The Volokh Conspiracy Archive

This new article is here. The Introduction:

Artificial general intelligence is "probably the greatest threat to the continued existence of humanity." Or so claims OpenAI's Chief Executive Officer Sam Altman. In a seeming paradox, OpenAI defines its mission as ensuring "that artificial general intelligence—AI systems that are generally smarter than humans—benefits all of humanity."

Whether artificial general intelligence becomes a universal boon or an existential threat—or both—there is general agreement concerning its revolutionary potential. Indeed, Microsoft founder Bill Gates has called it "as fundamental an advance as the personal computer or the internet," and Google CEO Sundar Pichai has predicted that it will "bring about a more profound shift in human life than electricity or Promethean fire."

Thus far, AI systems are not generally smarter than humans. Not yet. Large Language Models (LLMs), however, are advancing at a startling pace. LLMs use artificial intelligence to synthesize massive amounts of textual data and then predict text and generate responses to users in "natural" human language. On a scale measuring the progress of LLMs toward general intelligence, OpenAI's flagship model, GPT-3 scored zero percent in 2020. Just five years later, OpenAI's o3-preview scored between 75% and 88%. Meanwhile, OpenAI competitors such as Anthropic, Google, and DeepSeek are likewise racing to deliver on the promise of "systems that can think and act rationally in ways that mirror human behavior and intelligence."

Even as LLM models make progress toward general intelligence, there are already AI systems that have exceeded human performance on narrow, clearly scoped tasks. For example, chess engines have been performing at superhuman levels for years, and AI models can now help detect breast cancer far earlier than human experts—and the models continue to improve. Meanwhile, OpenAI's o1 reasoning model has an LSAT score higher than the median student admitted to the law schools at Harvard, Yale, and Stanford.

As AI systems begin to mirror human thought, it pays to remember the words of Seneca: "[N]ot all mirrors stick to the truth." LLMs now regularly create outputs that appear to be the product of independent thought, but LLMs are essentially prediction engines that "answer" prompts (or inputs) by calculating which words are most likely to come next and then assembling them into an output. LLMs, as such, do not predict truth but instead predict probabilities. In doing so, they sometimes replicate false information common in their training data.

They also inevitably produce "plausible yet false outputs," commonly referred to as hallucinations. An LLM may produce fake legal documents, non-existent academic citations, or false biographical data. Although LLM producers and users can employ various tactics to reduce hallucinations, these errors cannot be eliminated. And they are quite prevalent. In fact, data gathered from multiple chatbots suggests that hallucinations occur in 3% to 10% of outputs, leading one legal scholar to dub LLMs "Large Libel Models."

From yesterday's decision by Florida trial court judge Hunter Carroll in Trump Media & Tech. Group Corp. v. Guardian News & Media Ltd.:

This action arises from the publication of several articles reporting on a federal criminal investigation related to TMTG's receipt of two payments totaling $8 million. On March 15 and March 17, 2023, the Guardian published two articles stating federal prosecutors in New York were conducting a money laundering investigation related to the payments, which were wired through the Caribbean from Paxum Bank and ES Family Trust, entities with ties to an ally of Russian president Vladimir Putin and a history of providing banking services to the sex worker industry. The articles report [TMTG co-founder Will] Wilkerson's statements that the origins of the loans caused alarm at TMTG and TMTG's then CFO weighed returning the money, but the money was ultimately not returned….

The Guardian articles were reported on by others. On March 15 and March 22, Penske published two articles in Variety that reported federal prosecutors investigated TMTG for potential money laundering violations related to the payments. On March 18, [Defendant Chris] Anderson published an article in the Sarasota Herald-Tribune that stated federal prosecutors were reportedly investigating the payments to TMTG. The Variety articles and the Herald-Tribune article explicitly reference and provide direct links to the Guardian articles as the source for the statements at issue.

TMTG alleges the articles published by the Defendants are false and defamatory because TMTG "is not, and never was, under investigation for money laundering," and neither TMTG nor its executives have "been the focus of any investigation." …

Count 1 purports to state a claim for defamation and defamation per se based on seven allegedly false statements published in the Guardian articles:

11/25/1757: Henry Brockholst Livingston's birthday. He dissented in the property law classic, Pierson v. Post (NY 1805).

This December, I will be doing multiple speaking engagements in Mexico and Israel. In the latter country, I will be serving as a visiting professor at the law faculty at Uriel Reichman University (the former IDC Herzliya). Unless otherwise noted, these events are open to the public.

I am potentially open to doing additional speaking engagements in Israel during my time there (Dec. 14-26).

Dec. 3, 12-1:30 PM, Guadalajara International Book Fair (FIL), Barcelo Hotel, Guadalajara, Mexico: "Free to Move: Foot Voting, Migration, and Political Freedom" (tentative title), Panel on Migration in the 21st Century. Other panel participants will be Eileen Truax (journalist covering immigration issues), and Christopher Dominguez. More information about the FIL book fair available here.

Dec. 4, 3:15-4:30 PM, Law Faculty, University of Monterrey, Rm. A6-206, Monterrey, Mexico, : "Political Ignorance and Constitutional Design." This event is likely limited to University of Monterrey students and faculty. But I may be able to get a few other people admitted upon request.

Dec. 5, 3:15-4:30 PM, School of Social Sciences and Government, University of Monterrey, A6-106, Monterrey, Mexico: "Democracy and Political Ignorance." This event is likely limited to University of Monterrey students and faculty. But I may be able to get a few other people admitted upon request.

Dec. 15, 6:30-8:00 PM, Honors Workshop, Law Faculty, Uriel Reichman University, Herzliya, Israel: "The Presumptive Case for Organ Markets." This event is likely to be limited to participants in the Honors Workshop and Uriel Reichman University faculty. But I may be able to get a few other people admitted upon request.

Dec. 16, 4-5:30 PM, Safra Center for Ethics, Buchman Faculty of Law, Tel Aviv University, Tel Aviv, Israel: "Judicial Review of Emergency Powers."

An excerpt from today's long opinion by Chief Judge Allen Winsor (N.D. Fla.) in Damsky v. Summerlin, which I think is likely correct:

Damsky has been a controversial figure at the law school since he enrolled. He seems to enjoy pushing boundaries and provoking others. He achieved that and more with two seminar papers and one social media exchange that ultimately became the basis for his expulsion.

In the fall semester of his second year, Damsky wrote two seminar papers that generally argue the United States was founded as a race-based nation and should be preserved as such. He concluded each paper with what some perceived as extralegal calls to violence. In American Restoration, Damsky offered this view:

[W]e should feel no shame about feeling attached to those with whom we share a common racial origin. The founding generations of Americans were also no strangers to fighting, killing, and dying on behalf of their rights and sovereignty. The hour is late, but we are not yet so outnumbered and so neutered that we cannot seize back what is rightfully ours. This land, America, our due inheritance, is worth the struggle.

In National Constitutionalism, Damsky went perhaps further:

The Supreme Court and inferior federal courts have the power to arrest the dispossession of White America…. If the People are not granted relief from the government—which includes the judiciary—then, if they are to survive as masters in the land of their ancestors, they must exercise "their revolutionary right to dismember or overthrow" the government. And that will be a process which no deskbound jurist can gleefully look forward to; for it will be a controversy decided not by the careful balance of Justitia's scales, but by the gruesome slashing of her sword.

Neither of Damsky's seminar professors found his language particularly alarming, and both gave him high marks. Still, the papers garnered attention. Many students found them upsetting, and some insisted the law school take action. The law school refused any discipline, though, concluding the writings did not constitute true threats, were not significantly disruptive, and enjoyed First Amendment protections….

[T]he semester continued without incident—at least until Damsky's March 21 X post:

My position on Jews is simple: whatever Harvard professor Noel Ignatiev meant by his call to "abolish the White race by any means necessary" is what I think must be done with Jews. Jews must be abolished by any means necessary.

This post was immediately available to Damsky's few X followers (Damsky said he has "almost no following"), as well as anyone else who happened across his public account. Law student S.J. saw the post and found it upsetting but not, by itself, alarming. A week later, S.J. reported the post to the Interim Dean. A few days after that, on April 1, one of the University's Jewish law professors engaged with Damsky on X. Replying to his post, she asked, "Are you saying you would murder me and my family? Is that your position?" Damsky offered this in reply:

Religion and the Law

University's Apparent Concealment of Real Reasons for Non-Renewal of Adjunct Professor's Contract Suspended Statute of Limitations

"The [eventually released personnel] records contain no negative performance reviews, but they do contain three anonymous complaints. Those complaints accused Grossenbach of 'creat[ing] a hostile environment for transgender and LGBTQ students' in connection with his SaveCFSD activities [allegedly referring solely to Grossenbach's outside-class political activity -EV], among other things."

Eugene Volokh | 11.24.2025 1:22 PM

From Friday's Report and Recommendation by Magistrate Judge Michael Ambri (D. Ariz.) in Grossenbach v. Arizona Bd. of Regents:

The plaintiff in this action, Daniel Grossenbach, founded an organization named SaveCFSD, through which he advocates "for truth, trust, and transparency within Catalina Foothills School District 16 ['CFSD']." He founded this organization because he believes the CFSD is acting contrary to his "sincerely held religious beliefs" by "secretly surveying children about their gender and sexuality, pushing radical gender ideologies upon those students, and unconscionably and intentionally keeping that information from parents."

Grossenbach was employed as an adjunct professor at the University of Arizona. On November 30, 2023, he was informed that his teaching contract would not be renewed. Grossenbach believes that his employment was discontinued because the University received complaints about his advocacy with SaveCFSD.

Grossenbach sued on Aug. 22, 2025, and defendants argued (among other things) that his Title VII religious discrimination claim was brought too late. No, the Magistrate Judge concluded:

[I]n Arizona a prospective plaintiff must file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory employment action.

In this case, Grossenbach was informed on November 30, 2023, that his employment contract would not be renewed. According to the defendants, his 300 days started on that date and expired on September 25, 2024. They assert that he filed his ACRD (Arizona Civil Rights Division) charge on January 9, 2025, and his EEOC (Equal Employment Opportunity Commission) charge on January 22, 2025. Accordingly, the defendants argue that the claim must be dismissed for failure to properly exhaust administrative remedies.

The court does not agree. Assuming without deciding that Grossenbach's Title VII charge accrued on November 30, 2023, when he was told his contract would not be renewed, the start of the limitation period was postponed under the doctrines of estoppel and equitable tolling.

From Vaughn v. Harrison County, decided Friday by Judge Taylor McNeel (S.D. Miss.):

Yesterday, Rev. John Vaughn filed this lawsuit seeking to have fifty people attend a worship service in a barn on his private property. Vaughn is proceeding pro se. He has scheduled the worship service for some time tomorrow, but he acknowledges that Harrison County has told him he cannot have the fifty people in the barn because Harrison County believes that a gathering at the property "would constitute a very serious life safety situation."

Vaughn has filed a Motion for a Temporary Restraining Order asking this Court to order Harrison County to allow the fifty people into the barn. But he does not want Harrison County to have notice of this motion or to have the opportunity to respond. Instead, he wants this Court to enter an ex parte Order without giving Harrison County the chance to explain their position. But this is a litigation strategy created by Vaughn's own making. Instead, Harrison County needs to be served with process, given time to respond, and then an evidentiary hearing can be set.

Vaughn's motion is denied for a number of reasons. First, the primary purpose of a temporary restraining order is to maintain the status quo. But Vaughn is seeking to change it—not maintain it. Harrison County told him about seven months ago to not have fifty people in this barn. Vaughn could have challenged that action then.

Second, Vaughn does not establish a substantial likelihood of success on the merits. Vaughn does not really present evidence or on-point case law to support his assertions.

Third, Vaughn does not show a substantial threat of irreparable injury. Vaughn recognizes that the congregation's primary church building is available for the worship service.

Fourth, the harm that will result if the temporary restraining order is granted potentially outweighs Vaughn's injury. If the Court were to grant the temporary restraining order, these people could be injured while congregating at Vaughn's barn.

From the Justice Department's press release Wednesday:

Natalie Greene, 26, of Ocean City was charged with one count of conspiracy to convey false statements and hoaxes and one count of making false statements to federal law enforcement. On November 19, 2025, Greene made her initial appearance in federal court before U.S. Magistrate Judge Elizabeth A. Pascal. Greene was released on a $200,000 unsecured bond and additional conditions, as set by the Court.

According to statements made in court and documents filed in the case:

Late at night on July 23, 2025, Greene's co-conspirator called 911 and reported that she and Greene had been attacked by three men when they were out walking on a trail at a nature preserve in Egg Harbor Township. According to the co-conspirator, during the attack, the men had called Greene by name and had specifically referenced her employment with Federal Official 1, an official whose identity is known to the Government.

When law enforcement officers located Greene, she was lying in a wooded area just off the trail, with her hands and feet bound together with black zip ties. Greene's shirt was pulled over her head and was also tied with a black zip tie. Greene had numerous lacerations on her face, neck, upper chest, and shoulder. The words "TRUMP WHORE" were written on her stomach and the words "[Federal Official 1] IS RACIST" were written on her back. [Press accounts state that the words written were that Van Drew is racist. -EV] Greene was crying and yelling that one of her alleged attackers had a gun.

There was a time when the U.S. Court of Appeals for the Ninth Circuit was notorious for issuing decisions at odds with existing Supreme Court precedent, and getting repeatedly overturned as a result. The Ninth Circuit was considered the most liberal circuit in the country at the time, and had a few judges who consciously sought to evade restrictive precedent.

Early in the Roberts Court, the U.S. Court of Appeals for the Sixth Circuit developed something of a reputation as the "new Ninth," particularly with regard to habeas cases. In a string of cases, the Sixth Circuit was reversed, often summarily, for granting habeas petitions too readily.

Both the Ninth and Sixth Circuits are more conservative than they used to be, and are more aligned with the Supreme Court. Today the court that may be most at odds with the Supreme Court might be the U.S. Court of Appeals for the Fourth Circuit--coincidentally, my new home circuit. (The other contender would be the U.S. Court of Appeals for the First Circuit, which has only one judge appointed by a Republican president, who was just recently confirmed.)

Today the Supreme Court summarily reversed the Fourth Circuit in Clark v. Sweeney, a habeas case. In a unanimous per curiam opinion, the Court concluded that the Fourth Circuit erred in granting a habeas petition, and that its error was so egregious that it justified summary reversal. As the Court summarized the case:

A Maryland jury found Jeremiah Sweeney guilty of second-degree murder and several other crimes. Sweeney's convictions were affirmed on appeal, and his bid for postconviction relief in state court was unsuccessful. Sweeney sought habeas relief in Federal District Court, and that court, too, denied relief. But the Fourth Circuit reversed and ordered a new trial, relying on a claim that Sweeney never asserted. Because the Court of Appeals departed dramatically from the principle of party presentation, we reverse.

Is this decision a sign of things to come? While I do not expect there to be a tremendous number of habeas cases going from the Fourth Circuit to One First Street, I would not be surprised if the Fourth Circuit amasses a high reversal rate over the next several terms. Last term, the Fourth went 0 for 8, and it's starting off in the hole for OT 2025.

Also today, the Court summarily reversed a decision from the Mississippi Supreme Court. As with Clark, there was no recorded dissent.

From In re Jackson Hospital & Clinic, Inc., issued by Bankruptcy Judge Christopher Hawkins Thursday, following the court's earlier observation of "pervasive inaccurate, misleading, and fabricated citations, quotations, and representations of legal authority in the Motion to Reconsider":

Pursuant to the [court's] Order, … the Firm filed its Status Report on Pending Motions for Sanctions. In the Status Report, the Firm stated that it agreed to pay—and had paid—the DIP Lender the full amount of attorneys' fees sought in the DIP Lender's Motion for Sanctions. In connection with that payment, the DIP Lender agreed not to seek further fees related to the prior filings that were withdrawn or with respect to attendance at the hearing on the Show Cause Order or the Motions for Sanctions, provided that the agreement did not apply to future filings or the renewal of withdrawn motions. The Firm also stated that it had sent to the Debtors the full amount of the fees and expenses sought in the Debtors' Motion for Sanctions, which counsel for the Debtors was holding pending the hearing….

To the Firm's credit, it squarely and unequivocally conceded [in a follow-up document] that under Bankruptcy Rule 9011, it was responsible for the conduct of its attorneys. The Firm further acknowledged its lawyers' duties under the Local Bankruptcy Rules and the Alabama Ethics Rules, and it admitted that one of its lawyers violated those duties. It expressed its willingness to accept "whatever sanction the Court finds appropriate under these circumstances."

The Firm described several steps it had taken regarding its employees' use of artificial intelligence, both before and after the Show Cause Order. On June 28, 2023, the Firm adopted and distributed its official policy regarding the use of artificial intelligence…. On July 30, 2025, without knowledge of the issues beginning to surface in this case, the Firm updated its policy on artificial intelligence (the "Updated AI Policy")…. After learning of the Show Cause Order, the Firm undertook additional remedial and preventive measures. On the remediation side, the Firm paid the fees sought in the Motions for Sanctions—totaling $55,721.20—without haggling with the DIP Lender and the Debtors or otherwise forcing a contested hearing. The Firm also conducted an internal investigation to determine whether any of Ms. Preston's other filings contained "suspected artificial intelligence hallucinations." …

From the Complaint in Martins v. Romero (E.D. Mich.), filed Monday:

This is a defamation and false light action stemming from false and misleading statements published on the Jesus 911 podcast on the November 20th, November 27th, and December 4th, 2024 episodes. The Defendants intentionally or recklessly invited public critique and scrutiny over Plaintiff's title as an exorcist by repeatedly asserting that the Plaintiff is not an exorcist. The Defendants' statements have perpetuated a narrative that undermines the Plaintiff's credibility….

The Exorcist Files is a podcast co-created and co-hosted by Ryan Bethea and Fr. Martins…. Due to the popularity of the podcast, Fr. Martins published a book, also titled The Exorcist Files, where he provides a comprehensive view of the 2,000-year-old Catholic ministry of exorcism, examining spiritual dangers lurking in modern society, to help readers understand how to remain free from their influence and control….

Jesus 911 published an episode of the podcast titled "What Is the American Model of Exorcism?" …. In this episode, Romero and Clement continue their discussion from the November 20th Episode on exorcisms…. Romero praised Clement's position in Liber Christo and Clement's teachings at the Pope Leo XIII Institute, a private non-profit organization recognized for the "total education and training of priests in the holy ministry of exorcism and deliverance." Romero, on behalf of Clement, asserted that the field of exorcism is small and Clement knows, and has access to, every exorcist in every diocese worldwide. There are more than 3,000 dioceses worldwide. This characterization bolsters Clement's credibility as a set up for him to then criticize and undermine Fr. Martins' credibility and experience as an exorcist….

11/24/2001: Salim Hamdan was captured in Afghanistan. The Supreme Court would decide his case in Hamdan v. Rumsfeld (2006).

11/23/1804: President Franklin Pierce's birthday. He would appoint Justice John Archibald Campbell to the Supreme Court.

President Pierce appointed Justice Campbell to the Supreme Court

There is so much to say about LULAC v. Abbott, the recent gerrymandering case decided by a three judge panel of the Western District of Texas. Indeed, it has taken me a few days to process everything.

First, this three-judge panel was constituted back in 2021. Due to long-running litigation over Texas's 2021 maps, this panel maintained jurisdiction over the new 2025 maps. The plaintiffs chose to file in the Western District of Texas, El Paso Division, where they were virtually assured of not drawing a conservative judge. And they drew Judge David Guaderrama, an Obama nominee. Then-Chief Judge Priscilla (Owen) Richman, not the current Chief Judge, Jennifer Walker Elrod, appointed the other two members of the panel: District Judge Jeffrey Brown and Circuit Judge Jerry Smith.

Second, virtually every press story about the case has highlighted the fact that Judge Brown was appointed by President Trump. Indeed, Trump nominated Brown to fill a single-judge division on Galveston Island, just outside of Houston. But unlike some of the other judges appointed to single-judge divisions, Brown did not become a go-to forum for strategic litigation during the Biden years. Quite to the contrary, he put up a "Do Not Enter" sign on his courtroom. In 2023, Judge Brown adopted a local rule that required the plaintiffs to demonstrate an "obvious factual nexus to the Galveston Division." In the wake of this order, conservative litigants got the memo loud and clear, and stopped filing there. And Brown's rulings have not always fared well before the Fifth Circuit. His VRA ruling in Petteway v. Galveston County was reversed by the en banc court.

Third, in recent months, several Reagan-appointed judges have come forward as purportedly principled jurists who see Trump as a threat to the rule of law. As I've explained, many of these judges are from Massachusetts, and received blue slips from Senators Kennedy and Kerry. I doubt they were ever very conservative. By contrast, Judge Jerry Smith of the Fifth Circuit is a Reagan appointee to the Fifth Circuit whose conservative bona fides are beyond reproach. He has been on the bench for nearly forty years, and is held in very high regard by Fifth Circuit practitioners. I have seen some suggestions that his dissent in LULAC was an effort to curry favor with Trump. Judge Smith is 79 years old. I do not think he is auditioning for a promotion.

Fourth, I have some thoughts about the preliminary statement to Judge Smith's dissent. I always try to avoid imputing bad faith to those I disagree with. I am a fan of Hanlon's Razor: "Never attribute to malice that which is adequately explained by stupidity." If Judge Brown did exactly as Judge Smith alleged, then the lone judge in Galveston, at best, made a colossal error in judgment. Judge Brown was so concerned about getting an opinion out quickly to avoid a Purcell problem that he cut a member of the panel out of the drafting process. What makes this error even more shocking is that Brown previously served on the Fourteenth Court of Appeals and later the Texas Supreme Court. (Justice Scalia swore in Justice Brown at his investiture in 2013, which I attended.) Judge Brown knows how multi-member appellate courts operate.

Fifth, if this case was urgent as Judge Brown insisted, then it does not seem he approached the drafting process with the requisite sense of urgency. The preliminary injunction hearing concluded on October 10. About forty days later, on November 18, he issued a 160-page opinion. Everyone knew this case was bound for the Supreme Court. If Judge Brown was so concerned about Purcell, he could have issued a far slimmer opinion before the candidate registration began on November 8. Indeed, if he was unwilling to wait for Judge Smith's dissent, the majority could have moved even faster.

However, according to Judge Smith's stated chronology, Judge Brown did not move quickly. Between October 10 and November 5, Judge Smith relates there "there was silence." I can relay that I saw Judge Brown at the U.S. Supreme Court on November 4. Judge Brown was there to attend oral argument in The Hain Celestial Group v. Palmquist, a case in which the Fifth Circuit reversed him. I chatted with Judge Brown briefly after the case finished. Also in attendance was Sixth Circuit Judge David McKeague who wrote the dissent in Coney Island, which was also argued that day. As longtime readers might observe, I have this uncanny tendency to be at the right place at the right time. However, I did not see Judge Brown at the Federalist Society Convention, which started two days later. I've checked Judge Brown's civil docket, and there were other entries added during this time. If LULAC was truly a DEFCON 1 case, then these other activities could have taken a break.

Moreover, according to Judge Smith, Brown did not keep to his own self-imposed deadlines. On November 5, Smith received a thirteen-page outline. Then silence for a week. On November 12, Brown announced he would issue the injunction three days later on November 15. At that point, Smith had not even seen a draft. The first draft would be circulated on November 13. On November 16, a new draft with "substantial revisions" was circulated. The plan was to issue it two days later on November 18. Had Judge Brown waited twenty-four hours further, Judge Smith's dissent would have been ready. All of this mess could have been avoided.

Gordon Wood is probably the leading living historian of the American Founding, author of such seminal works as The Creation of the American Republic and The Radicalism of the American Revolution. In a recent speech at the conservative American Enterprise Institute (reprinted in the Wall Street Journal), he pushes back against some on the right who argue that American should be an ethno-nationalist society favoring those with a particular ethnic and cultural background. This idea, he explains, goes against our Founding principles:

I want to say something about the Declaration of Independence and why it is so important to us Americans.

There has been some talk recently that we are not and should not be a credo nation, that beliefs in a creed are too permissive, too weak a basis for citizenship and that we need to realize that citizens who have ancestors that go back several generations have a stronger stake in the country than more recent immigrants.

This is a position that I reject as passionately as I can. We have had these blood-and soil-efforts before, in the 1890s when we also had a crisis over immigration. Some Americans tried to claim that because they had ancestors who fought in the Revolution or who came here on the Mayflower, they were more American than the recent immigrants….

The United States is not a nation like other nations, and it never has been. There is at present no American ethnicity to back up the state called the United States, and there was no such distinctive ethnicity even in 1776 when the United States was created….

Because of extensive immigration, America already had a diverse society. In addition to seven hundred thousand people of African descent and tens of thousands of native Indians, nearly all the peoples of Western Europe were present in the country. In the census of 1790 only sixty percent of the white population of well over three million remained English in ancestry…

When Lincoln declared in 1858 "all honor to Jefferson," he paid homage to the Founder who he knew could explain why the United States was one nation, and why it should remain so. Half the American people, said Lincoln, had no direct blood connection to the revolutionaries of 1776. These German, Irish, French, and Scandinavian citizens either had come from Europe themselves or their ancestors had, and they had settled in America, "finding themselves our equals in all things." Although these immigrants may have had no actual connection in blood with the revolutionary generation that could make them feel part of the rest of the nation, they had, said Lincoln, "that old Declaration of Independence" with its expression of the moral principle of equality to draw upon. This moral principle, which was "applicable to all men and all times," made all these different peoples one with the Founders, "as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration…." This emphasis on liberty and equality, Lincoln said, shifting images, was "the electric cord. . . that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."

In Jefferson's Declaration Lincoln found a solution to the great problem of American identity: how the great variety of individuals in America with all their diverse ethnicities, races, and religions could be brought together into a single nation. As Lincoln grasped better than anyone ever has, the Revolution and its Declaration of Independence offered us a set of beliefs that through the generations has supplied a bond that holds together the most diverse nation that history has ever known.

Since now the whole world is in the United States, nothing but the ideals coming out of the Revolution and their subsequent rich and contentious history can turn such an assortment of different individuals into the "one people" that the Declaration says we are. To be an American is not to be someone, but to believe in something. That is why we are at heart a [creedal] nation, and that is why the 250th anniversary of the Declaration next year is so important.

Wood's emphasis on America's role as a creedal nation bound by universal liberal principles is backed by the Declaration of Independence (with its condemnation of British immigration restrictions), and by many statements by leading Founders. In his famous General Orders to the Continental Army, issued at end of the Revolutionary War in 1783, George Washington emphasized that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions." He expressed similar views on other occasions, including writing to a group of newly arrived Irish immigrants that "[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions."

These are the principles that made America great in the first place, and returning to them is the best way to make it greater still.

I don't agree with every point Wood makes in his speech. For example, he claims that "Because assimilation is not easy, no nation should allow the percentage of foreign born to exceed about 15 percent of its population." There is no basis for this arbitrary limitation. Nations such as Australia, Canada, and Switzerland, have done well with much higher percentages of foreign-born people. In Chapter 6 of my book my book Free to Move: Foot Voting, Migration, and Political Freedom, I describe how issues of assimilation and potential "swamping" of institutions are best addressed by "keyhole" solutions, rather than by excluding large numbers of people. Such exclusion based on morally arbitrary circumstances of ancestry and place of birth is at odds with the universalist principles of the American Founding that Gordon Wood has done so much to document and illuminate.

Wood is right to suggest that America's greater success in assimilating migrants compared to many European countries is in part due to our creedal identity and ideology. But, as noted in my book, an additional factor is open labor markets, which make it easier for immigrants to assimilate and learn the language by entering the workforce. Switzerland's relative success compared to most other European states is in part due to its similarly low level of labor restrictions.

Despite such quibbles, Wood's speech is a great summary of the principles of the Founding, and their continuing relevance today.

The Volokh Conspiracy

Journal of Free Speech Law: "Inevitable Errors: Defamation by Hallucination in AI Reasoning Models," by Lyrissa Lidsky & Andrew Daves

Trump Media Group's Libel Lawsuit Over Guardian's Allegations of Federal Criminal Investigation Dismissed

Today in Supreme Court History: November 25, 1757

Open Thread

Court Orders Reinstatement of Law Student Expelled for Writing "[W]hatever Harvard Professor Noel Ignatiev Meant by … '[A]bolish the White Race by Any Means Necessary' … Must Be Done with Jews"

University's Apparent Concealment of Real Reasons for Non-Renewal of Adjunct Professor's Contract Suspended Statute of Limitations

No Emergency Order Allowing Worship Service in Possibly Unsafe Barn

Republican Congressman's Staffer Prosecuted for Alleging Faking Attack on Herself, Including "Trump Whore" Written on Her Stomach

Is the Fourth Circuit the New Ninth?

One of the 100 Biggest American Law Firms Pays >$50K Because of AI Hallucinations in Filings

Exorcist Files vs. Jesus 911 Libel Suit

Today in Supreme Court History: November 24, 2001

Open Thread

Today in Supreme Court History: November 23, 1804

Open Thread

Some Thoughts On The Texas Gerrymandering Case

Gordon Wood on America as a "Creedal Nation" Open to all Races and Ethnicities

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