On February 8, the Supreme Court heard oral argument in Trump v. Anderson. Two days later, I debated Will Baude and Mike Paulsen on Section 3 at the 2024 Originalism Works in Progress Conference. I blogged about the event at the time, and shared my slides.
I am happy to share the video, which was posted in April, but I only recently learned of. My opening remarks are from about the 10 minute mark till the 20 minute mark. Even if you are not persuaded, you will be entertained. You might even get Tillmanized.
Given how the actual arguments went, and how the case came out, my exchange with Baude and Paulsen was probably the most meaningful discourse on this topic we have seen, and will be for some time.
Until the late 18th century, defamation was often treated as an actionable wrong even when the defamer's claims were undeniably true (indeed, sometimes especially when true, as reflected in the slogan, "the greater the truth, the greater the libel"). In the following centuries, however, truth became a complete defense to defamation lawsuits. Even outside the law, falsity became an essential element of the common understanding of "defamation," to the point that today most English dictionaries and many extralegal discussions of the defamatory treat it as necessarily untrue.
Here I challenge the new understanding of the wrong of defamation that took flight under the law's wing, arguing that it is unduly narrow. Accurate defamation is a serious wrong and current understandings—and tort practice, in particular—harmfully hide this fact. Privacy law, moreover, does not provide adequate redress for it either, for reasons I set out.
"[T]he only support for Defendant's statements about Plaintiff is that Defendant's 'spiritual investigation' into the murders using 'intuitive tarot readings' led her to Plaintiff."
From today's decision by Chief Magistrate Judge Raymond Patricco in Scofield v. Guillard(D. Idaho):
This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that, despite never meeting any of these students or being involved with their murders in any way, Defendant Ashley Guillard posted over 100 sensational TikTok (and later YouTube) videos falsely claiming that Plaintiff (i) had an extramarital, same-sex, romantic affair with one of the victims; and then (ii) ordered the four murders to prevent the affair from coming to light. Plaintiff sent cease-and-desist letters to Defendant in the following days and weeks. When Defendant did not stop, Plaintiff initiated this action. Plaintiff asserts two defamation claims against Defendant: one is premised upon the false statements regarding Plaintiff's involvement with the murders themselves, the other is premised upon the false statements regarding Plaintiff's romantic relationship with one of the murdered students….
The court concluded that Guillard's allegations against Scofield (discussed in more detail in the full opinion) were defamatory as a matter of law, and that Scofield was entitled to summary judgment as to their being false—to the point that there was no need to leave the true-or-false question to the jury:
To begin, Plaintiff states in no uncertain terms that (i) Defendant's statements are false; (ii) she was never in a romantic relationship with [K.G.]; (iii) she was not involved in the murders of the four University of Idaho students; (iv) she never met any of the murdered students; (v) she never taught any of the murdered students; (vi) she did not personally know any of the murdered students; and (vii) she was in Portland, Oregon at the time of the murders. Moreover, in response to Plaintiff's subpoena, the University of Idaho confirmed that it has no records of the murdered students ever being enrolled in a class taught by Plaintiff, any investigation into Plaintiff having an inappropriate relationship with [K.G.], or any investigation into Plaintiff's involvement with the murders. Finally, there is no indication that Plaintiff is—or has ever been—even remotely considered a suspect in the murders…. To be sure, Mr. Kohberger was arrested and has been charged with the murders.
This is powerful evidence at the summary judgment stage. It not only substantiates Plaintiff's argument that Defendant's statements about her are false, it also highlights the complete lack of any corroborating support for Defendant's statements. In this way, Plaintiff has sufficiently demonstrated the absence of any genuine issue of material fact relating to the falsity of Defendant's statements about her.
The Somin family will be in the UK in July, and I will be giving four talks there. Two are open to the public, and a third by invitation, which I should be able to obtain for interested academics, policy experts, members of the media, and the like. The last is restricted to participants in the relevant program. Below are the times, locations, and information on how to come.
I might be able to add additional events. Contact me if you represent an academic or policy organization that may be interested.
July 3, 1-2 PM (doors open at 12:30), Institute of Economic Affairs, 2 Lord North St., London: "Immigration and the Economic Freedom of Natives" (based in part on my article of the same name). Lunch will be served. This event is by invitation, but I can likely get you one if you are an academic, policy expert, reporter, or have some other connection to the issue. Contact me if interested. IEA is tentatively planning to publish a revised version of the article as a briefing paper, including some data and analysis specifically relevant to the British situation.
July 8, 12-1:30 PM, King's College, Bush House NE 9.03, London: "The Case Against Nationalism" (based in part on my coauthored article of the same title, but with many points adapted to the British context). I think there will be free food, but am not completely sure.
July 9, 1-2:15 PM, University of Miami British Politics and Policy Seminar, London: "The Case Against Nationalism." This event is restricted to participants in the University of Miami summer program on British Politics and Policy
July 10, 1-3 PM, Vinson Centre Seminar Series, University of Buckingham, Enterprise Hub, Vinson Building, Buckingham UK: "Free to Move: Foot Voting Migration and Political Freedom" (based on my book of the same name). RSVP and other additional information here.
I've recently heard some people (serious people, though not First Amendment experts) argue that private universities have a duty to suppress certain kinds of anti-Semitic speech—or perhaps, more broadly, anti-Israel speech—when it creates a "hostile educational environment" based on national origin. Title VI of the Civil Rights Act of 1964 bans race and national origin discrimination in federally funded programs, and courts have read that as requiring such programs (including at universities) to prevent such hostile environments. And, this particular argument goes, applying this legal requirement to anti-Semitic/anti-Israel speech doesn't violate the First Amendment because the First Amendment doesn't apply to private universities.
This argument, I think, is wrong, because it misunderstands the nature of the "state action" doctrine. It is true that the First Amendment generally doesn't protect speakers against private action (by private universities, private employers, private social media platforms, and so on). But it does protect speakers against government action, and the threat of civil liability (or withdrawal of federal funds) under Title VI is government action. And this protection extends even when the speakers are on private property.
Consider a few familiar examples. Does the First Amendment protect speech in ads in the New York Times? Well, it doesn't protect such speech from the Times' editorial decisions; you and I have no First Amendment right to force the Times to carry our speech. But when the government imposes civil liability on such speech, that civil liability may violate the First Amendment, because it's the government that's imposing it. Those are, of course, the facts of New York Times Co. v. Sullivan (1964); note that the defendants there weren't just the newspaper but also the individuals responsible for the advertisement.
The case is Frankel v. Regents, filed yesterday; two of the plaintiffs are UCLA law students. (I have not been involved in the lawsuit, and first heard about it today, the day after it was filed.) The allegations mostly relate to actions outside the law school, but some mention the law school as well (paragraphs 197, 272-283).
I can't vouch for the factual allegations, but in my experience the Becket Fund—a 30-year-old, ecumenical, highly experienced, and generally respected religious freedom advocacy group—does a pretty good job of fact investigation. Note also that one of the lawyers is Paul Clement, the former Solicitor General and now one of the most prominent appellate lawyers in the country. A brief excerpt from the very long and detailed allegations:
Starting on April 25, 2024, and continuing until May 2, 2024, UCLA allowed a group of activists to set up barricades in the center of campus and establish an encampment that blocked access to critical educational infrastructure on campus.
The activists chanted antisemitic threats like "death to the Jews," "free Palestine from the hand of Jews," and "from the River to the Sea, Palestine will be free," proudly trumpeting their hatred of the Jewish people. But their actions went well beyond such chants.
With the knowledge and acquiescence of UCLA officials, the activists enforced what was effectively a "Jew Exclusion Zone," segregating Jewish students and preventing them from accessing the heart of campus, including classroom buildings and the main undergraduate library. In many cases, the activists set up barriers and locked arms together, preventing those who refused to disavow Israel from passing through.
To enter the Jew Exclusion Zone, a person had to make a statement pledging their allegiance to the activists' views and have someone within the encampment "vouch" for the individual's fidelity to the activists' cause. While this may have prevented a pro-Israel Christian from entering the Zone and permitted access for a Jewish person willing to comply with the enforcers' demands, given the centrality of Jerusalem to the Jewish faith, the practical effect was to deny the overwhelming majority of Jews access to the heart of the campus.
Part II of The Collective-Action Constitution develops a collective-action theory of the Constitution's federal structure and identifies limits of this theory.
Chapter Three examines the states' potential role in solving collective-action problems that arise for them by forming interstate compacts and other agreements. The chapter also explains, however, why the third clause of Article I, Section 10 (if not doctrine to date) presumptively bars interstate compacts and requires congressional consent to overcome the presumption. Proposed compacts may undermine federal supremacy or harm sister states, and states may disagree about whether compacts solve or cause collective-action problems. The Constitution does not compel one answer to such questions, which are also historically contingent and normative, not just scientific or technical. Rather, the Constitution assigns main responsibility for deciding them to Congress, where, as Chief Justice Marshall explained in McCulloch v. Maryland (1819), the interests of all states and people are represented.
In addition to potentially raising normative concerns, interstate compacts are difficult to form. Many parties within compacting states must approve, and compacts require unanimous agreement among the compacting states. Moreover, impediments to collective action tend to increase sharply with the number of states that must act together. In general, if proposed compacts must encompass many states to accomplish their purposes, free rider, holdout, and disagreement problems are likely to paralyze them. This is a lesson of early American history and subsequent experience, and it helps explain why, according to the book's arithmetic, compacts usually involve few states and why only around 200 exist today.
Chapter Four argues that, because nationalist Founders did not expect the states regularly to be able to act collectively, the Constitution empowers Congress to solve many multi-state collective-action problems. The constitutional text and structure reflect the conviction that the federal government operating through (super)majority rule will be more likely to find solutions that elude states trying to cooperate or coordinate through unanimity rule. George William Van Cleve writes in his history of the Confederation period that the Constitution emerged from "the states' and sections' willingness to confer fundamental new powers on the national government and to permit them to be exercised by majority vote." Thus, the eighteen clauses of Article I, Section 8, mainly authorize Congress to address various kinds of collective-action problems for the states.
Foremost among the Section 8 powers is Congress's taxing authority—and, relatedly, its powers to spend and borrow. After detailing the main structural problems with the Articles of Confederation and the ways in which nationalist Framers sought to address them in drafting Resolution VI of the Virginia Plan and Section 8, this chapter analyses Congress's powers to tax, spend, and borrow. Its theory of Congress's tax power was largely adopted in NFIB v. Sebelius (2012), and its account of psychological externalities justifies broad federal power to spend for the "general Welfare."
Chapter Five leverages collective-action reasoning to explain the origins of the Interstate Commerce Clause, critique the Supreme Court's formal distinctions in interpreting this clause, and identify a functional replacement: the distinction between collective and individual action by states. This chapter reads the Interstate Commerce Clause textually and structurally as authorizing legislation where Congress has identified a multi-state collective-action problem caused by interstate spillovers that produce economic (not psychological) effects. Under this approach, Gibbons v. Ogden and decisions from 1937 to the 1990s are correctly decided. A collective-action approach also explains why the contemporary Court has decided most interstate-commerce cases correctly, albeit for reasons other than what its doctrine states. This chapter next questions the categorical nature of the Court's anti-commandeering principle and defends its dormant commerce doctrine.
The chapter then leverages collective-action logics to illuminate the Founding history and scope of the Foreign and Indian Commerce Clauses. The states must act collectively, not individually, to act effectively in their commercial relations with other nations. Moreover, "Commerce" in these clauses should be interpreted how it is structurally best understood in interstate-commerce cases: to include interactions and affairs outside markets in addition to trade and other economic activities. Finally, this chapter discusses the principle that valid federal law supersedes conflicting state law. Preemption flows directly from a collective-action account of the Constitution.
Chapter Six examines the rest of Section 8. It begins with the collective-action rationales for authorizing Congress to define and punish certain offenses with national-security implications and provide for the nation's defense. It then examines the postal and intellectual-property powers. Like the military-defence clauses, both powers enable Congress to internalize positive interstate externalities. The chapter next explains why Congress can require national uniformity in regulating naturalization and bankruptcy, after which it considers standards, currency, and counterfeiting, which also implicate concerns about the collective costs of divergent state regulations. The chapter concludes with the powers to create lower federal tribunals and govern federal enclaves. These powers not only facilitate federal administration but also solve multistate collective-action problems.
Chapter Seven examines Articles II, III, and VI. Federal laws that aim to solve multi-state collective-action problems would have little impact without their enforcement against states and private parties that violate or seek to undermine them. Likewise, constitutional or congressional prohibitions on state legislation that undermines federal solutions or causes collective-action problems for the states would be largely meaningless without enforcement of these prohibitions to ensure federal supremacy. Articles II and III create independent executive and judicial branches and authorize them to enforce federal law.
Article II also empowers the President to energetically conduct diplomacy and national-security operations—functions that states and members of Congress could not perform without overcoming daunting collective-action problems. Article III gives the federal judiciary its own responsibilities in foreign relations and national security, as well as domestic peace. By umpiring international or interstate disputes, including when attempts to form interstate compacts fail, federal courts solve or prevent collective-action problems for the states. Article VI's Supremacy Clause and oath requirement for state officials advance the same supremacy objective as Article III by helping ensure the efficacy of the solutions to collective-action problems provided in the Constitution, federal statutes, and treaties, and by reinforcing the prohibitions on state conduct that compromise such solutions or generate collective-action problems.
Chapter Eight analyzes the Constitution's under-appreciated role in defining the relationship among the states themselves. Article IV's two initial sections either limit what states may do or empower Congress to act. The Full Faith and Credit, Effects, Privileges and Immunities, and Extradition Clauses promote political and economic union by preventing collective-action problems for the states. Distressingly, the same was true of the Fugitive Slave Clause. The collective-action rationale for federal power to enforce this clause underscores the significance of constitutional rights as limits on what Congress can do, and states cannot do, to solve or prevent multistate collective-action problems.
Article IV's third section turns from the movement of persons across state lines to control over territory. The Territories Clause gives Congress exclusive power to dispose of and regulate federal lands and property, and the Admissions Clause gives Congress exclusive power to admit new states. These clauses both empower Congress to solve collective-action problems for the states and prevent states from causing them. Their placement together may reflect an original expectation that federal territories would become states. That has not always happened, however, which raises troubling questions about the democratic legitimacy of contemporary American empire.
Chapter Nine examines a main modern role of the Constitution: protecting individual rights against states. Collective-action reasoning helps explain some rights, including those secured by dormant commerce doctrine and the Full Faith and Credit Clause. This chapter identifies additional rights that both protect individual liberty or equality and prevent states from causing collective-action problems. They are the rights protected by the Privileges and Immunities and Guarantee Clauses, and the right to enter and leave other states.
Enforcement of most rights does not, however, primarily reflect collective-action logics. The main structural achievement of the Reconstruction Amendments was to empower federal courts and Congress to regulate states' internal policy choices on certain subjects regardless of collective-action problems facing states. Most rights exist principally to protect people from unconstitutional action by their states, not to prevent states from causing collective-action problems. Although The Collective-Action Constitution cannot primarily explain most such rights, it helps account for those that protect the democratic process. It also provides secondary justification for equality rights, which must be protected to make meaningful the right to travel through states for minority groups.
In addition to being the 80th anniversary of D-Day, today is the 45th anniversary of the Somin family's arrival in America! I wrote about our experience of immigration from the Soviet Union to the United States in a 2010 memoir, written for the Hebrew Immigrant Aid Society (HIAS), which helped us gain admission to the US, and continues to assist refugees from around the world, to this day.
Reflecting on this experience, I am profoundly grateful to my parents for making the decision to come to the US, and also to those who fought at D-Day, Gettysburg, and elsewhere to establish, expand, and protect the freedoms that make America a haven for immigrants seeking liberty and opportunity from around the world.
Reflection also inspires humility. I am vastly better off than my peers who remained in Russia. But virtually all of that difference is the result of the difference between American institutions and Russian ones, not any merit of mine. Over the last two years, that difference has been accentuated by the Putin regime's horrific war of aggression against Ukraine, and the accompanying repression. We should strive to ensure that more people are able to enjoy liberty and opportunity unconstrained by arbitrary circumstances of ancestry and place of birth.
At its worst, America is susceptible to the same types of ethnic, religious, racial, and nationalistic prejudices as all too many other nations. Sadly, a dangerous illiberal nationalism is increasingly influential in our politics.
But at its best, this is the nation where freedom and opportunity can be yours regardless of who your parents are, or where you were born; the nation where immigrants are accepted more fully than in almost any other. It is difficult to gain full acceptance as a Frenchman, German, or Japanese if you are not a native-born member of the majority ethnic group in those countries. Not so here; or at least far less so.
And America is also a nation where many thousands of ordinary people work to welcome refugees from war and oppression. We have recently seen that with those who have stepped forward to support migrants from Ukraine, Cuba, Venezuela, and elsewhere under private sponsorship programs like Uniting for Ukraine, CNVH, and Welcome Corps.
In 2022, a newly arrived Ukrainian refugee told me she chose America because it is the nation where there are people from many backgrounds and all are "equal … regardless of nationality, skin color or religion." Her words reminded me of those of George Washington, who envisioned the US as "an Asylum for the poor and oppressed of all nations and religions." Too often, we fall short of these high ideals. But great things happen when we live up to them.
It is fashionable to assume that only people who are themselves members of a particular identity group can truly understand its experience. If so, perhaps only immigrants can fully grasp the value of immigration. Thus, some readers may assume that my work on "voting with your feet,"migration rights, and the perils of nationalism is an outgrowth of personal experience.
But, in truth, it began with my engagement with the political economy literature on federalism (which helped me grasp the importance of domestic foot voting). Later, the writings of scholars such as Bryan Caplan, Michael Clemens, and Joseph Carens, helped me see that international migration is an even more significant pathway to expanding human freedom and opportunity; not just one liberty among many, but one of the great issues of our time. To my knowledge, all of them are themselves native-born citizens of western liberal democracies. Yet it was they who enlightened me about the broader significance of migration rights, rather than vice versa. They saw clearly where I long had a blind spot.
It is a small, but telling example of how understanding often comes through logic and evidence, not just personal experience accessible only to members of a particular group. It also offers a measure of hope that we can expand liberty for both immigrants and natives with the help of many who never personally experienced the injustices they seek to end.
NOTE: This post updates and expands one I published in 2019, on the 40th anniversary of the same event.
Achieving a sound analysis of reputation and reputational injury is important for understanding the law of defamation. This goal has, however, received surprisingly little attention. In light of the burst of renewed attention given to defamation law in the courts and the media, now is a good moment to try to make progress on this topic.
Although this article is principally theoretical, the project of writing it was undertaken with legal controversies in mind. Amongst the many issues in defamation law that continue to foster debate, some pertain to damages and would thus seem to call for a theory of reputational injury. Controversy swirls around the adjective "presumed" in the phrase "presumed damages." Critics ask why defamation plaintiffs are entitled to have their damages presumed and need not prove them, and they are naturally drawn to the concern that if the need for compensation is not actually proven, then liability is really punishment for uncivil speech even where it does no harm. This unsurprisingly leads to the conclusion that presumed damages are repugnant to free speech values, and should no longer be permitted by common law courts (even if the Supreme Court has decided to lay low on the issue).
Damages in tort law are overwhelmingly linked to a plaintiff's right to redress injury, and it is therefore reasonable to suppose that clarity on what damages ought to be available to a defamation plaintiff will be lacking until we have greater clarity on what sorts of wrongful injuries defamation law is designed to redress. This brings us to the topic of the paper, reputational injury.
On June 21, Judge Cannon will hold oral argument on the Appointments Clause challenge to Special Counsel Jack Smith's prosecution of Donald Trump. The Court granted leave for three amici to argue. I will be presenting argument on behalf of Professor Seth Barrett Tillman and the Landmark Legal Foundation. The other lawyers representing other amici will be Gene Schaerr (Schaerr | Jaffe) and Matt Seligman (Stris & Maher LLP). I've blogged about the case before here and here.
And on Wednesday evening, I was a guest on the Mark Levin Show to talk about the case.
From today's statement by Stanford President Richard Saller and Provost Jenny Martinez; Newsweek (Jesus Mesa) reports that the graffiti include "FUCK AMERIKKKA," "DE@ATH 2ISR@HELL," "Kill cops," and "PIGS TASTE BEST DEDAD":
Dear Stanford community,
We are appalled and deeply saddened by the actions that occurred on our campus earlier today.
As you know from earlier alerts that were sent out, a group of protesters broke into and occupied Building 10 early this morning until they were arrested and removed by law enforcement. A public safety officer was injured by protesters as part of the response to the occupation.
In addition to damage done inside the building, protesters committed extensive graffiti vandalism on the sandstone buildings and columns of the Main Quad this morning. This graffiti conveys vile and hateful sentiments that we condemn in the strongest terms. Whether the graffiti was created by members of the Stanford community or outsiders, we expect that the vast majority of our community joins us in rejecting this assault on our campus.
Defamation is a moral and legal wrong that is distinct from the wrongs of insulting or offending a person, lying to a person, or unjustifiably causing emotional distress. Defamation essentially involves harm or injury to a person's reputation. And reputation is a social concept: It refers to a person's standing in some relevant audience, i.e., the group or community beyond the speaker and the person.
But from whose perspective must a statement be defamatory? This question has multiple dimensions. Is our only interest whether the person's standing is lowered in the eyes of the community? Or should we also consider the perspective of the person who claims to have been defamed? Must that person subjectively view the statement as injuring his or her own reputation? Are we also interested in the perspective of the speaker?
When I started researching my book, Classified: The Untold Story of Racial Classification in America, the law review literature asserted that racial classification, in practice, was almost entirely a matter of self-identification. While federal law specified the classifications and their definitions, in practice people could check whatever box they wanted, and no one ever checked. In fact, according to the relevant literature, there was only one case, ever, in which an individual's self-identification was questioned. This was an infamous case involving two Irish-American firefighters in Boston who claimed to be African American to take advantage of the fire department's affirmative action policies.
I was confident that there were more such cases, in part because Eugene Volokh once blogged about such a case involving whether New York State could constitutionally decide that a contractor of Spanish descent was not Hispanic for state purposes, even though he was Hispanic for federal purposes. In the end, I found a couple of dozen such cases, mostly involving minority business enterprise preferences, and mostly involving the Hispanic classification, though also others involving claims of American Indian, African American, and Asian American identity. Many of those cases wound up being cited in Justice Gorsuch's concurring opinion in SFSA v. Harvard.
I assumed that these were just the tip of the iceberg, as I relied on publicly available judicial or administrative rulings, or media coverage. Most disputes, I figured, were decided within the bowels of government bureaucracies, and the only way to find them would be to comb through thousands of unpublished records, if you could first figure out where those records were located. It wasn't sufficiently important to my book to undertake such an efforts.
That said, I did just happen upon another such dispute over identity, discussed briefly in a 1989 GAO report on fraud in disadvantaged business enterprise programs. As background, at the time Iranian Americans were classified as white, and thus not "minorities" eligible for DBE preferences, while Indian Americans were classified as Asian American and therefore were eligible.
An anonymous letter alleged that the president of an engineering DBE did not oversee the firm's day-to-day management and that the firm was controlled by the vice president, who was a white male. It was also alleged that the president was Iranian-born and thus not eligible to participate in the program. The investigation disclosed that there was no apparent problem with control since the president drew the largest sal- ary, signed all company checks, and was the only person in the firm with an engineering degree. It was also determined that the DBE president was raised in Iran and held Iranian citizenship, but that his parents were of Indian descent. During the reassessment process, the state transportation agency requested an advisory opinion from DOT concerning whether a person born in Iran to Indian parents is Iranian or Indian for purposes of DBE program participation. The state agency eventually recertified the DBE based on the DOT ruling that the controlling factor was a person's heritage not citizenship.
This decision seems correct, as Asian American is defined under federal law as someone descended from one of the original peoples of Asia. But it does raise the question of how far one can take that principal. Are Parsi Indians, descendants of Zoroastrians who fled Iran hundreds of years ago to escape Muslim persecution Indian, or Iranian? How about Baghdadi Jews from India whose ancestors moved to India from Iraq in the 19th century? Is there any statute of limitations here? In practice, though, I suspect that so long as an individual's ancestors had Indian citizenship, it's very unlikely anyone will question whether they are "really" Indian and thus Asian American.
Anyway, the existence of this case reinforces my suspicion that there are many more such cases reported somewhere in bowels of government archives.
After an Introduction that provides an overview of the book, The Collective-Action Constitution unfolds in three parts over eleven numbered chapters, followed by a brief Conclusion. Part I discusses interpretive and analytical tools from constitutional law and social science that Parts II and III use. Most importantly, Part I identifies the kinds of constitutional arguments that appear in the book and how they relate to originalist and nonoriginalist theories of constitutional interpretation.
For example, originalist argumentation and evidence frequently appear in The Collective-Action Constitution, but not because the book offers an exclusively or conventionally originalist account. Rather, original intentions, meanings, and purposes, like structural inferences, customary political-branch practice, and judicial precedent that developed and endured long after ratification of constitutional provisions, inform how we should understand the Constitution's purposes and thus how we should decide interpretive questions when its language is not fully determinate or does not fully cover the case. Chief Justice John Marshall used this approach in McCulloch v. Maryland (1819), the most important structural decision in U.S. constitutional law. Marshall's pluralist methodology, which he deployed to discern the Constitution's primary structural purpose identified in The Collective-Action Constitution, is challenged now by the rising influence of relatively strict versions of originalism. As constitutional historian H. Jefferson Powell has written, however, Marshall's approach has always been "the constitutional mainstream" in the United States. Marshall's methodology provides the interpretive foundation upon which the book rests.
McCulloch provides critical guidance in additional ways. Marshall develops a theory of the superior democratic legitimacy of the federal government over individual states that justifies federal authority to settle disagreements among states over whether there are cost-benefit collective-action problems in need of solving. He also offers a broad interpretation of the Necessary and Proper Clause that advances the Constitution's collective-action objectives in three respects. The clause indicates the existence of implied legislative powers, which (1) empower Congress to solve some multistate collective-action problems when other powers are unavailable; (2) permit laws that do not themselves help solve such problems (such as the law creating the National Bank) but enhance the efficacy of laws that do; and (3) let Congress build out the executive and judicial branches, which the Articles of Confederation lacked and the Constitution requires if federal laws—including solutions to collective-action problems—will be enforced against states and individuals. Finally, Marshall identifies an enduring democratic-process failure that justifies constitutional limits on state authority to impede federal solutions to collective-action problems or cause such problems, including by taxing federal instrumentalities.
As an interpretive matter, there is a fundamental contrast between what The Collective-Action Constitution is doing and what is usually meant by "originalism" (using the term as someone would who is thinking in good faith, not as window dressing). The sincere, strict originalist is correct in viewing the constitutional text as central to the activity of constitutional law and in regarding respect for the text as critical to the legitimacy of constitutional-law arguments. The text did not fall from the sky; rather, it came into being and was accepted by the American political community as specific times and to address specific problems and concerns. Interpretive approaches that completely sever the connection between constitutional argumentation and those historical specificities risk delegitimizing themselves because they may boil down to using Constitution-talk to mean whatever the speaker prefers as a matter of political morality.
Even so, the strict originalist, in my view, mistakenly reduces all of constitutional law to the interpretation of the original meaning of the words of the discrete provisions of the constitutional text. Such a "clause-bound interpretivism," as John Harty Ely described the position, misses the point of the words. The point, above all in the 1787 text, was a serious, thought-through, and debated attempt to solve the governance problems that existed in the 1780s and that were mostly incapable of being solved either by the weak national government created under the Articles of Confederation or by the state governments acting individually or collectively outside the Confederation Congress. More precisely, the point was to solve the central problem—the singular really is right—that the Union faced in the 1780s: the Union-destroying ways in which the states were relating to the central government and to one another. To adequately appreciate and realize the point of the words of the 1787 text, purposive, structural, practice-based, and consequentialist arguments are needed in addition to textualist and originalist ones.
The Collective-Action Constitution continuously returns to the various provisions of the Articles of Confederation to recover the point of the text of the 1787 Constitution and to suggest how the problems facing American society today can be addressed in a way that faithfully adheres to the solutions embodied in the text. For example, the original Framers and ratifiers did not know about climate change, but they knew all about other free-rider problems. Chapter 9 of the book outlines a parallel approach to the Reconstruction Constitution, which was thoroughly considered and adopted to address a different problem facing the Union in the 1860s: the dignity-destroying ways in which states were relating to their own inhabitants. The Reconstruction Congress did not know about sexual-orientation discrimination, but they knew all about other caste systems.
To a very great extent, the very lawfulness of constitutional law and the legitimacy of judicial decisions rest upon fidelity to the written Constitution. Strict, good-faith originalists are right about that. The Collective-Action Constitution models how a methodological pluralism committed to original constitutional purpose can maintain such fidelity while enabling American society to effectively address current concerns. "This provision," after all, "is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." McCulloch, 17 U.S. 316, 415 (1819).
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