What justifies reliance on enduring practices in constitutional law? It is possible to defend traditionalism on a descriptive plane, or on the ground that it reflects a democratic-populist perspective appropriate in the United States. I have made those arguments elsewhere, but in this paper, I respond to a familiar criticism that tradition has no moral force at all: doing the same thing we've always done gives us no reasons, so the objection goes, to do the same thing today.
A few caveats: first, traditionalism assigns presumptive, not conclusive, authority to enduring practices; second, what I offer is only a sketch, and more is needed for a comprehensive moral justification; third, I'm not interested in pragmatic reasons for adhering to legal precedent. What I'm after is a deeper justification that explains the worth or value of the substance of traditionalism: enduring political and cultural practices.
In the paper, I offer three justifications, two of which I excerpt here (space constraints!). This is the longest part of the paper, so I encourage interested readers to go to the paper for the third justification: that enduring practices are "determinations" within a natural law framework.
Desires and Enduring Practices: One possibility is to focus on what people desire with respect to enduring practices. Many people tend to regret their loss or destruction, as they do other phenomena: buildings and monuments that have lasted for many years; artifacts and instruments that continue to be useful and enjoyed; legal and political documents, procedures, and institutions; religious and educational institutions; objects of reverence and treasured memory (a crucifix; the national flag; a family heirloom; the gift of a departed loved one); the rules and conventions of languages ("begs the question" does not mean "makes me want to ask a question"); the rules of games (I still grouse at the changing pass interference rules in football); local and personal practices and customs (Thanksgiving dinner with family; weekly reading groups; game night). By contrast, most people do not object to the loss or destruction of other things: the decay and death of stars in distant galaxies; changes in the animal or plant world dependent upon aging or patterns of predation occurring in the natural course; changes in subjective views about a question after private reflection.
I explore the remarkable number of failures in cryptocurrency security for Lawfare. I argue that security really is worse for cryptocurrency, because the decentralization that proponents treasure makes it hard to safely disclose and fix security holes:
Software security flaws … are ubiquitous in digital products. Like writers who can't see their own typos, most coders have trouble seeing how their software can be misused. The security flaws in their work are usually found by others, often years later. Indeed, security researchers are still finding serious holes in Windows today—30 years after it became the world's dominant operating system.
Companies like Microsoft have improved their products' security by making peace with [security] researchers. There was a time when software producers treated independent security research as immoral and maybe illegal. But those days are mostly gone, thanks to rough agreement between the producers and the researchers on the rules of "responsible disclosure." Under those rules, researchers disclose the bugs they find "responsibly"—that is, only to the company, and in time for it to quietly develop a patch before black hat hackers find and exploit the flaw. Responsible disclosure and patching greatly improves the security of computer systems, which is why most software companies now offer large "bounties" to researchers who find and report security flaws in their products.
That hasn't exactly brought about a golden age of cybersecurity, but we'd be in much worse shape without the continuous improvements made possible by responsible disclosure.
And that's the problem for cryptocurrency. Responsible disclosure just won't work there, at least not as it's traditionally been understood.
…
[C]ryptocurrency is famously and deliberately decentralized, anonymized, and low friction. That means that the company responsible for hardware or software security may have no way to identify who used its product, or to get the patch to those users. It also means that many wallets with security flaws will be publicly accessible, protected only by an elaborate password. Once word of the flaw leaks, the password can be reverse engineered by anyone, and the legitimate owners are likely to find themselves in a race to move their assets before the thieves do.
My very tentative decentralized solution is the "responsible rescue" of vulnerable wallets:
The Nomad hack illustrates what might be called the decentralized "rescue" of compromised wallets. The company noticed that some of the people exploiting the flaw said they were doing it to protect the assets. It issued a public appeal to "white hat hackers and ethical researcher friends" to send any funds they rescued to a wallet created for that purpose. It further sweetened the pot by offering a 10 percent bounty for returned funds and promising not to pursue legal actions against those who returned funds. So far, the company reports that $32 million of the $190 million that was stolen has been returned….
[B]ut cryptocurrency rescuers are taking big legal risks…. To reassure good-faith rescuers, legal and financial incentives need to be more systematic and much more certain.
[Jack Goldsmith and I will have an article out about the Dormant Commerce Clause, geolocation, and state regulations of Internet transactions in the Texas Law Review early next year, and I'm serializing it here. There is still plenty of time for editing, so we'd love to hear any recommendations you folks might have; in the meantime, you can read the entire PDF of the latest draft (though with some formatting glitches stemming from the editing process) here.]
Considering how various state laws treat nationwide publishers, especially internet publishers, helps show the problems with courts' occasional condemnation of laws for which the "practical effect . . . is to control conduct beyond the boundaries of the State.". This focus shows how the Dormant Commerce Clause has been applied to internet communications, introduces the importance of geographic filtering in this context, and thus sets up the analysis of the more recent social media platform issues addressed in Part V. To make things concrete, imagine a major online publisher—say, Fox News—and the state laws that it might be subject to and therefore must consider. We'll focus on the publisher's own materials, thus avoiding any possible problem under Section 230 of the Communications Decency Act.[1]
For starters, like all publishers, Fox News must worry about libel law. Some basic principles of libel law are of course dictated uniformly by the First Amendment, but beyond that the rules vary. A few states, for instance—including New York, where Fox is headquartered—require a showing of "actual malice" for all statements of public concern, including statements about private figures.[2] Most other states allow recovery of proven compensatory damages for libel based on a showing of mere negligence.[3]
Presumably Fox would want to avoid even negligent mistakes, just as a matter of editorial policy. But even when editors believe that a statement is correct, and that they've reasonably investigated the facts, they may recognize that there's a risk that a jury will see things differently. If so, they may publish if they know they're protected by the "actual malice" standard, but refrain from publishing if they are subject to the negligence standard. Indeed, the purpose of the New York Times v. Sullivan "actual malice" standard, and of some states' decisions to extend the standard to all public-concern speech, is to prevent this chilling effect.[4]
Likewise, all states recognize a "fair and accurate report" privilege that allows news outlets to freely publish reports of government proceedings (such as trials), even if some of the allegations aired by parties or witnesses in those proceedings are false.[5] But some states exclude reports of confidential or sealed proceedings;[6] others don't.[7]
Similarly, some states recognize a "neutral reportage" privilege, under which (to oversimplify slightly) neutral reports of a controversy are immune from libel liability.[8] Say that, for instance, City Councilman Glenn accuses fellow City Councilman Norton of sexual battery; the reporter thinks that Glenn's accusation is nonsense, but wants to publish a story about it, since the accusation reflects badly on Glenn (the accuser) and can shed light on why there's tension in the City Council.[9] In some states, the reporter is free to publish a "neutral report" of the controversy. But other states (such as Pennsylvania) follow the usual "republication rule," under which repeating Glenn's accusation, even in the course of reporting on the dispute, could lead to defamation liability.[10] There are many other important differences among state libel laws as well.[11]
All those state libel rules have potential extraterritorial effect on Fox.
One important challenge to traditionalism involves what some have termed the "level of generality" problem. Mark Tushnet, in addressing a previous article of mine on traditionalism, observed:
Referring to the Bladensburg cross case, DeGirolami criticizes Justice Breyer for "drawing" the practice with reference solely to the very cross at issue…But, of course, that criticism doesn't address the possibility that we could characterize the cross a little more generally—as a token of a practice involving crosses as symbols of wartime sacrifice in connection with a war that the wider culture immediately (recall the citation of "In Flanders Field") associated with crosses, for example—without moving to the more general "war memorials" or (even) "memorials of sacrifice" or (even) … well, you get the point.
Traditionalists do face the issue of how to decide on the determinants of the tradition against which they compare the case they are considering for inclusion within or exclusion from the tradition. Drawing a practice too narrowly will stunt the tradition's interpretive power in future cases. Drawing it too broadly will dilute the tradition to the point where the method begins to resemble something else altogether—often something like principle-driven adjudication. Then there is the associated problem of manipulability. If the fact of judicial narrowing and broadening of traditions introduces too much uncertainty in outcomes, then it may begin to appear that the method cannot really control outcomes with any predictability. Traditionalism might even be accused of being empty.
Traditionalists have some responses to these points. First, traditionalism may contain some built-in uncertainty, but so do virtually all interpretive methods anybody finds attractive. Principled interpretation (approaches that apply principles of "liberty" or "equality" or "secularism" and so on) involves a healthy dose of uncertainty as judges debate the scope of the principle at issue. To say nothing of pragmatic, balancing, or cost/benefit approaches, whose defining feature is the unpredictability that inheres in particularistic judgment. And the same is true for originalism, in which "construction" of meaning (for originalists that endorse construction) in the many crucial situations where text is unclear depends upon what construing criteria the judge decides on. Uncertainty and disagreement about outcomes are simply in the nature of interpretation.
Judge Terry Doughty's opinion yesterday in Missouri v. Biden(W.D. La.) discusses various matters that came out in various ways, but has this to say about perhaps the highest-profile question:
On May 5, 2022, Plaintiffs {the State of Missouri, the State of Louisiana, Dr. Aaron Kheriaty, Dr. Martin Kulldorff, Jim Hoft, Dr. Jayanta Bhattacharya, and Jill Hines} filed a Complaint against Government Defendants {Joseph R. Biden, Jr., Vivek H. Murthy, Xavier Becerra, Department of Health and Human Services, Dr. Anthony Fauci, National Institute of Allergy and Infectious Diseases, Centers for Disease Control & Prevention, Alejandro Mayorkas, Department of Homeland Security, Jen Easterly, Cybersecurity & Infrastructure Security Agency, and Nina Jankowicz, Karine Jean-Pierre, Carol Y. Crawford, Jennifer Shopkorn, U.S. Census Bureau, U.S. Department of Commerce, Robert Silvers, Samantha Vinograd and, Gina McCarthy}.
In the Complaint and Amended Complaint, Plaintiffs allege Government Defendants have colluded with and/or coerced social media companies to suppress disfavored speakers, viewpoints, and content on social media platforms by labeling the content "disinformation," misinformation," and "malinformation." Plaintiffs allege the suppression of disfavored speakers, viewpoints, and contents constitutes government action and violates Plaintiffs' freedom of speech in violation of the First Amendment to the United States Constitution….
In accordance with the previous expedited discovery order, Plaintiffs served interrogatories and document requests upon White House Press Secretary Karine Jean-Pierre {[s]ubstituted for former White House Press Secretary Jen Psaki} and upon Dr. Anthony Fauci in his capacity as Chief Medical Advisor to the President. Government Defendants have refused to provide any interrogatory responses or responsive documents, maintaining that these would be internal communications that would implicate serious separation of powers concerns, that Plaintiffs are required to exhaust other avenues for the discovery first, and that it would be unduly burdensome and disproportional to the needs of the case.
Plaintiffs maintain they have not served interrogatories, and document requests upon President Biden and do not seek internal communications—only external communications that Dr. Fauci and Jean-Pierre sent to the relevant social media platforms.
Brian and Nick cover the month's biggest cryptocurrency policy story, the imposition of OFAC sanctions on Tornado Cash. They agree that, while the outer limits of sanctions aren't entirely clear, they are likely to show that sometimes the U.S. Code actually does trump digital code. Nick points listeners to his bracing essay, OFAC Around and Find Out.
Paul Rosenzweig reprises his role as the voice of reason in the debate over location tracking and Dobbs. (Literally. Paul and I did an hour-long panel on the topic last week. It's available here.) I reprise my role as Chief Privacy Skeptic, calling the Dobbs/location fuss an overrated tempest in a teapot.
Brian takes on one aspect of the Mudge whistleblower complaint criticizing Twitter's security: Twitter's poor record at keeping foreign spies from infiltrating its workforce and getting wide access to its customer records. Perhaps coincidentally, he notes, a former Twitter employee was just convicted of "spying lite", proving the company is just as good at national security protection as it is at content moderation.
Meanwhile, returning to onshore aspects of U.S.-China economic relations, Jordan tells us about the survival of high-levelgovernment concerns about TikTok. I note that, in the years since these concerns first surfaced in the Trump era, TikTok's lobbying efforts have only grown more sophisticated. Speaking of which, Klon Kitchen has done a good job of highlighting DJI's increasingly sophisticated lobbying in Washington D.C.
The Cloudflare decision to deplatform Kiwi Farms kicks off a donnybrook, with Paul and Nick on one side and me on the other. It's a classic Cyberlaw Podcast debate.
I update listeners on the flap over Google's bias against GOP fundraising emails. It has led to an unlikely result: less spam filtering for all such emails.
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
In February, my UCLA First Amendment Amicus Brief Clinic student Pauline Alarcon and I were appointed by District Judge Stephen Clark (E.D. Mo.) as amicus to file a brief supporting the right of public access and opposing sealing of certain documents. The parties had both agreed to sealing, but "courts are duty-bound to protect public access to judicial proceedings and records," even as to "stipulated sealings … where the parties agree." And appointing an amicus curiae to represent the no-sealing position helps give the court an adversary presentation on the matter.
We briefed the case, and Pauline flew out to argue it under my supervision; I think she did a superb job. I hope the court found our work helpful in its ultimate decision on the matter, which was published several days ago (see here, plus here on why that decision was in some measure redacted). Thanks to Scott & Cyan Banister, the main benefactors of our Clinic, we had funding for travel costs, so none of this required spending court funds.
It seems to me that this sort of appointment is win-win-win:
The court gets arguments from both sides, which it can then impartially consider. (The court may of course end up disagreeing with our position.) I've litigated over 30 motions related to sealing in courts throughout the country, so I can make sure that the arguments are well researched and presented. And I've written the just-published The Law of Pseudonymous Litigation, and in the process learned a great deal about pseudonymity (plus I've also litigated several pseudonymity cases).
The public's presumptive right of access to court records is protected.
My student gets an opportunity to brief a real motion under my supervision, and argue it in court, if the court concludes oral argument is appropriate. This is a tremendously valuable educational opportunity for any law student, I think.
Fiona Harrigan at the main Reason site beat me to this story from last week; I criticized the initial orders (which the court has now vacated) when they were initially handed down in May (see also this post about the "taken as a whole" element of the obscenity test). You can also read one of the orders, In re: A Court of Mist and Fury, for yourself; in relevant part, it holds that,
1. The Code of Virginia does not provide a Circuit Court with the statutory authority to grant the relief sought in the Petition, specifically, a determination that the book A Court of Mist and Fury … is "obscene as to minors," and that consequently this Court lacks subject matter jurisdiction to adjudicate this matter.
2. The Petition does not allege facts sufficient to support a finding, under the terms of Virginia Code § 18.2-384, that the Book is obscene [i.e., obscene as to adults].
3. The Constitutions of the United States and the Commonwealth of Virginia operate as a constraint on the pleading of a claim of obscenity as to adults and as to material that is inappropriate for distribution to minors, and the Petitions fail to meet the requirements of the governing constitutional rules.
4. Virginia Code § 18.2-384 [the obscenity injunction statute] is unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia [by authorizing preliminary injunctions against distributions of works; the criminal law of obscenity is unaffected by this -EV].
[Jack Goldsmith and I will have this article out in the Texas Law Review early next year, and I'm serializing it here. There is still plenty of time for editing, so we'd love to hear any recommendations you folks might have; in the meantime, you can read the entire PDF of the latest draft (though with some formatting glitches stemming from the editing process) here.]
Let's begin with a few words about the Dormant Commerce Clause and how it interacts with federalism principles.
The U.S. Constitution presumptively preserves state authority to control what happens within state borders, especially state power to protect citizens and residents from what legislators or voters perceive as harms. This state "police power" to regulate "health, safety, and morals" is implicitly acknowledged by the Constitution's structure of enumerated powers, and by the Tenth Amendment.[1]
The Constitution's preservation of the police power in the states ensures that "the facets of governing that touch on citizens' daily lives are normally administered by smaller governments closer to the governed."[2] Regulatory preferences differ across states because states differ in their citizens' tastes, moral views, wealth, willingness to pay, and the like. State lawmakers are generally better positioned than federal lawmakers to ascertain such in-state preferences and implement the best policies based on them. Because policy preferences differ across states, regulating at the state level can in the aggregate satisfy more individual preferences than a uniform national law.[3] And federalism also lets states serve as "laboratories" that can experiment with various options, and show the way for other states (and perhaps for an eventual national rule).[4]
A uniform national law is sometimes appropriate to implement important national values or correct various state-level pathologies. But such uniform rules are typically imposed by a provision in the U.S. Constitution, such as the Takings Clause or the First Amendment, or by federal legislation within Congress' enumerated powers.[5]
Alongside these principles of vertical federalism, the Constitution imposes horizontal limitations that prohibit states from unduly impinging on the prerogatives of sister states or the proper operation of the interstate system. The Full Faith and Credit and Due Process Clauses prohibit states from regulating out-of-state conduct unless the conduct involves a "significant contact" or "significant aggregation of contacts" with the state.[6] The Privileges and Immunities Clause prevents states from enacting certain types of laws that give a benefit to in-staters but not out-of-staters.[7] And of central relevance to this article, the Dormant Commerce Clause prevents states from enacting certain regulations that affect interstate commerce.[8]
How is traditionalism similar to and different from originalism? And how does it relate to what some originalists call "liquidation"?
These questions are complicated by the capaciousness of originalism, which now encompasses many theories with diverse commitments. To narrow things down, we might compare originalism and traditionalism on the specific issue of the role (if any) of enduring practices.
Among originalists, there are disagreements about what evidence counts to ascertain the meaning of unclear text. Originalists who reject practices altogether are far from traditionalism. Those who accept practices as some evidence of original meaning are closer, though no originalist theory (so far as I know) takes enduring practices to be the primary determinants of meaning and law. None is the same as traditionalism.
9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.
One of the lingering issues arising from the events of January 6, 2021 has been whether it would resuscitate the little used Section Three of the Fourteenth Amendment. Section Three provides:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The January 6th riot has been called an "insurrection" at various points, including in the second House impeachment of President Donald Trump. There has been a fair amount of interest in making use of Section Three to disqualify various participants in that riot from holding future public office.
Of course, the big target here is Donald Trump himself. There are many challenges to using Section Three to disqualify Trump from being inaugurated for a second term as president, but the legal theories are being tested on some smaller fish.
Representative Madison Cawthorn battled a ballot challenge on a Section Three argument in North Carolina, but his failure to win his primary election largely ended that challenge. The Fourth Circuit did address a limited set of issues in that case.
Today a judge in New Mexico gave the advocates of Section Three their first serious victory. This was a much easier case than the Cawthorn challenge or any possible Trump challenge.
Cuoy Griffin was a county commissioner in New Mexico and a founder of Cowboys for Trump. He's been a vocal proponent of various election conspiracies, ordered an "audit" of election returns in his county, and obstructed the certification of the primary election results in his county in 2022.
Griffin also participated in the events of January 6th. He was not among the worst offenders. He did not enter the building itself, but stood on an exterior landing exhorting the crowd. As did so many, he had himself livestreamed to his social media audience while doing so. In subsequent days, he celebrated the riot and urged further armed activities in the future.
Unlike Cawthorn, Griffin was convicted in a federal court for his role in the riot and given a short jail sentence. He was not, however, convicted of seditious conspiracy but rather for a misdemeanor offense. His was one of the first trials prosecuted by the Justice Department.
In today's action, the New Mexico judge held that the events of January 6th amounted to an insurrection within the terms of the Fourteenth Amendment and that Griffin had engaged in and aided that insurrectionary activity. Making use in part of my casebook co-authorMark Graber's historical research, the judge concluded that Section Three's language regarding insurrection and those who engaged in it had a fairly broad meaning in the nineteenth century.
Defendant traveled across the country to participate in a demonstration the purpose of which was to stop, impede, and delay the constitutionally-mandated process of counting electoral votes and, in turn, the certification of Joe Biden's election as President.Defendant knowingly breached barricades put in place by the Capitol Police to prevent interference with Congress's election-certification proceedings. He illegally trespassed onto the steps of the Capitol, where he proclaimed that it was a "great day for America!" as fellow Trump supporters assaulted law enforcement, smashed in the windows of the Capitol building, forced their way inside, and halted the electoral vote count. Defendant was then criminally charged for unlawfully breaching and occupying restricted Capitol grounds and engaging in "disruptive conduct" to "impede and disrupt" Congress's certification of the 2020 presidential election.
Defendant personally contributed to the overwhelming of law enforcement by entering through the site of the initial breach of the Capitol Police's security perimeter at the Capitol's West Front grounds, where crowds first began to flow into restricted areas and "all available" Capitol Police units were immediately deployed.By breaching these barricades and illegally remaining on restricted Capitol grounds for an hour and a half, Defendant contributed to the chaos that delayed Congress's election-certification proceedings.
While at the insurrection, Defendant relished in the violent attack on the heart of American democracy and later threatened further such attacks unless the insurrectionists' false and debunked claims of election fraud were addressed.
A sitting government official who actively engaged in the riot itself would seem to be the low-hanging fruit of the Section Three effort. We'll see what happens next with this case and future ones.
K.D. v D.D., officially released today by the Appellate Court of Connecticut, in an opinion by Judge Douglas Lavine, joined by Chief Judge William Bright and then-Judge Joan Alexander, involved a restraining order obtained by a divorcing wife against her husband:
[The plaintiff wife] testified that on the evening of June 24, 2021, she went to a restaurant with a group of others, including friends of the defendant. The plaintiff "felt [the defendant] behind [her] shoulder," and noticed that "the hairs on the back of [her] neck stood up." In her testimony, the plaintiff described her encounter with the defendant at the restaurant as follows: "I saw him approaching the hostess stand very physically tense. He stared at me with his furrowed brow twitching and locked eye contact for, what, I mean, twenty-five seconds and I was frozen. He seemed very agitated in his physical movements."
She further testified that during the incident the defendant's shoulders were "very high" and that he was "leaning in aggressively with his hands clenched and tight and it seemed like he was breathing very heavy." She explained that the defendant then moved away from the hostess desk "in a wide circle behind [her] slowly." She stated that she was "in shock." The defendant testified that he went to the restaurant in response to an invitation from a friend, but when the plaintiff arrived he became "very uncomfortable" and did not "feel safe" and, therefore, walked from the hostess stand area to the lobby where he waited for an Uber….
The plaintiff testified that, after the defendant left the restaurant, he communicated with her electronically and she detailed that while she was still at the restaurant, she received a text message from the defendant at 8:33 p.m., stating: "Enjoy your date!" She further testified that the defendant sent her a series of emails on the night of June 25 and in the early morning of June 26, 2021.
Sixth post in the symposium on the National Constitution Center "Restoring the Guardrails of Democracy" project. Edward Foley of Team Progressive highlights some points of agreement between the three reports.
As Walter Olson has noted, one of the beneficial aspects of this Guardrails of Democracy project organized by the National Constitution Center is the considerable common ground shared by the three separate teams, each approaching the topic independently from different philosophical perspectives. This convergence on some core beliefs about what's essential for safeguarding democracy at this moment of peril might even be characterized as the kind of "overlapping consensus" that John Rawls argued was necessary for political liberty, equality, and democracy to exist under conditions of philosophical pluralism.
In an effort to further this spirit of conciliation, I will identify three additional points of agreement concerning our mutual goal of safeguarding democracy from the forces that presently threaten it in the United States:
Broaden as Wide as Possible the Democracy-Protection Coalition
Walter worries that use of the terms "Big Lie" and "election denialism" are counterproductively off-putting, alienating conservative-minded and Republican-affiliated "ordinary" citizens who otherwise could be recruited to the democracy-protecting cause. Walter offers "election fabulist" as a less objectionable label for the same "incredibly dangerous" phenomenon. I'm happy to pragmatically use the more diplomatic term if that will help achieve the objective of preventing the repudiation of valid election outcome by partisans who simply refuse to accept defeat.
Moreover, this kind of terminological restraint is an instance of a more general point: even if "electoral skepticism" (how's that for an even more diplomatic phrase?) over the outcome of the 2020 election is utterly unwarranted based on all the evidence, as Bill Barr among others have observed, it would be wise to consider bolstering those procedures that would help convince election skeptics of the validity of vote totals in the future. Thus, measures to make the process even more transparent and less vulnerable to misinformation—like counting mailed ballots quickly and permitting robust observation of the counting process by representatives of the competing candidates and political parties—should be maximized to the greatest extent possible.
Still, there is a limit to this strategy. If Donald Trump and/or some of his allies attempt to repudiate the valid outcome in any of the hotly contested midterm elections, in the same way that Trump attempted to negate his 2020 loss to Joe Biden, it will be necessary to oppose that effort at election subversion with all the forces available to defenders of democracy. It will not be a moment for linguistic niceties. Rather, plain-spoken bluntness about the repeated refusal to accept electoral defeat will be needed. This point of course would be equally true if it were Democrats, rather than Republicans, refusing to acknowledge the validity of the other side's victory. But realistically, there is more reason to fear at the moment that some of the Republican midterm candidates—like Kari Lake running for governor in Arizona—may be unwilling to concede defeat if the vote tally is against them, than if the same is true for their Democrat opponents.
Ultimately, it is imperative that enough Americans of good will—Republicans, Democrats, and independents (as Liz Cheney said)—are willing to abide by the results, whatever they are. The midterms will be a test of our current capacity to perform this crucial small-d democratic function. Any additional ideas on how to improve our prospects for success on this front would be most welcome.
Let States Choose Which Majority-Winner System They Prefer
Walter also prefers the "plain vanilla" version of Ranked Choice Voting, otherwise known as the "instant runoff" version, to the "round robin" alternative. He fears that round-robin voting is "more complex" than "today's America" can handle. I could argue that the round-robin method of identifying a winner from ranked-choice ballots is actually simpler and more straightforward than the instant-runoff method, especially for Americans familiar with round-robin scoring in sports. But it's not necessary, or productive, to have that debate here.
Instead, as part of the project of finding common ground in the defense of democracy, all of us should embrace a move to majority-winner elections, leaving to states the choice of which particular majority-winner system they wish to adopt: instant runoff, round-robin, or another alternative, including the kind of "top two" system used in California, which doesn't even require ranked-choice ballots. Anyone, like Walter, who favors instant-runoff voting over the status quo ought to favor the congressional adoption of a majority-winner requirement for congressional elections. Walter may be right that ranked choice voting, or electoral reform more broadly, won't eliminate the risk of election subversion (to use that particular term). But there is already evidence from this year's midterms—including Sarah Palin's loss under Alaska's new instant runoff system—that more extreme candidates, like those espousing "election fabulist" positions, have greater difficulty prevailing in majority-winner electoral systems. Therefore, it should be a high priority for the democracy-protection coalition to urge enough Republicans as well as Democrats in Congress to enact a majority-winner rule that would cause states to choose among the many majority-winner alternatives that are all more democracy-protecting to the existing plurality-winner systems that most states use.
Jumpstart a Discussion on Reinvigorating Civics Education
Walter rightly acknowledges the danger that the government's effort at civics education can turn into "taxpayer-funded propaganda" but he still believes that improved civics education is a worthwhile pursuit. I too see no alternative to an attempt to resuscitate a national conversation on the shared precepts of democracy that should form the basis of every American's education for citizenship. Even if in our currently polarized environment there are sharp disagreements among citizens about what democracy entails, we need to have this conversation. We cannot possibly undertake self-government together as Americans unless we embrace some common conception of what self-government is and how it is to be conducted.
This brief follow-up to our initial round of Guardrail essays is not the place for a detailed discussion of what a revitalized civics education would entail. Indeed, precisely because the contents of a proposed civics education would be contested, there should be no claim of imperiously dictating the curriculum to those who would object. Instead, what is essential is to have a serious, good-faith, and ongoing dialogue about what that curriculum should include.
I have faith that if that kind of dialogue occurs, it would be fruitful. The essential elements of a democracy, while contestable to some degree, inevitably have some core components to be mutually discoverable. Democracy is not an infinitely malleable concept, which ultimately has no core meaning. Instead, "government of the people, by the people, and for the people," as Lincoln so memorably put it, has an irreducibly common understanding for all Americans. We need to remind ourselves of what that common understanding is, so that it indeed does not perish.
Yesterday a federal district court granted President Trump's request for a special master to review material seized from his Mar-a-Lago estate, and the court also temporarily enjoined the Government "from further review and use of any of the materials seized from Plaintiff's residence on August 8, for criminal investigative purposes" (page 23). The ground for all of this, the court said, was its "equitable jurisdiction and inherent supervisory authority" (page 1). The claim to inherent supervisory authority seems improbable to me. Whatever that authority is, and it is debated, I will leave that aside to consider the court's "equitable jurisdiction."
"Equitable jurisdiction" means the power of a court of equity to act. It's not quite the same as subject-matter jurisdiction, though the concepts overlap. We could say "you have subject-matter jurisdiction under x statute, but you don't have equitable jurisdiction because there is an adequate remedy at law." Equitable jurisdiction is required for equitable intervention.
