Jack M. Balkin

Understanding the Constitutional Revolution

E live in extraordinary times. In the past year the Supreme Court of the United States has decided an election and installed a president. In the past ten years it has produced fundamental changes in American constitutional law. These two phenomena are related. Understanding the constitutional revolution that we are living through means understanding their connections. The new occupant of the White House—we will call him “President” after he has successfully prevailed in an election conducted according to acceptable constitutional norms—has taken the oath of office and has begun to govern. But his claim to the presidency is deeply illegitimate. He and the political party that he leads seized power through the confluence of two important events that would have caused widespread outrage and produced vigorous objections from neutral observers if they had occurred in a third world country. The first is the disenfranchisement of black voters in Florida in violation of the Voting Rights Act of 1965. Concerned about alleged

How mass media simulate political transparency

Abstract Without mass media, openness and accountability are impossible in contemporary democracies. Nevertheless, mass media can hinder political transparency as well as help it. Politicians and political operatives can simulate the political virtues of transparency through rhetorical and media manipulation. Television tends to convert coverage of law and politics into forms of entertainment for mass consumption, and television serves as fertile ground for a self‐proliferating culture of scandal. Given the limited time available for broadcast and the limited attention of audiences, stories about political strategy, political infighting, political scandal and the private lives of politicians tend to crowd out less entertaining stories about substantive policy questions. Political life begins to conform increasingly to the image of politics portrayed on television. Through a quasi‐Darwinian process, media events, scandals, and other forms of politics‐as‐entertainment eventually dominate and weed out other ...

Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds

Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This essay discusses the basic questions of freedom and regulation in virtual environments. There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is the collective right of the designers and players to build and enhance the game space together. This is the freedom to design together. These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play. Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment to avoid regulation of their business practices. However, game designers will lose First Amendment protection to the extent that they encourage real-world commodification of virtual items. The article concludes by discussing different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.

Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence

II. LEGAL COHERENCE FROM THE STANDPOINT OF THE LEGAL OBJECT . . . . . . . . . . . . . . . . . . 10 A. The Different Meanings of Coherence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Legal Coherence as Consistency of Justification . . . . . . . . . . . . . . . . . . . . . . . 12 C. The Dialectic of Hypothetical and Actual Justification . . . . . . . . . . . . . . . . . . . 14

The Constitutionality of the Individual Mandate for Health Insurance

n engl j med 362;6 nejm.org february 11, 2010 482 O President Barack Obama and Democrats in Congress have passed a health care reform bill, conservative groups are likely to challenge parts of it as unconstitutional, arguing that it oversteps Congress’s powers. A key target will be the individual mandate, which is designed to coax uninsured persons into purchasing insurance. The term “individual mandate” is misleading for two reasons. First, the law would not actually require all individuals to purchase insurance. The mandate would not apply to dependents, persons receiving Medicare or Medicaid, military families, persons living overseas, persons with religious objections, or persons who already get health insurance from their employers under a qualified plan. Second, it is not actually a mandate. It is a tax, which people would not have to pay if they purchased health insurance. The House bill imposes a tax of 2.5% on adjusted gross income if a taxpayer is not part of a qualified health insurance program. The Senate bill imposes what is called an “excise tax” — a tax on transactions or events — or a “penalty tax” — a tax for failing to do something (e.g., filing your tax return promptly). The tax is levied for each month that an individual fails to pay premiums into a qualified health plan. Congress has the power to pass legislation that falls within any of its powers enumerated in the Constitution. There are two obvious sources of congressional power. The first, described in the General Welfare Clause, is the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” The second, laid out in the Commerce Clause, is the power “to regulate commerce . . . among the several states.” The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country.1 This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally. Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollutioncontrol equipment: they can pay the tax or install the equipment. Because the textual argument for Congress’s authority under the General Welfare Clause is obvious and powerful, opponents have tried to argue that the tax is unconstitutional because it is a “direct” tax. Under the Constitution, “direct” taxes must be apportioned to state population. That is, if State A has twice as many people as State B, the amount of revenue collected from State A must be twice that collected from State B. Like most federal taxes, the individual mandate is not apportioned to state population. The classic examples of direct taxes are taxes on real estate and capitation or “head” taxes on the general population, under which people are taxed no matter what they do. In one of the Supreme Court’s first cases, Hylton v. United States, Justice William Paterson held that if there is any doubt, taxes should be classified as indirect rather than direct.2 The individual mandate is not a direct tax. The House’s version is a tax on income. Under the Sixteenth Amendment, income taxes do not have to be apportioned, regardless of the source of the income. The Senate’s version is an excise or penalty tax. It is neither a tax on real estate nor a general tax on individuals. It is a tax on events: individuals who are not exempted are taxed for each month they do not pay premiums to a qualified plan. If the individual mandate falls within Congress’s power to tax and spend, no other constitutional authority is necessary. However, The Constitutionality of the Individual Mandate

Law, Music, and Other Performing Arts

Today the conductor, more than any one musical figure, shapes our musical life and thought. That may not be how things should be, but it is the way they are. In a future, fully automated age, it may be that the conductor, along with all performing musicians, will be obsolete. Musical creators are working toward that day, assembling electronic scores that, once put on tape, never vary.... But until that unfortunate day is here, let us be thankful that there still remain interpretive musicians to synthesize the product of the composer. For without the interplay between the minds of the creator and interpreter, music is not only stale, flat and unprofitable. It is meaningless.... Musical notation is an inexact art, no matter how composers sweat and strive to perfect it. Symbols and instructions on the printed page are subject to various interpretations, not to one interpretation.

What Brown Teaches Us About Constitutional Theory

This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Browns key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time. Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities. Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.

The Constitution of Status

Democracies are societies. Behind the formal features of democratic selfgovernance-whether regular elections or majority rule-lie social organization and social structure. Like other societies, democracies have varying degrees of social stratification and social hierarchy, group competition and group subordination. But democracies are special in this respect: Their political ideals seem partly in tension with their social structures. Democracy is more than a commitment to a set of procedures for resolving disputes. It is more than a culture of respect for those procedures. Democratic ideals seem to require a further commitment to democratic forms of social structure and social organization, a commitment to social as well as political equality. Imagine a democracy organized according to strict lines of racial caste, in which all citizens have equal rights to express their views, vote and hold office, but in which job opportunities and life chances are practically and definitively limited by membership in ones social group. Government discrimination based on caste membership is strictly forbidden, but the social hierarchy remains rigidly in place even without the overt support of law. The citizens of this society take their commitment to voting and freedom of speech very seriously, yet as a society they seem equally committed to their traditional social structure. In one sense this society is a democracy, and yet in another it is very antidemocratic. Indeed, it is hard to imagine this society precisely because we think that accepting the democratic ideal of equal citizenship is inconsistent with social caste; this principle will either ultimately corrode a

Principles, Practices, and Social Movements

Consider two current controversies in American law and politics: the first is whether the expansion of copyright, trademark, and other forms of intellectual property conflicts with the free speech principle; the second is whether government collection and use of racial data (in the census or in law enforcement) violates the antidiscrimination principle. What do these controversies have in common? Both involve constitutional challenges that call into question the legitimacy of existing practices. More importantly, these examples teach us something about how constitutional principles operate. In each case, controversy arises as people apply a longstanding principle to a longstanding practice—a practice that heretofore has not been understood to be implicated by the principle. People exercise creativity by applying the principles to these previously uncontroversial practices, and as they do, they can reshape the meaning of both the principle and the practice. The claim that a longstanding practice violates a longstanding principle draws into question not only the legitimacy of the practice, but also the authority and the scope of the principle. While some argue that the free speech principle delegitimates expansion of copyright terms and other intellectual property rights, others insist that the challenged practice is fully consistent with the free speech principle: restrictions on infringement of intellectual property rights regulate conduct, not speech, and the fair use defense and the idea/ expression distinction adequately protect free speech interests in

The Canons of Constitutional Law

Academic and political debates about what texts are canonical in the liberal arts have been occurring for some time. In this Commentary, Professors Balkin and Levinson discuss canons and canonicity in the study of law in general and of constitutional law in particular. Canons, they contend, are not simply collections of texts. Skills, approaches, forms of argument, standard examples, and even stock stories can be equally canonical to a discipline or culture. The authors argue that the most significant differences between how canons are formed in law and in the liberal arts stem from differences in institutional context. First, because law schools are professional schools, concerns of pedagogy, cultural literacy, and academic theory diverge more in law than they do in the liberal arts and hence form distinct if overlapping canons. Second, because legal canons rely heavily on pronouncements of courts and legislatures, liberal arts scholars have more control over their canon than do legal scholars. Nevertheless, legal scholars do have some agency in forming their canon, and the authors contend that the canon of constitutional law needs serious revision. The current study of constitutional law is too much centered on the opinions of the Supreme Court and lacks comparative and historical perspective. The narrowness of current canonical materials has had unfortunate effects for constitutional theory and legal education, encouraging too much specialization and focusing attention away from basic questions about the justice of the legal system. A revitalized constitutional canon should pay attention to structural questions that do not often come before courts, and it should include nonjudicial interpreters of the Constitution, particularly representatives of political and social movements whose interpretations often shape and influence the direction of constitutional interpretation.