Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
What the collapses of two communist regimes teach us about the rule of law in the United States
I published my first piece in The Unpopulist yesterday, and it is accessible here.
In it I argue that the contrast between Czechoslovakia's peaceful Velvet Revolution and Romania's violent regime change offers vital lessons for Americans today about the importance of actively defending legal institutions and norms against authoritarian threats. Enjoy!
The Supreme Court heard oral argument in Louisiana v. Callais back on October 15. At the time, there was a broad consensus the Court would severely weaken, if not gut Section 2 of the Voting Rights Act. The only question was when the Court would rule. Depending on how quickly the opinion came out, the Louisiana legislature might be able to hold a special session to redistrict for the midterm.
Fast forward four months to the present, and there is no opinion in Callas. Indeed, the Court also hasn't decided the tariffs case, Slaughter, or anything else of substance yet.
Today, Rick Hasen has a post on the Election Law Blog, titled "A Justice Alito-Authored Majority Opinion in Callais Effectively Killing Off the Voting Rights Act Might Not Get 5 Votes; What Choices Do the Court's Conservatives Have?"
Rick explains that he has "now gone back and read Allen v. Milligan, and in particular Justice Alito's dissent." Rick thinks Justice Alito would write an opinion that "would doom most, if not all, Section 2 cases in the redistricting context." That was certainly how I read the oral argument four months ago. I didn't need to re-read a 2023 case to reach that conclusion.
Then Rick offers some fairly specific speculation about how Justice Alito might not get five votes for that sort of majority opinion.
I could easily see Justice Alito writing an opinion like this. The question is whether he could get a majority to endorse it. Here, counting noses, I'm not sure. This part of the opinion was joined only by Justice Gorsuch, not by Justice Thomas, who has taken the view that these cases should not be nonjusticiable, and not by Justice Barrett, who joined the other parts of Justice Thomas's dissent (but not Alito's) that sees Section 2 as unconstitutional if it means what the majority said it meant. Even if Thomas and Barrett signed on, could they get Roberts or Kavanaugh? That's not clear. The majority opinion written by Roberts, discussing what Alito wrote, says: "JUSTICE ALITO argues that "[t]he Gingles framework should be [re]interpreted" in light of changing methods in statutory interpretation. Post, at 10 (dissenting opinion). But as we have explained, Gingles effectuates the delicate legislative bargain that §2 embodies. And statutory stare decisis counsels strongly in favor of not "undo[ing] . . . the compromise that was reached between the House and Senate when §2 was amended in 1982." Brnovich, 594 U. S., at _ (slip op., at 22)." Kavanaugh in his separate opinion seemed to agree: "I agree with the Court that Alabama's redistricting plan violates §2 of the Voting Rights Act as interpreted in Thornburg v. Gingles, 478 U. S. 30 (1986)."
I don't disagree with anything Rick wrote here. But all of this prognostication could have been made four months ago. The usual workflow is that people write about a case before it is argued, write about a case immediately after it is argued (before the conference), and then let the matter sit until the case is decided. That is, unless something prompts people to write about a pending case.
My ears perk up when people speculate about how a Supreme Court opinion is developing long after oral argument. Back in 2012, there were leaks from the Obamacare litigation. People on both sides of the case tried to sway the Justices one way or the other, as Chief Justice Roberts changed his vote. About a month after Bostock was argued, I wrote a post about a potential leak suggesting that Justice Gorsuch was going to vote with Justice Kagan. Shortly before Politico published the leaked opinion from Dobbs, I speculated that there was leak that the Chief Justice was trying to flip votes. And despite Chief Justice Roberts's NDA, leaks from the Count continue.
I'm not ready to speculate there was a leak in Callais, yet. Rick's post may just be an attempt to grapple with the fact that we still don't have a decision yet. It is certainly likely that a fractured majority opinion will take more time. But if there is another article, in close proximity, about the Justices' inability to form a five member bloc, I'll update my speculation.
Finally, Rick closes with this admonition:
It's possible that one or both of these Justices would throw out Gingles, perhaps citing constitutional avoidance. But it's just as likely given Kavanaugh's concurrence that he would vote to hold Section 2 unconstitutional.
That might make a majority in theory to overturn Section 2 as unconstitutional, but the Court would take a big political hit in an election year. Not sure that Kavanaugh and Alito would want to hurt the Republican Party further in the midterms.
I still believe that the Justices are trying to get the law right, and not trying to help one political party over the other. But we have seen this charge so many times. We heard it while the Affordable Care Act case was pending, while King v. Burwell was pending, while Dobbs was pending, while Trump v. United States was pending, and so on. We are always one year away from a general or midterm election. Is it the case that conservative judges can only do conservative things in odd-numbered years? If the conservatives on the Court wanted to help the Republican party in perpetuity, they would follow Justice Alito's lead. I am not at all convinced that any districts will be swayed in the slightest based on what the Supreme Court does here. Indeed, that is the point of partisan gerrymandering. If Section 2 is gone, swing districts that could be swayed by a Supreme Court decision will fade away. We should not be blind to the asymmetry that the Voting Rights Act helps only one side of the aisle.
Update: Rick replies that I am delusional.
In Doe v. Zeinalpoor-Movahed, decided May 7, 2024 by Judge John Tharp (N.D. Ill.) but just posted on Westlaw, plaintiff alleged that defendant sexually assaulted her:
At the time, the parties had been dating for several months. Both resided in Seattle, Washington, but had family in Chicago. They traveled to Chicago together, but spent some time separately visiting their families. They met up on December 28 at the home of Doe's parents, where they stayed the night, and on the 29th, they checked into a suite in an upscale Chicago hotel, which Doe's parents had paid for as a present to the couple. The following narrative of what ensued summarizes information submitted by the parties in support of their claims, with the principal disputes identified. {This case was originally filed in state court, and the state court permitted Doe to proceed anonymously. A motion to require Doe to proceed under her real name was pending when Doe's case was dismissed with prejudice.}
The record reflects that the Doe and Movahed were getting on well when they checked into the hotel; there is no evidence of any antecedent arguments or discord. After checking into the hotel, the parties shared a bottle of wine and had "consensual intercourse with enthusiastic and ongoing consent." (Doe's words.) Later, they walked to a nearby restaurant and met up with three friends of Movahed. Doe claims to have consumed three, or possibly four, beers, an Old Fashioned, and a shot of whiskey, and to have eaten a bowl of chili, while at the restaurant. Upon leaving the restaurant, Movahed invited his friends back to the hotel suite.
Doe says that she was inebriated and began to feel nauseous when the group drove from the restaurant back to the hotel. The parties dispute the degree of Doe's intoxication; Movahed notes that Doe was able to walk from the car to the hotel suite while Doe says that after returning to the hotel, she was so intoxicated that she next remembers only sitting in the bathroom vomiting into the toilet and later vomiting into an ice bucket while in bed, and on the sheets. For some portion of this time, Movahed and his friends were out on the hotel balcony drinking.
From Montana Supreme Court Justice James Jeremiah Shea's concurring opinion Tuesday in City of Kalispell v. Doman:
I concur fully with the Court's Opinion. I write separately only to highlight the exchange that occurred between Officer Minaglia and Doman, as set forth in the Court's Opinion. As the Court accurately notes, nobody disputed Doman's right to film the officers conducting the traffic stop—this included Officer Minaglia, whose first words to Doman upon exiting his car were: "Hey brother, I don't mind if you film … just do me a favor and kind of go a little bit a ways."
In response to Doman's statement that he was engaging in "First Amendment protected activity," Officer Minaglia stated "Right, I agree." As Doman repeatedly asserted his right to video the traffic stop, Officer Minaglia repeatedly agreed with him, stating: "I agree, just do me a favor and get out of where we're working, and you can totally film from right over here by this tree." It was only after Officer Minaglia's repeated requests that Doman move back from the scene while he recorded the traffic stop that Officer Minaglia arrested Doman for obstructing a peace officer.
Because Doman failed to preserve his constitutional arguments for appeal, this case ends up being only about whether or not the State presented sufficient evidence at trial to support Doman's conviction of the misdemeanor charge of obstructing a peace officer. That being the case, this Opinion likely will not warrant much, if any, notice from either the public or the press.
The pity in that is what will also be lost is an accounting of the professionalism that Officer Minaglia exhibited in this encounter. Regardless of whether you think that Doman was guilty of obstruction or even what you might think of the merits of his constitutional challenges—had they been preserved—you would be hard pressed to view the video of this encounter and conclude that it should have been handled any differently from a public engagement standpoint.
This bears noting because we are constantly inundated with images of violent and confrontational encounters between law enforcement and citizens who are attempting to record and document their interactions with law enforcement. The encounter in this case stands in stark contrast to those images. But when those are the only images you see, it's easy to think that is how these encounters typically unfold.
Having reviewed the record in countless cases that involved encounters between law enforcement and the public during my tenure on the Court, I would contend that Officer Minaglia's handling of this situation represents the norm rather than the exception, at least here in Montana, and stands as an example of how these encounters can be and are professionally handled. It is unfortunate that the video of this encounter will likely go the way of the Lost Ark because it doesn't make for good clickbait.
Here's what appears to be the video; the interaction with the police officer starts at around 1:45 into the 2:31 running time:
A district court concluded plaintiff had adequately alleged (it's all just allegations at this point) that the article included false and defamatory statements, but hadn't adequately alleged the statements were knowingly or recklessly false, and hadn't adequately alleged damages.
Excerpts from yesterday's decision by Judge Sheri Polster Chappell (M.D. Fla.) in Shriteh v. NYP Holdings, Inc. (with, as usual, some inevitable oversimplification of some of the legal points):
This is a defamation case. Plaintiff operates seventeen vape (or e-cigarette) retail stores in southwest Florida under the trademark name "the King of Vape." Christenson, writing for the New York Post, authored and published an article about Plaintiff titled, "Florida's Israel-hating 'King of Vape' Faces Bipartisan Crackdown on Sale of Illicit, Kid-Friendly Chinese E-cigs." The following is a summary of the article.
Plaintiff, a.k.a. the "King of Vape," is the co-founder of Safa Goods, one of the largest vape distributors in the United States. Safa Goods sells Chinese-produced vape brands in over a dozen "King of Vape" retail stores in southwest Florida. New York Attorney General Letitia James sued Safa Goods (among others) for illegal and fraudulent business practices that target underage e-cigarette users. United States Senator Ashley Moody also announced plans to protect children from illicit vapes. In Florida, Governor Ron DeSantis has cracked down on illicit vape sales. And the Food and Drug Administration is doing the same. All this government action, according to the article, demonstrates the "hotseat" in which Plaintiff sits "as lawmakers and officials try to throttle his distribution of illicit e-cigarettes manufactured in China."
According to the article, Plaintiff not only sells illicit vapes, but also has a "history of anti-Israel advocacy," which shows he is an Israel-hater. In February 1991, an Israeli court found that Plaintiff aided Hamas while working as a freelance reporter in the Gaza Strip. The Israeli judge found that Plaintiff "crossed the line in his work as a journalist" and "became an activist for a terror organization" by reporting information from a Hamas leaflet to readers. Defendants obtained this information from a 1991 New York Times article, which they hyperlinked in their article. Plaintiff also authored a 2003 book Beyond Intifada: Narratives of Freedom Fighters in the Gaza Strip, which covered the uprising of Palestinians against Israel beginning in 1987. And Plaintiff's relative (and director of Safa Goods) previously worked at United Nations Relief and Works Agency for Palestinian Refugees. The United States ceased all funding to this organization because some of its employees helped Hamas conduct the October 7, 2023, attack that killed 1,200 people.
After Plaintiff complained about the article, Defendants published a revised version titled, "Florida's 'King of Vape' Faces Bipartisan Crackdown on Family's Sale of Kid-Friendly Chinese E-cigs." However, the revised article still [allegedly] includes defamatory statements.
Plaintiff sued for libel, claiming these statements were "materially false" and defamatory:
- Plaintiff was the cofounder of Safa Goods;
- Plaintiff is involved in a lawsuit filed by New York Attorney General Letitia James;
- Plaintiff sells illicit goods to minors;
- Plaintiff is an "Israel hater" with a history of anti-Israel advocacy; and
- An Israeli court ruled that Plaintiff was a supporter of the terrorist organization, Hamas.
Relatedly, "Although not alleged to be false, Plaintiff also objects to the article's statement that Plaintiff's relative previously worked at an organization with employees who helped Hamas conduct the October 7, 2023, attack. He alleges Defendants included this statement 'in a transparent attempt to link [Plaintiff] with terrorism and further tarnish his reputation.'"
The court concluded that plaintiff was a public figure:
From Roe v. Gowl, decided yesterday by Judge Jesse Furman (S.D.N.Y.):
The Court previously ordered Plaintiff, who is currently proceeding without counsel and has been temporarily granted leave to proceed under the pseudonym "Jane Doe," to either consent to electronic service via ECF or move to participate as an ECF filer no later than February 10, 2026. On that date, the Court received a communication from Plaintiff, attached here, indicating that she had been advised that she could not create a PACER account under the pseudonym "Jane Doe" and asking the Court for guidance.
The undersigned spoke with members of the Clerk's Office, who explained that creating a PACER or ECF account in the name "Jane Doe" is not feasible because of the volume of "Jane Does" in the ECF system. To resolve this issue, permit Plaintiff to maintain her anonymity (as long as she is permitted to proceed pseudonymously), and ensure that Plaintiff receives filings in a timely fashion as long as she is proceeding without counsel, the Court will change Plaintiff's pseudonym to "Marcia Roe." Plaintiff should create a PACER account using the name "Marcia Roe" for the purposes of this litigation. Plaintiff should also create a new email address using that name to open that PACER account….
This reminded me of my broader concerns with the overuse of Doe (and for that matter Roe), which led me to publish an article in Judicature called "If Pseudonyms, Then What Kind?" You can read the PDF here and the text here; here are the opening sections:
[* * *]
Writers may have their noms de plume; revolutionaries may have noms de guerre. Here, though, we will speak of (to coin a phrase) the noms de litige, and ask: When pseudonymous litigation is allowed, what sorts of pseudonyms should be used? In particular, how can we avoid dozens of Doe v. Doe precedents or Doe v. University of __, all different yet identically named? This piece discusses some approaches to achieving the twin goals of pseudonyms: protecting privacy and avoiding confusion.
Courts generally disfavor pseudonymous litigation, but sometimes allow it.1 Indeed, they sometimes themselves pseudonymize cases for publication, even when the party names remain in the court records.2 Both courts and parties also sometimes pseudonymize the names of nonlitigant witnesses and victims. But what kinds of pseudonyms should be preferred? There are many options, including:
(I focus here on pseudonyms chosen for the purpose of litigation; when parties already have well-established pseudonyms, for instance as authors, there may be reason to retain them, assuming that such pseudonymity in litigation is found to be allowed.18)
Each option, unsurprisingly, has its strengths and weaknesses.
2/12/1965: Justice Brett Kavanaugh's birthday.
What’s on your mind?
It was notable that the GOP members and witnesses made little effort to actually defend the legislation in question.
Yesterday, I testified against the proposed "Preserving a Sharia-Free America Act" at a hearing before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government. This proposed legislation would bar or deport virtually all non-citizen Muslims from the United States by mandating that "Any alien in the United States found to be an adherent of Sharia law by the Secretary of State, Secretary of Homeland Security, or Attorney General shall have any immigration benefit, immigration relief, or visa revoked, be considered inadmissible or deportable, and shall be removed from the United States."
My written testimony is available here. In it, I explained why the proposed law violates the Free Exercise and Free Speech clauses of the First Amendment, and why - if enacted and upheld by the courts - it would set a dangerous precedent, cause great harm to many thousands of innocent people, and damage US national security by giving a propaganda victory to radical Islamist terrorists. The other witnesses' written testimony is available here.
I embed the video of the oral testimony and hearing below. The hearing featured lots of political grandstanding, as is perhaps to be expected. So I can well understand if some readers decide watching the whole thing isn't worth their time. For those interested, my own opening statement runs from about 1:03 to 1:08:
Notably, the GOP members on the Subcommittee and the other three witnesses (all called by the Republicans; the minority party is allowed only one witness, in this case me) mostly didn't even try to defend proposed bill. Instead, they focused on various issues with Sharia law that - even if valid - would not require mass deportation or exclusion of migrants to address.
I won't try to go over the testimony of the other three witnesses in detail. Many of the concerns they raised were hyperbolic, often to the point of ridiculousness. No, there is no real threat that Sharia law is somehow going to take over the US legal system or that of the state of Texas (the focus of much of the testimony). And it is no grave threat to American values if some Muslims plan to establish a private compound where they live in accordance with their religious laws, especially since it turns out the compound in question will not actually enforce Sharia law on residents. Other religious groups do similar things all the time.
On the other hand, there may be some merit to Stephen Gelé's concerns that US courts sometimes enforce judgments issued by Sharia courts in Muslim dictatorships, in cases where they should not, because it would have harmful or illiberal consequences (e.g. - child custody rulings). The solution to such problems, however, is not to deport Muslim immigrants, but to alter the relevant legal rules on comity and conflict of laws. And, in fairness, Gelé's testimony did not recommend deportation and exclusion as a fix. If Texas courts are giving too much credence to some types of foreign court decisions, the GOP-dominated Texas state legislature can easily fix that problem!
Finally, the opposing witnesses and others who fear the supposed spread of Sharia law and the impact of Muslim immigrants often act as if Islam and Sharia are a single, illiberal monolith, irredeemably hostile to liberal values. In reality, as noted in my own testimony, there is widespread internal disagreement among Muslims about what their religion entails, as is also true of Christians and Jews. Most Muslim immigrants in the US are not trying to impose Sharia on non-Muslims, or establish some kind of Islamic theocracy. Indeed, many are themselves refugees from the oppression of radical Islamist dictatorships, such as those in Iran and Afghanistan.
My Cato Institute colleague Mustafa Akyol - a prominent expert on Islamic political thought - makes some additional relevant points on the diversity of Muslim thought in a recent article.
Some Muslims do indeed have awful, reprehensible beliefs on various issues. But there are lots of ways to address any danger that poses, without resorting to censorship, discrimination on the basis of religion, mass deportation, and other unconstitutional and repressive policies. The most obvious solution is to simply enforce the First Amendment's prohibitions on the establishment of religion, and persecution and discrimination on the basis of religious belief.
This was the third time I have testified in Congress. The other two times were at the invitation of Senate Republicans (see here and here). The issues at the three hearings were very different. But in each case, I tried to defend limits on government power that are essential to protecting individual rights to life, liberty, and property. I doubt my testimony had any great impact. But perhaps it made a small difference at the margin.
Now out in the Harvard Law Review.
I was very pleased that the new issue of the Harvard Law Review includes a book review of my 2025 book, The Digital Fourth Amendment. The review, by Jennifer Granick of the ACLU, is here: Fourth Amendment Equilibrium Adjustment in an Age of Technological Upheaval.
If you want to buy the book, you can get it here. If you want to listen to the first hour of the audiobook for free, you can listen that here (the book starts 75 seconds in, after an introduction by the audio book company).
The Environmental Protection Agency is reportedly prepared to rescind the "endangerment finding" that underpins the regulation of greenhouse gases under the Clean Air Act.
Tomorrow the Environmental Protection Agency (EPA) is expected to release its final rule rescinding the "endangerment finding" for greenhouse gases. By taking this step, the Trump Administration is hoping to undercut the federal regulation of greenhouse gases and deprive the EPA of any authority to adopt such rules under the Clean Air Act.
I am on record arguing that this is a risky move. As a legal matter, attempting to undo the endangerment finding is not as simple or straightforward as many political commentators seem to think. The rule will immediately be subject to legal challenge, initially in the U.S Court of Appeals for the D.C. Circuit, which is not the most friendly venue for aggressive deregulatory moves. As the New York Times reported, the Administration is nonetheless hoping that it can get this issue before the Supreme Court before the end of the Trump Administration, lest a new administration undercuts the defense of the rule.
It is hard to handicap any prospective legal challenge to the final rule rescinding the endangerment finding until it is released, as much will depend on the specific strategy the EPA has adopted, and how well that strategy is executed.
For background on the legal issues and what may be in store, here are some of my posts on the subject:
More to come!
Commandeering, the Shadow Docket, and Unsustainable Assertions of Executive Power
Just a quick post to note some upcoming talks and presentations.
The court also draws an interesting analogy to self-defense rights.
From a decision Monday by Judge Lynn Winmill (D. Idaho) in Seyb v. Members of Idaho Bd. of Medicine:
At issue [in this case] is not the general right to abortion—definitively rejected in Dobbs—but the right to self-preservation.
In Idaho, the Defense of Life Act makes abortion a felony except when necessary to save the life of the mother (unless her death would be due to self-harm) and for a small subset of rape and incest victims. The law does not contain an exception for pregnancies that will cause serious and permanent harm short of death. Essentially, pregnant women are required to sacrifice their health for the sake of the fetus—even if the fetus will, tragically, not survive past birth….
But the record before the Court provides significant evidence that {the right to a medically indicated abortion} is deeply rooted in our nation's history, bound up with traditional and fundamental principles such as self-defense and necessity. For centuries, a range of legal and medical authorities have recognized that abortion is not a crime when performed to protect a woman's health and safety….
[1.] The History-and-Tradition Test
From Judge Carl Nichols' opinion Monday in Smartmatic USA Corp. v. Powell (D.D.C.):
Smartmatic USA Corp. [and related companies] sued Sidney Powell for making allegedly defamatory statements about Smartmatic's role in the 2020 election. Powell moved to dismiss the complaint ….
Powell raises four categories of substantive challenges to Smartmatic's underlying claims. She contends that Florida's single publication/action rule bars Smartmatic from asserting claims for both defamation and injurious falsehood based on the same statements. She argues that the Court should dismiss Smartmatic's injurious falsehood claims for failing to plead special damages. She contends that several of Smartmatic's defamation claims are deficient for not pleading special damages because they actually sound in injurious falsehood. And she argues that the Court should dismiss certain claims that are supported only by statements made by individuals other than Powell….
The court concluded that Florida law does allow suing both over defamation and the related tort of injurious falsehood, and that Smartmatic had adequately alleged damages. And it had this to say about Powell's argument that Smartmatic hadn't sufficiently alleged defamatory statements by Powell:
Counts II and VIII allege defamation and injurious falsehood where "Ms. Powell, Mr. Giuliani, and Fox published and/or republished false statements and implications … that Smartmatic's election technology and software were widely used in the 2020 U.S. election including in contested states where claims of election fraud were made." These claims rely on two of Powell's statements: (1) "[T]his is a massive election fraud. And I'm very concerned it involved, not only Dominion and its Smartmatic software, but that the software essentially was used by other election machines also," and (2) "We're talking about the alteration and changes in millions of votes …. Computers being overwritten to ignore signatures. All kinds of different means of manipulating the Dominion and Smartmatic software, that of course we would not expect Dominion or Smartmatic to admit." Powell contends that "neither involve the contention that Smartmatic's election technology and software were widely used."
From DelVechhia v. Frontier Airlines, Inc., decided Tuesday by the Ninth Circuit, in an opinion by Judges Michael Daily Hawkins and Johnnie Rawlinson:
[1.] Peter DelVecchia, a White man, and his adopted son A.D., who is Black, sued Frontier Airlines, Rex Shupe (a Frontier pilot), and Scott Warren (a Frontier flight attendant) for racial discrimination under 42 U.S.C. § 1981….
Plaintiffs have produced sufficient evidence of racial discrimination under § 1981 to survive summary judgment. A jury could conclude that the decision to separate plaintiffs during the flight arose from the flight attendants' disbelief that the plaintiffs were related given their different races, and that the flight attendants more generally viewed plaintiffs with suspicion because they were of different races.
Frontier points to the fact that one flight attendant said she witnessed Peter caressing A.D.'s face in an unusual manner, as well as Warren's report that he had seen Peter with his hand on A.D.'s crotch while the pair were asleep. But as to the former, a jury could conclude that the alleged caressing was appropriate behavior as between a parent and child of A.D.'s age, and that the reason it raised suspicion was because of the plaintiffs' races. In addition, no other person saw Peter with his hand on A.D.'s crotch, including the passenger seated in the same row, so that issue depends on Warren's credibility as a witness.
In addition, after the flight landed, one flight attendant mentioned a human trafficking class and the fact that plaintiffs have different races when discussing the incident with police on the ground. On this record, a reasonable jury could conclude that Frontier's decision to separate plaintiffs during the flight was based on racial biases and denied plaintiffs the equal right to contracted-for services based on race….
Problems ahead for the Trump administration
The Harvard Journal of Law and Public Policy has just published a symposium issue on the birthright citizenship debate. The focus of those contributions is on the original meaning of birthright citizenship in the United States and in the Fourteenth Amendment. Contributors include Ilan Wurman, Gerard Magliocca, and me. I am grateful to the heroic efforts of the editors at the journal for getting this issue ready and out in such a timely manner.
My piece -- By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States -- focuses on the content, scope, and qualifications of the common law rule of birthright citizenship as it developed in England and was carried into the United States and eventually embodied in the text of the Fourteenth Amendment. In doing so, it reaffirms the traditional view that birthright citizenship would extend to children of unauthorized aliens born in the United States and critiques revisionist theories old (Eastman) and new (Wurman, Lash).
From the introduction to the paper:
The conventional wisdom is right, and the Executive Order is wrong. Children born within the territory of the United States are natural-born citizens except under very narrow exceptions. Those historically recognized exceptions do not include the case of unauthorized aliens, and there is nothing about the logic of those exceptions that make them analogous to the modern situation of unauthorized aliens.
This Article reinforces the traditional view of the narrow exceptions to birthright citizenship by reconsidering the common law and statutory precursors that the constitutional language of the Fourteenth Amendment was understood to recognize and entrench. In particular, it pushes back against the new, revisionist view that alien parents must owe a robust form of allegiance to the United States and be members of the polity in order for their infants born within the United States to receive the benefit of birthright citizenship. This is a misreading—and indeed a reversal—of the common law rule that the Fourteenth Amendment embodies.
You can read the whole thing here.
The Supreme Court will hear oral arguments on Trump's executive order excluding birthright citizenship to children of unauthorized aliens and temporary visitors on April 1.
From Heckman v. Village of Shannon, decided Monday by Judge Iain Johnston (N.D. Ill.):
Unless noted, the following allegations come from [Dawn] Heckman's complaint, accepted as true for the purposes of this motion.
A village [of Shannon] ordinance prohibits sexual harassment. Significantly, the ordinance is not limited to prohibiting sexual harassment in the workplace. According to the ordinance, "It is a policy of the village to prohibit harassment of any person by any municipal official, municipal agent, municipal employee or municipal agency or office on the basis of sex or gender." The ordinance then identifies conduct that may constitute sexual harassment. The list includes, among other things, "sexual innuendos, suggestive comments, insults, humor, and jokes about sex, anatomy or gender-specific traits."
Heckman is no stranger to Shannon's Village Board and Village President. She often attended village board meetings and criticized village policies. In 2025, she ran unsuccessfully for village president, losing to Ryan Shaner….
Heckman's strained relationship with village officials came to a head on May 6, 2025. That night, after a village board meeting, Heckman went to a local bar. Also at the bar were [village trustee Butch] Meinders, another village trustee (Steve Miller), and the village's chief of police (Michael Lewis). Heckman discussed village business with Meinders and Miller. At one point, Heckman pulled her left arm out of her shirt to show the bartender her new tattoo. Meinders saw this and said, "Here I thought you were going to whip your titties out and flash me." As Heckman then attempted to leave, Meinders said, "Sitting next to you all night has me horny, I'm going home to bother my wife." Meinders later falsely told an unnamed community member that Heckman had an inappropriate relationship with another member of the community. Meinders also allegedly told community members that he would not be held accountable for his conduct because of his position as trustee.
2/11/1803: Marbury v. Madison is argued.
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