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The Early Years of First Amendment Lochnerism
COLUMBIA LAW REVIEW VOL. 116 DECEMBER 2016 NO. 8 ARTICLES THE EARLY YEARS OF FIRST AMENDMENT LOCHNERISM Jeremy K. Kessler* From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith—the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First *. Associate Professor and Milton Handler Fellow, Columbia Law School. FoR conversation and counsel along the way, -
An Open Letter to Congressman Gingrich
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1995 An Open Letter to Congressman Gingrich Bruce Ackerman Akhil Amar Jack Balkin Susan Low Bloch Philip Chase Bobbitt Columbia Law School, [email protected] See next page for additional authors Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, Taxation-Federal Commons, and the Tax Law Commons Recommended Citation Bruce Ackerman, Akhil Amar, Jack Balkin, Susan L. Bloch, Philip C. Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein & Harry Wellington, An Open Letter to Congressman Gingrich, 104 YALE L. J. 1539 (1995). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2193 This Response/Comment is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Authors Bruce Ackerman, Akhil Amar, Jack Balkin, Susan Low Bloch, Philip Chase Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein, and Harry Wellington This response/comment is available at Scholarship Archive: https://scholarship.law.columbia.edu/ faculty_scholarship/2193 Comment An Open Letter to Congressman Gingrich* We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes.' This proposal violates the explicit intentions of the Framers. -
Chapman Law Review
Chapman Law Review Volume 21 Board of Editors 2017–2018 Executive Board Editor-in-Chief LAUREN K. FITZPATRICK Managing Editor RYAN W. COOPER Senior Articles Editors Production Editor SUNEETA H. ISRANI MARISSA N. HAMILTON TAYLOR A. KENDZIERSKI CLARE M. WERNET Senior Notes & Comments Editor TAYLOR B. BROWN Senior Symposium Editor CINDY PARK Senior Submissions & Online Editor ALBERTO WILCHES –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Articles Editors ASHLEY C. ANDERSON KRISTEN N. KOVACICH ARLENE GALARZA STEVEN L. RIMMER NATALIE M. GAONA AMANDA M. SHAUGHNESSY-FORD ANAM A. JAVED DAMION M. YOUNG __________________________________________________________________ Staff Editors RAYMOND AUBELE AMY N. HUDACK JAMIE L. RICE CARLOS BACIO MEGAN A. LEE JAMIE L. TRAXLER HOPE C. BLAIN DANTE P. LOGIE BRANDON R. SALVATIERRA GEORGE E. BRIETIGAM DRAKE A. MIRSCH HANNAH B. STETSON KATHERINE A. BURGESS MARLENA MLYNARSKA SYDNEY L. WEST KYLEY S. CHELWICK NICHOLE N. MOVASSAGHI Faculty Advisor CELESTINE MCCONVILLE, Professor of Law CHAPMAN UNIVERSITY HAZEM H. CHEHABI ADMINISTRATION JEROME W. CWIERTNIA DALE E. FOWLER ’58 DANIELE C. STRUPPA BARRY GOLDFARB President STAN HARRELSON GAVIN S. HERBERT,JR. GLENN M. PFEIFFER WILLIAM K. HOOD Provost and Executive Vice ANDY HOROWITZ President for Academic Affairs MARK CHAPIN JOHNSON ’05 JENNIFER L. KELLER HAROLD W. HEWITT,JR. THOMAS E. MALLOY Executive Vice President and Chief SEBASTIAN PAUL MUSCO Operating Officer RICHARD MUTH (MBA ’05) JAMES J. PETERSON SHERYL A. BOURGEOIS HARRY S. RINKER Executive Vice President for JAMES B. ROSZAK University Advancement THE HONORABLE LORETTA SANCHEZ ’82 HELEN NORRIS MOHINDAR S. SANDHU Vice President and Chief RONALD M. SIMON Information Officer RONALD E. SODERLING KAREN R. WILKINSON ’69 THOMAS C. PIECHOTA DAVID W. -
Jack Balkin's Interaction Theory of “Commerce”
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2011 Jack Balkin's Interaction Theory of “Commerce” Randy E. Barnett Georgetown University Law Center, [email protected] Georgetown Public Law and Legal Theory Research Paper No. 11-37 This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/626 http://ssrn.com/abstract=1803439 2012 U. Ill. L. Rev. 623-667 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons BARNETT.DOCX (DO NOT DELETE) 5/14/2012 10:46 AM JACK BALKIN’S INTERACTION THEORY OF “COMMERCE” Randy E. Barnett* In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the commerce clause. He claims that “com- merce” meant “social interaction.” In this Article, I explain why his theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “in- teraction,” and “interaction” to “affecting.” This triple reduction dis- torts rather than illuminates the original meaning of “commerce.” Balkin furthermore omits from his discussion the massive amounts of evidence of contemporary usage—along with dictionary definitions of “intercourse”—establishing that “commerce” referred to the trade or transportation of things or persons, and did not include such produc- tive economic activity as manufacturing or agriculture, much less all social interaction. I also reply to Balkin’s criticisms of my book, Re- storing the Lost Constitution. -
Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time
BALKIN.PRINTER (DO NOT DELETE) 12/21/2019 1:12 PM Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time Jack M. Balkin* INTRODUCTION .......................................................................................... 215 I. POLITICAL REGIMES IN POLITICAL TIME ............................................ 220 A. The Idea of a Constitutional Regime ...................................... 220 B. Judicial Time ........................................................................... 224 II. HOW THE RISE AND FALL OF REGIMES AFFECTS JUDICIAL REVIEW . 227 III. THE ROLE OF CONSTITUTIONAL THEORY IN THE CYCLE OF REGIMES ............................................................................................. 243 A. The Cycle of Regimes and Living Constitutionalism ............. 246 B. The Cycle of Regimes and Originalism .................................. 251 C. The Return of Liberal Skepticism About Judicial Review ..... 261 CONCLUSION ............................................................................................. 264 Introduction Over the course of a little more than a century, American liberals (or, in an earlier period, progressives) and conservatives have switched positions on judicial review, judicial restraint, and the role of the federal courts—not once, but twice.1 At the beginning of the twentieth century, progressives grew increasingly skeptical of judicial review, while conservatives embraced judicial review to limit federal and state regulation and -
Living Originalism and Living Constitutionalism As Moral Readings of the American Constitution
LIVING ORIGINALISM AND LIVING CONSTITUTIONALISM AS MORAL READINGS OF THE AMERICAN CONSTITUTION JAMES E. FLEMING∗ INTRODUCTION ............................................................................................. 1171 I. THE BALKANIZATION (AND BALKINIZATION) OF ORIGINALISM........ 1173 II. BALKIN’S LIVING ORIGINALISM AS A MORAL READING OF THE AMERICAN CONSTITUTION ................................................................ 1175 III. STRAUSS’S LIVING CONSTITUTIONALISM AS A MORAL READING OF THE AMERICAN CONSTITUTION .................................................... 1177 A. Originalism and Its Sins ............................................................ 1177 B. The Common Law ...................................................................... 1179 C. The Role of the Written Constitution: Common Ground and Jefferson’s Problem ............................................................ 1180 D. Constitutional Amendments and the Living Constitution .......... 1183 CONCLUSION ................................................................................................. 1184 INTRODUCTION With this event – A Symposium on Jack Balkin’s Living Originalism and David Strauss’s The Living Constitution – we launch a Boston University School of Law series of symposia on significant recent books in law. The distinctive format is to pick two significant books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty -
Democracy and Dysfunction: an Exchange
DEMOCRACY AND DYSFUNCTION: AN EXCHANGE SANFORD LEVINSON' JACK M. BALKIN* September 29, 2015 Dear Jack, It is obviously no longer controversial that the American political system, especially at the national level, is seriously dysfunctional. Consider, for example, what are nearly the opening words-after noting that the United States Capitol is currently enfolded by scaffolding for repair of the physical building-of the distinguished Columbia political scientist and historian Ira Katznelson's recent contribution to a Boston Review forum on "Anxieties of Democracy."' Even if "[r]estoration is underway, its conclusion in sight," repair of the institutions inside the Capitol seems a long way off, if it is even possible.2 Katznelson continues: The House and Senate are presently shackled. Paralyzed by party divisions, influenced excessively by moneyed interests, and perverted by the disappearance of civic virtue, representative institutions appear unable to identify and address our most consequential public problems, including the politics of redistribution, racial equity, immigration, and the proper balance between liberty and national security. Like the dome, American democracy badly needs reconstruction.3 * Professor Sanford Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, joined the University of Texas Law School in 1980. Professor Levinson is also, in both fall 2015 and 2016, a visiting Professor of Law at Harvard Law School. He was elected to the American Academy of Arts and Sciences in 2001 and received the Lifetime Achievement Award from the Law and Courts Section of the American Political Science Association in 2010. Among his books is Framed:America's 51 Constitutions and the Crisis of Governance (2012). -
White Male Aristocracy
Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 4-30-2020 White Male Aristocracy Mary Sarah Bilder Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Constitutional Law Commons, and the Legal History Commons Recommended Citation "White Male Aristocracy," Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019), Balkinization, April 30, 2020. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. Balkinization: White Male Aristocracy More Create Blog Sign In Balkinization Front page Thursday, April 30, 2020 Balkin.com Books by Balkinization White Male Aristocracy Bloggers Balkinization an unanticipated Guest Blogger consequence of Jack M. Balkin For the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s- -- Archives - - 1830s (Cambridge University Press, 2019). Mary Sarah Bilder Gerry Leonard and Saul Cornell’s fascinating book, The Partisan Republic: E-mail: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780-1830s Jack Balkin: jackbalkin at tells the story, as I put in in a blurb, “of the unsettling transformation of yahoo.com aristocratic-tinged constitutional republic into a partisan white male democracy.” Bruce Ackerman bruce.ackerman at In this year where we recall the Nineteenth Amendment’s re-enfranchisement of yale.edu women, the Leonard/Cornell book demands that we reevaluate the way we Ian Ayres describe the early nineteenth-century constitutional state. -
Nathaniel Persily
5/16/2017 NATHANIEL PERSILY Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 Phone: (917) 570-3223 Email: [email protected] Fax: (650) 725-9875 Web: http://www.persily.com/ ACADEMIC APPOINTMENTS STANFORD LAW SCHOOL STANFORD, CA JAMES B. MCCLATCHY PROFESSOR OF LAW 2013 – present • Courtesy Appointments: Departments of Communication and Political Science • Courses: The Law of Democracy; Regulation of the Political Process; Contemporary Issues in Law and Politics; Constitutional Law, First Amendment, Political Campaigning and the Internet, Policy Practicum on Campaign Finance. • Service: Appointments Committee, Careers in Teaching Committee. • Significant Grants, Awards, and Fellowships: Center for Advanced Study in the Behavioral Sciences (2017-2018); Andrew Carnegie Fellowship (2016- 17); Stanford Cyber Initiative Grant (2016-17); Hewlett Foundation and Democracy Fund Grants for Campaign Finance Task Force (2016-17). COLUMBIA LAW SCHOOL NEW YORK, NY CHARLES KELLER BEEKMAN PROFESSOR OF LAW AND PROFESSOR OF POLITICAL SCIENCE 2008 – 2013 PROFESSOR OF LAW 2007 – 2008 • Courtesy Appointment: Department of Political Science (2007– 2013). • Courses: Constitutional Law; Advanced Constitutional Law: The Political Process; Freedom of Expression; Contemporary Issues in Law and Politics; Redistricting and Gerrymandering. • Service: Lateral Appointments Committee Chair (2010-2012), Curriculum Committee Chair (2009-2010), Advisory Committee Chair (2008-2009), Intellectual Life Committee; Resources and Development Committee, Committee on Professional Development. • Center for Law and Politics: Founding Director. • DrawCongress.org: Founder. • Instructor in University of Amsterdam Summer Program, July 2011. UNIVERSITY OF PENNSYLVANIA LAW SCHOOL PHILADELPHIA, PA PROFESSOR OF LAW 2005 – 2007 ASSISTANT PROFESSOR OF LAW 2001 – 2005 1 5/16/2017 • Secondary Appointment: Department of Political Science (2003-2007). -
Nathaniel Persily
2/8/2015 NATHANIEL PERSILY Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305-8610 Phone: (917) 570-3223 Email: [email protected] Fax: (650) 725-9875 Web: http://www.persily.com/ ACADEMIC APPOINTMENTS STANFORD LAW SCHOOL STANFORD, CA JAMES B. MCCLATCHY PROFESSOR OF LAW 2013 – present Courtesy Appointments: Departments of Communication and Political Science Courses: Regulation of the Political Process; Contemporary Issues in Law and Politics; Constitutional Law, First Amendment. Service: Appointments Committee, Careers in Teaching Committee. COLUMBIA LAW SCHOOL NEW YORK, NY CHARLES KELLER BEEKMAN PROFESSOR OF LAW AND PROFESSOR OF POLITICAL SCIENCE 2008 – 2013 PROFESSOR OF LAW 2007 – 2008 Courtesy Appointment: Department of Political Science (2007– 2013). Courses: Constitutional Law; Advanced Constitutional Law: The Political Process; Freedom of Expression; Contemporary Issues in Law and Politics; Redistricting and Gerrymandering. Service: Lateral Appointments Committee Chair (2010-2012), Curriculum Committee Chair (2009-2010), Advisory Committee Chair (2008-2009), Intellectual Life Committee; Resources and Development Committee, Committee on Professional Development. Center for Law and Politics: Founding Director. DrawCongress.org: Founder. Instructor in University of Amsterdam Summer Program, July 2011. UNIVERSITY OF PENNSYLVANIA LAW SCHOOL PHILADELPHIA, PA PROFESSOR OF LAW 2005 – 2007 ASSISTANT PROFESSOR OF LAW 2001 – 2005 Secondary Appointment: Department of Political Science (2003-2007). Courses: Law and the Political Process; Contemporary Issues in Law and Politics; Constitutional Law, First Amendment. 1 2/8/2015 Service: Tenure and Promotion Committee, Judicial Clerkship Committee, Nominations Committee, Committee on Academic Standing; Coordinator of Faculty Retreat and Legal Studies Workshop. Teaching Award: Winner of the Robert A. Gorman Award for Excellence in Teaching. -
Social Media and Democracy : the State of the Field, Prospects for Reform
Downloaded from https://www.cambridge.org/core. IP address: 170.106.33.19, on 26 Sep 2021 at 08:20:02, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/E79E2BBF03C18C3A56A5CC393698F117 Downloaded from https://www.cambridge.org/core. IP address: 170.106.33.19, on 26 Sep 2021 at 08:20:02, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/E79E2BBF03C18C3A56A5CC393698F117 Social Media and Democracy Over the last five years, widespread concern about the effects of social media on democracy has led to an explosion in research from different disciplines and corners of academia. This book is the first of its kind to take stock of this emerging multi-disciplinary field by synthesizing what we know, identifying what we do not know and obstacles to future research, and charting a course for the future inquiry. Chapters by leading scholars cover major topics – from disinformation to hate speech to political advertising – and situate recent developments in the context of key policy questions. In addition, the book canvasses existing reform proposals in order to address widely perceived threats that social media poses to democracy. This title is also available as Open Access on Cambridge Core. Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford Law School and the Co-Director of the Stanford Cyber Policy Center and Stanford Project on Democracy and the Internet. His scholarship focuses on the law and technology of democracy. -
The Promise and Pitfalls of the New Voting Rights Act
TH AL LAW JO RAL NATHANIEL PERSILY The Promise and Pitfalls of the New Voting Rights Act ABSTRACT. In the summer of 2oo6, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glossed over serious disagreements between the parties over the meaning of the central provision of the new VRA, which prohibits voting laws that "diminish the ability" of minority citizens "to elect their preferred candidates of choice." Those disagreements came to the surface in a fractured Senate Committee Report released only after Congress had passed the law. This Article describes the unprecedented legislative history of this law, and the political and constitutional constraints that led the law to take the form that it did. It also presents an interpretation of the new retrogression standard that avoids the partisan bias of alternatives while emphasizing the importance of racially polarized voting to the constitutionality and meaning of this new law. It urges that the new law be read as preventing redistricting plans that reduce the aggregated probability across districts of the election of candidates preferred by the minority community and disfavored by whites. AUTHOR. Professor of Law and Political Science, Columbia Law School; Sidley Austin Visiting Professor of Law, Harvard Law School. I am indebted to Erica Lai for research assistance and to librarian Bill Draper for an enormous amount of help collecting materials related to the legislative history of the new VRA.