I posted a very short but I think sort of interesting paper on the idea of transformative constitutionalism, including reactionary tc: papers.ssrn.com/sol3/papers....
01.03.2026 22:32
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I posted a very short but I think sort of interesting paper on the idea of transformative constitutionalism, including reactionary tc: papers.ssrn.com/sol3/papers....
A very short primer on thinking about the tariff-refund “mess”: balkin.blogspot.com/2026/02/the-.... Short version: easy to solve if anyone really wanted to.
Is SSRN limbo worse than law review submission limbo? (Feb 5 submission, approval pending)
New episode of Supreme Betrayal, on legal limits on US military intervention abroad: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/us-...
podcasts.apple.com/us/podcast/u...
open.spotify.com/episode/2kUV...
Next an experiment with and about AI and the Constitution.
On culture dominating politics (my view is that the 2 most important figures in late 20th century Irish political history were Sinead O’Connor and Shane MacGowan, not any politician): www.yahoo.com/entertainmen...
Grab any chance you have to see Bill Irwin in On Beckett, now at the Shakepeare Theatre in DC. One of the greatest acting performances I’ve ever seen. The material is funny (it’s Beckett [& Irwin] after all) & thought-provoking too.
Received page proofs of my next (& last?—3 co-edited books in process) book, w/ Bojan Bugaric, Constitutionalism & Its Discontents (U Chicago Press, publishing in the fall). Bojan came up w/ the title & I said, “Sure, what are they?” & then we were off to the races.
B/c administration officials routinely lie and congressional Rs (and maybe Ds) aren’t interested in the truth, the most interesting thing about AG Bondi’s appearance today (literally, in the literal sense) is that she appears to have told her makeup person to tone things down.
New episode of Supreme Betrayal available: ICE & the Constitution begins w/ attempted murder of Stephen Field & ends w/ conversation on “the Constitution” & popular protests: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/ice...
podcasts.apple.com/podcast/id17...
And who—aside from the Harvard Corporation, apparently—would have predicted that the nebbish-y Alan Garber would turn out to be the best, or at least most important, Harvard President since James Conant?
Re Trump’s Harvard TACO: I restate my observation early in the series of events, “Don’t f— with the ruling class."
I may be old-fashioned but I don’t think that judicial opinions should include phrases like “perfidious lust for human power” even when they reach results I like—for prudential reasons (more likely to be reversed) and more important because being a judge means cultivating a habit of being judicious.
Don’t think I’ve seen this in my feed: Apparently the deadline for nominations for the Nobel Peace Prize is Feb 1. Who’s up for nominating Tim Walz & Jacob Frey as representatives of the people of Minneapolis? Cf Carl von Ossietzky 1936.
I just participated in a press briefing on aspects of ICE and Minneapolis. My comments come near the end (don’t count on the courts, go to the streets and maybe the courts will follow): www.youtube.com/live/yVhFIvy...
As a graduate of Yale Law School I think I’m entitled to say that every time JD Vance says something about the state of the law he shows that he went to Yale Law School. (The federal officer removal statute exists so that federal officers won’t be tried in kangaroo courts.)
Wait, isn’t this sort of thing supposed to happen on TACO Tuesday? www.cnn.com/politics/liv...
I can gin up an argument that budget allocations are Art II actions. Similarly w/ removals of some of those not lawfully present. “Gin up” is the operative term. But recall the broccoli argument
2/ Pretty sure the answer has to be “Yes,” as everyone seems to assume. But what's the underlying analysis? & btw has Trump’s DoJ argued against applying the 1st Am to his action on text-based grounds?
1/ A thought provoked by another post: Given the 1st Am’s 1st word, does the Am impose any limits on presidential action pursuant to Art II powers (not delegated to Pres by statutes)? A 1985 article by Mark Denbaux asks parallel question re judicial orders pursuant to inherent judicial authority.
Mark Denbaux’s 1985 article “The First Word of the First Amendment” addresses 1st Am’s application to judicial orders. I don’t know if there’s an article sayng that 1st Am’s plain text doesn’t impose any limits on presidential action pursuant to Art II powers (not delegated to Pres by statutes).
What’s next after the Minneapolis general strike (if that’s what it is—not clear from the reports I’ve seen)? The Battleship Potemkin?
2/ that the Court would reverse a conviction—more likely, I think, that a jury would refuse to convict relying on lay and cultural (not legalistic) notions of causation and free expression
1/ Walz & Frey have obstructed the enforcement of federal law by their statements in almost exactly the same way that Charles Schenck obstructed the draft in the leaflet he distributed. SCOTUS upheld Schenck’s conviction in 1919. Though the decision has been repudiated I wouldn’t be too confident...
2026’s 1st episode of Supreme Betrayal, on sedition and the Democrats’ video on refusing to obey unlawful orders.
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/sed...
open.spotify.com/episode/5ztl...
podcasts.apple.com/us/podcast/s...
Well, technically I suppose that Trump did receive the Nobel Peace prize.
“Suffered internal bleeding” = “was bruised “?
Nerdy legal reminder: “It’s a crime to interfere with federal officers performing their jobs” isn’t the same as “Federal officers performing their jobs are immune from liability for actions they take in the course of performing their jobs.” Remove & arrest the people interfering, don’t shoot them.
I think I might have been the first to note publicly (Dec. 26) what’s reported here (don’t know how to link to my initial post—I’m an old): www.nytimes.com/2026/01/09/u...
Defining Heritage Americans: My daughter’s mother (i.e., my wife) is eligible for membership in the Colonial Dames. My grandparents came to the US in the early 1900s. Is my daughter a Heritage American? (Don’t ask about her maternal grandfather.) Why not just say “white” and have done with it?
No signed opinions in argued cases before Jan 1 this Term and in the 2022 Term. Used to get at least 1 in Dec & not infrequently a few in Dec and a few in Nov. Conditions on the Court appear to be such that JR can’t even be a good manager. Pretty clearly an effect of the shadow/emergency docket.