the radical malapportionment of Senate seats: Republican senators elected from sparsely populated states that skew white and rural resulted in a Senate majority that represents far less than 40 percent of the population; and second, because only a third of the eligible voters bothered to vote in the 2014 senatorial elections, a sliver of ideologically motivated voters representing no more than 17 percent of the electorate wound up choosing that majority.

Once they gained control, the Republican majority was able to torpedo President Obama’s nomination of Merrick Garland by simply refusing to consider it. With the Garland nomination becalmed, Hillary Clinton’s unexpected defeat in the Electoral College in the 2016 presidential election cost the Democrats control of the Supreme Court yet again. If just a fragment of the Democratic base had turned out in the 2014 senatorial elections, the Democrats would have retained the Senate and Merrick Garland would have been confirmed as the fifth Democratic justice long before the Clinton shipwreck.

Entire ecosystems will be wiped out in order to generate the pulp needed to publish books analyzing the 2016 election. This book won’t be one of them. Who knows why Trump carried Wisconsin, Michigan, and Pennsylvania? Maybe the Russians did it, with or without Trump’s cooperation. Maybe it was Trump’s willingness to violate the campaign finance laws by paying to suppress stories about his sexual escapades. Maybe it was James Comey’s loose lips. Maybe it was the ceaseless infighting within the Clinton campaign. Maybe it was the Wikileaks hack of the Democratic National Committee. Maybe it was the smugness and self-righteousness of the Clinton leadership team, which allowed the campaign to ignore Michigan and to patronize blue-collar voters in the Rust Belt. Maybe it was the presence of Bernie Sanders as the ultimate spoiler. Maybe it was the Green Party’s diversion of votes from Clinton. Maybe it was the decent folks who sat on their hands because they just didn’t like the Clintons. Maybe it was black voters who punished Hillary for the crime bill that passed in 1994, when her husband was president, and which she supported. Or maybe Hillary was punished for not being Barack Obama. Maybe it was the women who turned on Hillary because she didn’t seem to respect or understand their more conventional life choices. Maybe it was Trump’s satanic genius at appealing to racism, misogyny, economic insecurity, and xenophobia.

It was probably all those things—and more. Whatever the causes, though, it’s important to tally the cost of the lost Supreme Court opportunity, if only to remind folks of the constitutional stakes in every senatorial and presidential election. The major cost of the 2014 electoral swoon and 2016 Clinton shipwreck is the loss of a golden opportunity for Democrats, earned by years of deferred democratic success—including victory in the 2000 and 2016 popular vote—to undo or at least blunt the worst of the Republican Supreme Court precedents unleashed by the Fortas fiasco. Every one of the cases that I’ve described above, where a Republican majority broke legal ties in favor of autonomy of the strong rather than equality for the weak, would have become a candidate for reversal or erosion under a Democratic Court. It would have taken time, but a Democratic Supreme Court would have recalibrated the constitutional balance between autonomy and equality in a blue Constitution requiring equal funding of public education, rejecting pretextual defenses of government policies that openly discriminate against women and racial minorities, upholding thoughtful efforts to deal with the corrosive effect of big money on egalitarian democracy, authorizing Congress to take action on violence against women, protecting reproductive freedom for poor women, and reopening the federal courts for the weak.

I harbor no illusions that a Supreme Court, remade in a Trumpist image, will meddle with existing Republican precedents that systematically subordinate equality to autonomy. If anything, I fear that it will further entrench them. Get ready for a barrage of religion and free speech cases under the First Amendment allowing true believers to harness government as an engine in their holy wars, while also offering fellow true believers the right to opt out of the duties of citizenship. It will all be done under the red Constitution in the name of autonomy—and at the expense of equality.

But while Republican readings of the First Amendment may usher in an era of deeply mistaken constitutional law that will further prop up the strong and subordinate the weak, it will just be more of the same. We’ve lived under a red Constitution for the last half century. Wrong as future autonomy-driven decisions will be, they will not further weaken the fabric of our democracy, any more than the Republican decisions described above already have.

My real fear is that Trump will reconstitute the Court in his appalling image as a populist organ that disdains judicial review as anti-democratic. That’s how strongmen usually attack judicial checks on their power. The code word they always use is “deference.” Under a regime of deference, the courts are left in place. There is no change in formal doctrine. But the constitutional tiebreaker is changed from protection of autonomy or equality to deference to the views of the populist officials whose policies are under judicial review.

We’ve seen where the deference road takes us. In 1944, a Democratic Supreme Court upheld the internment of Japanese Americans in concentration camps, euphemistically called “detention centers,” because iconic Democratic justices Hugo Black and William O. Douglas opted to defer to the wartime military’s racist views about the importance of locking up people with “yellow” skin. In 1951, a Democratic Supreme Court upheld the jailing of the leadership of the American Communist Party for the crime of being active communists because iconic justices Robert Jackson and Felix Frankfurter deferred to Congress’s paranoid view of the threat to national security posed by the mere existence of a militantly Marxist American Communist Party. In 1969, iconic justices William Brennan and Earl Warren upheld the jailing of young men for symbolically burning their draft cards to express opposition to the war in Vietnam, deferring to the view of the military about the significance of the virtually nonexistent risks resulting from not possessing a draft card during the brief period needed to issue a replacement. And in 2018, the blatantly discriminatory travel ban predominantly targeting Muslims was upheld by a five-justice Republican majority chanting about deference to the president.

If the travel ban decision is a harbinger of a generalized Republican jurisprudence of deference, dark days may lie ahead unless Trump and his like are defeated at the polls. I hope I’m wrong, but don’t count on anything except spineless deference from a Trumpist Supreme Court.

6

What’s Law Got to Do with It?

Please Don’t Kill All the Lawyers—Yet

If the outcome of so many constitutional cases is predetermined by the partisan makeup of the Supreme Court, what exactly do high-powered lawyers add to judicial review? Maybe nothing. Maybe constitutional lawyers are just decorative. They strut and preen in pinstripes and pantsuits, charge large fees, use big words, and communicate in codes largely designed to keep nonlawyers in the dark about what is really going on. I know. I’ve been one of those constitutional lawyers for more than fifty years.

Maybe fancy constitutional lawyers are just glorified travel agents. When I maneuver to file a case before a friendly judge, I’m really just reserving a table at a fashionable restaurant. If the dinner ultimately tastes good, I’m entitled to credit for excellent taste in judges, but not necessarily for cooking the meal. I can suggest a recipe, but it’s the judge who does the cooking.

So, apart from decoration, pontification, and judge-shopping, can good lawyers really affect the outcome of a constitutional case? My highly self-interested answer is a resounding “sometimes,” “maybe,” and “I think so.” But not in the way lawyers often claim. While high-powered lawyers like to tell themselves—and their clients—that skill in crafting an imaginative legal argument can play a crucial role in virtually every case, in the many intensely contested constitutional cases that lack clear textual direction, persuasive binding precedent, and/or a tidy package of values pulling in the same direction, competent constitutional lawyers are likely to fight to a legal tie that will be broken by a judge’s values. In such value-driven cases, lawyers are like the oarsmen in Tolstoy’s rowboat trying to tow a legal ocean liner on a sea of judicial values.

But don’t kill all the lawyers, at least not yet. In the many important constitutional cases where the raw material for value-free persuasive lawyering exists—cases with clear text, persuasive precedents, and consensus values—excellent lawyers can and do play a crucial role in shaping the case’s outcome. The important contribution of lawyers to the process of judicial review occurs when a well-crafted legal argument based on a combination of clear text, well-reasoned precedents, and/or the tug of shared values is sufficiently persuasive to guide a thoughtful, principled judge to a single, preferable legal result, regardless of the judge’s values.

It is in those cases—the true “rule of law” cases—that the value-driven red and blue Constitutions often merge to form an apolitical, relatively value-free purple Constitution. Given the vast array of rights-affirming precedents decided by both Republican and Democratic Supreme Courts over the years, the prospect of apolitical, lawyer-driven enforcement of fundamental rights embedded by precedent in the purple Constitution’s text, provides real hope for a genuine bulwark against a Trumpist drift toward authoritarianism and scapegoating.

But just how strong is the purple Constitution? Can it provide enduring protection in the time of Trump? I wish I could assure you that the core of our constitutional heritage is safely nestled in the purple Constitution, just waiting for apolitical enforcement at the hands of excellent lawyers and principled judges. But I can’t make that promise. I can only express a belief—maybe only a hope—that most of the purple Constitution will hold, even in a relentlessly conservative Supreme Court. I’m relatively confident that precedents protective of autonomy—First Amendment protections of religious freedom and free speech, as well as Fourth Amendment protection against unreasonable searches and seizures—will hold. It’s the equality precedents that worry me.

To understand why I can’t promise, only hope, we need to survey the idea of precedent and the binding rule of law at the heart of the purple Constitution’s DNA. That survey must start with the question of whether we ever live under a judicially enforced rule of law. Critics have argued, from both the left and the right, that the very idea of a rule of law is a myth. Given the limitations of language and logic and the power of politics, thoughtful critics argue that judges can almost always decide any case any way they wish, and then disguise the outcome as “compelled” by legal commands from legislatures or past judges.

If that critique is true, we live not under a rule of law but under the rule of judges, where the purple Constitution—and every other legal document—is just an excuse for covert judicial lawmaking. In my experience, though, critics who focus solely on important areas where good lawyering is likely to fail to generate a single clearly preferable legal result seriously underestimate how often good lawyers and principled judges do succeed in operating under the apolitical rule of law.

I have found that most of the time, the law speaks relatively clearly to competent lawyers and principled judges. If I took ten excellent lawyers and placed them behind a veil of ignorance, eliminating the usual client-driven or personal incentives for lawyers to seek to twist the law in one direction or another, I would be willing to bet that in cases reaching across the full spectrum of the law, at least eight and perhaps all ten, using the analytic skills they learned in law school, would reach a consensus about what the law expects in a given setting.

Think of the legal system as a huge pyramid. The lawyer’s office sits on the bottom rung. It’s a place where the law usually sends relatively clear signals that are easy enough to decipher if a skilled, principled lawyer takes the time to study them. When a client consults a competent lawyer before she makes a will, buys a house, or invests money in a business, the lawyer is generally able to provide useful guidance, because the law is speaking relatively clearly to her. Not always, of course. But most of the time.

Don’t be confused by that fact that it is almost always possible for an agile lawyer to argue that the law is sending more than one signal. That’s just legal smoke, usually aimed at advancing a client’s interests or the lawyer’s personal interests. A good, self-aware lawyer usually knows, though, when she is acting as the law’s oracle and when she’s blowing smoke. When a client has already behaved in a certain way by the time he arrives at his lawyer’s office, under our adversary system of justice it is the lawyer’s duty as a zealous advocate to blow as much legal smoke as possible—to try to twist the law into a pretzel to get the client off. At that point, it’s usually a competent judge or skilled opposing counsel who brings a dose of reality to the proceedings by cutting through the implausible legal smoke. That’s why competent judges are so important. It’s also why ensuring that both sides have competent counsel is so important. Without a competent judge and competent adversary counsel, the rule of law is helpless to defend itself from legal smoke.

When, however, a lawyer is advising a client before the client acts, the lawyer plays a vastly different role. Before a client has acted, an ethical lawyer should function as the law’s oracle, not the client’s mouthpiece. The temporal distinction is crucial. Before the client has acted, an ethical lawyer’s function is to educate clients about the behavior that the law expects. After the client has acted, the lawyer’s duty is to get the client off by confusing the law’s signals, if necessary. In both settings, though, good lawyers usually know what the law is trying to say. Fortunately for the rule of law, so do good judges.

So in the wake of 9/11, when President George W. Bush’s lawyers told him, before he acted, that torturing prisoners didn’t violate international law, they were confusing their roles as advisors and advocates. If the president had already acted, a good lawyer-advocate would have been duty bound to advance any legal argument that might have shielded the president from legal sanction, even an argument that the advocate would reject if she were the judge. That’s what Rudy Giuliani is trying to do for an embattled Donald Trump.

Before President Bush acted, though, the lawyer-advisor’s duty was to tell him that international law is relatively clear: torture is unlawful anywhere, anytime. It was not to assure him that some loophole might be found if he ignored the law’s relatively clear signals.

Ultimately, of course, it’s the client’s call. All a lawyer can do is explain what behavior the law appears to expect, assess the client’s level of risk if she decides to act differently, and decline to participate in the commission of a crime or a fraud. Make no mistake, though—as I’ve said, a good lawyer usually knows what the law is trying to say.

Now, move up one level on the legal pyramid from the lawyer’s office to the trial court, where opposing parties are in formal disagreement, but not necessarily over what the law says. In fact, most of the time in the trial court, the governing law is relatively clear to a competent judge, despite the legal smoke. The parties’ real disagreement is very often over the facts. That’s where excellent trial lawyers really earn their keep. Persuading a judge or jury to accept a client’s version of the facts is a skill of a high order (worth a book of its own, but not this one). We’re focusing on the governing law in the trial courts, which is usually clear enough to an able, intellectually honest trial judge. Not always. But most of the time.

Another layer up the legal pyramid are the intermediate appeals courts. Since appellate courts in our system usually can’t challenge the factual findings of lower courts, most appeals center on disputes over what the law is. Even then, I’ve found that if I can avoid viewing the issue through an advocate’s glasses, a combination of persuasive text, well-reasoned precedent, and shared values usually points the way to a legally preferable result. That’s why the vast bulk of appeals to three-judge federal appeals panels are resolved by unanimous vote.

Finally, move to the highest appellate court, the apex of the pyramid—the Supreme Court. That’s where the rarefied air is richest in legal ties caused by ambiguous text, conflicting values, and nonexistent, ambiguous, or conflicting legal signals. When, as with the United States Supreme Court, the highest court can pick and choose the cases it hears, the percentage of legal ties is at its highest because one criterion for accepting a case is to resolve disagreements in the lower courts over the correct legal outcome. But even then, at the height of potential legal uncertainty, I have found that most of the seventy to eighty cases heard each term in the modern Supreme Court can be resolved on the basis of strong legal signals, without resort to the justices’ values. It’s why so many Supreme Court decisions are either unanimous or decided by lopsided majorities.

Sometimes, of course, the legal signals just don’t work. Incompetent lawyers may do a lousy job of decoding them and presenting them to clients and judges. Shady clients may ignore them. Ambitious lawyers may garble legal signals in the hope of pleasing a powerful client. A judge of limited ability may be unable to understand the legal signals, even when lawyers do a competent job of decoding them. Occasionally a judge’s values may be so intensely felt that they blot out the legal signals. Relatively rarely, judges can see the legal signals just fine but, driven by values, self-consciously decide to ignore them.

In a surprisingly high percentage of Supreme Court cases, the signals work just fine, guiding the justices to a legally preferred, value-neutral result. Each term, however, there are at least several important cases in the Supreme Court, usually involving constitutional questions, where conflicting or weak legal signals result in formal legal ties that are broken by characteristically partisan values. As we’ve seen, in such cases Republican justices have tended to favor legal arguments advancing individual autonomy, while Democratic justices will more often be persuaded by an equality-enhancing legal argument.

Even though such cases are crucially important and deservedly get most of the public and academic attention, value-laden tie cases are black swans, surrounded by the great mass of cases where good judges and good lawyers work together to deliver the apolitical rule of law. It’s a mistake to pretend that the black swans do not exist. But it’s also a mistake to treat the Supreme Court’s black swans as if they were the entire flock.

If all we had were black swans, our entire legal system would be a lie. Killing all the lawyers wouldn’t matter much. But please don’t—not yet, anyway—because it’s the lawyers, with all their posturing and infuriating antics, who provide able, principled judges with the raw material for the purple Constitution’s rule of law in the many, many cases where it is possible to aspire to it. How do they do it?

In the beginning, there’s the purple Constitution’s naked text. If all we had was that text, though, there wouldn’t be much of a purple Constitution. Given the inherent ambiguity of virtually every word in the Constitution, almost every constitutional case would turn not on a genuine command from the text but on the judge’s values. Much of the late Justice Antonin Scalia’s formidable legal career was spent trying to increase the number of cases governed by a genuine command from the purple Constitution’s text by deploying his theory of originalism. As we’ve seen, though, originalism, in practice, fails to point the way to a single, correct way of reading the Constitution’s necessarily ambiguous text.

The failure of originalism to generate single right answers in most settings does not, however, render constitutional text wholly incapable of providing an intellectually honest judge with persuasive apolitical guidance. When guidance can’t be found in the naked text, sometimes it can be found in context and structure. Words in a complex legal document such as the Constitution are rarely free radicals existing in splendid isolation from one another. When the entire text is read holistically, relationships between and among the individual words become visible, potentially infusing a single word with enriched persuasive meaning. Justice David Souter’s opinions during his nineteen years on the Supreme Court often used context and respect for structure as a way of giving the naked text a preferred meaning. Souter’s work demonstrates that it is possible to take text seriously without being sucked into the originalist vortex.

In the past, I’ve argued that the forty-five words of the First Amendment when read as a whole reveal the careful organization of its ideas—starting with freedom of conscience, moving outward to freedoms of speech, press, and assembly, and culminating in the right to petition for redress of grievance. Read that way, the First Amendment describes the half-life of a democratic idea, born in the conscience of a free citizen and shared with the political community in ever-widening concentric circles of speech, press, and assembly, culminating in formal petition for adoption by the polity. Such a democracy-enhancing document, I’ve argued, cannot plausibly be read to forbid the campaign financing reform needed to save democracy.

The trouble with such holistic readings and flights of poetic fancy, though, is that they often don’t deliver a single right answer, just a plausible one. In my experience, the holistic persuasion meter usually stops at “plausible.” All that does is give a judge another potential outcome. Sometimes, of course, that’s all a judge wants—a plausible excuse for advancing her values. Every once in a while, though, a really good lawyer with the right raw material can hit the apolitical jackpot by cloaking the naked text in an elegantly persuasive coat of underlying purpose and structural context capable of persuading a principled judge without resort to values.

More often, instead of using the text, skilled lawyers try to persuade a judge to follow an apolitical trail to a preferred legal outcome by invoking the principle of stare decisis, the fancy Latin term for respecting judicial precedent. In lawyer-speak, that’s the unwritten rule that directs a British or American judge (but not judges in France, Germany, or other civil-law countries) to treat prior judicial decisions concerning the same (or an analogous) legal question as binding, without considering whether the earlier case was correctly decided.

Why on earth, you may ask, would we want to saddle our judges with a duty to recycle used judicial decisions, without even considering whether they are right or wrong? Most European lawyers and judges think we’re nuts. In their legal world, judges pay respectful attention to earlier decisions but follow them only when they think those cases have been rightly decided.

Where does our commitment to stare decisis come from? How strong is it? And can it really protect us from Trump?

Our deep, if unwritten, commitment to following judicial precedent is part human nature, part thoughtful attempt to make law predictable, part concern for equal treatment, and part crafty, self-interested judicial behavior. Let’s look at each.

There is something in human nature that calls us to respect and repeat what we’ve already done. Occasionally the urge to respect the past morphs into tradition, habit, even obsession. Often the urge is recycled as superstition. Sometimes it’s revered as experiential learning.

Imagine, once upon a time, that our distant ancestors skipped a meal the night before a particularly successful hunt. If I were leader of the pack, I’d associate skipped meals with successful hunts. I’d insist that all future hunters repeat the ritual fast. If the hunt failed, anyone who hadn’t followed the ritual would be on the hook.

British and American judges venerate past practice just as intensely, maybe more so. Like fasting before the hunt, respect for precedent can become an obsession. Until 1956, for example, it was the law in Great Britain that once the Law Lords (Britain’s highest court) had decided a legal issue, the decision became embedded in precedential concrete for all time. Not even later Law Lords themselves could undo it. Only Parliament could fix a broken precedent.

In our current system, following judicial precedent is merely habitual. British and American judges are expected to defer to past decisions; but, like breaking the smoking habit, if the judge can be persuaded that the past decision was wrong enough and its consequences harmful enough, a binding precedent can be judicially overruled and replaced. The Supreme Court did it in 2018 when it overturned a 1977 case that had permitted public employee unions to charge “agency fees” to nonmembers to cover the cost of providing collective bargaining services. Five Republican justices ruled that requiring dissenting public employees to support unions in any form violates the First Amendment. The four Democratic justices dissented.

Not surprisingly, overruling a past precedent occurs most often in constitutional cases, where it takes the earthquake of a constitutional amendment to correct a judicial mistake. But even then it’s rare. Instead, judges tend to erode a disfavored precedent, leaving the formal shell in place but draining it of much of its force. That’s what’s already happened to Roe v. Wade under forty-five years of a Republican Supreme Court.

Roe is an extreme case generating almost unparalleled levels of intensely value-driven disagreement, especially from people (including justices) whose deeply held personal beliefs equate abortion with murder. As we’ve seen, in 1973, the justices viewed Roe as a relatively straightforward autonomy case allowing women to control their bodies. Over time, the autonomy issue became complicated by demands to grant a measure of autonomy protection to the fetus. Repeated efforts to overrule Roe have thus far foundered on respect for precedent (no Supreme Court rights-granting precedent has ever been overruled), continuing concern for a woman’s autonomy, and the force of Justice Ginsburg’s equality-based defense of a woman’s right to choose. But Roe remains uniquely vulnerable to being overruled or further eroded by a current Supreme Court majority, many of whom are personally committed to recognizing the autonomy interests of a fetus and are unmoved by legal arguments advancing equality.

In the vast bulk of settings, though, since American judges, as a matter of training, social convention, self-interest, and received wisdom, are deeply wedded to respecting past precedent even when they disagree with it, rejecting clear precedent is—and will continue to be—relatively rare in the American legal system.

Such a veneration of the past isn’t just an atavistic impulse. Respecting precedent is what makes it possible for British and American law to send reliable signals about how people are expected to behave. As a matter of theory, civil-law countries such as France or Germany don’t need binding precedent because they operate under comprehensive statutory codes that are supposed to send clear signals on just about everything. Common-law systems such as ours don’t have comprehensive codes. Indeed, until recently, statutes played a relatively minor role in British and American law. Instead, judges, in deciding cases before them, announced judge-made common-law rules derived from logic and custom that filled in the huge gaps in the statutory world.

Think about it for a minute. In the absence of a comprehensive statutory code binding on everyone, unless the common-law rule announced by the first judge is deemed binding on future judges, there would be no way to provide a client with firm guidance about how the law expected her to behave.

“So what?” you might say. “Let the clients believe what they want.” But that can’t be the answer when you are talking about law. Most of the time we think of law as the punishment we impose—or should impose—on someone who has allegedly acted badly. The second Justice Harlan used to call it the “post-event” function of law. It’s what we see on television and in the movies. Perry Mason, Twelve Angry Men—that’s where all the drama is.

As Justice Harlan reminded us, though, the more important function of law is to act as a great educator before the bad conduct takes place—persuading, cajoling, threatening, deterring, and inducing its audience to behave a certain way. But how can law persuade its audience if the audience can’t predict what it is? Respect for precedent turns the first judge’s decision—right or wrong—into the raw material for an accurate prediction of what the law will be in the future. Thus, respect for binding precedent provides us with a predictable pre-event way to know what the law requires, enabling us stay out of the clutches of post-event law. In our common-law legal system, veneration of past judicial precedent, even when we think it is wrong, is the price we pay for a coherent system of pre-event legal signals.

Respecting past judicial precedent is also a key component of the notion of “equal justice under law.” If stare decisis didn’t exist, judges, bound only by ambiguous naked text and their own values, would routinely decide identical cases differently. It happens in Europe all the time.

Imagine two litigants with the same legal case in the same courthouse on two consecutive days. Stare decisis ensures that once the first case is decided, both litigants will receive the same legal result—the essence of equal treatment. Maybe both are being treated wrongly, but at least they are being treated the same. If the order of the two cases were reversed, the first case might have come out differently, and the binding precedent in the second case might be wholly different. It is far from reassuring to realize that decisional equality often comes at such an arbitrary price.

Finally, there’s a strong whiff of institutional self-interest in a judge’s respect for precedent. Stare decisis turns out to be very good for judicial business. You might think that a judge would be resentful of the duty to defer to a dusty precedent, especially if she has doubts about its correctness. But most judges embrace their precedential chains for at least three self-interested reasons. In the first place, it’s a relief for a judge to be able to say, “I know this decision may seem unfair. But don’t blame me. I’m just following orders from a past judge.” Every one of us craves the absolution of duty. Judges are no different.

If, moreover, every case had to be decided anew, the strain on judicial resources would be enormous. It’s much easier to buy an existing suit off the rack, even if the color and fit aren’t quite right, than to weave, cut, and sew the perfect suit from scratch.

Most important, the loss of individual judicial autonomy that stare decisis imposes is more than compensated for by an increase in collective judicial power. Paradoxically, if every judge were free to ignore precedent, each would enjoy greater individual power, but who except for the litigants would care what the judge says? The judiciary would lose its institutional power to command. Everyone except the litigants would be free to ignore the first judge and take their chances with the next one. If, however, the judges all pledge allegiance to the first decision, right or wrong, each judge—and the judiciary as a body—acquires the capacity to issue powerful commands that bind everyone precisely because there is no future wiggle room to avoid them.

So whether it’s just human nature, practical wisdom, concern for equality, or judicial self-interest, scratch an American judge and she bleeds stare decisis. That means that precedents enforcing substantial autonomy-enhancing aspects of the red Constitution announced by past Republican-controlled Supreme Courts and decisions enforcing substantial equality-enhancing aspects of the blue Constitution announced by past Democratic Supreme Courts unite under stare decisis to form a legally congealed body of constitutional norms that bind the lower courts and are binding on future Supreme Courts, whether red or blue—even when one or more of the justices think those cases may have been wrongly decided.

That’s the principal raw material for our constitutional rule of law. How stable is it?

Constitutional precedents exist in two dimensions. The most enduring aspect of a precedent is the precise fact pattern or legal issue before the first court. That outcome is locked in stone, not only by stare decisis but also by the related doctrines of res judicata and collateral estoppel, requiring future courts to respect the first court’s resolution of the fact pattern or legal issue. If that’s all there were to stare decisis, though, it would be thin gruel. It wouldn’t cover much. If, for example, our ancestors required the ritual fast only when the hunt fell on January 1 or involved a certain kind of prey, the precedent would have a limited scope. We endow our judicial precedents with much greater power to bind. A principled American judge is expected to respect a precedent not only in factually or legally identical settings but in logically indistinguishable ones as well. Thus, judges in the American system must decide how far the analogical tentacles of a past precedent reach. If a case bars racial discrimination in access to public schools, does the precedent cover gender discrimination? Does it cover racial discrimination in public parks? How about private employment? In effect, our judges get to ask: “If the duty to fast applies to hunting, why not to fishing? Why not to harvesting crops? Why not before human births?”

As with imaginative readings of text, therefore, the imaginative analogical use of precedents is a narrative analytical skill of a high order. Good lawyers can use analogy to weave a skein of logically related precedents purporting to bind a judge. The problem is that good lawyers on the other side can seek to unravel the skein by attacking the analogies—in lawyer-talk, “distinguishing” the precedent.

The process is further complicated because judges speak in two voices—“holding” and “dictum.” “Holding” is the voice of judicial command, setting forth the legal rule that is entitled to stare decisis respect. Dictum is the voice of judicial persuasion, explaining and defending the judge’s reasoning. The working definition of a holding is the portions of a judicial opinion that are logically necessary to the result. Everything else is dictum.

Unfortunately, judges do not use different color ink to separate holding from dictum. Later judges are often confronted with conflicting arguments about what the first court actually held—as opposed to what it just said. You can imagine how often lawyers bicker over whether a past precedent is a holding or just a dictum. The problem only gets worse as judges—especially Supreme Court justices—complicate judicial opinions with academic articles and political essays, routinely writing extremely long opinions replete with learned asides and elaborate footnotes.

On the other hand, dictum is valuable as a window into the judge’s mind, helping lawyers and clients to make educated guesses about what the legal world will look like in the future—but only as long as the judge spouting the dictum remains on the bench. Newly appointed judges must respect holdings but will be free to reject dictum.

Complex as the process of applying stare decisis may be, in a surprising number of cases, good lawyers and able judges generate persuasive stories about the scope and binding nature of past precedents, allowing an intellectually honest judge to be persuaded that the legal landscape tilts in favor of one of the parties. Values don’t come into play—at least consciously. Often, though, contested questions about the scope of the holding, its analogical force in the current case, and the wisdom of remaining blindly loyal to the past, present a principled judge with a legal tie that must inevitably be broken by resort to values.

The value-laden tiebreakers impacting stare decisis are often more complex (and less partisan) than the choice between autonomy under the red Constitution and equality under the blue. In addition to the usual values of autonomy and equality, the judge, in deciding whether to recognize or respect a precedent, must balance the importance of stability in the law against the need for change; the social and economic consequences of uprooting settled expectations created by the old precedent, especially when what is being uprooted is a rights-bearing precedent (that’s why the Supreme Court has never formally overturned a constitutional case granting rights, including the notorious Lochner v. New York); the social harm being caused by the old precedent; the degree to which the factual or intellectual underpinnings of a precedent have already been eroded; and the effect on law itself of weakening stare decisis.

In my experience, those choices are, ultimately, so complex that no two judges approach the issues in the same way. The result is a kaleidoscopic array of possible outcomes depending on the interplay of a judge’s raw intellectual ability, the intensity of the judge’s commitment to stability, the intellectual power of the arguments in favor of retaining the binding power of a given precedent, and the intensity of the judge’s value-laden agreement or disagreement with the original precedent.

Such a complex interplay ordinarily results in the enforcement of a controversial precedent. Occasionally, though, the binding force of precedent will be rejected or circumvented. That’s what happened in Brown v. Board of Education in 1954 when the Warren Court unanimously overruled precedents upholding government-imposed racial segregation. It’s what happened in 2018 when the Supreme Court narrowly overruled forty years of precedents authorizing public employee unions to levy agency fees on dissenting nonmembers. It’s what may happen to Roe v. Wade.

It turns out that the moving parts of applying the doctrine of stare decisis are so complex, so intellectually difficult to operate, and so shot through with discretionary branching points that the act of deciding whether a precedent is binding, to say nothing of whether it should be abandoned or eroded, is often influenced, perhaps unconsciously, by a judge’s values. The bottom line is that stare decisis will usually, but not always, provide powerful protection for large swaths of the purple Constitution. Change the judges, though, and what looks like stable protection can evaporate overnight.

So don’t kill all the lawyers, but don’t count on them too much, either. Reliance on precedent can only take you so far. The name of the game is still winning elections and populating the judiciary with judges who care deeply about equality as well as autonomy.

Finally, in addition to text and precedent, the bipartisan purple Constitution thrives when powerful legal arguments exist that advance both autonomy and equality. Consider, for example, the strong current bipartisan Supreme Court protection of free speech beginning in the late 1960s and peaking in 1989 when two iconic Democratic justices, William J. Brennan Jr. and Thurgood Marshall, joined three Republican justices—Harry Blackmun, Anthony Kennedy, and Antonin Scalia—to rule that burning the American flag in protest is a protected form of free speech. The Democratic justices saw the case as both respecting a “speaker’s” autonomy and as protecting the equal rights of radicals to protest the status quo. The Republicans saw it as a pure protection of individual autonomy. The rest is history.

When, however, as in later First Amendment cases involving campaign finance regulation or hate speech, autonomy and equality tugged in different directions, the purple Constitution’s value consensus fell apart, moving the case back into the contested realm of the red and blue Constitutions, where a Republican Supreme Court will break the value tie in favor of autonomy, while a Democratic Supreme Court will break it in favor of equality—with either or both decisions qualifying as a binding precedent for the future.

Progressive lawyers should, therefore, continue to invoke the purple Constitution in defense of both autonomy and equality. The success of their efforts will undoubtedly be significantly affected by their skill and dedication. But, no matter how skilled the lawyers, the project is far more likely to protect autonomy-based rights—such as speech and the free exercise of religion—and already existing equality-based rights that are rooted in powerful precedent, rather than to provide additional equality-based protection for the weak.

7

In Praise of Seventh-Grade Civics

Separation of Powers in the Time of Trump

I’ve been looking through my seventh-grade civics notes for hints about how to protect the Constitution from Trump. You’ll no doubt be relieved to learn that my class notes assure me the twin constitutional doctrines of separation of powers and federalism are designed to prevent the president from assembling a dangerous concentration of power. My notes also assure me that if we defend those two doctrines, the Trump era will eventually disappear in the rearview mirror, reduced to a speed bump on the road to genuine democracy.

I wish that my notes were easier to decipher, though. The doctrines of separation of powers and federalism, like the other parchment barriers in the Constitution, are only as strong as the people’s commitment to them. What does it mean for an ordinary American who hasn’t suffered through law school to be committed to amorphous concepts such as separation of powers and federalism? How can an ordinary American know what types of power the Constitution is referring to, how they should be separated, and who should exercise them?

Similarly, when we talk about federalism, how does an ordinary American know what issues to leave to the states, what to put into the national pot, and what to share?

Until we free these questions from the political polemic and legal jargon in which they are currently enmeshed, it will be virtually impossible for most Americans to distinguish Trump’s painful but ultimately correctible political mistakes from his dangerous, potentially lethal assaults on our constitutional structure. The distinction between mere political error and structural assault is very important. I oppose pretty much everything Trump does and stands for. But there are only twenty-four hours in the day. I reserve my most intense opposition for Trump’s assaults on three foundational ideas on which American democracy rests—separation of powers, federalism, and achieving a morally acceptable balance between individual autonomy and collective equality.

As we’ve seen, finding the constitutional sweet spot between autonomy and equality is the essence of much constitutional judging. It’s our way of trying to balance the right of the individual (especially a strong individual) to do whatever he or she wants against the right of everyone (especially the weak) to be treated as an equal. That’s what the Supreme Court does when it interprets the First Amendment as a great bulwark of individual autonomy and the Fifth and Fourteenth Amendments as great bulwarks of collective equality.

As we’ve also seen, over the years, principled disagreement over the proper balance between autonomy and equality is what differentiates most Republican Supreme Court justices from their Democratic colleagues. Ordinary Americans need not attend law school to have strong opinions on whether the justices are getting that balance right. When it comes to separation of powers and federalism, though, how can an ordinary American know which resistance gear to be in? It’s one thing to make a personal assessment about whether Trump (or the Supreme Court) is veering dangerously close to allowing the glorification of individual autonomy to erode or even extinguish the protection of equality. It’s another to make an informed judgment about whether the president or the Court is eroding structural protections against excessive government power, such as separation of powers and federalism.

I would not put much hope into getting useful guidance on those questions from the electronic media, especially cable TV or the internet. A steady diet of semihysterical political polemic has reduced virtually everything in the electronic media to slogans designed to score points for or against the president. Don’t even think of getting thoughtful guidance from politicians. They know less about the Constitution than you do. Even if they knew the answers, they wouldn’t tell you unless doing so advanced their short-term political interests. Nor are lawyers and judges likely to give ordinary Americans serviceable answers. They will be quick to tell you that the answers are revealed in the constitutional text. They will also assure you that they know exactly what the text says. Unfortunately, no two of the so-called textual experts agree. The task is made even harder because the words “separation of powers” and “federalism” do not appear in the Constitution. James Madison urged the Founders to insert an explicit protection of separation of powers into the Bill of Rights, but Madison’s colleagues didn’t think it was necessary.

Despite the lack of textual guideposts and the political sloganeering, though, it is possible for someone who has not suffered through law school to know when Trump crosses a red line. Let’s start with separation of powers, which is just a label describing a cautious way to run a government by seeking to identify and catalogue the various tasks (or powers) carried out by government, and then allocating each task to a separate group of officials. It could just as easily be called “separation of tasks,” “division of functions,” or “allocation of powers.”

Separation of powers should be contrasted with a competing way of running a government where complete governing authority is concentrated in a single person or group. One of the crucial branching points in the history of political thought occurred in Europe during the seventeenth and eighteenth centuries in connection with efforts by segments of the landed aristocracy and the newly wealthy merchant classes to limit the “divine right” of kings, a theory of government that concentrated absolute governing authority in the hands of a hereditary monarch.

One revolutionary path, trod by the French, called for the overthrow of the absolute monarch and the substitution of something or somebody more palatable—like an elected legislature or a strong leader—with the complete power to govern. We have learned from painful experience that transferring absolute governing power from a king to somewhere else isn’t all that much of an improvement. The potential for royal terror just morphs into a potential tyranny of whoever manages to get their hands on the levers of absolute power, whether his name is Robespierre at the head of the National Assembly; or Adolf Hitler, Joseph Stalin, or Pol Pot, governing at the point of a gun.

Forget about history and political science. If you really want to know why vesting too much governing power in the hands of a single person or group is so dangerous, read Stendhal’s great 1839 novel The Charterhouse of Parma, which describes the terror of living under arbitrary one-man rule. Lord Acton, the celebrated nineteenth-century British historian, was right when he warned that “absolute power corrupts absolutely.”

Fortunately, the Founders did not go down the absolute-power path. A second path, our own, seeks to eliminate the very idea of absolute governmental power vested in a single person by dividing the functions of government among multiple power centers. Unlike the absolute-power approach, which offers a romantic promise of quick justice and ruthless efficiency, separation of powers is selfconsciously inefficient. It treats government power like a dangerous bomb capable of exploding in ways that can cause immense harm to individuals and the society.

To limit foolish or dangerous eruptions of government power, the formula for the government bomb is cut into separate pieces (or powers), with each group of officials given access to only one part of the formula. The hope is to make it impossible for a single runaway official (aka Donald Trump) to set the bomb off by himself.

In order to make such a cautious system of government work, the Founders had to complete two important tasks—identifying the functions of government; and deciding how to separate them. Let’s start with identifying the functions of government.

In 1787, when the Constitution was written, separation of powers was already a well-traveled idea. The traditional British version of separation of powers, designed to curb the power of the king, divided the idea of government into two functions: the power to make new laws and the power to carry out existing laws. Parliament (divided into a House of Commons, controlled by the emerging wealthy merchant class, and the House of Lords, controlled by the landed aristocracy) was given the exclusive power to make new laws, while the king and his men (they were always men) had exclusive power to carry out the laws.

Judges weren’t seen as exercising a separate “power.” Rather, the lower court judges were lumped in with the king’s men, engaged in carrying out the laws made by Parliament, while the high court judges sat as a committee of the House of Lords.

To this day, British judges lack a separate power-holding status. That’s why British judges—even high court judges—still can’t challenge acts of parliament, such as press censorship laws, as violations of Britain’s unwritten constitution.

Inspired by Montesquieu, the Founders pushed beyond the British model. Instead of stopping at two powers—the power to make new law and the power to enforce the law—the Founders added a third function of government: the power to resolve disputes (the Founders called them “cases or controversies”) over exactly how the law applies in a particular setting. The Supreme Court calls it “the judicial power and duty to say what the law is.” It’s where the power of judicial review comes from.

Once they had identified the three functions or powers of government, the Founders then decided which government officials should be empowered to carry out what power. They used two basic formulas. First, they made sure that no single official or closely connected set of officials could exercise more than one function (or power). They called that the principle of negative separation. Under negative separation, it doesn’t matter who gets to exercise the power in question as long as the official doesn’t also control another power. You get to exercise only one power.

Then they allocated each function (or power) to the government officials who were likely to carry out the function well. That’s called the principle of positive separation. So, as with the British model, the exclusive power to make new law was given to the legislative branch—a large, bicameral, popularly elected national legislature capable of navigating the complex trade-offs and compromises needed to make the law for a disparate, populous nation.

The power to enforce the law was given to the executive branch, headed by the president, a single person indirectly elected by the Electoral College, capable of engaging quickly in robust and efficient action to carry out Congress’s will.

Finally, the new power to resolve “cases and controversies” was given to a judicial branch, headed by the chief justice of the Supreme Court, made up of life-tenured judges nominated by the president and confirmed by the Senate, capable of accurately ascertaining and applying the rule of law without fear or favor.

In setting up their version of separation of powers, the Founders were obviously doing three things—negatively treating the power of the national government like a dangerous bomb, much too lethal to be entrusted to a single person or branch; positively allocating each of the three separated powers to officials who were organized to allow them to carry out those powers independently and well; and, finally, providing the politically vulnerable with access to a level playing field in the federal courts through the process of judicial review. It’s an elegant, if cumbersome machine.

The Founders’ complex separation-of-powers machine works well, though, only if the underlying mechanisms of democracy are also working well. If large numbers of poor voters of color are disenfranchised; if representative democracy breaks down in the Senate because voters in rural, predominantly white states are radically overrepresented compared to voters in urban, more diverse states; if representative democracy breaks down in the House because rampant partisan gerrymandering makes it necessary for Democrats representing urban constituencies to win the national legislative elections by more than 10 percent in order to secure a majority in the House; and if democracy breaks down in the Electoral College because its membership is skewed to favor states with smaller, rural, white populations, resulting in the repeated election of presidents who lost the national election by millions of votes, separation of powers won’t work very well, either.

As with everything else that ails American democracy, therefore, the remedy must begin with repairing the cracks in the pillars of democracy. While the democracy repair work is going on, though, it’s important to concentrate on making separation of powers function as well as it can, especially in an era with a power-obsessed president who seems to recognize no limits to his overweening ambition. Two recurring problems will arise.

First, what happens when the Founders’ negative separation, or the refusal to give an official too much power, conflicts with their positive separation, the allocation of power to officials most likely to perform it well? Deciding who has power to initiate military combat is a classic point of tension between positive separation theorists, who stress the need for immediate, decisive action by the president to avert a national security crisis, and negative separation theorists, who, worried about the ability of a single person to plunge the nation (and the world) into nuclear war, insist on both congressional and presidential cooperation before launching America’s military might.

How should the “war power”—the power to use lethal force abroad—be allocated when values of negative and positive separation collide? It’s clear that the Founders tried to follow both classic negative and positive separation-of-powers rules in allocating the war power. Article I, Section 8, gives the power to declare war to Congress, while Article II gives the power to act as commander in chief of the armed forces to the president. Thus, Congress decides whether to change the military status quo by authorizing the use of lethal military force, while the president decides how to deploy and use the military force.

But what happens when the president decides on his own to launch missiles against Syria, to send hundreds of thousands of troops to Vietnam, or to wage a never-ending worldwide war against terrorism in Afghanistan, Yemen, and who knows where else, without congressional authorization? And what happens if he decides to up the military ante by using nuclear weapons? Must Congress authorize such use of military force abroad? What form should such an authorization take? Must the authorization precede the use of force? What about defensive emergencies? Who gets to pull the nuclear trigger? And what is the role of the Supreme Court in enforcing the separation of powers against the president’s allegedly unconstitutional unilateral use of lethal military force?

The Supreme Court has consistently ducked the war powers issue. The justices never summoned the will to pass on the constitutionality of the undeclared Vietnam War. The Court’s timidity has vested virtually uncontrollable de facto power in the president as commander in chief of the armed forces. I believe that it verges on the suicidal to grant the unilateral power to end life on earth to a man as flawed and mentally unstable as Donald Trump. If you do only one thing to defend separation of powers in the time of Trump, contact your senators and congressional representatives and implore them—no, direct them, on pain of being denied reelection—to stiffen congressional limits on unilateral executive power to make war, especially nuclear war.

Another point of tension between negative and positive separation of powers is the modern, post–New Deal administrative state itself. As we’ve seen, the Founders created a government machine with three parts—legislative, executive, and judicial—and gave each part one (and only one) power. Where do administrative agencies such as the Securities and Exchange Commission, the National Labor Relations Board, or the Federal Communications Commission fit into the Founders’ tripartite structure?

The story we tell ourselves is that, as a matter of both negative and positive separation, the administrative agencies are just part of the presidentially supervised executive branch, with the duty to enforce the laws made by Congress, subject to judicial review by the federal courts.

But then we interfere with the president’s power to appoint or remove administrative officials, allow Congress to enact a vast body of laws that are so ambiguous that they fail to give administrative official guidance on how to act, and strip the federal courts of the power to exercise judicial review over large aspects of the administrative state. The net result is the slow emergence of a “fourth branch” of government, staffed by unelected administrative officials who make new rules, adjudicate disputes, and enforce regulations free from effective judicial supervision.

Defenders of the administrative state argue that in the modern world, we need the expertise, independence, and sheer bulk of the administrative agencies to govern effectively in an immensely complex world, even though that means vesting administrative officials with more than one power. Opponents argue that vesting unelected officials with the complete power of government is the road to tyranny.

Unlike the war powers debate, which has a single right answer—enforce negative separation against the president—the disagreement over the administrative state requires a more nuanced analysis, though one that is not beyond the capacity of ordinary folks. In the end, it’s up to you—not nine Platonic guardians on the Supreme Court—to decide whether negative separation-of-powers principles should be bent in order to permit administrative agencies to function as efficient regulators of big business. That’s a hard question, but it’s too important to leave the answer solely to judges, lobbyists, and politicians.

The second recurring problem is distinguishing the making of a new law (which must be done by Congress) from simply changing the way an old law is interpreted or enforced (which can be done by the executive). For example, when President Obama announced that he would no longer enforce the immigration laws against the more than one million Dreamers but would instead issue executive regulations regularizing their immigration status, was the president unilaterally making a new law in violation of the separation of powers or simply making executive choices about how existing immigration laws should be implemented and enforced?

Don’t feel too bad if you find it hard to answer the question. The Supreme Court split 4–4 on it. Surprise: the Court’s four Democratic justices backed President Obama, and the Court’s four Republican justices opposed him. (Want to bet what Brett Kavanaugh will do?)

Ideally, the answer should not depend on whether you agree or disagree with the president’s policies or whether you happen to support the president who happens to be in the White House. If separation of powers is simply a proxy for a justice’s political preferences, we might as well stop pretending that the doctrine does any real work except to license political support for or opposition to a sitting president. I believe there is a more value-neutral way to approach hard separation-of-powers issues like the Dreamers without getting trapped in the definitional or partisan swamp.

Rather than agonizing over the metaphysical question of whether a challenged action is essentially law-making or law-enforcing, I find it helpful to go back to my seventh-grade civics notes about why we adopted separation of powers in the first place. The core value at the heart of separation of powers is keeping any single official from getting dangerous unilateral control of the throttle on the democracy train. For me, therefore, the key to evaluating a separation-of-powers decision is to ask whether, when the smoke clears, a single official or branch is seeking to assemble and exercise two or more of the three separated powers in ways that vest that official or branch with dangerously concentrated power.

If the answer is yes, I would not budge from a finding of unconstitutionality, even if officials argue that it would be much more efficient to vest more than one of the powers in a single person. Under my (perhaps overly) simplified approach, it doesn’t matter which branch is trying to exercise more than one power. So back in 1952, when President Truman unilaterally ordered nationalization of the nation’s steel mills during the Korean War to head off a steel strike that had potentially disastrous military consequences, his own Supreme Court appointees forced the president to back down because he was asserting the dangerously concentrated power to make a new law about how to deal with disruptive strikes during wartime, as well as the power to enforce the new law by military force.

Similarly, when President George W. Bush’s lawyers argued that Congress could strip the federal courts of power to resolve legal challenges (called writs of habeas corpus) filed by detainees at the United States military prison at Guantánamo Bay, Cuba, the Supreme Court refused to allow Congress to exercise both the power to enforce the laws and the power to resolve disputes about the law’s meaning and application.

When Congress enacted a campaign finance law granting the power to appoint four of the six members of the Federal Election Commission to ranking members of Congress, the Court struck down the law because Congress was seeking the dangerously concentrated power to make a new law while retaining significant control over its enforcement. And when Congress sought to pass resolutions vetoing administrative regulations with which it disagreed, the Supreme Court struck down the congressional vetoes because, having made a new law, Congress was seeking a dangerously concentrated power to keep a finger on decisions about how to enforce it.

Finally, when federal judges claimed power to create judge-made crimes, or to make new federal common law in noncriminal cases, the Supreme Court correctly said no on both occasions because it would have given federal judges both a dangerously concentrated power to make new laws and the ability to resolve disputes about the laws’ meaning and applicability.

That’s the classical negative separation model in operation: check to see whether a single official is exercising at least two of the three powers in ways that generate a potentially dangerous concentration of government power in a single group of officials, and if so, blow the whistle and don’t back down. And it shouldn’t matter whether or not you agree or disagree with what the government is trying to do.

My seventh-grade civics notes end here. Frankly, the law could do worse than end here, too. Unfortunately, though, we can’t wrap up where my 1953 notes run out. It’s more complicated today because the classical tripartite vision of separation of powers embraced by the Founders over two hundred years ago has suffered more than a few dents over the years.

Most dramatically, as I’ve noted, since the New Deal of the 1930s, multiple newly minted executive agencies such as the Securities and Exchange Commission and the National Labor Relations Board routinely promulgate new rules in the form of regulations implementing vague congressional statutes. These agencies also use in-house enforcement agents to enforce the agency’s regulations and, initially at least, resolve disputes over the facts and the meaning and applicability of statutes and rules in their own internal courts. By my count, that boils down to one group of executive branch officials under the control of the president with power to exercise all three functions of government—a separation-of-powers nightmare.

The Supreme Court seeks to maintain a modicum of separation-of-powers discipline over the post–New Deal administrative agencies by exercising judicial review over the constitutionality of administrative agency action. To that extent, the Founders’ original model has held. But, except in constitutional cases, judicial control over administrative agencies has atrophied. The truth is that Congress has given away much of its lawmaking power to the executive branch by enacting hundreds of ridiculously ambiguous statutes that delegate enormous discretion to the executive officials charged with enforcing them, and the Supreme Court lets Congress get away with it. Then, to make matters worse, the Supreme Court has decided to grant deference (there’s that word again) to the views of administrative officials about the scope and exercise of their vague statutory powers. That allows administrative agencies to, in effect, decide the limits of their own power to make new law. Finally, in non-Constitution-related settings, the Supreme Court has granted administrative agencies virtually unreviewable power to find the facts in disputed cases, virtually ousting the jury from the administrative process.

The one-two-three punch of extremely vague congressional authorizations, judicial deference to an administrative agency’s interpretations of vague laws, and transfer of much of the judiciary’s fact-finding function to agency adjudicators has concentrated vast power in the executive branch, operating under the president’s supervisory thumb. The Time of Trump may be an ideal moment to begin rescuing the Founders’ vision of separated powers from the slow accretion of dangerously concentrated power in the executive branch.

There’s nothing like an unstable president to generate sympathy for negative separation-of-powers doctrines that limit the president’s ability to exercise enormous executive power through administrative agencies. Maybe the Supreme Court should force Congress to provide more precise statutory guidance to administrative agencies. Maybe the justices should reassert the power to say what vague delegations of statutory power to administrative agencies really mean, instead of deferring to the agencies. Maybe the Court should subject fact-finding by administrative officials to review by a federal judge, or perhaps even a jury. Maybe it should do all three.

We’d be safer for it—but at a cost. When we weaken the administrative state because we are afraid of its concentration of powers, we strengthen the hand of the powerful private players that the agencies are supposed to regulate. In many ways, the growth of the administrative state into a separation-of-powers nightmare has been the result of Congress’s failure to do its job. When Congress doesn’t act in settings crying out for government regulation, the president must step in. When Congress acts by passing absurdly ambiguous laws delegating vast discretion to agencies, the agencies have no choice but to do the best they can. Unless voters compel Congress to fulfill its responsibility to be the sole organ to make new law by enacting thoughtful, relatively precise laws for the agencies to enforce, the cure of negative separation may be worse than the disease of concentrated agency power. In the end, it’s your call, enforceable through the democratic processes through which Congress and the president are elected, and the deferred democratic process through which Supreme Court justices are placed into office.

My seventh-grade-civics version of classical negative separation of powers is dented—but it is not completely broken. The touchstone is still whether there has been an unduly dangerous concentration of powers in the hands of a single branch. Don’t leave it entirely to the lawyers and an opaque process of judicial review to decide how the modern, somewhat dented version of separation of powers should function in the Time of Trump.

8

Applying Separation of Powers in the Time of Trump

Five Test Cases

We’re now at a point where we can assess the thrashings of the current very large presidential bull in the separation-of-powers china shop. This isn’t just an academic exercise. As we’ve seen, we start with a dangerously bloated executive branch far more powerful than the Founders imagined, and a dangerously unstable man wielding that enormous executive power.

Every time Trump crosses the separation-of-powers line and seeks to accumulate yet more unilateral power, he is one step closer to a point of no return where the concentration of power in the hands of an unstable president threatens our constitutional republic. My fear is that craven Republican legislators can’t be counted on to exercise an effective separation-of-powers check. That leaves an informed public and the Supreme Court as the only two games in town.

The following five case studies drawn from the first eighteen months of the Trump presidency—the overwhelmingly Muslim travel ban; the Mueller investigation into Russian interference in the 2016 elections; the setting of immigration policy, especially for the Dreamers and asylum seekers; the status of government regulations designed to protect the environment; and the struggle between Congress and the president over whether to build the Great Wall of Trump—allow us to assess the degree to which powers have remained effectively separated. They also offer opportunities to think about how the Supreme Court, Congress, and average citizens can tighten the separation-of-powers brakes on the democracy train.

THE TRAVEL BAN

As one of his first acts as president, Donald Trump delivered on an ugly campaign promise to bar Muslims from entering the United States. Six days after his inauguration, the new president unilaterally issued an executive order preemptively blocking 180 million nationals of six predominantly Muslim nations from entering the United States as immigrants, tourists, students, or employees. As successful challenges to the Muslim travel ban careened through the lower federal courts, the president scrapped the first, hastily prepared, legally indefensible version and issued successive amended executive orders and presidential proclamations barring Muslims, finally settling on a complex executive order blocking entry into the United States indefinitely by some or all of the nationals of six overwhelmingly Muslim nations—Iran, Syria, Yemen, Chad, Somalia, and Libya—as well as two non-Muslim nations, North Korea and Venezuela.

Understandably, given Trump’s crude campaign statements appealing to religious bigotry about the necessity of closing the border to Muslims, public discussion and criticism of the travel ban centered on allegations of religious bigotry, with little public discussion of the constitutionality of the president’s insistence on acting unilaterally in disregard of limits on presidential lawmaking imposed by the separation of powers.

The president denied that the travel ban was—or is—an act of religious bigotry, insisting that he was seeking to protect the security of the United States by imposing blanket entry bans on travelers from nations deemed at risk of harboring substantial numbers of ISIS, Taliban, or Al Qaeda terrorists, and where reliable information permitting trustworthy individualized screening is difficult or impossible to obtain. Trump’s critics scoffed at his attempt to articulate a religiously neutral explanation, pointing to four factors: the ban’s dramatic, predictable impact on the ability of as many as 180 million Muslims to visit the United States; a series of openly bigoted anti-Muslim campaign statements made by the president promising to close the border to Muslims; the long-standing existence of an effective pre-entry vetting process capable of screening out potential terrorists; and the utter lack of any evidence indicating that nationality correlates with risk of terrorist behavior.

Given his anti-Muslim tirades, I’m prepared to believe that Donald Trump was motivated by religious bigotry when he issued the travel ban. But what if Trump’s motives were an untidy blend of concern over national security, concern over the effectiveness of existing screening procedures, a desire to please his rabidly anti-Muslim base, and a healthy dollop of anti-Muslim bias of his own? As a legal matter, should it be necessary to decide which motive predominated? How can you possibly tell?

In Trump v. Hawaii, five Republican Supreme Court justices (including Justice Kennedy and the newly appointed Justice Neil Gorsuch, occupying the seat that should have been filled by President Obama’s nominee, Merrick Garland) decided to ignore the apparent religious bias at the core of the travel ban and to defer to the president’s other alleged motive—protecting national security. The four Democratic justices dissented.

We’ve already seen how dangerous it is for the Supreme Court to shirk its responsibility to enforce the Constitution by granting excessive deference to the president, especially in the name of national security. Excessive Supreme Court deference to the president is what allowed the United States to place Japanese Americans in detention camps during World War II, to jail the leaders of the American Communist Party during the Cold War, and to wage an undeclared war in Vietnam that killed 60,000 Americans and more than two million Southeast Asians. For each of those cases, the Supreme Court was paralyzed by the word “deference.”

While Chief Justice Roberts, in choosing to ignore the issue of religious bias posed by the travel ban, piously disclaimed reliance on the World War II Korematsu decision upholding Japanese American internment—indeed, he claimed to overrule the appalling precedent—he followed the Korematsu playbook to a tee, deferring to the president’s invocation of national security to uphold a shocking exercise in religious, as opposed to racial, bigotry.

Justice Anthony Kennedy, after casting the swing vote upholding the travel ban 5–4, wrote a valedictory concurrence on the eve of his retirement warning that the Supreme Court must be vigilant in protecting the weak against the religious bias and xenophobic hysteria of the strong. Unfortunately, Justice Kennedy didn’t back up his words with the only thing that mattered: his vote to protect them. In the end, he sounded for all the world like Pontius Pilate washing his hands. It was an unworthy end to a Supreme Court career that warrants our gratitude and respect.

Once the five Republican justices had ducked the religious discrimination issue by giving it a deference-based national-security bath, the powerful separation-of-powers objection to the travel ban became the principal legal issue before the Court. In imposing the travel ban unilaterally, without consulting Congress, didn’t President Trump make new law by himself—just as President Truman did back in 1952 when, in the midst of the Korean War, he unilaterally seized the nation’s steel mills and ordered the strikers back to work?

In Youngstown Sheet & Tube v. Sawyer, the Supreme Court made short work of President Truman’s unilateral effort to make new law. Why didn’t the Court do the same with Trump’s?

A platoon of lower-court judges—most of them Democrats—had little difficulty in striking down the unilateral travel bans down on separation-of-powers grounds. In Trump v. Hawaii, though, the five Republicans on the Supreme Court reversed the lower court decisions. Can the Supreme Court’s reversal be defended on principled grounds, or is it a frightening harbinger of a tame Supreme Court in the mold of the 1938 German judiciary, unwilling to defend separation of powers against the will of the leader?

In trying to answer that question, we start with two clear propositions: the explicit constitutional grant to Congress in Article I, Section 8, of the sole power to make the laws governing immigration, and the undeniable fact that President Trump consulted with no one outside his narrow circle (not even executive officials in the State Department or the Department of Justice) before unilaterally imposing the first version of the travel ban, and adamantly refused to seek congressional authorization for the next two versions. Does such unilateral executive action in the teeth of a constitutional delegation of exclusive lawmaking power to Congress require a principled court to hold the travel ban illegal?

President Trump’s lawyers began his defense in the courts by mounting a separation-of-powers counterattack, challenging the power of courts to question a president’s exercise of unilateral power over immigration in settings where national security is at stake. They argued that the president, as chief executive and commander in chief of the armed forces, enjoys inherent, unchallengeable power to seal the nation’s borders to protect us from an armed threat from abroad. Trump’s lawyers then followed up their inherent-power argument with an assault on the power of the Supreme Court to “say what the law is” in settings where the president claims to be restricting the entry of immigrants into the United States in the name of national security. The duty of the courts in such a national security setting, Trump argued, is to defer (that word again) to the president’s judgment about what must be done to protect the nation.

In effect, therefore, in the name of national security, President Trump’s lawyers claimed the right of the president to exercise supreme governmental power over immigration into the United States, with unilateral power to make new laws, enforce existing laws, and resolve disputes about the application of the laws to individuals, without consulting anyone else, including the Supreme Court. It’s hard to imagine a more chilling rejection of the Founders’ commitment to checks and balances.

If the Supreme Court were to accept Trump’s grandiose vision of an all-powerful president with unilateral power to control entry into (and out of) the United States, the idea of separation of powers would suffer irreparable harm. Presidents would be licensed, in the name of national security, to wield the very supreme governing power that separation of powers was supposed to eliminate once and for all.

I wish I could report that the Supreme Court rose up and indignantly rejected the president’s assertion of imperial power. While the lower courts reacted with incredulity and anger to such a dangerous assertion of excessive power, all five Republican justices ducked the issue by saying that it wasn’t necessary to pass judgment on the president’s extreme arguments.

Make no mistake about it: the Court’s failure to rebuff Trump’s assertions of imperial presidential power leaves a ticking time bomb at the heart of the structural Constitution. I have no doubt that Trump will exploit the Court’s timidity by insisting on acting as an imperial president whenever he wishes—until the people push back at the polls.

In fact, Trump is already doing just that, invoking national security to impose tariffs unilaterally on a wide range of products; refusing to entertain asylum petitions in the teeth of contrary congressional rules; seeking to impose more stringent work rules on recipients of food subsidies in the teeth of a congressional refusal to do so; and invoking national emergency powers to build his border wall unilaterally in the teeth of congressional opposition. The Supreme Court’s spineless response is why Trump believes he can get away with threatening to issue an executive order purporting to abolish birthright citizenship for children of undocumented aliens born in the United States.

Trump seems confident that a tame Supreme Court will continue to roll over in the name of deference to unilateral presidential actions assertedly aimed at protecting national security. The frightening thing is that, based on the five votes failing to reject the idea of imperial presidency in the travel ban case, he may be right.

Trump’s fallback separation-of-powers argument in defense of the travel ban was more conventional. The president argued that, in issuing the ban unilaterally, he was not making new law at all, but simply enforcing existing law by implementing Congress’s decision in 1952 to pass a law delegating unlimited power to the president to bar entry into the United States of anyone he deems detrimental to the national interest. It is true that Congress made no effort in the 1952 law to define what it meant by “detrimental,” leaving Trump free to argue that he has been given a blank check to ban anyone he wishes for any reason.

If the 1952 statute actually authorized the president to exercise such an unfettered discretionary power, the statute itself should be deemed to violate separation of powers because it unconstitutionally delegates Congress’s exclusive lawmaking powers over immigration to the president. A Supreme Court that genuinely respected separation of powers would instruct Congress to go back to the drawing board to give the president real policy guidance, not a blank check. Ironically, had he lived, Justice Scalia might well have rejected the president’s blank-check argument. Before his death, Scalia had for years campaigned for a renaissance of the so-called delegation doctrine, which once forbade Congress from giving away (delegating) to the president its exclusive power to make new law. I think Scalia was right. The last time the Supreme Court invoked the delegation doctrine was in 1935 to strike down FDR’s National Recovery Act.

At a minimum, any president who wished to implement the 1952 statute in a manner consistent with separation of powers should have been required to make specific findings on what he or she meant by “detrimental,” and show why the presence of every single one of the 180 million nationals of the six designated Muslim-majority nations would be detrimental to the United States. The lower courts refused to uphold the ban in the absence of such findings. In its rush to deference, the Supreme Court made no effort to narrow the massive grant of discretion to the president in the 1952 statute.

Even more dramatically, in 1965 Congress took away the president’s power under the 1952 statute to use a person’s “nationality” to decide who gets long-term immigrant visas to settle in the United States. In 1924, Congress had adopted an openly racist immigration system that formally locked the issuance of long-term immigration visas into the racial and ethnic mix of the United States as it existed in 1890. Under the 1924 statute, immigration officials repeatedly saw to it that people from white nations, such as Norway, were awarded lots of immigrant visas. Prospective long-term immigrants from nonwhite nations received few or none.

In 1965, troubled by the use of nationality as a stalking horse for racial and religious bigotry, Congress barred the use of nationality as a criterion for long-term visas. But that’s exactly what President Trump did in January 2017, using nationality in a predominantly Muslim nation as a proxy for religious bigotry against Muslims.

I believe that Congress’s expression of hostility in the 1965 statute to the president’s use of nationality as a criterion for granting long-term immigration visas should have blocked Trump’s power to invoke the identical criterion unilaterally in imposing a nationality-based ban on entry into the United States. Just as with President Truman’s effort to seize the nation’s steel mills in the teeth of a prior congressional refusal to authorize such a remedy for breaking a strike, Congress’s 1965 statute should have ended the president’s power to act unilaterally to impose an immigration criterion explicitly rejected by Congress. But it didn’t. While the Democratic-controlled lower federal courts read the 1965 law as limiting the president’s power under the 1952 law, the five Republican justices ignored the 1965 law because, they argued, it dealt with the issuance of immigration visas, not physical entry into the United States.

It borders on the absurd, though, to argue that Congress can prevent the president from using nationality to allocate the issuance of entry visas but then be forced to watch the president unilaterally shred the prohibition by refusing to let the newly protected visa holders into the country. Yet that’s just how the five Republican justices made the 1965 statute disappear.

That’s not a good sign. Remember the 1938 German judiciary.

THE MUELLER INVESTIGATION

From 2014 to 2016, the Russian government mounted a massive intelligence operation designed to elect Donald Trump as the forty-fifth president of the United States. We don’t know exactly why. Some say it was Putin’s revenge against Hillary Clinton for her vocal criticism of Russia’s rigged 2011 parliamentary elections. Perhaps that’s where it started. For whatever reason, once Trump’s presidential candidacy surfaced, Russia became hell-bent on installing Donald Trump as the leader of its principal global rival.

When the Trump candidacy burst onto the scene, the Russians could not believe their good fortune. If Vladimir Putin could have handcrafted an American president incapable of responding effectively to Russia’s resurgence as a dominant world power, that individual would look just like Donald Trump.

Maybe Putin thought he would literally own Trump. The money that rescued Trump’s failing business empire from bankruptcy and collapse in the 1980s was largely Russian, much of it funneled secretly through German banks. Until we see Trump’s tax returns, which to this point he has refused to release, we’ll never know how deeply in hock Trump still is to Russia.

Maybe the Russians thought Trump was crooked, ready to participate in shady scams that would make billions for Putin and his corrupt Russian oligarchs. Trump had already made an ill-gotten fortune by repeatedly cheating his creditors, exploiting the bankruptcy laws, misleading his customers, and turning a blind eye to Russian money laundering through his real estate ventures. We now know that Trump was negotiating with Putin’s henchmen for permission to build an immensely lucrative Trump Tower in Moscow while the presidential campaign was unfolding in the United States.

Maybe the Russians thought Trump was vulnerable to some old-fashioned blackmail. Trump was once the star of a reality TV show, but that would be nothing compared to his alleged starring role on sex tapes Russian intelligence reportedly made during the 2013 Miss Universe Pageant in Moscow. Alert: the tapes may be a hoax. Trump had already paid a small fortune in violation of the campaign finance laws to silence women ready to talk about his raffish sexual escapades; if those tapes or something like them exists, imagine what he’d do to keep them out of the public eye.

Maybe Putin realized that Trump was incapable of sustaining the level of intellectual effort and disciplined attention needed to lead a rival world power wisely. Trump’s handpicked secretary of state called him “a moron” before being pushed out. His hand-picked chief of staff called him worse before getting the sack. His handpicked secretary of defense quit because he got tired of being the only adult in the room with Trump. Putin probably thought that if you have to play diplomatic poker against someone, it’s a good idea to pick the worst card player in the room.

Maybe the Russians thought Trump was so driven by uncontrollable ego and prone to untempered rage that he would plunge the American presidency into chaos and ineffectiveness, weakening our ability to lead the world against Russian expansionism.

Maybe the Russians hoped that Trump would exacerbate the racial, gender, and ethnic fault lines that plague American society, delivering a body blow to Russia’s chief rival. Putin knew that an America at each other’s throats would be no match for a ruthless foreign power like Russia.

For whatever reasons, we now know that once Trump became the Republican nominee, the Russians mounted a fierce social media disinformation campaign, reinforced by the National Enquirer’s tabloid empire, aimed at electing him—and defeating Hillary Clinton—that reached vast numbers of American voters and may well have flipped the 77,000 voters in Michigan, Pennsylvania, and Wisconsin that gave Trump the presidency.

What we don’t know is whether Americans knew about and cooperated in Russia’s apparently successful effort to meddle in the 2016 presidential election. Ordinarily, we would look to Congress to get to the bottom of whether anyone connected to the Trump campaign was playing footsie with the Russians in tilting the 2016 election to Trump. After all, Congress blew the lid off the Nixon Watergate scandal and forced the president to resign under threat of impeachment.

That’s exactly how the Founders assumed separation of powers would work: one branch checks and balances the others. But that’s not how things worked in Washington, DC, during Trump’s first two years in office, where Republicans controlled both houses of Congress and the Supreme Court.

The initial House “investigation” into Russian meddling was a bad joke—an obvious effort to whitewash any connection between the president and the Russian disinformation campaign. The Senate investigation was earnest but ineffectual, hampered by a lack of expertise, resources, and enthusiasm. That’s where the separation-of-powers issues raised by the Mueller investigation come in. When a craven and/or incompetent Republican Congress refuses or fails to investigate alleged criminal wrongdoing by a Republican president, can either of the other two branches—the executive or the judiciary—step in to fill the investigatory vacuum?

The judicial branch doesn’t seem like a viable candidate to lead such a backup investigation. Unlike a European examining magistrate, American judges don’t have the authority, resources, or expertise to conduct investigations into potential criminal activity. That’s a prosecutor’s job. In fact, it would probably be a violation of separation of powers to give judges both the power to decide criminal cases and the power to investigate them.

Federal judges can, however, play an important supporting role by protecting the ability of the grand jury, an age-old hybrid investigatory and adjudicatory institution that straddles the borderline between the executive and judicial branches, to conduct an effective investigation. Once upon a time, grand juries, usually consisting of between sixteen and twenty-three randomly selected citizens, were designed to protect individuals against unjustified criminal prosecutions by making sure that the prosecutor had uncovered enough evidence of guilt to warrant a full-scale criminal trial.

Over time, though, grand juries have morphed into a powerful investigative tool used by prosecutors. Guided by a prosecutor, modern grand juries can demand documents and call witnesses to testify under oath about potential criminal activity. If the grand jury investigation generates enough evidence of guilt, the grand jury, still guided by the prosecutor, can formally charge an individual with a crime, leading to a full-scale trial before a twelve-person criminal jury. While a judge does not direct the grand jury, judges play a crucial supporting role in the grand jury process by formally convening the jury, supervising it to ensure that it complies with the rule of law, enforcing its legitimate orders and demands, and protecting it against outside interference. Although it never became necessary, that may have included appointing a backup prosecutor if the president or his lackeys tried to fire Robert Mueller.

Most of the heavy lifting in a grand jury investigation is done by the prosecutor, a member of the executive branch whose job it is to enforce the law. It is the prosecutor who asks a judge to convene a grand jury. It is the prosecutor who urges the grand jury to demand certain documents and to call certain witnesses. It is the prosecutor who questions the witnesses under oath before the grand jurors and explains the meaning of the documents and other evidence presented to them. It is the prosecutor who explains the law to the grand jury. It is the prosecutor who asks the grand jury to vote a formal criminal charge, called an indictment.

Since the grand jurors know little or nothing about the law, and since grand juries operate in secret without any input from a potential defendant’s lawyers, it is the prosecutor who runs the show. The not-so-funny joke is that a competent prosecutor can persuade a modern grand jury to indict a ham sandwich. In fifty-five years of practice, I have seen only one grand jury reject a prosecutor’s request for an indictment—a courageous refusal by a Nebraska federal grand jury to indict a carload of college students from Colorado arrested while bringing jars of peanut butter to a defiant encampment of Native Americans at Wounded Knee, South Dakota. The prosecutor wanted to indict the students for conspiring to cross state lines to foment an insurrection. We called it the “peanut butter” conspiracy.

Since Congress failed to conduct a serious investigation and since the federal courts could at best play only a supporting role by supervising the grand jury and protecting its prosecutor, the responsibility for getting to the bottom of Russian interference in the 2016 election rested squarely on Justice Department prosecutors and FBI agents, all of whom serve in the Department of Justice, an executive agency under the direct supervision of the president.

That was the separation of powers dilemma faced by Robert Mueller, the “special counsel” appointed to get to the bottom of whether the president or his associates had engaged in criminal activity in knowingly assisting the Russian intelligence assault on the 2016 presidential election. Unlike Ken Starr, an “independent counsel” acting outside the reach of the executive branch who made President Bill Clinton’s life miserable, Robert Mueller was an employee of the executive branch, subject to the president’s formal control. For good or ill, Congress had allowed the independent counsel statute to lapse, leaving the job of investigating the president up to officials of the Justice Department under the ultimate control of the president. Could Trump have unilaterally ended the Mueller investigation, just as he unilaterally fired James Comey as FBI director or unilaterally issued the travel ban? He repeatedly threatened to do so. What power did Mueller have to force the president to testify under oath before a grand jury? Why didn’t he use it? What power did Mueller have to require the president to submit to an interrogation under penalty of perjury? Why didn’t he use it? What power did Mueller have to recommend that a grand jury indict the president, either for conspiring with the Russians to subvert the 2016 presidential election, or criminally obstructing the investigation? Why did Mueller punt on whether the president was guilty of criminal obstruction of justice, leaving the final decision to the president’s hand-picked attorney general? In retrospect, we now know that the president never followed through on his threats to force Mueller out. Why not? We now know that Mueller settled for allowing the president to answer a series of pre-negotiated questions in writing, with no possibility of follow-up questioning. Why? We now know that after forcing the disgorgement of reams of evidence resulting in the indictment of twelve Russian intelligence operatives, Mueller concluded that neither the president, nor his close aides had conspired with Russian intelligence to subvert the election. But we do not know the evidence on which Mueller’s conclusion rests. We also know that Mueller, after reviewing the evidence, was unable to decide whether the president or his aides had criminally obstructed the investigation. Instead of making the decision himself on whether the president should be accused of criminal activity, Mueller delegated the final call to the president’s hand-picked political appointee, Attorney General William Barr, who had campaigned for the office by arguing that the Mueller investigation was unwarranted. Why did Mueller stop short of making the call himself? We will never know the answers to those questions until Mueller’s report is made public. And that will be up to Congress and the Supreme Court. It will be a cold day in July when William Barr voluntarily releases anything that harms his boss.

In assessing the importance of knowing why Mueller pulled up short, it’s necessary to ask what his powers really were. In seeking to answer that question, we start with four uncontestable propositions. First, the Russian effort to manipulate the outcome of the 2016 presidential election was unquestionably criminal—not necessarily because of what the Russians said and did (ugly as it was), but because of what they failed to say. By operating in secret and through phony names, the Russians disinformation agents lied about who the real sources of the fake social media posts were, failed to register as foreign political agents, and failed to report their massive pro-Trump expenditures aimed at influencing the outcome of a presidential election. That’s three federal felonies by the Russians, added to Trump’s felony in directing Michael Cohen to violate the campaign finance disclosure laws by secretly using Trump’s corporate funds to pay women to stop them from talking about Trump’s sexual escapades on the eve of the election.

Even if every ugly, divisive thing the Russians said during the disinformation campaign was true (a highly doubtful supposition), and even if Americans have a First Amendment right to hear ugly electoral speech from foreign governments (as I think they do), Americans also have a right to know when a foreign nation (or a presidential candidate) is seeking to manipulate our electoral process. So, while Americans who admire Vladimir Putin enjoy a First Amendment right to hear from him, folks who don’t like or trust Putin have an equally important First Amendment right to know when Russian intelligence agents are behind political propaganda aimed at swinging a presidential election.

Second, Mueller uncovered substantial evidence warranting grand jury indictments against twelve Russian military intelligence agents and several Russian satellites of Putin in connection with the disinformation campaign. Any reasonable American prosecutor in possession of evidence of clearly unlawful election meddling by Russian agents would be shirking her sworn law enforcement duty if she did not seek to learn whether Americans, including Donald Trump and his campaign staff, were complicit in the Russian disinformation operation. As a matter of standard prosecutorial practice, repeated communications between top Trump campaign aides and agents of the Russian disinformation campaign not only justified but compelled prosecutors to follow the trail of possible criminal bread crumbs wherever the trail might lead, even right up to the president’s desk. We now know that Mueller eventually decided that the evidence of communication between persons in the Trump campaign and Russian intelligence agents was not strong enough to establish criminal activity. We are owed an explanation of what the communication consisted of and why it was not sufficient to establish criminal activity.

Third, although no separation-of-powers issues complicated Mueller’s executive-branch duty to enforce the law by investigating possible violations of the criminal law by Russian agents and American politicians, efforts to investigate the president were chock-full of separation-of-powers problems.

Robert Mueller, serving as a special counsel pursuant to Justice Department regulations, was unquestionably a member of the executive branch, headed by the president, even though his job title was “special counsel.” Under classical separation of powers, Congress makes the laws requiring mandatory disclosure of a Russian speaker’s identity and campaign spending, but presidents get to call the shots about how the disclosure laws are enforced. Remember President Obama’s arguments in the Dreamers controversy.

In an ordinary criminal investigation, that would be the end of the matter. Trump, as president, would have unquestioned power over the Mueller investigation, just the way Trump, as president, would have had unquestioned power over implementing the 1952 and 1965 immigration laws in the travel ban case. Trump could have ended the investigation, limited it, or fired Mueller, just as he fired Comey. Period.

But when it is the president—or people close to the president—who may have violated the criminal law, such a rigid application of classical negative separation-of-powers theory suffers from obvious creaks in the joints. Until Trump, the unwritten rule had been that when the president or a close associate is the target of a criminal investigation, the president should cooperate with a full investigation by the FBI and a federal prosecutor and let the criminal chips fall where they may. Maybe an Abraham Lincoln (or a Barack Obama) would possess the self-discipline and deep sense of ethical obligation needed to set the FBI on himself or his close associates, but most of us would fail that ethical test. Donald Trump never even got a copy of the ethics test paper. Our forty-fifth president has never heard of an ethical norm that can’t be twisted to his own advantage.

Thus, adhering to strict separation of powers in the Time of Trump would almost certainly have resulted in a presidentially controlled, phony investigation of Russian meddling designed to whitewash the president. The Republican members of the House Intelligence Committee, headed by Devin Nunes, have already shown us what such a phony whitewash would look like.

Fourth, the fact that the Russians secretly, even unlawfully pumped ugly and divisive speech into the 2016 presidential election campaign with the aim of enhancing Trump’s chances of winning does not call into question the legal validity of Trump’s election victory. The content of the Russians’ electoral garbage wasn’t materially different from the electoral garbage poured into the campaign by Americans. Too much of the 2016 presidential election took place in Donald Trump’s political sewer. In the end, the Russians merely added to and exacerbated the sludge that Americans were all too happy to pump into their own electoral process.

It’s fair to speculate about whether and how much the Russian effort assisted Trump. It’s even fair to assert that the Russian campaign may have put him over the top. It’s also fair to prosecute anyone who cooperated with the Russians in refusing to identify themselves. But there is no justification for questioning the electoral result. Sixty-three million Americans elected Donald Trump as the forty-fifth president of the United States. He is legally entitled to exercise the full powers of his office, whatever the dents in his democratic imprimatur.

The $64,000 question that Mueller sought to answer is whether Trump or his close associates knew about and/or played a role in the Russian deception campaign. If Trump was, in fact, personally complicit in secretly using Russian criminal disinformation to gain the presidency, he is guilty of multiple felonies that fall into the category of “high crimes and misdemeanors.” If that’s what he did, he should be impeached, removed from office, and then indicted. Only a searching investigation could hope to get to the bottom of that factual swamp. But how would Mueller, a member of the executive branch, conduct such a searching investigation of the president if separation of powers grants Trump, as president, the power to squelch it?

We start with the fact that Mueller possessed unquestioned authority to demand that the president—or anyone else, including Michael Cohen, the president’s personal lawyer—turn over potentially incriminating evidence for use by a federal grand jury, even if that put Mueller in the strange position of issuing orders to his nominal boss.

In the Nixon tapes case, the special prosecutor (the title then used in the Justice Department regulations) directed Richard Nixon to turn over the Watergate tapes for use before the federal criminal jury trying seven of the president’s close advisors for planning, executing, and covering up the Watergate break-in at Democratic Party headquarters. President Nixon argued that, as president, he could not be directed by a court to follow orders issued by an inferior official of the executive branch. Such a dispute, Nixon claimed, was an intrabranch squabble beyond the power of the courts.

In United States v. Nixon, four Republican justices joined with four Democratic colleagues to reject that argument unanimously (Justice Rehnquist did not participate). The justices noted, first, that the evidence was demanded on behalf of a judicial body, a petit (criminal) jury; and second, that unless and until the Justice Department regulations were changed, the special prosecutor was authorized to demand the tapes on behalf of the criminal jury. If the special prosecutor had power to force the president to turn over the Watergate tapes to a criminal jury, Robert Mueller, as special counsel, almost certainly had power to force the president—just as he forced the president’s lawyer—to turn over evidence to a grand jury. What we don’t know is whether Mueller used all of his power.

It’s also likely that, based on Supreme Court precedent established during the extended investigation into President Bill Clinton’s sex life, Mueller had the power to force the president to testify under oath before a grand jury, or, in the alternative, to submit to a personal interview with Mueller’s staff, under oath. In 1994, after his election as president, Bill Clinton was sued by Paula Jones for allegedly sexually harassing her while he was governor of Arkansas. Clinton argued that, as a sitting president, he could not be sued for damages in a federal court until he left office. He demanded dismissal of the Jones lawsuit, or at worst a stay of all judicial proceedings, including pretrial discovery under oath, until his term of office expired. In 1997, after Clinton’s reelection, five Republican justices joined four Democratic colleagues in unanimously rejecting the president’s claim to be above the law, even temporarily.

No separation-of-powers bar exists, ruled the Supreme Court, to a private lawsuit for damages against a sitting president in federal court for alleged actions having nothing to do with his official duties, especially when the allegedly unlawful conduct occurred before he became president. Jones’s lawyers, seeking to bolster her story, then sought to question Clinton under oath about other alleged sexual escapades, especially his relationship with a White House intern, Monica Lewinsky. When Clinton falsely denied any sexual impropriety, he was charged with contempt of court for lying under oath and was eventually forced to resign from the Supreme Court bar.

After Jones’s lawsuit was settled for $850,000, an independent counsel outside the ambit of the Justice Department launched a criminal investigation into Clinton’s alleged perjury and obstruction of justice, requiring the president to testify under oath before a grand jury. Based on conflicts between the president’s grand jury testimony and his testimony in the Jones case, the independent counsel recommended impeachment proceedings. The Republican-controlled House voted a presidential bill of impeachment for only the second time in the nation’s history. President Andrew Johnson was impeached in 1868 and acquitted in the Senate by a single vote. In 1973 President Nixon resigned to avoid an impeachment vote.

The Republican-controlled Senate failed to convict President Clinton by the required two-thirds vote, with fifty Republican senators voting to remove the president from office for obstruction of justice and forty-five Democrats, joined by five Republicans, voting to acquit.

So, based on Clinton v. Jones and its aftermath, Mueller could almost certainly have forced President Trump to testify before a grand jury or be questioned under oath by the special counsel about his behavior before he became president and his private behavior after he took office.

The Clinton precedent is complicated, though, by the Supreme Court’s earlier decision in Nixon v. Fitzgerald, where five Republican justices voted to grant Richard Nixon complete immunity from suits in federal court seeking damages for official actions taken in the discharge of his duties as president. Three Democratic justices and one Republican justice dissented. Recall that Nixon was immunized from criminal liability by President Ford’s pardon.

Connecting the Supreme Court dots, illegal conduct prior to Trump’s inauguration, such as alleged collusion with Russian agents or otherwise knowingly participating in the Russian scam, was undoubtedly fair game for criminal investigation by the Special Counsel. But what about illegal post-election activity allegedly engaged in by the president as part of the discharge of his official duties, such as firing James Comey in an effort to shut down the investigation or unlawfully paying hush money to conceal criminal activity? Since, under Nixon v. Fitzgerald, post-election official conduct would be immune from civil damages, it may well be immune from criminal sanctions also.

The outcome in the Supreme Court would turn on whether the Court’s reasoning in Fitzgerald that a president should not be required to worry about potential damage liability when he performs his official acts carries over to a president not having to worry about being punished for violating the criminal law. It would, I believe, be an appalling mistake to place the president above the criminal law—but then, I’m a Democrat.

Mueller followed the lead of the Clinton independent counsel by issuing a comprehensive report more than four hundred pages long to the attorney general setting forth the facts. Mueller declined to recommend criminal charges against the president or his cronies based on collusion with Russian intelligence agents. He was, however, unable to decide whether to recommend the indictment of the president for criminally obstructing the investigation. The attorney general, William Barr, a hand-picked political appointee of the president who had campaigned for the office by writing a memorandum attacking the Mueller investigation, promptly issued a four-page “summary” of the four-hundred page report purporting to exonerate his boss. Much now turns on the courage and political wisdom of members of Congress who are duty-bound to see that the entire Mueller report sees the light of day. That’s just what happened to the independent counsel’s report on Bill Clinton. The same ground rules should govern Donald Trump. Once the Mueller report is public, the voters can decide whether President Trump deserves condemnation and punishment. The question is not whether Trump is a felon. It is whether he is a liar, a cheat, and a willing beneficiary of a massive campaign contribution from the KGB.

It turns out that Robert Mueller’s failure to recommend criminal prosecution of President Trump rested on two flimsy criminal law loopholes, neither of which should exist. Loophole 1—I call it the “cooperation/conspiracy” loophole—purports to exempt unscrupulous people from criminal liability for encouraging and knowingly benefiting from someone else’s crimes, unless a prosecutor can prove that a deal existed between the crook and the knowing beneficiary. Loophole 2 purports to allow a sitting president to literally get away with murder and escape criminal prosecution because, according to the Justice Department, a sitting president cannot be indicted.

I think that the special counsel was wrong about both loopholes. Based on the facts laid out in the Mueller report, the Trump campaign could—and should—have been indicted for encouraging Russian intelligence agents to break the law in order to benefit from their clearly illegal acts; and Trump himself could—and should—have been indicted for (or at least formally accused of) criminally obstructing the Russian investigation.

Let’s look first at Loophole 1. The Mueller report does a brilliant job of describing the existence of massive Russian intelligence operations designed to hijack the 2016 presidential election for Donald Trump and Vladimir Putin. Mueller demonstrates that Russian operatives mounted multiple massive social media disinformation campaigns reaching more than one hundred million voters designed to help the Trump candidacy; and arranged for the theft and release of hundreds of thousands of damaging, unlawfully obtained emails from Democratic Party officials. Mueller also painstakingly chronicles 140 links between the officials of the Trump campaign and Russian agents, noting the coordination of Russian activity with the needs of the Trump campaign and the enthusiastic response of campaign officials to Russian efforts to support Trump. In the end, though, Mueller argues that merely welcoming criminal activity and knowingly benefiting from it doesn’t add up to a federal crime, unless a deal exists between the crook and the unscrupulous beneficiary of the crime.

I don’t think Mueller was right. If I find out that someone is in the process of burning down a building; meet with the arsonist more than one hundred times to discuss the building; cheer while the arson is going on; and then collect the fire insurance proceeds, the law does not allow me to walk away scot-free just because no deal can be proven. Now, change the crime from arson to criminal interference in a U.S. presidential election. Suppose a hugely wealthy supporter of a candidate for president decides to make a series of secret multi-million-dollar campaign contributions in blatant violation of federal law. Suppose the candidate’s campaign is on notice that the secret contributions are unlawful but welcomes the cash and uses it to secure the candidate’s election. The campaign would—and should—be criminally liable, even if no deal between the crooked supporter and the campaign can be proven.

The Mueller report convincingly demonstrates that the Trump presidential campaign was the knowing recipient and enthusiastic beneficiary of the largest illegal campaign contribution in history—Russia’s investment of many millions of dollars aimed at hijacking the 2016 presidential election for Donald Trump and Vladimir Putin. Why should the Trump campaign be better off legally because the clearly unlawful campaign contribution came from the Russian government instead of from a crooked American supporter? Since, as Mueller demonstrates, the Trump campaign was on notice about the Russian interference in the election; failed to blow the whistle, indeed welcomed the unlawful support; and chose to accept the benefits of the ongoing unlawful action, I think the campaign broke the criminal law. Mueller should have said so.

Loophole 2 protecting the president from indictment for obstruction of justice is even flimsier. Mueller’s stated reluctance to call the president’s obstructive acts “criminal” rested solely on the belief that since a sitting president cannot be indicted, it would be unfair to openly call him a crook because Trump would lack a criminal trial forum in which to defend himself. With respect, that explanation barely passes the laugh test. Not only does the president command a mighty bully pulpit with which to defend himself, the absence of a public criminal trial forum was—and is—Trump’s own fault. He could waive his claimed constitutional immunity from indictment tomorrow. But he won’t. Trump’s like the guy who murders his parents and then seeks mercy as an orphan. Even more fundamentally, the legal authority for the proposition that a sitting president is above the criminal law is awfully thin. Nixon tried the argument and failed. Clinton also tried it and failed. If Trump had been forced to try it in court, I believe that he would probably have failed, too. Remember, though, that Trump’s immunity from indictment lasts only as long as he is a sitting president. The 2020 electorate will act as a nationwide grand jury with the power to remove Trump’s sitting president immunity once and for all. He’ll probably be forced to end his disgraceful tenure by becoming the first American president to pardon himself. In the end, I predict that the report will be made public before the 2020 elections—but not necessarily through the processes of law. This one will be a repeat of the Pentagon Papers—with one or more courageous whistle-blowers and a free press providing the voters with information crucial to an informed choice.

That will place the issue where it ultimately belongs—in the hands of the voters. If American voters, after being informed of the material in Mueller’s report, do not choose to protect the electoral process from foreign subversion by punishing a president who obtained office with the assistance of a massive Russian disinformation campaign and then sought to torpedo the investigation into his conduct, no special counsel or impeachment process can preserve the integrity of our democracy.

THE DREAMERS

Throughout the eighteenth, nineteenth, and early twentieth centuries, the vast frontier, with its seemingly unlimited land and resources, and an American economy chronically short of manual labor, combined to generate a national immigration policy designed to encourage white newcomers to emigrate to the United States. Blacks were welcomed until 1808, but only if whites owned them. Chinese laborers were welcomed to build our railroads, and then kicked out. Korean immigrants were banned entirely.

On the other hand, throughout the eighteenth, nineteenth, and early twentieth centuries, white Christians from northern and western Europe were encouraged to immigrate in the millions. The pattern held into the early twentieth century, which opened with massive waves of immigration—lawful and undocumented—from southern and eastern Europe. Then things changed.

In the years following World War I, the nation’s immigration policy flipped from the Statue of Liberty’s wide-open “golden door” (at least for whites) to a walled racial fortress replete with moat and drawbridge. In 1924, Congress subjected long-term immigration to a national quota system, with the national quota numbers openly rigged to retain the nation’s racial and religious balance as it had existed in the 1890s. Northern European nations were allocated more long-term visas than they could use. Southern and eastern European quotas were often oversubscribed. Asia, Africa, and most of South America received almost none.

When the shadow of Nazism fell across Europe in the 1930s, many Eastern European Jews desperate to escape the coming Holocaust were routinely denied entry because the Polish, Czech, or other national quotas had been filled, and Congress had not yet provided for the temporary entry of persecuted persons seeking asylum.

At the same time, Congress encouraged the temporary entry of tourists, temporary workers, and students from around the world, who brought money, broad backs, and know-how into the country without placing any significant demands on its political or social structure.

In 1965, as we’ve seen, Congress tried to reset what had become a racist immigration clock. It ended the national quota system. Long-term visas were to be allocated on a first-come, first-served basis. Efforts were made to reunite families by favoring the issuance of immigration visas to close relatives of people already admitted to the United States—a process since derided by President Trump (whose wife recently used her status to obtain visas for her parents) as “chain migration.” And, finally, a generation late, Congress permitted the emergency entry of refugees seeking asylum from persecution.

In the years following the elimination of the national quota system, demand for low-wage workers, especially for particularly difficult jobs such as harvesting crops and working in meatpacking plants, encouraged millions of aliens seeking a better life—both documented and undocumented—to cross our national borders. Recurring worldwide plagues of civil, religious, and social strife, made worse by economic desperation and physical devastation, increased the flow of immigrants from around the world, often overwhelming the immigration system and creating a vast underclass of more than ten million undocumented aliens, vulnerable to racism and economic exploitation, and subject to deportation if discovered. An overburdened asylum system fell further and further behind in seeking to identify qualified asylum seekers.

Congress, as usual, dithered. President Obama sought unsuccessfully to encourage a bipartisan congressional compromise over immigration, seeking a middle ground that would harden the border against future undocumented aliens while providing security—even a path to citizenship—to some or all of the otherwise law-abiding undocumented immigrants already in the country. When the president was blocked by Republican senators opposed to granting any form of “amnesty” to undocumented aliens, he focused on the politically most attractive segment of the undocumented population—the approximately 1.2 million young persons who had been brought—or sent—through the cracks in the wall by their parents in search of safety and a better life. President Obama labeled them “the Dreamers.”

He initially sought to persuade opponents of amnesty to accept the Dreamers by pointing out that, as children, they bore no moral responsibility for breaking the immigration laws. When he failed to persuade the Republican Congress to act, President Obama turned to unilateral presidential action, issuing regulations declining to deport Dreamers and granting them a secure, regular immigration status. He even tacked on similar unilateral protections against deportation for their parents to prevent the destruction of families.

Did President Obama violate separation of powers by acting unilaterally to help the Dreamers? If you say no, be prepared to explain why President Trump’s unilateral travel ban is different.

President Obama argued that, given the scarcity of resources available for the enforcement of the immigration laws, it made no sense for immigration authorities to expend the enormous amount of resources that would be needed to deport more than one million young people who were brought into this country as children, had lived exemplary lives here, and were well on the way to becoming productive members of the community. Accordingly, the president defended his unilateral order protecting the Dreamers as a classic exercise of prosecutorial discretion designed to allocate scarce law enforcement resources.

Obama’s critics argued that the regulations were far more than a mere presidential decision to allocate limited resources. They noted, first, that the usual exercise of prosecutorial discretion is an informal “retail” decision by a prosecutor who declines to enforce the criminal law against a particular person in a single case. The Dreamer regulations institutionalized a decision to forgo enforcement on a wholesale basis, directing immigration enforcement agents and prosecutors to refrain from enforcing the law against an entire category of individuals.

Critics noted as well that, unlike ordinary exercises in prosecutorial discretion, the Dreamer regulations established an institutional framework for its implementation, providing criteria for coverage, a mechanism for registration, and, most important, a regularization of immigration status that permitted a Dreamer to work, pay taxes, and enjoy a secure life in the United States. They claimed that such comprehensive regulations were more like the enactment of a statutory exemption from the immigration laws than a resource-driven inability to enforce them.

Given the intense political polarization of the immigration debate, it was only a matter of time until the Dreamer regulations were subjected to a separation-of-powers attack in court. That’s just what happened. The state of Texas, governed by officials intensely hostile to undocumented immigration from Mexico, challenged the legality of the regulations before a handpicked Republican federal judge. When asked why Texas had a stake in the issue sufficient to grant it authority to mount a federal court challenge, Texas’s lawyers answered that, under the Dreamer regulations, a significant number of undocumented immigrants would qualify for driver’s licenses, forcing Texas to expend funds in connection with the processing and issuance of the licenses. Honest—that’s what Texas claimed was the constitutionally necessary “injury in fact” it would suffer under the regulations. I guess someone forgot to tell Texas that the Dreamer kids who received the driver’s licenses would also become eligible to work, and to pay sales, payroll, property, and income taxes, more than offsetting the trivial expense of issuing the licenses.

But then, Texas’s real objection to the regulations was political, not financial. Lawyer-talk about the financial cost was just the usual obfuscation by American lawyers that has given them such a good name. The Republican federal judge selected to hear the case couldn’t wait to get his hands on the Dreamer regulations. He grasped at Texas’s tale of financial woe and, without reaching the difficult separation-of-powers issue, seized on a hypertechnical requirement that new executive regulations should have been subjected to a public notice and comment period before adoption as the justification for a nationwide injunction. The Obama administration appealed to the federal appeals court for Texas, where conservative Republican judges maintained a comfortable majority.

The appeals court focused on the hard question of whether the president was making new law or merely deciding how to implement existing law. A unilateral presidential regulation with such far-reaching categorical impact, encased in an institutional framework, was, the appeals court held, an exercise in lawmaking, something allocated solely to Congress. I’d be willing to bet, though, that the same Republican judges would have upheld President Trump’s unilateral travel ban.

An immediate appeal was taken to the Supreme Court, operating with eight justices after the death of Justice Scalia. The Court split 4–4 along party lines, with the four Republican justices invalidating the Dreamer regulations as new laws promulgated by the executive in violation of separation of powers and the four Democratic justices treating them as valid exercises in executive implementation of existing law. Under traditional Supreme Court practice, while a 4–4 tie is not a final decision on the issues, it does affirm the decision below, leaving the nationwide injunction of the lower court in place.

So Texas was rewarded for winning the race to the closest Republican courthouse by securing a lower court judgment that froze the implementation of the Dreamer regulation, even though Texas couldn’t persuade a majority of the Supreme Court that the president had violated the separation of powers. That’s where things stood when Donald Trump unexpectedly won the 2016 presidential election.

Supporters of the Dreamers had confidently expected that a newly elected President Hillary Clinton would fill the vacant ninth Supreme Court seat with a Democratic justice who would provide a fifth vote upholding the Dreamer regulations. Instead, President Trump didn’t even bother to wait for the Supreme Court. He unilaterally rescinded the Dreamer regulations as beyond the power of the executive branch, while simultaneously expressing sympathy for the Dreamers’ plight and urging Congress to enact legislation rescuing them. Trump then cynically turned the issue into a bargaining chip for his border wall, refusing to support a congressional fix for the Dreamers unless Congress complied with his demands for $25 billion to fund a Mexican border wall, a massive increase in the pace of apprehension and deportation of undocumented aliens, and an end to the program of reuniting families, in favor of a “merit-based” immigration system that would avoid immigrants from “shithole” nations and favor those from prosperous countries such as Norway.

At that point, the Democrats launched a separation-of-powers counterattack, arguing that President Trump lacked power to rescind the Dreamer regulations. At first glance, it seems difficult to invoke separation of powers to challenge a president’s decision to revoke regulations that are, in his opinion, beyond his power to issue. Why shouldn’t the president be allowed to eliminate an executive regulation that he believes may go beyond presidential power?

The answer, so far, lies in President Trump’s characteristically dishonest explanation for rescinding the Dreamer regulations in the first place. In order to shield himself from political criticism for failing to recognize the strong moral and social reasons for sparing Dreamers from deportation, Trump professed support for allowing them to remain in the United States with a regularized status but claimed that he was unable to do anything about it without congressional authorization. He then blocked congressional authorization by linking it to funding his border wall.

In effect, Trump argued that he was reluctantly rescinding the Dreamer regulations because they exceeded presidential power, while simultaneously urging Congress to authorize him to reissue them. Democratic federal district judges in San Francisco, Brooklyn, and Washington, DC, decided to take Trump at his word, overturning a presidential decision to rescind the Dreamer regulations premised on an inaccurate understanding of his presidential powers. They ruled that the Republican Texas appeals court had been wrong in holding that President Obama was making a new law when his administration issued the Dreamer regulations. In fact, ruled the three federal judges, President Obama had merely been making legitimate, unilateral decisions about how the existing law should be implemented.

While all three Democratic federal judges agreed that President Trump is free at any time to rescind the regulations because he disagrees with them, they ruled that he cannot base rescission solely on an inaccurate belief about the scope of his—and President Obama’s—powers as president. Trump’s lawyers then took the unusual step of asking the by now Republican-controlled Supreme Court to review two of the lower court decisions immediately. The Supreme Court, led by the chief justice, rejected the application, routing the appeals through the circuits in the ordinary course, where they currently languish.

My bet is that the pattern will hold. Republican-dominated appeals courts will rule for President Trump. Democratic-controlled appeals courts will rule in favor of the Dreamers. In the end, of course, the fate of the Dreamers will be decided by a Republican Supreme Court. Four Republican justices (including the chief justice) have already shown their cards in voting to affirm the Texas appeals court’s finding that President Obama was improperly making new law, not deciding how to implement existing law. The four Democratic justices showed theirs in voting to uphold President Obama’s power. Want to bet on the votes of Neil Gorsuch and Brett Kavanaugh?

For what it’s worth, I believe that the Texas appeals court was wrong in finding that the Dreamers regulation is a new law, violating separation of powers. It’s a close case, though. An exercise in prosecutorial discretion not to enforce certain laws because of scarce resources is clearly not a violation of separation of powers. But the Dreamer regulations are much more sweeping and elaborate than the usual exercise of prosecutorial discretion. So the issue could plausibly be decided either way. I would break the legal tie by asking whether President Obama’s decision not to deport the Dreamers results in a dangerous concentration of powers capable of causing harm to individuals. That’s what separation of powers is intended to prevent. That’s how the Supreme Court upheld the independent counsel law.

To my mind, a president’s decision, pending final congressional action, to refrain from deporting a vulnerable, morally innocent group of young people does not cause a dangerous concentration of powers. So in a tie case like this I would uphold the Obama regulations. But don’t get too excited. The Supreme Court, with Neil Gorsuch and Brett Kavanaugh, will probably jump at the opportunity to invalidate the Obama regulations as soon as it gets the chance.

It’s worth trying to stave off the inevitable, however, at least until the 2020 elections, in the hope that Congress will finally act or that a new president will find a way out of the impasse. In order to buy time, it will be crucial to throw sand in the gears of any effort to deport Dreamers before new rules can be put in place. It may come down to running out the clock. Here’s one way to do it.

As part of the original Obama regulations, Dreamers were encouraged to come forward and to register for the favorable treatment promised by the president. More than 700,000 young people did so. So the government is sitting on all the information it needs to crank up the deportation machine—information obtained under a false promise of leniency. It’s like enticing someone into pleading guilty by promising a lenient sentence and then backing out of the deal. Government should not be able to ensnare young people—or anyone else—by tricking them into giving officials the information the government needs to deport them by falsely promising that it would be used only to benefit them. There’s a law against that. It’s called equitable estoppel, and it prevents the government from benefiting from its own wrongdoing.

Thus, any effort to deport Dreamers should be met by a nationwide injunction barring deportation unless the government demonstrates that it is not relying on information wrongfully gathered under what turned out to be a phony promise of leniency. That should stall the deportation machine long enough for you—and millions and millions like you—to pass judgment at the polls. In the end, as with the fate of the Muslim travel ban and the impact of the Mueller investigation, the fate of the Dreamers will not be finally resolved as a matter of separation of powers. Their fate is up to you. The Senate managed to assemble fifty-four votes for a deal that would protect the Dreamers and build Trump’s wall on the Mexican border. But, under the current filibuster rules, it takes sixty votes to enact Dreamer legislation. That’s why Obama couldn’t do it. Trump shot the border-wall/Dreamer deal down because he thinks he can hold the Dreamers hostage to more draconian cuts in nonwhite, non-Christian immigration.

In December 2018, President Trump doubled down on his restrictive immigration strategy by shutting down the government in an effort to force Congress to authorize billions of dollars to build a wall on our southern border with Mexico. When Congress refused and the voters turned restive, Trump resorted to authoritarian decree, proclaiming a phony “national emergency” and asserting unilateral presidential power to transfer funds from authorized military projects to build the wall. When Congress reacted by enacting joint resolutions rejecting the existence of a national emergency, Trump resorted to the veto, leaving Congress unable to muster the needed two-thirds vote to override. Unless the Supreme Court intervenes, therefore, nothing can stop Trump from unilaterally imposing draconian immigration policies except the voters. Even worse, unless the courts stop him, Trump will have built a road map for authoritarian presidential governance based on self-proclaimed national emergencies.

He’ll get away with it unless the 2020 elections change the political calculus in Congress and deliver a new Congress and a new president, who will rescind the travel ban, reinstate the Dreamer regulations, and develop an enforceable but humanitarian immigration policy.

THE GREAT DEREGULATION MASSACRE

Democrats don’t like to admit it, but Donald Trump, in his first eighteen months as president, may have presided over one of the most dramatic power shifts in American history. The tax bill he championed funneled vast sums to the wealthy, exacerbating a massive national divide between the very rich and the rest of us. The Trump administration and a Republican Congress also combined to repeal hundreds of executive regulations protecting consumers, the environment, employees, the elderly, the ill, children, small investors, and ordinary internet users. In industry after industry, restraints on harmful, exploitive, or dangerous behavior were gutted or repealed. The net effect shifts massive power to corporate and business leaders, who are today the real rulers of the Trump nation. Acting alone, the newly elected Democratic House of Representatives can’t do much about it.

The power shift took two paths. Congress, acting under a statute from the 1990s, combined with President Trump to wipe out almost every regulation issued in the closing days of the Obama administration. As we’ve seen, ordinarily, under separation of powers, Congress can’t unilaterally undo executive regulations because doing so would hand Congress the dangerously concentrated power of making new laws and controlling how the laws are enforced. But the 1990s legislation provides a framework for cooperative action by Congress and the president to wipe out executive regulations within sixty days of issuance. Since both the president and Congress must agree to erase a recent executive regulation, the 1990s legislation does not necessarily concentrate two powers in a single branch, although it’s still not clear to me why a Congress respectful of separation of powers should be mucking around with regulations at all. Short of winning the presidency in 2020 and reissuing the regulations, there’s not much the Democratic House can do to put that Humpty-Dumpty together again.

More often, though, President Trump and his appointees acted unilaterally, often through political appointees who had worked for the regulated industry prior to Trump’s election, to roll back important regulations protecting the environment, climate, consumers, and health care. Technical objections to the procedures used to alter pre-existing regulations have succeeded in slowing the process of change down in twenty-eight of the thirty legal challenges to Trump’s effort to alter environmental regulations, but eventually Trump’s appointees will get the mechanics straight and obliterate or badly weaken a broad swath of valuable regulations. Neither the use of congressional regulation-stripping legislation nor executive repeal raises a genuine separation-of-powers issue. That’s what presidents do. What one president can do by issuing regulations, another can undo. But—and here’s where the hope for the future comes in—a third can redo.

In the end, the Trump deregulatory revolution is built on separation-of-powers sand. It lasts only as long as Trump is president. Its future is almost entirely in your hands.

OFF THE WALL: THE NATIONAL EMERGENCY LOOPHOLE

The Founders’ idea of separation of powers may have its share of dents in the twenty-first century, but it continues to serve as a significant constitutional brake against a runaway president. The requirement that Congress authorize executive action in advance and appropriate the funds to carry out presidential initiatives gives the legislative branch a potent two-step check on presidential adventures. No congressional authorization; no presidential power. No congressional appropriation; no money to support a presidential initiative.

But President Trump has identified a potential massive “national emergency” loophole in the Founders’ plan that threatens to leave it in ruins. According to our forty-fifth president, all a president need do to concentrate all three powers of government—the power to make the law; the power to enforce the law; and the power to resolve disputes about the law’s meaning—in his own authoritarian hands is to issue a proclamation of national emergency vesting him with power to rule by presidential fiat. President Trump’s decision to throw a “national emergency” tantrum in response to Congress’s refusal to appropriate more than $5 billion to build additional walls on our southern border with Mexico threatens the very survival of our constitutional system.

The president initially refused to sign any appropriations legislation that does not provide funds for his wall, forcing a shutdown of about 25 percent of the federal government, ending paychecks for 800,000 federal workers and thousands of federal contractors, and depriving hundreds of thousands of Americans of needed governmental services. More than three weeks into the government shutdown, President Trump, facing plummeting poll ratings, caved in and re-opened the government without obtaining funding for his wall. But he then declared a national emergency on the southern border, insisted on spending disaster relief funds on the wall in the teeth of Congress’s refusal to grant him funds. Both houses of Congress then voted to reject the phony national emergency, but the president overrode them with a veto. If Trump succeeds in using a national emergency declaration as a substitute for congressional authorization, separation of powers won’t just have a few dents. It will cease to exist. Any president, at any time and for any purpose, can simply throw a national emergency switch turning off constitutional limits on presidential power. Vladimir Putin would smile and welcome Donald Trump to the dictators’ club.

Will Trump get away with trashing the separation of powers? As usual, the problem began small and grew because of congressional willingness to cede power to the president, and Supreme Court failure to defend the separation of powers. The first presidential declaration of national emergency did not occur until February 1917, two months before war was declared on Germany. Acting pursuant to the Shipping Act of 1916, President Woodrow Wilson declared a national emergency permitting him to bar the transfer of American-owned oceangoing ships to noncitizens. Wilson was not attempting an end run around Congress. He was merely seeking to activate a non-controversial restriction that Congress had pre-approved, leaving it to the president to decide when to place it into effect.

Over the years, Congress embraced the Wilson precedent, drifting into the habit of tacking provisions onto statutes authorizing the president to take a congressionally pre-approved action only if the president deemed it necessary to meet a national emergency. By my unofficial count, a national emergency trigger was built into about five hundred statutes. In almost all of them, Congress authorized the president to activate defined regulatory sanctions, usually against foreigners, whenever a “national emergency” required the action. That’s how economic sanctions are usually imposed on nations or foreign nationals. That’s how President Trump has sought to justify his unilateral power to impose tariffs on Chinese products without congressional authorization.

Until now, the idea of presidentially declared “national emergencies” has functioned cooperatively as an “on-off” switch authorizing presidents to decide when, where, and against whom to deploy pre-approved congressional sanctions. In the one hundred years since Congress and President Wilson initiated the process, I know of no setting in which a president has used a unilateral proclamation of national emergency to authorize programs that Congress had refused to support. Giving presidents the power to turn congressionally approved laws on and off is bad enough. Even the best of presidents will be tempted to abuse such a broad power. But giving a president like Donald Trump power to circumvent Congress entirely by acting unilaterally in the teeth of congressional opposition is political lunacy. It is how democracies based on separation of powers die.

Congress tried in 1976 to take the national emergency power back. The National Emergencies Act, signed by President Gerald Ford in the wake of the Watergate crisis, terminated almost all presidentially declared national emergencies and imposed stringent limits on a president’s ability to declare new ones. According to the act as originally written, the president was obliged to report any declaration of national emergency to Congress, which could reject it within fifteen days by a concurrent resolution adopted by a majority vote of both chambers. In 1983, however, the Supreme Court threw a monkey wrench into the National Emergencies Act’s enforcement provision by ruling that a concurrent resolution that is not signed by the president, or enacted over his veto, has no legal effect. Congress then amended the Act in 1985 to require congressional rejection of a presidentially declared national emergency to take the form of a joint resolution of Congress. The problem is that a joint resolution must be submitted to the president for signature or be passed by a two-thirds vote over the president’s veto before it has legal force. Since President Trump predictably vetoed Congress’s effort to use the joint resolution route to block him from declaring a border wall emergency, the National Emergencies Act as currently drafted is just a paper tiger. Congress could rein in the president by amending the act to require affirmative congressional assent to the declaration of national emergency, but that would take a full-fledged new law that would also be subject to a Trump veto. So it’s not going to happen because it will be impossible to marshal a two-thirds vote in both houses of Congress.

But that’s not the end of the story. There will be five crucial legal issues for Supreme Court resolution. The first is whether the Constitution grants the president, as commander in chief and the nation’s chief executive, an “inherent power” to act unilaterally whenever he declares a national emergency. Up until now, the Supreme Court has rejected such a dangerous assertion of unilateral presidential power. That’s what Youngstown Steel was all about. But, ominously, the five Republican members of the current Supreme Court did not reject the president’s “inherent power” argument in the Muslim travel ban case. They simply declined to pass on it.

If the current Supreme Court majority were to recognize an “inherent emergency power” exception to separation of powers, the United States Constitution as we have known it since the founding will cease to exist. I don’t think they’ll do it.

The second legal issue for the Supreme Court is whether any statutory authority for a national emergency declaration exists that would permit the president to shift Defense Department funds to build his wall. The president’s advisors have identified two statutes that may authorize the president to shift Defense Department funds to deal with a national emergency. But both statutes raise serious questions about whether they authorize the president to use a proclamation of national emergency to shift military funds to build a wall. One allows the president to shift money to fund otherwise “authorized” projects. The other allows the president to shift money to build facilities needed to support military activity. The president’s wall is, however, neither authorized nor designed to support military activity. While the president might seek to rely on a 2006 statute authorizing the building of a wall on portions of the southern border, Congress has refused to appropriate funds to further extend the wall. A principled judge should construe the statutes literally to bar the president’s effort to rely on them.

Third, Congress rejected Trump’s phony emergency declaration by reenacting a bipartisan joint resolution rejecting Trump’s declaration. Trump predictably successfully vetoed it.

It’s something of a long shot, but it’s plausible to argue that a joint resolution designed to prevent the suspension of separation of powers cannot be gutted by a presidential veto. The analogy would be to a joint resolution that commences the process of constitutional amendment, a Senate vote on ratifying a treaty or confirming a nominee, or a House vote impeaching the president, none of which are subject to presidential veto.

Fourth, assuming that the president persuades the Court that statutory authority exists and that the joint resolution of Congress rejecting it is subject to veto, the question becomes whether a proclamation of a national emergency in the teeth of explicit congressional refusal to authorize the project can vest the president with unilateral power to act. It has never been used to frustrate the will of Congress. That’s why it would be such a blow to separation of powers if a tame Supreme Court deferred to the president once again in a replay of their supine approach to the president’s unilateral Muslim travel ban.

Donald Trump isn’t the first authoritarian leader to claim the power to dissolve legislative limits on his power by uttering the magic words “national emergency.” Adolf Hitler did it in 1933 in the wake of the Reichstag fire. It was the first step in the demise of German democracy. Make no mistake about it. If Donald Trump gets away with proclaiming a manufactured national emergency to seize unilateral presidential power in the teeth of Congress’s refusal to authorize his behavior, he will deliver a body blow to the United States Constitution. A unilateral presidential border wall, today, against the will of Congress; unilateral presidential responses to global warming tomorrow; presidential emergency decrees on gun violence the day after; preventing the mass murder of fetuses the day after that.

How long before we have presidentially established military internment camps for dangerous political opponents? Lock her up, indeed. That’s how a constitutional democracy based on separation of powers dies.

Finally, the Supreme Court will be asked to review whether a national emergency actually exists. The justices will almost certainly duck that issue by disclaiming the expertise needed to second guess a presidential proclamation of national emergency. But the justices’ skepticism about whether a true national emergency exists—and the fear of setting a precedent allowing the president to eviscerate separation of powers—will, I predict, color their decisions about inherent power, statutory authority, the legal effect of a contrary joint resolution of Congress, and the ability of a president to use national emergency power in the teeth of congressional opposition. In the end, Trump would lose on one or all of those questions.

A GLIMPSE OF THE FUTURE

A steady diet of unilateral presidential decrees flashing on and off depending on who is in office is a terrible way to govern. Think of Donald Trump unbound by limits on his personal power. It’s also inherently unstable; ask the Dreamers. As long as Obama was president, they could rely on a thoughtful regulation designed to open the way to a productive life. Once Trump became president, all he had to do was flip the switch and the Dreamers were back in the cold.

That kind of instability can’t be good for the economy. It’s hard enough to run a business efficiently and humanely in our complex, ever-changing world. It’s damn near impossible when the basic regulations governing your industry are subject to dramatic change every time one president succeeds another. Many business leaders, especially coal and oil producers, are celebrating Trump’s deregulation binge. But that celebration can turn to bitter disappointment under a new president.

Maybe, when progressives get back into power, it will be time to stop governing through short-term presidential orders and executive regulations, even when we control the presidency. It’s long past time to put Congress back to work as the principal architect of new law. Not only does a congressional statute more accurately reflect the will of the people, but statutes can’t be turned on and off every time there’s a new president. It’s time to elect people to the House and Senate who are willing to shoulder Congress’s separation-of-powers burden to make the law, rather than giving away that power to the president—of either party.

Maybe it’s time for the Supreme Court to stop functioning as an enabler in the erosion of separation of powers, standing by as Congress repeatedly delegates the power to make new law to the executive. Once upon a time, the Supreme Court refused to permit Congress to use vague statutes to delegate lawmaking power to the president and his assistants. I agree with Antonin Scalia that the old anti-delegation precedents should be dusted off and given new life.

Maybe it’s time for the Supreme Court to stop giving away its power to say what the law is. Once upon a time, the Supreme Court accepted the duty to interpret vague congressional statutes granting regulatory power to administrative agencies. Somewhere along the way, the Court gave away that power to the bureaucrats by deferring (there’s that dangerous word again) to executive interpretations of the vague statutes. Once again, I agree with the critics who urge the Supreme Court to take back its classical separation-of-powers role.

Maybe it’s time to rediscover the jury as ultimate fact-finder, even in administrative proceedings. Most Americans exercise direct governing power only three times in our lives—when we vote, when we serve in the nation’s armed forces, and when we serve on a jury. The Constitution protects all three—the First, Fifth, and Fourteenth Amendments protect the right to vote; the Second, Fifth, and Fourteenth Amendments protect the right to serve in the military; and the Sixth, Seventh, and Fourteenth Amendments guarantee the right to a trial before a jury drawn from all the people.

Sadly, as we’ve seen, while the Supreme Court has provided protection for the right to vote and to serve in the armed forces, it has presided over the demise of the American jury. Most criminal cases end in a plea bargain, in large part because under our current sentencing laws prosecutors exercise so much power they can bluff defendants away from risking a guilty verdict. Civil jury trials are virtually extinct because too many cases get thrown out of court before a jury can hear them. Those that survive almost all settle. The Supreme Court has even approved the elimination of the jury from most disputes involving regulatory statutes. So in a dispute before the Securities and Exchange Commission or the National Labor Relations Board, disputed facts will be resolved by an executive official, not a jury of the people. Maybe it’s time for the people to take back the fact-finding power across the board.

My seventh-grade civics notes are available if anyone needs them.

9

Which Shell Is the Power Under?

Federalism as a Protection of the Weak

For most of my career as a civil liberties lawyer, I have viewed the idea of federalism, sometimes called “states’ rights,” as a technique to shield pockets of racism and intolerance from efforts by the national government to protect the weak. There is, however, nothing like having an authoritarian president in the White House, a craven Republican-controlled Senate, and an ideological Republican Supreme Court to make me rethink my lifelong opposition to states’ rights. When, as now, many of the instrumentalities of the national government have become at best indifferent to the idea of equality and at worst hostile to it, the idea of shoring up the powers of state governments, elected by majorities prepared to take equality seriously, suddenly looks much more appealing.

Federalism is the second pillar of what I have called the structural Constitution—the crucial but frequently overlooked provisions of our Constitution that lay out the powers and duties of the various actors in American democracy. As we’ve seen, the first pillar, separation of powers, defines (and limits) the relative authority of the three major components of the national government. Federalism allocates governing authority between the national government and the states (vertical federalism) and among the fifty states (horizontal federalism).

The Founders saw vertical federalism as just another way to prevent the federal government from acquiring too much power. They limited the national government to a laundry list of “enumerated” subjects, most important among them foreign policy, national defense, taxation, and the regulation of commerce between the states (interstate commerce), and gave everything else to the states, especially the powers needed to defend their status as genuine sovereigns and not merely subdivisions of the national government. When the Founders were finished, a narrowly defined slice of governing power was vested in a national government, operating pursuant to separation of powers; an important array of powers was vested exclusively in the states, operating under “republican forms of government”; and a broad spectrum of powers was jointly exercisable by both the states and the federal government, with the federal government getting the last word under the supremacy clause whenever state policy gets in the way of national policy.

One source of potential state power—called “the police power”—pre-dated the 1787 Constitution and didn’t depend on the Founders. British political theory recognized the inherent right of a sovereign entity to protect the life, health, safety, and morals of its inhabitants. The original thirteen states retained their “police powers” when they entered the union, but, like all state power, even the police power must be exercised in compliance with constitutional ground rules—especially the supremacy clause.

The problem is deciding in which pot to put a given exercise of government power. What, for example, counts as regulation of interstate commerce? Thomas Jefferson and Andrew Hamilton couldn’t agree in George Washington’s first cabinet. The Supreme Court was no closer to an answer more than two hundred years later in 2014 when it narrowly upheld and narrowly invalidated portions of President Obama’s Affordable Care Act by 5–4 votes. Five Republican justices (including Chief Justice Roberts) ruled that the power to regulate interstate commerce did not vest Congress with the affirmative power to require persons to buy health insurance. The four Democrats dissented, rejecting the difference between a negative prohibition and an affirmative command. But five justices (the four Democrats, plus Chief Justice Roberts) also ruled that Congress was empowered to impose a tax (not a penalty) on persons who fail to buy health insurance. So the chief justice won that case by a vote of 1–8.

A Republican Congress promptly repealed the tax, leaving the mandate to buy health insurance in place, but removing any legal consequences for failing to obey. Where does that leave the Affordable Care Act today? A Republican federal judge in Texas invalidated the entire act in December 2018, arguing that repeal of the tax left only an unconstitutional mandate. President Trump quickly jumped on board, directing his Justice Department to attack the constitutionality of Obamacare once again in the Supreme Court. Defenders of the act argue, first, that a “mandate” with no teeth does not go beyond Congress’s commerce clause power; and, second, that, in any event, the rest of the Affordable Care Act should survive excision of the mandate. My money is on the chief justice to save Obamacare for the second time.

Conversely, what kinds of powers do the states need to maintain their sovereignty? In Shelby County, five Republican members of the Court thought that Section 5 of the Voting Rights Act, requiring states with a long history of disenfranchising blacks to get federal permission before they changed any voting rule, violated the equal dignity of sovereign southern states because differential treatment of the southern states was no longer necessary to protect black voters. The four Democratic justices dissented vigorously, correctly predicting that as soon as the federal restraints were removed, racists would once again make it as hard as possible for blacks to vote. We’re living with the consequences of that toxic exercise in federalism today as a wave of voter restrictions sweeps the South.

Finally, how do you measure when a perfectly legitimate state policy gets in the way of a federal policy and must give way under the supremacy clause? Lawyers call it the process of preemption. For example, when states decide that imposed consumer contracts requiring compulsory arbitration are unenforceable because they unfairly burden access to the courts, does the state policy in favor of court access get in the way of a 1925 federal statute requiring courts to enforce agreements to arbitrate in settings involving interstate commerce?

In 1984, in a setting where a contract providing for compulsory arbitration had been fairly bargained, the Supreme Court ruled that the federal arbitration statute “preempted” contrary state policy. Five Republican justices then extended the 1984 precedent to all contracts, even if one side has all the bargaining power; the four Democratic justices have consistently dissented. How can an ordinary citizen decide who is right?

The truth is that there is no clear legal answer to many hard federalism issues. From the beginning, we’ve simply made the federalism rules up as we go along. There is no “federalism clause” to construe. Unlike separation of powers, there isn’t even an underlying theory to apply. The Constitution’s text is deeply ambiguous. There was no consensus among the Founders. The Civil War and the post–Civil War amendments radically diminished the power of the states but did not eliminate them. From a strictly legal standpoint, it’s often just a shell game.

If the law of American federalism is just a shell game, why shouldn’t progressives get in the game by taking “states’ rights” seriously to: (1) preserve aspects of state autonomy needed to enable effective resistance to Trumpist policies—think sanctuary cities, protecting undocumented aliens from mass deportation by federal agents; (2) play keep-away, shifting regulatory power to the states from the federal government in order to minimize Trump’s ability to harm the weak and the environment—think control over net neutrality, pollution, consumer protection, and environmental protection; and (3) funnel as much governing power as possible to state majorities willing to protect the weak—think state and local laws providing Uber drivers and other participants in the gig economy with collective bargaining rights over compensation and safety.

Using federalism to protect the weak would be a welcome relief because until now federalism has usually put the power to protect the weak under the other shell. In the beginning, southern slave owners fervently embraced states’ rights because it insulated the dirty business of owning human beings from a growing national antislavery consensus. When, however, free states such as Pennsylvania and Wisconsin acted to protect fugitive slaves, southern slave owners were quick to abandon states’ rights, successfully invoking national power rooted in the notorious fugitive slave clause to override efforts to protect the weak.

In the wake of the Civil War, the former slaveholders rediscovered states’ rights, fighting successfully under its banner for more than a century to frustrate attempts by a national majority to protect formerly enslaved persons and their descendants, who were trapped in hostile white-majority southern states. In the late nineteenth and early twentieth centuries, corporate America copied a page from southern racists, arguing that Congress lacked power to break up monopolies, prevent stock fraud, protect consumers, end price fixing, and limit wage gouging. When, however, progressive states tried to protect vulnerable workers and consumers, the lawyers for powerful corporations pivoted on a dime and rediscovered the dominance of national power.

Things got better beginning in the late 1930s under a Democratic Supreme Court. In 1937, the Court recognized significant power over the economy vested in both state and national majorities. As one federalism shell game ended, though, another began. The “states’ rights” banner was brandished successfully for more than a generation by southern racists seeking to block the enforcement of an emerging national consensus rejecting racial apartheid in the states of the old Confederacy. When at last the southern governors’ ugly campaign of massive resistance to racial equality was rebuffed by a Democratic Supreme Court and a Democratic Congress, “states’ rights” became the right-wing rallying cry for resistance to the Warren Court’s expansive equality-driven reading of the federal Constitution.

Progressives should recognize that federalism needn’t be just a shell game designed to protect the strong. A far better intellectual case can be made that American federalism, like separation of powers and the protection of individual rights, is simply another technique for protecting the weak against the tyranny or neglect of the majority. After all, that’s why we established a judicially enforceable Constitution in the first place.

In every era, a shifting set of extra-legal circumstances has argued for national or local supremacy. Like an accordion, the relative power of national and state majorities has expanded and contracted in accordance with “the felt necessity of the times,” to use the words of Justice Oliver Wendell Holmes. During my lifetime, three powerful social forces have combined to trigger a sustained flow of power from state to national majorities. First, the Great Depression of the 1930s generated enormous pressure to expand both state and national power to regulate the economy. The argument for national regulation was often put in terms of efficiency and superior expertise, but the real need for national norms was to avoid a race to the bottom, an inevitable series of efforts by desperate state majorities to bid for a shrinking pool of jobs by lowering minimum wages, eliminating taxes, gutting safety rules, sacrificing the environment, and ending quality controls. FDR argued that only nationwide floors could slow such a precipitous race to the bottom, which would be destructive to everyone but especially harmful to the nation’s most vulnerable inhabitants.

In 1937, responding to massive electoral victories by FDR and the threat of court-packing, the Supreme Court finally realized that a race to the bottom lowers all boats. Within five years, from 1937 to 1942, a newly Democratic Supreme Court rotated 180 degrees to a new definition of constitutional federalism, moving from a Republican refusal to permit Congress to set uniform national rules governing the economy to a Democratic recognition of national power to regulate even something as local as the amount of wheat a single farmer can grow in his backyard to feed to his own pigs.

At the same time, the newly Democratic-dominated Court rotated 180 degrees in the opposite direction by removing Republican-imposed national “substantive due process” constraints on the power of states to protect vulnerable market participants, including workers and consumers. Such a double-barreled radical shift didn’t take place because the justices got smarter, because they finally discovered a dictionary that correctly defined “interstate commerce,” or because Alexander Hamilton and/or Thomas Jefferson spoke to them in the night.

Rather, the change was driven by sustained electoral support for Democratic candidates that eventually translated into Democratic control of the Supreme Court, with a corresponding increase in the role of equality in breaking legal ties about the allocation of power between state and national majorities.

The Depression was followed in 1939 by World War II and then the Cold War, a fight first for national survival and then for worldwide hegemony. The hot war against Nazi Germany, fascist Italy, and imperial Japan morphed into a series of Cold War military confrontations with the nuclear-armed Soviet empire, including full-scale land wars in Korea and Vietnam and a series of smaller skirmishes that continued until the collapse of the Berlin Wall in 1989 and the implosion of Soviet communism.

The almost permanent nature of such armed confrontation inevitably concentrated government power in the center. A nation that perceives itself as fighting for its life will have little patience with dissenting regional majorities out of step with the exercise of centralized power defended as necessary to preserve the nation.

Finally, beginning in the 1930s, but intensifying in the years after World War II, the Supreme Court was confronted by an ongoing refusal by recalcitrant state and local majorities in the states of the old Confederacy to defer to an emerging national consensus calling for an end to government-imposed racial apartheid and greater attention to racial fairness. Given the foreign and domestic consequences of such a racially charged confrontation, it was only a matter of time until the Democratic Supreme Court, with its tilt toward equality, empowered all three branches of the national government to act in the name of racial fairness.

Viewed as a federalism tug-of-war between conflicting state and national majorities, the Supreme Court’s rejection of racial segregation in the public schools in Brown v. Board of Education—arguably the most important constitutional decision of the twentieth century—was really the imposition by a unanimous Supreme Court of an emerging national consensus rejecting racial apartheid on recalcitrant state and local majorities. The existence of a national consensus in three-quarters of the states for ending racial apartheid was why the Brown opinion was ultimately unanimous, and why its conclusion that state-imposed racial apartheid is unconstitutional continues to receive virtually unanimous support today.

The absence of a national consensus on how to deal with racial issues beyond eliminating state-imposed apartheid and intentional discrimination explains why the post-Brown Supreme Court was unable—and unwilling—to move beyond banning state-imposed apartheid and intentional racial discrimination.

By 1990, a year after Soviet communism had imploded at the Berlin Wall, each of the three mutually reinforcing reasons to prefer national over state majorities had diminished in intensity. The Great Depression with its race to the bottom was only a memory. While interstate competition for jobs continued to invite dilution of protections for the weak—witness the success of certain states in luring jobs from the Northeast by diluting the power of unions and dispensing with social programs impacting the tax burdens of prospective employers—the existence of national minimums enacted by Congress provided significant floors below which state majorities cannot sink in bidding for jobs.

Perhaps more important, despite a few rocky periods, the nation’s economy had relentlessly improved since the end of World War II. When times are relatively good, the temptation to attract scarce jobs by gutting the social safety net is considerably less intense. So, while the risk of a race to the bottom is still with us, it became more of a slow shuffle, not a frantic sprint.

Similarly, when the collapse of the Berlin Wall signaled the end of the Soviet empire as a threat to the United States, the centralizing pressure of the Cold War evaporated overnight. Without the need to maintain a strong central shield against Soviet aggression, power began to flow back to the states, tempered only by the emergence in the years following 9/11 of a new foreign threat in the form of terrorism.

Finally, the South’s regional tantrum against accepting formal racial equality ended in grudging surrender. A new generation of southern leaders accepted the legal duty to refrain from intentional racial discrimination. Race relations in the South came to resemble race relations throughout the United States, with formal racial equality coexisting with massive indirect reinforcement of inequality.

Once the perceived need for strong central rules was relaxed, power began to drift back to the states. In 1995 Congress was told by the Supreme Court for the first time in more than fifty years that it lacked power under the commerce clause to enact desired legislation. In United States v. Lopez, the Republican Supreme Court struck down a commerce clause–based congressional ban on gun possession in or near schools, leaving pro-gun state and local majorities firmly in control of that issue.

The newly reenergized federalism shell game continued when, in United States v. Morrison, the Supreme Court told Congress that it could not invoke either the commerce clause or the post–Civil War equality amendments to enact national laws protecting women from gender-based violence, locating the regulatory power solely in state or local majorities.

In Printz v. United States, the National Rifle Association then persuaded the Republican Supreme Court that Congress lacked power to force dissenting state law enforcement authorities to carry out federal background checks in connection with federally regulated gun purchases.

Then, in a series of cases under the Eleventh Amendment, culminating in Alden v. Maine and Seminole Tribes v. Florida, states’ rights was invoked to block federal judges from imposing money judgments on the states for violating the law—even the Constitution.

The accordion shift of power back to the states continued with the stunning decision by the Republican Supreme Court in Shelby County to invalidate a key portion of the Voting Rights Act of 1965 that had successfully blocked state majorities from disenfranchising black voters for almost half a century.

Finally, as we’ve just seen, the justices drew a razor-thin distinction between Congress’s power to prohibit and its power to compel, ruling 5–4 that Congress lacked power under the commerce clause to compel individuals to buy health insurance.

The seventy-five-year run of pressure for increased national power that began with the Great Depression appears to have ended—just in time for progressives to deploy the concept of states’ rights as a check on a presidential bully. How can progressives get into the federalism shell game in defense of the weak? There is no all-purpose federalism dial attached to the Constitution. The pressures that drive the relative waxing and waning of state and national power play themselves out in a series of formally unconnected, maddeningly complicated legal doctrines. Progressives will have to fight the federalism battles doctrine by doctrine. Do not wade into that doctrinal swamp expecting illumination. Each of the federalism-related legal doctrines has evolved in majestic isolation from each other, and from the real-world factors that drive them.

The Trump administration’s claim to a genuine electoral mandate to speak for a majority of the nation in the give-and-take of federalism is at its lowest ebb since the Civil War. As we’ve seen, Donald Trump is a minority president. He lost the presidential election by more than three million votes and is in the White House only because the Electoral College is unfairly tilted toward rural constituencies. Republicans control the Senate only because the constitutional mandate of two senators per state regardless of population has turned the Senate into an appallingly undemocratic body. Republicans control the Supreme Court only because confirmation of the last two justices took place in the malapportioned Senate controlled by Republican senators representing less than 40 percent of the population. Republicans are overrepresented in the House of Representatives in large part because of ruthless partisan gerrymanders protected by five Republican Supreme Court justices who have deployed the First Amendment to protect the ability of the superrich to play an excessive role in American elections but who have to this point refused to recognize a First Amendment right to vote in a genuinely competitive election.

While the undemocratic nature of the Republican hold on the national government does not erode the right of Republican officials to hold office—Trump is our lawful president, the Senate is lawfully Republican, and the Supreme Court’s nine justices are lawfully entitled to exercise their powers—it should, in close cases, affect the delicate balance between state and federal power. If American federalism is really about which legitimate democratic majority, state or federal, should be empowered to rule on a particular issue, and if today’s version of the national government lacks a strong democratic imprimatur, federalism issues that do not tip clearly one way or the other should, I believe, be nudged toward the state majorities as the better democratic game in town.

In deciding close federalism cases, I would ask a single question—which group of elected officials, state or national, is more likely to treat the vulnerable fairly? In short, in the Time of Trump, the power to act should be found under the shell most likely to treat the weak fairly.

Let’s take a look at some likely federalism battlegrounds.

SANCTUARY CITIES

The first important federalism battleground of the Trump years will be over efforts by state and local majorities to distance themselves from President Trump’s effort to deport millions of undocumented aliens. No one knows how large the pool of undocumented aliens may be, but it almost certainly exceeds ten million people, most of whom live quietly in shadowy corners of their adopted country, seeking to educate their children and trying to eke out an existence on the margins of the economy. They pick our crops and tend to the sick and aging. We let them into our gated communities only to clean our houses, cut our lawns, and collect our trash.

Donald Trump got himself elected president by demonizing them. Playing on the fears of many white Americans that non-white immigration is threatening their political, economic, and social dominance, Trump repeatedly inveighed against “Mexican rapists,” “Muslim terrorists,” Haitian “slackers,” and Central American drug dealers. Russian oligarchs and unsavory immigrants from majority-white nations got a pass.

Not surprisingly, as president, Trump has intensified efforts by federal immigration agents (working under the acronym ICE, standing for Immigration and Customs Enforcement) to identify, apprehend, and deport undocumented aliens. There is, of course, no reason for state or local majorities to resist federal efforts to deport undocumented aliens who have committed serious crimes (although even there, thorny questions arise about what to do with innocent family members). But Trump doesn’t stop with deporting serious criminals. Intensifying deportation programs begun under the Obama administration, Trump has launched a massive program of surveillance and a series of dragnet raids by a cadre of federal enforcement officials aimed at churches, libraries, courtrooms, workplaces, and residences, in the hope of sweeping as many unfortunate undocumented immigrants as possible into the deportation net, whether or not they are guilty of anything other than seeking a better life in the United States.

Many, perhaps most Americans are deeply opposed to the national government’s deportation dragnets. In state after state, overwhelming majorities have directed their state officials to do all they can to distance themselves from federal dragnet arrests and mass deportations while Congress struggles to shape a humane but effective immigration policy.

In one troubling sense, the United States has been here before. This is not the first time that state majorities have sought to protect the most vulnerable among us from the unjust enforcement of oppressive national norms. During the years leading up to the Civil War, the anti-slavery Underground Railway, based in northern states, fought a battle for the bodies and souls of thousands of black human beings who had fled from slavery. Since capturing and returning escaped slaves under the Fugitive Slave Act of 1850 was an immensely lucrative business, slave catchers made little or no effort to confine themselves to pursuing proven runaways; they preyed on free blacks as well. And once a free black was captured by a bounty hunter and transported south as an alleged runaway, little chance existed that he or she would ever taste freedom again.

Responding to the kidnapping of free blacks from the streets of Philadelphia, the Pennsylvania legislature enacted an anti-kidnapping law forbidding private slave catchers from removing anyone from the state without a jury trial designed to assess whether probable cause existed to believe that the prisoner was, in fact, a fugitive slave. Southern slave owners quickly challenged the Pennsylvania statute in the Supreme Court, arguing that Pennsylvania’s anti-kidnapping statute interfered with their constitutional right under the fugitive slave clause to resort to self-help to recover their “property.”

Appallingly, in Prigg v. Pennsylvania, the pre–Civil War Supreme Court agreed with the slave owners. Trump seeks to replicate the fugitive slave model by arguing that states are powerless to shield law-abiding undocumented aliens from ICE dragnet raids. Designating themselves as “sanctuaries,” states and cities have fought back by refusing to cooperate with ICE raids. Stung by the refusal of local law enforcement officials to cooperate with ICE, President Trump has threatened to punish sanctuary cities. Four principal areas of disagreement have arisen: (1) whether state or local law enforcement officials can be forced to notify ICE of the impending release of undocumented aliens from state or local custody, no matter how minor the charge, so that federal officials can pick them up for deportation with minimal effort; (2) whether state schools, such as the University of California, can be compelled to cooperate with ICE in identifying undocumented students in the student body; (3) whether state or local agencies and officials can be required to cooperate with ICE raids by providing information about the existence or whereabouts of undocumented aliens; and (4) whether private individuals, including employers and schools, can be pressured to cooperate with dragnet raids by permitting ICE agents on the premises without a warrant and providing them with information in the absence of a court order.

California law forbids cooperation with ICE in all four settings, except where the undocumented alien is deemed a threat to public safety. In retaliation, President Trump has threatened to cut off federal funding to the police forces of cities and states that decline to provide affirmative assistance to federal officials in detaining, locating, and rounding up the undocumented. It’s as though southern slave owners had demanded that Pennsylvania provide affirmative help to the slave catchers.

California argues that federalism-based protection of its sovereignty should block the national government from “commandeering” the state’s resources and personnel to carry out a national policy soundly rejected by the state’s electorate. Ironically, the sanctuary movement’s strongest legal precedent was established in Printz v. United States when the national government unsuccessfully sought to compel state law enforcement officials to conduct federally required background checks prior to the purchase of certain guns. A solidly Republican Supreme Court struck down the federal mandate as an unconstitutional interference with state sovereignty.

Trump will doubtless argue that withholding aid to states that refuse to cooperate with ICE is not the same thing as commanding a state law enforcement official to act. But the Supreme Court has repeatedly ruled that the national government cannot coerce individuals (and presumably states) to waive a constitutional right by threatening to withhold a benefit to which they would otherwise be entitled. It’s called the “unconstitutional conditions” doctrine. The Supreme Court invoked it recently to strike down the important portions of the Affordable Care Act that required dissenting states to accept extended Medicare coverage as the price of receiving federal assistance for the rest of the program.

Thus, if respect for precedent has real meaning under a Trump Supreme Court, a sanctuary city can’t be financially punished for exercising a constitutional right to decline to use state resources to carry out a federal policy with which it disagrees. Round one should go to the states on points under a combination of respect for precedent, the Printz anti-commandeering principle, and the unconstitutional conditions doctrine.

Round two will be tougher—probably a split decision. What happens when states such as California pass laws explicitly releasing private individuals, including employers and private colleges, from any legal duty to assist federal immigration officials in tracking down or apprehending undocumented aliens in the absence of a court order? While, under Printz, states, schools, government agencies, and local cops need not help in the federal immigration roundups, California may not interfere with lawful efforts by the national government to carry out a valid national program with its own resources. A state-imposed prohibition on private cooperation with ICE in the absence of a court order might be held unlawful as a form of sabotage. But respect for the authority of a state to preserve the peace should permit states to require that ICE provide clear legal guidance to private individuals about their rights and duties when facing a federal official with a gun. Laws merely releasing private individuals from a legal duty to cooperate with ICE in the absence of a court order merely re-state existing law and should be affirmed. Empowering a private actor to refuse to cooperate with a federal official who is attempting to carry out morally reprehensible mass deportations and who has not bothered to get a court order directing cooperation, simply forbids the federal government from engaging in self-help in the teeth of private opposition. Maybe this time we’ll get the self-help issue right. One Prigg v. Pennsylvania is more than enough.

So, round two to the states on points—but there’s a catch. Just as states can claim to speak for a legitimate state majority when declining to help President Trump to carry out his efforts at mass deportation, local majorities within many states may, as a matter of state law, opt to cooperate with the president. Some states refuse to grant local governments such operational autonomy. But most allow a form of “home rule” that would allow dissenting majorities in certain localities to make their own deals with the president. Orange County, a traditionally conservative enclave in Southern California, has done just that—opting out of California’s “sanctuary state” legislation by publishing the names of all people scheduled to be released from Orange County jails so federal officials can pick them up with minimal effort. That’s a matter for California law, or Orange County voters, to fix.

The third federalism skirmish over ICE will involve state laws seeking to ensure humane conditions in federal immigration detention camps located within the state. State building and public health officials routinely play constructive roles in ensuring safe and humane conditions in federal buildings, including prisons, and on federal military installations. They even played constructive roles in ensuring the health and safety of Japanese Americans confined to federal detention camps during World War II. No reason exists to exempt federal detention facilities for undocumented aliens from the reach of such traditional state concerns over health and safety, especially since the danger of contagion is apparent. Compulsory state health and building inspections of federal immigration detention facilities should be a state knockout.

NET NEUTRALITY

A classic test of the power of a minority president to issue regulations that override the will of legitimate state majorities will pit the decision to rescind Obama-era regulations ensuring net neutrality against a number of state majorities insisting on equal access to the internet.

Under the Trump administration’s new rules, first-class internet access would be provided to those willing and able to pay, ensuring speedy and convenient internet service for a price, while everyone else would be required to make do with variations of second-class internet access. In effect, Trump wants to turn the internet into a commercial jetliner, with classes of service available on the basis of the consumer’s ability and willingness to pay. By contrast, states such as New York and California want to treat the internet like the landline telephone, with everyone enjoying the same level of service.

The issue cries out for resolution by Congress under its power to regulate the interstate economy. Congress has the unquestioned power under the existing reading of its commerce clause authority to regulate access to the internet. As usual, though, Congress is nowhere to be found. Instead, back in 1934, Congress created the Federal Communications Commission, staffed by presidential appointees, and gave it power to develop a national communications policy “in the public interest.” In 1940, the Supreme Court upheld such a ridiculously broad delegation of lawmaking power to an agency in the executive branch—it was the beginning of the end of classical separation of powers.

Over the years, the FCC has moved from left to right in deciding what is “in the public interest,” initially requiring “fairness” in broadcast news coverage and then withdrawing from the field—leaving us with unregulated TV and cable propaganda networks passing themselves off as news broadcasters. Initially, in the name of encouraging a multiplicity of voices, the FCC sought to limit the power of a single broadcaster to control the airwaves and newspapers in the same local market. Now, in the name of efficiency, it encourages massive concentrations of broadcast power in the hands of a few large corporations. Through it all, Congress, by delegating uncontrolled power to the FCC, had taken itself out of the game.

As I’ve argued more than once, such a standardless delegation of authority to the executive should be held to violate separation of powers because, in effect, it delegates the discretionary power to make new law to the executive branch. But, so far at least, the Court has not sought to force Congress to confront its responsibilities instead of kicking the can down the road to faceless bureaucrats. In the absence of congressional guidance, the FCC has treated the question of net neutrality as just another presidential political football. After the Obama administration issued regulations requiring equal access to the internet, Trump’s FCC promptly pulled the Obama regulations, substituting new executive regulations authorizing major communications players to sell unequal access to the internet.

It was simply a matter of time until state majorities seeking equal access to the internet collided with President Trump’s assertion that he speaks for a national majority in authorizing unequal access to the internet. It is at this point that Trump’s tenuous status as a minority president should tilt the federalism issue to the states.

Dissenting state majorities, seeking to preserve the principle of net neutrality, have fought back in two ways. Montana has insisted that any internet company with which it does business must promise to allow equal access to the internet to all Montana residents. California and New York have gone further, passing legislation requiring net neutrality in their states. How should the federalism dispute be resolved?

As president, Trump is fully entitled to provide for the issuance of FCC regulations ending net neutrality that bind the national government and, in the absence of countervailing state majorities, bind the states. But where legitimate state majorities reject Trump’s effort to permit unequal access to the internet, Trump’s regulations lack the democratic imprimatur of a legitimate national majority needed to override the will of a legitimate state majority. There is no expression of a congressional national majority on the issue. Nor is there a presidential national majority on the issue. That leaves the state majorities in California, New York, and Montana as the only legitimate democratic games in town.

On a more conventional resistance level, the states’ residual “police power” to ensure the equal treatment of their residents should be seen as sufficiently powerful to survive an effort to override it by a federal regulation inviting internet discrimination against the weak. As we’ll see in a moment, it’s the same federalism issue raised by Trump’s assault on the environment.

PROTECTING THE ENVIRONMENT

Much of Trump’s domestic executive policy consists of unwinding Obama-era regulations designed to protect the environment. It’s the regulatory neon sign in action. The underlying congressional statutes do nothing but delegate virtually standardless regulatory power to the executive. Each president, claiming to be enforcing the meaningless statute, flips a switch changing the policy mix. Executive regulations come and go like spring snowstorms.

Trump is taking full advantage of the massive delegation of lawmaking power permitted under the existing system. State majorities committed to protecting their environment can fight back by invoking state police power to protect the health and safety of state inhabitants against federal regulations inviting environmental degradation.

Newly minted federal regulations authorizing offshore drilling for oil and gas are a classic example of the coming collision over preserving the environment. No one disputes the fact that the national government exercises control over submerged lands beyond the state three-mile offshore ownership limit. As usual, though, Congress is nowhere to be found on the question of whether and when offshore drilling should take place on federal land, leaving the issue for decision by the Department of the Interior.

The secretary of the interior can’t make new law. That’s for Congress. But, as usual, Congress has delegated virtually unconstrained discretion to the executive branch over how to manage the submerged lands, including whether to drill for oil and gas on them. All agree that offshore drilling risks environmental degradation of the oceans and shoreline. The massive 2010 Deepwater Horizon oil spill in the Gulf of Mexico was only one dreadful example. On the other hand, offshore drilling may unlock substantial energy reserves, diminishing reliance on foreign sources, lowering the price of energy, and bolstering the economy.

Congress should set the balance. But, as usual, Congress is missing in action, requiring presidential appointees to step into the power vacuum left by Congress’s inaction. The energy companies insist that precautions can minimize environmental risks. Environmentalists aren’t so sure. The Obama administration opted to ban offshore drilling. Trump promptly lifted the ban (except for Florida, whose Republican governor successfully pleaded for an exemption because of Florida’s “unique” dependence on tourism). I guess tourists only visit Republican states. No exemption for California.

Since the state’s police powers stop at the three-mile limit, states cannot resist offshore drilling by simply banning it (as they can with the net neutrality issue). Instead, California has invoked its police power to ban the transportation across the state of oil and gas pumped from offshore wells. Will that work?

There is no doubt that transporting offshore oil and gas across the state would pose enhanced environmental risk, bringing California’s police power into play. Pipeline leaks are not a hypothetical risk—there have been pipeline leaks all across the country. The decision of a minority president acting unilaterally to override a legitimate state democratic majority seeking to protect its environment against such a risk constitutes a weak argument for national power.

On the other hand, flatly barring the transportation of the oil and gas pumped offshore operates as a de facto veto of the president’s decision to authorize the drilling. If California lacks power to prohibit the drilling directly, I question whether it may use the police power to impose a de facto prohibition. California’s strongest case would be to enact stringent general regulations on energy transmission to be applied to all oil and gas pumped in or transmitted across the state—including offshore oil. Its weakest position would be to enact rules that apply only to offshore wells, leaving the state open to charges that it is exceeding its police power.

Of course, the first-best response would be to enact thoughtful congressional legislation regulating the area. Don’t hold your breath. The second-best response is to vote Trump out of office before the next environmental disaster.

THE GIG ECONOMY

Once upon a time in the United States, most folks worked for someone called an “employer,” who paid them something called “wages.” In order to compensate for the power imbalance between an employer and an employee, Congress passed the National Labor Relations Act, ensuring employees the right to band together and bargain collectively about wages and other conditions of employment as the key to setting fair, socially stable wages and working conditions.

And then it all fell apart.

Globalization placed enormous pressure to decrease the costs of production in the United States, as countries around the world bid for jobs and investment by lowering the costs of labor, eliminating safety regulations, and polluting the environment. An identical state race to the bottom had begun in the United States during the Great Depression, leading to the enactment of nationwide floors. There is at present no mechanism for setting worldwide floors, although one could be created by treaty.

A worldwide race to the bottom caused huge numbers of union manufacturing jobs to disappear overseas, a casualty of rock-bottom labor costs and lax regulation in foreign countries, leaving Americans working in an economy increasingly devoted to the delivery of services. The union movement collapsed, except for government employees. Hours of work in service industries such as retail and fast food shrank and became increasingly erratic as employers juggled work schedules to meet fluctuating demand and sought to avoid regulatory thresholds.

The idea of long-term employees tethered to a single employer was displaced by the “gig economy,” consisting of large numbers of workers performing defined tasks for one or more employers without ever attaining the protected status of an employee. Think of drivers for Uber or Lyft. Once, they would have been employees working for a taxicab company, entitled to significant, hard-won legal protections such as a minimum wage and the right to bargain collectively on wages and working conditions. Under the gig economy, though, they have devolved into something called “independent contractors” performing a compensated service for Uber and Lyft, but without most of the protections carved out for employees in the old economy.

Much of the business plan of Uber and Lyft is based on the decreased labor costs incurred by shifting its workforce from employees to independent contractors. Unlike true employees, who (at least theoretically) can bargain collectively, gig employers deal individually with each independent contractor on a take-it-or-leave-it basis, free from any risk of collective action.

Not surprisingly, faced with wage competition from abroad, denied the ability to engage in collective action to raise wages or improve working conditions, and severed from the hard-won legal protections available to employees but not to independent contractors, the substantial slice of the American labor force working in the gig economy has taken it on the chin for decades, with wages stagnating and working conditions deteriorating while employers earn large profits.

As usual, Congress has slept through the change. The statutory framework and network of labor regulations dating from the 1930s has remained relatively untouched as the economy evolved from an industrial base with employer-employee collective bargaining at its core to a service economy with millions of low-paid workers forced to operate in increasing isolation and vulnerability as independent contractors. As with so many federalism issues, the best solution would be a careful congressional updating of the 1930s-era labor laws to provide basic protections to workers trapped in the gig economy. Once again, though, don’t hold your breath, especially in the Time of Trump.

If progress is to occur in ameliorating the rigors of the gig economy in the foreseeable future, it will be at the state and local levels. That makes Seattle’s effort to step into the congressional void by providing drivers for Uber and Lyft with state- and local-law-based collective bargaining rights an important test of federalism. Unlike efforts to undermine federal rules in settings like offshore drilling or net neutrality—raising issues of “conflict preemption”—Seattle is seeking to reinforce a federal statute by extending its reach. Can progressive states fill voids in current federal regulatory schemes?

For years, large corporations have argued successfully that one consequence of federalism is that when Congress acts, it freezes the ability of states to regulate in the entire field, even when the state regulation seeks to reinforce or strengthen Congress’s action. It’s called “field preemption.” Under field preemption, a federal statute or regulation imposes ceilings on the states as well as floors. Advocates of field preemption argue that Congress intended to “occupy the field” with its statute. Ironically, progressives shot themselves in the foot by inventing field preemption to protect federal labor law from erosion at the hands of state officials hostile to collective bargaining.

The question is whether Congress’s decision in the 1930s to grant collective bargaining rights to employees “occupies the field,” leaving no room for Seattle, acting as a proxy for the state of Washington, to supplement the 1930s legislation by providing collective bargaining rights to Uber and Lyft drivers, even though technically they may be independent contractors, not employees. The problem, of course, is that the line between employee and independent contractor is invisible to the naked eye. It is supposed to turn on the degree of supervision exercised by the employer over the worker, but that’s a concept subject to infinite manipulation. It’s even possible that Uber and Lyft drivers are, in fact, employees under federal law—but don’t expect a Republican-dominated National Labor Relations Board to expand the envelope of protection for workers. It’s just another example of how executive agencies use vague statutes to make the law, not merely apply it.

It would, I believe, be inconsistent with the Founders’ view of genuinely sovereign states to insist that an eighty-year-old congressional statute designed for an industrial economy prevents states from stepping in to provide interim relief to workers in the gig economy until Congress gets its act together and promulgates rules for the modern era. If states can’t step into the regulatory void, millions of workers will be trapped in limbo, falling outside the congressional safety net designed for another time, but denied access to modern safety nets designed by state majorities.

Just don’t bet on a Republican Supreme Court enabling states and localities to act aggressively to protect worker equality. The Court is far more likely to use field preemption to reinforce employer autonomy. If progressives want to unleash states to protect workers, they will have to win back the right at the polls by turning Congress and the presidency blue.

The Seattle controversy also demonstrates “conflict preemption” in action. When Congress acts within its legitimate powers, its word, under the supremacy clause, is the supreme law of the land, overriding any conflicting state rules. The effort by Seattle to grant collective bargaining rights to Uber and Lyft drivers doesn’t run afoul of conflict preemption with the National Labor Relations Act because it seeks to reinforce and expand, not frustrate, Congress’s statute. However, it may run into conflict preemption with an even older congressional statute, the Sherman Antitrust Act, dating from 1890, barring “conspiracies in restraint of trade.”

Allowing workers to bargain collectively, so the argument goes, permits them to form a cartel on wages, just like a corporate cartel on prices, and both are in restraint of free trade. If that sounds crazy to you—as it does to me—consider that when Legal Aid lawyers in the District of Columbia walked off the job, demanding better pay, smaller caseloads, and more resources to defend their poor clients, the DC Circuit found them guilty of engaging in a conspiracy in restraint of trade. There are, however, two answers to an effort to label Seattle’s grant of power to engage in collective bargaining over wages as an antitrust violation. First, the Supreme Court has held, correctly, that states may empower collective action—even cartels—by weak players in the economy without violating the antitrust laws as long as the state authorizes the cartel and keeps a careful eye on its operation. It’s called the “state action” exemption from the antitrust laws. The issue in the Seattle controversy is whether Washington’s power to create closely regulated pockets of collective action can be delegated to local government units like Seattle.

Second, as a pure matter of economics, authorizing workers to bargain collectively with their employers on issues such as wages and hours has nothing whatever to do with the evils of corporate monopoly that led to the enactment of the Sherman Act. If anything, rules guarantying collective bargaining on wages and conditions of employment are designed to allow—not frustrate—genuine bargaining between equals. That’s why Congress, in enacting the National Labor Relations Act, didn’t blink in guaranteeing employees the right to engage in collective bargaining with their employers. The same thought process should allow Seattle to expand collective bargaining rights to independent contractors as well.

Most Democratic judges would do it in a minute. Most Republican judges will find a way to protect the employer. It’s just another example of how important it is to participate in the process of deferred democracy by which our “apolitical” federal judges are selected.

REDISCOVERING STATE CONSTITUTIONS

After appearing to be ready—finally—to move against massive partisan gerrymandering, five Republican Supreme Court justices ducked the issue once again in June 2018, finding technical ways to get rid of the cases without ruling on the merits. While I remain cautiously optimistic that the justices will eventually recognize that excessive partisan gerrymandering is strangling American democracy, it’s possible that the Supreme Court may not get around to doing anything about it as long as the Court remains in Republican hands.

That means we cannot ignore the potential of federalism as a source of electoral reform. If the Supreme Court cannot find an autonomy-based right to vote in a contested election, or an equality-based right to be free from excessive partisan gerrymandering in the federal Constitution, we must be prepared to turn to state courts—and state constitutions—to press for reform of democracy. The Pennsylvania Supreme Court has recently invalidated the state’s massive partisan gerrymander under the Pennsylvania constitution. Its decision flipped four congressional seats. Since the decision was based solely on state law, the United States Supreme Court can’t get its hands on it—even if Trump manages to pack the Supreme Court.

Progressives should be readying a barrage of state court challenges designed to remove unnecessary costs and increase the perceived value of voting. That’s just what Common Cause has done in North Carolina, taking a challenge to a hyper-partisan gerrymander of the state’s congressional districts that was languishing in the federal courts because, thus far, the Supreme Court refuses to decide it and shifting it into a North Carolina state court system headed by a state supreme court with a 5–2 Democratic majority.

Once upon a time, federal courts were the preferred forum if you wanted egalitarian reform. But that was when they were blue. Now state judges may be the constitutional forum of choice for protecting the weak. Every state is a potential battleground, especially the numerous states that elect their judges.

During my years of active practice, I tried to avoid elected state judiciaries in constitutional cases. After all, many constitutional cases are often efforts to get a second judicial opinion on something that was lost in the legislature. I found that elected judges tended to mirror the political beliefs of the very elected legislators I was asking them to overrule. So over the years I put my constitutional eggs in the federal basket. But not necessarily when it comes to partisan gerrymandering, where the people are way ahead of the judges in realizing that partisan gerrymandering is killing American democracy. It may well be that elected state judges are the best way of linking litigation seeking reform of American democracy to the widely held belief by the mass of the people that our existing law of democracy is in shambles.

RETHINKING THE INCORPORATION DOCTRINE

Finally, it may be time to rethink one of the sacred cows of progressive legal thought—an intense commitment to applying the provisions of the Bill of Rights to limit the power of the states as well as the federal government so that both operate under identical federal constitutional rules. Remember, we have two Bills of Rights. The first Bill of Rights, constituting the first ten amendments, was adopted in 1791. What is frequently called the second Bill of Rights, comprising the Thirteenth, Fourteenth, and Fifteenth Amendments, was adopted in the five years following the end of the Civil War.

The autonomy-protective aspects of the first Bill of Rights, including the rights to free speech, religious freedom, the right to bear arms, the right to be free from unreasonable searches and seizures, the privilege against self-incrimination, the right to due process of law, and freedom from cruel and unusual punishments, were initially aimed solely at the federal government. The post–Civil War equality-driven second Bill of Rights, comprising the Thirteenth Amendment’s abolition of slavery and peonage, the Fourteenth Amendment’s due process and equal protection clauses, and the Fifteenth Amendment’s ban on racial discrimination in voting, was aimed at the states.

Until 1925, to the extent that states were bound by federal constitutional protections at all, the Republican Supreme Court usually couched the protections as “substantive due process” guarantees provided by the due process clause of the Fourteenth Amendment. History taught that “substantive due process” was hopelessly vague and subjective. Republican judges used it as a club to invalidate minimum-wage, maximum-hours, and child-labor laws. Justices Oliver Wendell Holmes Jr. and Louis Brandeis deeply mistrusted the concept of substantive due process because it licensed Republican judges to turn their absolute commitment to the free market into constitutional doctrine. During the 1920s, the two justices sought a formula that would permit vigorous protection of social and political rights but also would encourage substantial regulation of the economy in order to protect the weak. They found it in 1925 by arguing that the due process clause of the Fourteenth Amendment was not an open-ended invitation to strike down anything the justices felt was deeply unfair. Rather, it was a verbal bridge over which fundamental textual provisions of the first Bill of Rights could travel to bind both the state and federal governments with the same text.

Holmes and Brandeis began in Gitlow v. New York (1925) by incorporating First Amendment free speech protection into the Fourteenth Amendment’s due process clause so that it would bind New York State as well as the United States—a brilliant exercise in word magic. The Supreme Court followed up over the years by marching religious freedom, protection against unreasonable searches and seizures, the right against self-incrimination, the rights to counsel and to a fair jury in a criminal case, and the ban on cruel and unusual punishments over the Fourteenth Amendment’s due process bridge to bind the states.

Most recently, five Republican justices marched the Second Amendment right to bear arms across the bridge over the objection of four Democratic justices who argued that it wasn’t fundamental enough to be part of due process of law. Progressive lawyers like me, seeking to limit the power of state majorities hostile to racial minorities and unfriendly to political dissenters and religious iconoclasts, have long applauded the parade of rights across the bridge—that is, until the right being incorporated into the due process clause was the Second Amendment right to bear arms. As the four Democratic justices noted in their dissent, reflex incorporation of the entire Bill of Rights into the due process clause of the Fourteenth Amendment has real federalism costs. It operates as a legal straitjacket that requires the entire nation—with all its diversity—to march to a single set of constitutional rules.

When fundamental issues such as free speech, equality, and religious freedom are at stake, I believe that the centrality of those rights to a functioning democratic society calls for uniform, robust rules throughout the United States. But many constitutional guarantees in the first Bill of Rights, including jury trials in civil cases, grand jury indictment, Fourth Amendment search and seizure rules as they govern automobile stops, and the right to bear arms, can take many forms without necessarily jeopardizing a functioning democracy. Perhaps they should not be the subject of incorporation word magic.

Respect for regional diversity may call for one set of gun ownership rules in Wyoming and Montana and another in inner-city Chicago, and one set of drunk-driving roadblock rules in New York City but another in rural Georgia. Back in the 1950s, Justice John Marshall Harlan II applauded the incorporation doctrine but argued that room for regional diversity should be built into it for certain incorporated rights. Justice Frankfurter agreed. Maybe it’s time to give Harlan’s views more thought.

Trump is dangerous, especially to the vulnerable. His irresponsible behavior has already launched so many dangerous spells appealing to the worst in us that we may never get the genies of racism, xenophobia, and religious bigotry back into the bottle. There is real hope, though, that the Supreme Court can contain the worst of Trump’s excesses by remaining true to both red and blue precedents embedded in the purple Constitution. But even there, the capacity for slippage and deference to authoritarian governance is ever-present, especially if Trump succeeds in repopulating the Court as the current elderly justices leave the bench.

Even if the Court’s membership remains stable, for the foreseeable future we will be living under the red Constitution, where close cases will be decided in favor of autonomy at the expense of equality. If you care about what happens to folks at the bottom—as well as maintaining the current level of constitutional protection for the rest of us—your only sure path of resistance is the ballot.

Let go of the belief that courts and lawyers can provide the vulnerable with bulletproof, nonpolitical legal protection. Don’t give up on courts and lawyers, but, if the weak are to be protected, we’ll probably have to do it ourselves through the ballot box—there is no other way.

EPILOGUE

Night Sweats—What If It All Comes Apart?

What if I’m wrong? What if the three constitutional pillars—separation of powers, federalism, and a decent balance between autonomy and equality—don’t hold? What if a steady stream of lies, half-truths, and appeals to racism, xenophobia, and fear-mongering persuade enough Americans to follow Trump over an authoritarian cliff? What if a craven Republican Senate and a Supreme Court besotted with deference cease to provide a check on Trump’s worst instincts? Pick your nightmare scenario.

Here are two of mine:

Trump wins the 2020 presidential and congressional elections. Justices Ruth Bader Ginsburg and Stephen Breyer leave the Supreme Court in 2021. Trump nominates fixer-lawyer replacements in the mold of Rudy Giuliani. The Republican Senate rolls over and confirms them. Justices Thomas and Alito concur with three of Trump’s nominees in deferring to the president in what they characterize as a time of national crisis. Stare decisis is trashed—or manipulated—in favor of a populist, strongman’s Constitution that provides President Trump with implied emergency powers to make America great again. The forty-fifth president, invoking Abraham Lincoln, invokes martial law, suspends the writ of habeas corpus, rules by executive order, silences “fake news” outlets, preventively detains dangerous subversives, and declares an end to the era of “political correctness” by rescinding all executive regulations enforcing the Civil Rights Acts and instructing the attorney general to cease enforcing the statutes.

Worse—

Trump loses the November 2020 presidential election but cries foul, claiming that the balloting was rigged by the participation of millions of fraudulent voters, many of whom are allegedly undocumented aliens or simply fictitious. Two days after the election results are announced, the president directs Attorney General Giuliani to investigate charges of widespread voter fraud. Pending the results of the investigation, Trump declares martial law; detains the apparent electoral winner, a bewildered Joe Biden; refuses to permit the Electoral College to meet; and postpones the inauguration of a new president until the will of the true electorate can be accurately determined. Pending a deferred inauguration at the close of the investigation, the president suspends the writ of habeas corpus and rules by executive order. He rounds up the usual suspects.

(I’ve left a space here for your own personal anxiety attack. Feel free to write it in by hand.)

What extralegal options would be open for resistance to such Trumpist putsches clothed in legalisms and backed by a Supreme Court cowed into deference? What if Trump, citing Andrew Jackson, just ignores the Supreme Court?

At this point, of course, I am far beyond my expertise, such as it is. When legal institutions run out, I have little to offer but faith.

First, there’s my faith in the Second Amendment right to bear arms. Not the Second Amendment you’re thinking of, populated by delusional figures who think they can defeat tyranny by playing at being Rambo. That path leads to tragedy and heartbreak. I mean the real Second Amendment; the Founders’ Second Amendment, the one that empowers a well-organized citizens’ militia—the entire people in arms—to resist any effort by a would-be tyrant to seize power. My first act of faith is to believe that it is within the citizens’ army and the professional police forces—the modern heirs to the eighteenth-century citizens’ militia—that the first line of extralegal resistance must be found. No successful tyrant oppresses alone. He needs layers of armed subordinates to impose his will by force. The seeds of an effective resistance are present in every layer. Every person in the military chain of command, including the ranking officers, has sworn an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic. Somewhere in that chain of command are patriots who will place that oath above executing an unlawful presidential order.

Military law frees subordinates from any duty to carry out an unlawful order. Indeed, according to the Nuremberg principles under which the Nazis were tried, “I was just following orders” is no defense to liability for carrying out orders that are formally correct but violative of fundamental norms of human decency.

In my fifty years as a civil liberties lawyer, I never met colleagues more dedicated to the preservation of the Constitution than many of the members of the armed forces with whom I have worked, especially military lawyers. I realize that my positive experience conflicts with the beliefs of many on the left who view the military and the police as hotbeds of racism and repression. There, of course, are plenty of bullies and racists who bear arms in our name. But there are also many idealists and genuine patriots. The German officer class rolled over for Hitler. A nightmare Trump won’t find it so easy to subvert the American military.

My second act of faith is in the American people. Successful tyrants need more than brute force. They need a complaisant, supportive population. Hitler, Stalin, and Mao unleashed vast terror. But not one of those pathological monsters had enough bullets to rule successfully through brute force alone. Each needed the approbation, support, and cooperation of the mass of the citizenry.

When tyrants like Hitler are ultimately overthrown, their mass support vanishes retroactively—everyone always turns out to have been in the resistance—but the mass support was undeniably there. Someone enthusiastically sold Hitler the barbed wire and poison gas he used in the death camps. Someone enthusiastically informed about a skeptical neighbor. Someone marched the intellectuals to the countryside.

There will, of course, be American quislings who will enthusiastically support an American tyrant. There always are—everywhere. But I have faith that millions and millions of Americans will defend their freedom by withholding public and private support from a tyrannical regime, by declining to do business with it voluntarily, by refusing to inform on their neighbors or co-workers, and by engaging in acts of passive resistance such as mass strikes and protest. In the 1930s, the mass of German citizens became comfortable in their chains; many even reveled in them. That won’t happen here.

Finally, my third act of faith is the most counterintuitive of all—faith that politicians will step forward to lead an effective extralegal resistance. While blue states may not be able to win a presidential election in a rigged Electoral College that over-represents rural America, or to elect a majority in the appallingly malapportioned Senate, it is in the blue cities and states where the nation’s resources and talent are concentrated: money, innovation, art, information, technology, communications, research, education.

How long could red America function without the massive tax subsidy provided by their blue fellow countrymen? Blue states pay huge sums into the federal tax pot and get only a fraction back in federal programs. Where do you think the difference goes? To folks in the red states, many of whom are fond of telling other people how to live their lives but are delighted to accept federal subsidies.

That’s where courageous state and local political leaders could play a crucial role by turning off the blue-state tax spigots that fund a tyranny. Ordinarily, Americans pay their federal income taxes directly to the IRS. What if courageous state and local officials, driven to resistance by one of my Trump nightmare scenarios, were to take custody of all federal tax payments, agreeing to pass the funds on to the IRS after checking each return to be certain that all appropriate federal deductions have been taken? What if they were very aggressive about taking federal deductions? (Maybe they could use Trump’s tax returns as a guide.) What if courageous state and local officials were to go further and deposit federal tax payments in a secure location pending the restoration of constitutional government?

Even a Trumpist Supreme Court would be obliged to dismiss any effort to prosecute ordinary taxpayers for following state law and routing their federal tax payments through their state political leaders for recalculation and transmission to the federal government. What jury would convict them? Let the president try to jail the governors of California, New York, Illinois, Pennsylvania, Michigan, Virginia, and Massachusetts for processing federal tax payments through a state strainer.

That’s only the beginning of the acts of resistance available to state and local political leaders who pledge to prevent my nightmare scenarios from unfolding. They could invoke state police power to close roads and bridges for maintenance. Shut down the airports for safety checks. Withhold police or any other assistance to the federal government.

(Write in your extralegal, nonviolent resistance technique here.)

Don’t worry, though. It won’t come to that. In the short term, our institutions will hold. In the long term, we’ll vote the narcissistic bully out.

A NOTE ON NOTES

There aren’t any. This book is not an expression of objective truth backed up by footnotes designed to prove my case. It is a collection of subjective opinions about the inner workings of legal institutions—principally, the United States Supreme Court—that define and enforce our constitutional rights.

My opinions are based on six decades of active practice as a civil liberties lawyer. I formed them during my service as a staff lawyer for the New York Civil Liberties Union in the late 1960s and early 1970s, assistant national legal director during the presidency of Richard Nixon, national legal director of the ACLU during the presidency of Ronald Reagan, an active advocate before the Warren, Burger, Rehnquist, and Roberts Supreme Courts, lead counsel in the Swiss Bank and German Industry Holocaust Asset Cases, founding legal director of the Brennan Center for Justice at NYU, an active presence in hundreds of lower courts across the country seeking to enforce the Constitution, and a law teacher at NYU School of Law for almost fifty years, with teaching stints at Berkeley, Stanford, Cal Irvine, Tel Aviv, and Texas.

For those wishing to explore (or challenge) my opinions, I list the legal citations of each principal case mentioned in the book. Virtually all can be accessed free of charge online. Supreme Court opinions can readily be retrieved from the invaluable SCOTUSblog.com. Since most of the opinions expressed in this book were initially developed in my academic writings, which are chock-full of footnotes, I list, as well, a number of my books, chapters, and law review articles developing the ideas that form the core of this book. The academic articles can be accessed on my faculty page on the NYU Law website. Please read them. Sometimes, I wonder whether anyone else does.

Finally, the numbers discussed in connection with the workings of American democracy are drawn from the most recent census data and the reports of the Federal Elections Commission, both easily available online. It’s probably a good idea to check my calculations. I became a lawyer only because they promised me there would be no math.

Principal Cases Discussed

Somerset’s Case, 98 ER 499 (King’s Bench 1772) (English law governs the status of enslaved people voluntarily brought into Great Britain)

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Supreme Court has power to invalidate acts of Congress that violate the United States Constitution)

United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (federal courts lack power to create common law crimes)

Prigg v. Pennsylvania, 41 U.S. 539 (1842) (Pennsylvania anti-kidnapping law violates Fugitive Slave Clause)

Dred Scott v. Sandford, 60 U.S. 393 (1857) (invalidating Congress’s effort to ban slavery from the territories as deprivation of property without due process of law; blacks cannot be United States citizens) (It doesn’t get worse than this)

Minor v. Happersett, 88 U.S. 162 (1875) (denying women right to vote)

Lochner v. New York, 198 U.S. 45 (1905) (invalidating New York maximum hour law as violation of right to contract)

Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating congressional child labor laws as beyond power to regulate interstate commerce)

Adkins v. Children’s Hospital, 261 U.S. 525 (1923) (invalidating minimum wage legislation for women as violation of liberty of contract)

Gitlow v. New York, 268 U.S. 652 (1925) (upholding conviction of anarchists under New York’s criminal syndicalism law)

Erie R.R. Co. v. Thompson, 304 U.S. 64 (1938) (federal courts lack power to make federal common law in civil cases)

United States v. Darby, 312 U.S. 100 (1941) (reversing course and upholding Fair Labor Standards Act setting national minimum wage)

Korematsu v. United States, 323 U.S. 214 (1944) (upholding Japanese internment during World War II)

Dennis v. United States, 341 U.S. 494 (1951) (upholding conviction of leaders of American Communist Party)

Youngstown Sheet & Steel Co. v. Sawyer, 343 U.S. 579 (1952) (invalidating unilateral presidential seizure of steel mills to avert strike during Korean War)

Brown v. Board of Education, 347 U.S. 483 (1954) (striking down government-mandated racial segregation in the public schools)

Baker v. Carr, 369 U.S. 186 (1962) (requiring equi-populous legislative districts under principle of “one-person one-vote”)

Reynolds v. Sims, 377 U.S. 533 (1964) (articulating the one-person one-vote rule)

Lamont v. Postmaster General, 381 U.S. 301 (1965) (invalidating restrictions on receipt of communist political propaganda from abroad)

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (outlawing property qualifications for voting)

United States v. O’Brien, 391 U.S. 367 (1968) (upholding conviction for burning draft card to protest Vietnam War)

Williams v. Rhodes, 393 U.S. 23 (1968) (recognizing right to run for office as third-party candidate)

Kramer v. Union Free School District, 395 U.S. 621 (1969) (recognizing equality-based right to vote)

Roe v. Wade, 410 U.S. 113 (1973) (upholding women’s right to choose, in consultation with her doctor, whether to bear a child)

Dunn v. Blumstein, 405 U.S. 330 (1972) (invalidating durational residence requirements for voting)

San Antonio v. Rodriguez, 411 U.S. 1 (1973) (upholding unequal funding of public schools)

Richardson v. Ramirez, 418 U.S. 24 (1974) (upholding felon disenfranchisement)

Washington v. Davis, 426 U.S. 229 (1976) (requiring proof of discriminatory purpose)

INS v. Chadha, 462 U.S. 919 (1983) (invalidating legislative veto of administrative regulation)

Morrison v. Olson, 487 U.S. 654 (1988) (upholding Independent Counsel law to allow investigation of high ranking members of executive branch)

Texas v. Johnson, 491 U.S. 397 (1989) (flag burning protected by First Amendment)

Burdick v. Takushi, 504 U.S. 428, 442 (1992) (Kennedy, J. dissenting) (dissenting on First Amendment grounds from ruling that denying write-in ballot is constitutional)

Planned Parenthood v. Casey, 505 U.S. 833 (1992) (declining to overrule Roe v. Wade, but diminishing its protection)

United States v. Lopez, 514 U.S. 549 (1995) (invalidating congressional effort to ban guns from vicinity of schools as beyond power to regulate interstate commerce)

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (upholding ban of third-party endorsement of major-party candidate)

Printz v. United States, 521 U.S. 898 (1997) invalidating congressional effort to compel local law enforcement agents to carry out federally required background checks in connection with buying a gun)

Vieth v. Jubelirer, 541 U.S. 267 (2004) (declining to rule on constitutionality of partisan gerrymanders)

United States v. Morrison, 529 U.S. 298 (2000) (invalidating congressional effort to create a federal remedy for gender-motivated violence as beyond power to regulate commerce and protect equality)

Bush v. Gore, 531 U.S. 98 (2000) (barring Florida from completing recount of presidential ballots; awarding presidency to George W. Bush)

Crawford v. Marion County Bd. of Elections, 553 U.S. 1818 (upholding voter ID requirement that disproportionately bar poor voters despite no showing of need)

National Federation of Independent Businesses v. Sibelius, 567 U.S. 519 (2012) (holding that Congress lacks power under commerce clause to compel purchase of health insurance)

Shelby County v. Holder, 570 U.S. 2 (2013) (invalidating pre-clearance provisions of Voting Rights Act as no longer justified)

Obergefell v. Hodges, 576 U.S. (2015) (recognizing constitutional right to gay marriage)

Whole Women’s Health v. Hellerstedt, 579 U.S. (2016) (invalidating Texas regulation placing undue burden on exercising right to choose)

Trump v. Hawaii U.S. (2018) (upholding Muslim travel ban)

Books and Selected Law Review Articles

Madison’s Music: On Reading the First Amendment (The New Press, 2015)

Ending Lochner Lite, 50 Harv. Civ. Lib.-Civ. Rts. L. Rev. 183 (2015)

Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges, 35 N.Y.U Rev. Law and Social Change 602 (2011)

The Gravitational Pull of Race on the Warren Court, 2010 Sup. Ct. Rev. 59 (2011)

Serving the Syllogism Machine, 44 Texas Tech L. Rev. 1 (2011)

Democracy and the Poor, in Law and Class in America 37 (Paul D. Carrington and Trina Jones, eds., NYU Press, 2006)

Reading the Bill of Rights as a Poem, 57 Vand. L. Rev. 2007 (2004)

Towards a Democracy-Centered Reading of the First Amendment, 73 Nw. L. Rev. 4 (1999)

The Origin of Rights: Constitutionalism, the Stork, and the Democratic Dilemma, in The Role of Courts in Society 158 (Shimon Shtreet, ed., Martinus Nijhoff Publishers, 1988)

Judicial Review and the Separation of Powers in France and the United States, 57 N.Y.U. L. Rev. 363 (1982)

The Myth of Parity, 90 Harv. L. Rev. 1105 (1977)

INDEX

The index that appeared in the print version of this title was intentionally removed from the eBook. Please use the search function on your eReading device to search for terms of interest. For your reference, the terms that appear in the print index are listed below.

ACLU. See American Civil Liberties Union

Adams, John

administrative state, separation of powers and

Affordable Care Act

agency fees

Alden v. Maine

alternative facts

American Civil Liberties Union (ACLU)

American Democracy Express

external brakes on

internal brakes on

American flag, burning of

American University

amnesty, for undocumented aliens

Arizona Free Enterprise v. Bennett (2011)

armed forces

asylum seekers, immigration and

Australia

Baker v. Carr

Barr, William

Berlin Wall

Bezos, Jeff

Biden, Joe

Bill of Rights

adoption of

as deus ex machina

first

individual rights codified in

Second Amendment and

separation of powers and

two

bipartisan districting commissions

Black, Hugo

Blackmun, Harry

Brandeis, Louis

Brennan, William, Jr.

Brennan Center for Justice

Breyer, Stephen

Brown v. Board of Education (1954)

Buckley v. Valeo (1976)

Bull Moose Party

bullet voting

Burdick v. Takushi

Burger, Warren

Burr, Aaron

Bush, George W.

Bush v. Gore

California

campaign contributions by noncitizens

campaign finance law

Carrington v. Rash

chain migration

The Charterhouse of Parma (Stendhal)

checks and balances

Cipriano v. Houma

citizens militia

Citizens United (2010)

Civil Rights Acts

Civil War

climate change

Clinton, Bill

Clinton, Hillary

campaign infighting of

Electoral College and

popular vote and

Putin revenge against

Russian disinformation and

Trump and

Clinton shipwreck

Clinton v. Jones

closed borders

Cohen, Michael

Cold War

collateral estoppel

collective bargaining

collective equality

autonomy, difference of

autonomy, same as

in Bill of Rights

First Amendment and

Fourteenth Amendment and

Comey, James

communist party

compulsory arbitration

Confederation Congress

confirmation hearing

Congress, U.S.

bullet voting for

Dreamers and

election day selection by

First Amendment and

immigration and

investigation by

lame-duck period for

Mueller investigation and

preferential voting for

Republican senators in

Trump and

turnout for elections

2014 elections of

2018 elections of

Violence Against Women Act passed by

war powers of

Watergate and

congressional leadership, of Republicans

Connecticut Compromise

Constitution. See also specific Amendments

ambiguity of

amendments to

Article IV of

electors and

equality and

living

purple

red or blue

right to vote and

separation of powers and

Trump, protection from

constitutional cases

constitutional lawyers

constructive originalism

corporations, autonomy rights of

court-packing

cult of personality

cultural Armageddon

Debs, Eugene

deep state

Deepwater Horizon oil spill (2010)

deference

Delaware

democracy

Democracy Vouchers

Democrats

hyper-partisanship of

as party of racial segregation

Supreme Court, U.S., controlled by

Dennis v. United States

Department of the Interior, U.S.

deportation, of undocumented aliens

deregulation

deus ex machina

dictum

discriminatory purpose

disenfranchisement

felon

voter

disparate impact

District of Columbia statehood

District of Columbia v. Heller (2008)

Douglas, William O.

draft card burners

Dreamers

Obama and

separation of powers and

Trump and

Dred Scott v. Sandford

due process, substantive

Dunn v. Blumstein

Eastern European Jews, immigration by

educational equity

egalitarian democracy

Eisenhower, Dwight

Election Day

elections. See specific elections

electoral brakes

Electoral College

Clinton, H., and

as democracy-challenged institution

election of Presidents by

Hays victory in

indirect election by

majority rule and

popular vote compared to

representational imbalance in

rural constituencies and

rural states and

Trump victory in

Twelfth Amendment and

2016 election and

undemocratic nature of

urban majority and

votes per state for

voting and

enslaved people. See slavery

equality

Constitution and

free speech as autonomy and

Kavanaugh commitment to

equality-based protections of democracy

equitable estoppel

executive orders

fake news

Federal Communications Commission, U.S. (FCC)

federal courts

federal immigration detention camps

federal income taxes

federalism

to protect the weak

as shell game

as states rights

felon disenfranchisement

field preemption

Fifteenth Amendment (1870)

Fifth Amendment

filibuster

First Amendment

burning draft cards and

for campaign spending

Congress, U.S., and

felon disenfranchisement and

for free speech

gerrymandering and

law of democracy and

meaning of

protection for voting

strict scrutiny and

for voting rights

Florida Supreme Court

Ford, Gerald

Fortas, Abe

Founders

Constitutional text and

judicial review and

literalism and

multi-member districts and

originalism and

separation of powers and

Fourteenth Amendment (1868)

Fox Broadcasting Company

Frankfurter, Felix

free press

free radios, of Hitler

free speech

as autonomy and equality

autonomy-based rights as

campaign spending as

First Amendment for

voting as

French Declaration of the Rights of Man

Fugitive Slave Act (1850)

Garland, Merrick

Germany

gerrymandering

First Amendment and

Supreme Court, U.S., on

gig economy

Ginsburg, Ruth Bader

Gitlow v. New York (1925)

Giuliani, Rudy

Goldberg, Arthur

Gonzales v. Carhart (2007)

Gore, Al

Gorsuch, Neil

government shutdown

grand jury

Great Depression

Green Party

Guantánamo Bay, Cuba

gun control

habeas corpus, writs of

Hamilton, Alexander

Hammer v. Dagenhart

Harlan, John Marshall, II

Harper v. Virginia Board of Elections

Hays, Rutherford

Hitler, Adolf

closed borders by

election margin of

free radios of

German industry and

legitimacy of democracy and

on lying press (Lügenpress)

military service of

misogyny by

political base of

Ruhr seized by

Treaty of Versailles and

holding

Holmes, Oliver Wendell, Jr.

horizontal federalism

House of Commons

House of Lords

House of Representatives

Connecticut Compromise and

deregulation and

gerrymandering for

as partisan swamp

hyper-partisanship

ICE. See Immigration and Customs Enforcement

immigration

asylum seekers and

Congress, U.S., and

of Eastern European Jews

national quota system for

Obama and

Trump on

Immigration and Customs Enforcement (ICE)

impeachment

incorporation doctrine

independent counsel

individual autonomy

campaign finance law and

equality, difference of

equality, same as

institution of deferred democracy

Internal Revenue Service (IRS)

internet, for campaign spending

IRS. See Internal Revenue Service

ISIS

Israeli Holocaust Museum (Yad Vashem)

Jackson, Andrew

Jackson, Robert

Japanese Americans, internment of

Jay, John

Jefferson, Thomas

Johnson, Andrew

Johnson, Lyndon

Jones, Paula

judge-shopping

judicial review

Kagan, Elena

Kavanaugh, Brett

commitment to equality and

confirmation hearing of

as Supreme Court, U.S., justice

as Trump’s nominee

Kennedy, Anthony

KGB

Korean War

Korematsu v. United States

Kramer v. Union School District

La Follette, Robert, Sr.

lame-duck period

Lamont v. Postmaster General

legal pyramid

appellate courts on third rung of

lawyers on bottom rung of

Supreme Court, U.S., on apex of

trial courts on second rung of

Lewinsky, Monica

Lincoln, Abraham

literalism

living Constitution

Lochner v. New York

lock her up

Long, Huey

Lyft

lying press (Lügenpress)

Madison, James

“Make America Great Again”

malapportionment, of U.S. Senate

Marbury v. Madison (1803)

marketplace of ideas

Marshall, John

Marshall, Thurgood

matching contributions

McCarthyism

McCutcheon v. Federal Election Commission (2014)

Meese v. Keene

Mexican border wall

minimum wage, maximum hours and

minority President

misogyny

money in elections

Montesquieu

Mueller, Robert

Mueller investigation

multi-member districts

Muslim travel ban

Mussolini, Benito

My New Order (Hitler)

Myers v. Nebraska (1923)

National Emergencies Act (1976)

national emergency

National Enquirer

National Labor Relations Act

national popular vote, G

national quota system, for immigration

National Rifle Association

Nazis

negative separation of powers

net neutrality

New Deal

New York City

New York Times

New York Times v. Sullivan

9/11

Nineteenth Amendment (1920)

Nixon, Richard

Nixon v. Fitzgerald

nominating process

non-contestable elections

Northwest Ordinance (1787)

Nunes, David

Obama, Barack

obstruction of justice

offshore oil drilling

off-year elections

one-person, one-vote

originalism

pack and crack

Parliament

peanut butter conspiracy

Pentagon Papers

Perón, Juan

Philadelphia Constitutional Convention

Phoenix v. Kolodziejski

Pierce v. Society of Sisters (1923)

Planned Parenthood v. Casey (1992)

Plessy v. Ferguson

Pol Pot

police power

political bosses

political contributions. See campaign finance law

political parties

political question doctrine

political representation, of undocumented aliens

popular vote

Clinton, H. and

Electoral College compared to, 2016

election and

populism

positive separation of powers

Posner, Richard

Powell, Lewis

pragmatists

precedents

as confused

judges values and

lack of

persuasive

preemption, process of

preferential voting

presidential elections

Prigg v. Pennsylvania

primary elections

Printz v. United States

Progressive Party

proportional representation

Puerto Rico statehood

purposivism

Putin, Vladimir

al Qaeda

racial equity

racism, of Trump

Reagan, Ronald

Rehnquist, William

Reichstag

reproductive freedom

Republicans

congressional leadership of

hyper-partisanship of

national popular vote and

as party of Lincoln

Supreme Court, U.S., controlled by

Trump criticized by

res judicata

resistance, acts of

Reynolds v. Sims

Richardson v. Ramirez

right to vote

Roberts, John

Robespierre

Roe v. Wade (1973)

Roosevelt, Franklin D.

Roosevelt, Teddy

rule of law

rural America

Russell, Richard

Russia

Rust v. Sullivan

San Antonio v. Rodriguez

sanctuary cities

Scalia, Antonin

judicial review and

as originalist

replacement for

Second Amendment

secret ballot

Seminole Tribes v. Florida

Senate, U.S.

filibuster

malapportionment of

Supreme Court, U.S., confirmation hearing and

weighted voting in

Senate Judiciary Committee

separate but equal

separation of powers

administrative state and

Dreamers and

negative

positive

war powers and

Seventeenth Amendment (1913)

Shelby County v. Holder (2013)

Sherman Antitrust Act (1890)

Shipping Act (1916)

Sinclair Broadcasting Company

slavery

Civil War and

perpetuation of

Virginia and

Smith, Adam

Socialist Party

Sotomayor, Sonia

Souter, David

Soviet Union

special counsel

special prosecutor

Stalin, Joseph

stare decisis

Starr, Ken

State constitutions

States, division of

States’ rights

Statue of Liberty

Stein, Jill

Stendhal

strict scrutiny test

structural constitution

substantive due process

Supreme Court, U.S. See also collective equality; individual autonomy

on Affordable Care Act

on agency fees

American flag, burning of

on bipartisan districting commissions

on campaign contributions by noncitizens

on campaign spending

confirmation hearing

constructive originalism and

deference and

Democratic control of

on Dreamers

on felon disenfranchisement

Founders and

on gerrymandering

as institution of deferred democracy

judicial review and

justices values and

literalism and

on minimum wage and maximum hours

on Muslim travel ban

national emergencies and

originalism and

pragmatists and

precedents of

preemption and

on primary elections

purposivism and

Republican control of

on right to vote

separation of powers and

on slavery

strict scrutiny test and

textualists and

on third-party candidates

at top of legal pyramid

Trump and

tyranny of the majority and

war powers and

Taliban

tariffs

tax credits, for campaign spending

tax returns

Texas, Dreamers, and

textualists

third-party candidates

Thirteenth Amendment (1865)

Timmons v. Twin Cities Area New Party

Title VII

Title VIII

totalitarianism

trade wars

Treaty of Versailles

Truman, Harry

Trump, Donald

Affordable Care Act and

attacks on free press by

campaign finance laws and

on climate change

Clinton, H., and

closed borders and

Congress, U.S., and

Constitution and

on cultural Armageddon

deep state and

deregulation and

Dreamers and

election of

Electoral College and

fake news and

federalism and

Giuliani and

government shutdown by

Hitler speeches and

on immigration

impeachment of

Kavanaugh nominated by

Mexican border wall and

as minority president

misogyny by

Muslim travel ban by

narcissism of

national emergency and

obstruction of justice and

as racist

Republican criticism of

rhetoric of

Russia and presidential campaign

sanctuary cities and

separation of powers and

Supreme Court, U.S., and

tariffs by

tax returns of

trade wars by

tweets by

2016 election and

2020 census and

undocumented aliens and

unions and

Veterans Day military parade and

Vietnam, medical exemption from

Trump. Donald

on immigration

Trump v. Hawaii

tweets, by Trump

Twelfth Amendment (1804)

Twentieth Amendment (1933)

2014 election

2016 election

Electoral college and

popular vote and

Russia and

Trump and

2020 census

Twenty-Fifth Amendment (1967)

Twenty-Fourth Amendment (1964)

Twenty-Second Amendment (1951)

Twenty-Sixth Amendment (1971)

Twenty-Third Amendment (1961)

tyranny of the majority

Uber

Underground Railway

undocumented aliens

deportation of

political representation of

Trumps tweets on

unions

United States v. Lopez

United States v. Morrison (2000)

United States v. Nixon

United States v. O’Brien

urban America

vertical federalism

Veterans Day

Vietnam War. See also draft card burners

violence against women

Violence Against Women Act (1994)

Virginia

viva voce voting

voter disenfranchisement

voter IDs

voter registration

voter turnout

in Australia

bullet voting and

children and

compulsory

disenfranchisement and

Election Day and

felon disenfranchisement and

noncitizens and

for non-contestable elections

in off-year elections

perks for

preferential voting and

in presidential elections

in primary elections

proportional representation and

registration and

selling votes for

Voting Rights Act (1965)

war powers

Warren, Earl

Warren Court

Washington, George

Washington Post

Washington v. Davis

Watergate

weighted voting

Weimar Republic

Wesberry v. Sanders

White, Byron

Whole Women’s Health Clinic v. Hellerstedt (2016)

Williams v. Rhodes

Wilson, Woodrow

World War II

Wyoming

xenophobia

Yad Vashem (Israeli Holocaust Museum)

Youngstown Sheet & Tube v. Sawyer (1952)

About the Author

One of the nation’s foremost civil liberties lawyers, Burt Neuborne has participated in more than two hundred cases in the U.S. Supreme Court, where he challenged the constitutionality of the Vietnam War, pioneered the flag burning cases, and worked on the Pentagon Papers, among many other issues. He is former national legal director of the ACLU, founding legal director of the Brennan Center for Justice, and currently the Norman Dorsen Professor of Civil Liberties at NYU School of Law. Neuborne is the author of Madison’s Music (The New Press) and lives in New York.

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Thank you for reading this book published by The New Press. The New Press is a nonprofit, public interest publisher. New Press books and authors play a crucial role in sparking conversations about the key political and social issues of our day.

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© 2019 by Burt Neuborne

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Composition by dix!

This book was set in Electra LT Std

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