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January 6, Ambiguously Inciting Speech, and the Over-Acts Rule
No full textA prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol.
This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This Article is an attempt to make that line clearer.Rozenshtein, Alan Z; Shugerman, Jed H. (2023). January 6, Ambiguously Inciting Speech, and the Over-Acts Rule. Retrieved from the University Digital Conservancy, https://hdl.handle.net/11299/258551
The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity
Full text linkThe unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.
Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view that Article II implied a presidential removal power. The debates indicate that some of the sixteen or so House members assumed to be “presidentialist” are just as explainable as “strategic ambiguity”: in the face of opposition, they retreated to an unclear text that was more likely to achieve compromise or could be presented flexibly to different members.
This new “strategic ambiguity” interpretation turns on overlooked sources—a Senator’s diary and other senators’ notes—and two new approaches to analyzing the First Congress’s debates. Senator William Maclay’s diary shows growing Senate opposition to Madison’s overall legislative agenda just before Madison retreated to a more ambiguous text. Maclay and other senators documented opposition to presidential removal, followed by an obfuscating debate, reflecting follow-through on the strategy of ambiguity.
A new interpretive approach gives more weight to the only day of debate— Monday, June 22—that separated the unitary presidentialists from the congressionalists (who thought Article I gave Congress the power to delegate removal), revealing that a solid House majority rejected even a weak form of presidentialism.
A second new approach puts this debate in the context of the urgent and sprawling legislative agenda in the summer of 1789. Madison and other presidentialists knew they might not have the votes either in the House (for their presidential theory) or Senate (for presidential removal under any theory). A study of the First Congress’s drafting practices reveals that explicit explanatory clauses and preambles were common, but Madison went in the opposite direction. Madison’s opponents called it a retreat, and even Madison and key allies hinted at an explanation of “strategic ambiguity.” Madison and “Court Party” supporters of the Washington administration spun the retreat as a victory. Madison’s myth-making has succeeded again two centuries later, as the Roberts Court and modern unitary theorists rely on Madison’s letters more than the debates themselves. The unitary theorists’ widespread errors, even though made in good faith, raise questions about the reliability of originalism
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The (Joseph) Stories of Newmyer and Cover: Hero or Tragedy?
No full textKent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. This Essay suggests that Story missed vital opportunities to write a judicial opinion more forcefully recognizing the rights of fugitive slaves under the Fifth Amendment’s due process clause, a preview of Dred Scott but in reverse.
One can find a balance between Newmyer’s empathetic charity and Cover’s non-empathetic clarity, to see the value of the rule of law through both interpretations. Thus, they both teach us about law, leadership, and life
The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity
No full textThe unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.
Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view that Article II implied a presidential removal power. The debates indicate that some of the sixteen or so House members assumed to be “presidentialist” are just as explainable as “strategic ambiguity”: in the face of opposition, they retreated to an unclear text that was more likely to achieve compromise or could be presented flexibly to different members.
This new “strategic ambiguity” interpretation turns on overlooked sources—a Senator’s diary and other senators’ notes—and two new approaches to analyzing the First Congress’s debates. Senator William Maclay’s diary shows growing Senate opposition to Madison’s overall legislative agenda just before Madison retreated to a more ambiguous text. Maclay and other senators documented opposition to presidential removal, followed by an obfuscating debate, reflecting follow-through on the strategy of ambiguity.
A new interpretive approach gives more weight to the only day of debate— Monday, June 22—that separated the unitary presidentialists from the congressionalists (who thought Article I gave Congress the power to delegate removal), revealing that a solid House majority rejected even a weak form of presidentialism.
A second new approach puts this debate in the context of the urgent and sprawling legislative agenda in the summer of 1789. Madison and other presidentialists knew they might not have the votes either in the House (for their presidential theory) or Senate (for presidential removal under any theory). A study of the First Congress’s drafting practices reveals that explicit explanatory clauses and preambles were common, but Madison went in the opposite direction. Madison’s opponents called it a retreat, and even Madison and key allies hinted at an explanation of “strategic ambiguity.” Madison and “Court Party” supporters of the Washington administration spun the retreat as a victory. Madison’s myth-making has succeeded again two centuries later, as the Roberts Court and modern unitary theorists rely on Madison’s letters more than the debates themselves. The unitary theorists’ widespread errors, even though made in good faith, raise questions about the reliability of originalism
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The Legitimacy of Administrative Law
No full textReviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940; Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal; Philip Hamburger, Is Administrative Law Unlawful?; Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law; and Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940
Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism
Full text linkThe Supreme Court\u27s recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists\u27 misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed “executive powers” (like removal) that would make a President stronger than a king
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The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity
No full textThe unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.
Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view that Article II implied a presidential removal power. The debates indicate that some of the sixteen or so House members assumed to be “presidentialist” are just as explainable as “strategic ambiguity”: in the face of opposition, they retreated to an unclear text that was more likely to achieve compromise or could be presented flexibly to different members.
This new “strategic ambiguity” interpretation turns on overlooked sources—a Senator’s diary and other senators’ notes—and two new approaches to analyzing the First Congress’s debates. Senator William Maclay’s diary shows growing Senate opposition to Madison’s overall legislative agenda just before Madison retreated to a more ambiguous text. Maclay and other senators documented opposition to presidential removal, followed by an obfuscating debate, reflecting follow-through on the strategy of ambiguity.
A new interpretive approach gives more weight to the only day of debate— Monday, June 22—that separated the unitary presidentialists from the congressionalists (who thought Article I gave Congress the power to delegate removal), revealing that a solid House majority rejected even a weak form of presidentialism.
A second new approach puts this debate in the context of the urgent and sprawling legislative agenda in the summer of 1789. Madison and other presidentialists knew they might not have the votes either in the House (for their presidential theory) or Senate (for presidential removal under any theory). A study of the First Congress’s drafting practices reveals that explicit explanatory clauses and preambles were common, but Madison went in the opposite direction. Madison’s opponents called it a retreat, and even Madison and key allies hinted at an explanation of “strategic ambiguity.” Madison and “Court Party” supporters of the Washington administration spun the retreat as a victory. Madison’s myth-making has succeeded again two centuries later, as the Roberts Court and modern unitary theorists rely on Madison’s letters more than the debates themselves. The unitary theorists’ widespread errors, even though made in good faith, raise questions about the reliability of originalism
The Bi-Partisan Enabling of Presidential Power: A Review of David Driesen\u27s \u27Specter of Dictatorship: Judicial Enabling of Presidential Power
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The Golden or Bronze Age of Judicial Selection?
No full textThis Essay questions Gerhardt and Stein’s interpretation of the golden age and whether there were meaningful differences in the politics of the nomination and confirmation processes of the antebellum era as compared with the contemporary era. In Part II, I suggest that one hallmark of the contemporary judicial selection process is the intense inquiry into the nominees’ personal lives and ethics (whether through confirmation hearings or the media). Gerhardt and Stein do not find much evidence of these practices in the antebellum era, even though historians have noted the nastiness of that era’s presidential election campaigns. Thus, some aspects of the imagined golden era may be true, while others may not. Then, the Essay highlights a few of Gerhardt and Stein’s most interesting findings of discontinuity between the antebellum and contemporary eras. While acknowledging the obvious discontinuities, Gerhardt and Stein emphasize the “patterns of practice that are similar to contemporary developments”2 and argue that their research shows “surprisingly relative equivalence between the antebellum and contemporary periods.”3 Part III discusses how these findings further undercut the notion that a true golden age existed in judicial selection. This Essay draws from that aspect of their research, concluding that the golden age of modern political commentators’ imagination was more a judicial “bronze age” before the transportation and communication revolutions
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