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Self-Portrait in a Complex Mirror: Reflections on The Making of a Justice: Reflections on My First 94 Years by John Paul Stevens

Immediately after his death last year, Justice John Paul Stevens received a number of moving eulogies, several by former law clerks published in the Harvard Law Review, along with a tribute from Chief Justice Roberts.1 1.Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020).Show More Former law clerks—and I am one myself—must be given the latitude to reminisce about what they learned from their judge and what the judge’s contributions were. This Essay takes up a different task: to reflect on the man, the lawyer, and the judge as portrayed in his memoirs, The Making of a Justice: Reflections on My First 94 Years, published only months before he died at age ninety-nine. If the reflections in this Essay suffer from the distortions of hagiography, I hope they do so only to this extent: in observing that Justice Stevens does not need hagiography and would not have wanted it. On the contrary, he thought he could win any argument without fear or favor of any kind. And by the same token, he would have been completely confident of his account of his life and career. A comment by Paul Clement, a leading member of the Supreme Court bar, sets the tone for these reflections: Justice Stevens’s questions at oral argument were “[o]ften fatal; always kind.”2 2.Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27].Show More

Such paradoxes lie at the center of Justice Stevens’s character and his career as a lawyer and a judge. He showed extraordinary independence in a branch of government and a profession immersed in rules. He had a keen sense of competition, evident outside of court in his pursuit of golf, tennis, and bridge. In his memoirs, he confesses to only a few errors in his many opinions as a judge, and he points repeatedly to cases in which the Supreme Court eventually came around to the position he first took in dissent.3 3.John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases).Show More Yet he was known to be genial as well as generous in victory (which he much preferred) and in defeat (which he would rarely concede).4 4.Id. at 143 (conceding a mistake in one of five capital cases decided the same term).Show More He also had a fine sense of irony and a sharp sense of humor, notable for its telling and understated delivery. In a personal jurisdiction case, familiar mainly to experts in the arcana of civil procedure, the Court reached a unanimous result by way of several separate opinions. Justice Stevens agreed with the judgment in the case but not with the separate opinions, making clear his reservations in this footnote: “Perhaps the adage about hard cases making bad law should be revised to cover easy cases.”5 5.Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment).Show More

Justice Stevens’s independence raises pointed questions: Independence from what? And with allegiance to what principles? No individual, let alone a lawyer or a judge, would admit to a lack of independence. So does Justice Stevens’s independence really distinguish him from others in the same profession? The answer is a matter of both degree and kind: in degree, in his enthusiasm for the back-and-forth of legal argument, and in kind, in his skill and affinity for “the artificial reason and judgment of law,” as Lord Chief Justice Coke put it in confronting James I over his royal prerogative to act as a judge.6 6.12 Edward Coke, Reports of Sir Edward Coke 65 (1738).Show More Justice Stevens was a lawyer’s lawyer in his facility and engagement with the dialectic of legal discourse. This accords with both his competitiveness and his genial irony. Legal advocacy is a winner-take-all sport. It requires a truly competitive spirit, yet at the same time a willingness to graciously accept defeat.

In genuinely hard cases, the kind that make it to the Supreme Court, lawyers and judges must accept something like a major league batter’s average—ideally .500, but realistically .300. They prevail in hard cases or on difficult issues about a third of the time. This figure holds for Justice Stevens, as assessed through his opinions. He wrote a record-breaking 628 dissents as compared to 398 opinions for a majority or a prevailing plurality, and for good measure, he also wrote 375 concurring opinions.7 7.Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015).Show More It follows that a certain degree of humility is in order. This attitude might be hard to miss in Justice Stevens’s memoirs, which can be read as a history of arguments he won—or thought he should have won. To take this view, however, would be to discount Justice Stevens’s love of legal argument. As one of his former clerks, now Judge David Barron, observed: “Have you ever seen someone chuckle while reading a brief in a difficult case?”8 8.David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020).Show More

This Essay proceeds in three parts: first, in examining Justice Stevens’s personal and professional background and how that might have influenced his decisions as a judge; second, in accounting for the growing salience of the positions he took over his career; and third, in assessing the lessons from his long tenure as a Justice.

I. Individual and Family

Looking back over a life that extends to nearly a century, and over a career that was only a few decades shorter, requires continued adjustment of focus. Justice Stevens grew up in another era, one in which he could see Babe Ruth’s “called shot” before he hit a home run in the World Series.9 9.The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id.at 18.Show More He served with distinction in World War II and graduated from Northwestern University School of Law shortly after the war.10 10.Id.at 35–41, 53–59.Show More He then served as a law clerk for Justice Wiley Rutledge in the 1947 term of the Supreme Court.11 11.Id.at 61–68.Show More He returned to Chicago to practice law, focused upon antitrust cases, and returned only briefly to Washington to serve on the staff of the House Judiciary Committee.12 12.Id.at 69–92.Show More He was appointed to the U.S. Court of Appeals for the Seventh Circuit in 1970 and then to the Supreme Court in 1975.13 13.Id.at 107–10, 124–32.Show More

Justice Stevens established his reputation outside the antitrust field when he volunteered to serve, pro bono, as the general counsel to a commission investigating corruption in the Illinois Supreme Court.14 14.Id.at 101–06.Show More The commission, composed of practicing lawyers, was widely expected to exonerate the justices on the court, but Justice Stevens’s vigorous investigation corroborated the charges against two justices, who promptly resigned after the commission recommended that they do so. The investigation made Justice Stevens a prominent member of the Chicago bar, and soon after it concluded, Senator Charles Percy approached Justice Stevens about the possibility of appointment to the Seventh Circuit.15 15.Id.at 107–08.Show More The rest is history.

The smooth upward rise in his legal career might lead an observer to conclude that his personal life exemplified a similarly tranquil progression. This partly results from the illusion of a retrospective account of his career and partly from the evident satisfaction that Justice Stevens took in both his professional and his personal life. This mistake is understandable, but still a mistake. In his youth, his father was tried and convicted of financial fraud relating to the operation of the Stevens Hotel, which Justice Stevens’s family owned and managed. His father succeeded in having his conviction reversed on appeal a year after it was entered, but the entire process took a toll on the family, apparently contributing to a stroke suffered by Justice Stevens’s grandfather and the suicide of one of his uncles.16 16.Id.at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned).Show More Justice Stevens’s father never recovered his financial position, experienced failure as a restaurateur, and later had only limited success as the owner of a resort in Wisconsin.

After he reached the Supreme Court, Justice Stevens faced other personal trials. His adopted son, John Joseph Stevens, served in Vietnam and then encountered difficulties in civilian life. He died prematurely from a brain tumor in 1996.17 17.Barnhart & Schlickman, supra note 16, at 139, 193, 252.Show More Earlier, in 1979, Justice Stevens divorced his first wife, Elizabeth, and immediately married his second wife, Maryan. She had been the wife in a couple who lived near the Stevens family in Chicago and socialized with them, including with the children.18 18.Id. at 220–22.Show More The lessons from his personal life do not yield determinate implications for his judicial career or, indeed, for his life as a whole. What they do show, along with his service in World War II, is that he was someone acquainted with the crises in human affairs and their profound effects on individual lives, including his own.

His practice as a lawyer in Chicago, and a Republican in the era of the Democratic Daley machine, also reveals his ambivalent status as an establishment figure who was nevertheless, in some respects, an outsider. He notes in his memoirs, with characteristic irony, that when he entered the practice of law, “the Republican Party was still the party of Abraham Lincoln.”19 19.The Making of a Justice, supra note 3, at 81.Show More Now, of course, Republicans of this persuasion are as scarce nationally as all Republicans were in Chicago during his time there. After he became a judge, Justice Stevens refused to reveal his political affiliation, and several of his former law clerks speculate that he would have resisted the label that he was the leader of the liberal wing of the Supreme Court.20 20.He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican).Show More An accurate account of his judicial philosophy is so elusive partly because he was temperamentally averse to anything that resembled the party line.

II. The Evolution of a Justice

It is only a slight exaggeration to say that Justice Stevens moved from the center to the liberal wing of the Supreme Court without ever changing position. He did change position on issues such as affirmative action and capital punishment, moving away from disapproval of the first and approval of the second.21 21.He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id.at 141–44, 476–77.Show More But as Justice Stevens himself has noted, the Court changed around him more than he changed within it. Every Justice appointed during his time at the Court was more conservative than the Justice he or she replaced.22 22.Peñalver, supra note 20, at 765.Show More That change brought into greater relief the distinctiveness of his opinions and reasoning. When he challenged the old orthodoxy of the Warren and Burger Courts early in his career, his arguments mattered less to observers because that orthodoxy seemed so firmly established. As it has been systematically dismantled by the Rehnquist and Roberts Courts, the positions that he took appeared to be far more consequential. He ended his career challenging the emerging orthodoxy of originalism, textualism, and the primacy of rules over standards, and he invoked precedent more frequently to defend established doctrine as he saw it.

Tracing continuous themes in his career is a daunting task, made more daunting as his judicial record expanded over more than thirty-four years on the Court, and it has been augmented by the books he has published in retirement. The overall contours of his jurisprudence threaten to dissolve into a pointillist array of particular decisions and case-specific reasoning. General observations remain subject to qualifications, exceptions, and even refutation from the imposing number of opinions that he wrote, more than any other Justice in history. Hence, any attempt to identify principles and methods characteristic of his decisions has to be selective and by way of example rather than by an attempt to be comprehensive and definitive. This Essay therefore focuses on three opinions in which he took distinctive and noteworthy positions: Craig v. Boren,23 23.429 U.S. 190 (1976).Show More on sex discrimination and equal protection; Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,24 24.467 U.S. 837 (1984).Show More on judicial review of administrative action; and District of Columbia v. Heller,25 25.554 U.S. 570 (2008).Show More on the right to bear arms under the Second Amendment.

Each of these opinions comes from a different era in Justice Stevens’s tenure as a Justice—early, middle, and late—and each has had varying degrees of influence—from indirect and implicit, to significant and canonical, to oppositional and dissenting. The following discussion takes them up in chronological order.

A. Craig v. Boren

This case concerned two Oklahoma statutes that prohibited the sale of 3.2% beer to young men aged eighteen to twenty, but not to women of the same age. The majority opinion, by Justice Brennan, applied a form of “intermediate scrutiny” to hold the statutes unconstitutional because they did not “serve important governmental objectives” and were not “substantially related to achievement of those objectives.”26 26.Craig, 429 U.S. at 197.Show More The statistical evidence marshalled by the state did not establish a sufficient relation between the discrimination against young men and the state’s legitimate interest in traffic safety. Several separate opinions, either concurring or dissenting, raised issues about the appropriate standard of review.27 27.Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting).Show More Justice Stevens wrote another concurring opinion where he roundly declared: “There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases.”28 28.Id.at 211–12 (Stevens, J., concurring).Show More The Equal Protection Clause, as he read it, did not divide cases into those triggering strict scrutiny, rational basis review, and intermediate scrutiny.

Adherents to the orthodox view of judicial review would find this claim to be heresy, as it was then and still is now. The only difference in constitutional doctrine since then has been the shift towards increased scrutiny of sex-based classifications from the standard applied in Craig v. Boren to the more exacting standard of United States v. Virginia, requiring “an exceedingly persuasive justification” for government action based on gender.29 29.518 U.S. 515, 531 (1996) (internal quotation marks omitted).Show More While Justice Stevens concurred in these later opinions, he never retreated from his skepticism over “tiers of scrutiny.” He was “still convinced that carefully analyzing in each case the reasons why a state enacts legislation treating different classes of its citizens differently is far wiser than applying a different level of scrutiny based on the class of persons subject to disparate treatment.”30 30.The Making of a Justice, supra note 3, at 155.Show More The reason for his skepticism has as much to do with the logic of equality as with text of the Constitution. Assuring equal treatment among persons does not obviously require different standards of review and, as Justice Stevens suggests, seems to preclude it.

Whatever the merits of this argument, it certainly has not proved to be persuasive. It has not attracted the agreement of any other Justice. The debate among the other Justices over standards of judicial review has, instead, taken place within the framework of different levels of scrutiny. Yet the paradox he has noted has not been resolved, and it reappears whenever a new basis of classification, such as sexual orientation, comes under constitutional attack.31 31.Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review).Show More Justice Stevens’s failure to address such questions in terms of strict scrutiny might lead one to conclude that he was unsympathetic to novel claims of discrimination. The reverse, however, is true. On the particular issue of sexual orientation, in his very first term at the Court, he dissented from a summary affirmance of a decision upholding a criminal prohibition against sodomy,32 32.Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument).Show More as he did years later from a decision of the Court reaching the same conclusion on the merits,33 33.Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting).Show More and when the Court eventually overruled the latter decision, he joined the opinion doing so.34 34.Lawrence, 539 U.S. at 561.Show More

On the general issue of sex discrimination, as in Craig v. Boren, Justice Stevens nearly always voted to hold government action on the basis of sex unconstitutional. He did so in dissent from a decision upholding sex-based distinctions in defining statutory rape,35 35.Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting).Show More as he did in joining the opinions for the Court that established an elevated standard of scrutiny for sex-based classifications.36 36.United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982).Show More His refusal to frame the issue in terms of standards of review did not prevent him from reaching largely the same results. Occasional departures from this trend, as in his early vote to join in an opinion upholding a statute requiring only men to register for the draft37 37.Rostker v. Goldberg, 453 U.S. 57, 58 (1981).Show More or a late vote to join in an opinion upholding different standards for proof of paternity, rather than maternity, in immigration cases,38 38.Nguyen v. INS, 533 U.S. 53, 56 (2001).Show More stand out as exceptions based on very narrow grounds. These are, in the case of the draft, entirely superseded by the subsequent integration of women into all parts of the armed forces.39 39.Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military).Show More

More prominent and more immediately influential was Justice Stevens’s insistence on a unitary approach to claims of sex discrimination under Title VII of the Civil Rights Act of 1964.40 40.Codified at 42 U.S.C. §§ 2000e et seq. (2012).Show More He treated these claims just like claims of race discrimination, subject only to the narrow exceptions in the statute for employment discrimination on grounds other than race. In an early decision, City of Los Angeles Department of Water & Power v. Manhart,41 41.435 U.S. 702 (1978).Show More he established what would soon become the dominant approach to sex discrimination under Title VII. His opinion held that an employer violated Title VII whenever it made a classification on the basis of sex that fell outside the exceptions found in the statute.42 42.Id. at 708–10.Show More In a dissent from an earlier decision, he had already applied this principle to classifications on the basis of pregnancy,43 43.Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting).Show More and Congress soon amended Title VII to reach the result for which he had advocated.44 44.Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012).Show More He then elaborated upon it in an opinion that held, paradoxically, that male employees could be victims of pregnancy discrimination that restricted medical coverage for their wives.45 45.Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983).Show More This opinion was then further extended by the Court to exclusions from employment based on a woman’s capacity to become pregnant.46 46.UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991).Show More The Court’s position became identical to his own.

Is there a contrast between the standard “to govern impartially” that Justice Stevens found in the Equal Protection Clause and the rule prohibiting almost all classifications on the basis of sex under Title VII? If any exists, it arises from the more specific and less abstract terms of the statute, which lends itself to interpretation as a rule. Even so, this rule of statutory interpretation admitted some classifications on the basis of sex beyond those covered by exceptions in the statute itself. For instance, Justice Stevens found a California statute requiring paid leave for pregnant employees, but not for prospective fathers, to be consistent with Title VII. He reasoned that it was “consistent with ‘accomplishing the goal that Congress designed Title VII to achieve.’”47 47.Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)).Show More Justice Stevens’s interpretation of Title VII did not have to overcome any established orthodoxy, unlike the different standards of judicial review under the Constitution. Justice Stevens took issue with the latter orthodoxy and continued to do so throughout his career and in his memoirs,48 48.The Making of a Justice, supra note 3, at 155.Show More even if he could not persuade his colleagues explicitly to depart from it.

B. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Justice Stevens’s opinion for the Court in Chevron has likely received more citations than any other of his opinions. It is cited in nearly 17,000 judicial opinions and over 20,000 secondary sources.49 49.WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations)(last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006).Show More By way of comparison, his decision upholding the exercise of the eminent domain power in Kelo v. City of New London,50 50.545 U.S. 469 (2005).Show More which he regards as the most unpopular of his career,51 51.The Making of a Justice, supra note 3, at 431.Show More has been cited in opinions just over 500 times and in secondary sources just under 6000 times.52 52.WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020).Show More In administrative law, Chevron has become something of a world unto itself. Its holding appears in a paragraph that has been endlessly interpreted by courts and commentators:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.53 53.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted).Show More

In his memoirs, as in his opinions after Chevron, Justice Stevens went to some length to downplay its significance, emphasizing its continuity with prior decisions deferring to agency expertise and reserving to the courts the power to decide “pure question[s] of statutory construction.”54 54.Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)).Show More For him, there was no “Chevron revolution.”55 55.Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”).Show More To the consternation of Justice Scalia, he departed from the orthodoxy that would have elevated the significance of his own opinion.56 56.Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment).Show More In its place, Justice Stevens relied on a disputable distinction between pure questions of law for the courts and questions of application of law to fact for the agencies, complicating the seemingly simple procedure endorsed in Chevron itself.57 57.Id. at 445–46 & n.29 (majority opinion).Show More As a consequence, he appears to have minimized the implications of one of his most influential decisions—and to be one of the few Justices in history to do so. His aversion to rigid rules of decision extended even to those derived from his own opinions.

The most fundamental objection to a broad view of Chevron goes to its deference to administrative agencies on questions of law. Under current doctrine, administrative agencies can essentially “say what the law is.”58 58.City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting).Show More This question has been, since Marbury v. Madison, traditionally thought to be “emphatically the province and duty of the judicial department.”59 59.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).Show More A further objection follows from the provision in the Administrative Procedure Act that authorizes judicial review of “all relevant questions of law”60 60.5 U.S.C. § 706 (2012).Show More and from the historical practice of review of agency action by writ of mandamus.61 61.Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017).Show More Justice Stevens’s view of Chevron reduces the force of those objections, as compared to the usual understanding of the decision, by opening the door at the outset of the inquiry to judicial resolution of “pure question[s] of statutory construction.”62 62.Cardoza-Fonseca, 480 U.S. at 445–46 & n.29.Show More Still, if Chevron means anything, it leaves some questions of law for agency determination. Justice Stevens’s view of the decision does not eliminate all objections to it or put an end to the seemingly endless disputes over its proper interpretation.63 63.Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46.Show More What it does illustrate is Justice Stevens’s preference for continuity and common sense over radical restructuring and formal inquiry.

In a revealing aside in his memoirs, Justice Stevens identifies Chevron as the only case in which he visited the chambers of another Justice to secure agreement with his draft opinion. He visited Justice Brennan to convince him to join the opinion for the Court, which made it unanimous.64 64.The Making of a Justice, supra note 3, at 205.Show More The need to secure another vote, when Justice Stevens already had a majority of five, does not seem obvious based on considerations internal to the opinion itself. Yet as an institutional matter, the Supreme Court was handicapped in deciding Chevron by the recusal of three Justices,65 65.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision).Show More making any bare majority a fragile basis for guiding lower courts and administrative agencies. Concerns over continuity of precedent influenced both the opinion itself and the method of securing support for it.

Scholars of administrative law might well find Justice Stevens’s attempt to generate consensus ironic, as it resulted in a precedent that has since become an occasion for proliferating disputes. In addition to the issues mentioned earlier, it has generated disputes over the deference accorded to an agency’s interpretation of its own regulations66 66.Auer v. Robbins, 519 U.S. 452, 461–63 (1997).Show More and over the forms of agency interpretations, from regulations to positions taken in litigation, that deserve deference.67 67.United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”).Show More A further limitation on the decision puts “question[s] of deep economic and political significance” beyond its scope.68 68.King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges).Show More It also does not apply to purely interpretive rules promulgated by an agency that Congress did not intend to have the force of law69 69.Gonzales v. Oregon, 546 U.S. 243, 268 (2006).Show More or when settled judicial interpretation has eliminated any ambiguity in a statute.70 70.United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment).Show More Instead of simplifying judicial review of administrative action, Chevron has resulted in the multiplication of doctrinal issues that limit or trigger its application. Perhaps the vast scale of the administrative state would have resulted in disputes over similar issues under different headings, but they now come under the heading of Chevron, limiting its scope and significance. If so, in another ironic twist, this development tends to support Justice Stevens’s view of the decision as a modest innovation on existing precedents.

C. District of Columbia v. Heller

Precedent figured far more prominently in Justice Stevens’s dissent from the Supreme Court’s reinvigoration of the Second Amendment as the source of individual rights to gun ownership, possession, and use. His opinion relied primarily on the authority of United States v. Miller,71 71.307 U.S. 174 (1939).Show More a decision from the 1930s that upheld a federal prohibition applicable to sawed-off shotguns. He fully endorsed the reasoning of that decision requiring that firearms protected by the Second Amendment must have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”72 72.Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178).Show More Justice Scalia, writing for the Court, took issue with the breadth and soundness of Miller because that opinion says “[n]ot a word (not a word) about the history of the Second Amendment.”73 73.Heller, 554 U.S. at 624.Show More After his own lengthy review of the historical record, Justice Stevens found that Scalia offered “insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.”74 74.Id. at 679 (Stevens, J., dissenting).Show More

Debate has ensued over whether the difference between the two opinions arose from applying a common originalist methodology75 75.Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”).Show More or from contrasting originalism with adherence to precedent.76 76.Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”).Show More To be sure, Justice Stevens felt the need to meet Scalia’s arguments from the historical record on their own terms, even though he believed Miller to provide an entirely sufficient basis for his dissent.77 77.The Making of a Justice, supra note 3, at 485.Show More He did not become an originalist by taking on originalist arguments. Indeed, his appeal to the historical record appears to be confirmed on a crucial issue in Heller: whether “the right to bear arms” in the Second Amendment was primarily understood at the time of its ratification in a military context. Scalia conceded that the phrase took on that meaning when it was used with the preposition “against,”78 78.Heller, 554 U.S. at 586.Show More as in “the right to bear arms against a foreign enemy.” More recent and more extensive searches of eighteenth-century texts reveal that the phrase was used most commonly in a military context.79 79.Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019).Show More A rigorous originalist, who would overrule precedents contrary to the common public meaning of constitutional language at the time of enactment, might well have doubts about the continued force of Heller itself as a precedent.80 80.Id.at 10–15.Show More

In his dissent, Justice Stevens did not appeal directly to public policy but to the need to give elected officials the power to make the policy judgments inherent in gun control legislation.81 81.Heller, 554 U.S. at 679–80 (Stevens, J., dissenting).Show More His memoirs, like his previous book, Six Amendments, are another matter. He “find[s] it incredible that policymakers in a democratic society have failed to impose more effective regulations on the ownership and use of firearms than they have.”82 82.The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground).Show More He also regrets that he did not emphasize the human costs of the decision in his conversations with fellow Justices.83 83.The Making of a Justice, supra note 3, at 485.Show More While the coincidence of his views on the policy issue and the constitutional issue is not surprising, the framing of his legal argument to turn decisively on precedent is revealing. His heavy reliance upon Miller was not an instance of looking into a crowd and seeing his friends. Miller was the only decision on point from the Supreme Court. His faith in precedent went hand-in-hand with his emphasis upon case-by-case adjudication.84 84.William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10.Show More

In this respect, he was a Burkean conservative, who could depart from precedent only if he understood all features of the past decision and all features of the present case. Incremental change for Edmund Burke was far superior to revolutionary transformations. As Burke said, “I must see with my own eyes, I must, in a manner, touch with my own hands, not only the fixed but the momentary circumstances, before I could venture to suggest any political project whatsoever.”85 85.Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901).Show More So too, Justice Stevens had to see and handle all the dimensions of a case or a precedent. This can prove maddening to anyone trying to extract general principles from his opinions, but it is an undeniable characteristic of his jurisprudence.86 86.Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”).Show More

While Justice Stevens was reluctant to overrule past decisions, he could readily distinguish them. For instance, in a case on sovereign immunity, Seminole Tribe v. Florida,87 87.517 U.S. 44, 84 (1996) (Stevens, J., dissenting).Show More he questioned the scope of a precedent that extended the Eleventh Amendment to suits by a citizen of a state against that citizen’s own state. He did not, however, see any need to overrule it because it did not, like Seminole Tribe, concern a claim under a federal statute.88 88.Id.at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute).Show More Justice Stevens took the same position on the scope of the Eleventh Amendment in his book, Six Amendments, urging that the Amendment itself should be amended to make clear that it does not apply to claims under federal statutes or the Constitution.89 89.Six Amendments, supra note 82, at 146–47.Show More In a later case, Kimel v. Florida Board of Regents,90 90.528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part).Show More he would have overruled Seminole Tribe, but on the ground that that decision itself did not respect precedent.91 91.Id. at 97–99 (Stevens, J., dissenting in part and concurring in part).Show More Whether or not one finds this intricate reasoning persuasive, it indicates the lengths to which he would go in order to preserve a semblance of continuity in the Court’s rulings.

This strategy had untoward consequences in Heller and in the ensuing decision in McDonald v. City of Chicago,92 92.561 U.S. 742 (2010).Show More which applied the Second Amendment to the states. The majority opinions in both cases have a decidedly anti-precedential undertone, arguing that the Second Amendment has not received the respect it deserves. The majority opinion in Heller concluded that “it is not the role of this Court to pronounce the Second Amendment extinct,”93 93.District of Columbia v. Heller, 554 U.S. 570, 636 (2008).Show More and the majority opinion in McDonald decided “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty.”94 94.561 U.S. at 767.Show More The Court in McDonald also noted that a number of decisions selectively incorporating the Bill of Rights in the Fourteenth Amendment also overruled prior precedents.95 95.Id. at 763–66.Show More When overruling is the order of the day, an appeal to precedent can seem to be both futile and self-defeating.

That still leaves open the question of how a nonconformist, like Justice Stevens, could genuinely follow precedent. The answer goes back to an opinion early in his career. In Runyon v. McCrary,96 96.427 U.S. 160, 173 (1976).Show More the Supreme Court applied the Civil Rights Act of 186697 97.Codified at 42 U.S.C. § 1981 (2012).Show More to private discrimination, based on its earlier decision in Jones v. Alfred H. Mayer Co.98 98.392 U.S. 409, 420–21 (1968).Show More In a concurring opinion, Justice Stevens stated that his “conviction that Jones was wrongly decided is firm,” but that Jones accorded with the “policy of the Nation as formulated by the Congress in recent years.”99 99.Runyon, 427 U.S.at 190–91 (Stevens, J., concurring).Show More The statutory context favored the continued vitality of Jones even if it was wrongly decided in the first instance. By contrast, when the statutory or constitutional context of a prior decision had changed to its disadvantage, Justice Stevens favored overruling or drastically narrowing its scope, as he said in opinions in areas as different as maritime law and habeas corpus.100 100.Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district).Show More Precedent for him, perhaps more so than for most judges, enabled as much as it constrained his decision making. It provided the language of the law in which he framed his argument rather than dictating his decisions.

III. The Influence of an Iconoclast

Memoirs necessarily are a retrospective genre, looking back over an entire life and career. They invite the nostalgic thought that the author’s like will not be seen again. Of course, this is true. No veteran of World War II or a graduate from law school in the 1940s will be seen again on the Supreme Court. The more urgent question is whether conditions have so greatly changed that they leave no room for a Justice with the independence of mind that Justice Stevens displayed. It is, however, a question for the long term. It is not one that can be answered by a search for the acceptance of his views by a majority of Justices before his death. His memoirs could be read in this way, but scorekeeping along this dimension alone misses what was essential to his style of reasoning.

The justification for what he wrote in his many opinions was internal to the arguments he advanced, not external and dependent upon acceptance by others. An iconoclast, as he was in an insistent and understated way, does not expect to gain immediate agreement. Justice Stevens was not searching for the median position that would attract a majority of Justices. Anyone who spoke out against the established tiers of judicial review, as Justice Stevens did in Craig v. Boren, was not seeking consensus support for his views. Chevron might be taken to be an exceptional case in which Justice Stevens did seek consensus, but his minimalist interpretation of that decision represents a minority view. His attempt to confront originalism on its own terms in District of Columbia v. Heller hardly constitutes a concession to this influential method of constitutional interpretation. It instead rests on his refusal to depart from established precedent.

In offering his many separate dissents and concurrences, Justice Stevens did not expect to be vindicated by agreement. It is not that he was indifferent to the outcome in those cases. Even a cursory look at his dissents, for instance, in the cases in which he would have denied First Amendment protection for flag burning,101 101.United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting).Show More demonstrates this conclusion to be deeply erroneous. He was by nature too serious and competitive to be indifferent. Otherwise, he would not have written his book, Six Amendments,102 102.Six Amendments, supra note 82, at 15–17.Show More arguing for changes to the Constitution to overrule several decisions, from most of which he dissented. The question elided by that book is whether he would have overruled those precedents once they had been handed down. Proposing amendments finessed this question and relieved him of the need to reveal how far he would depart from his general respect for precedent.

The hazards of a purely effects-based test for influence put skeptics of the reigning orthodoxy at a systematic disadvantage. It also invites a premature historical inquiry into the legacy of a Justice’s tenure at the Supreme Court. The evidence is not all in, even after a tenure and life as long as his. The vicissitudes of historical understanding, with each generation of historians offering an account that might be at odds with its predecessors, adds another dimension of uncertainty to the assessment of effects. Is Justice Story now regarded as highly as he was in the early nineteenth century, when he was well known as a prolific treatise writer and an influential professor at Harvard Law School, in addition to his role as a Justice of the Supreme Court?103 103.See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”).Show More One hesitates to offer any simple, formulaic answer to such questions.

Our assessment now must be based on the integrity, originality, and soundness of Justice Stevens’s judicial record. Members of the legal profession would admire all these attributes of his decisions, even as they disagreed with him on the merits. One suspects that he would demand as much independence of judgment from them as he expected of himself. As Professor Olatunde Johnson wryly recounts of her clerkship with him: “We discussed the cases vigorously. He listened to us carefully and graciously; it often seemed hard to change his mind.”104 104.Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020).Show More His legacy rests for the present on the example he set. It offers, within the legal profession, an alternative to the divisive politics that mark the current era. Whether it is an alternative that will be embraced or forsaken in American public life remains to be seen. His memoirs demonstrate exactly what is at stake in this choice.

  1. * John Barbee Minor Professor of Law, University of Virginia. I clerked for Justice Stevens in the 1975 term of the Supreme Court. ↑

  2. Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020). ↑
  3. Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27]. ↑
  4. John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases). ↑
  5. Id. at 143 (conceding a mistake in one of five capital cases decided the same term). ↑
  6. Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment). ↑
  7. 12 Edward Coke, Reports of Sir Edward Coke 65 (1738). ↑
  8. Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015). ↑
  9. David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020). ↑
  10. The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id. at 18. ↑
  11. Id. at 35–41, 53–59. ↑
  12. Id. at 61–68. ↑
  13. Id. at 69–92. ↑
  14. Id. at 107–10, 124–32. ↑
  15. Id. at 101–06. ↑
  16. Id. at 107–08. ↑
  17. Id. at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned). ↑
  18. Barnhart & Schlickman, supra note 16, at 139, 193, 252. ↑
  19. Id. at 220–22. ↑
  20. The Making of a Justice, supra note 3, at 81. ↑
  21. He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican). ↑
  22. He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id. at 141–44, 476–77. ↑
  23. Peñalver, supra note 20, at 765. ↑
  24. 429 U.S. 190 (1976). ↑
  25. 467 U.S. 837 (1984). ↑
  26. 554 U.S. 570 (2008). ↑
  27. Craig, 429 U.S. at 197. ↑
  28. Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting). ↑
  29. Id. at 211–12 (Stevens, J., concurring). ↑
  30. 518 U.S. 515, 531 (1996) (internal quotation marks omitted). ↑
  31. The Making of a Justice, supra note 3, at 155. ↑
  32. Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review). ↑
  33. Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument). ↑
  34. Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting). ↑
  35. Lawrence, 539 U.S. at 561. ↑
  36. Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting). ↑
  37. United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982). ↑
  38. Rostker v. Goldberg, 453 U.S. 57, 58 (1981). ↑
  39. Nguyen v. INS, 533 U.S. 53, 56 (2001). ↑
  40. Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military). ↑
  41. Codified at 42 U.S.C. §§ 2000e et seq. (2012). ↑
  42. 435 U.S. 702 (1978). ↑
  43. Id. at 708–10. ↑
  44. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting). ↑
  45. Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012). ↑
  46. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983). ↑
  47. UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991). ↑
  48. Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)). ↑
  49. The Making of a Justice, supra note 3, at 155. ↑
  50. WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006). ↑
  51. 545 U.S. 469 (2005). ↑
  52. The Making of a Justice, supra note 3, at 431. ↑
  53. WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020). ↑
  54. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted). ↑
  55. Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)). ↑
  56. Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”). ↑
  57. Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment). ↑
  58. Id. at 445–46 & n.29 (majority opinion). ↑
  59. City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting). ↑
  60. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). ↑
  61. 5 U.S.C. § 706 (2012). ↑
  62. Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017). ↑
  63. Cardoza-Fonseca, 480 U.S. at 445–46 & n.29. ↑
  64. Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46. ↑
  65. The Making of a Justice, supra note 3, at 205. ↑
  66. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision). ↑
  67. Auer v. Robbins, 519 U.S. 452, 461–63 (1997). ↑
  68. United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”). ↑
  69. King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges). ↑
  70. Gonzales v. Oregon, 546 U.S. 243, 268 (2006). ↑
  71. United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment). ↑
  72. 307 U.S. 174 (1939). ↑
  73. Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178). ↑
  74. Heller, 554 U.S. at 624. ↑
  75. Id. at 679 (Stevens, J., dissenting). ↑
  76. Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”). ↑
  77. Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”). ↑
  78. The Making of a Justice, supra note 3, at 485. ↑
  79. Heller, 554 U.S. at 586. ↑
  80. Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019). ↑
  81. Id. at 10–15. ↑
  82. Heller, 554 U.S. at 679–80 (Stevens, J., dissenting). ↑
  83. The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground). ↑
  84. The Making of a Justice, supra note 3, at 485. ↑
  85. William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10. ↑
  86. Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901). ↑
  87. Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”). ↑
  88. 517 U.S. 44, 84 (1996) (Stevens, J., dissenting). ↑
  89. Id. at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute). ↑
  90. Six Amendments, supra note 82, at 146–47. ↑
  91. 528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part). ↑
  92. Id. at 97–99 (Stevens, J., dissenting in part and concurring in part). ↑
  93. 561 U.S. 742 (2010). ↑
  94. District of Columbia v. Heller, 554 U.S. 570, 636 (2008). ↑
  95. 561 U.S. at 767. ↑
  96. Id. at 763–66. ↑
  97. 427 U.S. 160, 173 (1976). ↑
  98. Codified at 42 U.S.C. § 1981 (2012). ↑
  99. 392 U.S. 409, 420–21 (1968). ↑
  100. Runyon, 427 U.S. at 190–91 (Stevens, J., concurring). ↑
  101. Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district). ↑
  102. United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting). ↑
  103. Six Amendments, supra note 82, at 15–17. ↑
  104. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”). ↑
  105. Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020). ↑

Bound Electors

Introduction

In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,”1 1.Jason Harrow, The Originalist Take on Presidential Electors, Wash. Examiner (Sept. 9, 2019, 12:09 PM), https://www.washingtonexaminer.com/opinion/op-eds/the-originalist-take-on-presidential-electors [https://perma.cc/4K7A-6SDL].Show More the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential electors to vote for the winner of the state’s popular vote.2 2.See Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019).Show More The Supreme Court has agreed to review and resolve this important issue of constitutional law before the 2020 presidential election.3 3.See, e.g., Associated Press, Justices To Consider Faithless Electors, Ahead of 2020 Vote, Politico (Jan. 17, 2020, 4:24 PM), https://www.politico.com/news/2020/01/17/justices-to-consider-faithless-electors-ahead-of-2020-vote-100631 [https://perma.cc/SF2E-FR49].Show More

Far from being a masterpiece, however, the Tenth Circuit opinion is a selective reading of incomplete linguistic, historical, and judicial materials. It ignores centuries of controversy over interpreting the law governing presidential elections. It reaches an overly broad conclusion—that “the states’ delegated role is complete upon the appointment of state electors”4 4.SeeBaca, 935 F.3d at 947.Show More—that is inconsistent with constitutional history and practice. It ultimately relies on background political principles that were contested at the adoption of the Constitution and remain contested today.

In addition, the opinion utilizes the disputed interpretive technique of attributing thick meanings to constitutional words to divine substantive results from open-textured or scant constitutional provisions.5 5.See, e.g., David Robertson, Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, 35 Ga. J. Int’l & Comp. L. 277, 279 (2007) (distinguishing thick constitutional meanings that instantiate ethical aspirations from thin ones that do not); see also Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 15 (2018) (arguing that “the thicker the communicative content” of constitutional text, “the less need there is to enter into” interpretive construction); cf. Lawrence B. Solum, Legal Theory Lexicon 028: Concepts and Conceptions, Legal Theory Lexicon, https://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le_1.html [https://perma.cc/9HE5-UCTL] (last updated Oct. 13, 2019) (distinguishing between general concepts and more detailed, and competing, conceptions of those concepts).Show More This technique includes attributing prescriptively thick meanings to words—meanings that implicitly generate substantive rules of law missing from the Constitution’s express text. The Tenth Circuit finds an unwritten constitutional rule that states may not abridge the freedom of presidential electors largely because it finds that at the adoption of the Constitution the word “elector” meant someone who has freedom when voting.6 6.SeeBaca, 935 F.3d at 945–46.Show More

This Essay critiques the Tenth Circuit decision. It furnishes historical support for an interpretation that state power over electors continues after their appointment and may include the power to bind them to the result of a popular election. It identifies issues with attributing thick meanings to constitutional terms. It suggests that the Supreme Court should reject the Tenth Circuit’s reasoning and develop a coherent theory of the roles of the people, the states, and the federal government in the electoral process in order to resolve the dispute. Finally, it suggests a number of questions that the Court might consider in developing that theory.

I. Constitutional Provisions

The most perplexing issue for the Philadelphia Convention was how to select the President.7 7.See 2 Jonathan Elliot, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 473 (2d ed. 1836), https://hdl.handle.net/2027/nc01.ark:/13960/t0qs1jm66?url­append=%3Bseq=76 (statement of James Wilson).Show More The resulting provisions, as amended, appear in Article II, Section 1 (the “Appointments Clause”) and the Twelfth Amendment of the Constitution (together, the “Electoral Clauses”). The Appointments Clause provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.8 8.U.S. Const. art. II, § 1, cl. 2.Show More

For convenience, this Essay uses “Electors” hereafter to refer to presidential and vice presidential electors and “electors” to refer to voters in other contexts.9 9.Quotations retain the capitalization of the original unless otherwise noted.Show More Electors cast votes separately for the President and Vice President pursuant to the Twelfth Amendment.10 10.U.S. Const. amend. XII.Show More That Amendment provides rules for the timing, delivery, and counting of their votes and, in the absence of a majority, for the House of Representatives to choose the President (with each state having one vote) and the Senate to choose the Vice President. 11 11.Prior to the Twelfth Amendment, the Electors did not vote for the two positions separately. They cast two votes. The person with the majority of votes became President, and the one with the next greatest number of votes became Vice President. See U.S. Const. art. II, § 1, cl. 3 (repealed 1804). The Amendment did not substantially change the remaining parts of the electoral process.Show More

The sparse Electoral Clauses prescribe few details for how to fill the important positions of President and Vice President.12 12.See, e.g., Letter from James Madison to Thomas Jefferson, Nat’l Archives (Mar. 15, 1800), https://founders.archives.gov/documents/Madison/01-17-02-0218 [https://perma.cc/­ZM3C-XHMV] (“It is not to be denied that the Constn. might have been properly more full in prescribing the election of P: & V. P. . . . .”). For example, the Constitution prescribes who shall judge the qualifications of Representatives and Senators but not who shall judge those of Electors. See U.S. Const. art. I, § 5, cl. 1 (each house to judge the qualifications of its own members).Show More As a result,

upon no other problem, connected with the politics of the country, has there been propounded such a variety of views, so widely apart, by such able and eminent statesmen, and discussed with such heat and acrimony over so long a period, as those delivered in Congress touching the metes and bounds prescribed to this question by the Constitution. 13 13.David A. McKnight, The Electoral System of the United States 12 (Philadelphia, J. B. Lippincott & Co. 1878).Show More

The Tenth Circuit’s straightforward analysis belies these historical controversies, which arise from conflicting principles governing the powers of the people, the states, and the federal government.14 14.See, e.g., infra notes 82–87 and accompanying text (conflicting interpretations of “State” in the Appointments Clause).Show More

II. The Baca Decision

States typically hold popular elections for President and Vice President. They count each popular vote for a candidate as a vote for a slate of Electors pledged to support that candidate when voting pursuant to the Twelfth Amendment. The Tenth Circuit opinion in Baca considers the question of whether a state legislature has the power to bind Electors to honor their pledge, to replace those who refuse with faithful alternates, and to have the alternate votes counted under the Twelfth Amendment. The opinion utilizes five characteristically originalist approaches from constitutional text, history, and structure. It concludes that “the states’ delegated role is complete upon the appointment of state electors.”15 15.Baca v. Colo. Dep’t of State, 935 F.3d 887, 947 (10th Cir. 2019).Show More The legislature has no power to bind Electors, who are free to vote at will for anyone.

The first approach relies on constitutional history, particularly The Federalist Papers. The opinion cites the views of Alexander Hamilton and John Jay, as detailed in The Federalist Nos. 60, 64, and 68, that the Constitution gives Electors the power to appoint the President.16 16.Id. at 952–54 (quoting The Federalist Nos. 60, 68 (Alexander Hamilton), No. 64 (John Jay)).Show More In particular, the court relies on Hamilton’s view that giving independent Electors the right to elect the President disperses the power to choose the principal members of the federal government—the people elect Representatives, state legislatures elect Senators, and Electors elect the President.17 17.Id. at 953 (quoting The Federalist No. 60 (Alexander Hamilton) (Consequently, “there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”)). Senators are now popularly elected. See U.S. Const. amend. XVII.Show More

The second approach attempts to find the answer to a question of substantive law—whether states have the power to bind Electors—in period dictionary definitions of three words in the Electoral Clauses: “elector,” “vote,” and “ballot.” The court finds that all of the period definitions “imply the right to make a choice or voice an individual opinion,” supporting a finding that Electors “are free to vote as they choose.”18 18.Baca, 935 F.3d at 945.Show More The court does not identify any express text governing state power to bind Electors. Instead, it relies on prescriptively thick meanings of the three words to find an implicit rule forbidding states to bind them.

The third approach is to read the term “Electors” in the Appointments Clause consistently with its use elsewhere in the Constitution, specifically regarding individual electors voting for members of the House of Representatives.19 19.Id.Show More The opinion cites precedent finding that a “‘fundamental principle of our representative democracy,’ embodied in the Constitution,” prescribes that such individual electors are free to vote as they would like.20 20.Id. at 946 (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)).Show More The opinion reasons that Electors must also have such freedom because they have the same name.21 21.Id.Show More

The fourth approach is to contrast express state obligations to those of the President. Colorado argued in Baca “that the power to appoint necessarily includes the power to remove and nullify an anomalous vote,” relying on the President’s power to remove executive appointees as affirmed in Myers v. United States.22 22.Id. at 940 (citing Myers v. United States, 272 U.S. 52, 175–76 (1926)).Show More The Tenth Circuit found that Myers depended on the constitutional provision that the President “shall take care that the laws be faithfully executed” and the consequence that the President must be able to control inferior executive officers.23 23.Id. at 940–41; see also U.S. Const. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”).Show More The Constitution does not require states to “take care” that Electors perform their function, and therefore state power to appoint does not include the power to remove.24 24.Baca, 935 F.3d at 941.Show More

The fifth and final approach relies on the structure of the Constitution’s voting procedures to determine that “states may not interfere” with an Elector’s discretion.25 25.Id. at 942.Show More It details the express procedural steps that the Constitution enumerates. It notes that “the express duties of the states are limited to appointment of the presidential electors,”26 26.Id.Show More after which every subsequent step “is expressly delegated to a different body,”27 27.Id.Show More such as the Electors to vote, the President of the Senate to count the votes, and, in the absence of a majority, the House of Representatives to choose the President and the Senate to choose the Vice President.28 28.Id.Show More This leaves no role for the states after they appoint Electors. In addition, the Constitution “sets the precise number of electors,” and therefore “the state may not appoint additional electors to cast new votes in favor of the candidate preferred by the state.”29 29.Id. at 943.Show More

III. Critique of the Court’s Reasoning

A. Expectations and The Federalist Papers

The Tenth Circuit fails to consider expectations of other Founders and ratifiers that differ significantly from those of Hamilton and Jay. It also neglects to acknowledge that Hamilton’s and Jay’s other expectations about the Appointments Clause proved to be wrong. Expectations are just expectations. They do not control constitutional interpretation.

A second, competing expectation was that states would choose the President. James Madison wrote in The Federalist No. 39 that “[t]he immediate election of the president is to be made by the states in their political characters.”30 30.The Federalist No. 39 (James Madison).Show More At the Massachusetts ratifying convention, Increase Sumner explained that “the president is to be chosen by electors under the regulation of the state legislature,”31 31.2 Elliot, supra note 7, at 86.Show More and the Rev. Samuel Stillman stated that “[t]he president, and senators are to be chosen by the interposition of the legislatures of the several states, who are the representatives and guardians of the people.”32 32.Id. at 171–72.Show More A New York ratifier asserted in 1789 that the Electors are the “voice of the state governments.”33 33.Proceedings of the Legislature, N.Y. Daily Gazette, Feb. 16, 1789, at 170 (statement attributed to Harrison, presumably referring to Richard Harison).Show More Massachusetts commentators claimed in 1796 that the President represents the states, in part because in the absence of an electoral majority the Constitution requires congressional voting by states.34 34.See Legislature of Massachusetts, Argus, June 3, 1796, at 3. Each state receives one vote when the House elects the President, both under the original Constitution and the Twelfth Amendment.Show More Another New Yorker explained in 1800 that “[o]ur electors represent the government of this state.”35 35.Important Debate, Republican Watch-Tower, Apr. 9, 1800, at 1.Show More In yet a third expectation, Charles Cotesworth Pinckney, James Wilson, and Edmund Randolph stated that the people elect the President through the Electors.36 36.See James C. Kirby, Jr., Limitations on the Power of State Legislatures over Presidential Elections, 27 Law & Contemp. Probs. 495, 505 (1962).Show More

This competing history supports the interpretation that states may bind Electors to the result of the popular vote. Indeed, it has been suggested that Hamilton’s personal ambition drove his vision of wise Electors acting independently.37 37.See id.Show More He was probably the least popular of the Founders.38 38.See, e.g., Sarah Laskow, 10 Things That You Have Secretly Been Dying to Know About the World of ‘Hamilton’, Atlas Obscura (Dec. 30, 2015), https://www.atlasobscura.com/­articles/10-things-that-you-have-secretly-been-dying-to-know-about-the-world-of-hamilton [https://perma.cc/XKJ7-Q855].Show More The Federalist Papers were inconsistent advocacy pieces pitched to differing constituencies to achieve ratification. They laid the groundwork for self-serving interpretations of the Constitution, much like statements in the legislative history of congressional statutes today.39 39.See, e.g., Note, Why Learned Hand Would Never Consult Legislative History Today, 105 Harv. L. Rev. 1005, 1005 (1992) (objections to utilizing legislative history for statutory interpretation, including the view that staff and lobbyists draft the history).Show More

The Tenth Circuit’s opinion also ignores other expectations of Hamilton and Jay that proved to be wrong. Both expected that the people would choose the Electors.40 40.See The Federalist No. 64 (John Jay), No. 68 (Alexander Hamilton).Show More Yet state legislatures appointed Electors for years after ratification.41 41.See, e.g., McPherson v. Blacker, 146 U.S. 1, 12–14 (1892) (argument of appellants, noting legislative appointments from the first presidential election through as late as 1876).Show More The votes of those Electors counted.

Hamilton expected that Electors would be persons “most capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice.”42 42.The Federalist No. 68 (Alexander Hamilton).Show More Jay expected that the Electors would be “the most enlightened and respectable citizens”43 43.Baca v. Colo. Dep’t of State, 935 F.3d 887, 954 (10th Cir. 2019) (quoting The Federalist No. 64 (John Jay)).Show More whose “discernment” would presumably ensure that the President would always be chosen from among “those . . . whose reputation for integrity inspires and merits confidence.”44 44.The Federalist No. 64 (John Jay).Show More Yet voters in early elections complained that they could not know all of the Elector candidates;45 45.See Philadelphia, Jan. 8., Pa. Gazette, Jan. 8, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue).Show More both the people and state legislatures have chosen mere “puppets” as Electors;46 46.McPherson, 146 U.S. at 15 (argument of appellants).Show More ballots in popular presidential elections routinely fail to include even the names of the proposed Electors;47 47.See, e.g., Mike Rappaport, Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?, Originalism Blog (Dec. 27, 2016), https://originalismblog.­typepad.com/the-originalism-blog/2016/12/why-does-the-unconstitutionality-of-prohibiting-faithless-electors-seem-problematicmike-rappaport.html [https://perma.cc/N45A-M5J5].Show More and Electors have chosen Presidents entirely lacking in integrity. The votes of those Electors also counted.

Not even a unanimous expectation of the Founders could invalidate any of these practices any more than state laws binding Electors. As the Supreme Court has expounded, “we can perceive no reason for holding that the power confided to the States by the Constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created.”48 48.McPherson, 146 U.S. at 36.Show More

B. Public Meaning of Words in the Electoral Clauses

The competing expectations suggest that the Tenth Circuit’s semantic interpretation is too thick. Indeed, the court’s dictionary definitions can be read thinly to include electors bound to vote by ballot for a specific candidate,49 49.Period definitions of “ballot” include “[a] little ball or ticket used in giving votes,” see Baca v. Colo. Dep’t of State, 935 F.3d 887, 944 (10th Cir. 2019) (quoting 1 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whether the ballot reflects a proxy or the volition of the person who gives it. Period definitions of “vote” include “[s]uffrage; voice given and numbered,” see id. (quoting 2 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whose voice is given and numbered. Period definitions of “elector” include “one who elects,” see id. (quoting Noah Webster, A Compendious Dictionary of the English Language (1806)), without specifying whether under a proxy or by volition.Show More such as by a proxy. Proxies were used in Anglo-American elections well before the adoption of the Constitution.50 50.See, e.g., Saul Levmore, Precommitment Politics, 82 Va. L. Rev. 567, 617 n.103 (1996); see also Acts and Laws of the State of Connecticut, in America 45 (1784) (penalizing voters who provide more than one vote or proxy at elections).Show More

Late eighteenth-century legal and general usage also includes thin meanings that encompass both free and bound electors. Period usage distinguished electors who were “bound” from those who could “vote for whom they pleased,”51 51.James Monroe, A View of the Conduct of the Executive, in the Foreign Affairs of the United States, Connected with the Mission to the French Republic, During the Years 1794, 5, & 6, at 273 (1797), https://hdl.handle.net/2027/uc2.ark:/13960/t79s1mp9k?urlappend=­%3Bseq=349.Show More the “dependent elector from him who exercises this first right of a freeman, agreeably to the dictates of his mind,”52 52.1 T.H.B. Oldfield, An Entire and Complete History, Political and Personal of the Boroughs of Great Britain 258 (1792), https://hdl.handle.net/2027/mdp.39015051139007?­urlappend=%3Bseq=498.Show More and “unworthy and dependant [sic] electors” from “worthy independent electors.”53 53.William Paxton, A Complete Collection of the Papers Which Were Published on Occasion of the Late Canvass and Election, for the Borough of Newark, in the Months of May and June, 1790, at 46–47 (2d ed. 1791) (capitalization omitted).Show More A voter could be influenced in varying degrees and remain an “elector.” Period texts are replete with references to obliged,54 54.See 1 James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses 158 (J.B. Gent ed., 1774), https://hdl.handle.net/2027/pst.000055464277?urlapp­end=%3Bseq=198.Show More bribed,55 55.See James Drake, The History of the Last Parliament: Began at Westminster, the Tenth Day of February, in the Twelfth Year of the Reign of King William, An. Dom. 1700, at 209 (2d ed. 1702), https://hdl.handle.net/2027/mdp.39015062365013?urlappend=%3Bseq=247; see also Letter from Governor Winthrop to Governor Bradford, Nat’l Archives (Feb. 16, 1767), https://founders.archives.gov/documents/Adams/06-01-02-0067-0012 [https://perma.­cc/2SJE-D5PA] (“Suppose . . . members . . . purchased the votes of the electors by bribery.”).Show More corrupt,56 56.See Drake, supra note 55, at 209.Show More and venal57 57.See 1 Charles Johnstone, The Reverie: Or, a Flight to the Paradise of Fools 9 (1763), https://hdl.handle.net/2027/uc1.31175035193765?urlappend=%3Bseq=33.Show More electors. Those with power could “dictate to the Electors in the most absolute manner.”58 58.Letter from Ulster Volunteer Corps Comm. of Correspondence to Benjamin Franklin, Nat’l Archives (July 19, 1783), https://founders.archives.gov/documents/Franklin/01-40-02-0203 [https://perma.cc/93M9-7Y48].Show More “[C]orrupt electors” were known to include a special word or mark on their “ballot” to prove during the count that they had given their “vote” as promised.59 59.John Cartwright, The People’s Barrier Against Undue Influence and Corruption: Or the Commons’ House of Parliament According to the Constitution 120 (2d ed. 1780).Show More

Period usage demonstrates that a person could be an “elector” casting a “vote” with a “ballot” even when bound or coerced. This is true in both objectionable circumstances, such as bribery, and unobjectionable ones, such as proxies. Two descriptions of elections that predate the adoption of the Constitution illustrate thin usage that does not involve electors exercising their free will. One is from John Rutledge, Jr., to Thomas Jefferson:

[A]t a meeting of the people, it was moved that instructions should be given to the electors “to vote for Mr. de Mirabeau” but being informed by his friends that it would be less flattering and honorable to be in this manner elected than by the free will of the voters the motion was withdrawn.60 60.Letter from John Rutledge, Jr., to Thomas Jefferson, Nat’l Archives (Apr. 3, 1789), https://founders.archives.gov/documents/Jefferson/01-15-02-0019 [https://perma.cc/DSY6-ZZVU].Show More

The other is a description of college electors61 61.See Magdalen College and King James II, 1686–1688, at 36 (Rev. J.R. Bloxam ed., 1886), https://hdl.handle.net/2027/uiug.30112085280698?urlappend=%3Bseq=92 (voted in accordance with his judgment of who was better qualified, “according to the oath I had then newly taken, as a Senior Fellow, and a new Elector”).Show More bound by statutes and oath to elect only presidents who had specified qualifications.62 62.See Abel Boyer, The History of King William the Third 107–08 (1702), https://hdl.handle.net/2027/mdp.39015021305126?urlappend=%3Bseq=269.Show More The King of England sometimes commanded them to elect a particular candidate; they complied when the candidate had those qualifications but refused when one did not, explaining:

As to their former practice, when they have elected in obedience to the king’s letter heretofore, it has been always in such cases where the persons recommended have been every way qualified for the office by their statutes: in which cases they always have been, and ever will be, ready to comply with his majesty’s pleasure; it not being without unspeakable regret, that they disobey the least of his commands.63 63.12 T.B. Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, at 7 (1816).Show More

Consequently, the electors “did most humbly pray his majesty to leave them to a free election, or recommend such a person to them as was capable by their statutes.”64 64.Id. at 3.Show More

There is nothing in the meanings of the words “elector,” “vote,” or “ballot” that precludes a state from either leaving its Electors to a free election or binding them to vote for a qualified candidate chosen in a popular vote.

C. (In)Consistent Usage in the Constitution

The Tenth Circuit’s analogy to individual electors is unpersuasive. Meaning depends on context, which includes underlying constitutional principles.65 65.Cf. Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 Ga. L. Rev. 1, 9 (2017) (considering five top-tier constitutional values to determine the constitutional meaning of “emoluments”).Show More But context is controversial, is frequently disputed, and prevents the non-normative identification of constitutional “meanings” as historical facts. As a delegate to the New York ratifying convention later noted in a debate over the Appointments Clause, people “are not only apt to draw different inferences from the same circumstances, but will differ as to the circumstances themselves.”66 66.Proceedings of the Legislature, supra note 33, at 170.Show More Indeed, the Supreme Court has rejected analogies between voting by Electors and voting by individual electors because their contexts differ.67 67.See, e.g., Reynolds v. Sims, 377 U.S. 533, 574–75 (1964).Show More

In addition, the Supreme Court precedents like Powell v. McCormack that recognize House elector independence rely on a fundamental underlying principle of representative democracy,68 68.See, e.g.,Baca v. Colo. Dep’t of State, 935 F.3d 887, 945–46 (10th Cir. 2019) (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)).Show More not the definition of the word “elector.” That same principle of representative democracy might support a state’s power to bind Electors to the result of the popular vote. Individual electors differ significantly from Electors. Individual electors have the right not to vote,69 69.See, e.g., Philadelphia, Jan. 8, supra note 45 (asserting that the system of choosing Electors statewide rather than from local districts “subjected many citizens either to the necessity of voting for men wholly unknown to them, of giving an unavailing vote, or waving their right of suffrage”); see also Legislative Acts, Country J., July 11, 1787, at 1 (allowing each elector to vote for all of the county’s allocated seats in the state Assembly or “so many of them as such elector shall think proper to vote for”).Show More consistent with an underlying theory of representative democracy that suffrage is a personal right.70 70.See, e.g., Int’l Inst. for Democracy & Electoral Assistance, Compulsory Voting [hereinafter “IDEA”], https://www.idea.int/data-tools/data/voter-turnout/compulsory-voting [https://perma.cc/S6NG-7L8V] (“Most democratic governments consider participating in national elections a right of citizenship.”).Show More The Constitution requires Electors to vote,71 71.See U.S. Const. amend. XII.Show More and states have long mandated their voting and sanctioned unexcused dereliction.72 72.See infra note 116.Show More This is consistent with a competing theory of representative democracy in which voting is a duty that the state can impose and regulate,73 73.See, e.g., IDEA, supra note 70 (“In some countries, where voting is considered a duty, voting at elections has been made compulsory and has been regulated in the national constitutions and electoral laws. Some countries go as far as to impose sanctions on non-voters.”).Show More consistent with the non-Hamiltonian view of Electors discussed above.

The Electoral Clauses illustrate the inconsistency of constitutional usage. They specify both that states “shall appoint” Electors74 74.U.S. Const. art. II, § 1, cl. 2.Show More and that Electors “shall . . . vote” for President and Vice President.75 75.Id. amend. XII.Show More Yet some interpret the word “shall” as permissive for states although imperative for Electors.76 76.See, e.g., McKnight, supra note 13, at 44 (permissive for states); infra note 116 (imperative for Electors).Show More Others, however, interpreted “shall appoint” as imperative in the early years of the Republic. A group of Federal Republicans described appointment as a “high constitutional obligation.”77 77.Federal Meeting, Pa. Gazette, Nov. 12, 1800, https://www.accessible-archives.com/­collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue) (statement of a meeting of Federal Republicans).Show More Pennsylvania Governor Thomas McKean, a signer of the Declaration of Independence and former president of the Continental Congress, called appointment “a solemn obligation to our sister states . . . that must, at all events, be performed,” with any failure representing “the virtual secession of” the state and “a vital stab to the Union.”78 78.Lancaster, November 14, Pa. Gazette, Nov. 19, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue).Show More

The Fourteenth Amendment protects “the right to vote at any election for” Electors, members of Congress, and other specified positions.79 79.U.S. Const. amend. XIV.Show More However, some assert that the right to vote for Electors is merely a contingent one that exists only if the state legislature chooses to allow a popular election.80 80.See McPherson v. Blacker, 146 U.S. 1, 39 (1892). One could argue that the Twenty-Sixth Amendment created a popular right to vote for Electors. The Court’s reasoning in McPherson militates against that argument.Show More

Two other words that are critical to the Electoral Clauses, “State” and “Legislature,” also have different usages within the Constitution and have given rise to conflicting interpretations of those Clauses.81 81.See, e.g., McKnight, supra note 13, at 39–44 (discussing the meaning of the term “State”); see also infra notes 95–98 and accompanying text (discussing the meaning of the term “Legislature”).Show More The word “State” can refer to a body politic, a geographic area of a body politic, or the sovereign group of people who make up a body politic.82 82.See, e.g., Boston, June 7, Pa. Gazette, June 18, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue); see also Texas v. White, 74 U.S. 700, 720 (1869) (discussing various possible definitions of “State”).Show More In the context of the Appointments Clause, some have argued that the word “State” means the body politic rather than the people,83 83.See, e.g., Important Debate, supra note 35, at 1; see also Boston, June 7, supra note 82 (describing the argument that the word “State” for purposes of appointing Electors is best understood to refer to the body politic).Show More in part because whenever the Constitution gives power to the people, it does so expressly.84 84.See Important Debate, supra note 35, at 1.Show More Under this interpretation, the Constitution allows the legislature to authorize itself, the people, the governor, or anyone else—even non-citizens—to appoint the state’s Electors. Others have argued that the word means the people as a sovereign group85 85.See, e.g., Important Debate, supra note 35, at 1; see also Albany, November 19, N.Y. J. & Patriotic Reg., Nov. 30, 1799, at 4 (pointing to the problems with defining “State” as the legislature); Boston, June 7, supra note 82 (arguing “State” means body politic in the context of appointing Electors).Show More because the right of choosing Electors is an inherent power of the people that they never delegated to the legislature86 86.See Boston, June 7, supra note 82.Show More and because the “oracular” Alexander Hamilton said that the people would choose Electors, relying on the same text from The Federalist Papers that the Baca court does in its opinion.87 87.See Albany, November 19, supra note 85, at 4.Show More Under this interpretation, only the people can appoint Electors. The legislature can only determine the manner in which the people choose.

Yet others have acknowledged that the word is unclear in context and have argued for a default rule that all government power, including the power to appoint Electors, should reside in the people where the Constitution is unclear.88 88.See New York, Friday November 28, 1800, Republican Watch-Tower, Nov. 29, 1800, at 2.Show More

The Supreme Court rejected a descriptively and prescriptively thick meaning of “State” in McPherson v. Blacker.89 89.146 U.S. 1 (1892).Show More The appellants argued that “State” means a sovereign political corporation with a full range of judicial, military, and other powers, a sovereign “greater almost than the United States.”90 90.Id. at 10–11.Show More Therefore, the clause “[e]ach State shall appoint . . . a Number of Electors”91 91.U.S. Const. art. II, § 1, cl. 2.Show More prescribes that the State as a whole must appoint all of its Electors. The legislature cannot cut up the state’s sovereign power and “divide it among . . . disjointed fractions of the territory of the State, each of which shall choose one elector.”92 92.McPherson, 146 U.S. at 11.Show More The Supreme Court rejected this thick meaning of “State” with its implicit set of substantive constitutional rights and powers. The Court found that in this context the Constitution uses the word “State” in an ordinary sense and that a “State does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established.”93 93.Id. at 25.Show More Consequently, state legislatures are free to prescribe any manner of appointing Electors, including by districts.94 94.See id. at 35–36.Show More

The word “Legislature” may refer to a state’s lawmaking procedure,95 95.See Kirby, supra note 36, at 502.Show More to the people as a whole,96 96.See Michael McLaughlin, Note, Direct Democracy and the Electoral College: Can a Popular Initiative Change How a State Appoints Its Electors?, 76 Fordham L. Rev. 2943, 2966 (2008).Show More or to a distinct representative body.97 97.See Kirby, supra note 36, at 502.Show More As it regards a representative body, the word might refer to a body constrained by fundamental state law (including the state constitution, executive veto, and judicial review) or to a radically independent body unconstrained by any state law or authority.98 98.See id. at 502–03.Show More Historically, some have argued that “Legislature” means both branches with their usual powers, including each branch’s power to reject the other’s proposals.99 99.See New York, Saturday November 8, 1806, Spectator, Nov. 12, 1800, at 3; see also Proceedings of the Legislature, supra note 33, at 170 (statement of Harison).Show More Others have claimed that the Appointments Clause permits a joint ballot.100 100.See, e.g., Important Debate, supra note 35, at 1.Show More

Some commentators have believed that state law governed the question. One, for example, asserted that the Federal Constitution was unclear, so by default the state constitution should determine whether a joint ballot was allowed or concurrence required: “It was useless to say that the Legislature were to direct the manner, if the [federal] constitution had already prescribed it, and left no alternative.”101 101.Pennsylvania Legislature, in Senate, Friday, November 14, Pa. Gazette, Nov. 26, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue).Show More Some Supreme Court Justices have argued, however, that the use of the term “Legislature” in the Appointments Clause prescribes some degree of freedom for the legislature from state law and from other branches of state government when choosing the manner of appointing Electors.102 102.See Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 733–36 (2001) (discussing the Supreme Court’s rulings on the disputed Florida vote count in the 2000 presidential election). Smith details the history of lower court decisions on legislative independence in a variety of constitutional contexts.Show More

History and semantics cannot resolve disputes over the consistency or inconsistency of constitutional usage. Nor can they determine whether to impute a prescriptively thick meaning to a word within the Electoral Clauses or, as in the case of McPherson and “State,” not to impute one.

D. Contrast to the “Take Care” Clause

The Tenth Circuit’s contrast to the President’s obligation to “take care” is also unconvincing. The Constitution allows Congress to delegate the power to appoint inferior officers to the judiciary and department heads without imposing on them an express duty to take care to perform their functions faithfully.103 103.See U.S. Const. art. II, § 2, cl. 2.Show More Yet their power to appoint includes the power to remove.104 104.See United States v. Allred, 155 U.S. 591, 594 (1895) (court commissioner); see also In re Hennen, 38 U.S. 230, 258–59 (1839) (judicial clerk). Both cases are cited in Petition for Writ of Certiorari at 21, Colo. Dep’t of State v. Baca, No. 19-518 (Oct. 16, 2019).Show More In the late eighteenth century, other general powers to appoint also included an implicit power to revoke.105 105.See, e.g., John Joseph Powell, An Essay on the Learning Respecting the Creation and Execution of Powers 287–88 (2d ed. 1791), https://hdl.handle.net/2027/nyp.334330084­79796?urlappend=%3Bseq=317 (summarizing property case law: “A power of appointment includes in itself a right to appoint either absolutely, or with a power of revocation, although no express power of revocation be reserved in the deed creating the power of appointment.”).Show More

In addition, the absence of an express obligation to take care does not forbid states to take care. Under the competing constitutional history described above, states should take care that Electors perform their function. And states have done so from the beginning of the Republic by establishing Elector qualifications, regulating Electors, and regulating the treatment of Electors.

Some states limited eligibility to freeholders.106 106.See, e.g., An Act for the Appointment of Electors to Choose a President Pursuant to the Constitution of Government for the United States, Virginia, Acts of 1788, ch. 1, pa. 1, § 2 (1788) [hereinafter “Virginia Act”], https://hdl.handle.net/2027/hvd.hxh5uh?urlappend=%3­Bseq=279 (limitation to “some discreet and proper person, being a freeholder, and bona fide resident in such district for twelve months”); see also An Act Relative to the Appointment of Electors to Vote for a President and Vice-President of the United States, The Acts of the General Assembly of the State of North-Carolina, ch. 16, § 1 (1792) [hereinafter “North Carolina Act”], https://hdl.handle.net/2027/mdp.35112203943248?urlappend=%3Bseq=58 (limitation to “discreet and sober person, being a freeholder and actually resident within the district for which he shall be elected”).Show More Some imposed minimum residency requirements.107 107.See, e.g., supra note 106; see also Frank Fletcher Stephens, The Transitional Period, 1788–1789, in the Government of the United States 71 (1909), https://hdl.handle.net/­2027/uc1.c2774348?urlappend=%3Bseq=83 (New Hampshire limitation to state inhabitants); id. at 72 (Massachusetts limitation to inhabitants of districts from which elected).Show More Tennessee required three years of residence immediately prior to selection and eligibility to the General Assembly.108 108.See An Act to Appoint Electors to Elect a Pr[e]sident and Vice-President of the United States, Tennessee, ch. 46, §§ 3–4 (1799) [hereinafter “Tennessee Act of 1799”]; see also An Act Providing for the Election of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 4, §§ 4–5 (1796) [hereinafter “Tennessee Act of 1796”] (including an alternative residency qualification for anyone “who was a resident of the district at the time of making the constitution”).Show More New York excluded members of the state legislature.109 109.See Albany, November 26, Albany Reg., Nov. 26, 1792, at 2 (in an election for which the legislature appointed the state’s Electors).Show More

These period practices are notable for two reasons. First, a residency requirement substantively limits an Elector’s discretion when voting for the President and Vice President. Only nonresident Electors110 110.In 1800, a member of the New York Assembly opposed allowing voters to choose Electors from outside the state merely because they “think that men of more wisdom might be got there than here.” Important Debate, supra note 35, at 1 (statement of Jedediah Peck).Show More may cast both of their ballots for residents of an appointing state.111 111.SeeU.S. Const. amend. XII (“Electors . . . vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves . . . .”); cf. U.S. Const. art. II, § 1, cl. 3 (repealed 1804) (“Electors . . . vote . . . for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.”).Show More Second, the Constitution does not impose any eligibility requirements for Electors other than excluding Senators, Representatives, and holders of certain federal offices.112 112.See U.S. Const. art. II, § 1.Show More That omission might be interpreted to prohibit any other eligibility requirements.113 113.The Baca court acknowledged but did not reach the argument that a statute binding Electors “unconstitutionally adds new requirements for . . . holding the office of elector” under the reasoning in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995) (finding that the Constitution forbids states to add congressional qualifications beyond explicitly enumerated ones). Baca v. Colo. Dep’t of State, 935 F.3d 887, 938–39 n.20 (10th Cir. 2019).Show More The Constitution might grant a right of eligibility to everyone else—even British prime ministers.114 114.Cf. Important Debate, supra note 35, at 1 (New York Assembly member Jedediah Peck asserting that the doctrine of popular sovereignty that justifies giving voters the right to choose Electors from outside of their local districts would allow them “the privilege of choosing Billy Pitt, or any other European,” referring to then-Prime Minister William Pitt, the Younger). Only Maine and Nebraska choose Electors by local districts today. See Nat’l Archives, Distribution of Electoral Votes (Dec. 23, 2019), https://www.archives.gov/electoral-college/allocation [https://perma.cc/VF8G-8LS5].Show More However, historical practice shows that many understood the Constitution to allow states the power to limit eligibility. This practice is consistent with an interpretation that states have inherent substantive powers over Electors, not merely formal power over the manner of their appointment.

States have also used more direct measures to take care that Electors perform their function. The Appointments Clause provides that Electors “shall . . . vote” for President and Vice President,115 115.U.S. Const. amend. XII.Show More and some states have required Electors to vote and sanctioned those who failed to do so without an enumerated excuse.116 116.See Amicus Curiae Brief of Derek T. Muller in Support of Neither Party at 14–15, Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019) (No. 18-1173) [hereinafter “Muller”] (citing statutes from Virginia in 1788 and Kentucky in 1799); see also North Carolina Act, supra note 106, at § 4 (two hundred pound fine for “failing to attend and vote” absent sickness or unavoidable accident).Show More Some states granted Electors some or all privileges of state legislators during their service and paid them for their time and expenses.117 117.See, e.g., North Carolina Act, supra note 106, at § 5 (granting Electors the same privileges as members of the General Assembly and paying for their time and expenses); Tennessee Act of 1796, supra note 108, at § 8 (paying for time and expenses); Virginia Act, supra note 106, at § 9 (granting the same privilege from arrest as members of the general assembly and paying for time and expenses).Show More Tennessee required Electors to swear an oath to support the state and federal constitutions.118 118.See Tennessee Act of 1796, supra note 108, at § 9; see also Tennessee Act of 1799, supra note 108, at § 8 (“[E]lectors . . . shall take an oath to support the constitution of the United States, and also the constitution of this state . . . .”).Show More This takes care that Electors faithfully perform their obligations and suggests that a state statute may lawfully bind Electors. The obligation to uphold the state constitution likely includes the obligation to follow statutes enacted pursuant to it, including statutes binding Electors to their pledge.

E. Structure

The court’s structural argument is also unconvincing. States have appointed alternate Electors since early presidential elections119 119.See, e.g., Muller, supra note 116, at 13.Show More without express constitutional authorization and without exceeding their constitutionally allocated number of Electors. An early Tennessee statute, for example, provided that if any Elector “shall die, or refuse to act, the governor shall appoint some person in his stead.”120 120.See An Act Providing for the Appointment of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 11, § 2 (1796).Show More

The Constitution’s text does not expressly forbid states to interfere with an Elector’s discretion, and underlying constitutional principles of representative democracy and the relationship between states and Electors might support such a power. As described above, in early presidential elections, some states required Electors to vote, sanctioned those who failed to do so without an enumerated excuse, and required Electors to support the state and federal constitutions.

The Tenth Circuit’s argument is similar to one that the Supreme Court rejected in McPherson. The respondents argued that the Supreme Court had no jurisdiction to review the constitutionality of a state legislature’s chosen manner of appointing Electors because each step in the electoral process under state law and the Federal Constitution was assigned to another specific body, culminating with Congress.121 121.See McPherson v. Blacker, 146 U.S. 1, 21–22 (1892).Show More The Supreme Court responded that it has judicial power extending to all cases arising under the Constitution and can issue mandamus to carry its power into effect.122 122.See id. at 23–24.Show More The Constitution may not expressly grant the Court any step in the process, but underlying principles of judicial authority still apply.

Moreover, the Constitution gives Congress even less expansive powers over the electoral vote,123 123.See U.S. Const. art. II, § 1, cl. 4 (“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”); id. amend. XII (counting votes of Electors).Show More yet Congress has assumed greater ones.124 124.See, e.g., C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511, 516–25 (1925).Show More In particular, Congress has added steps subsequent to the counting of the Electors’ votes and the announcement of the result. Members of Congress can raise objections, after which both houses can consider the objections and together reject a state’s electoral votes.125 125.See 3 U.S.C. § 15 (2012).Show More This is true even though many members of the Philadelphia Convention rejected giving Congress any role in selecting the President,126 126.See, e.g., Tansill, supra note 124, at 517–18 (statements of Charles Cotesworth Pinckney); see also McKnight, supra note 13, at 30–32 (statements by Pinckney and others who attended the Convention); cf. Lemuel Sawyer, A Biography of John Randolph, of Roanoke 78 (1844), https://hdl.handle.net/2027/loc.ark:/13960/t0ft90p2f?urlappend=%3B­seq=82 (Rep. John Randolph in a later debate insisting that he “could not recognize in this House, or the other, singly or conjointly, the power to decide on the votes of any State” because the “electoral college was as independent of Congress as Congress was of them; and we have no right to judge of their proceedings”).Show More the Founding generation failed to agree on legislation to give Congress a role,127 127.See Tansill, supra note 124, at 517–19.Show More and the Supreme Court has held that “[t]he only rights and duties, expressly vested by the Constitution in the national government, with regard to the appointment or votes of presidential electors,” are to determine the time for choosing electors and the day on which they vote, and to open and count the votes in Congress.128 128.In re Green, 134 U.S. 377, 379 (1890).Show More Charles Cotesworth Pinckney, for example, insisted that state legislatures retain complete control over electoral disputes,129 129.See Tansill, supra note 124, at 518.Show More recognizing continuing state power long after the Electors’ appointment.

Finally, the federal government has invaded the express power of state legislatures to determine the manner of appointing Electors. Congress has required states to accept absentee ballots and prescribed the form of those ballots.130 130.See 52 U.S.C. § 20303(a)(1) (2012) (generally); id. § 20303(c)(2) (absentee write-in ballots for President and Vice President count whether they include the name of the candidate or the name of a party).Show More Congress has forbidden non-citizens to be Electors,131 131.See 18 U.S.C. § 611(a) (2012) (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President . . . .”).Show More to vote for Electors,132 132.See id. (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a . . . Presidential elector . . . .”).Show More and to make expenditures to influence federal elections.133 133.See, e.g., Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding the prohibition), summarily aff’d, 565 U.S. 1104 (2012).Show More This is true even though state legislatures authorized non-citizens to vote in early presidential elections,134 134.See, e.g., Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391, 1420 (1993); see also 71 Cong. Rec. 2270 (1929), https://hdl.handle.net/2027/uc1.l0073613093?urlappend=­%3Bseq=1114 (Rep. Lea describing the historical practice and noting that in 1918, seven states still allowed non-citizens to vote for President) ; cf. Cong. Globe, 30th Cong., 1st Sess. 167 (1848), https://hdl.handle.net/2027/mdp.39015020131085?urlappend=%3Bseq=167 (Rep. Levin criticizing the practice as a threat to republican government).Show More it was understood that the principle of popular sovereignty allowed voters to choose non-citizens as Electors,135 135.See Important Debate, supra note 35, at 1 (statement of Jedediah Peck). Peck recognized that a principle that allowed voters to choose Electors from outside of their local districts would also allow them to choose non-citizens. He opposed both applications of the principle. See id. Nonetheless, states today routinely allow voters to choose Electors from outside of their local districts. See supra note 114.Show More and the Constitution expressly excludes only Senators, Representatives, and those holding offices of profit or trust under the United States from the position.136 136.See U.S. Const. art. II, § 1.Show More

States might find it appropriate to allow non-citizens who pay income or property taxes to vote for Electors under the principle of no taxation without representation. States might also find it appropriate to allow any non-citizen to fund voter education in presidential elections in order to encourage informed voting. What might justify federal intrusion on the express state power to determine the manner of appointing its Electors? Perhaps an underlying principal of democratic self-government cited in Bluman v. Federal Election Commission,137 137.800 F. Supp. 2d at 288.Show More which might also justify state power to bind Electors to the result of the popular vote.

Neither the federal nor state governments interpret the scant express terms of the Electoral Clauses as exhausting their powers over Electors. Background constitutional principles permit greater powers, perhaps including state power to bind Electors to the result of a popular vote. But these background principles were contested at the adoption of the Electoral Clauses and remain contested today, particularly those governing the relative powers of the people and of the federal and state governments.

IV. Objections to Ascribing Thick Meanings

Permitting appeals to thick meanings leads to many interpretive difficulties. It is debatable whether to interpret many broad constitutional concepts, such as freedom of speech, “thickly to include specific examples of the concept or thinly to define only the concept itself.”138 138.Lawrence M. Solan, Can Corpus Linguistics Help Make Originalism Scientific?, 126 Yale L.J.F. 57, 57 (2016).Show More It is also debatable whether an appeal to thick meanings is a ruse to import the interpreter’s personal conceptions or to restrict interpretations to conservative conceptions prevailing at the adoption of the Constitution.139 139.Cf. Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1270 (2019) (denying “that originalism is a thick ideological concept” but acknowledging that many conservatives might sell “‘originalism’ to their base on the basis that it leads to conservative results”).Show More

What if constitutional terms have thick meanings that no one can satisfy today? The Constitution limits presidential eligibility to natural born citizens.140 140.U.S. Const. art. II, § 1, cl. 5.Show More At adoption, natural born citizens had extensive legal advantages over non-citizens,141 141.These typically included limitations on non-citizens holding real property and preconditions to naturalized persons exercising electoral rights under state law. See, e.g., 12 Debates in the House of Representatives, Second Session: January–March 1790, in Documentary History of the First Federal Congress of the United States of America, 4 March 1789–3 March 1791, at 162–63, 167, 497 (Helen E. Veit et al. eds., 1994).Show More based on a theory of personal loyalty.142 142.See, e.g., Calvin v. Smith (1608) 77 Eng. Rep. 377, 399.Show More Many of those advantages have been eliminated.143 143.See, e.g., Fred L. Morrison, Limitations on Alien Investment in American Real Estate, 60 Minn. L. Rev. 621, 624 (1976) (historical relaxation of restrictions on non-citizen ownership of real property in the United States).Show More If the Constitution incorporates a descriptively thick meaning of the term that includes all of those advantages, then no one is eligible to the presidency today.

Prescriptively thick meanings create even greater problems. Does “natural born citizen” have a prescriptively thick meaning that mandates retaining all of the advantages that existed in 1789? If so, all laws that eliminated those advantages are unconstitutional. Both the state and federal governments must restore the status quo from 1789.

The Constitution provides that voters for the House of Representatives must meet the same eligibility requirements as those to vote for “the most numerous Branch of the State Legislature.”144 144.U.S. Const. art. I, § 2, cl. 1.Show More Is the term “most numerous” prescriptively thick, requiring states to have multicameral legislatures? If so, are Nebraska’s electoral votes invalid because its Electors are appointed under provisions enacted by a unicameral legislature?

If words like “Elector” prescribe freedom from state control, do they also prescribe freedom from federal control? Do they prescribe complete freedom in voting, including freedom to vote as promised when bribed? Eighteenth-century electors routinely accepted bribes.145 145.See, e.g., supra note 55; see also Letter from Benjamin Franklin to William Franklin: Journal of Negotiations in London, Nat’l Archives (Mar. 22, 1775), https://founders.­archives.gov/documents/Franklin/01-21-02-0306 [https://perma.cc/EW3Q-YWU4] (“For the elected House of Commons is no better, nor ever will be while the Electors receive Money for their Votes, and pay Money where with Ministers may bribe their Representatives when chosen.”).Show More

A nineteenth-century commentator argued that the Appointments Clause gives states the untrammeled power to appoint villains146 146.See McKnight, supra note 13, at 119.Show More and requires Congress to count the vote of a known-bribed Elector,147 147.See id. at 120.Show More “not because it is an honest vote, but solely because it is a vote.”148 148.Id.Show More If instead some underlying principle allows limits on bribed Electors’ freedom to vote as they choose, why cannot it or another underlying principle allow states or the federal government to bind Electors to the result of the popular vote in their appointing state?

How do we determine which potential prescriptively thick meanings to incorporate? Rob Natelson argues that Electors are free to vote as they please because a process under the 1776 Maryland Constitution utilized electors, the constitution required those electors to swear that they would vote freely, and therefore the public would have expected Electors to vote freely.149 149.See Rob Natelson, Presidential Elector Discretion: The Originalist Evidence, Independence Inst. (Jan. 4, 2018), https://i2i.org/presidential-elector-discretion-originalist-evidence/ [https://perma.cc/V472-LNPJ].Show More But the Maryland Constitution also required the electors to vote only for “men of the most wisdom, experience and virtue.”150 150.Md. Const. of 1776, art. XV.Show More Would the public have expected Electors to follow this requirement also, thus incorporating it into a prescriptively thick meaning of “Elector” and invalidating the election of many American Presidents? One commentator suggested that the Founders were “a shade too lax” in omitting such a requirement from the Constitution.151 151.McKnight, supra note 13, at 112. McKnight also notes that the Maryland Constitution separately required voters to choose electors from among only “the most wise, sensible, and discreet of the people.” Id. at 111–12. If a prescriptively thick meaning of “Elector” incorporates this rule, it would likely have invalidated the appointment and votes of many historical Electors. McKnight also lamented that the Founders were “a shade too lax in omitting” this separate requirement from the Federal Constitution as well. Id. at 112; cf. Md. Const. of 1776, art. XIV (prerequisites for electors by cross reference to article II of the Maryland Constitution). Does the failure to include this requirement in the Electoral Clauses negate the Hamiltonian theory of wise Electors voting independently?Show More Perhaps they were also a shade too lax in omitting express authorization for Electors to vote as they please, leaving states free to bind Electors to the result of a popular vote.

In addition, the Constitution lacks any oaths for Electors despite requiring them for other purposes, including for Senators when sitting in impeachments.152 152.See U.S. Const. art. I, § 3, cl. 6; see also id. art. II, § 1, cl. 8 (oath of President); id. art. VI, cl. 3 (oath of Senators, Representatives, members of state legislatures, and all federal and state executive and judicial officers).Show More Does the Constitution’s silence implicitly import the substance of the Maryland oath or exclude it under the principle expressio unius est exclusio alterius? The Articles of Confederation provided for state delegates to be “appointed in such manner as the legislature of each State shall direct . . . with a power reserved to each State[] to recall its delegates . . . and to send others in their stead.”153 153.Articles of Confederation of 1781, art. V, para. 1.Show More Does the state’s similarly phrased power to appoint Electors “in such Manner as the Legislature thereof may direct”154 154.U.S. Const. art. II, § 1, cl. 2.Show More import a substantive recall power because the public would have expected one given confederation history? Or does the Constitution’s silence on the point exclude that power? All of this is irrelevant speculation. As the Supreme Court has ruled, historical expectations cannot alter constitutional rights.155 155.See supra note 48 and accompanying text.Show More

Finally, the Supreme Court rebuffed an argument similar to Natelson’s in McPherson. The appellants noted that laws in force in every state at the adoption of the Fourteenth Amendment gave males the right to vote for Electors. Consequently, they argued, the Amendment’s protection of the “right to vote at an election for the choice of electors of President and Vice President” incorporated a substantive right to a popular vote for Electors thereafter.156 156.McPherson v. Blacker, 146 U.S. 1, 17 (1892).Show More The Court rejected the argument, finding that the Amendment only protects the right to vote for Electors if the state legislature allows a popular vote.157 157.See id. at 38–39.Show More

Many laws governed elections at the Founding. No appeal to history or semantics can demonstrate that the Electoral Clauses incorporate the rules of one but not the others. Non-originalist interpretive theories, on the other hand, forthrightly embrace norms like the Powell v. McCormack Court’s principle of representative democracy to resolve interpretive disputes like these.158 158.Cf. Christopher R. Green, “This Constitution”: Constitutional Indexicals as a Basis for Textualist Semi-Originalism, 84 Notre Dame L. Rev. 1607, 1617 n.21 (2009) (evaluating theories that utilize non-originalist modes of constitutional discourse such as prudence and ethics).Show More

Conclusion

The Tenth Circuit’s analysis in Baca does not resolve the dispute over Elector independence in any historically determined way. It unites selective readings of incomplete linguistic, historical, and judicial materials by applying background political principles that were contested at the adoption of the Constitution and remain contested today. Contrary constitutional history, practice, and underlying principles support state power over Electors long after their appointment, perhaps including the power to bind them to the result of a popular vote.

The Supreme Court should reject the Tenth Circuit’s reasoning and its conclusion that the state’s power ends with the appointment of Electors. The Court should develop a coherent theory of the relationship of the people, the states, and the federal government in the presidential electoral process. In doing so, it might consider the following questions.

Non-Bribed Electors

Are Electors radically free to vote as they choose, free from any state or federal influence or sanction?

Can Electors refuse to vote despite the constitutional requirement that they shall vote?159 159.Cf. McKnight, supra note 13, at 120–21 (asserting an Elector’s right not to vote).Show More Can Electors cast a blank ballot or a knowingly invalid ballot (such as for a person who has not attained the age of thirty-five)?160 160.Cf. id. at 73–83 (discussing obviously invalid electoral votes); id. at 311 (whether to count electoral votes cast for Horace Greeley despite his death between the 1872 general election and the meeting of the Electors).Show More

If they can, do such Electors count as “appointed” for purposes of calculating the majority of appointed Electors required to win the presidency?161 161.See U.S. Const. amend. XII.Show More

If Electors are not radically free, what justifies constraints on their freedom?

Do Electors owe any duties? If so, to whom? To the appointing state? To the people of the appointing state? To the people of the entire nation?162 162.Cf. supra note 78 and accompanying text (Gov. McKean asserting a constitutional obligation to sister states to appoint Electors).Show More

What duties might Electors owe? A duty of good faith in exercising the function of choosing the President? A duty to follow state or federal law, including laws requiring them to vote?

Can states appoint alternate Electors? Under what circumstances may an alternate vote—upon the failure of an Elector to appear, or to vote, or to vote for a qualified candidate?

Can the state call in the alternate in the permitted circumstances even though that is an action that must occur after the appointment of Electors? Or can only the federal government? If the federal government refuses to call in an alternate, such as for political reasons, does the state have any remedy?

Can states punish Electors for their unexcused failure to vote? Can the federal government?

Bribed Electors

Are Electors radically free, even to accept bribes and to vote as promised?

Must Congress count a known-bribed vote?

Can the state and/or Congress replace a known-bribed vote with that of an honest alternate? If so, how late in the process? When Congress considers other objections to votes?

Can the state and/or the federal government punish Electors for accepting bribes, or does that infringe on the Elector’s freedom to vote at will?

Can the state and/or the federal government punish those who bribe Electors, or does that infringe on the Elector’s freedom to vote at will?

Other Federal Powers

Does Congress have the authority to take any steps after the counting of the electoral votes, such as investigating and judging the validity of those votes?

Does Congress have the authority to forbid non-citizens to vote for Electors, to be Electors, to advocate for the election of candidates, or otherwise to participate in the election of the President and Vice President?

Does Congress have the authority to impose other eligibility requirements for Electors?

Does Congress have the authority to bind Electors to vote for the winner of the appointing state’s popular vote or to authorize the state to bind them?

Underlying Principles

If Electors are not radically free to vote at will, what underlying principles govern state powers over them? What underlying principles govern federal powers over them?

Do these principles and the relative authority of states and the federal government turn on whether Electors owe duties to the appointing state, to the people of the appointing state, or to the people of the nation as a whole?

If Congress has the authority to interfere in the manner of appointing Electors, what principles justify that authority? Could those same principles justify state control over Electors, including the power to bind them to the result of a popular vote?

Powell and Bluman

Does the principle of representative democracy in Powell differ from the principle of democratic self-government in Bluman?163 163.See supra notes 20 and 137 and accompanying text.Show More If so, how, and how might the two principles apply to the question of Elector independence? A principle of representative democracy might support giving Electors the same independence as legislators. In that case, state legislatures should take greater care in choosing the manner of appointing Electors, perhaps limiting eligibility to state legislators of the candidate’s party.

A principle of democratic self-government might support state power to bind Electors to the result of a popular vote. That principle would not allow states to bind Electors in all circumstances, however. For example, a gerrymandered state legislature controlled by a minority party might attempt to appoint Electors directly and purport to bind them to vote for that party’s candidates regardless of the views of the state’s voters. A principle of democratic self-government might permit those Electors freedom to vote for the candidates favored by the majority of the state.

This Essay takes no position on how to apply these underlying principles or how to resolve the dispute over Elector independence. It does, however, urge the Court to embrace underlying principles as it did in Powell rather than attempt to find a purportedly non-normative, historically accurate, factual, originalist answer to the question, which does not exist.

  1. * B.A., Washington & Lee University; J.D., Harvard Law School; D.Phil., Oxford University; Member, New York State Bar. Thanks to the Tennessee State Library Archives and the editors of the Virginia Law Review Online. ↑
  2. Jason Harrow, The Originalist Take on Presidential Electors, Wash. Examiner (Sept. 9, 2019, 12:09 PM), https://www.washingtonexaminer.com/opinion/op-eds/the-originalist-take-on-presidential-electors [https://perma.cc/4K7A-6SDL]. ↑
  3. See Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019). ↑
  4. See, e.g., Associated Press, Justices To Consider Faithless Electors, Ahead of 2020 Vote, Politico (Jan. 17, 2020, 4:24 PM), https://www.politico.com/news/2020/01/17/justices-to-consider-faithless-electors-ahead-of-2020-vote-100631 [https://perma.cc/SF2E-FR49]. ↑
  5. See Baca, 935 F.3d at 947. ↑
  6. See, e.g., David Robertson, Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, 35 Ga. J. Int’l & Comp. L. 277, 279 (2007) (distinguishing thick constitutional meanings that instantiate ethical aspirations from thin ones that do not); see also Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 15 (2018) (arguing that “the thicker the communicative content” of constitutional text, “the less need there is to enter into” interpretive construction); cf. Lawrence B. Solum, Legal Theory Lexicon 028: Concepts and Conceptions, Legal Theory Lexicon, https://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le_1.html [https://perma.cc/9HE5-UCTL] (last updated Oct. 13, 2019) (distinguishing between general concepts and more detailed, and competing, conceptions of those concepts). ↑
  7. See Baca, 935 F.3d at 945–46. ↑
  8. See 2 Jonathan Elliot, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 473 (2d ed. 1836), https://hdl.handle.net/2027/nc01.ark:/13960/t0qs1jm66?url­append=%3Bseq=76 (statement of James Wilson). ↑
  9. U.S. Const. art. II, § 1, cl. 2. ↑
  10. Quotations retain the capitalization of the original unless otherwise noted. ↑
  11. U.S. Const. amend. XII. ↑
  12. Prior to the Twelfth Amendment, the Electors did not vote for the two positions separately. They cast two votes. The person with the majority of votes became President, and the one with the next greatest number of votes became Vice President. See U.S. Const. art. II, § 1, cl. 3 (repealed 1804). The Amendment did not substantially change the remaining parts of the electoral process. ↑
  13. See, e.g., Letter from James Madison to Thomas Jefferson, Nat’l Archives (Mar. 15, 1800), https://founders.archives.gov/documents/Madison/01-17-02-0218 [https://perma.cc/­ZM3C-XHMV] (“It is not to be denied that the Constn. might have been properly more full in prescribing the election of P: & V. P. . . . .”). For example, the Constitution prescribes who shall judge the qualifications of Representatives and Senators but not who shall judge those of Electors. See U.S. Const. art. I, § 5, cl. 1 (each house to judge the qualifications of its own members). ↑
  14. David A. McKnight, The Electoral System of the United States 12 (Philadelphia, J. B. Lippincott & Co. 1878). ↑
  15. See, e.g., infra notes 82–87 and accompanying text (conflicting interpretations of “State” in the Appointments Clause). ↑
  16. Baca v. Colo. Dep’t of State, 935 F.3d 887, 947 (10th Cir. 2019). ↑
  17. Id. at 952–54 (quoting The Federalist Nos. 60, 68 (Alexander Hamilton), No. 64 (John Jay)). ↑
  18. Id. at 953 (quoting The Federalist No. 60 (Alexander Hamilton) (Consequently, “there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”)). Senators are now popularly elected. See U.S. Const. amend. XVII. ↑
  19. Baca, 935 F.3d at 945. ↑
  20. Id. ↑
  21. Id. at 946 (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)). ↑
  22. Id. ↑
  23. Id. at 940 (citing Myers v. United States, 272 U.S. 52, 175–76 (1926)). ↑
  24. Id. at 940–41; see also U.S. Const. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”). ↑
  25. Baca, 935 F.3d at 941. ↑
  26. Id. at 942. ↑
  27. Id. ↑
  28. Id. ↑
  29. Id. ↑
  30. Id. at 943. ↑
  31. The Federalist No. 39 (James Madison). ↑
  32. 2 Elliot
    ,

    supra note 7, at 86. ↑

  33. Id. at 171–72. ↑
  34. Proceedings of the Legislature, N.Y. Daily Gazette, Feb. 16, 1789, at 170 (statement attributed to Harrison, presumably referring to Richard Harison). ↑
  35. See Legislature of Massachusetts, Argus, June 3, 1796, at 3. Each state receives one vote when the House elects the President, both under the original Constitution and the Twelfth Amendment. ↑
  36. Important Debate, Republican Watch-Tower, Apr. 9, 1800, at 1. ↑
  37. See James C. Kirby, Jr., Limitations on the Power of State Legislatures over Presidential Elections, 27 Law & Contemp. Probs. 495, 505 (1962). ↑
  38. See id. ↑
  39. See, e.g., Sarah Laskow, 10 Things That You Have Secretly Been Dying to Know About the World of ‘Hamilton’, Atlas Obscura (Dec. 30, 2015), https://www.atlasobscura.com/­articles/10-things-that-you-have-secretly-been-dying-to-know-about-the-world-of-hamilton [https://perma.cc/XKJ7-Q855]. ↑
  40. See, e.g., Note, Why Learned Hand Would Never Consult Legislative History Today, 105 Harv. L. Rev. 1005, 1005 (1992) (objections to utilizing legislative history for statutory interpretation, including the view that staff and lobbyists draft the history). ↑
  41. See The Federalist No. 64 (John Jay), No. 68 (Alexander Hamilton). ↑
  42. See, e.g., McPherson v. Blacker, 146 U.S. 1, 12–14 (1892) (argument of appellants, noting legislative appointments from the first presidential election through as late as 1876). ↑
  43. The Federalist No. 68 (Alexander Hamilton). ↑
  44. Baca v. Colo. Dep’t of State, 935 F.3d 887, 954 (10th Cir. 2019) (quoting The Federalist No. 64 (John Jay)). ↑
  45. The Federalist No. 64 (John Jay). ↑
  46. See Philadelphia, Jan. 8., Pa. Gazette, Jan. 8, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue). ↑
  47. McPherson, 146 U.S. at 15 (argument of appellants). ↑
  48. See, e.g., Mike Rappaport, Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?, Originalism Blog (Dec. 27, 2016), https://originalismblog.­typepad.com/the-originalism-blog/2016/12/why-does-the-unconstitutionality-of-prohibiting-faithless-electors-seem-problematicmike-rappaport.html [https://perma.cc/N45A-M5J5]. ↑
  49. McPherson, 146 U.S. at 36. ↑
  50. Period definitions of “ballot” include “[a] little ball or ticket used in giving votes,” see Baca v. Colo. Dep’t of State, 935 F.3d 887, 944 (10th Cir. 2019) (quoting 1 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whether the ballot reflects a proxy or the volition of the person who gives it. Period definitions of “vote” include “[s]uffrage; voice given and numbered,” see id. (quoting 2 Samuel Johnson, A Dictionary of the English Language (6th ed. 1785)), without specifying whose voice is given and numbered. Period definitions of “elector” include “one who elects,” see id. (quoting Noah Webster, A Compendious Dictionary of the English Language (1806)), without specifying whether under a proxy or by volition. ↑
  51. See, e.g., Saul Levmore, Precommitment Politics, 82 Va. L. Rev. 567, 617 n.103 (1996); see also Acts and Laws of the State of Connecticut, in America 45 (1784) (penalizing voters who provide more than one vote or proxy at elections). ↑
  52. James Monroe, A View of the Conduct of the Executive, in the Foreign Affairs of the United States, Connected with the Mission to the French Republic, During the Years 1794, 5, & 6, at 273 (1797), https://hdl.handle.net/2027/uc2.ark:/13960/t79s1mp9k?urlappend=­%3Bseq=349. ↑
  53. 1 T.H.B. Oldfield, An Entire and Complete History, Political and Personal of the Boroughs of Great Britain 258 (1792), https://hdl.handle.net/2027/mdp.39015051139007?­urlappend=%3Bseq=498. ↑
  54. William Paxton, A Complete Collection of the Papers Which Were Published on Occasion of the Late Canvass and Election, for the Borough of Newark, in the Months of May and June, 1790, at 46–47 (2d ed. 1791) (capitalization omitted). ↑
  55. See 1 James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses 158 (J.B. Gent ed., 1774), https://hdl.handle.net/2027/pst.000055464277?urlapp­end=%3Bseq=198. ↑
  56. See James Drake, The History of the Last Parliament: Began at Westminster, the Tenth Day of February, in the Twelfth Year of the Reign of King William, An. Dom.
    1700

    , at 209 (2d ed. 1702), https://hdl.handle.net/2027/mdp.39015062365013?urlappend=%3Bseq=247; see also Letter from Governor Winthrop to Governor Bradford, Nat’l Archives (Feb. 16, 1767), https://founders.archives.gov/documents/Adams/06-01-02-0067-0012 [https://perma.­cc/2SJE-D5PA] (“Suppose . . . members . . . purchased the votes of the electors by bribery.”). ↑

  57. See Drake, supra note 55, at 209. ↑
  58. See 1 Charles Johnstone, The Reverie: Or, a Flight to the Paradise of Fools 9 (1763), https://hdl.handle.net/2027/uc1.31175035193765?urlappend=%3Bseq=33. ↑
  59. Letter from Ulster Volunteer Corps Comm. of Correspondence to Benjamin Franklin, Nat’l Archives (July 19, 1783), https://founders.archives.gov/documents/Franklin/01-40-02-0203 [https://perma.cc/93M9-7Y48]. ↑
  60. John Cartwright, The People’s Barrier Against Undue Influence and Corruption: Or the Commons’ House of Parliament According to the Constitution 120 (2d ed. 1780). ↑
  61. Letter from John Rutledge, Jr., to Thomas Jefferson, Nat’l Archives (Apr. 3, 1789), https://founders.archives.gov/documents/Jefferson/01-15-02-0019 [https://perma.cc/DSY6-ZZVU]. ↑
  62. See Magdalen College and King James II
    , 1686–1688,

    at 36 (Rev. J.R. Bloxam ed., 1886), https://hdl.handle.net/2027/uiug.30112085280698?urlappend=%3Bseq=92 (voted in accordance with his judgment of who was better qualified, “according to the oath I had then newly taken, as a Senior Fellow, and a new Elector”). ↑

  63. See Abel Boyer, The History of King William the Third 107–08 (1702), https://hdl.handle.net/2027/mdp.39015021305126?urlappend=%3Bseq=269. ↑
  64. 12 T.B. Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, at 7 (1816). ↑
  65. Id. at 3. ↑
  66. Cf. Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 Ga. L. Rev. 1, 9 (2017) (considering five top-tier constitutional values to determine the constitutional meaning of “emoluments”). ↑
  67. Proceedings of the Legislature, supra note 33, at 170. ↑
  68. See, e.g., Reynolds v. Sims, 377 U.S. 533, 574–75 (1964). ↑
  69. See, e.g., Baca v. Colo. Dep’t of State, 935 F.3d 887, 945–46 (10th Cir. 2019) (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)). ↑
  70. See, e.g., Philadelphia, Jan. 8, supra note 45 (asserting that the system of choosing Electors statewide rather than from local districts “subjected many citizens either to the necessity of voting for men wholly unknown to them, of giving an unavailing vote, or waving their right of suffrage”); see also Legislative Acts, Country J., July 11, 1787, at 1 (allowing each elector to vote for all of the county’s allocated seats in the state Assembly or “so many of them as such elector shall think proper to vote for”). ↑
  71. See, e.g., Int’l Inst. for Democracy & Electoral Assistance, Compulsory Voting [hereinafter “IDEA”], https://www.idea.int/data-tools/data/voter-turnout/compulsory-voting [https://perma.cc/S6NG-7L8V] (“Most democratic governments consider participating in national elections a right of citizenship.”). ↑
  72. See U.S. Const. amend. XII. ↑
  73. See infra note 116. ↑
  74. See, e.g., IDEA, supra note 70 (“In some countries, where voting is considered a duty, voting at elections has been made compulsory and has been regulated in the national constitutions and electoral laws. Some countries go as far as to impose sanctions on non-voters.”). ↑
  75. U.S. Const. art. II, § 1, cl. 2. ↑
  76. Id. amend. XII. ↑
  77. See, e.g., McKnight, supra note 13, at 44 (permissive for states); infra note 116 (imperative for Electors). ↑
  78. Federal Meeting, Pa. Gazette, Nov. 12, 1800, https://www.accessible-archives.com/­collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue) (statement of a meeting of Federal Republicans). ↑
  79. Lancaster, November 14, Pa. Gazette, Nov. 19, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue). ↑
  80. U.S. Const. amend. XIV. ↑
  81. See McPherson v. Blacker, 146 U.S. 1, 39 (1892). One could argue that the Twenty-Sixth Amendment created a popular right to vote for Electors. The Court’s reasoning in McPherson militates against that argument. ↑
  82. See, e.g., McKnight, supra note 13, at 39–44 (discussing the meaning of the term “State”); see also infra notes 95–98 and accompanying text (discussing the meaning of the term “Legislature”). ↑
  83. See, e.g., Boston, June 7, Pa. Gazette, June 18, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue); see also Texas v. White, 74 U.S. 700, 720 (1869) (discussing various possible definitions of “State”). ↑
  84. See, e.g., Important Debate, supra note 35, at 1; see also Boston, June 7, supra note 82 (describing the argument that the word “State” for purposes of appointing Electors is best understood to refer to the body politic). ↑
  85. See Important Debate, supra note 35, at 1. ↑
  86. See, e.g., Important Debate, supra note 35, at 1; see also Albany, November 19, N.Y. J. & Patriotic Reg., Nov. 30, 1799, at 4 (pointing to the problems with defining “State” as the legislature); Boston, June 7, supra note 82 (arguing “State” means body politic in the context of appointing Electors). ↑
  87. See Boston, June 7, supra note 82. ↑
  88. See Albany, November 19, supra note 85, at 4. ↑
  89. See New York, Friday November 28, 1800, Republican Watch-Tower, Nov. 29, 1800, at 2. ↑
  90. 146 U.S. 1 (1892). ↑
  91. Id. at 10–11. ↑
  92. U.S. Const. art. II, § 1, cl. 2. ↑
  93. McPherson, 146 U.S. at 11. ↑
  94. Id. at 25. ↑
  95. See id. at 35–36. ↑
  96. See Kirby, supra note 36, at 502. ↑
  97. See Michael McLaughlin, Note, Direct Democracy and the Electoral College: Can a Popular Initiative Change How a State Appoints Its Electors?, 76 Fordham L. Rev. 2943, 2966 (2008). ↑
  98. See Kirby, supra note 36, at 502. ↑
  99. See id. at 502–03. ↑
  100. See New York, Saturday November 8, 1806, Spectator, Nov. 12, 1800, at 3; see also Proceedings of the Legislature, supra note 33, at 170 (statement of Harison). ↑
  101. See, e.g., Important Debate, supra note 35, at 1. ↑
  102. Pennsylvania Legislature, in Senate, Friday, November 14, Pa. Gazette, Nov. 26, 1800, https://www.accessible-archives.com/collections/the-pennsylvania-gazette/ [https://perma.cc/4WUT-86QL] (follow “Browse” hyperlink; then select relevant issue). ↑
  103. See Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 733–36 (2001) (discussing the Supreme Court’s rulings on the disputed Florida vote count in the 2000 presidential election). Smith details the history of lower court decisions on legislative independence in a variety of constitutional contexts. ↑
  104. See U.S. Const. art. II, § 2, cl. 2. ↑
  105. See United States v. Allred, 155 U.S. 591, 594 (1895) (court commissioner); see also In re Hennen, 38 U.S. 230, 258–59 (1839) (judicial clerk). Both cases are cited in Petition for Writ of Certiorari at 21, Colo. Dep’t of State v. Baca, No. 19-518 (Oct. 16, 2019). ↑
  106. See, e.g., John Joseph Powell
    ,

    An Essay on the Learning Respecting the Creation and Execution of Powers 287–88 (2d ed. 1791), https://hdl.handle.net/2027/nyp.334330084­79796?urlappend=%3Bseq=317 (summarizing property case law: “A power of appointment includes in itself a right to appoint either absolutely, or with a power of revocation, although no express power of revocation be reserved in the deed creating the power of appointment.”). ↑

  107. See, e.g., An Act for the Appointment of Electors to Choose a President Pursuant to the Constitution of Government for the United States, Virginia, Acts of 1788, ch. 1, pa. 1, § 2 (1788) [hereinafter “Virginia Act”], https://hdl.handle.net/2027/hvd.hxh5uh?urlappend=%3­Bseq=279 (limitation to “some discreet and proper person, being a freeholder, and bona fide resident in such district for twelve months”); see also An Act Relative to the Appointment of Electors to Vote for a President and Vice-President of the United States, The Acts of the General Assembly of the State of North-Carolina, ch. 16, § 1 (1792) [hereinafter “North Carolina Act”], https://hdl.handle.net/2027/mdp.35112203943248?urlappend=%3Bseq=58 (limitation to “discreet and sober person, being a freeholder and actually resident within the district for which he shall be elected”). ↑
  108. See, e.g., supra note 106; see also Frank Fletcher Stephens, The Transitional Period, 1788–1789, in the Government of the United States 71 (1909), https://hdl.handle.net/­2027/uc1.c2774348?urlappend=%3Bseq=83 (New Hampshire limitation to state inhabitants); id. at 72 (Massachusetts limitation to inhabitants of districts from which elected). ↑
  109. See An Act to Appoint Electors to Elect a Pr[e]sident and Vice-President of the United States, Tennessee, ch. 46, §§ 3–4 (1799) [hereinafter “Tennessee Act of 1799”]; see also An Act Providing for the Election of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 4, §§ 4–5 (1796) [hereinafter “Tennessee Act of 1796”] (including an alternative residency qualification for anyone “who was a resident of the district at the time of making the constitution”). ↑
  110. See Albany, November 26, Albany Reg., Nov. 26, 1792, at 2 (in an election for which the legislature appointed the state’s Electors). ↑
  111. In 1800, a member of the New York Assembly opposed allowing voters to choose Electors from outside the state merely because they “think that men of more wisdom might be got there than here.” Important Debate, supra note 35, at 1 (statement of Jedediah Peck). ↑
  112. See U.S. Const. amend. XII (“Electors . . . vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves . . . .”); cf. U.S. Const. art. II, § 1, cl. 3 (repealed 1804) (“Electors . . . vote . . . for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.”). ↑
  113. See U.S. Const. art. II, § 1. ↑
  114. The Baca court acknowledged but did not reach the argument that a statute binding Electors “unconstitutionally adds new requirements for . . . holding the office of elector” under the reasoning in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995) (finding that the Constitution forbids states to add congressional qualifications beyond explicitly enumerated ones). Baca v. Colo. Dep’t of State, 935 F.3d 887, 938–39 n.20 (10th Cir. 2019). ↑
  115. Cf. Important Debate, supra note 35, at 1 (New York Assembly member Jedediah Peck asserting that the doctrine of popular sovereignty that justifies giving voters the right to choose Electors from outside of their local districts would allow them “the privilege of choosing Billy Pitt, or any other European,” referring to then-Prime Minister William Pitt, the Younger). Only Maine and Nebraska choose Electors by local districts today. See Nat’l Archives, Distribution of Electoral Votes (Dec. 23, 2019), https://www.archives.gov/electoral-college/allocation [https://perma.cc/VF8G-8LS5]. ↑
  116. U.S. Const. amend. XII. ↑
  117. See Amicus Curiae Brief of Derek T. Muller in Support of Neither Party at 14–15, Baca v. Colo. Dep’t of State, 935 F.3d 887 (10th Cir. 2019) (No. 18-1173) [hereinafter “Muller”] (citing statutes from Virginia in 1788 and Kentucky in 1799); see also North Carolina Act, supra note 106, at § 4 (two hundred pound fine for “failing to attend and vote” absent sickness or unavoidable accident). ↑
  118. See, e.g., North Carolina Act, supra note 106, at § 5 (granting Electors the same privileges as members of the General Assembly and paying for their time and expenses); Tennessee Act of 1796, supra note 108, at § 8 (paying for time and expenses); Virginia Act, supra note 106, at § 9 (granting the same privilege from arrest as members of the general assembly and paying for time and expenses). ↑
  119. See Tennessee Act of 1796, supra note 108, at § 9; see also Tennessee Act of 1799, supra note 108, at § 8 (“[E]lectors . . . shall take an oath to support the constitution of the United States, and also the constitution of this state . . . .”). ↑
  120. See, e.g., Muller, supra note 116, at 13. ↑
  121. See An Act Providing for the Appointment of Electors to Elect a President and Vice-President of the United States, Tennessee, ch. 11, § 2 (1796). ↑
  122. See McPherson v. Blacker, 146 U.S. 1, 21–22 (1892). ↑
  123. See id. at 23–24. ↑
  124. See U.S. Const. art. II, § 1, cl. 4 (“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”); id. amend. XII (counting votes of Electors). ↑
  125. See, e.g., C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511, 516–25 (1925). ↑
  126. See 3 U.S.C. § 15 (2012). ↑
  127. See, e.g., Tansill, supra note 124, at 517–18 (statements of Charles Cotesworth Pinckney); see also McKnight, supra note 13, at 30–32 (statements by Pinckney and others who attended the Convention); cf. Lemuel Sawyer, A Biography of John Randolph, of Roanoke 78 (1844), https://hdl.handle.net/2027/loc.ark:/13960/t0ft90p2f?urlappend=%3B­seq=82 (Rep. John Randolph in a later debate insisting that he “could not recognize in this House, or the other, singly or conjointly, the power to decide on the votes of any State” because the “electoral college was as independent of Congress as Congress was of them; and we have no right to judge of their proceedings”). ↑
  128. See Tansill, supra note 124, at 517–19. ↑
  129. In re Green, 134 U.S. 377, 379 (1890). ↑
  130. See Tansill, supra note 124, at 518. ↑
  131. See 52 U.S.C. § 20303(a)(1) (2012) (generally); id. § 20303(c)(2) (absentee write-in ballots for President and Vice President count whether they include the name of the candidate or the name of a party). ↑
  132. See 18 U.S.C. § 611(a) (2012) (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President . . . .”). ↑
  133. See id. (“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a . . . Presidential elector . . . .”). ↑
  134. See, e.g., Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding the prohibition), summarily aff’d, 565 U.S. 1104 (2012). ↑
  135. See, e.g., Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391, 1420 (1993); see also 71 Cong. Rec. 2270 (1929), https://hdl.handle.net/2027/uc1.l0073613093?urlappend=­%3Bseq=1114 (Rep. Lea describing the historical practice and noting that in 1918, seven states still allowed non-citizens to vote for President) ; cf. Cong. Globe, 30th Cong., 1st Sess. 167 (1848), https://hdl.handle.net/2027/mdp.39015020131085?urlappend=%3Bseq=167 (Rep. Levin criticizing the practice as a threat to republican government). ↑
  136. See Important Debate, supra note 35, at 1 (statement of Jedediah Peck). Peck recognized that a principle that allowed voters to choose Electors from outside of their local districts would also allow them to choose non-citizens. He opposed both applications of the principle. See id. Nonetheless, states today routinely allow voters to choose Electors from outside of their local districts. See supra note 114. ↑
  137. See U.S. Const. art. II, § 1. ↑
  138. 800 F. Supp. 2d at 288. ↑
  139. Lawrence M. Solan, Can Corpus Linguistics Help Make Originalism Scientific?, 126 Yale L.J.F. 57, 57 (2016). ↑
  140. Cf. Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1270 (2019) (denying “that originalism is a thick ideological concept” but acknowledging that many conservatives might sell “‘originalism’ to their base on the basis that it leads to conservative results”). ↑
  141. U.S. Const. art. II, § 1, cl. 5. ↑
  142. These typically included limitations on non-citizens holding real property and preconditions to naturalized persons exercising electoral rights under state law. See, e.g., 12 Debates in the House of Representatives, Second Session: January–March 1790, in Documentary History of the First Federal Congress of the United States of America, 4 March 1789–3 March 1791, at 162–63, 167, 497 (Helen E. Veit et al. eds., 1994). ↑
  143. See, e.g., Calvin v. Smith (1608) 77 Eng. Rep. 377, 399. ↑
  144. See, e.g., Fred L. Morrison, Limitations on Alien Investment in American Real Estate, 60 Minn. L. Rev. 621, 624 (1976) (historical relaxation of restrictions on non-citizen ownership of real property in the United States). ↑
  145. U.S. Const. art. I, § 2, cl. 1. ↑
  146. See, e.g., supra note 55; see also Letter from Benjamin Franklin to William Franklin: Journal of Negotiations in London, Nat’l Archives (Mar. 22, 1775), https://founders.­archives.gov/documents/Franklin/01-21-02-0306 [https://perma.cc/EW3Q-YWU4] (“For the elected House of Commons is no better, nor ever will be while the Electors receive Money for their Votes, and pay Money where with Ministers may bribe their Representatives when chosen.”). ↑
  147. See McKnight, supra note 13, at 119. ↑
  148. See id. at 120. ↑
  149. Id. ↑
  150.  See Rob Natelson, Presidential Elector Discretion: The Originalist Evidence, Independence Inst. (Jan. 4, 2018), https://i2i.org/presidential-elector-discretion-originalist-evidence/ [https://perma.cc/V472-LNPJ]. ↑
  151. Md. Const. of 1776, art. XV. ↑
  152. McKnight, supra note 13, at 112. McKnight also notes that the Maryland Constitution separately required voters to choose electors from among only “the most wise, sensible, and discreet of the people.” Id. at 111–12. If a prescriptively thick meaning of “Elector” incorporates this rule, it would likely have invalidated the appointment and votes of many historical Electors. McKnight also lamented that the Founders were “a shade too lax in omitting” this separate requirement from the Federal Constitution as well. Id. at 112; cf. Md. Const. of 1776, art. XIV (prerequisites for electors by cross reference to article II of the Maryland Constitution). Does the failure to include this requirement in the Electoral Clauses negate the Hamiltonian theory of wise Electors voting independently? ↑
  153. See U.S. Const. art. I, § 3, cl. 6; see also id. art. II, § 1, cl. 8 (oath of President); id. art. VI, cl. 3 (oath of Senators, Representatives, members of state legislatures, and all federal and state executive and judicial officers). ↑
  154. Articles of Confederation of 1781, art. V, para. 1. ↑
  155. U.S. Const. art. II, § 1, cl. 2. ↑
  156. See supra note 48 and accompanying text. ↑
  157. McPherson v. Blacker, 146 U.S. 1, 17 (1892). ↑
  158. See id. at 38–39. ↑
  159. Cf. Christopher R. Green, “This Constitution”: Constitutional Indexicals as a Basis for Textualist Semi-Originalism, 84 Notre Dame L. Rev. 1607, 1617 n.21 (2009) (evaluating theories that utilize non-originalist modes of constitutional discourse such as prudence and ethics). ↑
  160. Cf. McKnight, supra note 13, at 120–21 (asserting an Elector’s right not to vote). ↑
  161. Cf. id. at 73–83 (discussing obviously invalid electoral votes); id. at 311 (whether to count electoral votes cast for Horace Greeley despite his death between the 1872 general election and the meeting of the Electors). ↑
  162. See U.S. Const. amend. XII. ↑
  163. Cf. supra note 78 and accompanying text (Gov. McKean asserting a constitutional obligation to sister states to appoint Electors). ↑
  164. See supra notes 20 and 137 and accompanying text. ↑

The Miseducation of Free Speech

Introduction

The claim that America’s campuses are in the midst of a free speech crisis has been made so often and so emphatically that it has widely become accepted as fact.[1] According to the prevailing narrative, liberal professors and students have turned institutions of higher learning into elitist enclaves, where any thought that does not conform to leftist orthodoxy is aggressively suppressed. In this narrative, America’s institutions of higher learning have been transformed from vibrant marketplaces of ideas to intolerant and censorious safe spaces.

This is not a new narrative. In 1970, soon-to-be Supreme Court Justice Lewis Powell lamented that

frightening progress has been made toward radicalizing the campus. . . . [T]he movement has engulfed many of the most prestigious universities and is a recognized influence on almost every campus. . . . Colleges have been shut down; files looted; manuscripts destroyed and buildings burned. Freedom of speech has been denied, reasoned discourse repudiated and academic freedom endangered.[2]

In a newspaper editorial published in 1971, Powell expressed his critique in words that could have been written yesterday: “It is common practice, especially on the campus, for leftists to shout down with obscenities any moderate or conservative speaker or physically to deny such speaker the rostrum.”[3]

The historical backdrop of Justice Powell’s sentiments was the wave of protests sweeping America’s campuses in the early 1970s, with students protesting the Vietnam and Cambodian conflicts as well as police brutality, racism, and sexism.[4] Despite Justice Powell’s attempt to characterize student protesters as hostile to free speech, the period is now seen as a high-water mark for student free speech.[5] Moreover, it was students, not the people or the ideas they were protesting, who bore the brunt of violence during this time. Only a few months before Justice Powell’s 1970 speech, four students had been shot dead at Kent State, and another two students were killed during a college protest at Jackson State a few weeks later.[6]

The assertion that conservative ideas are being violently suppressed on college campuses is as untrue today as it was in the 1970s.[7] While there have been a handful of violent incidents involving conservative speakers, the vast majority of universities have experienced no such controversies. The attempts at ideological suppression that do occur on campuses are far more likely to target leftist views than right-wing views. In general, students remain more open-minded and tolerant than the general population, and universities remain some of the most robust free speech institutions in the country.

In other words, the narrative of widespread liberal intolerance and suppression of conservative views on college campuses is simply false. Yet it continues to be repeated by politicians, civil libertarians, university administrators, media outlets, and scholars. This false narrative of the campus free speech crisis is harmful for two primary reasons.

One is that, in Orwellian fashion, it is used to justify the imposition of laws and policies that severely restrict students’ right to protest—censorship in the name of free speech. The impact of these regulations is not likely to be evenly distributed but will instead further chill the speech of already marginalized groups. The false narrative of liberal intolerance has particularly vilified the responses of women, nonwhite men, and sexual minorities to the provocations of far-right speakers and other situations seemingly calculated to incite campus conflict. The characterization of protest by these groups as “censorship” that should be punished, as opposed to counterspeech that should be protected, deepens the free speech divide between the privileged and the vulnerable.

The second harm inflicted by the false narrative of the college free speech crisis is how it undermines the legitimacy of the university as a free speech institution. This is particularly alarming in our current historical moment, when our nation’s leaders have demonstrated open and sustained hostility to free speech and have degraded every value the right was intended to protect: truth, autonomy, and democracy. We are living through a presidential administration that harnesses the power of the Internet to promote blatant lies, encourage the brutal suppression of dissent, and vilify the press. It is no accident that the attack on universities is driven by Internet celebrities with little knowledge of and even less concern for what a healthy free speech community looks like. While individual universities doubtless often fall short of the ideal, the university as an institution serves to inculcate free speech values in their students and faculty and provides a uniquely valuable model for the cultivation of free speech norms in a broader context. The myth of the censorious campus distracts us from the very real threats to free speech posed by our nation’s leaders and delegitimizes the university’s ability to fight them. The university model of free speech, which at its best encourages research, reflection, and self-improvement, is needed now more than ever to compete with the Internet model of free speech, which at its worst rewards ignorance, impulsivity, and self-satisfaction.

I. The Manufactured Campus Free Speech Crisis

In my 2019 book, The Cult of the Constitution,[8] I detail the convergence of conservative and liberal ideology on free speech over the last few decades. This convergence is perhaps nowhere as apparent as in the recent hand-wringing over the supposed campus free speech crisis. While conservatives have been bemoaning “political correctness” on college campuses since the 1990s,[9] accusations of student hostility to freedom of speech is now as likely to come from self-described liberals as conservatives. In a piece for New York Magazine in 2015, Jonathan Chait followed the conservative playbook by citing a handful of examples of liberal intolerance as evidence that leftists were engaged in an all-out assault on freedom of thought.[10] Chait’s piece was followed by a flurry of popular press articles similarly decrying the leftist takeover of college campuses. In 2016, the University of Chicago was lauded across the political spectrum for sending a welcome letter to incoming students that stated that the university does “not support so-called trigger warnings, we do not cancel invited speakers because their topics might prove controversial and we do not condone the creation of intellectual safe spaces where individuals can retreat from ideas and perspectives at odds with their own.”[11]

In 2017, three campus protests against right-wing speakers in particular drew intense media coverage and criticism from high-profile liberals. The most legitimately alarming of these involved Charles Murray’s visit to Middlebury College.[12] Murray is best known as the co-author of the controversial 1994 book The Bell Curve, widely criticized for unfounded and racist claims about intelligence.[13] Murray was reportedly prevented from giving his speech by dozens of shouting students, and protesters pulled fire alarms in an attempt to disrupt his delivery of the speech in a different room.[14] Some protesters became physically aggressive with Murray and his faculty interviewer, Professor Allison Stanger, as they departed the building. Protesters rocked the car they entered and jumped on the hood, and Professor Stanger was left with a concussion.[15]

Violence also broke out at the University of California, Berkeley in February 2017 in advance of a scheduled appearance by Milo Yiannopoulos, then a senior editor for the far-right publication Breitbart, who is best known for being a gay, homophobic, misogynist, and racist Donald Trump supporter.[16] At some point during the day Yiannopoulos was set to speak, a group of demonstrators set fires and fireworks, damaged property, and threw rocks at police.[17] Citing public safety concerns, the university canceled his appearance.[18]

Threats of violence also plagued a planned appearance at Berkeley by the conservative political commentator Ann Coulter in April 2017. After receiving what the university characterized as “very specific intelligence” regarding violent demonstrations, Berkeley officials announced that they would not be able to provide adequate security to host Coulter in the venue and on the specific date she had requested.[19]

The Coulter controversy sparked comment not just from conservative pundits, but also liberal politicians. Senator Bernie Sanders weighed in, calling attempts to prevent her from speaking “a sign of intellectual weakness. . . . If you can’t ask Ann Coulter in a polite way questions which expose the weakness of her arguments, if all you can do is boo, or shut her down, or prevent her from coming, what does that tell the world?”[20] Senator Elizabeth Warren was similarly critical, telling CNN’s Jake Tapper, “My view is, let her speak. . . . If you don’t like it, don’t show up.” [21]

David Cole, the legal director of the ACLU, went even further, releasing a public statement on the events surrounding Coulter’s non-appearance at Berkeley:

The unacceptable threats of violence that have led to the “hecklers’ veto” of Ann Coulter’s speech at Berkeley are inconsistent with free speech principles that protect us all from government overreach. . . . For the future of our democracy, we must protect bigoted speech from government censorship. On college campuses, that means that the best way to combat hateful speech is through counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship.[22]

A closer look at the Coulter episode, however, complicates the picture of a liberal university stifling unpopular conservative speech. While many news outlets reported that Berkeley had canceled Coulter’s talk and suggested that it had done so out of a bias against conservative speakers, Coulter was never officially scheduled to speak at Berkeley.[23] The organizations that had invited Coulter had asked for but not received confirmation of an available venue.[24] Berkeley administrators reportedly only learned of the invitation by reading about it in the newspaper. After the school received warnings of violent reactions to Coulter’s unscheduled visit, they offered to host Coulter at a different venue on a later date.[25] Coulter and the groups that invited her did not find this alternative acceptable, and Coulter claimed she would show up on the original date.[26] Berkeley administrators reiterated that they could not provide a secure location on that date, but that they would arrange for a police presence to attempt to maintain public safety if Coulter did show up.[27] After the conservative organizations that invited Coulter stated that they could no longer support the event due to safety concerns, Coulter decided not to show up after all.[28]

What is more, there is little evidence that “liberal” students, or even students at all, are behind the violent protests in this handful of cases. Many in the media and the general public assumed that the students who expressed nonviolent disagreement with controversial speakers were also responsible for the violence and property damage that occurred during these incidents. But the violent behavior highlighted by the Middlebury and Berkeley incidents does not appear to have been instigated by students. The Berkeley violence “was instigated by a group of about 150 masked agitators who came onto campus and interrupted an otherwise non-violent protest.”[29] And a Middlebury Police Department statement indicated that many of the individuals present where the violence occurred outside the Murray event “were not members of the college community.”[30] For example, during a protest of Yiannopoulos’s speech at the University of Washington, a Yiannopoulos supporter with no connection to the university shot a demonstrator in the stomach, critically wounding him.[31] According to police, the shooter and her husband had gone to the UW campus with the specific purpose of provoking altercations with protesters.[32] The shooter’s husband sent a Facebook message the day before Yiannopoulos’s talk stating, “I’m going to the milo event and if the snowflakes get out off [sic] hand I’m going to wade through their ranks and start cracking skulls” and noted that his wife would be armed.[33] Violent campus protests are, in short, both rare and not clearly attributable to students, to say nothing of students with any particular ideological affiliation.

Speaker disinvitations, which are often cited as evidence of increasing academic intolerance, are only slightly less rare than violent protests. The Foundation for Individual Rights in Education (FIRE), a nonprofit organization whose stated mission is “to defend and sustain individual rights at America’s colleges and universities,” has maintained a database of attempts to disinvite college speakers since 2000.[34] According to FIRE’s database, the number of attempted disinvitations in 2016 was forty-two. Eleven of these were disinvitations of a single speaker, Milo Yiannopoulos.[35] There are more than 4,500 degree-granting institutions of higher education in the United States.[36] Even if each of these institutions held only one speaker event a year, the percentage of attempted disinvitations would be less than one-tenth of a percent.[37]

And finally, conservative attempts to suppress liberal speech are at least as common as the inverse, but they receive comparatively less attention in the media and by both conservative and liberal commentators.[38] The national media watchdog group Fairness & Accuracy in Reporting (“FAIR”) reviewed eighteen months of New York Times’ reporting on campus free speech and found that the newspaper devoted seven times as much column space to stories about conservative speech suppression as it did for stories of liberal speech suppression: “A review of Times articles, columns, op-eds and reports shows a clear emphasis on documenting and condemning perceived suppression of conservative voices at American universities, while rarely mentioning harassment campaigns against leftist professors and/or the criminalization of leftist causes such as the pro-Palestinian BDS (Boycott Divestment Sanctions) movement.”[39]

One relatively overlooked story of the suppression of liberal speech involved Anita Sarkeesian, a cultural critic best known for her critiques of sexism in video games.[40] Sarkeesian’s work has made her a target for violent, misogynist abuse since 2012, abuse that intensified during “Gamergate,” the 2014 high-profile harassment campaign against women in the gaming industry.[41]

On October 14, 2014, the day before Sarkeesian was scheduled to give a talk at Utah State University, university administrators received an anonymous e-mail from a person who threatened to carry out “the deadliest school shooting in American history” if her talk was not canceled.[42] The anonymous author invoked Marc Lépine, the man who murdered fourteen women at the École Polytechnique in Montreal in 1989 in the name of “fighting feminism.”[43] The author claimed to have “a semi-automatic rifle, multiple pistols, and a collection of pipe bombs,” and told the university it had “24 hours to cancel Sarkeesian’s talk.”[44] The email continued:

Anita Sarkeesian is everything wrong with the feminist woman, and she is going to die screaming like the craven little whore that she is if you let her come to USU. I will write my manifesto in her spilled blood, and you will all bear witness to what feminist lies and poison have done to the men of America.[45]

Sarkeesian is no stranger to threats, and rarely cancels speaking appearances because of them. She did, however, request that the university implement metal detectors or pat-downs for the event in light of the email’s specific reference to firearms.[46] The university refused,[47] claiming “they could not prevent those in attendance from carrying weapons into the lecture if they had concealed weapons permits.”[48] It also refused Sarkeesian’s request that those carrying firearms be asked to show their permits because “that would have been needlessly invasive for the audience.”[49] Sarkeesian canceled her talk, stating, “It’s unacceptable that the school is unable or unwilling to screen for firearms at a lecture on their campus, especially when a specific terrorist threat had been made against the speaker.”[50]

Sarkeesian is a high-profile speaker who was targeted with specific threats of violence solely based on the anticipated content of her speech, threats that extended to the student audience of the event. By declining to take the threat seriously, university administrators left Sarkeesian with the choice of speaking and risking death or injury to herself and her audience, or not speaking at all. What Sarkeesian experienced was far graver than Ann Coulter’s experience with Berkeley, and yet Sarkeesian’s case did not generate anything close to the outrage and condemnation by prominent figures on either the right or the left. The violent suppression of Sarkeesian’s speech was not denounced in right-wing outlets fond of invoking the First Amendment when it comes to speakers like Yiannopoulos or Coulter, or used as an example of worrisome intolerance by liberals like Jonathan Chait. The ACLU did not denounce the “hecklers’ veto” of Sarkeesian or use it to encourage those on college campuses to use “counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship.”

Sarkeesian’s story is only one of many right-wing attempts to silence liberal speakers that fails to generate the attention or outrage of incidents involving right-wing provocateurs. In June 2017, Inside Higher Ed published an article highlighting recent threats against academics.[51] Five of the six incidents targeted liberal professors, and yet the incident on the list that received the most sustained media coverage and widespread condemnation was the single case[52] involving a conservative professor, Bret Weinstein of Evergreen State College.[53]

Among the faculty members who received far less attention and support include Princeton University Professor Keeanga-Yamahtta Taylor, who was targeted with threats of violence, including lynching and being shot, after calling Donald Trump “a racist, sexist megalomaniac” in a commencement speech at Hampshire College in May 2017.[54] She canceled planned speeches in Seattle and the University of California, San Diego over concerns for her safety.[55] In another case, John Eric Williams, an associate professor of sociology at Trinity College, was subjected to physical threats after he shared an article that suggested black people should not help bigots.[56] Trinity College shut down for a day over the threats and placed Williams on leave. In yet another incident, a classics professor at the University of Iowa was threatened and harassed for noting that many ancient Western statues were not originally white.[57]

Outspoken critics of campus intolerance rarely mention the right-wing website Professor Watchlist, which has the stated purpose of identifying faculty who “discriminate against conservative students and advance leftist propaganda in the classroom.”[58] The site provides the professors’ institutional affiliations and faculty photos as well as a summary of their putative infractions. The websites Campus Reform and College Fix feature similar stories.[59] According to the American Association of University Professors, “Individual faculty members who have been included on such lists or singled out elsewhere have been subject to threats of physical violence, including sexual assault, through hundreds of e-mails, calls, and social media postings.”[60]

These professors face violent, targeted threats that directly impact their sense of physical safety and their livelihood. Nearly all of them were targeted for the content of their speech—their views on racism, sexism, or white male supremacy. If concerns about freedom of expression in academia are sincere, then these incidents should receive at least the same amount of attention and generate at least as much outrage as those involving right-wing celebrities. Indeed, anyone truly concerned about intellectual freedom on college campuses should find direct threats to professors’ livelihoods more troubling than protests over famous media personalities with multiple outlets for expressing themselves.

Intellectual intolerance on college campuses is indeed disturbing and should be taken seriously. But the caricature of conservatives struggling to be heard over rioting liberal reactionaries is a grotesque distortion of reality. True instances of violent, intolerant suppression of ideas on college campuses are rare; those specifically targeting conservative ideas are even rarer.

How then, did the myth of a violent, coordinated leftist student push to silence conservative voices on university campuses become so widely accepted? The answer lies in the well-funded, strategic efforts by conservative groups amplified by poorly sourced, sensationalist reporting and liberal free speech fundamentalists.

According to author Amy Binder, “For decades, a handful of organizations has been working in the trenches with conservative college students to stage events” to create the impression of leftist intolerance.[61] “With their emphasis on conservative victimhood and liberal indoctrination, these organizations have fostered right-leaning student activism and suspicion about higher education, which have created fertile soil in which larger-scale political attacks on higher education germinate and grow.”[62] One such organization is the Young America’s Foundation (“YAF”), which arranges college speaking tours for Ann Coulter and other conservative celebrities.[63] The YAF listed nearly $60 million in assets and $23 million in expenditures in 2014.[64] Its funding sources include the Koch brothers, the Lynde and Harry Bradley Foundation, and Betsy Devos.[65] Binder writes:

YAF fuels a provocative style for what one of our interviewees called “Average Joe” college students. Enticed by slogans depicting faculty as “tree-hugging, gun-taking, wealth-hating, and leftist-loving,” students are taught in “boot camps’” to fight “persecution” on campus with an “activist mentality,” confronting their liberal peers and professors head-to-head with “aggressive” tactics. Students take up the combative charge by staging showy events like “Affirmative Action Bake Sales” and “Catch an Illegal Alien Day.” This provocative style of right-wing activism is designed to poke fun at liberals, get them angry, protest their events and, when chaos ensues, attract media attention.[66]

Other well-funded, right-wing organizations sponsoring conservative campus events include the Leadership Institute, Turning Point USA, and the American Enterprise Institute. Several of these organizations are members of the State Policy Network (“SPN”), a wide network of right-wing, tax-exempt think tanks. The SPN Network, which enjoys close ties to the Koch brothers as well as to global corporations including Microsoft, Verizon, and Comcast, pushes “an extreme right-wing agenda that aims to privatize education, block healthcare reform, restrict workers’ rights, roll back environmental protections, and create a tax system that benefits most those at the very top level of income.”[67]

And of course, there is FIRE, one of the loudest voices proclaiming a state of emergency for freedom of expression in higher education. As noted above, FIRE’s own research shows that speaker disinvitations are extremely rare, and yet the organization claimed in 2017 that “the climate for free speech on campus is in many ways more precarious than ever.”[68] The stark discrepancy between the rhetoric and the reality is made more explicable in light of the individuals who constitute FIRE’s leadership and provide its funding. Despite FIRE’s self-characterization as a nonpartisan foundation, its “funding, board members, and closest associations are heavily right wing.”[69] The organization listed $6 million in revenue and $6 million in assets in 2016,[70] an amount that includes generous donations from right-wing nonprofits such as the Lynde and Harry Bradley Foundation and the Koch brothers’ DonorsTrust.[71]

II. The Goldwater Bill, or the Betrayal of Tinker

The concept of counterspeech is central to First Amendment doctrine. In Justice Louis Brandeis’s famous formulation, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”[72] In his statement on behalf of the ACLU regarding the Coulter controversy at Berkeley, David Cole echoed Brandeis: “[T]he best way to combat hateful speech is through counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship.”[73] Protest is itself a valuable form of free speech, and one with a particularly distinguished pedigree. In the landmark case Tinker v. Des Moines, the Supreme Court held that public high school students wearing black armbands in opposition to the Vietnam War were engaging in expressive conduct protected by the First Amendment.[74] The mere possibility that such speech may disrupt the educational environment, the Court found, does not justify its suppression. Students’ expressive conduct may be restricted only when it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others . . . . [U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”[75] As Justice Fortas explained:

Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.[76]

Tinker underscores that the right to peaceful protest is an essential aspect of the right to free speech, and serves as a reminder of the role of peaceful protest by students throughout American history, from war protests to civil rights demonstrations.

The promoters of the campus free speech crisis myth have, in Orwellian fashion, targeted a long-recognized, well-established form of protected free speech—student protest—and recast it as censorship. As one legal scholar points out:

[T]he fact that speech is contentious does not make it censorial; it simply makes it contentious speech. Many Supreme Court cases involve contentious yet fully protected speech—ranging from protestors shouting at and following women entering medical clinics to those holding grossly offensive signs at funerals. Indeed, protests, which lie at the core of the First Amendment, are by definition contentious tactics.[77]

In their vilification of student protesters, the promoters of the censorious campus myth bring to mind Justice Hugo Black’s sputtering dissent in Tinker, in which the self-styled First Amendment “absolutist” ridiculed the idea that the First Amendment should protect the “groups of students all over the land . . . already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins.”[78]

The second Orwellian twist is that the anti-protest measures enacted to respond to this false crisis are themselves censorial. Since the Middlebury and Berkeley incidents, at least seventeen states have enacted anti-protest laws, including eight in 2019 alone.[79] These bills are based on model legislation titled, with no apparent irony, the “Campus Free Speech Act,”[80] drafted by the Ethics and Public Policy Center and the Goldwater Institute.[81] These two organizations have received millions of dollars in funding from the Koch brothers. The Ethics and Public Policy Center has also received funding from several wealthy conservative family foundations, including nearly $2 million from the Lynde and Harry Bradley Foundation.[82] The Goldwater Institute is “funded by some of the biggest benefactors in Republican politics,” including receiving more than a million dollars from the Mercer Family Foundation since 2012.[83]

The model bill’s most troubling provisions include Section 1.4, which states that “protests and demonstrations that infringe upon the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction” (with the exception of “professors or other instructors . . . maintaining order in the classroom”); Section 1.7, which states that “anyone under the jurisdiction of the institution who interferes with the free expression of others” will be subjected to “a range of disciplinary sanctions”; Section 1.9, which dictates that a “student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year, or expelled”; and Section 1.10, which states that the academic institution “(1) shall strive to remain neutral, as an institution, on the public policy controversies of the day, and (2) may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.”[84]

The policy does not define “interfering with the free expression of others” or “infringing the expressive rights of others.” Does it include chanting quietly? Holding up large signs? Turning one’s back to the speaker? Such ambiguity should trigger First Amendment concerns about chilling effects, particularly given the harshness of the sanctions imposed for violations. The clause requiring institutions to “remain neutral on the public policy controversies of the day” is difficult to describe as anything other than naked censorship. As Ralph Wilson, an activist who lobbies to keep corporate influence out of education, writes, the bills can be likened to the Citizens United ruling in that they “bend the definition of free speech to favor corporate funded speech (campus speakers sponsored by outside groups, or corporate funded student groups). Spontaneous protest will be pre-empted by sponsored speakers.”[85]

In October 2017, the University of Wisconsin system approved a policy that closely tracked the Goldwater bill, including a provision that expels students who have “disrupted others’ free expression three times.”[86] The policy, like the Goldwater bill and a version of the bill that passed in the Wisconsin Assembly in June 2017, does not specify what disruptive conduct is. Sixteen of the Board of Regents’ eighteen members were appointed by Republican Governor Scott Walker.[87] Only one regent, Democrat Tony Evers, dissented, stating that “[t]his policy will chill and suppress free speech on this campus and all campuses.”[88] The system president, Ray Cross, spoke without any apparent irony about the importance of “teach[ing] students how to engage and listen to those with whom they differ,” leaving it unclear how suspending students for expressing disagreement would convey this lesson.[89]

John K. Wilson, editor of the Academe Blog, noted that the legislative sponsors of the “Tennessee Freedom of Speech on College Campus Bill,” that state’s version of the Goldwater bill, did not exactly have a reputation for upholding academic freedom and protecting free speech: they had previously supported cutting $436,000 from the University of Tennessee-Knoxville’s diversity and inclusion programs and attempted to prohibit funding for Sex Week programs, which aim to “foster a comprehensive and academically-informed conversation about sex, sexuality, and relationships.”[90] Wilson provided a detailed critique of the original draft of the bill, which went far beyond suppressing student protest and “invents a brand new right imposed by state law for students to say anything they want in class, even if it’s disconnected from the content of the course, and leaves professors completely powerless to stop students and keep a class on track for what it’s supposed to cover.”[91] In his view, the “bizarre and burdensome regulations” not only “take[] away from professors the ability to control the classroom and threatens their academic freedom,” but “[they] subject[] students and staff to repressive new rules that can easily be abused to punish campus protest and dissent.”[92] In short, Wilson concludes, “This proposed law isn’t a defense of free speech, it’s an attack on it.”[93]

III. Competing Free Speech Cultures: The Internet Versus the University

Free speech in America is not only a matter of constitutional doctrine. It is also a matter of strongly felt intuitions by a general public not particularly well versed in the nuances of First Amendment law. What determines how Americans will understand and exercise the principle of free speech comes down largely to non-legal norms, norms that emerge from particular settings and practices. We can assess the healthiness of a given free speech culture by reflecting on how well it promotes the values underpinning the First Amendment: truth, autonomy, and democracy. A free speech culture that encourages habits of research, reflection, and self-improvement will be the most successful in advancing these values; a free speech culture that encourages ignorance, impulsivity, and self-satisfaction will be the least. Broadly speaking, the university embodies the former culture, and the Internet embodies the latter.[94] The manufactured campus free speech crisis and the censorious regulations passed in its wake can be viewed as the triumph of Internet free speech culture over university free speech culture.

One of the most influential forces in the creation of the myth of the campus free speech crisis was Milo Yiannopoulos, whose claim to fame is primarily his reputation as an Internet provocateur. Yiannopoulos possesses no particular knowledge or skill that would make him an obvious choice to receive speaking invitations from prestigious universities. At the time he began to appear on college campuses, he was perhaps best known for being permanently banned from Twitter after facilitating an online harassment campaign against Leslie Jones, an African American actress who starred in the 2016 reboot of Ghostbusters.[95] Before Berkeley, his previous speaking engagements at college campuses had been marked by controversy. During a talk at the University of Wisconsin-Milwaukee, Yiannopoulos targeted a transgender student by name, ridiculing the student for filing a Title IX complaint about bathroom access.[96] According to some sources, Yiannopoulos was planning to name undocumented students during his Berkeley talk.[97] After protests erupted at Berkeley and the university canceled his appearance for public safety reasons, Yiannopoulos took to Facebook to politicize the situation and don the mantle of a free speech martyr: “The Left is absolutely terrified of free speech,” he wrote, “and will do literally anything to shut it down.”[98]

Such was Milo’s influence on the campus free speech controversy that Tennessee’s anti-protest bill was also referred to as “the MILO bill,” and a statement from Yiannopoulos was read out loud at the press conference for the bill.[99] “We are winning the war,” it read, “And we will continue to win as long as students, and now defenders of free speech within the government, stand up to ivory-tower intellectuals and left-wing administrators intent on shutting up any speech they don’t find convenient.”[100] According to one sponsor of the bill, Senator Joey Hensley, “Too many times we’ve seen classrooms where the professor doesn’t want to hear both sides of an issue, we’ve heard stories from many students that, honestly, are on the conservative side that have those issues stifled in the classroom.”[101] His sentiments were echoed by another speaker at the press conference, Luke Elliot, the vice president of the University of Tennessee College Republicans. Elliot stated, “Students are often intimidated by the academic elite in the classroom, Tennessee is a conservative state, we will not allow out of touch professors with no real world experience to intimidate eighteen-year-olds.”[102]

The sentiment that professors should not be allowed to “intimidate” their students by teaching them content they do not like is whiplash-inducing coming from the very people who complain about “liberal snowflakes” and “intellectual safe spaces.” It also paints an extraordinary picture of what the supporters of such bills think a university should look like: a place where every discussion must hear out “both sides,” where people with years of training and expertise should have no more status than those with none, where the demonstration of knowledge is considered a threat.

But that is not a description of a university. That is a description of the Internet.

Milo Yiannopoulos, Ann Coulter, and their ilk are not experts, or professors, or intellectuals. They are Internet celebrities. Their appearance on college campuses is objectionable because they are simply not qualified to be there, and universities should not squander precious attention and resources on clowns and provocateurs. But Internet free speech culture takes the First Amendment right of protection for speech and turns it into a demand for promotion of speech. Hence the spate of lawsuits filed by mostly conservative speakers against companies such as Twitter and Facebook over account suspensions and other disciplinary measures[103]: at their heart is the misguided belief that the right to free speech means the right to an audience. The Internet fetishizes engagement over education, controversy over quality, and attention over expertise.

These norms are in direct conflict with the norms of a university. While there are many competing ideas about the goal of higher education, and all universities fall short of the ideal, at the core of the educational project is the desire to learn more—about the world, about other people, about the nature of truth. That project requires discernment, not blind insistence on the value of hearing “both sides.” As Justice Felix Frankfurter explained in his concurring opinion in the 1952 case Wieman v. Updegraff, democracy is built on “disciplined and responsible” public opinion, and “[i]t is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion.”[104]

These habits are why, contrary to the claims of those who believe in the campus free speech crisis, college students as a group are more open-minded and supportive of free speech than the general population. A 2018 Gallup-Knight Foundation survey found that 70 percent of students “preferred their campus to be an ‘open learning environment’ where they might be exposed to offensive speech, while only 29 percent said they preferred a ‘positive’ environment where offensive speech is banned,” making them “more supportive of an open learning environment than U.S. adults overall.”[105] Indeed, “older people and Republicans actually exhibit less tolerance for free expression” than young, left-leaning individuals.[106] Recent studies have also indicated that student appreciation for free speech increases over their time in college, “suggest[ing] that college attendance may actually bolster a student’s support for free speech rather than undermine it.”[107] The number of universities with restrictive speech codes is falling, not rising, and “is currently at an all-time low.”[108]

Conclusion

In 2016, Floyd Abrams, one of the most prominent First Amendment lawyers in the country and the author of the book The Soul of the First Amendment, stated that the single greatest threat facing free speech today “comes from a minority of students[] who strenuously[] and . . . contemptuously, disapprove of the views of speakers whose view of the world is different from theirs, and who seek to prevent those views from being heard.”[109] Such a claim is shocking not only because it so grotesquely mischaracterizes the current state of free speech on college campuses, but because it ignores so many other urgent, alarming, and effective direct attacks on free speech on campuses and elsewhere.

The outsized focus on isolated, headline-grabbing incidents takes attention away from many pressing issues facing college campuses. Those who raise the alarm about universities’ growing intolerance for uncomfortable ideas and students’ alleged demands for safe spaces are largely silent, for example, about the passage of “campus carry” laws, which cater to students irrationally terrified of facing the world without the protection of firearms and create a truly troubling “safe space” that endangers not only the free expression, but also the actual lives, of their fellow students.[110] Self-proclaimed campus free speech defenders have little to say when a dean of students resigns after a right-wing propaganda outlet publicizes old tweets he wrote about racism,[111] or when the U.S. Education Department threatens to withdraw funding for a Middle East Studies program if it continues to emphasize “the positive aspects of Islam,”[112] or when university administrators impose gag rules on college rape victims.[113] They also have very little to say, indeed, about rampant sexual assault and sexual harassment on college campuses, or racialized threats targeting minority students.[114] These issues have a far greater chilling effect on free speech than the occasional student protest of a controversial speaker.

And what of the threat to free speech in the culture at large, led by the occupant of the highest office of the United States? What of Donald Trump’s belief that flag burners should be imprisoned or stripped of citizenship, a view shared by 67 percent of Republicans?[115] Or his desire to “open up our libel laws,” a proposition to which at least one Supreme Court Justice seems amenable?[116] What of his demand that the theater be a “safe and special place” for his Vice-President,[117] his demonization of the press,[118] his attacks on athletes who kneel during the national anthem,[119] and his equation of whistleblowing with treason?[120] Surely the open and repeated hostility to free speech demonstrated by the President of the United States, enforced by his loyal supporters in every branch of the government, is a greater threat than a handful of student protesters. President Trump has said that “it’s embarrassing for the country to allow protesters”[121] when you “don’t even know what side” they’re on; he has expressed longing for the “old days” when “we used to throw them out.”[122] The promoters of the myth of the campus free speech crisis would seem to agree.

The university “will function for the benefit of society, provided it is a center of independent thought.”[123] Its role is never more important than when free speech and democracy itself is under attack. The values promoted by the university—critical reflection, intellectual curiosity, independent thought—­are not only goods in themselves, but also an essential bulwark againt tyranny: “no totalitarian government is prepared to face the consequences of creating free universities.”[124]

The true threat to free speech on college campuses is posed not by university norms on free speech, but by the attack on those norms by the Internet culture of free speech. The Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates. Whatever else might be said in praise of such a model, it does little to promote knowledge or encourage a diversity of voices. The university model of free speech, by contrast, strives to achieve the “robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”[125] If we want to protect free speech, we should not only resist the attempt to remake college campuses in the image of the Internet, but consider the benefits of remaking the Internet in the image of the university.

 

[1] See, e.g., Jonathan Chait, Not a Very P.C. Thing to Say: How the Language Police are Perverting Liberalism, N.Y. Mag. (Jan. 27, 2015), https://nymag.com/intelligencer/2015/­01/not-a-very-pc-thing-to-say.html [https://perma.cc/­5H7J-FVUP]; Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyork­er.com/news/news-desk/trouble-teaching-rape-law [https://perma.cc/8KV9-T8CQ]; Greg Lu­kianoff & Jonathan Haidt, The Coddling of the American Mind, Atlantic (Sept. 2015), https://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/­399356/ [https://perma.cc/8PEM-LE7L]; Megan McArdle, Sheltered Students Go to College, Avoid Education, Bloomberg (Aug. 13, 2015), https://www.bloomberg.com/opinion/­articles/2015-08-13/sheltered-students-go-to-college-avoid-education [https://perma.cc/3W­YV-E388]; Judith Shulevitz, In College and Hiding from Scary Ideas, N.Y. Times (Mar. 21, 2015), https://www.nytimes.com/2015/03/22/­opinion/sunday/judith-shulevitz-hiding-from-scary-ideas.html [https://perma.cc/GA95-33­YJ]; Robby Soave, “Oppression Studies,” Actual Oppression Coming to American University, Reason (Jan. 24, 2016), https://reason.­com/2016/01/24/oppression-studies-actual-oppression-com/ [https://perma.cc/GJ2D-UHTH].

[2] Lewis F. Powell, Jr., The Attack on American Institutions, Address at the Southern Industrial Relations Conference 7 (July 15, 1970), https://scholarlycommons.law.wlu.­edu/cgi/viewcontent.cgi?article=1008&context=powellspeeches [https://perma.cc/56CN-RF­V9].

[3] Lewis F. Powell, Jr., Civil Liberties Repression: Fact or Fiction?, Richmond Times-Dis­patch, Aug. 1, 1971, at 1, 3.

[4] See Kathi Valeii, Kent State, Jackson State Survivors Talk Student Activism, Rolling Stone (May 4, 2018), https://www.rollingstone.com/culture/culture-features/kent-state-jack­son-state-survivors-talk-student-activism-629402/ [https://perma.cc/HV4W-93MQ].

[5] See Mary-Rose Papandrea, The Free Speech Rights of University Students, 101 Minn. L. Rev. 1801, 1840 (2017).

[6] Valeii, supra note 4.

[7] See discussion infra.

[8] Mary Anne Franks, The Cult of the Constitution (2019).

[9] Moira Weigel, Political Correctness: How the Right Invented a Phantom Enemy, Guardian (Nov. 30, 2016), https://www.theguardian.com/us-news/2016/nov/30/political-correctness-how-the-right-invented-phantom-enemy-donald-trump [https://perma.cc/YYE2-84YP].

[10] Chait, supra note 1.

[11] Scott Jaschik, “U Chicago to Freshmen: Don’t Expect Safe Spaces,” Inside Higher Ed (Aug. 25, 2016), https://www.insidehighered.com/news/2016/08/25/u-chicago-warns-incom­ing-students-not-expect-safe-spaces-or-trigger-warnings [https://perma.cc/D8WH-5LZ9]. As Heidi Kitrosser notes, much critique of supposed campus intolerance tends to conflate several disparate and poorly defined issues. Heidi Kitrosser, Free Speech, Higher Education, and the PC Narrative, 101 Minn. L. Rev. 1987, 1992–93 (2017) (“[T]here is tremendous imprecision throughout the public discourse. This is especially, though not exclusively, true in statements by anti-PC critics. Many commentators decry political correctness as a threat to free speech but leave unclear whether, by political correctness, they mean campus speech codes, informal social pressures, or something else. Similarly, in the 2014–2016 reports, PC critics refer in mocking but uniformly vague terms to such phenomena as trigger warnings, safe spaces, and microaggressions. Such imprecision impacts the quality of the debate considerably.”).

[12] Stephanie Saul, Dozens of Middlebury Students Are Disciplined for Charles Murray Protest, N.Y. Times (May 24, 2017), https://www.nytimes.com/2017/05/24/us/middlebury-college-charles-murray-bell-curve.html [https://perma.cc/5UH8-M4NM].

[13] See id.

[14] Id.

[15] Id.

[16] See Doug Lederman & Scott Jaschik, Amid Violence, Yiannopoulos Speech at Berkeley Canceled, Inside Higher Ed (Feb. 2, 2017), https://www.insidehighered.com/news/­2017­/02/02/violent-protests-visiting-mob-lead-berkeley-cancel-speech-milo-yiannopoulos [https:­//perma.cc/S7C5-9WH3].

[17] Id.

[18] Id.

[19] Thomas Fuller & Stephanie Saul, Berkeley Is Being Tested on 2 Fronts: Free Speech and Safety, N.Y. Times (Apr. 21, 2017), https://www.nytimes.com/2017/04/21/us/berkeley-ann-coulter-speech.html [https://perma.cc/NRL9-ZQD9].

[20] See Daniel Marans, Bernie Sanders Condemns Threats Against Ann Coulter Speech at Berkeley, Huffington Post (Apr. 22, 2017), https://www.huffpost.com/entry/bernie-sanders-ann-coulter-berkeley_n_58fb7006e4b00fa7de14bc3d [https://perma.cc/MZ9E-8AHH].

[21] Olivia Beavers, Warren on Coulter: ‘Let her speak’, The Hill (Apr. 25, 2017), https://thehill.com/homenews/news/330364-warren-on-coulter-let-her-speak [https://perma.­cc/P7QU-E937].

[22] ACLU Statement on Ann Coulter Speech, ACLU (Apr. 26, 2017), https://www.aclu.org/­news/aclu-statement-ann-coulter-speech [https://perma.cc/T3M2-J9W6].

[23] Krissy Eliot, Ann Coulter at Berkeley: Untangling the Truth, Cal. Mag. (May 6, 2017), https://alumni.berkeley.edu/california-magazine/just-in/2017-05-08/ann-coulter-berkeley-un­tangling-truth [https://perma.cc/JAG9-6PZM].

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Public Affairs, Milo Yiannopoulos Event Canceled After Violence Erupts, Berkeley News (Feb. 1 2017), https://news.berkeley.edu/2017/02/01/yiannopoulos-event-canceled/ [https://perma.cc/TD8K-NSGV].

[30] Media Release, Middlebury Police Dep’t., Police Close the Investigation into the Disturbance at Middlebury College Following the March 2, 2017 Presentation by Charles Murray (May 23, 2017), http://www.middleburypolice.org/files/Media_Release_17MB­000685.docx [https://perma.cc/A8CZ-TDLA].

[31] Mike Carter & Steve Miletich, Couple Charged with Assault in Shooting, Melee During UW Speech by Milo Yiannopoulos, Seattle Times (May 1, 2017), http://www.seattletimes.­com/seattle-news/crime/couple-charged-with-assault-in-shooting-melee-during-uw-speech-by-milo-yiannopoulos/ [https://perma.cc/5LCX-JJTJ].

[32] Id.

[33] Id.

[34] Franks, supra note 8, at 141; Alex Morey, Campus Disinvitations Set Record in 2016, FIRE (Dec. 20, 2016), https://www.thefire.­org/campus-disinvitations-set-record-in-2016/ [https://perma.cc/UC9D-829P].

[35] Morey, supra note 34.

[36] National Center for Educational Statistics, Fast Facts: Educational Institutions, https://nces.ed.gov/fastfacts/display.asp?id=84 [https://perma.cc/9ZGF-4V6L].

[37] Franks, supra note 8, at 142. Even if some disinvitations go unreported, it is difficult to imagine that their proportion could be anything more than miniscule.

[38] Zack Beauchamp, Data Shows a Surprising Campus Free Speech Problem: Left-Wingers Being Fired for Their Opinions, Vox (Aug. 3, 2018), https://www.vox.com/policy-and-pol­itics/2018/8/3/17644180/political-correctness-free-speech-liberal-data-georgetown [https://­perma.cc/W4AP-BBYP].

[39] Adam Johnson, NYT’s Campus Free Speech Coverage Focuses 7-to-1 on Plight of Right, Fairness & Accuracy in Reporting (Nov. 15, 2017), https://fair.org/home/nyts-campus-free-speech-coverage-focuses-7-to-1-on-plight-of-right/ [https://perma.cc/9WZY-GHTN].

[40] See Franks, supra note 8, at 147–48.

[41] See Simon Parkin, Gamergate: A Scandal Erupts in the Video-Game Community, New Yorker (Oct. 17, 2014), https://www.newyorker.com/tech/annals-of-technology/gamergate-scandal-erupts-video-game-community [https://perma.cc/NFR6-34FK].

[42] Erin Alberty, Anita Sarkeesian Explains Why She Canceled USU Lecture, Salt Lake Trib. (Oct. 16, 2014), http://archive.sltrib.com/article.php?id=58528113&itype=CMSID [https://­perma.cc/5CBD-4Q86].

[43] Franks, supra note 8, at 147.

[44] Id.

[45] Id.

[46] Alberty, supra note 42.

[47] NPR Staff, One Feminist Critic’s Battle with Gaming’s Darker Side, WBUR News (Oct. 18, 2014), https://www.wbur.org/npr/357194775/one-feminist-critics-battle-with-gamings-darker-side [https://perma.cc/56NQ-MZFE].

[48] Alberty, supra note 42.

[49] Id.

[50] Id.

[51] Colleen Flaherty, Old Criticisms, New Threats, Inside Higher Ed (June 26, 2017), https://www.insidehighered.com/news/2017/06/26/professors-are-often-political-lightning-rods-now-are-facing-new-threats-over-their [https://perma.cc/2V9Q-WTBV].

[52] A case that, like so many other supposed incidents of campus suppression of conservative ideas, was more complicated than media coverage indicated. See Noah Berlatsky, How Right-Wing Media Has Tried to Stifle Student Speech at Evergreen State College, Pac. Standard (June 14, 2018), https://psmag.com/education/the-real-free-speech-story-at-evergreen-college [https://perma.cc/BN6K-YAK6].

[53] Eoin Higgins, Threats to Campus Speech Don’t Alarm Media When They Come from the Right, Fairness & Accuracy in Reporting (June 15, 2017), https://fair.org/home/threats-to-campus-speech-dont-alarm-media-when-they-come-from-the-right/ [https://perma.cc/9TS5-YBKU].

[54] Colleen Flaherty, ‘Concession to Violent Intimidation,’ Inside Higher Ed (June 1, 2017), https://www.insidehighered.com/news/2017/06/01/princeton-professor-who-criticized-trump-cancels-events-saying-shes-received-death [https://perma.cc/YQX6-8HRM].

[55] Id.

[56] Colleen Flaherty, AAUP Condemns Threats Against Faculty Members, Inside Higher Ed (June 23, 2017), https://www.insidehighered.com/quicktakes/2017/06/23/aaup-condemns-threats-against-faculty-members [https://perma.cc/A5SX-69HK].

[57] Colleen Flaherty, Threats for What She Didn’t Say, Inside Higher Ed (June 19, 2017), https://www.insidehighered.com/news/2017/06/19/classicist-finds-herself-target-online-threats-after-article-ancient-statues [https://perma.cc/RA74-G5W2].

[58] Valerie Strauss, New Conservative ‘Watch List’ Targets Professors for Advancing ‘Leftist Propaganda,’ Wash. Post (Dec. 1, 2016), https://www.washingtonpost.com/news/­answer-sheet/wp/2016/12/01/new-conservative-watchlist-targets-professors-for-advancing-leftist-propaganda/ [https://perma.cc/BZ82-UAUF].

[59] See Campus Reform, https://www.campusreform.org/ [https://perma.cc/9NCY-V5JB] (last visited Nov. 14, 2019); College Fix, https://www.thecollegefix.com/ [https://per­ma.cc/LX46-J9KZ].

[60] Am. Ass’n of Univ. Professors, Targeted Online Harassment of Faculty (Jan. 31, 2017), https://www.aaup.org/news/targeted-online-harassment-faculty [https://perma.cc/P5V2-YQ­JR].

[61] Amy Binder, There’s a Well-Funded Campus Industry Behind the Ann Coulter Incident, Wash. Post (May 1, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/­05/01/theres-a-well-funded-campus-outrage-industry-behind-the-ann-coulter-incident/?ut­m_term=.112bf3354229 [https://perma.cc/378R-M4G5].

[62] Id.

[63] Id.

[64] Id.

[65] Ctr. for Media and Democracy, Exposed: The State Policy Network—The Powerful Right-Wing Network Helping to Hijack State Politics and Government 2, 21 (2013), https://www.alecexposed.org/w/images/2/25/SPN_National_Re­port_FINAL.pdf [https://per­ma.cc/6HAJ-RYMZ].

[66] Id.

[67] See Franks, supra note 8, at 141 (citing Ctr. for Media and Democracy, supra note 65, at 2).

[68] Foundation for Individual Rights in Education, Spotlight on Speech Codes 2017, https://www.thefire.org/resources/spotlight/reports/spotlight-on-speech-codes-2017/ [https:­//perma.cc/FKM2-TAFR].

[69] Jim Sleeper, The Conservatives Behind the Campus ‘Free Speech’ Crusade, Am. Prospect (Oct. 19, 2016), http://prospect.org/article/conservatives-behind-campus-%E2%80%98free-speech%E2%80%99-crusade [https://perma.cc/37FZ-T7N3].

[70] Nonprofit Explorer, Foundation for Individual Rights in Education Inc: Full Text of “Form 990” for Fiscal Year Ending June 2017, ProPublica, https://projects.propublica.org/­nonprofits/organizations/43467254/201703069349300405/IRS990, [https://perma.cc/H2K3-DXGE].

[71] Sleeper, supra note 69.

[72] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

[73] ACLU Statement on Ann Coulter Speech, supra note 22.

[74] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969).

[75] Id. at 508, 513. 

[76] Id. at 508–09 (citation omitted).

[77] Christina E. Wells, Free Speech Hypocrisy: Campus Free Speech Conflicts and the Sub-Legal First Amendment, 89 U. Colo. L. Rev. 533, 558 (2018) (footnote omitted).

[78] Tinker, 393 U.S. at 525 (Black, J., dissenting).

[79] Jeremy Bauer-Wolf, Free Speech Laws Mushroom in Wake of Campus Protests, Inside Higher Ed (Sept. 16, 2019), https://www.insidehighered.com/news/2019/09/16/states-pass­ing-laws-protect-college-students-free-speech [https://perma.cc/9ZHL-E7MD].

[80] See Goldwater Inst., Campus Free Speech Act, https://gold­waterinstitute.org/wp-content/uploads/2019/04/Campus-Free-Speech_Model-Legislation_­Web.pdf [https://perma.cc/RQ75-RMSF].

[81] See Stanley Kurtz et al., Campus Free Speech: A Legislative Proposal 3, Goldwater Inst. (2019), https://goldwaterinstitute.org/wp-content/uploads/2019/03/Campus-Free-Speech-A-Legislative-Proposal_Web.pdf [https://perma.cc/4JGH-4DL2].

[82] Franks, supra note 8, at 143.

[83] Jeremy W. Peters, In Name of Free Speech, States Crack Down on Campus Protests, N.Y. Times (June 14, 2018), https://www.nytimes.com/2018/06/14/us/politics/campus-speech-protests.html [https://perma.cc/AF27-9JFL].

[84] Kurtz et al., Campus Free Speech: A Legislative Proposal 20, Goldwater Inst., https://goldwaterinstitute.org/wp-content/uploads/cms_page_media/2017/2/2/X_Ca­mpus%20Free%20Speech%20Paper.pdf [https://perma.cc/L4UE-APX6].

[85] Ralph Wilson, Koch Network’s Student Protest Ban Disguised as “Campus Free Speech,” UnKoch My Campus (Mar. 1, 2017), http://www.unkochmycampus.org/mar-1-2017-protest-ban-sold-as-free-speech/ [https://perma.cc/LNB5-N699].

[86] Todd Richmond, University of Wisconsin Approves Free Speech Policy that Punishes Student Protesters, Chi. Trib. (Oct. 6, 2017), http://www.chicagotribune.com/news/nation­world/midwest/ct-university-of-wisconsin-protest-punishment-20171006-story.html [https://­perma.cc/2E7Z-URWV].

[87] Id.

[88] Id.

[89] Id.

[90] Tricia Culligan, University of Tennessee Shuts Diversity Office After Sex Week, Gender Controversy, U.S. News (May 21, 2016), https://www.nbcnews.com/news/us-news/univer­sity-tennessee-shuts-diversity-office-after-sex-week-gender-controversy-n578101 [https://­perma.cc/XZW9-PVS7]; John K. Wilson, The Tennessee Legislature’s Attack on Free Speech, Academe Blog (Feb. 12, 2017), https://academeblog.org/2017/02/12/the-tennessee-legislatur­es-attack-on-free-speech/ [https://perma.cc/4HFU-27SG].

[91] Wilson, supra note 90.

[92] Id.

[93] Id. Wilson wrote a much more positive follow-up post in May 2017 after the bill was rewritten in consultation with FIRE to remove its most censorious aspects. See John K. Wilson, The Tennessee Legislature’s Defense of Campus Free Speech, Academe Blog (May 11, 2017), https://academeblog.org/2017/05/11/the-tennessee-legislatures-defense-of-camp­us-free-speech/ [https://perma.cc/84VM-WXRW].

[94] See Zeynep Tufekci, It’s the (Democracy-Poisoning) Golden Age of Free Speech, WIRED (Jan. 16, 2018), https://www.wired.com/story/free-speech-issue-tech-turmoil-new-censor­ship/ [https://perma.cc/3YQD-WWYW] (“Creating a knowledgeable public requires at least some workable signals that distinguish truth from falsehood. Fostering a healthy, rational, and informed debate in a mass society requires mechanisms that elevate opposing viewpoints, preferably their best versions. To be clear, no public sphere has ever fully achieved these ideal conditions—but at least they were ideals to fail from. Today’s engagement algorithms, by contrast, espouse no ideals about a healthy public sphere.”)

[95] Elle Hunt, Milo Yiannopoulos, Rightwing Writer, Permanently Banned from Twitter, Guardian (July 20, 2016), https://www.theguardian.com/technology/2016/jul/20/milo-yiann­opoulos-nero-permanently-banned-twitter [https://perma.cc/EZJ4-C28N].

[96] Claire Landsbaum, Alt-Right Troll Milo Yiannopoulos Uses Campus Visit to Openly Mock a Transgender Student, The Cut (Dec. 15, 2016), https://www.thecut.com/2016/12/­milo-yiannopoulos-harassed-a-trans-student-at-uw-milwaukee.html [https://perma.cc/8UV9-B5BU].

[97] Maya Oppenheim, UC Berkeley Protests: Milo Yiannopoulos Planned to ‘Publicly Name Undocumented Students’ in Cancelled Talk, Independent (Feb. 3, 2017), https://www.indep­endent.co.uk/news/world/americas/uc-berkely-protests-milo-yiannopoulos-publicly-name-undocumented-students-cancelled-talk-illegals-a7561321.html [https://perma.cc/359S-XM­TP].

[98] Claire Landsbaum, Alt-Right Troll’s Visit to UC Berkeley Canceled After Student Protests, The Cut (Feb. 2, 2017), https://www.thecut.com/2017/02/u-c-berkeley-canceled-milos-visit-after-student-protests.html [https://perma.cc/DS3E-B4XV].

[99] Wilson, supra note 85.

[100] Id.

[101] Wilson, supra note 83.

[102] Id.

[103] Jane Coaston, The Facebook Free Speech Battle, Explained, Vox (May 14, 2019), https://www.vox.com/technology/2019/5/6/18528250/facebook-speech-conservatives-trum­p-platform-publisher [https://perma.cc/Y2ST-VLXF].

[104] 344 U.S. 183, 196 (1952) (Frankfurter, J., concurring).

[105] Jeffrey Adam Sachs, The ‘Campus Free Speech Crisis’ Is a Myth. Here Are the Facts., Wash. Post (Mar. 16, 2018), https://www.washingtonpost.com/news/monkey-cage/wp/2018/­03/16/the-campus-free-speech-crisis-is-a-myth-here-are-the-facts/ [https://perma.cc/5CDS-WXR2].

[106] Catherine Rampell, Older People and Republicans, Threatening Free Speech, Wash. Post (Nov. 2, 2017), https://www.washingtonpost.com/news/rampage/wp/2017/11/02/older-peo­ple-and-republicans-threatening-free-speech/ [https://perma.cc/R5BM-6TR­P].

[107] Sachs, supra note 105.

[108] Id.

[109] Jeff Robbins, Floyd Abrams Speaks Freely to Political Correctness on America’s Campuses, Observer (May 9, 2016), https://observer.com/2016/05/floyd-abrams-speaks-freely-to-political-correctness-on-americas-campuses/ [https://perma.cc/CF3Z-RWSW]. 

[110] Franks, supra note 8, at 152.

[111] Wesley Jenkins, Dean of Students at U. of Alabama Resigns After Breitbart Resurfaces Old Tweets, Chron. Higher Ed. (Sept 6, 2019), https://www.chronicle.com/article/Dean-of-Students-at-U-of/247090 [https://perma.cc/9Q79-NMJ6].

[112] Caroline Kelly, Education Department Says Duke-UNC Middle East Studies Program Favors Islam over Christianity, Judaism, CNN (Sept 19, 2019), https://www.cnn.com/­2019/09/19/politics/education-department-middle-east-studies-islam-christianity-judaism/­index.html [https://perma.cc/G9AQ-S97L].

[113] Tyler Kingkade, He Admitted to Sexual Assault, But She’s the One They Tried to Silence, Huffington Post (Mar. 8, 2016), https://www.huffpost.com/entry/college-sexual-assault-gag-orders_n_56ddd17ae4b0ffe6f8ea278c [https://perma.cc/F5VC-KGC5].

[114] Franks, supra note 8, at 152.

[115] Jamie Ballard, 67% of Republicans Say People Who Burn the US Flag Should be Stripped of Citizenship, YouGov (July 11, 2019), https://today.yougov.com/topics/­politics/articles-reports/2019/07/11/flag-burning-citizenship-trump-poll [https://perma.cc/6­AEM-6ZRL].

[116] Adam Liptak, Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, N.Y. Times (Feb. 19, 2019), https://www.nytimes.com/2019/02/19/us/politics/­clarence-thomas-first-amendment-libel.html [https://perma.cc/PXZ3-V4YT].

[117] Joanna Walters, Trump Demands Apology from Hamilton Cast After Mike Pence Booed, Guardian (Nov. 19, 2016), https://www.theguardian.com/us-news/2016/nov/19/mike-pence-booed-at-hamilton-performance-then-hears-diversity-plea [https://perma.cc/RVR6-Y8WN].

[118] See Brian Stelter, Why Trump’s Constant Attacks on an Independent Press Are So Dangerous, CNN (Sept. 2, 2019), https://www.cnn.com/2019/09/02/media/trump-press-attacks-media/index.html [https://perma.cc/G69Y-T3S7].

[119] Jacqueline Thomsen, Trump Renews Attacks on NFL Players, Calling for Suspensions, The Hill (Aug. 10, 2018), https://thehill.com/homenews/administration/401217-trump-attacks-protesting-nfl-players-they-want-to-show-outrage-at [https://perma.cc/YD56-EBEJ].

[120] Maggie Haberman & Katie Rogers, Trump Attacks Whistle-Blower’s Sources and Alludes to Punishment for Spies, N.Y. Times (Sept. 26, 2019), https://www.nytimes.com/­2019/09/26/us/politics/trump-whistle-blower-spy.html [https://perma.cc/B27G-GTMC].

[121] Felicia Somnez, Trump Suggests that Protesting Should Be Illegal, Wash. Post (Sept. 5, 2018), https://www.washingtonpost.com/politics/trump-suggests-protesting-should-be-illeg­al/2018/09/04/11cfd9be-b0a0-11e8-aed9-001309990777_story.html [https://perma.cc/4C7T-BR5T].

[122] Id.

[123] Wieman v. Updegraff, 344 U.S. 183, 197 (1952) (Frankfurter, J., concurring).

[124] Id.

[125] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969) (alteration in original) (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

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