The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

In Philadelphia For The Fourth Of July

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My family spent the Fourth of July in Philadelphia. This was a last-minute decision, but it was the right one. Much to my surprise, decent mileage tickets were available only a few days in advance, and there were plenty of hotel rooms available for points. Indeed, even with a World Cup game on Saturday, the city still had plenty of capacity. (It would have been poetic if the United States faced off against England on the Fourth of July.)

I had not been to Independence Hall and the Liberty Bell in more than a decade, and this would have been the first time doing so with my kids. Alas, the circumstances did not allow. It was over 100 degrees and the lines were never-ending. Also, Independence Hall did not permit any water past security. This was not going to work for youngins. In the morning, the line wrapped around the block. At 3:00 p.m., the line for Independence Hall was still nearly two hours long, so I did it solo.  Still, I have to think of our forefathers who toiled in that same heat, with the windows drawn at Independence Hall. We have little to complain about. Indeed, every time I visit Independence Hall, I marvel at how small the room is. The famous painting by John Trumbull was not intended to be an accurate depiction. There was barely enough space to fit 50-odd chairs.

We did spend some quality time at the National Constitution Center, which was (thankfully) air conditioned. They had free admission, and lots of activities for kids. We also took a walk to Betsy Ross's house, which I had not visited since I was a little kid. There was a kind actress playing the role of Betsy Ross. She demonstrated how Ross was able to make a five-pointed star by folding paper and making a single cut. It was very kid-friendly. Still, I didn't know that there is no actual documentary evidence that Ross made the first American flag in June 1776. ndeed, we don't even know if Washington ever actually visited Ross's house. The best evidence we have are stories that Ross and her family told years later. I The story is more complex than I remembered.

We also visited the National Museum of American Jewish History, which I had not been to before. I've read that Jewish museums throughout the world have had low attendance, so I made a point to patronize it. On Sunday afternoon, the museum was practically empty. I thought this museum did an excellent job telling the story of Jews in America from the 17th century to the present.

Back to Independence Hall. As I walked through the site, I thought of the litigation over the President's House, and the White House's recent critical report of the Smithsonian Institute. The report concluded:

The report identifies a broad pattern: the Founders are minimized, if not entirely excluded; traditional patriotic narratives are treated with suspicion, if not outright contempt; and the basic symbols and stories that once helped unify Americans are presented not as reasons for gratitude and inspiration, but as objects to be inherently questioned, dismantled, "problematized,"17 and reinterpreted to achieve ideological ends.

I could not agree more.

Let me give you two examples. At Independence Hall, the rangers handed out maps that highlighted different locations around town. Each location had a short blurb.

First, there was the Declaration House:

In 1776 Thomas Jefferson, accompanied by enslaved valet Robert Hemmings, rented two rooms on the second floor. Jefferson drafted the Declaration of Independence here. The house was rebuilt in 1975.

Why is it necessary here to mention that Jefferson was accompanied by Hemmings? Jefferson wrote what might be the most important document in world history, and that fact comes after who accompanied him. That fact is irrelevant and only serves to diminish Jefferson. And to what end? Everyone knows Jefferson owned slaves. It gets worse.

Second, there was the President's House Site:

George Washington and John Adams created the office of president while living and working at this site. Washington's large staff included at least nine enslaved Africans. Adams never owned slaves. Hired servants, possibly including enslaved African Americans, worked in the household.

Our first President lived in this House. He made countless decisions that affected the fate of the nation in this building. But all we learned is that Washington employed slaves. And John Adams, who opposed slavery, is still tainted with the charge that he possibly employed enslaved Africans. Whoever made this map was trying to advance an agenda.

I've given a lot of thought to Justice Jackson's dissent in Barbara. (Much more about that case in due course.) KBJ is so concerned about erasure. The bigger concern, in my view, is not erasure, but the deliberate distortion of American history. The Patriots who founded this country should be celebrated, not unduly denigrated. And every effort to push back against this brazen indoctrination is worthwhile.

Free Speech

"Who, It Is Fair to Ask, Is Retaliating Against Whom in This Situation?"

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From Amacher v. City of Tullahoma, decided June 25 by the Sixth Circuit (opinion by Judge Jeffrey Sutton, joined by Judges Joan Larsen and Eric Murphy); for a recent case involving the same plaintiff but a different incident, see also Coffee County Clerk Candidate Indicted for Using Fake Address on Election Petition, DA Says (WSMV-4, Kassidy Brown, June 11):

In August 2020, the people of Tullahoma elected [Jenna] Amacher to a three-year term as an alderman. Amacher did not hide from controversy, whether in that role or outside of it. One example: She opposed a local redevelopment plan that many local leaders and residents supported. Another example: She took more conservative political positions than her fellow aldermen. Still another example: She posted a photo on Facebook of her and her sister-in-law at a "redneck Christmas party" posing in front of a Confederate flag with a sign that read, "[w]e go together like cocaine and waffles." Her political stances alienated some residents and officials, and the photo "shocked" Tullahoma Mayor Ray Knowis and "bother[ed]" City Administrator Jennifer Moody.

The Tullahoma charter requires aldermen to live within the City and provides that an alderman "vacates" her office by moving her residence outside of the City. In February 2021, Amacher sold her home in Tullahoma and moved into her grandfather's former house, which is located outside of the City. For about six months, she did not own any property in the City. In August 2021, Amacher bought an unimproved lot in the City, on which she planned to build a new house. But the plan did not come to fruition for some time. She started construction in the Fall of 2021, suffered delays due to a tornado, then experienced further delays due to the Covid-19 pandemic. Construction did not begin in earnest until early 2023. In the meantime, Amacher continued to live outside of the City, between at least February 2021 and March 2023, while remaining an alderman.

In February 2022, Amacher ran for a seat on the county commission and listed her house-free property in the City as her residence. The designation raised the suspicion of the county election commissioner who questioned whether Amacher lived in the district. The commissioner told Moody, the city administrator, about Amacher's uncertain residency status. In May 2022, Amacher lost the primary election for the county commission seat.

Even so, a local resident, Scott Van Velsor, collected 270 signatures to ask the district attorney to investigate Amacher's residency because she continued to serve as a Tullahoma alderman. In October 2022, with the support of several citizens, the district attorney sought a writ of quo warranto from a Tennessee state court, requesting Amacher's removal from office due to her lack of residency in the City. In December, the district attorney amended the petition to name Van Velsor as the relator and another Tullahoma resident, Jim Woodard, as the guarantor for a $500 bond to cover court costs if the petition failed.

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Disability Law

No Shoes, No Service, Even if You Claim a Disability

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From Wednesday's decision by Judge Rebecca Pennell in Niederquell v. Dosanjh Enterps.:

The primary issue before the Court is whether Defendants violated Title III of the Americans with Disabilities Act (ADA) by enforcing a footwear policy at its 7-Eleven store, despite Mr. Niederquell's protestation that he has an impairment preventing him from wearing shoes.

The Court concludes Defendants have not violated the ADA. Defendants' footwear policy is a legitimate health and safety measure that may be imposed despite Mr. Niederquell's alleged disability. Furthermore, Defendants have offered Mr. Niederquell remote purchasing options that adequately accommodate Mr. Niederquell's circumstances and afford him full and equal access to Defendants' goods….

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American Revolution

Writings on the Declaration of Independence and the Meaning of the American Revolution

Links to some of my previous writings on these topics, which remain relevant on the 250th anniversary of the Declaration.

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The Declaration of Independence. (National Archives.)

 

Today is the 250th anniversary of the Declaration of Independence.

Over the years, I have written various posts and articles on the American Revolution and the ideals of the Declaration of Independence and the American Founding. Some have obvious continuing relevance to such issues as identity politics, nationalism, immigration, the role of slavery in American history, and more. Particularly relevant, given recent political developments, are the various pieces on the liberal universalist ideals of the Founding and their opposition to ethno-nationalism.

This post is an expansion of last year's similar compendium.

I hope the links are useful, and stir reflection on the principles of the Declaration. Unless otherwise noted, all of these pieces were published as posts on the Volokh Conspiracy blog. I put them in chronological order:

"The Declaration of Independence and the Case for Non-Ethnic Secession," July 4, 2009. Why the American Revolution was different from most modern independence and secession movements.

"Frederick Douglass on Immigration," April 10, 2014. A discussion of Frederick Douglass's great 1869 speech on how American ideals require openness to immigration.

"The Declaration of Independence and the Case for a Polity Based on Universal Principles," July 4, 2017.

"The Universalist Principles of the Declaration of Independence," July 4, 2019. Why it matters that the Declaration elevates universal liberal principles over racial, ethnic, and cultural particularism.

"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding claims - advanced by critics on both right and left - that the Revolution did more harm than good.

"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. I think Douglass's speech may be the greatest-ever Fourth of July oration.

"Juneteenth and the Universalist Principles of the American Revolution," June 19, 2021. Why there is no inconsistency in celebrating both July 4 and the abolition of slavery. Indeed, the two are mutually reinforcing.

"Immigration and the Principles of the Declaration of Independence," July 4, 2021. This piece explains why the ideals of the Declaration and the Founding require free migration rights.

"Juneteenth Celebrates a Great American Achievement," June 19, 2023. An extension of some of the key points made in my 2021 Juneteenth post, linked above.

"The Declaration of Independence Promotes Individual Liberty More than Collective Self-Determination," July 4, 2023. The "liberty" the Declaration advocates is more about individual freedom than the power of majorities to rule over the rest of society, or the power of ethnic groups to rule "their" territory.

"The Case Against Nationalism," National Affairs, Winter 2024 (with Alex Nowrasteh). This article is a more general critique of nationalism. But it includes a section explaining why nationalism is inimical to the ideals of the Declaration and the Founding.

"Trump vs. the Declaration of Independence," July 4, 2025. Several items on the Declaration of Independence list of grievances against George III also apply to Trump today, most notably on immigration, trade, and deportation without due process. Like King George, he is "unfit to be the ruler of a free people."

"Gordon Wood on America as a "Creedal Nation" Open to all Races and Ethnicities," Nov. 22, 2025. My analysis of a speech by the greatest historian of the American Founding discussing the universal nature of the ideals of the Founding.

"1776 All-Stars: Why George Mason Is Extremely Underrated," Reason, July 2026. My discussion of the contributions of a crucial Founding Father.

"My House Judiciary Subcommittee Testimony Against the "Preserving a Sharia-Free America Act," Feb. 9, 2026. Summary of my testimony before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government, explaining why discrimination against immigrants based on their speech and religion is unconstitutional and contrary to the ideals of the Founding. The testimony itself is available here.

Free Speech

Court Rejects Professor's Claim That Discontinuation of University DEI Offices and Programs Violated Professor's Rights

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From Judge Matthew McFarland (S.D. Ohio) Thursday in Rice v. Schell; the analysis seems basically correct to me:

[T]he Advance Ohio Higher Education Act ("S.B. 1") … touches upon, among other things, the discontinuation of offices and orientation programs related to diversity, equity, and inclusion ("DEI") at public universities. Miami University is one such state university that has closed certain committees, entities, and programs related to DEI — both before and after S.B. 1 became effective.

A tenured professor now seeks judicial relief to reinstate these entities and programs on constitutional and statutory grounds. This request raises several questions, including the fundamental question of who decides which committees, entities, and programs a public university should maintain. As for the limited question presented here, the record does not demonstrate that Plaintiff—an individual professor unimpeded in his classroom teaching, scholarship, research, or publications—can proceed with his claims in federal court….

The Court starts by outlining what is at issue in this case and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law on institutional autonomy grounds or otherwise. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving abridgment of a professor's speech in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events.

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Judge's Conclusions About Risks of Identification for ICE Officers

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From U.S. v. Virginia, decided yesterday by Judge Robert Payne (E.D. Va.); these conclusions played a role in the court's "irreparable harm" analysis, one of the factors that the court had to consider in deciding whether to grant a preliminary injunction:

The record in this case shows that, with increased enforcement activity and the resistance thereto, there came to be "increasingly common threats of targeted harassment of and retaliation against federal immigration officers for simply doing their jobs." In particular, it is shown by the affidavit of Eric S. Weiss, the Deputy Field Office Director for the United States Department of Homeland Security, United States Immigration and Customs Enforcement, Enforcement and Removal Operations ("ERO") division, that:

Individuals, including immigration activists and other members of the public, routinely photograph, film, and publish online ICE ERO enforcement actions to include the personal identities of ICE officers and other federal task force personnel. The photographs and films are posted online for the sole purpose of intimidating and harassing government employees and are directly used by members of local organized crime and transnational criminal organizations in serious and potentially deadly ways.

That activity is commonly referred to as "doxxing." According to Weiss, "ICE personnel regularly observe and overhear individuals shouting phrases such as 'doxx these people,' 'find out who they are and where they live,' and 'we will find out who you are and who your family members are.'" Weiss also avers that there is credible intelligence showing that Mexican criminals coordinating with domestic extremist groups:

have placed targeted bounties for the murders of ICE and CBP personnel in a tiered bounty system. Cartels have disseminated a structed bounty program to incentivize violence against federal personnel, with payouts escalating based on rank and action taken.

The bounty system includes $2,000 "for gathering intelligence or doxxing ICE officers," $5,000 to $10,000 "for kidnapping or non-lethal assaults on standard ICE/CBP" officers and agents, and up to $50,000 "for the assassination of high-ranking officials."

According to the record, "[d]oxxing of ICE officers/agents has also been encouraged across the web." For example, "ICESpy.org, ICEList.is, and ICEList.info" are sites that "perpetrat[e] the doxxing of ICE staff and contractors."

Also, some who oppose the current modes of enforcing the immigration laws take pictures of ICE officers' faces and run those pictures through facial recognition applications so that the pictures can be searched through social media. Experience has shown that, when an identification of the officer is thereby made, the search continues to identify the ICE officers' family members and to locate the homes of the agents. Those findings are then posted on the anti-ICE websites which urge harassment of the ICE officers and interference with them in the conduct of their jobs in enforcing immigration laws.

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Federalism

Virginia Law Banning Law Enforcement Officer Masks Blocked as to ICE

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From U.S. v. Virginia, decided yesterday by Judge Robert Payne (E.D. Va.):

On May 20, 2026, citing concerns that federal law enforcement officers were "undercut[ting] basic expectations of accountability, sow[ing] fear and confusion, and erod[ing] the public trust," Governor Abigail Spanberger signed the Mask/Identity Law. The Mask/Identity Law makes it a misdemeanor [with some exceptions] for a "law-enforcement officer" to "wear a facial covering that conceals, obscures, or otherwise covers his face while such law-enforcement officer is engaged in the performance of his official duties." A "law-enforcement officer" includes both state and federal law enforcement officers….

The court concluded that the law likely couldn't be applied to federal officers; that result seems correct to me, given the precedent limiting state attempts to control federal officers' performance of their jobs:

The United States argues that the Mask/Identity Law directly regulates ICE's enforcement of the federal immigration laws. The United States relies heavily on the decision in U.S. v. California (9th Cir. 2026). The Ninth Circuit's analysis focused on California's mandate of "visible display of identification" for law enforcement. As the Ninth Circuit correctly explained, there is a direct regulation of the government where a state law, "lays hold of federal officers in their specific attempt to obey orders and requires qualifications in addition to those that the [federal] Government has pronounced sufficient." {The district court found that the mask component of California's law discriminated against the Federal Government. That finding was not appealed.}

In Johnson v. Maryland (1920), the Supreme Court held that a federal postal service employee could not be convicted of violating a state law that required drivers in the state to have a state driver's license because doing so would "lay[ ] hold of" employees and require additional qualifications the Federal Government did not have for its own employees. When so doing, the Supreme Court distinguished state laws like driver's license requirements from a "general rule[ ]" that "incidentally" might affect "the mode of carrying out the employment" (citing "the mode of turning at the corners of streets" as an example of a permissible law). Applying, Johnson, the Ninth Circuit concluded that the California identification requirement "requires qualifications in addition to those that the [federal] Government has pronounced sufficient." In other words, California added requirements for federal officers to follow while conducting law enforcement activities, and thereby regulated the federal activity.

In U.S. v. Virginia (4th Cir. 1998), the Fourth Circuit found invalid a similar kind of state law that sought to regulate the FBI's use of private contractors by imposing hiring requirements beyond those that had been set by the FBI. Such additional requirements do "not merely touch the Government servants remotely by a general rule of conduct; [they] lay[ ] hold of them in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient."

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Some Thoughts on the Court's Opinion(s) in the Birthright Citizenship Case

Did any of the other Justices happen to notice Justice Kavanaugh's argument that the entire matter could have been disposed of on statutory grounds?

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Ilya Somin has already covered much of the Trump v. Barbara territory in his posting here on the VC a few days ago [available here], and I agree with everything he writes, including his terse summary: "The 6-3 decision was right, and a contrary ruling would have had horrific results."

I'll assume the basic framework of the case is familiar to you all.  If not:  The Citizenship Clause of the 14th Amendment says that anyone "born . . . in the United States and subject to the jurisdiction thereof" is a US citizen. The case turns on the meaning of those five italicized words: "subject to the jurisdiction thereof". Trump's Executive Order (#14160 [available here]) says that individuals born here whose mothers are present in the US "unlawfully" are not US citizens.  He asserts that this does not violate the Citizenship Clause because those individuals are not "subject to the jurisdiction of the United States" within the meaning of that phrase – at least, within the meaning of that phrase in 1868, when the Citizenship Clause was added to the Constitution.

Plaintiffs, needless to say, disagree, as does a majority of the Court.

Having now read through the six different opinions,*

*Roberts for the Court, Jackson concurring, Thomas dissenting, Alito dissenting, Gorsuch dissenting, Kavanaugh concurring in the result and partially dissenting. The entire set is available here.

a couple of points struck me as highly unusual and noteworthy.

In particular, Justice Kavanaugh's separate opinion – concurring (in Part I) in the Court's judgment (Executive Order 14160 is invalid), dissenting (Part II) on the underlying rationale for that invalidity – is an extremely interesting piece of judicial work, well worth a careful reading.

Justice Kavanaugh votes to invalidate Trump's Executive Order because, as he says, it "contravene(s) a federal statute." What statute, you ask? The Immigration and Nationality Act, 8 U.S.C. §1401(a), which "mirrors the text of the Fourteenth Amendment," providing that "All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Read More

Endangered species

The American Bald Eagle Is Back - But Don't Credit the Endangered Species Act

Many things contributed to the rebound and recovery of the bald eagle, but the nation's foremost species conservation statute deserves little credit.

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The American bald eagle--our nation's national bird and symbol--is doing well. Populations have been expanding for years, and are now approaching the levels estimated for the founding era.

Many policymakers, pundits and professional environmentalists want to credit the Endangered Species Act for the success of eagle recovery efforts. But try as they might, it is hard to find much evidence that the ESA (as opposed to other conservation laws and recovery efforts) did much good, for reasons I explain in the latest issue of PERC Reports, published by the Property & Environment Research Center in Bozeman, MT.

The biggest factor in the eagle's recovery was almost certainly the banning of DDT for most uses. But this was done prior to the enactment of the ESA, under a different law (and by the EPA, not the Fish & Wildlife Service, the latter of which administers the ESA). The eagle also received more targeted protection from other laws. The bald eagle was officially removed from the endangered species list in 2007, and since then populations have continued to soar without the ESA's protection.

There's more, but those are reasons to read the article. It concludes:

Americans should be pleased that bald eagle populations continue to expand. The growing number of bald eagles is a conservation success story. But given the act's longstanding and widespread record of failing to promote species recovery, we should be careful before attributing that success to the Endangered Species Act.

Jonathan H. Adler

[ And, yes, for those curious, I took the picture that accompanies this post.]

Harassment

HHS Video That Depicted HHS Group Director Wearing Allegedly Anti-Israel Symbols Wasn't Actionable Workplace Harassment

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The material to which plaintiffs are objecting, from the court filings.

An excerpt from Openden v. Kennedy, decided Tuesday by Judge Adam Abelson (D. Md.):

In June 2024, the Centers for Medicare and Medicaid Services (CMS) distributed a video internally to its employees as part of a "Coffee With" series. The June 2024 episode was an interview with Ronza Othman, the director of the EEO Compliance Group within CMS's Office of Equal Opportunity and Civil Rights. In the video, Ms. Othman, who is an attorney who happens to be blind and was holding a white cane, describes her hobbies, the challenges and opportunities of serving in a role like hers, and other aspects of her approach to her job.

Plaintiffs in this case worked for CMS at the time and are Jewish. They have sued the Secretary of the U.S. Department of Health and Human Services in his official capacity ("Defendant" or "HHS"), contending that the video constituted "severe, pervasive, and unwelcome harassment" on the basis of national origin and religion. They do not take issue with the content of the interview but rather with a scarf that Ms. Othman was wearing during the interview that both Plaintiffs and Ms. Othman have described a keffiyeh. Plaintiffs do not take issue with Ms. Othman wearing a keffiyeh as such, but rather focus on an image on it that includes a Palestinian flag, a map, and a hand with two fingers raised. Plaintiffs contend that they perceive the image as "advocating for the murder and slaughter of persons of Jewish heritage and faith, as well as the destruction of Israel."

HHS vigorously disputes that characterization, or the reasonableness of that perception. But for current purposes the Court need not wade into those disputes because for Plaintiffs' hostile work environment claim to proceed, they must allege either (1) that Ms. Othman was Plaintiffs' "supervisor" or (2) that after being put on notice of the allegedly harassing behavior HHS took "'no prompt and adequate remedial action to correct it.'" Plaintiffs' allegations do not allege facts that would satisfy either standard.

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