2/10/1967: The 25th Amendment is ratified.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
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Second Amendment Roundup: Sensitive Places Require Government-Provided Armed Security
History teaches that government must provide security if serious about a mandatory “gun-free zone.”
The Second Amendment, Sensitive Places, and Comprehensive Government Security compendium by Dr. Angus McClellan has just been posted on SSRN. This comprehensive survey of historic "gun free zones" demonstrates that when the government required its citizens to disarm to enter such locations, it protected them with armed security. Holding a Ph.D. in American government and public law from Claremont Graduate University in California, McClellan has been a visiting professor at Hampden-Sydney College in Virginia and a postdoctoral research associate with the James Madison Program at Princeton University.
The Supreme Court in Bruen held that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," and to justify a modern regulation "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." In other words, once government regulates "arms-bearing conduct," the government bears the burden to show that a longstanding historical tradition existed going back to the Founding to justify that modern-day gun control law and to demonstrate a historical exception to the Amendment's "unqualified command." McClellan's research will be invaluable for scholars and litigators researching America's historical tradition of firearm regulation as it concerns so-called "sensitive places."
The historical scope of the research extends from colonial through early antebellum times (in some cases including English antecedents). Original quotes and sources with links are set forth in extensive footnotes. Vast evidence exists that security was provided in each of the 13 original states (plus Vermont) in courthouses and legislative assemblies. Evidence was also located that 10 of the original states had security at polling places, but I suspect that further evidence will be found that it existed at all of the states.
After a short introduction, the paper includes a brief section reminding us that the Founders were aware that disarming laws made citizens worse off. In the immortal words of Cesare Beccaria, such arms-control laws "worsen the condition of the attacked while improving that of the attackers; they do not reduce murders, but increase them, because there is greater confidence in attacking the unarmed than the armed."
The first major unit in the study is entitled "Law Required Vulnerable People to be Armed." From the earliest settlements, colonial laws required those able to bear arms to carry them to church. Arms were also required to be taken to public assemblies and carried while traveling. For instance, in 1770 Georgia required that every person liable to bear arms in the militia "shall carry with him a gun, or a pair of pistols, in good order and fit for service, with at least six charges of gun-powder and ball, and shall take the said gun or pistols with him to the pew or seat, where such person shall sit, remain, or be, within or about the said church or place of worship…." The other colonies had similar laws whose goal was to provide for the safety of attendees by requiring that they be armed.
In short, yes, there were sensitive locations at the time of the Founding. And when Founding-era governments did not have the resources to secure all such locations, the Founders had a solution to that problem. They required men to bring their firearms to church. This is unlike the approach we see today in states like New Jersey, New York, California, and Hawaii where government-mandated gun free zones render their citizens defenseless. It was precisely the opposite of the approach of such states today– rather than making the sensitive location a gun free zone, they required citizens to arm to protect themselves.
The next unit, entitled "Courthouses, Legislatures, and Polling Places Were Secure," provides extensive documentation supporting the types of government buildings that Bruen identified as sensitive places. Not surprisingly, reflecting courtroom security in the states, the 1789 Act to Establish the Judicial Courts of the United States provided for the appointment of U.S. marshals to attend the federal courts. This is the same Marshals service whose duties today include "protecting the federal judiciary."
Similarly, sergeants-at-arms and doorkeepers were appointed to keep order in and regulate admission into the various legislatures. As one of many examples, in 1786 such officials attended both the house of delegates and the senate in Virginia. There were many examples in the colonial and state records of North Carolina (e.g., in a 1738 incident) of the serjeant-at-arms being ordered by the House to take people into custody and to then bring them to the chamber to answer charges.
Armed security was also provided at polling places. In Virginia in 1742, two undersheriffs "with drawn Swords across the Doors" were placed as guards to allow voters to pass in and out of a courthouse to vote. Maryland even made it part of its Constitution of 1776 to require sheriffs in every county to attend elections for both houses of the legislature.
The next and final unit is entitled "School gun restrictions." History proves that schools were not gun free zones at the Founding. Schools were not considered sensitive places because the arms restrictions applied only to students over whom the school exercised in loco parentis authority, and not to faculty. In 1745, Yale College had the following regulation that illustrates its in loco parentis relationship with the students: "If any Scholar Shall keep a Gun or Pistol, or Fire one in the College-Yard or College, or Shall Go a Gunning, Fishing, or Sailing, or Shall Go more than Two Miles from College upon any Occasion whatsoever … he Shall be fined not exceeding Two Shillings." Similar restrictions were adopted as other colleges proliferated.
I cannot do justice here to this massive study, which is 83 pages single-spaced. Suffice it to say that it is invaluable for documenting the historical fact that governments provided armed protection for spaces that today would be called "sensitive places." Without armed protection by the state, a "gun-free" zone is not consistent with "this Nation's historical tradition of firearm regulation," and the Second Amendment's default rule applies that the people have a right to bear arms in such places.
* * *
On Wednesday February 11, the Third Circuit will rehear Koons v. Attorney General New Jersey en banc. The panel decision, with a strong dissent by Judge Porter, upheld most of New Jersey's place bans as "sensitive places," albeit the state provides no armed protection at such places. See my post "Antonyuk's and Koons' Historical Feet of Clay." Tune in for a lively argument.
My House Judiciary Subcommittee Testimony Against the "Preserving a Sharia-Free America Act"
I will be testifying against this proposed legislation - which would authorize exclusion or deportation of all or most non-citizen Muslim immigrants.
Tomorrow, I will be testifying against the proposed "Preserving a Sharia-Free America Act" at a hearing before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government. My written testimony, already submitted to the Subcommittee is available here. Here is an excerpt from the Introduction, summarizing my testimony:
I am grateful for the opportunity to address some of the important issues raised by the proposed "Preserving a Sharia-Free America Act." My conclusions about this bill are clear and unequivocal: It is manifestly unconstitutional, in violation of the First Amendment. In addition, the vast majority of immigrant adherents of Sharia law – a category that includes all or most Muslims – pose no threat and there is no good reason to bar them from the United States.
The proposed legislation states that "Any alien in the United States found to be an adherent of Sharia law by the Secretary of State, Secretary of Homeland Security, or Attorney General shall have any immigration benefit, immigration relief, or visa revoked, be considered inadmissible or deportable, and shall be removed from the United States." This provision amounts to blatant discrimination on the basis of religious belief. As such, it violates both the Free Speech Clause and the Free Exercise Clause of the First Amendment.
In addition, expelling virtually all Muslim immigrants would needlessly harm many thousands of people and is not necessary to combat terrorism or any other threat to the United States. Far from seeking to undermine America's liberal democratic values, most Muslim immigrants – like those of other faiths – have come precisely because of those values. If enacted, the legislation would harm national security by playing into the hands of radical Islamists and terrorists.
The rest of the testimony covers the constitutional and policy issues in more detail, including explaining why there is no immigration exception to the First Amendment which allows exclusion and deportation of immigrants on the basis of their speech and religious beliefs. It also explains why discrimination on on the basis of religion is unconstitutional even with respect to rights and government benefits that are not themselves constitutional rights. These points are supported by Supreme Court precedents backed by conservative justices.
No Preliminary Injunction in Challenge to Minnesota Election Deepfake Law, but Challenge Goes On
From Kohls v. Ellison, decided today by Eighth Circuit Chief Judge Steven Colloton, joined by Judges James Loken and Duane Benton:
In May 2023, the Minnesota legislature enacted a law regulating deep fakes. The relevant text reads as follows:
A person who disseminates a deep fake or enters into a contract or other agreement to disseminate a deep fake is guilty … if the person knows or reasonably should know that the item being disseminated is a deep fake and dissemination:
(1) takes place within 90 days before an election;
(2) is made without the consent of the depicted individual; and
(3) is made with the intent to injure a candidate or influence the result of an election….
A deep fake is defined as "any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct … that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct." … [A later] amendment expanded the scope of the prohibition to include the periods "within 90 days before a political party nominating convention" or "after the start of the absentee voting period." As amended, the statute further provides that a state or local candidate who violates the law must forfeit any nomination or elected office, and is disqualified from any future appointment to office.
Allegedly Tortious Disclosure of Candidate's Sexual Assault Allegations in Judicial Campaign
"Defendant Cline also showed former Defendant Joshua Woolsey [whose wife was then running for judge against plaintiff] an unredacted copy of the [sexual assault police report filed by the plaintiff] ... after Joshua Woolsey made a public records request for all records pertaining to Plaintiff."
From Judge Brian Davis (M.D. Fla.) in Shorstein v. Hardwick (M.D. Fla.):
The facts giving rise to this case follow Plaintiff's claim of being sexually battered on April 20, 2018. Plaintiff was participating in her bachelorette party with dinner and drinks at several local bars. As her friends trickled away, Plaintiff remained and continued drinking alcohol. She could not recall the circumstances completely, but she remembered calling for an Uber and then being sexually assaulted in the passenger seat of a vehicle.
Plaintiff submitted to a sexual assault examination at the Family Life Center. Plaintiff also filed a police report and contacted Defendant Undersheriff Matthew Cline ("Cline") to arrange for an interview between Plaintiff and law enforcement officers from the St. John's Sheriff's Office ("SJSO").
Law enforcement officers began investigating Plaintiff's claims immediately and were able to discover the alleged assailant's name. Officers also interviewed the bartender serving Plaintiff immediately before the incident. The bartender stated that the pair were very close at the bar and may have been kissing before leaving together. Video and photographic evidence showed the two dancing and touching while at the bar.
The alleged assailant denied assaulting Plaintiff. He claimed that before leaving together the two kissed in his truck. As he was driving Plaintiff home, he claims she began touching his crotch before Plaintiff asked him to pull over where the pair engaged in what he described as consensual sexual intercourse.
He admitted to ripping Plaintiff's panties when he pulled them to the side, and Plaintiff was photographed with injuries to her left wrist after the incident. Plaintiff left the vehicle and waived down another driver and awoke in that person's car. Ultimately, Plaintiff declared that she did not want the investigation to go further once the alleged assailant was identified, and law enforcement ceased further efforts. Defendant Cline found the alleged assailant's version of events to be more corroborated by the evidence.
Recent Books on the Constitution
My seminar picks for 2025 (and every year since 2005)
Each fall, I teach a seminar called Recent Books on the Constitution. I initially designed this course when I visited Georgetown in 2005. At that time, because I tend to read what relates directly to my current projects, I felt that I was not keeping up with the literature. By assigning recent books on the Constitution to read as part of my teaching, I would actually read them. This has really worked for me. I have now read a lot of books on the Constitution. The complete list of all the books I have assigned is below.
Since 2005, I have assigned 100 books by 91 authors, with James Fleming, Sandy Levinson, Gerard Magliocca, Eric Segall, Dan Farber, Jonathan Gienapp, Philip Hamburger, Kim Roosevelt, and David Bernstein each making more than one appearance. Over the years, I assigned four books in manuscript before publication. This past fall, I assigned the manuscript of the book I am now writing on libertarianism for the real world. Here are the five "recent books on the Constitution" I assigned for fall of 2025:
- Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique (2024)
- Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (2024)
- Neil Siegel, The Collective Action Constitution (2024)
- Yuval Levin, American Covenant: How the Constitution Unified Our Nation and Could Again (2024)
- Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023)
I select books I think I ought to read–either because of the subject or the author. I then hold off reading them myself so I can read them at the same time as the students. This enables me to react to the books along with them, and for me to remember the nuances of the books for class discussion.
The seminar format is to read 6 books, taking 2 weeks on each book, with the author coming to the class during the second week to discuss the book. The first book is now always one of mine to use as a trial run and to give the students an idea of where I am coming from when we discuss the other books. When books are longer than 250 pages, I ask the author to tell me which 250 pages I should assign. If I assign much more than 125 pages per week, I fear the students won't read them, or won't read them carefully enough. To help assure that they do, students submit one-page summaries of each half of the book (graded pass-fail). On the day before the author's visit, they submit a 5500 character critique of the book, which I send to the author electronically the day before class. (They all read them.) When the class ends, there is no exam or paper for the students to write or for me to grade. We are done!
Students consistently tell me that the course is extremely enriching, and helps them develop their critical skills. They are never expected to read whole books and rarely asked to concisely formulate their own objections to scholarship. It is also empowering for them to see how well they are able to find the holes in a professor's book-length presentation. I find that, collectively, the students are able to nail the weaknesses of every book (except mine, of course).
[Note to law professors: I have a budget to pay for the authors' travel expenses. But now that we all have access to Zoom teaching, this seminar format can be replicated anywhere at zero cost. Wouldn't it be great if there were a dozen or more such book seminars around the country? Try it. I promise you will love it.]
If you click on READ MORE you will see why teaching this class has been enormously rewarding for me. Offer my heartfelt thanks to all these authors for trekking to DC to discuss their books with my students.
2024
- Jonathan Turley, The Indispensable Right: Free Speech in an Age of Rage (2024)
- Jeffrey Rosen, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America (2024)
- Robert Cottrol & Brannon Denning, To Trust the People with Arms: The Supreme Court and the Second Amendment (2023)
- Nathan Chapman & Michael McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (2023)
Anthony Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (2023)
2023
- James Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (2022)
- Paul Moreno, How the Court Became Supreme: The Origins of American Juristocracy (2022)
- Vincent Philip Munoz, Religious Liberty and the American Founding (2022)
- Justin Dyer & Kody Cooper, The Classical and Christian Origins of American Politics (2022)
- Kermit Roosevelt, The Nation That Never Was: Reconstructing America's Story (2022)
Democratizing Criminal Justice Through Crime Victims' Rights
Steve Twist and I propose increasing involvement by crime victims as a way to reduce politicization of criminal justice processes.
The NYU Law Democracy Project is promoting dialogue across ideological and political lines, their goal being to help break through today's partisanship. They've launched the "100 Ideas in 100 Days" series, featuring a wide range of contributions from voices across the political spectrum in the United States and around the world.
My friend Steve Twist and I have made a contribution to their effort by proposing increased attention to crime victims in the criminal justice process. The introduction to our essay explains how elevating the role of crime victims could help improve public confidence in the system:
Growing citizen distrust is a serious problem facing the nation's criminal justice system—and, as a result, our democracy. Over the last decade, we have seen arguments coming from both sides of the political divide about politicization, unfair charges, and unjust results. These concerns about politicization are not tied to one Administration or the other but have been growing for years.
The usual solution offered is to increase the professionalization of the system, bring in more lawyers or judges and insulate them from political pressures and the like. Or to place more emphasis on historic norms that often seem to shift, depending on who is assessing those norms.
A more viable solution is not to turn to the "professionals" but to increase participation by ordinary citizens—those who have the most at stake in the criminal justice system: crime victims and their families. Such an approach is broadly democratic, as it removes power from the government (whoever might be in control). A more victim-centric system places power in the hands of those who have less incentive to politicize outcomes and more incentive to focus on violent and other clearly non-political crimes.
You can read our whole essay here.
Plaza Can Be Temporarily Closed for Construction, Without Violating First Amendment
The National Park Service had announced "a temporary closure of Columbus Circle" in D.C. for "the renovation of the fountain, cleaning of the statues, plaza and turf renovations to the park site."
From Mytych v. National Park Service, decided Thursday by Judge Trevor McFadden (D.D.C.):
David Mytych helps run a volunteer nonprofit called FLARE USA{, a volunteer nonprofit organization committed to political expression and advocacy about authoritarianism, impeachment, and constitutional accountability}. For months, FLARE maintained a demonstration [in Columbus Plaza] outside Union Station in Washington, D.C., to express its views on various political issues. FLARE had a National Park Service ("NPS") permit to do so. {FLARE picked Columbus Plaza for its position as the "main pedestrian gateway between Union Station and the United States Capitol" ….} But toward the year's end, NPS told Mytych and FLARE that a construction project required the demonstration to move to a nearby park….
The First Amendment ensures "that members of the public retain strong free speech rights when they venture into public streets and parks." These areas are traditional public fora, meaning they "occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate." …
That said, … [c]ourts endorse [content-neutral] time, place, and manner restrictions [on speech in traditional public fora] to address a variety of significant governmental interests.
Defendant's Giving E-Mail Address as Prosecutor's Name + "suxcox696969@gmail.com" Isn't Contempt of Court
Readers, these are trained pro se litigants; do not try this at home (especially since other courts might disagree).
From Commans v. Dunbar, decided Friday by Judge Jennifer M. Perkins, joined by Judge Kent E. Cattani:
Daniel Commans appeals his conviction and punishment for contempt of court for providing a vulgar email address with a coded insult to the prosecutor during a virtual court hearing. We reverse because Commans' behavior in providing the email address, though sophomoric, did not warrant a contempt finding, much less 180 days in jail….
On August 29, 2024, the Lake Havasu Municipal Court held an arraignment hearing for Commans on misdemeanor charges for resisting arrest and criminal trespass. Commans attended virtually and was not represented by counsel. At the outset of the hearing, the judge asked Commans to provide an email address. Commans provided two email addresses, stating that he had trouble getting emails in the past. He spelled out the second one: "Y-A-E-G-R-S-U-X-C-O-X-6-9-6-9-6-9@gmail.com." To confirm, the judge read it back letter by letter.
Neither the judge nor the prosecutor, Charles Yaeger, reacted to the email address on the record, and the hearing proceeded uninterrupted. The court appointed an attorney to represent Commans and continued the arraignment to September 12, 2024. Later that day, the court issued a written order notifying Commans that, at the September 12 hearing, he would have to "show cause why [he] should not be held in contempt of Court for providing the … email address."
Letter to the Editor
Last week, I submitted this letter to the Editor of the New York Times. It was not selected, so I will publish it here:
Re: Why The Times Is Expanding Its Supreme Court Coverage (Feb. 2) and Federal Courts Undercut Trump's Mass Deportation Campaign (Feb. 1):
Twice in the span of twenty-four hours, the Times felt compelled to refer to me as a "conservative" law professor. And this routinely happens in other media outlets. I would admit the label is accurate, but why is it necessary? To be sure, describing a professor's politics puts the reader on notice about potential biases, but this rule does not seem to be applied uniformly. Based on my searches of the Times's archives, law professors on the political left are routinely introduced without any label, while conservative law professors--in the rare instances when they are quoted--are more likely to be introduced as conservatives. I found one article that introduces a conservative law professor and a liberal law professor in the same sentence, but only the former is so described. I am grateful that the Times looks to balance out its journalism, but reporters should let a scholar's view speak for itself, without red or blue flags.
Josh Blackman
Houston, Texas
I have a detailed list of these articles, which I may publish another time.
In related news, the Washington Post published several letters to the editor in response to the op-ed I wrote with Ilya Shapiro on the Dean situation in Arkansas. I think our piece made a bigger splash in higher education circles than in legal circles.
Use of Still from "Girls Do Porn" Video to Criticize Later Employer of Alleged Participant Is Fair Use, not Copyright Infringement
From Judge George Daniels' opinion Tuesday in MCM Group 22 LLC v. Perry (S.D.N.Y.), which strikes me as quite correct, given the fair use doctrine:
Plaintiff is a limited liability company and the owner by assignment of a registered copyright for the Video. Plaintiff's predecessor-in-interest is a non-party to this suit and is referred throughout the Complaint as "Jane Doe." In 2015, Jane Doe appeared in the Video, which was filmed by the founders and operators of Girlsdoporn.com and Girlsdotoys.com (collectively, "GDP"). As revealed by a series of criminal cases [which led to guilty pleas], GDP was a criminal sex trafficking enterprise, in which the website's operators recruited victims to appear in its videos by fraudulently representing that the videos would never be posted online or released in the United States.
On December 14, 2021, Judge Janis L. Sammartino of the Southern District of California … issued a restitution order in Garcia's case … that provided, inter alia, that the victims specified in the order "hold[ ] superior right, title, and interest in the images, likenesses, and videos depicting that [victim] produced by GDP" and "shall have and recover all property that GDP … took from them, including images, likenesses, videos, and copyrights." Jane Doe was one of the specified victims, so the Restitution Order awarded her "superior right, title, and interest" in the Video. She subsequently assigned her rights in the Video to Plaintiff "for the purpose of prosecuting the use of copies, still images, and derivatives of the [Video] through DMCA takedown notifications and, when necessary, civil actions."
On June 13, 2022, Defendant Lyndon Perry published a post (the "Tweet") on the social media platform Twitter (currently known as X). The Tweet included a composite of two images: a still frame from the Video superimposed onto a screenshot of an online article from Forbes. The still frame from the Video depicts a fully clothed woman—who is identified as "Jessica" in the Video's title—sitting alone on a bed. The still frame includes text of an apparent conversation between the woman and an off-screen interviewer in which the woman states that she is studying business and marketing.
The screenshot from the Forbes article shows a profile of an individual, who is identified as the head of institutional lending at Celsius Network, in the publication's 30 Under 30 list for 2020. The Tweet juxtaposes these two images, suggesting that they are the same woman.
The Tweet was Perry's second post in a larger thread. The first post in the thread shows an advertisement for Celsius Network next to a screenshot of a Reuter's article entitled, "Crypto Firm Celsius Pauses All Transfers, Withdrawals, as Markets Tumble." Defendant then replied to this post with the Tweet, which included the composite image and the message "Same company btw."
MCM Group (the assignee of the copyright in the videos) sued for copyright infringement, but the court rejected the claim:
Today in Supreme Court History: February 9, 1937
2/9/1937: NLRB v. Jones & Laughlin Steel Corp. argued.
Open Thread
What’s on your mind?
Immigration Massively Reduces Budget Deficits
A new Cato Institute study provides the most comprehensive analysis of this issue to date.
A new Cato Institute study provides a comprehensive overview of the fiscal impact of immigration to the United States over thirty years, and finds that immigrants have reduced budget deficits by a massive $14.5 trillion from 1994 to 2023. Here is the authors' summary of the results:
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Every year from 1994 to 2023, immigrants have paid more in taxes than they received in benefits.
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Immigrants generated nearly $10.6 trillion more in federal, state, and local taxes than they induced in total government spending.
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Accounting for savings on interest payments on the national debt, immigrants saved $14.5 trillion in debt over this 30-year period.
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Immigrants cut US budget deficits by about a third from 1994 to 2023, and fiscal savings grew to $878 billion in 2023 (Figure 1).
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Noncitizens accounted for $6.3 trillion of the $14.5 trillion debt savings.
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College graduate immigrants accounted for $11.7 trillion in savings, while non–college graduates accounted for $2.8 trillion.
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The cohort of immigrants entering from 1990 to 1993, just before data collection began in 1994, was fiscally positive $1.7 trillion, and was still positive after 30 years in 2022–2023 (Table 1).
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Even including the second generation (see Box 1 for definitions), who are mostly still children who will become taxpayers soon, the fiscal effect of immigration was positive every year.
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Immigrants in all categories of educational attainment, including high school dropouts, lowered the ratio of deficit to gross domestic product (GDP) during the 30-year period.
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Without the contributions of immigrants, public debt at all levels would already be above 200 percent of US GDP—nearly twice the 2023 level and a threshold some analysts believe would trigger a debt crisis.
My Cato colleague David Bier (one of the coauthors of the study) provides further analysis of the results here. There are previous studies on this topic, such as the Congressional Budget Office's analysis in 2024. But the new Cato study is notable for its comprehensive nature, covering effects on all three levels of government, and separately considering many different types of immigrants, including both legal and illegal, immigrants with different education and skill levels, and more.
The overwhelming nature of the evidence here should all but bury the fiscal case for immigration restrictions, though I expect restrictionists to keep making the argument, regardless. I made some additional points against the fiscal argument for restrictionism in this post, and in greater detail in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
Obviously, there are many other rationales for immigration restriction, such as claims that immigration increases crime, spreads harmful cultural values, damages political institutions, and more. Restrictionists also argue that governments have a general right to exclude migrants for any reason they want, either because governments are analogous to homeowners, or because a particular ethnic or racial group are the true owners of a given country, and thereby have a "self-determination" right to exclude members of other groups. I critique these arguments and others in Chapters 5 and 6 of Free to Move and in various other publications, such as this one.
By the same token, I do not believe that the positive fiscal impact is the best rationale for ending or reducing immigration restrictions. In my view, it is far less significant than the immense negative impact of immigration restrictions on liberty and human welfare, including that of receiving-country natives, as well as that of would-be migrants.
But the fiscal case for restrictionism has special significance for some types of libertarians and conservatives who cannot otherwise rationalize the massive restrictions on liberty imposed by immigration restrictions, and therefore love to quote Milton Friedman's misleading line that "[y]ou cannot simultaneously have a welfare state and free immigration." It turns out you can, and immigration actually eases the fiscal burden of welfare spending.
Seven Pages Of Nixon Grand Jury Testimony Reveal The Real Threat Of the Deep State
Nixon's enemies within his own administration were spying on and trying to subvert the elected President.
The Watergate Special Prosecution Force (WSPF) did not terminate after President Nixon resigned August 8, 1974. Indeed, the prosecutors continued to investigate many facets of the Nixon presidency for some time. Some of these actions are stunning. Geoff Sheppard posted a memo that has to be seen to be believed: In September 1974, Phillip Lacovara suggested to Special Prosecutor Leon Jaworski that Ford's pardon of Nixon violated WSPF regulations, and was thus invalid. While the President usually has the absolute power to grant pardons of federal offenses, President Ford constrained his own powers by agreeing to the WPSF regulations. You wonder where Jack Smith and Robert Mueller got the idea that everything the President does is obstruction of justice?
Speaking of obstruction, there is a fascinating article in the New York Times Magazine by James Rosen, titled "The Secret History of the Deep State." He reveals seven pages of never-before-seen grand jury testimony from 1975 between former-President Nixon and WSPF prosecutors. The story is very long, and I cannot do justice to it in a single post.
The biggest takeaway is that an Navy enlisted man, Yeoman Charles Radford, who worked in the White House, was a mole. No, not for the Soviets, but for the Joint Chiefs of Staff. He would routinely make copies of documents from Nixon administration officials and share them with people in the Pentagon. Radford would pilfer documents from Henry Kissinger and Alexander Haig and make copies of them.
Selected to accompany General Haig, Kissinger's deputy, on trips to Vietnam and Cambodia, Radford deployed all his gifts for theft, including raiding the general's briefcase. According to "Silent Coup," Radford turned over "a huge government envelope overflowing with hundreds of pages of documents." . . .
In June 1971, having received superlative reviews from General Haig, Radford was chosen to accompany Kissinger on a tour of Asian capitals. On a stopover in Pakistan, the accompanying press were told falsely that Kissinger had fallen ill; in fact, he flew secretly to Beijing to finalize Nixon's trip. "Don't get caught," warned Radford's direct supervisor, Adm. Robert Welander, ahead of his departure. Once again, the yeoman snatched every document within reach, including rifling Kissinger's briefcase. Radford collected so much material that he enlisted a contact at the embassy in New Delhi to ship it back to the Pentagon via secure diplomatic pouch.
The purpose of this espionage was to check the incumbent president from taking actions that the deep state opposed. You have to read through a lot of background to get to this shocking takeaway. Here is the key excerpt, where Nixon reveals to the prosecutors about the deep state "can of worms":
That's when Nixon warned the prosecutors not to open "that can of worms," adding, "There is even more, because [Radford] not only ——"
Ruth, the lead prosecutor, interjected: "We are not opening it up."
"Yeoman Radford was not only there," the ex-president persisted, "but he was a direct channel to the Joint Chiefs of Staff."
There it was, finally — the secret Nixon had sought to keep under wraps: It was not the far left that most actively sought to sabotage the Nixon-Kissinger foreign policy but the hard right, not lowly pencil-pushers in the civil service but the most senior commanders at the Pentagon.
The prosecutors had heard enough. They did not want Nixon to elaborate. Jay Horowitz, the last questioner, cut in.
"Sir, if I might take us back now to ——"
Nixon would not be deterred.
"This indicates to the members of the grand jury, if I might address them for a moment, why it is that" the Radford project "had to be top secret." He added: "Particularly, I didn't want the Joint Chiefs of Staff involved."
Nixon had no intention of exposing the affair's full depths; even here, he wished not to join in vilification of the services, something that was pervasive when Vietnam veterans were often jeered on return to U.S. soil as "baby killers."
After some additional questioning on other subjects, Horowitz consulted the grand jurors, then declared, "No further questions."
Ten minutes later, with the grand jurors and the stenographer hustled from the room, Ruth and Davis conducted a final interview with the witness. The prosecutors' memos, previously unpublished, show that they interrogated Nixon on four additional topics, including proposals, captured on the tapes but never enacted, to hire thugs to attack antiwar demonstrators.
Do you see what happened? Nixon was fully aware that there was a deep state in his own administration. He employed the "Plumbers" to plug those leaks. But he would only reveal the depth of the deep state before a secret grand jury investigation. The Watergate Prosecutors, who were part of the DOJ deep state, did not want Nixon to talk about the Pentagon deep state. And for five decades, this testimony was sealed, until Rosen reported on it.
The Deep State was real in Nixon's time:
Donald Trump Makes the Case for Decentralized Control of Elections Great Again
Trump's call to "nationalize elections" leads prominent election law scholar Rick Hasen to reverse his longstanding support for such a policy.
Donald Trump's recent calls for Republicans to "nationalize elections" have led UCLA law Prof. Rick Hasen - one of the nations leading election law scholars - to reconsider his longstanding support for such nationalization. In an insightful recent article in Slate, Hasen explains the reasons for this change of heart:
If you look around the world at advanced democracies from Australia to Canada, they have an independent governmental body in charge [of] all national elections. The body imposes uniform standards for registration, ballot access, voting machinery, and much more….
In The Voting Wars [a 2012 book], I argued that by joining other advanced democracies we could decrease the amount of partisan fighting and litigation over election rules, increase the competence of election administration, and assure we have a system run with integrity and fair access to voting….
Donald Trump has caused me to abandon this argument. As I wrote in the New York Times last summer, when the president tried to impose his authority over various aspects of American elections via an executive order: "What I had not factored into my thinking was that centralizing power over elections within the federal government could be dangerous in the hands of a president not committed to democratic principles." At this point, American democracy is too weak and fragile to have centralized power over elections in the hands of a federal government that could be coerced or coopted by a president hell-bent, like Trump, on election subversion. Courts have ruled that parts of Trump's executive order are unconstitutional because the president has no role to play in the administration of elections.
Trump's comments on nationalizing elections ironically prove the point that we should not nationalize elections. He apparently wants to target the administration at blue states, doing who-knows-what to make it harder for people to vote for Democrats. He desperately fears a Congress controlled by Democrats that could check his and his administration's power…..
Hasen adds that the Supreme Court's turn towards unitary executive theory magnifies these risks:
The Supreme Court provides another reason for not nationalizing our elections. The court could soon fully embrace that "unitary executive" theory that there can be no exercise of executive power by the federal government that ultimately does not report to the president. (It's an argument with an exception likely to be applied to the United States Federal Reserve, in order to protect the value of the justices' 401(k)s.) The unitary executive theory, if adopted, would mean that presidential control over an election body might be constitutionally required. The Trump experience shows why that would be far too risky.
If, as is likely, the Supreme Court makes an exception for the Federal Reserve, I think the main motive for that will be maintaining the integrity and independence of the monetary system, not just protecting the justices' retirement accounts. That said, Hasen is right that unitary executive theory magnifies the risks of nationalizing elections.
I myself am a longtime advocate of decentralizing most functions of government as much as possible, primarily because it increases opportunities for people to "vote with their feet," enhances and protects diversity, and reduces the dangers of political polarization. I have never been as enthusiastic about decentralization of election administration as about most other policies, because I think few if any people engage in foot voting based on the former. Many people decide what jurisdiction to live in based on such factors as taxes, job opportunities (heavily influenced by government policy), crime, education, and housing policy. Very few move because State A is better at election administration and vote counting than State B. Also, like Hasen, I recognize that some other federal democracies, such as Canada, do reasonably well with centralized election administration.
That said, as Hasen now recognizes, there are serious dangers to election centralization in our system, ones having little to do with foot voting. For these types of reasons, I have never been a supporter of election centralization, though I wasn't as strongly opposed to it as I am on many other issues. Hasen is right to note that Trump's actions make the dangers of centralization greater and more obvious than they might have been in the past. Thus, it is clear that I, too, underrated the benefits of electoral decentralization, albeit perhaps not as much as Hasen did.
As Hasen notes, Article 1, Section 4 of the Constitution the Constitution gives states primary responsibility for election administration, subject to override by congressional legislation. It is unlikely that Congress will enact any significant legislation along those lines anytime soon, and any such effort should be opposed. Unless and until Congress does act, courts should strike down Trump's efforts to nationalize elections by executive fiat, as several have already done in response to his attempts to change voter ID rules by executive order and gain access to state voter rolls.
Finally, kudos to Hasen for his willingness to publicly reverse a position he had prominently advocated in the past, when the evidence warrants doing so. Many academics and other public intellectuals either stick to their guns no matter what the evidence indicates, or shift without ever acknowledging that they previously held the opposite view.
I myself have shifted a few positions over the years, but none of these reversals were on issues as central to my work or my worldview as nationalizing election administration was for Hasen. For example, it wasn't hard for me to change my view on unitary executive theory, because UET was never a central commitment for me to begin with. Other academics and intellectuals can learn from Hasen's example.
My Thoughts On Typos In Blog Posts
Earlier today, I wrote a post about whether a minor typo in a clerkship application should disqualify the candidate. Fittingly, my post had typos. I think I've fixed them, but maybe there are others.
I thought it might be useful to give my own thoughts on proofreading. Blogging is for me a form of release. I have lots of thoughts in my head, and writing them down helps me to make sense of things. My primary audience when I write is not you (sorry) but is me. Longtime readers may recall that while clerking for Judge Boggs, I was not allowed to blog. So I made my blog private, and continued writing blog posts that no one would see. (Well, a few friends had the password, but the site was not for public consumption.) When my clerkship finished, all of the posts were made public. To be sure, some posts I write are intended to influence public discourse, but most of my blogging is introspective.
To that end, typos don't bother me. I want to make sure my writing is clear and understandable, but my goal is not perfection. Each subsequent round of review takes time that I could be using to do something else. If I were to ensure that each post was flawless, I would end up writing far less. That is not a tradeoff I find worthwhile.
There is another aspect of my writing process that may not be obvious. I often have very discrete blocks of time to write, and I do not wish the project to extend beyond that block. Maybe I have 30 minutes before class starts to pump something out. Or it is late at night, I'm getting tired, and I need to wrap up a post before I call it a night. Today, for example, I had about 30 minutes on the elliptical, in which I conceived, wrote, and published the clerkship post. (I keep my laptop on a music stand adjacent to the elliptical so I can type while working out.)
You might ask, why don't I just pause the project when the time block finishes, and resume later. I'm sure I could fix errors after some sleep. But that wait is agonizing for me. My goal is to sort through my thoughts as quickly as possible, and move onto the next topic. To leave a post unpublished would make me keep coming back to it over and over again. I doubt I would be able to fall asleep if a project was still not fully developed. Once I hit the "Publish" button I can sign off and move on to the next project.
There are a few regular readers who email me typos. I will usually fix these promptly. I promise, I will respond pleasantly. Comments about typos will not be read.
For those curious, I wrote this post in a single five-minute block, after having thought about it for the past hour or so. I proof-read it once.
