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The Embodiment of Sovereignty: Outrages, Section 1983 Litigation, and the Federalism Revival

April 2025April 2025Norman W. Spaulding*

A remarkable number of canonical Section 1983 cases and many other less well-known civil rights cases involve extraordinary violence—brutality that cannot be described either as a bureaucratically rational, dispassionate expression of state power, or as marginally disproportionate in relation to the legally authorized level of force incident to the state’s monopoly on violence. They instead involve what the drafters of Section 1983 called “outrages”—extraordinary excess, a level of violence that is not merely disproportionate, but unbridled, not merely painful, but severe, degrading, abusive, extended, grotesque, gratuitous, orgiastic, carnivalesque, barbaric, and all too often fatal for Black people. What accounts for this cruelty (and the apparent pleasure taken in inflicting it) on the part of officers of the state? Why does it persist?

Reading across a range of interdisciplinary sources on extravagant violence, I argue that it involves the interaction of a number of elements: the fantasy of finding/generating legal certainty in the imposition of bodily suffering, the enactment of social and political domination (including controlling color and gender lines), the role of terror and physical abuse in relationships structured by dependency, and ambivalence in officers’ embodiment of sovereignty (officers who are both bound by and always potentially above the law). Extraordinary violence was also well known to the drafters of Section 1983. Unfortunately, the modern Court’s limitations on the Section 1983 cause of action and remedies betray the text of the statute and its unmistakable legislative purpose to provide redress for “outrages.”

INTRODUCTION

The exception explains the general and itself. . . . It brings everything to light more clearly than the general itself. After a while, one becomes disgusted with the endless talk about the general—there are exceptions. If they cannot be explained, then neither can the general be explained.

—Søren Kierkegaard¹

The landscape of Section 1983 precedent is littered with dead, mutilated bodies. It is saturated with blood. The children strewn across this landscape who are not dead themselves (shot in the back, even the face)² have been beaten, forcibly sterilized,³ and abused in other ways.⁴ Private homes have been ransacked,⁵ burst asunder.⁶ The houses of detention that dominate the landscape⁷ reek of fecal matter, the stench of burning flesh, pestilence, and countless other indignities.⁸ Time itself is seized and obliterated for the wrongfully convicted who linger for decades in prison.⁹

I refer here not to cases involving ordinary displays of the state’s monopoly on violence—the monopoly which political scientists and sociologists tell us must be held by the state and its law enforcement officers.¹⁰ Nor do I refer to the fact, insisted upon by Robert Cover, that while the exercise of judicial review may check the state’s monopoly on violence, it also rationalizes that violence.¹¹ “Legal interpretation,” Cover trenchantly observes, “takes place in a field of pain and death.”¹² Courts are implicated, inexorably, he insists, in the state’s monopoly on violence.¹³

These are not the cases to which I refer. However painful and even fatal the ordinary operation of law can be, the cases to which I refer do not involve bureaucratically rational, efficient, dispassionate expressions of state power.¹⁴ Nor are they cases in which brutality is marginally disproportionate in relation to the legally authorized level of force incident to the state’s monopoly on violence—cases, that is, in which rational, efficient, dispassionate expressions of state power happen to exceed the legal threshold of “excessive force” or “cruel and unusual punishment” or “discriminatory purpose.”¹⁵ These cases, tragic as they are, are instances of ordinary legal error, lying at the “sometimes ‘hazy border between excessive and acceptable force.’ ”¹⁶

The class of cases to which I refer involve what the drafters of Section 1983 called “outrages”—extraordinary excess. Violence that is not merely disproportionate, but unbridled, not merely painful, but severe, degrading, abusive, extended, grotesque, gratuitous, orgiastic, carnivalesque, barbaric, and all too often fatal.¹⁷ Less commonly observed is the fact that this form of violence is also very often deeply intimate, even erotic in the sense in which George Battaille understood erotic excess (a “transgression of borders [that] sets us in intimacy with the other”), though unlike the loving transgressions he describes, the “sovereignty” exercised in these cases is not in the service of “friendship, truth, compassion, and the welcoming of differences.”¹⁸ Difference is instead annihilated, and suffering is inflicted proximately, often by hand, far from conventional bureaucratic forms of action at a distance. Extraordinary excess is not merely intimate, but in some cases sadistic—perpetrated, that is, by officers who appear to take pleasure in the suffering they inflict.¹⁹ And while this violence can be brazenly public, a spectacle,²⁰ it is very often privately inflicted, sometimes withheld from public scrutiny by conspiracies of silence and deceit.²¹

What explains this form of state violence in Section 1983 cases, many of which are landmarks in the development of the law and procedure of civil rights enforcement? If James Monroe must be arrested on false suspicion of murder, why must his wife be made to stand naked in the living room during the arrest, his six children beaten?²² If Adolph Lyons has not perfectly complied with an officer’s request to raise his hands during a traffic stop, if he complains after his hands are slammed back to his head, why must he be placed in a chokehold until he passes out, “spitting up blood and dirt,” having “urinated and defecated” on himself when he regains consciousness?²³ If Larry Hope must be disciplined for falling asleep and arriving late to forced labor on a chain gang in a prison, why must he be handcuffed to a hitching post shirtless in the sun for seven hours?²⁴ Why must he be deprived of bathroom breaks? And why would a corrections officer carry water out to the hitching post only to taunt Mr. Hope by giving it to a prison dog and then spilling it on the ground before Mr. Hope in the sweltering heat? If Keith Hudson legally deserved punishment for getting into an altercation with prison guards, why, after he’d been restrained in handcuffs and shackles, was he repeatedly punched in the mouth, eyes, chest, and stomach while a guard held him down?²⁵ Why did the supervisor on duty not only watch the beating, but tell the officers involved with acidic irony “not to have too much fun”?²⁶ If Javid Iqbal must be detained on immigration charges in a maximum security facility on completely false suspicion of connections to the September 11th attacks, why did the officers kick him “ ‘in the stomach, punch[] him in the face, and drag[] him across’ his cell without justification”?²⁷ Why must he be subjected to “serial strip and body-cavity searches when he posed no safety risk to himself or others”?²⁸ Why must he be denied the right to pray and subjected to religious slurs?

Why are there so many replications of these cases?²⁹ And why are these outrages so often color-coded?³⁰

In some of the canonical cases, the Supreme Court has upheld a right to relief for the underlying constitutional violations. The experience of Mr. Monroe and his family underlies the Court’s landmark 1961 decision reviving Section 1983 as a federal cause of action from its Jim Crow dormancy. The Court upheld the use of Section 1983 for constitutional violations by state actors even when the plaintiff would presumably have a cause of action under state common law for at least some of the relevant harm.³¹ Larry Hope’s suffering underlies the Court’s determination that, for purposes of overcoming the affirmative defense of qualified immunity, some conduct is so obviously unlawful that there need not be a near-exact precedent on the books alerting the officer to this fact.³² Any reasonable officer would know the conduct was unlawful.

In other cases, however, the Court has denied relief and denied even the right to seek federal judicial review. These are the circumstances in Lyons, the 1983 case requiring that standing be separately established for injunctive relief (even when the plaintiff has standing for money damages) and requiring that the plaintiff show substantial risk of recurrence of harm.³³ The holding is part of the reason why deadly police chokeholds, used in the absence of proportionate physical threat to officers, remain so prevalent.³⁴ In the absence of standing to seek an injunction to ensure that police-use-of-force policies comply with the Fourth Amendment, use-of-force policies are difficult to challenge.³⁵ In Iqbal, the Court dismissed the complaint as implausible under Rule 12(b)(6).³⁶ Even after Inspector General reports confirmed Iqbal’s assertions that high level government officials were well aware of the conditions in the prison and did nothing about it, the Court dismissed suits by similarly mistreated detainees on the ground that there is no Bivens cause of action (the federal officer analogue to Section 1983) for such harm, and that there was no cognizable cause of action for a Section 1985 conspiracy.³⁷

But put to one side, for the moment, whether legal redress is or ought to be available for such conduct. And put to one side as well the simmering debate on the affirmative defense of qualified immunity when money damages are sought in civil rights cases,³⁸ the near universal indemnification of officers who are ultimately held liable,³⁹ and the uncertain fate of the Bivens cause of action for constitutional torts committed by federal officers.⁴⁰ Put aside what it means to act “under color” of law for the purposes of Section 1983 liability⁴¹ and what must be shown to obtain an injunction to reform police departments and prisons.⁴² Suspend all of these vitally important, hotly contested doctrinal questions. Pause to take stock of the extraordinary, dehumanizing level of violence inflicted at the hand of the sovereign, the repetition compulsion, the fetishization of excess. Consider how and why Trent Taylor was forced to spend four days in a cell

covered, nearly floor to ceiling, “ ‘in massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “packed inside the water faucet.” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. . . . Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.⁴³

What explains this level of mistreatment? Not just the wretched, “shockingly unsanitary” conditions (conditions, note, in which the corrections officers themselves must work as they move and supervise prisoners), but the taunting by the officer who, upon placing Taylor in the first cell, informed him that he was “going to have a long weekend,” and another officer who, upon placing Taylor in the second cell, said he “hoped Taylor would f***ing freeze.”⁴⁴

What accounts for this humiliation and cruelty (and the apparent pleasure taken in inflicting it) on the part of officers of the state?

No meaningful conversation about jurisdiction, appropriate forms of action, or remedies can begin without grappling with the nature and sources of these constitutional violations and the mutual dehumanization they cause. Even if there are necessary tragedies attendant to the state’s monopoly on violence, what explains this level of violent excess, depravity, and depredation?

The very first thing to say is that the harm cannot be understood if it is not accurately described, if the depth of the violence involved is diminished, obscured, or antiseptically elided.⁴⁵ The majority opinion in Lyons is an exercise in elision, rendering Mr. Lyons’ request for injunctive relief to prevent another such incident irrational, even paranoid, rather than a reasonable response to policies and practices regarding use of force that disproportionately affect Black drivers in Los Angeles.⁴⁶ The chokehold, the majority concedes, “caus[ed] damage to his larynx” and “render[ed] him unconscious,” and the majority mentions the evidence of more than a dozen deaths resulting from the use of chokeholds.⁴⁷ But it does so only in passing in a paragraph concerning whether the case was mooted by alterations in the city’s policies.⁴⁸

It is instead in Justice Marshall’s dissent that one learns that when Lyons “regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt,” and that he had “urinated and defecated” on himself as a result of the chokehold.⁴⁹ We learn from Justice Marshall that Lyons was not charged with any crime (let alone a crime such as resisting arrest that might suggest the chokehold was a proportionate response). He was simply “issued a traffic citation [for a burnt out taillight] and released.”⁵⁰ And it is the dissent which cites record evidence that Black people made up seventy-five percent of deaths from chokeholds in a city in which they were just nine percent of the population.⁵¹ The majority simply ignored the racial elements of the case, as well as the statistical evidence showing that three-fourths of all police/citizen “altercations” involved use of a chokehold—data suggestive of a policy or practice of resorting to deadly force when officers are met with simple dissent.⁵² This colorblindness obscures record evidence of racially discriminatory policing.

Similarly, in Monroe, it is only from Justice Frankfurter’s dissent that we learn that Mr. Monroe had six children, all of whom were rousted along with his wife, that Mr. Monroe was struck several times by Detective Pape “with his flashlight, calling him [n-word] and ‘black boy,’ [and] . . . that other officers hit and kicked several of the children and pushed them to the floor.”⁵³ Here too, the element of race and its conjunction with unprovoked violence would be all but invisible absent the dissent’s more faithful recitation of the allegations of the complaint. So too the fact and nature of the violence visited upon Mr. Monroe’s children.

Nor can the nature or source of the harm be understood if excesses are dismissed as the unfortunate result of individual rogue officers. To be sure, not every constitutional violation springs from the orders of supervisors or from official policy, practice, or custom, and comparatively few in number involve extraordinary excess. Neither is it the case, however, that every violation springs from circumstantial contingencies, isolated error, or the pathological deviance of individual officers.⁵⁴ Whether or not one believes that supervisors and government agencies should be held legally accountable for the conduct of their officers (either on a respondeat superior theory or some more exacting standard such as the one developed from Monell v. Dep’t of Social Services and its progeny⁵⁵), bad apples cannot explain all cases.⁵⁶ Indeed, the theory is contradicted by cases such as Taylor and Iqbal in which supervisors are plainly involved, as well as a vast body of research in social psychology and organizational behavior concerning institutional failure and crimes of wrongful obedience.⁵⁷ Ordinary people of good will, the research shows, are capable of inflicting pain and suffering on others, including extraordinary levels of pain and suffering, when working in settings where harmful conduct is expected, rationalized, or ignored.⁵⁸

In the following pages I examine “outrages” in civil rights cases and the nature of such extraordinary excess. The first level of work is mainly negative, identifying in Part I what this excess is unlike—how distinctive it is even according to social and political theories that are explicitly concerned with the ways in which people performing seemingly ordinary bureaucratic tasks contribute to monstrous deeds and systems of subordination. Part II turns to theories that focus on direct participation in extraordinary, dehumanizing excess and subordination to explore what kind of legal officer is capable of inflicting such severe suffering, under what circumstances, what purposes and forms of power might be served, and what kind of legal subject is produced by inflicting suffering in this way. I concentrate on Franz Kafka’s short story The Penal Colony, which imagines an extravagantly painful form of capital punishment, Patricia Williams’s essay on the irrational fears that animate racial prejudice and police brutality, and studies on the nature of “intimate partner” violence.

Reading across these interdisciplinary sources on extravagant violence I suggest that outrages involve the interaction of a number of elements: the fantasy of finding/generating legal certainty in the imposition of bodily suffering, the enactment of social and political domination (including controlling color and gender lines), the role of terror and physical abuse in relationships defined by dependency, and ambivalence in officers’ embodiment of sovereignty (libidinally charged oscillation between self-restraint and extravagant excess on the part of officers of the state who are themselves both bound by and always potentially above the law).⁵⁹ In the final section, Part III, I turn from these theories of extraordinary violence to civil rights enforcement doctrine. I argue that extraordinary, racialized violence resulting from corruption of office was well known to the drafters of Section 1983, that the statute was specifically designed to remedy what the Reconstruction-era drafters called “outrages,” and that the modern Court’s use of federalism principles to limit the Section 1983 cause of action and remedies directly contradicts the text of the statute and this unmistakable legislative purpose.

The literature on the drafting of Section 1983 is extensive, but it concentrates mainly on whether the language “under color” of law was designed to restrict the cause of action to circumstances in which the federal right-holder would not have a parallel claim under state law. This approach is understandable in light of Justice Frankfurter’s emphasis on this reading of the statute in his dissenting opinion in Monroe v. Pape and the debate his opinion fueled.⁶⁰ What has not received adequate attention beyond conventional references to the role of Klan violence in the legislation of Section 1983 is the specific connection between the persistence of “outrages,” government officer complicity in such violence, and the failure of state courts and law enforcement to address the corruption of state legal systems arising from resistance to Reconstruction.⁶¹

Both Section 1983 scholarship and empirical analyses of officer brutality also tend to lump modern cases involving extraordinary violence together with all cases on excessive force and forms of prison violence that lack a legitimate penological purpose.⁶² The effect is to assimilate outrages to a broader category of state violence. However instructive this is regarding the overall problem of modern police/carceral violence, it tends to obscure the distinctive phenomenon of outrages, the unique harm they cause, and their role in prompting Congress to establish Section 1983 in the first place.

I. FALSE STARTS IN THEORIZING EXTRAORDINARY VIOLENCE

Modern social and political thought has been preoccupied with the irrational and dehumanizing effects of institutionalized violence. But it is notable that among the most authoritative accounts—Arendt’s theory of the banality of evil, Foucault’s theory of disciplinary power, and Kafka’s theory of perishing “before the law”—outrages are largely irrelevant.

A. The “Banality of Evil”

Section 1983 cases involving extraordinary violence do not seem to result from what Arendt famously described as the “banality of evil,” a theory that has been used as a framework for understanding how relatively ordinary people become instruments in the perpetration of monstrous deeds. Observing the trial of Adolph Eichmann for his role in organizing the transportation of Jewish people and others to Nazi death camps, Arendt was struck by the extent to which Eichmann was neither “perverted” nor “sadistic” but rather terrifyingly “normal.”⁶³ He apparently acted mainly to advance his bureaucratic position.

The deeds were monstrous, but the doer—at least the very effective one now on trial—was quite ordinary, commonplace, and neither demonic nor monstrous. . . . Despite all the efforts of the prosecution, everyone could see that this man was not a ‘monster,’ but it was difficult indeed not to suspect that he was a clown.⁶⁴

Arendt uses the term “clown” because Eichmann was unable to avoid self-contradiction, lying, and cliché in matters of morality. His “inability to speak,” Arendt emphasizes, “was closely connected with an inability to think; that is, to think from the standpoint of somebody else.”⁶⁵ Eichmann knew (“of course”) that “he had played a role in the extermination of the Jews,” that without performing this bureaucratic function Jewish people “would not have been delivered to the butcher.”⁶⁶ But he scoffed at the idea that this established his personal culpability (“What is there to admit?” he asked when pressed on the matter⁶⁷).

Chillingly, he “remembered the turning points in his own career” more accurately than “the turning points in the story of Jewish extermination, or, as a matter of fact, [] the turning points in history.”⁶⁸ The ideological machinery of fascism, Arendt contends, efficiently mobilized the petty self-serving idealism of bureaucrats like Eichmann, drawing them into the enthusiastic erection and maintenance of the machinery of death. Inability “to think” and dislocation of moral responsibility in the very seat of identity combined to produce a monstrous and yet banal form of evil.⁶⁹

Eichmann’s role in the machinery of death of the Holocaust was, however abhorrent, principally administrative in nature—distant from the scenes of murder. He orchestrated a process of stripping Jews of their property and rights to prepare them for expulsion from their communities to death camps. Arendt’s analysis reminds us that acts of violence have bureaucratic predicates in which many people are complicit, but the distinction between the acts and their bureaucratic predicates matters to a full understanding of extraordinary violence. Many people who are capable of performing roles at a distance from violence are utterly incapable of the violence itself. Eichmann, for example, testified that if he was shown “a gaping wound, I can’t possibly look at it. I am that type of person.”⁷⁰ Indeed, this is one of the most important insights of Arendt’s theory of the banality of evil—that people who recoil from direct acts of violence are instrumental to the administrative architecture which ultimately produces and sustains it. In the Section 1983 cases involving extraordinary violence, by contrast, the named officers are not acting at a distance—their hands are saturated with blood. Even when high level officers are also named, as in Iqbal and Abassi, the core allegation is that the policies and practices immediately responsible for the harm (not intermediate bureaucratic steps) flow from the ink of their pens and associated decisions.

B. “Disciplinary Power” and the “Spectacle of the Scaffold”

The exceptional violence in Section 1983 cases does not flow from “disciplinary power” either. In Discipline and Punish, Michel Foucault describes ways in which surveillance, ranking, and the arrangement of space in modern carceral institutions produces efficient compliance, or “docility”:

[T]he systems of punishment are . . . situated in a certain “political economy” of the body: even if they do not make use of violent or bloody punishment, even when they use “lenient” methods involving confinement or correction, it is always the body that is at issue—the body and its forces, their utility and their docility, their distribution and their submission.⁷¹

A panopticon, the famous prison design of Jeremy Bentham from which Foucault theorizes, produces docility among inmates mainly by creating uncertainty about whether and when one is being surveilled. Indeed, uncertainty about surveillance prompts inmates to monitor themselves, obviating the need for actual force to be deployed by prison guards. This was its supposedly modern genius as compared to the use of dungeons, torture, and spectacles of death on the scaffold. It achieves this by “induc[ing] in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power,” such that

the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary; that this architectural apparatus should be a machine for creating and sustaining a power relation independent of the person who exercises it; in short, that the inmates should be caught up in a power situation of which they are themselves the bearers.⁷²

Foucault connects the panopticon and other systems oriented toward the production of docility (in schools, factories, hospitals, military barracks) to “progressive forms of training,” measurement, ranking, and other “techniques for assuring the ordering of human multiplicities” in a “disciplinary society.”⁷³ Disciplinary power thus develops alongside mass society and the industrial revolution to ensure social order and efficient labor.⁷⁴ In “every society, the body was in the grip of very strict powers, which imposed on it constraints, prohibitions[,] or obligations.”⁷⁵

In all of these accounts, what makes disciplinary power distinctive is precisely the absence or minimal role of violence, its “subtle coercion” through the “efficiency of movements[,] . . . an uninterrupted, constant coercion, supervising the processes of activity,” which the subject eventually internalizes.⁷⁶ The extraordinary violence in Section 1983 cases is quite different. It involves direct, physical, unmediated infliction of pain. It is therefore closer to what Foucault calls “sovereign power.”⁷⁷ Throughout Discipline and Punish and in other works Foucault is careful to distinguish disciplinary and sovereign power. Sovereign power is what we conventionally associate with the state’s monopoly on violence—state action in the standard sense of armed officers acting in an official capacity. It is comparatively inefficient and discontinuous, requiring “sumptuous expenditure[s],” relative to the operation of disciplinary power.⁷⁸

Precisely because it is so inefficient, Foucault argues that sovereign power historically relied on spectacles of excess to produce compliance. These spectacles were designed to display the “unlimited power of the sovereign,”⁷⁹ “an emphatic affirmation of . . . its intrinsic superiority . . . not simply that of right, but . . . the physical strength of the sovereign bearing down upon” deviant subjects to “revenge[] its authority.”⁸⁰ As David Owens has shown, recorded and publicly disseminated images of anti-Black police violence fit the “spectacle of the scaffold” which Foucault associates with early modern European expressions of sovereign power.⁸¹ There is, however, no public scaffold when extraordinary violence is inflicted behind prison walls and in unrecorded or unpublished encounters with police officers, a problem to which I return in Part II.

C. Being “Before the Law”

In Franz Kafka’s famous parable, Before the Law,⁸² the protagonist is denied access to law by a low-ranking but “mighty” gatekeeper who says that he is but one of many gatekeepers, “each one mightier than the one before.”⁸³ The gatekeeper shares that “[e]ven the sight of the third is more than I can bear,” so terrible are his powers.⁸⁴ The gatekeeper is thus an example of sovereign power, a power apparently so awesome in its capacity for violence that no one dares resist it. Significantly, for our purposes, however, the gatekeeper’s capacity for violence is so overwhelming that it need not be exercised upon the body. The gatekeeper also informs the protagonist that the gate is for him alone, not others, suggesting that the gate is not public. The protagonist decides to wait for permission and the gatekeeper “gives him a stool and allows him to sit down beside the door.”⁸⁵ But the wait is unending, and ultimately fatal. The gatekeeper stands impassively as the protagonist gradually withers “before the law” and dies. In the meantime, the gatekeeper takes all the protagonist’s money, “so that you don’t think there’s something you’ve omitted to do.”⁸⁶

There are many readings of the parable as a critique of the terrible, dehumanizing force of law,⁸⁷ but the protagonist’s suffering, albeit unto death, is not caused by any act of violence on the part of the gatekeeper. His suffering is shaped instead by the possibility of violence, implied in the gatekeeper’s admonition about his awesome power and the even greater powers of other gatekeepers beyond the portal before which he stands. The moral outrage the story evokes lies in the gatekeeper’s startling indifference. It is suggestive of the thoughtless, cold, bureaucratic unseating of empathy with which Arendt is concerned, but not the extravagant infliction of physical suffering we see in Section 1983 cases.

II. THE BODY AND BEING ABOVE THE LAW

If targets of extraordinary violence are not “before the law,” subjected to disciplinary power, or victims of the “banality of evil” and its action at a distance, what explains their victimization?

A. In the Penal Colony

Another famous story by Franz Kafka takes us closer to understanding the phenomenon. In the Penal Colony describes an “apparatus” created by a former colonial commandant to suppress disorder in the colony.⁸⁸ The apparatus is a machine that “carr[ies] out . . . the sentence” by inscribing its text on the body of the condemned person with needles.⁸⁹ The condemned person is strapped to a “bed” above which hangs a “harrow”—a metal frame holding many needles.⁹⁰ The machine, called the “engraver,” moves the bed and the harrow, “vibrat[ing] both sideways and up and down, in tiny, very rapid movements” each of which is “very carefully calibrated,” inscribing the sentence in thrusts and cuts of gradually increasing depth.⁹¹ During the process, which takes twelve hours, the condemned person slowly experiences the sentence “on his body” as the thrusts and cuts deepen until he bleeds to death.⁹² The sentence is “put to him physically.”⁹³

Extraordinary excess is a defining feature of every phase of this punishment. The legal “process” that leads to punishment is itself excessively deferential to officer discretion. A condemned person receives no trial, no defense, and is not informed of the sentence before it is inscribed on their body. Guilt is decided by those who control the apparatus, and because there is no opportunity to present a defense, guilt “is always beyond doubt.”⁹⁴ A foreign observer is informed that in the process of inscription there are elaborate embellishments by the needles upon the body of the condemned: “many[,] many ornaments surround[ing] the script proper.”⁹⁵ The apparatus not only writes the punishment with increasingly deep incisions in the body of the condemned, it uses “the rest of the body” to surround the “actual text” with extravagant “decoration.”⁹⁶ The pain is equally extravagant. About halfway through the execution of the sentence, the traveler is told, the pain is so excruciating that the condemned person eventually stops screaming and falls silent as he “begins to decipher the script . . . with his wounds.”⁹⁷ The officer who operates the apparatus views this as the climactic moment when justice is realized, describing it as a “transfiguration” in which even “[t]he very dimmest of them begins to understand.”⁹⁸ Their faces take on a look “that might seduce one to take their place” in the apparatus, so transcendent is the truth they experience.⁹⁹

In many ways, In the Penal Colony represents the apotheosis of the spectacle of the scaffold. The officer, overcome with nostalgia, reports that during the reign of the former commandant, executions were public events with massive public attendance (“the whole valley was packed . . . everyone came to spectate . . . they all knew: justice is being enacted”) and the apparatus not only inscribed the sentence, its needles dripped with a painful, corrosive acid:

It was impossible to find room for all those who wanted to view the proceedings from close . . . . How we watched the transfiguration in the tormented faces [of the condemned], how we held our cheeks in the glow of this arduously achieved and already passing justice! I tell you, comrade, those were times!”¹⁰⁰

This is a genuine public spectacle, designed to demonstrate the awesome power of sovereignty, to secure compliance with law by making the administration of justice not only summary (no trial, no defense, no notice of the sentence) but immediate (operating directly upon the body of the condemned, enacting the sentence upon the body using the exquisitely painful machinery of the apparatus), absolute (every sentence is a death sentence), and yet also temporally and substantively extended (extending beyond the “actual text” of the sentence to lavish “decorative” embellishments, and beyond mere execution to excruciatingly slow torture ending in death), all resting on the sadistic, metaphysically sublime premise that the true nature of justice appears and is “understood” in and through the body during the inscription.¹⁰¹

Kafka implies that the apparatus is not, in fact, essential to maintain order in the colony even though the officer claims that under the former commandant who built it, administration of the entire colony was “seamlessly efficient.”¹⁰² We learn early in the story that the new commandant, much to the chagrin of the officer, regards the apparatus as barbaric and unnecessary, resists expenditure for its upkeep, has the support of the people, and has invited the traveler to observe the execution in order to use the traveler’s views to ban its use permanently. Indeed, much of the dramatic tension in the story rests not just on the design and use of the apparatus for what becomes its final execution, but on whether and how the traveler will announce his moral opposition to it to the new commandant (the traveler is, we gradually learn, steadfastly “opposed” to the entire process: “[t]he injustice of the procedure and the inhumanity of the execution were incontestable”¹⁰³). When the officer fails to persuade the traveler of the value of the apparatus, the officer spares the condemned man and instead inserts himself into the apparatus. The apparatus impales him almost immediately because it has not been possible to properly maintain it and he dies within minutes, leaving “no trace” that he has experienced the “promised transfiguration.”¹⁰⁴

The violence of the apparatus is of course in important ways quite different from extraordinary violence in Section 1983 cases. It is, to begin with, imaginary, and also a relic of public executions, whereas the violence in Section 1983 cases is all too real, and there is often no audience. The apparatus also mediates the relationship between the body of the condemned and the officer. The officer, at one point, has to probe deep into the apparatus to attempt a repair, but it is neither a cyborg nor simply an instrument of torture wielded by the officer. Once the instructions of the “sentence” are inserted into the apparatus and the condemned person is strapped onto the bed, the machine makes the inscription automatically. Finally, many Section 1983 cases involve deaths at the hands of officers of the state, but the cases generally do not involve executions following judgments imposing capital punishment as a sentence.¹⁰⁵ Instead, when deadly force is used, officers are usually in the process of mundane traffic stops, executing warrants and making arrests, or engaged in prison administration away from death row. And of course, many Section 1983 cases involving extraordinary violence and suffering do not result in death.

The point of connection between the story and Section 1983 cases lies instead in its account of the officer’s attachment to the apparatus as an instrument of excess (even to private scenes of excess after public attendance has been banned), and to the seductive power of the summary administration of justice. The officer who maintains the apparatus doesn’t just appreciate it; he is obsessively attached to it. By the time the traveler comes to see it, the officer is “its sole defender.”¹⁰⁶ While he barely notices the condemned man, the officer is distraught that the new commandant has withheld funds for maintenance of the apparatus, he laments that there are no longer proper replacement parts, and he is particularly distressed that a more humane execution procedure is being developed.¹⁰⁷ He refers to the diagrams that typeset the apparatus as “the most precious things I have.”¹⁰⁸ He also desperately seeks to draw the traveler into a conspiracy to undermine the new commandant and his plan to decommission the apparatus. The completeness of his obsession with the machine is revealed by his fatal devotion to it—once he realizes that it will no longer be used and that his efforts to persuade the traveler of its value are in vain, the officer makes his own execution the machine’s last, a process that results in the machine falling apart. His devotion is, one might say, not merely complete but fatally excessive.

Underneath devotion to the apparatus is attachment to the power to inflict bodily pain in the administration of justice—an attachment grounded in the idea that infliction of bodily pain serves as a lexical index of justice, that pain is an instrument of justice, the way to see justice done. This idea animates the officer’s sadism and the erotic charge traveling with the physical imposition of legal judgment—literally, the inscription of sovereign power upon the body of the subject. Similar attachments appear to motivate the officers in Section 1983 cases who take pleasure in the suffering they inflict (e.g., the officer who hoped Taylor would “f***ing freeze” in the “frigidly cold cell . . . equipped with only a clogged drain in the floor to dispose of bodily wastes”¹⁰⁹), as well as chokehold cases like Lyons in which the body of the officer is (must be) personally, immediately, and intimately engaged with the exercise of sovereign power, inscribing it upon the body of the supposedly resistant subject.

Attachment is not just to embodying the instrument of sovereign power, but to legal certainty—inscribing the law on the subject’s body. A legal order that seeks perfect compliance (along with the erotic charge of potentially ‘complete’ repression) is a form of excess in relation to human fallibility. In Kafka’s story, there is a cathartic element in the dyadic economy of a suffering/redeemed/dead “perpetrator” and suffering/relieved victims and bystanders. Indeterminacy, the terror of it, is executed, purged from the community, along with the condemned. Thus, even as other more restrained forms of policing and punishment emerge in the penal colony, the imagined moral clarity and instrumental utility of the apparatus, and the attendant desire to preserve it and all the accoutrement of its scaffolding, to speak its language of certainty, to inscribe it automatically upon the bodies of deviant subjects, remains. And this remainder—the longing it prompts for revival of such a system—haunts new, ostensibly more humane and fallible regimes. This remainder is also latent in the “thin blue line” discourse of law and order insofar as it rationalizes police and carceral violence—what “law and order” promises (the absence it mobilizes politically and in the psyche) is the certainty of determinate exercises of sovereign power and the compliance such certainty ostensibly guarantees.¹¹⁰ Embellished, gratuitous, and grotesque bodily infliction of pain reflects this longing for compliance and legal certainty. Bodies must be fixed, transfixed, in compliant recognition of sovereign power.

The officer in the story is so committed to this work that he appears to have lost all sense of connection to the dignity and humanity of the subjects of the colony he participates in governing, not least of which the condemned man. His almost exclusive concern is with maintaining and caring for the apparatus. Indeed, he exhibits paranoia about the new commandant’s plans and is unable to cope with a future in which those plans will unfold.¹¹¹ Even at lower levels of intensity, sociologies of policing suggest that perspective and judgment are warped when officers succumb to an embattled, binary, “blue line” mindset in which the people one serves become a foreign, abstract out-group.¹¹² Ordinary emotional responses become grotesquely inverted—instead of revulsion, pleasure is taken in inflicting pain; instead of empathy and a sense of duty toward subjects, there is antipathy or brutally cold indifference; instead of care, there is the belief that suffering is not just deserved but in the best interests of the subject’s legal “transfiguration.”¹¹³

The officer’s obsession in Kafka’s story is not just nostalgically motivated, it is an expression of “imperialist nostalgia”—seething resentment at the new regime and its lenience is expressed in inverted form as intimate attachment to the apparatus believed to be central to the authority of the ancien regime over the colony.¹¹⁴ John Zilcosky admonishes that it is a mistake to separate the erotic element of the apparatus’s sadistic excess from its value as an instrument of colonial oppression. “The problem with [some] postcolonial readings” of In the Penal Colony, he insists, “is that they fail to address the promise of sado-masochistic pleasure that is so central to the story’s effect. Just as the earlier psychoanalytical interpretations repressed politics, these political readings repress desire.”¹¹⁵ The officer’s obsessive attachment (being willing indeed, not just to die for the apparatus, but with it, in it) fuses the erotic and politically instrumental in the form of a death wish executed by fatal penetration (as the apparatus malfunctions, one of the needles plunges through the officer’s skull). Obsessive attachment is in this way represented as an erotically charged and (at least until the officer’s death) a politically useful byproduct of a system that scaffolded spectacles of sadistic excess and permitted officers to impose summary justice.

In any system in which extravagant sovereign power has been replaced with a new regime of limits, especially externally imposed limits, resentment can run deep. In the American context, one might, for instance, read resistance to Reconstruction enforcement in the nineteenth century and resistance to the Warren Court’s revival of Section 1983 along these lines—new, decidedly unwelcome federal (and federal judicial) interventions into matters of traditional state and local executive branch concern in the administration of criminal justice.¹¹⁶

B. “Spirit-Murder”

Kafka leaves the role of racial subordination in spectacular violence implied in In the Penal Colony. Early on in the story the traveler remarks that the officer’s uniform is “much too heavy for the tropics.”¹¹⁷ The officer replies that they wear them nonetheless because they “signify home, and we don’t want to lose touch with home.”¹¹⁸ In this sentence, in another about the fact that both the traveler and officer speak French while the condemned man and attending soldier do not,¹¹⁹ and in the officer’s reference to the traveler’s moralistic “European perspective” on capital punishment,¹²⁰ a geography of colonial and racial exploitation is made clear.

In one of her most famous essays on law and policing in America, Patricia Williams is explicit, directly addressing the role of extraordinary violence in racial subordination.¹²¹ She examines the failed criminal prosecution of a white police officer who shot and killed a sixty-seven-year-old, arthritic, Black woman in her Bronx apartment.¹²² The officers were there to evict Eleanor Bumpurs and she resisted.¹²³ The writ of possession authorizing the eviction was issued via a default judgment, which means that Mrs. Bumpurs never received a hearing in court before the officers showed up to evict her. Indeed, it appears that she was not properly notified of the case and there were “serious doubt[s]” about the validity of the landlord’s grounds for eviction.¹²⁴ This summary process without notice may have played a role in her confusion and resistance.

According to the Police Commissioner, six officers were in the apartment, all armed, two wielding large plastic shields, another a “restraining hook.”¹²⁵ Mrs. Bumpurs, wielding a knife “bent” in the confrontation by one of the plastic shields, escaped from the hook and was shot by the officer farthest from her with a shotgun.¹²⁶ The blast “removed half of her hand, so that, according to the Bronx District Attorney’s Office, ‘it was anatomically impossible for her to hold the knife.’ ” The officer nevertheless “pumped his gun and shot again,” this time killing her.¹²⁷

She asks what “animus . . . inspired such fear, and such impatient contempt in a police officer that the presence of six other heavily armed men could not allay”:

Why was the sight of a knife-wielding woman so fearfully offensive to a shotgun-wielding policeman that he felt that blowing her to pieces was the only recourse, the only way to preserve his physical integrity? What offensive spirit of his past experience raised her presence to the level of a physical menace beyond real dimensions? What spirit of prejudgment and of prejudice provided him with such a powerful hallucinogen?¹²⁸

The essay goes on to explore the ways in which racism authorizes not just violence, but extraordinarily excessive anti-Black violence. She considers examples in which both white police officers and white citizens were exonerated in the press and in court for such violence. Echoing Arendt’s critique of Eichmann’s inability to think and the penal colony officer’s perverse certainty that torture produces transfiguration, Williams ultimately concludes that white supremacy creates distorted mental states (“formalized distortions of thought” that “produce[] social structures centered around fear and hate”) in which “in the minds of whites[,] . . . blacks become large, threatening, powerful, ubiquitous, and supernatural.”¹²⁹ The Black body must not only be subdued, its far larger spectral presence which operates “beyond real dimensions” must be annihilated.

The connection between extravagant violence and “embellished fear” in this process of annihilation comes into sharpest relief when Williams recites “a news story from [her] fragmentary grammar school recollections of the 1960’s,” according to which

a white man acting out of racial motives killed a black man who was working for some civil rights organization or cause. The man was stabbed thirty-nine times, a number which prompted a radio commentator to observe that the point was not just the murder, but something beyond. What indeed was the point, if not murder? I wondered what it was that would not die, which could not be killed by the fourth, fifth, or even tenth knife blow; what sort of thing that would not die with the body but lived on in the mind of the murderer.¹³⁰

Williams’s answer is that white supremacy demands the death of the “spirit”—that part of our being which lies within and yet extends beyond the body, the part of ourselves which “is beyond the control of pure physical will and resides in the sanctuary of those around us.”¹³¹ “Spirit-murder” must be exceptionally excessive to meet the seemingly bottomless fear and rage that animate prejudice. It requires a level of violence capable of producing degradation, of destroying the specter of Black power which lurks (however counter-factually) as a “predatory” threat in the aggressor’s mind.¹³²

Williams situates spirit-murder in the long, painful legacies of spectacular violence visited upon Black people. She interweaves examples of modern racism in New York, including her own experiences as a Black woman, with the civil rights era. And like Kafka, who opens the story of the penal colony after the old commandant who designed the apparatus has been replaced, Williams represents contemporary spectacles of racial violence as haunting remainders of an “unwanted past,” an ancien regime that will not end:

Failure to resolve the dilemma of racial violence merely displaces its power. The legacy of killing finds its way into cultural expectations, archetypes, and ‘isms.’ The echoes of both dead and deadly others acquire a hallucinatory quality; their voices speak of an unwanted past, but also reflect for us images of the future. Today’s world condemns those voices as superstitious and paranoid. Neglected, they speak from the shadows of such inattention, in garbles and growls, in the tongues of the damned and the insane.¹³³

The historian Allen Trelease formally locates this “unwanted past” in slavery and resistance to emancipation. He richly details the excessive, “pathological fear . . . not at all justified by the actual danger” felt by whites who defended the institution.¹³⁴ Both before and after emancipation “whites were apt to react with disproportionate severity” to Black people.¹³⁵ But emancipation and the “advent” of Reconstruction produced “enhanced anxiety[,] . . . intolerance[,] and violence as never before.”¹³⁶ Violent repression, Trelease emphasizes, was directed less toward ensuring that Black labor remained a “docile” labor force (“in fact [racial terror] did much more to drive off labor and disrupt economic life”), than toward “keeping blacks within their proper social bounds,” especially preventing voting, officeholding, and crossing social color lines.¹³⁷

If Negroes had been feared even when they were subjected to the control of masters and prewar slave codes, they were infinitely more dangerous now that these controls were lifted. . . . A former Mississippi Klansman justified violence as the only way of protecting white families against what he conceived to be “the threatened and rising arrogance of the negroes.” Cruelty, seemingly beyond the gravity of the provocation, he said, was “justified by the fact that every little insolence, if left unnoticed, would be bragged about by its perpetrator and fellow observers . . . . The news would spread with great rapidity, and there was no telling where it would end. . . .” By this reasoning white men could and did commit the most brutal forms of aggression, convinced all the while that they were acting defensively.¹³⁸

As early as 1865, the year the Civil War ended,

Carl Schurz reported . . . [that] “the maiming and killing of colored men seems to be looked upon by many as one of those venial offenses which must be forgiven to the outraged feelings of a wronged and robbed people.” . . . Certainly whipping and corporal punishment were regarded as the white man’s right and duty, emancipation or no emancipation; organized regulators or vigilantes took up this task . . . and the Klan further institutionalized the practice,” adding other forms of torture and death to the list of “atrocities.”¹³⁹

Page after page of the 1871 U.S. Senate Report and Testimony on the Alleged Outrages in the Southern States, which supported the passage of Section 1983, confirms the extraordinary level of violence that followed. Even a cursory review of the reported outrages in Alamance County, North Carolina between 1868 and 1870, indicates the distinctive role of extraordinary violence.

[A] negro man by the name of Outlaw . . . was taken from his house . . . about one o’clock at night, by a band of from eighty to a hundred men, and hung upon an elm tree, not very far from the court-house door. . . . The newspapers have said that he was guilty of having shot at a band of Ku-Klux that passed through the town some time previous; but that was not true.

Caswell Holt, (colored,) taken from his house in the night, was whipped until blood was streaming from his back; he was then made to bend down, while one of the parties tortured him by rubbing a rough stick up and down his back.

Joseph Harvey, (colored,) taken by fifteen or twenty in disguise, carried about three quarters of a mile from his house, dragged over fences, rocks, through briars, and about one hundred and fifty lashes laid upon his bare back.

Nathan Trollinger, (colored,) taken from his house by men in disguise, severely whipped, and afterwards made to mutilate his own private parts with his pocket knife.

Sally Hall and her two daughters thrown out of their house and whipped, and one of them made to exhibit her person, while the fiends proceeded to inflict blows upon her private parts.

John Bass, (colored,) “potterized.”¹⁴⁰

The Klan also targeted whites who supported Black people and Reconstruction:

Alonzo B. Corliss, a northern man, who was teaching [in] a colored school . . . was dragged from his bed by twelve or fifteen disguised men, amid the shrieks and cries of his distressed wife, carried a little distance into the woods and severely whipped, the hair and whiskers shaven from one side of his head and face, his head and face cut and disfigured in a most cruel manner, after which he was painted black and left in this condition.¹⁴¹

The “ultimate purpose” was to “overthrow the reconstruction acts down South.”¹⁴² In some places “a majority of men” in the Klan had served in the Confederate Army.¹⁴³ Having lost the war, they were now refighting with the tools of racial terror.

Not only did white supremacist “aggression [take] every conceivable form,” it was seldom punished; “it simply was not a punishable offense in the eyes of many whites to attack or even kill a Negro.”¹⁴⁴ In many regions of the South, “civil authorities, like the general white public, were either in sympathy . . . or intimidated.”¹⁴⁵ Lynchings were regularly conducted in front of courthouses to reinforce the message that the Klan controlled and was above the law.¹⁴⁶ It was also common for law enforcement officers, courts, the press, and the public to blame Reconstruction “radicalism and negroism, which in the south are one and the same thing,” rather than the white perpetrators of violence.¹⁴⁷ This was true even when law officers and judges became targets of Klan violence for their support of Reconstruction or their efforts to restrain the Klan.¹⁴⁸ Local Klan members perjured themselves as witnesses and violated their oaths as jurors in order to protect each other from prosecution.¹⁴⁹ Others who gave testimony were attacked.¹⁵⁰ In Gullford County, North Carolina, a lawyer who was asked whether the laws were administered “properly and thoroughly” answered that

where parties, for instance, are concerned in outrages committed by the order of which we have been speaking, my observation is that there are no convictions. I know that people have been whipped and scourged, and some have been killed; but the guilty have never been brought to punishment. Of course, the courts are the proper tribunals to award the punishment, but they have never been able to do it in any of those cases. . . . An alibi is proved in nearly every case . . . without any difficulty.¹⁵¹

Lawyers who did agree to become involved in the prosecution of Klan members were notified in writing that “they would be visited with punishment” unless they “ceased.”¹⁵² Some prosecutors not only abandoned their cases but felt “compelled” to move to other states.¹⁵³ Other officers collaborated with the Klan. The mayor of a town in Alamanee County, North Carolina testified that the “sheriff was connected with [the Klan], and every deputy . . . . [T]hey always hang around the courts to get on the jury . . . . [Y]ou cannot convict them.”¹⁵⁴ Impunity in the infliction of extraordinary violence went hand in hand with the complicity of state law enforcement and judicial officers, and functional immunity from liability in the rare cases brought against officers due to judicial bias, witness intimidation, and jury tampering.¹⁵⁵

When Southern resistance prevailed and the retreat from Reconstruction became national policy later in the 1870s, anti-Black violence continued. Lynchings morphed from nighttime affairs into full blown spectacles—mass events in broad daylight, publicized in newsprint and on the radio.¹⁵⁶ Experts on the history of lynching emphasize that even though “Black men and women were much more likely to become victims of personal assault, murder, or rape than lynching, and . . . withstood all sorts of injuries and insults on a daily basis[,] . . . lynching held a singular psychological force.”¹⁵⁷ It “came to stand as the primary representation of racial injustice and oppression as a whole,” assuming “this tremendous symbolic power precisely because it was extraordinary and, by its very nature, public and visually sensational.”¹⁵⁸

I have elsewhere written about the complicity of law enforcement and other legal professionals in lynching, including spectacle lynchings.¹⁵⁹ Others have documented in vivid detail how crime statistics and policing became instruments of Jim Crow segregation as unreconstructed whites seized control of the levers of sovereign power within and well beyond the South.¹⁶⁰ Inscription of the color line on Black bodies was charged not only with racial anxieties but also the erotic, most obviously in the exceptionally violent retaliation against Black men for real and perceived interactions with white women, in the frequency with which anti-Black violence was both actually and symbolically castrating, and in both the sexualization and sexual assault of Black women. The erotic is also present in the proximity, intimacy and raw physical effort required to administer whippings and other common forms of white supremacist torture, as well as in the gruesome acquisition of body parts and photographs of naked, mutilated black bodies as “souvenirs” of spectacle lynchings.¹⁶¹ A gendered expression of sovereign power is present in the invasion of Mrs. Bumpurs’s apartment as well—the officers’ penetration without notice or consent of Mrs. Bumpurs’s home, and her bent-edged, arthritic resistance met by their wildly disproportionate, ejaculatory, fatal, violence.

C. Disappointed Dominion

“[A]ny account of violence that cannot explain the strike, the blow, the act of sexual violence (including rape), or that fails to understand the way violence can work in the intimate dyad or the face-to-face encounter, fails descriptively, and analytically, to clarify what violence is.”¹⁶² A responsible theory of violence, including extravagant violence, must therefore grapple with rape and other forms of intimate partner violence.¹⁶³ While this kind of violence may initially seem quite far afield from cases involving extraordinary violence in policing and prison administration, feminist and queer theory have long identified connections between patriarchal power, the “cage of sex . . . in which all other [cages] are enclosed,”¹⁶⁴ “the family as a male-dominant institution[,] and male-dominant sexuality as the deus ex machina of male power across society.”¹⁶⁵ Gendered and sexual violence share with the extraordinary violence of policing and prison administration not only elements of excess, but also the erotic charge of intimately inflicted physical harm (patriarchal power in society and politics is, on this view, “eroticized power”¹⁶⁶) and, significantly, the targeting of the body as a principal object and site of subjection, control, and domination.¹⁶⁷

With respect to excess, women and gender non-conforming people are more likely to suffer extreme violence. They are more likely to be murdered and more likely to suffer physical injury that requires medical treatment from intimate partner sexual and physical assaults than heterosexual men.¹⁶⁸ Although near fatal and fatal injuries are relatively rare as compared to scratches, bruises, and welts in intimate partner abuse, serious injuries include lacerations from knives, broken bones, dislocated joints, head and spinal cord injuries, burns, broken teeth, and brain injuries from being knocked unconscious.¹⁶⁹ Intimate partner violence is pervasive in the United States and other western countries, an “epidemic” affecting millions annually despite hard won reforms since the 1970s that have replaced a permissive legal and cultural regime (in which the “corrective” battery of domestic dependents was lawful and considered a private “family matter”) with criminal prohibitions, networks of women’s shelters, and other support.¹⁷⁰

Qualitative research emphasizes that intimate partner violence is usually repeated, that “almost all” people targeted “suffer[] some physical violence as a part of the abuse, and while this was often described as ‘not the worst part’ of the abuse in comparison to less visible aspects, it invoke[s] a great deal of fear.”¹⁷¹ Even though it is common for abuse to become “routine” in intimate partner violence, “incidents of physical violence remain a shock, often experienced as coming ‘out of the blue.’ Interviewees describe both physical shock[]and a feeling of betrayal of the expectation[s] of trust and care in intimate relationships . . . as the hardest to come to terms with.”¹⁷² This kind of abuse is not “something you ‘get used to,’ ” despite the adoption of “skills of precaution and management to try and maintain personal security for themselves and their children.”¹⁷³ As one interviewee in a qualitative study reported, her partner “would just blow . . . . [Y]ou stand there and you can’t believe, you cannot believe that this is happening.”¹⁷⁴

Extraordinary excess lies not just in the gendered nature of such violence—the fact that greater, more harmful, and sexualized violence is visited upon women and gender non-conforming persons by men—but in the underlying breach of trust. Intimate relationships in which violence should be absent, governed by care, devotion, affection, and affirmation of personal autonomy, are perverted into degrading, abusive sites of domination—haunted by foundational acts of physical violence and the ever-looming threat of escalation. Intimate knowledge of a partner’s desires, fears, and vulnerabilities is itself abused—physically, sexually, emotionally, and psychologically. Children are often made hostages and objects of violent escalation to amplify fear and power.

There are competing theoretical accounts of how and on precisely what terms masculine “dominance, potentiated and centrally entitled and expressed sexually” in intimate partner violence translates to social and political domination.¹⁷⁵ But no one doubts the singular terror and harm this violence creates in intimate relationships. There is also broad consensus that intimate partner violence is “fundamentally a product of gender inequality[,] . . . a powerful tool in enforcing and reinforcing gender hierarchies and gender inequalities.”¹⁷⁶ Revealingly, what often sets such violence in motion is “the perception (by men) that women are trying to act ‘equal,’ that they have lost sight of their ‘proper place.’ ”¹⁷⁷ In this respect, the parallels to racialized violence are unmistakable:

[J]ust as Ku Klux Klan violence arose during the Reconstruction period in the South to enforce racial boundaries threatened by the emancipation of millions . . . to remind African Americans of “their place”—so, too, gendered violence can be understood as a tactic for reminding women of their place.¹⁷⁸

It occurs in intimate relations precisely because “the need to enforce between-group boundaries is greatest when there is a high degree of intimacy between group members.”¹⁷⁹

The body is so often the target because it represents, synecdochally, all the capacities of subordinate subjects to move, press, and rise beyond “their place.” Once we see the body—its movement, capacity, and crucially, its placement—as a site of control in social hierarchy, deeper connections between gender, race, sexuality, and class unfold. Abuse committed in intimate relations might be read as a distorted private, compensatory expression of both real and (mis)perceived public affronts to the “masculinity” of aggressors (for example, discrimination, economic exploitation, political disenfranchisement). Abuse against people believed to be lower status provides for the assertion of dominion in forms that are unavailable, lost, or threatened in society, work, and politics.¹⁸⁰ Rather than patriarchy radiating outward from the sexual politics of the family, on this account dominion both retreats and amplifies inward, displacing public slights, disappointments, and defeats (which, again, may be real or merely perceived) onto the comparatively safer targets of vulnerable domestic dependents and intimate relations in the private sphere.

There are vast differences between the domestic scene, on the one hand, and police and prison encounters, on the other. But what they share, at least when victims are unarmed or restrained, is the relation of dependence, intimate bodily proximity, status hierarchy, and overweening power. This may help explain why even restrained or otherwise non-threatening, unarmed arrestees and prisoners—people whose lives are literally in the hands of officers—nevertheless become objects of extraordinary violence.¹⁸¹ The problem is not, or at least not always, “embellished fear” or paranoia on the part of the officer, but rather acute awareness of the target’s relative helplessness and vulnerability,¹⁸² the target’s assumed culpability (social and moral, if not legal),¹⁸³ the reception of the target’s assertion of their own humanity, interests, or rights as audacious defiance of the officer’s status and authority,¹⁸⁴ and the opportunity this presents to exercise dominion believed to have been diminished or lost in other ways (through the officer’s subordination to the hierarchy of command, dealing respectfully with other citizens, suspects, and prisoners who have been openly defiant of the officer’s authority, or other social encounters).¹⁸⁵ Put differently, extraordinary excess can arise from displaced aggression, just as it can arise from exaggerated, misplaced fear.¹⁸⁶ And both can be personally and politically useful in keeping others in their place.

As importantly, aggression can be more than a form of compensatory displacement, more than a proportionate reaction to the perceived disappointment of dominion in other relations. It can also be an erotically charged, transgressive embodiment of sovereign power itself—raw, unchecked desire for dominion. To be sovereign is both to be the source of the law and, at least in democratic societies, to be bound by law—bound not just by training, and the law itself, but by oath. Every officer, and certainly those armed with the implements of sovereign power, inhabits and must mediate this contradiction. Having invested energy upholding compliance with law, oneself and for others, sometimes at great personal peril, extraordinary violence holds the seductive appeal of being, however transiently, above the law, of experiencing this singularly ecstatic form of sovereignty (the rapture of “sole and despotic dominion”) in and through the body of another, seizing and inscribing upon it the dictates of one’s will. The perverse pleasure expressed by some officers in the infliction of suffering and the violent fury with which all but total submission is greeted may derive from this source, the desire to embody unbound sovereign power.

III. THE BODY POLITIC

The foregoing analysis draws into relief why Section 1983 liability for extraordinary violence matters. Cases involving licentiousness among those who hold the state’s monopoly on violence are among the most important for the exercise of judicial review in a free society. Little is more destructive of constitutional faith in a republican form of government, where sovereignty ultimately rests with the people, than unconstitutional violence committed “under color” of law by those who wield and embody powers delegated by the people.¹⁸⁷ Self-restraint regarding lawfully delegated authority legitimates possession of the implements of sovereign power. Cases involving extraordinary violence represent the antithesis of self-restraint—not mere errant, or debatable uses of force, but flagrant disregard for the constraints of the Constitution on state action.

The Reconstruction Congress knew this. Whatever else may be said about ambiguities in the text and legislative history of Section 1983, regarding, for example, the availability and scope of municipal liability, or the power to reach private actors, one thing is beyond doubt: The statute operates in derogation of state sovereignty to enforce powers conferred by Section 1 of the Fourteenth Amendment in order to rectify and prevent “outrages” by state officers.¹⁸⁸ Although legislative debates on the Ku Klux Klan Act of 1871 are relatively sparse and opaque on some interpretive issues, “the debates contain extended discussion of conditions in the South, the breakdown of law and order, the acquiescence of Southern authorities, Klan terrorism against Blacks and republicans, and the consequent need for federal action.”¹⁸⁹ The civil cause of action created by the statute addresses the role of state actors in these “outrages.” The operative language (“deprivation of any [federal] rights, privileges, or immunities” by persons acting “under color of” state law, “custom, or usage”¹⁹⁰) sweeps beyond outrages, but officer-involved outrages were foundational, animating wrongs for which the statute provides civil liability. Suits seeking relief for the infliction of such exceptional harm thus warrant particular judicial solicitude.

The text of Section 1983 as enacted by Congress is unequivocal that the new federal cause of action operates in derogation of state sovereignty.

[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . .¹⁹¹

In view of the text, legislative purpose, and historical context, the modern Court’s reliance on federalism as a ground norm to cabin Section 1983 claims (in cases involving standing to prevent recurrence of harm,¹⁹² officer immunity in damages suits,¹⁹³ municipal liability,¹⁹⁴ abstention,¹⁹⁵ class actions,¹⁹⁶ summary judgment,¹⁹⁷ the standard for equitable relief,¹⁹⁸ the interaction of habeas and 1983 damages claims,¹⁹⁹ and the substantive Fourth Amendment doctrine of reasonable force²⁰⁰) is the jurisprudential equivalent of lost cause ideology. It relies on the very interpretive tools used to end Reconstruction, return to “home rule,” and place the anti-Black violence of Jim Crow segregation beyond the reach of federal courts.²⁰¹

Two attributes of lost cause historical consciousness are particularly relevant. The first is the idea that the Civil War and Reconstruction did not alter antebellum understandings of state sovereignty—that the exertions of federal power necessary to save the Union did not diminish the sovereignty of the states. On this view, return to “home rule,” which the Court actively supported in the 1870s and 1880s by, among other things, striking down other sections of the Ku Klux Klan Act,²⁰² confirmed that antebellum federalism principles survived the Civil War. The fact that return to home rule was instrumental to Jim Crow segregation is frequently elided by the modern Court when it invokes federalism principles. Justice Frankfurter’s dissent in Monroe is emblematic, insisting that

[t]he jurisdiction which Article III of the Constitution conferred on the national judiciary reflected the assumption that the state courts, not the federal courts, would remain the primary guardians of that fundamental security of person and property which the long evolution of the common law had secured to one individual as against other individuals. The Fourteenth Amendment did not alter this basic aspect of our federalism.²⁰³

The effect is to limit the powers conferred by the Reconstruction Amendments to remedy civil rights violations by relying on structural constitutional principles that betray the letter and spirit of these amendments, principles affirmed in precedents that blinked at and emboldened extralegal, violent resistance to Reconstruction. The Civil War and Reconstruction did alter basic aspects of “our federalism,” expanding federal court jurisdiction and with it access to the expertise, “experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.”²⁰⁴ But instead of solicitude, civil rights litigants all too often find federal courthouses inhospitable.

The second attribute of lost cause ideology is the view that the Reconstruction Congress overreached by legislating rights and remedies on the premise that states could not be trusted to redress federal constitutional violations.²⁰⁵ Section 1983 is itself excessive on this view, a remainder of Reconstruction and the exceptionally violent resistance that defined it. The Reconstruction Congress legislated no sunset clause in Section 1983. But that has not stopped the modern Court from treating the cause of action like an anachronism, an unwelcome remainder of a state of exception—one of the few statutory enforcement tools that was not struck down by the Court in its retreat from Reconstruction. Within this interpretive horizon, embellished fears about excessive liability and excessive interference with officer discretion and local control become predominant concerns, rather than state sanctioned violence and defiance of federal law. The modern Court has in this way developed a jurisprudence of excess in Section 1983 cases, just not one concerned with the state officer outrages against which the Reconstruction Congress legislated.

This is most evident in qualified immunity doctrine, where concern with excessive liability and judicial interference with executive officer discretion dwarfs concern with whether officers have complied with the Constitution and other laws.²⁰⁶ But it can be seen in other doctrines,²⁰⁷ and it resonates with Justice Frankfurter’s view in Monroe that the statute was intended to provide a cause of action only when state law or custom authorizes unconstitutional acts—that is, in the presumptively rare situation in which a state openly defies federal law and state common law provides no redress.

The modern Court has functionally endorsed Frankfurter’s dissent not by revisiting the interpretation of “under color” of law and overturning Monroe, but rather by expanding the affirmative defense of qualified immunity in officer suits, elevating the causation threshold for municipal liability, and limiting access to injunctive relief that could prevent recurring violations. Justice Frankfurter may have lost the battle of statutory interpretation in Monroe, but the modern Court has ensured that he won the war on the use of federalism to limit Section 1983. The result is expansive discretion in officer decisions about the use of force and inconsistency even in cases involving extraordinary violence. Tellingly, the Court has applied the Hope v. Pelzer exception to qualified immunity in only one case since 2002 when Hope was decided, it has emphasized that Hope’s exception for obvious unconstitutionality applies only in “rare” cases, and Hope has featured most prominently in opinions dissenting from the grant of qualified immunity.²⁰⁸ Thus, the Court has been relatively passive with a doctrine well-suited to address extraordinary violence. In the context of prison violence, the Eighth Amendment standard of liability for the use of force is explicitly tied to “malicious” and “sadistic” violence,²⁰⁹ but the test requires evidence of the officer’s subjective state of mind, and it allows officers to avoid liability for extraordinary violence skirting the line of malicious and sadistic harm. Even when the line is crossed, prisoners face far greater procedural obstacles than victims of police violence raising Fourth Amendment claims.

These obstacles exist because the only area in which Congress has expressly endorsed the Court’s subordination of Section 1983’s remedial purposes to federalism is in state prison conditions cases.²¹⁰ Passed during the most expansive period of mass incarceration²¹¹ when prison litigation reached one-fifth of the total number of civil cases filed in federal courts,²¹² the Prison Litigation Reform Act of 1995 (“PLRA”) includes an administrative exhaustion doctrine requiring strict compliance with state grievance procedures, an unwaivable filing fee even for prisoners who meet the in forma pauperis standard, a physical injury rule for money damage claims, and a right-remedy nexus requirement that sharply circumscribes federal equity power.²¹³ The effects on prison litigation have been palpable.²¹⁴ Immediately after the statute passed, decades-old continuing decrees in prison cases were vacated.²¹⁵

In Brown v. Plata,²¹⁶ decided fifteen years after the statute took effect, the persistence of breathtakingly cruel, unremedied unconstitutional conditions in California state prisons prompted the Court to uphold federal equity power notwithstanding the strict limits of the PLRA. The case is a parable of the Court’s jurisprudence of excess. Prison conditions in Plata shock the conscience, rivaling those which existed in state prisons under the so-called “hands-off” doctrine prior to Cooper v. Pate when federal courts simply refused to entertain prison conditions claims on federalism grounds.²¹⁷ As a result of their woefully inadequate mental health care system, California’s prisons had a suicide rate “80% higher than . . . for prison populations” nationally.²¹⁸ Data showed that “72.1% of suicides [in California prisons] involved ‘some measure of inadequate assessment, treatment, or intervention.’ ”²¹⁹ Shocking, systemic deficiencies in physical health care (inadequate facilities, doctors, nurses, and delays of months for acute conditions and “extreme departures from the standard of care”) caused “a preventable or possibly preventable death . . . once every five to six days.”²²⁰ Beyond preventable deaths, prisoners “suffering from severe but not life-threatening conditions[] experienced prolonged illness and unnecessary pain.”²²¹ The record is an intricately detailed catalogue of outrageous, arbitrary suffering.

However, to justify upholding the release of tens of thousands of prisoners notwithstanding the PLRA’s strict right-remedy nexus,²²² the majority could not just rely on the extensive record of suffering. The decree ordered release of healthy prisoners as well as unwell prisoners whose mistreatment did not violate the Eighth Amendment’s guarantee of minimally adequate medical care under Estelle v. Gamble.²²³ To uphold such sweeping relief, the majority adopted a prophylactic theory of the substantive right. The majority reasoned that the health care system was so dysfunctional that there was a “substantial risk” of prisoners suffering a violation of their rights under Estelle.²²⁴ Releasing prisoners (and moving some to local jails) would increase the state’s capacity to adequately address the health needs of those who remained.

Justice Scalia’s dissent sharply criticized this end run around the statute and its federalism principles. He insisted that Estelle claims exist only when individuals who already have serious medical conditions do not receive treatment because of the state’s deliberate indifference.²²⁵ Thus, no injunction to release prisoners merely at risk of an Estelle violation could be described as “narrowly drawn, . . . extend[ing] no further than necessary to correct the violation” or the “least intrusive means.”²²⁶ Moreover, Rule 23 provides no right to aggregate resolution of such claims given the particularity of each prisoner’s medical condition and their inadequate treatment.²²⁷ Decisions about how to rectify the health care problems in the prison system must remain with state prison officials. The lower court’s prison release order displacing local administrative discretion was “perhaps the most radical injunction issued by a court in our Nation’s history,” a “structural injunction” that deems an “entire” state-run prison “system . . . unconstitutional because it may produce constitutional violations.”²²⁸

Two years earlier, in Haywood v. Drown, the Court overturned parallel state legislative efforts in New York to eliminate Section 1983 money damage claims against corrections officers filed in state court.²²⁹ On a legislative record asserting that such claims were predominantly frivolous, the state stripped its courts of jurisdiction for both Section 1983 and state civil rights claims seeking money damages.²³⁰ Prisoners could still sue for damages, but only against the state itself, not the officer responsible for the harm, only in a separate court, not the state’s courts of general jurisdiction, and only subject to a range of procedural and remedial limitations that do not apply to the Section 1983 cause of action.²³¹ The Supreme Court struck down the law on the ground that it violated the Supremacy Clause by denying federal right holders access to a congressionally legislated cause of action, forum, and relief to enforce constitutional rights.²³² Like Plata, the case suggests a commitment on the part of the Roberts Court to preserve jurisdiction and remedial power notwithstanding the limitations Congress imposed on prison condition litigation in the PLRA. However, both Plata and Haywood were decided by bare 5–4 majorities, and as in Plata, the dissent in Haywood rested on federalism principles—specifically, the autonomy of states to control state court dockets by refusing jurisdiction of unwelcome federal claims.

The crucial swing vote in both cases was provided by Justice Kennedy. That fragile majority is sure to be tested in a reconfigured Roberts Court more committed to the dissents’ federalism principles. Notice the effects on prison conditions litigation if Plata and Haywood were to be reversed: Federal courts would be virtually closed to claims for injunctive relief under the PLRA and modern standing doctrine; strict officer immunity and municipal liability doctrines already render both state and federal courts inhospitable to Section 1983 money damage claims; and the dissent’s view in Haywood would permit state courts to simply refuse jurisdiction of Section 1983 prisoner claims. Prisoners would be left to state law claims in state court.

This outcome would be consistent with a central premise, arguably the central premise of federalism-based limitations on Section 1983 claims: that leaving federal constitutional right holders to state positive or common law is adequate to protect their federal constitutional rights. This was the structural constitutional core of Frankfurter’s dissent in Monroe. The conventional form of the argument is that when a state officer defends a state law claim (for example, a state common law claim for negligence rather than a federal claim for excessive use of force), the federal constitutional right will arise if the officer asserts that the action was sanctioned by state law.²³³ The defense can be rebutted by showing that what the officer did was, in view of the plaintiff’s federal constitutional rights, ultra vires. Federal law is then adjudicated, just not via a cause of action bottomed on the federal right. In theory, all that is lost is the federal right holder’s option to file in federal court.²³⁴

The cost of losing access to federal district court as the court of first instance matters if state courts are less hospitable to the claims of federal right holders. This was all too familiar during Reconstruction and Jim Crow segregation. More recently, state courts have faced extraordinary budget crises, forcing some local courts into a form of fiscal parasitism upon the very communities they are supposed to serve.²³⁵ And as Haywood and the cases on which it relies show, state legislative efforts to restrict Section 1983 litigation in state courts are not uncommon.

Notably, however, Section 1983 does not create exclusive federal jurisdiction—it does not rest on the assumption that state courts are categorically untrustworthy. Concurrent state court jurisdiction decentralizes judgments about which forum is appropriate, allowing the federal right holder to choose. The plaintiff, on advice of counsel, has the right to assess the specific circumstantial risks of hostility in state court, the costs and benefits of filing in federal court, and any other doctrinal and strategic considerations that may inform choice of forum.²³⁶ Using a broad structural constitutional principle such as federalism to displace congressionally endorsed, decentralized decision-making by the federal right holder with the Court’s arm chair conclusions about the fidelity and solicitude of state courts is precisely the kind of “Mr. Fix-It-Mentality” Justice Scalia rightly criticized as imperious judicial policymaking in a civil liberties case.²³⁷ It also flatly contradicts the Court’s near complete deference to Congress’s remedy-creating power in other settings. Most prominently, the Court has deferred to any evidence that Congress has established an alternative remedial scheme when the question is whether the Court should recognize an implied right of action to enforce constitutional rights violated by federal officers,²³⁸ an implied right of action to enforce statutory rights,²³⁹ or a right of action grounded in equity under Ex parte Young.²⁴⁰ If judicial restraint demands deference to the decision of Congress to create remedies in these settings, deference is owed to the forum-selection authority Congress granted federal right holders seeking relief under Section 1983. Conspicuously, the Court’s Section 1983 jurisprudence runs headlong in the opposite direction.

Also lost in enforcing federal civil rights through state law claims is the nexus between the federal right, the cause of action, and the remedy Section 1983 creates. The nexus between injury, right, cause of action, and remedy might seem like an abstraction. After all, what should it matter if a plaintiff receives $100,000 in damages on a state tort claim or $100,000 on a federal Fourth Amendment claim under Section 1983; so too a state injunction reaching the same conduct as a federal injunction? The difficulty is that state law and constitutional harms are not necessarily equivalent. There may be no state cause of action that overlaps with certain constitutional injuries. Even when there is, the elements of a state law cause of action, state procedure, and state remedies doctrine may defeat or limit recovery for certain violations of federal law. Ultimately, state law is not designed to implement federal interests and enforce federal rights.²⁴¹

State law may even be hostile to federal rights.²⁴² Causes of action designed to address harm inflicted by private persons do not reflect the anti-democratic harm arising from the violation of federal rights by an officer of the state acting “under color of law” with the badges, implements, and armory of the state’s monopoly on violence.²⁴³ Section 1983 claims, by contrast, name the abuse of sovereign authority directly and force the officer or municipal government to answer for it. If the essence of corrective justice is that “liability rectifies the injustice inflicted by one person on another . . . simultaneously taking away the defendant’s excess and making good the plaintiff’s deficiency[,]”²⁴⁴ then the right, cause of action, and remedy should correlatively address the injury and injustice of abuse of sovereign power.

The point is not that corrective justice requires perfect mirroring between the cause of action and the injury, but rather that the Court owes deference to the congressional judgment to make injury, right, and remedy mutually correlative rather than contingent on state common law where constitutional rights are concerned. Whatever wisdom and policy justified the common law approach to enforcing federal law in officer suits during the antebellum period,²⁴⁵ Reconstruction revealed the deadly consequences of its potential for abuse (in the form of “outrages”) and the Reconstruction Amendments empowered Congress to provide a less circuitous remedial path. The presumption in favor of state common law causes of action is precisely what Section 1983 rejects by bottoming a cause of action on the federal right itself. Lastly, it is no answer to say that the Supreme Court can exercise appellate jurisdiction to correct underenforcement of federal civil rights when it decides so few appeals from state courts.

These arguments have little resonance within the interpretive horizon of the modern Court’s federalism revival. Suit in state court under state law is presumptively superior as measured against the potential “excesses” of federal judicial intervention. Structural constitutional attachments have in this way come to dominate substantive constitutional rights, legislative text, and federal court remedial power. Unlike Kafka’s penal colony, however, where the apparatus responsible for the extraordinary excesses of the ancien regime was being dismantled and the officer’s perverse attachment to it was reassuringly anachronistic, here, now it is the second Reconstruction that is being dismantled, our body politic still transfigured by the inscriptions of sovereign power’s outrageous excess.

98 S. Cal. L. Rev. 367

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Norman W. Spaulding*

* Sweitzer Professor of Law, Stanford Law School. I am grateful for excellent assistance with research provided by Owen Foulkes, Anna Kuritzkes, Joelle Miller, and Molly Shapiro.

Property and Prejudice

April 2025April 2025Fatma Marouf* & Vanessa Casado Pérez†

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food security, and prevention of absentee ownership. But these laws completely fail to achieve their asserted goals. The poor means-end fit, combined with the availability of far less restrictive alternatives, leaves the new laws vulnerable to legal challenges under the Equal Protection Clause and the Fair Housing Act. But century-old Supreme Court precedents and gaps in legal doctrine may still make it difficult for such challenges to prevail. Preemption arguments based on immigration law, the foreign affairs power, and federal laws governing foreign investment, as well as Dormant Commerce Clause arguments, also involve legal hurdles. This Article analyzes these legal arguments, evaluates potential obstacles, and charts possible paths forward. Regardless of the legal viability of these laws, this Article cautions that they will perpetuate prejudice, open the door to a new form of segregation, and limit who can achieve the American Dream.

INTRODUCTION

Sun Guangxin, a Chinese real estate tycoon, owns 140,000 acres of land in Val Verde County, Texas, near an Air Force base close to the border.¹ He spent approximately $110 million on real estate purchases, paying above-market prices for plots that were not on the market.² But Mr. Sun did not buy this land himself. He used a Texan intermediary, who bought the land and transferred it to Mr. Sun’s company, GH America Energy LLC, a subsidiary of the China-based Guanghui Energy Company.³ The plan was to establish a wind farm and produce renewable electricity for the Texas grid.⁴

Environmentalists opposed the wind farm, but their concerns did not gain traction until they framed the wind farm as a threat to national security due to its location.⁵ That got the attention of Senator Ted Cruz and state legislators, who began campaigning against the wind farm.⁶ This campaign became a catalyst for several bills in Texas that restricted foreign ownership of land.⁷ The bill that received the most traction prohibited real property ownership by any businesses headquartered in China, Iran, Russia, and North Korea or owned or controlled by citizens of those countries, as well as by individual citizens and government actors from those countries.⁸

Texas is not alone. In the past year, bills have been proposed in over thirty states that would restrict foreign ownership of land, real estate, and natural resources.⁹ To date, a dozen of them have been enacted into law.¹⁰ Many of these laws single out specific countries perceived to be hostile, including, but not limited to, China, Iran, Russia, and North Korea. Some bills name countries directly, while others reference various federal designations, such as federal lists of “foreign adversaries” and “countries of particular concern.”¹¹ A few bills are a bit more subtle, restricting ownership by “state-controlled enterprises,” which are most common in China,¹² or citing statutes that address only Chinese military companies.¹³

These laws fan the flames of rising anti-Chinese sentiment. Over 80% of the U.S. population currently holds an unfavorable view of China.¹⁴ Fear of China’s economic and military power,¹⁵ disapproval of China’s foreign policies and human rights abuses,¹⁶ media reports blaming China for the COVID-19 pandemic,¹⁷ and angst over espionage,¹⁸ as well as explicit or implicit biases,¹⁹ fuel these views. Of course, most Chinese investors seeking to buy property in the United States are not acting as pawns of the Chinese Communist Party. Instead, they may be families trying to move their money beyond the reach of the Chinese government, investing to ensure that their children get a good education, or hoping to establish themselves in the United States.

Despite the new context, these laws conjure up one of the darkest periods of U.S. immigration history, involving Chinese Exclusion²⁰ and an Asiatic Barred Zone that swept across a continent.²¹ The history of alien land laws is intertwined with racial exclusions from U.S. citizenship and the creation of hierarchies based on race, national origin, and alienage.²² As California’s Attorney General said in 1913 when he championed the state’s alien land law aimed at limiting the presence of Japanese immigrants: “[T]hey will not come in large numbers and long abide with us if they may not acquire land.”²³ A century ago, the U.S. Supreme Court upheld California and Washington’s alien land laws, and it has never revisited the issue.²⁴ These lingering precedents from an unabashedly racist era are now being relied on by states eager to stretch the limits of traditional state powers like regulating the transmission of property and to influence the federal domains of immigration, national security, and foreign affairs.

This new wave of alien land laws differs from prior waves in important respects.²⁵ First, the naming of specific countries and use of certain federal lists reflects a new form of national security creep. This national security slant also appears in the heightened restrictions placed on property located within a certain distance of critical infrastructure, such as military bases and weather stations. While some states have found ten miles to be a safe distance, others require fifty miles, suggesting an arbitrariness to the restrictions imposed. The new laws also seek to ferret out foreign control in more complex corporate structures than ever before. And they punish violators with harsher criminal penalties than in the past.

While the laws purport to protect national security and food security, and to prevent absentee landownership, they are poorly designed to achieve these aims. Foreign ownership of U.S. real property is minimal. Only 2.9% of privately held agricultural land²⁶ and 1.8% of residential real estate²⁷ is foreign-owned. Additionally, the major foreign owners of agricultural land are not from the countries targeted by the new state laws. While China is second only to Canada on the list of foreign countries whose citizens are buying U.S. residential properties,²⁸ their share of US land is very small. Foreigners own 31% of the land in the U.S., but Chinese investors represent only 1% of all foreign-owned land.²⁹

But even assuming there are compelling government interests at stake, the means used to achieve them are ineffective. These laws will not solve the problem of foreign interests and corporate consolidation driving the real estate and agricultural markets, as sophisticated players can easily circumvent the restrictions. For example, because most of the laws do not restrict leases, a foreign-owned business could just lease land from local landowners. The restrictions on landownership will also not increase national security in an era of cyber warfare, drones, and spy balloons. Furthermore, some of these alien land laws target only ownership and not leases. A tenant occupying a property near a military base can be as dangerous as the owner of that land, if not more. This new wave of alien land laws also fail to prevent absentee landownership because they generally exempt noncitizens residing in other U.S. states, along with all U.S. citizens and permanent residents regardless of their location. Less restrictive alternatives to some of the proposed or enacted laws could include simply limiting the amount of land that foreigners may own, requiring owners to reside or work on the land to avoid absentee ownership, or creating exceptions for residences if the main concerns are agriculture and food.

Given the poor means-end fit, the true purpose of the laws appears to be symbolic. These laws may simply be a way for politicians to capitalize on the xenophobic sentiments of their electoral base. Sadly, their nefarious social effects will extend well beyond the real estate market.³⁰ Like racist property restrictions of the past, the new laws will subordinate minorities. Excluding people from home ownership keeps them out of communities, deters immigration, impedes intergenerational transfers of wealth, and obstructs personal flourishing. Even people who are not directly affected by the new laws will suffer due to the chilling effect on the real estate market. Sellers will be hesitant, at best, to engage in transactions with anyone from a targeted country.

This Article examines potential legal challenges to the new wave of alien land laws. Part I provides historical background about prior waves of alien land laws. Part II describes the distinctive characteristics of the current wave. Part III explores possible statutory and constitutional arguments for challenging the new laws. First, Part III explores whether these laws violate the Fair Housing Act, which was enacted as part of the Civil Rights Act of 1968 and prohibits discrimination in housing based on race and national origin.³¹ Second, Part III examines whether the new laws violate the Equal Protection Clause, highlighting the underdeveloped nature of equal protection jurisprudence on alienage and national origin classifications. This Section also stresses the lack of means-end fit, which we argue should result in the laws being struck down under either strict scrutiny or rational basis review.³² Next, this Article analyzes whether the new state laws are preempted by federal immigration law, the federal foreign affairs power, or the federal regulatory framework involving the Committee on Foreign Investment in the United States (“CFIUS”).³³ Finally, this Article analyzes whether the new laws violate the Dormant Commerce Clause with respect to both domestic and foreign commerce.

Legal challenges to the new alien land laws will not be easy. A federal district court has already refused to enjoin Florida’s law, which not only restricts individuals and companies domiciled in certain countries but also singles out those domiciled in China for especially harsh treatment.³⁴ The legal questions raised by alien land laws will likely reverberate in other important contexts as well. States like Texas and Florida are increasingly looking for ways to use well-established state powers, including police and property powers, to challenge the federal government’s authority over international borders and immigration.³⁵ Alien land laws represent one, but by no means the only, way for states to do this. If no restrictions are placed on alien land laws by courts or the federal government, states could use them to create new forms of segregation, excluding immigrants from their territories by denying them a place to live. In short, these laws once again instrumentalize property for racial prejudice.

I. A BRIEF HISTORY OF ALIEN LAND LAWS

Alien land laws in the United States date back to colonial times and to the influence of the English feudal system.³⁶ English feudal laws were designed to secure allegiance to the Crown and initially prohibited aliens from purchasing land; then, the laws prohibited them from inheriting it.³⁷ England eventually abolished those restrictions by statute in 1870.³⁸ But alien land laws continued in the United States, sanctioned by common law.³⁹ Some early land laws were incorporated into state constitutions in explicitly racial terms. For example, in 1859, Oregon amended its constitution to prevent any “Chinaman” from owning property in the state and granted only “white foreigners” the same property rights as citizens, a provision that was not repealed for over one hundred years.⁴⁰

Scholars have previously categorized alien land laws into several waves.⁴¹ During the first wave, which extended from approximately 1880 to 1900, eleven states restricted alien ownership of real property in response to a depressed agricultural economy and concerns over absentee landowners.⁴² Congress also passed the Territorial Land Act of 1887, which “forbade extensive alien landholding in the organized territories, except by immigrant farmers who had applied for citizenship.”⁴³ The federal law aimed to prevent large, foreign-owned ranches from jeopardizing statehood for the territories.

The second wave of alien land laws were passed in the 1920s, as a result of resentment toward Japanese immigrants engaged in farming in California, Oregon, and Washington.⁴⁴ California’s law “was enacted and . . . enforced solely as a discriminatory law directed against the Japanese.”⁴⁵ California’s Attorney General at the time, Ulysses S. Webb, was transparent about its purpose, framing the central issue as “race undesirability.”⁴⁶ The California law carried criminal penalties and resulted in successful prosecutions;⁴⁷ it also led to severe financial losses with over 30,000 Japanese farmers abandoning “nearly 500,000 acres of California’s richest crop lands.”⁴⁸ Beyond these penalties, the law had a severe psychological impact, demoralizing and subordinating Japanese Americans.⁴⁹

Alien land laws passed at this time often excluded Japanese and other Asians by precluding noncitizens “ineligible for citizenship” from owning land.⁵⁰ As Keith Aoki observed, “ ‘aliens ineligible to citizenship’ was a disingenuous euphemism designed to disguise the fact that the targets of such laws were [Japanese].”⁵¹ Laws dating back to 1790 and 1870 excluded Asians from naturalizing.⁵² In 1922, the U.S. Supreme Court confirmed that a Japanese person could not be naturalized because he was not “white.”⁵³ The following year, the Court reached the same conclusion regarding someone from India.⁵⁴

That same year—1923—the U.S. Supreme Court upheld Washington’s and California’s alien land laws.⁵⁵ Both cases involved U.S. citizens who wanted to lease land to Japanese farmers. In Terrace v. Thompson, the Court reasoned that Washington had “wide discretion in determining its own public policy and what measures are necessary for its own protection and properly to promote the safety, peace and good order of its people.”⁵⁶ The Court explained that “in the absence of any treaty provision to the contrary, [a state] has power to deny to aliens the right to own land within its borders.”⁵⁷ Similarly, in Porterfield v. Webb, the Court found California’s law limiting property rights to those “eligible to citizenship” to be constitutional.⁵⁸ Two other U.S. Supreme Court cases decided that year upheld laws restricting the transfer of shares of a landowning corporation to aliens⁵⁹ and prohibiting food crop contracts with aliens.⁶⁰

But Supreme Court decisions issued in 1948 cast doubt on whether Terrace and Porterfield remained good law. In Oyama v. California, the Court invalidated a provision of California’s alien land law that deprived a U.S. citizen of Japanese descent of agricultural land paid for by his father.⁶¹ The Court found that the state had failed to offer any compelling justification for discriminating against a citizen “based solely on his parents’ country of origin.”⁶² The Court recognized that restrictions based on ineligibility for citizenship constituted discrimination based on “racial descent.”⁶³ That same year, in Takahashi v. Fish and Game Commission, the Court declared unconstitutional a California law that allowed only U.S. citizens to get fishing licenses, which was aimed at discouraging Japanese immigrants from returning to the state after their exclusion from the West Coast and internment.⁶⁴ Justice Black, writing for the Court, explained that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.”⁶⁵

In the years following Takahashi, the supreme courts of Oregon, California, and Montana invalidated those states’ alien land laws, recognizing their racist nature and finding them unconstitutional.⁶⁶ The Supreme Court of California opined that the law imposed on noncitizens “an economic status inferior to that of all other persons living in the state. ”⁶⁷ Other states decided to simply repeal their laws.⁶⁸ The Immigration and Nationality Act of 1952, which made naturalization race-neutral, rendered meaningless any remaining state laws that still tied property ownership to eligibility for citizenship.⁶⁹ But various other types of alien land laws remained. For example, in 1943, Wyoming had enacted an alien land law that prohibited Japanese Americans who had been in internment camps from buying land in the state, which was not repealed until 2001.⁷⁰

During the Cold War, a third wave of state laws emerged limiting the rights of foreigners to receive land by inheritance.⁷¹ The purpose of these laws was to keep U.S. wealth from communist regimes rather than to prevent noncitizens from owning land.⁷² This practice ended after the U.S. Supreme Court’s 1968 decision in Zschernig v. Miller, which invalidated an Oregon statute that conditioned a noncitizen’s inheritance right on reciprocal rights being granted to U.S. citizens.⁷³ The Court found that the Oregon law was preempted because it intruded on the federal government’s authority over foreign affairs.

A fourth wave of alien land laws occurred during the 1970s in response to media reports of increased foreign investment in U.S. farmland.⁷⁴ These laws generally restricted the type and amount of land that noncitizens could purchase. Media reports stoked fears that family farmers in the U.S. were threatened by foreign investment.⁷⁵ In 1972, the Wisconsin Supreme Court upheld an alien land law with “no racial implications” that restricted only the amount of land that could be owned by foreign investors, finding the law “sufficiently related to the state’s asserted desire to limit possibly detrimental absentee land ownership.”⁷⁶

The current wave of land laws has much in common with these prior waves. Anti-immigrant biases, xenophobia, and fears regarding the fate of family farmers all appear to be playing a role. But as discussed below, the new bills and law also have their own distinct characteristics.

II. RECENT BILLS AND LAWS: THE FIFTH WAVE

The fifth wave of alien land laws began around 2020 and rapidly gained momentum. In 2022 and 2023, dozens of bills were proposed across the country restricting the ownership of real property by individual noncitizens, foreign companies, and foreign governments.⁷⁷ To date, twelve of those bills have been enacted into law in Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Montana, North Dakota, Oklahoma, Tennessee, Utah, and Virginia. These laws, like their predecessors, vary widely, both in terms of whom they restrict and what is restricted.

Some of the newly enacted laws focus on foreign governments and businesses rather than individuals.⁷⁸ Among the laws that apply to individual noncitizens, most restrict only “non-resident aliens,” while exempting “resident aliens.” Residence in this context generally refers to domicile in the United States,⁷⁹ but a couple of laws define a “resident alien” to mean a noncitizen who lives in the state.⁸⁰ Some of the laws require “resident aliens” to dispose of their real property within a certain amount of time if they no longer qualify as residents of the state.⁸¹

Other laws turn on immigration status rather than residence. For example, Louisiana’s law exempts anyone “lawfully present” in the U.S.⁸² Tennessee’s definition of a “sanctioned nonresident alien” explicitly excludes legal permanent residents.⁸³ North Dakota, like Minnesota, exempts not only legal permanent residents but also noncitizens who enter with certain types of temporary investor or trader visas that are available only to citizens of specific countries that have special treaties with the United States.⁸⁴

Like prior waves, many of the new laws place restrictions specifically on agricultural land and other natural resources.⁸⁵ Some are even more specific. Indiana, for example, has prohibited foreign business entities from owning agricultural land for the purpose of crop farming or timber production.⁸⁶ However, there are also novel types of restrictions. Notably, many of the new laws restrict ownership of land within a certain distance of a military installation or other “critical infrastructure.”⁸⁷ Other bills and laws apply broadly to any type of land or real property.⁸⁸

The following Sections take a closer look at some of the distinct characteristics of the new wave of alien land laws and proposed bills. These include singling out specific countries or nationalities by name, focusing on foreign adversaries, prohibiting landownership within a certain distance of military installations or critical infrastructure, focusing on agricultural land, imposing more severe penalties for violations, and targeting all types of foreign control in complex corporate structures.

A. Singling Out Specific Countries

Bills proposed in at least a dozen states (including Alabama, Arkansas, Colorado, Iowa, Florida, Georgia, Maryland, Mississippi, South Carolina, Texas, West Virginia, and Wyoming) singled out specific countries for property restrictions.

For example, Alabama enacted a law that defines a “foreign country of concern” as “China, Iran, North Korea, and Russia.”⁸⁹ Bills considered in Arkansas,⁹⁰ Georgia,⁹¹ and Texas⁹² similarly placed restrictions on citizens of these four countries. In Colorado, West Virginia, and Wyoming, proposed bills placed restrictions on citizens of China, Russia, or any country designated as a “state sponsor of terrorism.”⁹³

Florida enacted an alien land law that defined a “foreign country of concern” to mean China, Iran, North Korea, Russia, Cuba, the Venezuelan regime of Nicolás Maduro, and Syria.⁹⁴ Florida’s law is harshest, however, on citizens of China, placing more severe restrictions on them and subjecting them to stiffer penalties for violating the law.⁹⁵ A bill proposed in Arizona included the same seven countries on Florida’s list plus Saudi Arabia.⁹⁶ The Arizona bill emerged after a Saudi Arabian company made headlines for leasing Arizona public lands and pumping exorbitant amounts of groundwater to grow alfalfa for export to Saudi Arabia.⁹⁷

Many other bills singled out China alone, including bills proposed in Iowa,⁹⁸ Maryland,⁹⁹ Mississippi,¹⁰⁰ South Carolina,¹⁰¹ and Washington.¹⁰² Two Arizona bills,¹⁰³ as well as a bill proposed in Hawaii,¹⁰⁴ refer specifically to the Chinese Communist Party and its members. A Utah bill indirectly references Chinese companies by defining a “restricted foreign entity” as a company that the Secretary of Defense is required to report as a military company, which includes only Chinese military companies.¹⁰⁵ The intense focus on China across so many of these bills and laws is reminiscent of the anti-Asian sentiment that fueled alien land laws long ago. Alien land laws singling out specific countries are less likely to pass constitutional muster than more evenhanded laws.¹⁰⁶

B. Targeting Foreign Adversaries

Prior to the most recent wave, only five states had alien land laws that restricted land ownership by citizens of foreign adversaries.¹⁰⁷ None of those laws explicitly referred to foreign adversaries, much less attempted to name them. Instead, they benignly extended equal property rights to “alien friends” (New Jersey),¹⁰⁸ “[a]liens who are subjects of governments at peace with the United States and this state” (Georgia),¹⁰⁹ or any alien who is “not an enemy” (Kentucky, Maryland, and Virginia).¹¹⁰

In 2023, however, numerous state legislatures considered or passed laws restricting property ownership rights of citizens and companies of countries designated by the federal government as hostile to the U.S. or its values in some way. These bills and laws use various federal lists that were created for completely different purposes.

Laws enacted in Louisiana,¹¹¹ North Carolina,¹¹² and Virginia,¹¹³ as well as bills proposed in Kansas,¹¹⁴ Montana,¹¹⁵ Ohio,¹¹⁶ South Carolina,¹¹⁷ and Wisconsin,¹¹⁸ refer to the Secretary of Commerce’s designation of certain countries as “foreign adversaries” in the Code of Federal Regulations.¹¹⁹ This designation is based on the Secretary’s determination that a foreign government or foreign nongovernment person has “engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.”¹²⁰ Currently, this designation applies to six countries: China (including Hong Kong), Cuba, Iran, North Korea, Russia, and “Venezuelan politician Nicolás Maduro (Maduro Regime).”¹²¹

The Ohio bill and Louisiana law restrict not only “foreign adversaries” as defined by Secretary of Commerce but also the much longer list of foreign governments sanctioned by the Office of Foreign Assets Control (“OFAC”), which adds Afghanistan, Belarus, Burma, Central African Republic, Democratic Republic of Congo, Ethiopia, Iraq, Lebanon, Libya, Mali, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen, and Zimbabwe.¹²² A law enacted in Tennessee, on the other hand, refers to citizens of foreign governments sanctioned by OFAC but does not include “foreign adversaries” designated by the Secretary of Commerce.¹²³

Other bills and laws refer to various U.S. State Department designations. For example, a bill proposed in New York¹²⁴ refers to a “foreign country of particular concern,” which currently includes twelve countries designated by the State Department: Burma, China, Cuba, Eritrea, Iran, North Korea, Nicaragua, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan. Bills proposed in Colorado, West Virginia, and Wyoming reference a completely different U.S. State Department designation—“state sponsors of terrorism”—a list that currently includes only four countries: Cuba, Iran, North Korea, and Syria.¹²⁵

States have also incorporated other federal definitions into their bills and laws. For example, the law passed in Arkansas references not only foreign countries of “particular concern” but also includes citizens or residents of countries subject to the International Traffic in Arms Regulations.¹²⁶ Meanwhile, a bill proposed in Texas referred to countries identified by the United States Director of National Intelligence as posing a risk to the national security of the United States in each of the three most recent Annual Threat Assessments of the U.S. Intelligence Community.¹²⁷ At least one law, enacted in Indiana, does not refer to federal definitions at all and instead allows the governor to designate certain countries as a threat to critical infrastructure.¹²⁸

A few of the proposed bills simply make vague references to “hostile” countries without providing a clear definition of the term. For instance, a Mississippi bill restricts ownership by “citizens of a country that is hostile to the interests of the United States or a country that is a known violator of human rights,” without explaining how such countries should be identified.¹²⁹ Similarly, a Hawaii bill that restricts land ownership by members of the Chinese Communist Party also refers to “other hostile foreign influence,” providing only a vague definition of this term.¹³⁰

C. Proximity to Military Installations and Critical Infrastructure

Additionally, many of the recent bills and laws limit landownership near military installations or other critical infrastructure. Considerable variation exists among the bills regarding what types of facilities are included under these terms as well as what constitutes an acceptable distance from them.

For example, a bill proposed in California prohibits foreign actors from owning or leasing land within fifty miles of a U.S. military base or California National Guard Base.¹³¹ A bill proposed in Louisiana restricts foreign ownership of “immovable property located within [fifty] miles of any federal or state military land, . . . weather station[], . . . or any facility operated by the Civil Air Patrol.”¹³² A bill proposed in Mississippi prohibits nonresident aliens from owning land within fifty miles of a military installation under the jurisdiction of the Department of Defense, the U.S. Coast Guard, or the Mississippi National Guard.¹³³ A South Carolina bill prohibits companies owned by China or the Chinese Communist Party, or whose principal place of business is in China, from controlling any land or real estate “within fifty miles of a state or federal military base or installation for the purpose of installing or erecting any type of telecommunications or broadcasting tower.”¹³⁴

Bills proposed elsewhere specify shorter distances from military installations. For example, a Georgia bill prohibits nonresident aliens from possessing any land within twenty-five miles of any military base, military installation, or military airport.¹³⁵ A North Carolina bill prohibits adversarial foreign governments from purchasing or holding land within twenty-five miles of a military base or airport.¹³⁶ The law enacted in Florida generally prohibits foreign land ownership within ten miles of a military installation or critical infrastructure facility.¹³⁷ Florida’s choice of ten miles is particularly interesting given that the legislative history indicates that a major concern was a Chinese company’s purchase of land located twelve miles from an air force base in North Dakota.¹³⁸ Meanwhile, a bill proposed in Hawaii considered just two miles from federal land or critical infrastructure to be a safe distance.¹³⁹

D. Harsh Penalties

Criminal penalties and prosecutions for violations of alien land laws are not new. In California and Arizona, such criminal prosecutions were common during the 1920s and 1930s, but those laws were subsequently repealed.¹⁴⁰ Penalties for violating a state’s alien land laws have generally been civil. Forfeiture of the property or sale at auction with proceeds escheating to the state were commonly specified as penalties in state laws. Under some laws, such as Wisconsin’s, a civil fine could be imposed, ranging from $500 to $5,000.¹⁴¹ Criminal penalties existed but were rare.¹⁴²

In the most recent wave of bills, criminal penalties have gained popularity, and civil fines are steeper. Additionally, some of the new bills and laws impose penalties on the sellers as well as the buyers. For example, the alien land law enacted in Arkansas makes a violation a felony punishable by two years in jail and a $15,000 fine.¹⁴³ Being a “resident alien” is mentioned as an “affirmative defense” to the charge.¹⁴⁴ Florida has also made it a criminal offense to violate its new law, which imposes harsher criminal consequences on Chinese purchasers of land than purchasers of other nationalities.¹⁴⁵ Violators who are domiciled in China may be charged with a third-degree felony, punishable by up to five years in jail and a $5,000 fine, while violators domiciled in the other countries named in Florida’s law may be charged with only a second-degree misdemeanor, punishable by sixty days in jail and a $500 fine.¹⁴⁶ This disparity extends to sellers. Selling real property to individuals or companies domiciled in China is a first-degree misdemeanor, punishable by one year in prison and a $1,000 fine, while selling property to individuals or companies domiciled in other countries is only a second-degree misdemeanor.¹⁴⁷

E. Targeting Corporations

Finally, the current wave of alien land laws targets all forms of foreign control in complex corporate structures. The laws restrict not only foreign corporations but also companies incorporated in the U.S. if they are controlled by noncitizens who would not be allowed to purchase the real estate themselves. The expansive language used in some of these laws reflects an attempt to close the loopholes in previous laws that allowed foreigners to acquire land simply by channeling their investments through the veil of a U.S. corporation. This was one of the main drivers behind the recent alien land law passed in Oklahoma, which specified that “[n]o alien or any person who is not a citizen of the United States shall acquire title to or own land in this state either directly or indirectly through a business entity or trust.” ¹⁴⁸

Similarly, a Tennessee bill defined a “foreign business” as “a corporation incorporated under the laws of a foreign country, or a business entity whether or not incorporated, in which a majority interest is owned directly or indirectly by nonresident aliens.”¹⁴⁹ The bill further explained, “Legal entities, including, but not limited to, trusts, holding companies, multiple corporations, and other business arrangements, do not affect the determination of ownership or control of a foreign business.”¹⁵⁰ But this bill still has a major loophole—its definition of a foreign business is limited to owning a majority interest and does not address control. Nonresident aliens could control a corporation based on voting power, even if they do not own a majority of the stock.¹⁵¹

Many other bills closed that loophole. A Washington bill, for example, prohibited acquisition of agricultural land by a foreign-controlled enterprise and defined a controlling interest to mean “possession of more than [fifty] percent of the ownership interests in an entity, or an ownership interest of [fifty] percent or less if the persons holding such interest actually direct the business and affairs of the entity without the consent of any other party.”¹⁵² A law enacted in North Dakota adopts a nearly identical definition.¹⁵³

While the definitions in the new bills and laws vary and are not perfect, they clearly seek to capture all kinds of businesses in which noncitizens play a decisive role. Of course, if a corporation is forty-nine percent owned by U.S. citizens and fifty-one percent owned by noncitizens, the U.S. citizen owners are also likely to suffer financial setbacks as a result of such laws.

III. ARE ALIEN LAND LAWS LEGAL?

Commentators have taken different perspectives on the legality of alien land laws in the past.¹⁵⁴ Some have argued that alien land laws would violate the Equal Protection Clause if they singled out specific countries.¹⁵⁵ Others contend that only restrictions on lawful permanent residents would raise equal protection concerns, and even those may be permissible.¹⁵⁶ Preemption concerns and Dormant Commerce Clause concerns have also been raised.¹⁵⁷ Because of significant variations among the laws, it is difficult to analyze these legal issues for the laws as a whole. Nevertheless, this Part attempts to parse some of the legal challenges that the new wave of alien land laws may face.

A. Statutory Violations

Alien land laws may conflict with federal statutes that prohibit discrimination such as the Fair Housing Act (“FHA”)¹⁵⁸ and the Civil Rights Acts of 1866¹⁵⁹ and 1870.¹⁶⁰

1. The Fair Housing Act

The FHA, enacted as part of the Civil Rights Act of 1968, seeks to prohibit unlawful discrimination by landlords. Under the FHA, it is discriminatory “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”¹⁶¹ Although alienage is not specifically mentioned, the U.S. Department of Housing and Urban Development (“HUD”) has stated that “[a] requirement involving citizenship or immigration status will violate the [FHA] when it has the purpose or [unjustified] effect of discriminating on the basis of national origin.”¹⁶² Private parties would be violating the FHA if they comply with state laws that restrict who can buy or lease real estate based on national origin. States may enhance the protections of the FHA but cannot reduce them. Section 816 of the FHA declares invalid any state law that requires or permits any action that would be a discriminatory housing practice under the FHA.¹⁶³

One aspect of the FHA that makes the inquiry different from an equal protection claim is that claimants do not need to prove discriminatory intent. A facially neutral law may violate the FHA if it has “discriminatory effects.”¹⁶⁴ This is useful in challenging a law like Florida’s, which may be perceived as discriminating based on domicile rather than national origin. By prohibiting sales of real estate to individuals and companies domiciled in China, Florida’s law clearly has discriminatory effects related to national origin: China has over one billion inhabitants, of whom only .05% are not Chinese.¹⁶⁵ Similarly, other countries identified as “foreign adversaries” under Florida’s law have a very small percentage of foreigners. Less than 0.1% of Cuba’s population are immigrants, for instance.¹⁶⁶

A law that has a discriminatory effect on a protected class is unlawful if it is not necessary to achieve a substantial, legitimate, nondiscriminatory interest, or if a less discriminatory alternative could serve that interest.¹⁶⁷ As discussed further under equal protection below, alien land laws are not necessary to achieve the asserted interests, and less discriminatory alternatives are, in fact, available.

An important limitation of the FHA, however, is that it only applies to “dwellings,” that is, to real estate capable of being used as a residence.¹⁶⁸ Thus, while broadly written alien land laws that restrict real estate (or real property in general) remain vulnerable to FHA challenges,¹⁶⁹ those that restrict only agricultural land cannot be challenged under the Fair Housing Act.¹⁷⁰ The Civil Rights Acts of 1866 and 1870 may help fill this gap, although, as explained below, these laws have their own limitations.

2. Civil Rights Acts of 1866 and 1870

The Civil Rights Act of 1866 provided that “citizens . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts . . . as is enjoyed by white citizens.”¹⁷¹ The Civil Rights Act of 1870 made a significant revision by changing “citizens” to “persons.”¹⁷² This language is now codified in 42 U.S.C. § 1981 (“section 1981”). The revised language made it clear that noncitizens, as well as citizens, are protected by the law’s equality mandate.¹⁷³ Courts have also construed section 1981 as prohibiting discrimination based on alienage.¹⁷⁴ Alien land laws may therefore run afoul of section 1981.¹⁷⁵

One limitation of section 1981 is that it applies only to individuals “within the jurisdiction of the United States.” While this phrase includes noncitizens in the United States,¹⁷⁶ it would likely exclude noncitizens residing abroad, the group most affected by alien land laws. Corporations headquartered abroad that are “foreign adversaries” under Montana’s law therefore may not be able to bring challenges under section 1981, although if they have U.S.-based subsidiaries, such challenges may still be possible. Other states, like Indiana, have broad definitions of “qualified entities.”¹⁷⁷ Many alien land laws tackle corporations controlled by foreigners. Any qualified entities based in the U.S. should be able to bring section 1981 challenges, even if they are owned or controlled by citizens of Iran, North Korea, or China.

Another potential limitation of section 1981 is that a separate provision of the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1982 (“section 1982”), specifically addresses property and extends equal protection only to U.S. citizens.¹⁷⁸ Specifically, section 1982 provides: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”¹⁷⁹ That language was not altered by the Civil Rights Act of 1870. Courts could therefore interpret section 1982 as a limited exception to section 1981’s more general rule about contracts, excluding contracts pertaining to property from the alienage equality principle found in section 1981.

Even under this interpretation, however, section 1981 is still relevant, since some of the recently enacted laws not only prohibit buying and selling real property, but also prohibit forming other types of contracts. For example, Indiana’s, Montana’s, and Texas’s new alien land laws prohibit certain foreign entities from countries like China from entering into agreements regarding critical infrastructure (energy grid, water treatment plants, and so on).¹⁸⁰

Additionally, one could argue that section 1982 prohibits the restrictions that alien land laws place on U.S. citizen sellers and landlords, as well as U.S. citizen-owned or controlled realty and title companies. From the perspective of U.S. citizens who want to sell properties, the restrictions imposed by states are restraints on alienation.¹⁸¹ The laws shrink their market, and if the claims about Chinese investors flooding the market and paying exorbitant prices are true,¹⁸² then real estate owners and companies who cater to this population will lose a profitable share of potential buyers. One complication with this argument is that U.S. citizen sellers are not necessarily being treated differently from other “white citizens” under the language of section 1982. For the argument to work, the focus would likely have to be on non-white U.S. citizen sellers, for example, U.S. citizen sellers of Chinese descent whose clientele potentially include a substantial number of Chinese citizens or companies domiciled in China. These U.S. citizen sellers of Chinese descent could argue that they are being deprived of the same opportunities to sell real property that are enjoyed by white citizens who do not have clientele in China.

Another possible legal hurdle is that a disparate impact claim under section 1981 or section 1982 requires showing that the disparate impact is traceable to a discriminatory purpose.¹⁸³ This is more limiting than a disparate impact claim under the FHA. Nevertheless, the legislative history and rhetoric surrounding the passage of some of the laws may help demonstrate a discriminatory purpose. State legislators and executive officials discussing alien land laws have used inflammatory rhetoric coated with national security concerns. Feeding on the anti-Asian sentiment fueled by dubious theories about the origin of COVID-19 and compounded by economic fears concerning China’s influence, their statements are reminiscent of the language used in the era of the “Yellow Peril.”¹⁸⁴ Although alien land laws may seem somewhat removed from the original purpose of the Civil Rights Acts, which was to prevent discrimination against African Americans in the wake of the Civil War, the rhetoric surrounding these laws reflects a form of racial discrimination.

B. Equal Protection Concerns

The Equal Protection Clause applies to all persons within the United States, including all noncitizens.¹⁸⁵ But noncitizens abroad generally are not regarded as having a right to equal protection,¹⁸⁶ although open questions about extraterritorial rights certainly remain.¹⁸⁷ This may be a threshold hurdle for bringing an equal protection challenge, since many of the alien land laws apply only to “nonresident aliens” and define “resident aliens” as noncitizens living anywhere in the U.S.¹⁸⁸ If an alien land law restricts only foreigners abroad, an equal protection challenge would likely need to be brought by the individuals and companies based in the U.S. that are prohibited from selling or leasing real property to foreigners abroad.¹⁸⁹

Another major challenge in bringing an equal protection claim will be the century-old Supreme Court precedents in Terrace and Porterfield upholding alien land laws, which have never been overruled.¹⁹⁰ Of course, in the 1920s, equal protection jurisprudence was quite different than it is today. Segregation, Jim Crow, and racially restrictive covenants were all legal.¹⁹¹ Levels of judicial scrutiny were not introduced until 1938, in the famous footnote four of United States v. Carolene Products, in which Justice Stone mentioned certain circumstances that may call for a “more searching judicial inquiry,” including cases involving “prejudice against discrete and insular minorities.”¹⁹²

In 1948, when the Supreme Court applied this type of searching judicial inquiry in Oyama, it invalidated as racially discriminatory a part of California’s alien land law that deprived U.S. citizens of Japanese descent of property rights.¹⁹³ But the Court stopped short of invalidating the law altogether.¹⁹⁴ That same year, in Takahashi, when the Court struck down a California law that prohibited those “ineligible for citizenship” from obtaining fishing licenses, it rejected California’s reliance on the Terrace and Porterfield cases, finding them not controlling even “[a]ssuming the[ir] continued validity.”¹⁹⁵

The modern strict scrutiny test did not emerge until the 1960s.¹⁹⁶ And it was not until 1971 that the Supreme Court applied strict scrutiny to alienage classifications.¹⁹⁷ In a watershed decision, Graham v. Richardson, the Court found that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority . . . for whom such heightened judicial solicitude is appropriate.”¹⁹⁸ Applying this new, rigorous standard of review, the Court struck down Arizona and Pennsylvania statutes that favored citizens over noncitizens in welfare benefits.¹⁹⁹ Richardson rejected the states’ argument that the restrictions were justified by “a State’s ‘special public interest’ in favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits.”²⁰⁰ The Court also flatly rejected “fiscal integrity” as a compelling justification, stating that “aliens lawfully within this country have a right to enter and abide in any State in the Union ‘on an equality of legal privileges with all citizens under non-discriminatory laws.’ ”²⁰¹

The Supreme Court continued to apply strict scrutiny to strike down state laws that discriminated against noncitizens in employment. The Court invalidated a New York law that permitted only U.S. citizens to be eligible for state employment,²⁰² a Connecticut law that permitted only U.S. citizens to become lawyers,²⁰³ and a Texas law that permitted only U.S. citizens to be notary publics.²⁰⁴

However, the Court has also recognized an exception to strict scrutiny in cases where alienage classifications are related to a state’s political function.²⁰⁵ In Bernal v. Fainter, the Court described this as a “narrow exception” that “applies to laws that exclude aliens from positions intimately related to the process of democratic self-government.”²⁰⁶ Under the political function exception, the Court has applied rational basis review to uphold laws that require police officers,²⁰⁷ probation officers,²⁰⁸ and public school teachers²⁰⁹ to be U.S. citizens.

If strict scrutiny applies to an alien land law, then the law must be narrowly tailored to a compelling government interest, a test that is generally difficult to pass. If rational basis applies, the law must merely be related to a legitimate government interest. Determining which level of scrutiny applies is therefore a critical threshold question in assessing the likelihood of prevailing with an equal protection claim.

1. Does Strict Scrutiny Apply?

There are at least three important legal questions that must be answered in order to determine if alien land laws are subject to strict scrutiny. First, do all alienage classifications receive strict scrutiny or only those affecting lawful permanent residents? Second, does the “political function” exception to strict scrutiny for alienage classifications apply to alien land laws? Third, do restrictions that turn on being domiciled (or headquartered, for a corporation) in particular countries discriminate based on national origin?

i. Do All Alienage Classifications Receive Strict Scrutiny, or Only Classifications Affecting Lawful Permanent Residents?

The Supreme Court’s decision in Richardson broadly stated that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority” and that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”²¹⁰ This language does not distinguish between legal permanent residents and other noncitizens. Subsequently, in Nyquist v. Mauclet, the Supreme Court also applied strict scrutiny in striking down a New York statute that barred a heterogeneous group of noncitizens (not just permanent residents) from state financial aid for higher education, stressing that “[t]he important points are that [the statute] is directed at aliens and that only aliens are harmed by it.”²¹¹

While the Court has never limited the application of strict scrutiny to lawful permanent residents, its use of the term “resident aliens” has created confusion. The term “resident alien” can easily be misconstrued as shorthand for a permanent resident, although it simply refers to an alien residing in the United States.²¹² Asylum applicants, refugees, and noncitizens with a variety of temporary visas, among others, are permitted to reside in the United States, even though they are not lawful permanent residents.

In Toll v. Moreno, the Supreme Court had an opportunity to clarify what level of scrutiny applies to classifications involving temporary immigrants (technically called “nonimmigrants”) when evaluating a University of Maryland policy that prohibited individuals with G-4 visas from receiving in-state tuition.²¹³ But the Court ultimately found that the university policy was preempted and declined to address the equal protection claim.²¹⁴ A circuit split has since emerged regarding what level of scrutiny applies to state classifications involving temporary immigrants.

The Fifth Circuit has held that temporary immigrants are not a suspect class, applying rational basis review in upholding Louisiana laws that prohibit temporary immigrants from taking the bar exam²¹⁵ and obtaining a nursing license.²¹⁶ In explaining why classifications affecting temporary immigrants receive rational basis review, the Fifth Circuit stressed the ways that temporary immigrants are different from permanent residents, noting that “nonimmigrant aliens may not serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits.”²¹⁷ The Sixth Circuit followed the Fifth Circuit’s rationale, applying rational basis review in upholding a Tennessee statute that conditions issuance of a driver’s license on being a U.S. citizen or permanent resident.²¹⁸

The Second Circuit, on the other hand, has held that temporary immigrants are a suspect class and applied strict scrutiny in striking down a New York statute that prohibited them from a obtaining a pharmacist’s license.²¹⁹ The court refused to create an exception to strict scrutiny for temporary immigrants that the Supreme Court never recognized.²²⁰ Additionally, the court reasoned that the factual similarities between U.S. citizens and permanent residents recognized in Richardson were never intended to be a test for triggering strict scrutiny.²²¹ The court correctly recognized that Richardson’s recognition of aliens as a “discrete and insular minority” was premised on their minority status within the community, not their similarity to citizens.

The only class of noncitizens that the Supreme Court has ever treated differently in terms of the level of scrutiny that applies are undocumented individuals. But even in Plyler v. Doe, in which the Court refused to recognize undocumented children as a suspect class, the Court struck down the Texas statute that denied them a basic education.²²² There, the Court applied a form of intermediate scrutiny by requiring Texas to show that it had a “substantial” interest in excluding undocumented children from public schools.²²³ This heightened scrutiny may have been unique to a case that stressed the importance of education and the innocence of children.²²⁴ Still, if undocumented children received heightened scrutiny, it is difficult to argue that lawfully present noncitizens should receive rational basis review simply because they are not permanent residents.²²⁵

ii. Does the “Political Functions” Exception to Strict Scrutiny for State Alienage Classifications Extend to Ownership of Real Property?

Courts have not yet addressed whether state alien land laws fall under the “political functions” exception to strict scrutiny. If the exception applies, a state’s alienage classifications would receive only rational basis review. In Shen v. Simpson, the case challenging Florida’s 2023 alien land law, Florida argued that the political function exception applies, triggering only rational basis review.²²⁶ Thus far, however, the Supreme Court has only applied the political functions exception to certain state jobs.

The Supreme Court set forth a two-part test for determining “whether a restriction based on alienage fits within the narrow political-function exception.”²²⁷ First, a court examines the specificity of the classification: “[A] classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends.”²²⁸ As explained further below in the application of the strict scrutiny test, alien land laws are substantially over- and under-inclusive. That alone undercuts the relevance of the political function exception.

Additionally, the second part of the test provides that:

[E]ven if the classification is sufficiently tailored, it may be applied in the particular case only to “persons holding state elective or important nonelective executive, legislative, and judicial positions,” those officers who “participate directly in the formulation, execution, or review of broad public policy” and hence “perform functions that go to the heart of representative government.”²²⁹

The plain language of the second prong indicates that the exception applies only to certain public positions. Owning real property is not a public position. Nor does being a property owner require any involvement in the formulation, execution, or review of public policies. Restricting property ownership is different from “limit[ing] the right to govern to those who are full-fledged members of the political community.”²³⁰

One way to view the issue is to consider whether real property ownership is more closely related to Supreme Court cases protecting noncitizens’ rights to equal economic opportunity,²³¹ or to cases that allow states to limit certain public positions to U.S. citizens.²³² Land is often connected to economic opportunity—agricultural land provides a livelihood through farming and raising livestock; commercial property supports businesses that provide livelihoods; and even residential property is often necessary to work in an area. In fact, in cases striking down state laws that discriminated against noncitizens in employment, the Supreme Court has connected the right to work to the right to “entrance and abode,” stating “they cannot live where they cannot work.”²³³

Furthermore, real property ownership has little in common with the public positions that have fallen under the exception to strict scrutiny. Landowners are not “clothed with authority to exercise an almost infinite variety of discretionary powers,”²³⁴ they do not fulfill “a basic governmental obligation,”²³⁵ and they are not “in a position of direct authority over other individuals.”²³⁶ Under this analysis, if any type of restriction on real property qualifies for the political functions exception, it would only be ownership of state land.

However, if the political functions exception is more broadly construed as encompassing “the process of democratic self-determination” and “the community’s process of political self-definition,” courts may consider land ownership to be relevant.²³⁷ Land can be seen as providing “the basis for political organization.”²³⁸ States’ historical restrictions on foreign land ownership, going back centuries, could also be viewed as reflecting an understanding that such restrictions are somehow inherent to state sovereignty and self-determination.

But choosing who gets to live in a state has not traditionally been part of a state’s right to self-definition. Due to the constitutional right to migrate, the Supreme Court has stressed that “[s]tates . . . do not have any right to select their citizens.”²³⁹ A state law aimed at deterring a particular class of people from migrating to the state is impermissible whether that class consists of welfare applicants, as in Richardson, Japanese immigrants, as in Takahashi, or other noncitizens. Similarly, the Supreme Court has found that a “[s]tate’s objective of reducing population turnover” would “encounter[] insurmountable constitutional difficulties.”²⁴⁰ The political functions exception allows a state to “limit the right to govern to those who are full-fledged members of the political community,”²⁴¹ but it has never allowed a state to limit who lives in the community.

In short, the political functions exception should not apply to alien land laws, and strict scrutiny would be the proper standard of review for their alienage classification.

iii. Do Restrictions Discriminate Based on National Origin if They Draw Distinctions Based on Where a Person or Entity Is Domiciled or Headquartered?

National origin discrimination is distinct from discrimination based on alienage. While alienage discrimination refers to distinctions between citizens and noncitizens,²⁴² national origin discrimination is broadly understood to include discrimination based on an individual’s place of origin, or their ancestors’ place of origin.²⁴³ Laws that place restrictions on citizens or corporations of specific countries ought to trigger strict scrutiny based on national origin.

States may argue, however, that their laws do not discriminate based on national origin but instead draw distinctions based on place of “residence” or “domicile.” For example, Florida’s law restricts only noncitizens who are “domiciled” in certain foreign countries, rather than restricting citizens of those countries outright.²⁴⁴ A federal district court found that the Florida law does not discriminate based on Chinese national origin because Chinese individuals domiciled in the United States are not restricted; only individuals domiciled in China are restricted, and they need not be Chinese.²⁴⁵ Similarly, Montana’s law applies to corporations that are “domiciled or headquartered” in a country identified as a “foreign adversary.”²⁴⁶

A law like Florida’s would clearly have a disparate impact on individuals of Chinese national origin, since over 99% of people living in China are Chinese. But equal protection principles require a showing of intentional discrimination; classifications that merely result in a disparate impact are not subject to strict scrutiny.²⁴⁷ In Village of Arlington Heights v. Metropolitan Housing Development Corp., however, the Court found that discriminatory intent could be evidenced by factors that include “disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers.”²⁴⁸ These factors must be assessed cumulatively.²⁴⁹ In Shen, the Florida case, the clearly disproportionate impact on Chinese individuals, along with the legislative history, would support a finding of discriminatory intent under Arlington Heights.

Because the Arlington Heights factors are non-exhaustive, some appellate courts have mentioned other considerations. For example, a “consistent pattern” of actions of decisionmakers that have a much greater harm on minorities than on non-minorities could help establish discriminatory intent.²⁵⁰ In a state like Florida or Texas, where the governors have taken numerous actions to try to prevent immigrants from coming to the state, this may be a relevant consideration.²⁵¹ Courts have also found that applying different, less favorable processes or substantive standards to requests by members of a suspect class may raise an inference of discriminatory intent. Some alien land laws impose special procedures for buyers from certain countries, such as requiring buyers to sign affidavits attesting that they are not principals of China and to register existing properties with the state.²⁵² These types of procedures could further help establish discriminatory intent.²⁵³

2. Analyzing Alien Land Laws Under Strict Scrutiny

In order to survive strict scrutiny, a law must be narrowly tailored to serve a compelling government interest. When strict scrutiny is applied, the government “must show that it cannot achieve its objective through any less discriminatory alternative.”²⁵⁴ The main reasons offered for the new wave of alien land laws are national security, food security, and preventing absentee landownership. As explained below, even assuming these are all compelling government interests, alien land laws are unlikely to survive strict scrutiny because they are not narrowly tailored to achieve these objectives. There are also less restrictive alternatives available.

i. National Security

In explaining the need for Alabama’s newly enacted alien land law, Governor Ivey said, “Across the United States, we have seen alarming instances of foreign entities purchasing large tracts of land, which could have severe consequences for our country’s national defense and economy, if no action is taken.” ²⁵⁵ As discussed above, many of the proposed and enacted laws forbid foreign ownership of land within a certain distance of military installations or critical infrastructure. Such restrictions are highly unlikely to prevent espionage or other national security attacks. The Chinese balloon that hovered over Montana did not need to be launched from land near a military base.²⁵⁶ Neither do drones or cyberattacks gathering U.S. data.²⁵⁷

Furthermore, the “safe” distances from military installations or critical infrastructure are arbitrary in this new wave of alien land laws. As noted above, these distances range from two to fifty miles. The best illustration of this arbitrariness is Florida’s law, which bans ownership by “foreign principals” within ten miles of military installations even though the legislation was triggered by a Chinese company’s purchase of land twelve miles from a military based in North Dakota.²⁵⁸

Nationality-based restrictions on ownership of real property are also easily circumvented. Straw men can be used to purchase the land. A Chinese tycoon can easily have someone purchase it for him, as Mr. Sun did in Texas.²⁵⁹ As commentators have previously noted, alien land laws do not really pose an impediment to acquiring real property.²⁶⁰

A less restrictive alternative would be for states to establish or expand existing reporting requirements for foreign investment in land. Several states have already implemented reporting requirements for foreign investments in agricultural land.²⁶¹ Extending the reporting requirements to all real estate and subjecting those transactions to a review process to identify risky transactions would be less restrictive and potentially more effective than a blanket ban. Once the state has information about a potential transaction, it can decide if the transaction can go forward or if it involves too many risks from a national security perspective. This process imposes less of a restriction on individuals who want to sell their land and is less likely to be perceived as aggressive by foreign countries. It is an approach similar to the one used at the federal level by the Committee on Foreign Investment in the United States (“CFIUS”). However, this approach, like the current one banning transactions, may be preempted by the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”).²⁶² Another way to discourage transactions involving noncitizens abroad is taxation. A tax would increase the cost of real estate transactions, ensuring that only those bringing a large benefit move forward. Taxation, though, could violate the Dormant Foreign Commerce Clause.²⁶³

In short, banning land ownership within certain distances of military installations or critical infrastructure is not going to bring large gains in national security. It will, however, impose significant costs by barring potential good faith purchasers from accessing land, introducing tensions in the United States’ relationship with certain countries, and perpetuating negative sentiments towards people from countries like China.

ii. Food Security

The idea of food security has had a central role in farmland regulation for a long time.²⁶⁴ There is a fear that foreign companies will control U.S. food production and either let Americans suffer if certain products are unavailable or make them pay a higher cost by importing them. The fear is not new: for decades, foreign owners of agricultural land have been required to report to the U.S. Department of Agriculture.²⁶⁵

But this fear is misplaced. The United States has a surplus of agricultural products.²⁶⁶ Furthermore, the bills deal with land ownership as a proxy for agricultural production, but the current structure of agricultural markets may make that an inadequate proxy. Eight of the twenty largest food and beverage companies in the United States are foreign companies, but none are from the countries deemed foreign countries of concern in the new wave of alien land laws.²⁶⁷ Control of agricultural land neither results in automatic control of the food supply, nor does it lead to control of agricultural production. In Iowa, for example, where roughly all non-family corporations are prevented from owning agricultural land, large agribusinesses simply lease the land from several owners, subverting the goal of the ownership prohibition.²⁶⁸ A similar subterfuge could be used by foreign companies in response to state alien land laws.

If the concern is foreign control of agricultural land and absentee ownership, focusing on the “who” by targeting specific countries’ nationals would be a partial solution if the countries singled out were the ones that most foreign owners come from. If that were the case, then instead of banning China, Iran, North Korea, or Russia, states should ban Canada, Netherlands, Italy, the U.K. and Germany, in that order, because each of them owns far more agricultural land than China.²⁶⁹ Even a measure like Washington’s—a blanket prohibition on foreign investment in agricultural land—is not automatically going to slow down the consolidation of land and reduce land prices because domestic companies may still accumulate large amounts of natural resources.

A less restrictive alternative to address concerns about foreign control of resources is to limit the amount of these resources that foreigners can own. This approach recognizes that size matters and that small investments give foreign actors less leverage against federal, state, and local governments.²⁷⁰ Restricting the amount of land that noncitizens can own would also discourage financial investors seeking market control who need a certain scale for the investment to be profitable.

iii. Absentee Ownership

A third motivation for the new wave of alien land laws is concern over absentee ownership.²⁷¹ Absentee ownership is problematic because property is treated as an investment, and the owner generally lacks interest in what role the property could fulfill in the community,²⁷² civically and economically.²⁷³ This concern applies to both agricultural lands and dwellings. Alien land laws that distinguish between “resident aliens” and “nonresident aliens” reflect a desire to preserve property for residents. But because most state laws usually define a “resident alien” as living anywhere in the United States, limiting property ownership to resident aliens would not necessarily prevent absentee ownership. An owner of agricultural land in the Central Valley living in Shanghai is no different than an owner living in Rhode Island. Both will lack the local knowledge and the community involvement.

A more narrowly tailored alternative to address absentee ownership would be to impose a requirement of occupancy or production, or both, like the requirements for establishing a homestead.²⁷⁴ Alternatively, a state could tax land that is not in production at a higher rate, no matter where the owner resides.

A few alien land laws do impose stricter residency requirements to prevent absentee ownership.²⁷⁵ For example, Oklahoma’s newly enacted law has an exception for noncitizens who “take up bona fide residence in this state,” but if they leave the state, they must dispose of the land within five years.²⁷⁶ These requirements likely violate the Commerce Clause.

iv. Real Estate Market Prices

Although not explicitly mentioned by legislators proposing alien land laws, another motivation is fear of foreign investors driving up the prices of real estate.

In the agricultural sector, the fear is that it may displace American farmers who will not have access to land. Alabama’s Senate Bill (“S.B.”) 14 banning foreign ownership of agricultural land illustrates these concerns.²⁷⁷ Although the problem of access to farmland for small family farmers is real, the culprit is not necessarily foreigners but rather investors and consolidation.²⁷⁸ Furthermore, agribusinesses have been dominating the market.²⁷⁹ These alien land laws focus on the “who,” instead of on the “what”—in other words, they do not tackle the issue of corporate consolidation plundering natural resources.²⁸⁰

In the residential market, even if the overall Chinese investment in land is not large, it may have significant effects in certain local markets. While Chinese investment in land may drive prices up, it is necessary to consider a more nuanced picture. In some areas of the Midwest, Chinese investment has helped revitalize crisis-stricken areas, such as the Stonewater Community in a suburb of Detroit.²⁸¹ Many municipalities have welcomed the new developments targeting Chinese buyers. Corinth, near Dallas, readily approved new developments in its jurisdiction.²⁸² The situation may be different in Manhattan or San Francisco and other big cities where Chinese investments may be driving up home values.²⁸³ However, targeting the demand side will not solve the housing crisis because it is a supply-side problem.

The poor fit between alien land laws and their objectives, combined with the availability of less restrictive alternatives, means such laws are likely to be struck down under strict scrutiny.

3. Rational Basis Analysis

If rational basis review applies instead of strict scrutiny, then a court need only inquire if the law is rationally related to a legitimate government purpose. There is no analysis of less restrictive alternatives for rational basis review.²⁸⁴ While laws generally survive rational basis review, courts have invalidated laws motivated by animus by applying rational basis with bite, a heightened form of scrutiny. Both types of rational basis review are discussed below.

i. Regular Rational Basis Review

The poor means-end fit discussed above arguably fails not only strict scrutiny, but also rational basis review. There is simply no rational relationship between the asserted objectives and the means being used to achieve them, since the restrictions imposed will be completely ineffective in addressing the problems identified. First, the problems of access and prices of real estate are mostly supply problems, not demand. Second, the countries that are singled out in the new wave of alien land laws completely fail to reflect the nationalities of the largest foreign landowners. Third, these laws are argued as ways to ensure food security, but food security is not a problem in the United States. To the extent that food security embodies consolidation in the agricultural sector and absentee ownership, alien land laws do not solve the food security problem because the real culprits are domestic corporations and corporations from countries that are not mentioned in any of the alien land laws. Fourth, from a national security perspective, foreign adversaries who want to spy on the U.S. are likely to use methods that do not require a land base near the target.

The few cases where courts have upheld alien land laws under rational basis review are distinguishable from many of the current laws because those laws were different in scope and did not single out specific nationalities. For example, the Eighth Circuit upheld a Nebraska constitutional provision prohibiting agricultural land ownership by non-family corporations.²⁸⁵ In addition, the Wisconsin Supreme Court upheld a law that limited ownership of land by “nonresident aliens” to 640 acres.²⁸⁶ The court found the law to be rationally related to the legitimate goal of preventing absentee ownership, stating that “limiting the benefits of land ownership to those who share in the responsibilities and interests of residency is not an unreasonable exercise of legislative choice.”²⁸⁷

The fate of the new laws may be different, especially if they single out specific countries. Laws targeting citizens, corporations, and governments of China, Iran, North Korea, Russia, and other countries on various federal lists are much more ineffective (and more insidious) than the laws considered in these prior decisions, which treated all nonresident aliens equally. If the targeted countries’ citizens and corporations own little to no real property in the state, legislators cannot rationally think that prohibiting them from owning real estate will make a dent in the problems they want to tackle. Additionally, absentee ownership is already pervasive in the agricultural sector. Targeting foreign owners as a potential solution would affect only 3% of the land in the United States if all countries were restricted. Legislators are aware that there is little overlap between the problem of absentee ownership and foreign ownership.²⁸⁸ As for statutes that prohibit landownership within a certain distance of military bases or critical infrastructure, this will do nothing to prevent cyberattacks, which pose the main threat to national security, as noted above.²⁸⁹

Another reason for questioning the rationality of the new wave of alien land laws is that availability bias appears to play a major role in legislators’ decisions. Availability bias is the human tendency to use information that comes to mind quickly and easily when making decisions.²⁹⁰ It is an unconscious mental shortcut that circumvents taking all evidence into consideration. Because a few incidents that involved foreign investors made national news, the new wave of alien land laws was spurred.

In addition to the wind farm project planned by Mr. Sun in Texas, there were two other prominent incidents. One involved a Saudi-owned company called Fondomonte that was leasing public land in Arizona and draining the groundwater supply to grow alfalfa for export back to Saudi Arabia, where alfalfa farming was prohibited due to water scarcity. The company paid relatively little to lease the land in Arizona and got the water for free, while Americans in the surrounding area paid extremely high costs for water.

The other case involved a Chinese food manufacturer that tried to purchase 300 acres of agricultural land in North Dakota located twelve miles from the Grand Forks Air Force Base.²⁹¹ The federal government’s CFIUS reviewed this case and determined that it did not have jurisdiction over the transaction because the Grand Forks Air Force Base was not on its list of military installations.²⁹² This led people to believe that the federal government’s process was inadequate and that states needed to take more action. The Grand Forks incident was relied on not only by legislators in North Dakota, but also by other states including Florida.²⁹³ Yet, as previously noted, the law that Florida ultimately passed would not have stopped such an investment, since it prohibited Chinese foreign investment within ten miles of military installations. The arbitrariness and ineffectiveness of the laws suggest that decisions were driven by implicit biases rather than carefully studied facts. Worse yet, they may have been motivated by animus, as discussed below.

ii. Rational Basis with Bite

To the extent that recent alien land laws are motivated by animus toward China or another country, courts may apply “second order” rational review, also known as rational basis “with bite.”²⁹⁴ In such cases, the Supreme Court has found the government’s interest to be illegitimate because it is motivated by prejudice. The Court has considered a poor means-end fit to be a signal that an illegitimate interest may be motivating the law.²⁹⁵

Comments made by politicians around the time that the recent wave of alien land laws started being proposed certainly suggest that anti-Chinese animus played a role. For example, in 2022, a candidate who competed in the Republican primary for a Texas House seat tweeted, “China created a virus that killed hundreds of thousands of Americans.”²⁹⁶ Former President Trump also continued to call COVID-19 the “China virus” throughout 2022.²⁹⁷ Each tweet from Trump that mentioned “China” and “COVID” together resulted in an 8% increase in anti-Asian hate incidents and tweets with racial slurs.²⁹⁸

Politicians further fanned the flames of anti-Chinese animus by presenting China as a threat to the American way of life. A U.S. Representative from Indiana accused President Biden of “turning a blind eye to CCP spies abusing our visa system.”²⁹⁹ A U.S. Senator from Tennessee warned that “[t]he CCP is attempting to take over the USA across all industries—pushing spies into U.S. universities and buying U.S. farmland.”³⁰⁰ Vice President J.D. Vance, a former Senator from Ohio, analogized U.S. economic dependence on China to slavery when he was running for his Senate seat, stating: “When our farmers go bankrupt the Chinese who sell the fertilizer will happily buy up their land. This is the pathway to national slavery.”³⁰¹ The Washington Post and other outlets have also highlighted how “anti-Asian bigotry” is behind the new alien land laws targeting China.³⁰²

In City of Cleburne v. Cleburne Living Center, Inc., a classic case on rational basis with bite, the Court focused on the lack of “fit” between the language of a zoning ordinance and a town’s asserted objectives for denying a special permit to a group home for people with mental disabilities.³⁰³ The town claimed that the purpose of the ordinance and permit process was to avoid congestion and ensure safety in the event of a fire or flood, but the Court pointed out that the permit process did not apply to hospitals, nursing homes, dormitories, and other uses that could be expected to pose greater problems than a group home.³⁰⁴ This poor means-end fit supported the Court’s conclusion that the ordinance had an illegitimate purpose based on animus.

Similarly, the underinclusive nature of alien land laws that target countries with minimal investments in U.S. land, while omitting the countries with the largest investments, demonstrates a poor means-end fit if the asserted objectives are to protect food security and prevent absentee landownership. These laws also generally “grandfather” in ownership of existing properties, which some commentators have identified as another signal of underinclusiveness that can trigger heightened “rational basis” review.³⁰⁵

In sum, regardless of whether strict scrutiny or rational basis review applies, alien land laws targeting specific countries should be struck down. They are not rationally related to a legitimate government interest, much less narrowly tailored to a compelling government purpose, and they appear to be motivated, at least in part, by impermissible animus.

C. Preemption Concerns

Whether alien land laws are preempted by federal law is another important constitutional question. This Section explores whether alien land laws are preempted by federal immigration laws, the federal government’s national security and foreign affairs powers, and the CFIUS and USDA reporting regimes.

1. Immigration Preemption

The Immigration Act of 1952 established “a comprehensive federal statutory scheme for regulation of immigration and naturalization” and set “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.”³⁰⁶ Supreme Court precedents indicate that alien land laws restricting noncitizens who have already been admitted to the U.S. may be preempted by federal immigration law. In Takahashi, the Supreme Court explained that “[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with [the] federal power to regulate immigration, and have accordingly been held invalid.”³⁰⁷ Both Takahashi, and an earlier case, Truax v. Raich, struck down state laws limiting the employment of lawfully present noncitizens by reasoning that federal immigration law granted a “privilege to enter and abide in ‘any state in the Union,’ ” and that denying the right to work would be “tantamount to . . . deny[ing] them entrance and abode.”³⁰⁸

In Richardson, the Supreme Court confirmed that states may not impose an “auxiliary burden[] upon the entrance or residence of aliens” that Congress had never contemplated.³⁰⁹ Restrictions on ownership of real property impose precisely this type of auxiliary burden. Certainly, Congress never contemplated that lawful permanent residents would be encumbered by ownership restrictions. With respect to temporary immigrants (i.e., “nonimmigrants”), Congress required certain classes, such as tourists, students, and crewman, to maintain a residence abroad that they had no intent of abandoning.³¹⁰ But for other classes of temporary immigrants, Congress did not impose any such requirement.³¹¹ The Supreme Court has interpreted this silence “to mean that Congress . . . was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile.”³¹² If every state could prohibit temporary immigrants from buying—or potentially even leasing—property, the doors of the United States would effectively be closed to when Congress permitted them to establish domicile here.³¹³ As a federal court in Texas recognized, “[r]estrictions on residence directly impact immigration in a way that restrictions on employment or public benefits do not.”³¹⁴

While lawfully admitted immigrants may have the strongest argument for immigration preemption, courts have also struck down state laws that discriminate against undocumented individuals in housing as preempted by federal immigration law.³¹⁵ For example, in Villas at Parkside Partners v. City of Farmers Branch, the Fifth Circuit found that immigration law preempted a local ordinance that prohibited renting to individuals who are not “lawfully present.”³¹⁶ The court reasoned that Congress contemplated that such individuals would reside in the United States until potential deportation and even required them to provide a reliable address to the federal government.³¹⁷ Additionally, the court noted that deciding whether someone is “lawfully present” requires a complex analysis and should be made only by federal immigration officials.³¹⁸ The same reasoning would support striking down Louisiana’s newly enacted alien land law, which exempts noncitizens who are “lawfully present in the United States” and would therefore require a state official to make a determination about someone’s legal status.³¹⁹

Additionally, in City of Farmers Branch, the court was concerned about the immigration classification in the local ordinance being “at odds” with a much more nuanced federal regime.³²⁰ Some of the proposed and enacted alien land laws raise similar concerns by using terms that conflict with immigration law. For example, Minnesota’s law defines a “permanent resident alien” to include not only someone who is a lawful permanent resident, but also a nonimmigrant treaty investor.³²¹ A bill proposed in West Virginia defined a “nonresident alien” as someone who is neither a U.S. citizen nor a lawful permanent resident. Under that definition, all sorts of noncitizens would be swept into the restriction, even if they live in West Virginia.

Finally, the registration and reporting requirements found in some alien land laws may be preempted by immigration law. In Hines v. Davidowitz, the Supreme Court found that immigration law preempted a Pennsylvania statute requiring adult aliens to register with the state, pay a fee, and carry an ID.³²² Likewise, in Arizona v. United States, the Court stressed that “the Federal Government has occupied the field of alien registration.”³²³ The Court explained that “[t]he federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance.”³²⁴ A state law that requires certain noncitizens to register their property, and penalizes them for failing to do so, is not far afield from one requiring noncitizens to register themselves, especially since the same personal information must be provided.

The arguments presented above all involve noncitizens who are in the United States. The major group omitted from this analysis of preemption by federal immigration laws are noncitizens abroad. But the other bases for preemption, discussed below, would apply to that group.

2. Foreign Affairs Preemption

The Constitution entrusts foreign affairs powers exclusively to the federal government.³²⁵ Foreign affairs preemption serves several purposes: it constrains a state’s ability to offend a foreign country, which could lead to hostilities; it promotes unity in the nation’s external affairs; and it furthers the effective exercise of foreign policy.³²⁶ Yet, as the history of alien land laws shows, states have long engaged with issues that affect foreign nationals.³²⁷

The Supreme Court has provided different versions of the test for determining whether a state law impermissibly interferes in foreign affairs. In American Insurance Ass’n v. Garamendi, which struck down California’s “Holocaust-era” insurance legislation, the Court framed the issue as whether the state law is likely to produce “more than [an] incidental effect in conflict with express foreign policy.”³²⁸ In Zschernig, the Supreme Court invalidated an Oregon probate law that permitted states courts to withhold remittances to nonresident aliens residing in Communist countries.³²⁹ Even though states traditionally have the power to regulate estates and probate, the Court found that the Oregon law “affect[ed] international relations in a persistent and subtle way.”³³⁰ There, the Court framed the test as whether the state law “impair[s] the effective exercise of the Nation’s foreign policy.”³³¹ And in Crosby v. National Foreign Trade Council, which struck down a Massachusetts law that barred state agencies from purchasing goods or services from companies doing business with Burma, the Court considered whether the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of [federal policy].”³³²

Applying these cases to alien land laws, the question is whether, or to what degree, they conflict with U.S. foreign policy or pose an obstacle to the objectives of foreign policy. Do they merely have an incidental impact on foreign affairs, or is the effect more material? While the answer will likely depend on the specifics of a particular law, it is also worth considering the cumulative impact of these alien land laws on foreign affairs. If every state prohibited citizens of China from buying property, the impact on foreign relations would be far more significant than if only a few did so.

State laws that unilaterally identify certain nations as “countries of concern” or “foreign adversaries,” with no reference to a federal law, are particularly likely to raise foreign affairs preemption concerns. Like the Massachusetts law struck down in Crosby, these state laws are making a judgment about the conduct of a foreign country that is “apart from the federal government’s own announced judgment.”³³³ Even if the countries identified by the state law are currently consistent with a federal designation, federal law expressly contemplates those designations changing over time, and state laws may not keep up with them.³³⁴ Some lower courts have already expressed preemption concerns about state laws that are directed at particular nations, noting that they can be perceived as a unilateral declaration of “economic war,”³³⁵ or a “political statement” about the country.³³⁶ As one court recognized, the potential effect on international relations is greater when a state targets a specific country instead of regulating all noncitizens regardless of nationality.³³⁷

Additionally, the countries identified by name in the new wave of alien land laws are already subject to individualized sanctions by the federal government. Several Presidents have issued Executive Orders and Congress has passed laws imposing unique sanctions against China,³³⁸ Iran,³³⁹ North Korea,³⁴⁰ and Russia,³⁴¹ among other countries. Just like the sanctions against Burma discussed in Crosby, the laws addressing sanctions against these countries give the President flexible authority over what sanctions to impose and empower the President to waive any sanctions in the interest of national security. In Crosby, the Court reasoned that Congress would not have “gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.”³⁴²

Like the Massachusetts law in Crosby, alien land laws that target countries subject to federal sanctions “impos[e] a different, state system of economic pressure,” “penalize[] some private action that the federal [laws] . . . may allow, and pull[] levers of influence that the federal [law] does not reach.”³⁴³ The restrictions imposed by the alien land laws also make it impossible for the President “to restrain fully the coercive power of the national economy” by lifting or promising to lift sanctions, which leaves the President with “less to offer and less economic and diplomatic leverage as a consequence.”³⁴⁴ These state laws could also conflict with the federal sanctions scheme by flatly prohibiting financial transactions that the OFAC might permit with a license.³⁴⁵

When Congress wanted state and local governments to play a role in sanctioning a country such as Iran, Congress explicitly authorized them to do so.³⁴⁶ The 2010 Comprehensive Iran Sanctions, Accountability, and Divestment Act specified what form such state sanctions could take (divestment from companies that invest $20 million or more in Iran’s energy section), stated that such laws were not preempted, and protected due process by requiring notice and the opportunity for a hearing.³⁴⁷ Without this explicit congressional authorization, however, such sub-federal sanctions would likely be preempted by either the statute or executive action.³⁴⁸

Alien land laws that avoid naming specific countries but rely on various federal designations raise similar preemption concerns. The federal government has already determined the unique purposes and consequences of each of these designations. Adding restrictions involving real property ownership to whatever consequences the federal government has already imposed interferes with the federal scheme. For example, if the Secretary of State designates a country as “of particular concern,” Congress has authorized fifteen specific “Presidential Actions” that may be imposed on such designated countries, as well as any “commensurate action.”³⁴⁹ The President is also authorized to waive the application of any action.³⁵⁰ State laws that restrict real property ownership by citizens or entities of these “countries of particular concern” add consequences that were never contemplated by Congress and that can undermine the President’s decisions.

The variation among the countries included in each federal list underscores the deliberate decisions made by federal actors about how each country should be classified based on specific foreign policy objectives. State laws that use these classifications in a completely different context distort their purpose. This preemption argument is especially strong where the federal law constrains the context in which a particular term may be used. For example, federal regulations specify that the Secretary of Commerce’s classification of certain countries as “foreign adversaries” is “solely for the purposes of ” a particular executive order.³⁵¹

Individually and collectively, alien land laws that target specific countries, either by name or based on a federal list developed for another context, “compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.”³⁵² As the Court explained in Crosby, “the President’s maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.”³⁵³

Although the argument for foreign affairs preemptions seems strong based on these Supreme Court precedents, the U.S. Department of Justice surprisingly did not assert preemption in a Statement of Interest that it submitted in the case challenging Florida’s alien land law.³⁵⁴ Its failure to do so was noted by the district court in rejecting the plaintiffs’ preemption argument.³⁵⁵ Given the weight that courts give to the federal government’s own position on preemption, the Department of Justice’s position could prove fatal to preemption arguments in other cases as well. However, in the recent Shen case, even with the silence of the federal government, the Eleventh Circuit Court of Appeals granted a preliminary injunction based on CFIUS regulation of real estate transactions.³⁵⁶

3. The CFIUS and USDA Regimes

Concerns about foreign interests in real property are not unique to States. At the federal level, there are two avenues to rein in foreign investment: data collection on foreign interests in agricultural lands by the USDA and the review of certain transactions via CFIUS. These federal regimes may preempt state restrictions on foreign investment.

i. Reporting to USDA

The Agricultural Foreign Investment Disclosure Act of 1978 (“AFIDA”) established a framework to collect reported data on foreign ownership of agricultural land.³⁵⁷ Unfortunately, the system has not been properly implemented. Inaccuracies and underreporting have been pointed out.³⁵⁸ These critiques of the incompleteness and lack of transparency of the USDA reporting system have prompted Congress to include in the Consolidated Appropriations Act for the 2023 Fiscal Year (“FY”) a mandate to USDA to report on the impact that foreign investment has on family farms, rural communities, and the domestic food supply.³⁵⁹ The Government Accountability Office is expected to issue a report on the AFIDA and USDA reporting frameworks. There are several bills being discussed in the 2023–2024 congressional term seeking to ensure compliance with AFIDA. The Not One More Inch or Acre Act would ensure higher penalties for not complying with AFIDA.³⁶⁰ Under current law, persons who have violated AFIDA are subject to a fine of up to twenty-five percent of the foreign person’s interest in the agricultural land. This bill would make the minimum fine to be ten percent. House Resolution (“H.R.”) 1789 would require the penalty to be “at least [fifty] percent” of the market value of the land.³⁶¹ S.B. 2060 (Foreign Agricultural Restrictions to Maintain Local Agriculture and National Defense Act)³⁶² would require USDA to investigate efforts to steal agricultural knowledge and technology and to disrupt the U.S. agricultural sector. S.B. 2060 would also made the Secretary of Agriculture a member of CFIUS.

ii. CFIUS

CFIUS is a system for monitoring and, if necessary, blocking foreign investments that threaten national security.³⁶³ Established by President Ford in 1975, CFIUS is an interagency committee, chaired by the U.S. Department of Treasury.³⁶⁴ If CFIUS determines that an investment poses a threat to national security, the President can block or unwind the transaction. National security is not defined for CFIUS’s purposes, leaving it open to discretion.³⁶⁵

CFIUS originally focused only on foreign investment in U.S. businesses, without reviewing any real estate transactions. But in 2018, the Foreign Investment Risk Review Modernization Act (“FIRRMA”) expanded CFIUS and the President’s authority to review and block “certain types of real estate transactions involving the purchase or lease by, or a concession to, a foreign person.”³⁶⁶ CFIUS only has authority over real estate transactions that are in or around airports and maritime ports, or that are close to certain designated military installations. FIRRMA recognized that the President may want to consider factors such as “the relationship of [the investor’s] country with the United States” and “the adherence of the subject country to nonproliferation control regimes” in deciding whether to block a transaction.³⁶⁷

CFIUS’s jurisdiction also excludes transactions involving a single housing unit or real estate in urbanized areas.³⁶⁸ Small real estate investments are not expected to have a significant impact on national security and may not encourage large investments. Certain transactions must be reported, such as those involving a foreign government or any other transaction that CFIUS’s regulation mandates, while others fall under voluntary reporting. Real estate transactions so far have not been subject to mandatory reporting, suggesting that Congress did not consider them a national security threat. Control of critical infrastructure does trigger an investigation by CFIUS,³⁶⁹ but agriculture and food systems are not specifically identified as critical infrastructure. Bills that Congress considered but did not pass would have made that connection clear.³⁷⁰ In 2022, President Biden instructed CFIUS to consider the implications of foreign investment for food security.³⁷¹

For transactions under the purview of CFIUS, CFIUS is a ceiling and states cannot strengthen the regime by imposing additional obstacles. Hence, the provisions of new alien land laws overlapping with CFIUS are preempted because they could constitute an obstacle for federal enforcement.³⁷² Because of its limited jurisdiction, CFIUS would not have the authority to review many of the individual real estate transactions prohibited by state alien land laws. For example, as noted above, CFIUS found that it did not have jurisdiction to review a Chinese food manufacturing company’s purchase of 370 acres located twelve miles from the Grand Forks Air Force Base in North Dakota.³⁷³ That air force base was not on CFIUS’s list of designated military installations. Additionally, as a practical matter, CFIUS’s review of real estate transactions is negligible. In 2022, CFIUS reviewed 285 notices of non-real estate transactions, and only one notice of a real estate transaction.³⁷⁴ But still CFIUS may operate as a deterrent.

One could argue that Congress steered clear of ordinary real estate transactions in order to allow states to exercise their traditional control over land and property.³⁷⁵ On the other hand, Congress’s decision to include certain transactions while omitting others may reflect a carefully calibrated consideration of national security and economic interests, in which case states should not be allowed to disturb the delicate balance struck by Congress.³⁷⁶ Of course, if Congress had perceived alien land laws as conflicting with federal law (the CFIUS regime), it could have taken some action. So far, however, Congress has done nothing to impede states from implementing such laws. When Congress amended FIRRMA in 2018, at least fifteen states had alien land laws,³⁷⁷ and Congress did not indicate any intent to displace those laws in the amended Act. However, in past years, bills were introduced at the federal level that would have expanded CFIUS’s jurisdiction over real estate transactions,³⁷⁸ or outright prohibited citizens of China, Russia, North Korea, or Iran from purchasing land.³⁷⁹ While the CFIUS regime is limited, states’ unilateral actions singling out certain countries threaten the unified position that CFIUS enshrines with respect to both adversaries and allies.³⁸⁰

The Eleventh Circuit Court of Appeals in the case challenging Florida’s S.B. 264 granted a preliminary injunction in favor of two of the plaintiffs and based the “likelihood of success” on the merits on the potential preemption of S.B. 264 by the carefully crafted balance of CFIUS review under FIRRMA for real estate transactions, including those near military installations.³⁸¹

D. Dormant Commerce Clause

1. Interstate Commerce

While the Commerce Clause gives power to the federal government to regulate commerce between the states, it has also been interpreted as a limit on state action. Unlike preemption doctrine, which asks whether a state law conflicts with a federal law or whether Congress has occupied the field, the Dormant Commerce Clause prohibits state or local action that restricts interstate commerce even in the absence of congressional action. The goal of the Dormant Commerce Clause doctrine is to prevent “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”³⁸²

Some alien land laws violate the Dormant Commerce Clause by treating out-of-state actors differently than in-state actors in ways that have a negative impact on interstate commerce. The disparate treatment between in-state and out-of-state residents in North Dakota’s new law is the clearest example. North Dakota’s law disadvantages noncitizens who are either abroad or in another state. It requires noncitizens who are not permanent residents or otherwise exempted to reside in the state for ten months a year. It also exempts those who actively participate in the management of the agricultural operation, which could allow someone to comply with the restrictions without being present in the state.³⁸³ A noncitizen who stops fulfilling these requirements must dispose of the property. A foreign person who moves to another state then cannot hold land while a similarly situated foreign person in North Dakota can.

Another example is the initial version of an Oklahoma bill, which exempted “any alien who is or shall become a bona fide resident of the State of Oklahoma” from the restrictions on ownership.³⁸⁴ Such a provision explicitly treats noncitizens living in another state differently than noncitizens residing in Oklahoma, which would trigger strict scrutiny under the Dormant Commerce Clause.³⁸⁵ Oklahoma likely recognized the Dormant Commerce Clause issue, because the final version of its rule pronounced that “the requirements of this subsection shall not apply to a business entity that is engaged in regulated interstate commerce in accordance with federal law.”³⁸⁶

Courts have struck down similar restrictions on landownership that favor in-state residents. For example, in Jones v. Gale, the Eighth Circuit invalidated a Nebraska initiative that amended the state constitution to ban corporations from owning farmland, with an exception for family farm businesses in which at least one family member resided or worked on the farm.³⁸⁷ The court found that this amendment favored Nebraska residents in violation of the Dormant Commerce Clause.³⁸⁸ Alien land laws that apply restrictions without differentiating based on residence in the state are much more likely to survive a Dormant Commerce Clause analysis.

2. Foreign Commerce

Restrictions on foreign ownership of land have a more obvious effect on international trade than they do on interstate commerce because noncitizens abroad are clearly targeted.³⁸⁹ North Dakota’s law, for example, allows noncitizens to buy agricultural land only if they reside in the state, while U.S. citizens and permanent residents can own agricultural land there regardless of where they live. While no country is singled out in North Dakota’s law, those countries without a treaty of friendship with the United States will be the ones whose citizens will be most affected.³⁹⁰

The Dormant Foreign Commerce Clause operates similarly to the interstate Dormant Commerce Clause, but state laws burdening foreign commerce are subjected to more demanding scrutiny.³⁹¹ When it comes to regulating foreign commerce, the Supreme Court has stressed that state laws should not “prevent this Nation from ‘speaking with one voice.’ ”³⁹² In the seminal case Japan Line, Ltd. v. County of Los Angeles, the Court highlighted the “acute” risk of retaliation by Japan for California’s imposition of a tax rule that deviated from international practice, observing that such retaliation “would be felt by the Nation as a whole,” not just by California.³⁹³

In subsequent cases, however, the Court has acknowledged the difficulty in determining “precisely when foreign nations will be offended by [a] particular act[]” or whether they might retaliate.³⁹⁴ The Court has also upheld state taxes on foreign entities by reasoning that no coherent federal policy exists.³⁹⁵

Under the Dormant Foreign Commerce Clause, it may be hard to demonstrate a uniform federal policy on foreign land ownership, since the federal government has traditionally entered into bilateral treaties with specific countries when it wanted to override state restrictions on foreign ownership of land.³⁹⁶ Additionally, in Barclays, the Supreme Court suggested that congressional inaction indicates acquiescence to differing state laws.³⁹⁷

Alternatively, courts may rely on the Supreme Court’s position in South-Central Timber Development, Inc. v. Wunnicke,³⁹⁸ which allows states to escape scrutiny under the Dormant Commerce Clause only if they are market participants themselves. For example, states could be acting as market participants when they are regulating state public lands, or when Congress has expressly excluded a state law from Dormant Commerce Clause scrutiny.³⁹⁹ In some cases, the Court has not considered references to state power over a resource, like water, in federal laws⁴⁰⁰ or in treaties⁴⁰¹ enough to conclude that Congress has excluded the application of the Dormant Commerce Clause to states. Accordingly, acknowledgement of state power to regulate property is an inadequate basis for refusing to apply the Dormant Foreign Commerce Clause when state laws discriminate against noncitizens abroad.

CONCLUSION

While each wave of alien land laws has responded to unique historical events, xenophobia of some kind undergirds them all. The current wave is no different. The dominant narratives that have fueled such bills involve members of the Chinese Community Party buying land to either spy on U.S. military bases or to “undermine American agriculture and control the global food supply.”⁴⁰² These narratives reflect a few salient examples of Chinese investments near military bases, but they have nothing to do with most foreign investment in the U.S. This Article has argued that one of the most significant weaknesses of these new laws is the complete lack of fit between the objectives asserted and the means being used to achieve them. This lack of means-end fit, combined with the availability of less restrictive alternatives, is highly relevant to both the equal protection analysis and the Fair Housing Act disparate impact analysis.

As legal cases challenging these new laws start percolating through the court system, the Supreme Court may eventually need to decide whether it will stand by hundred-year-old precedents upholding alien land laws that were based on explicitly racist naturalization eligibility criteria—rules that prohibited Asians from becoming U.S. citizens. The time has come for those cases to be overturned. But overturning them will likely require the Court to clarify certain unanswered questions in equal protection doctrine regarding alienage discrimination, such as whether strict scrutiny applies to all classes of noncitizens and whether the political functions exception to strict scrutiny can be extended to landownership.

Courts may also decide to avoid the thorny equal protection questions by striking down alien land laws on preemption grounds instead. However, the various arguments for preemption discussed here involve their own hurdles. Preemption under immigration law would likely be limited to noncitizens who have already been admitted to the U.S. Foreign affairs preemption seems particularly promising, but the federal government’s decision not to argue preemption in the recent Florida case to date may undermine that claim. A Dormant Foreign Commerce Clause argument is also strong, but courts may still be reluctant to invalidate a law related to traditional state powers over property based on interference with commerce.

There is also a chance that Congress will enact new laws in the near future addressing foreign ownership of land, as several such bills have already been proposed.⁴⁰³ Depending on the substance of a federal law, this could either make it harder or easier to challenge property restrictions related to national origin. In FY 2024, the House proposed a bill that would “prohibit the purchase of agricultural land located in the United States by nonresident aliens, foreign businesses, or any agent, trustee, or fiduciary associated with Russia, North Korea, Iran, or the Communist Party of China.”⁴⁰⁴ If the federal government decides to pass a law like this that singles out certain countries, it would be harder to challenge than a similar state law, as rational basis review, rather than strict scrutiny, applies to alienage classifications by the federal government.⁴⁰⁵ Additionally, the Dormant Commerce Clause and preemption arguments would disappear, since they only constrain states.

The enactment of federal legislation would, however, bolster arguments that state laws are preempted. A federal law that did not single out specific countries and instead set some general limits on foreign land ownership across the board, such as a limit on the amount of U.S. land that a noncitizen abroad or foreign business may own, could have a positive effect by displacing state laws that impose much more discriminatory restrictions.

A third possibility is that Congress could explicitly embrace a cooperative approach, specifying that the newly enacted federal legislation does not prohibit states from passing their own laws on foreign ownership of real property. Because this approach would potentially permit discriminatory state laws, it would be wise for Congress to at least set some constraints regarding what types of state restrictions would be permissible to prevent a race to the bottom.

At the end of the day, states and the federal government should be wary of the harm that exclusionary laws inflict. Laws that draw distinctions based on national origin or citizenship are likely to lead to racial or ethnic profiling by realtors, lenders, and others involved in real property transactions, as well as to subordinate minorities more generally. These laws are especially apt to exacerbate discrimination against Asian Americans, Iranians, and others who are already subject to discrimination. Long ago, the Supreme Court recognized that if states were allowed to deny immigrants the right or live and work in their borders, immigrants “would be segregated in such of those States as chose to offer hospitality.”⁴⁰⁶ Alien land laws open the door to this type of segregation.

Property ownership is a crucial means of achieving both financial and social mobility; it provides access to schools, jobs, culture, and community. Restricting property rights has therefore been used as a tool throughout history to disempower certain groups, including women and racial minorities. When we deprive noncitizens of property rights, we prevent hardworking immigrants from achieving the American Dream.

98 S. Cal. L. Rev. 305

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Fatma Marouf*

* Professor of Law, Texas A&M University School of Law. I would like to thank the participants of the Asian American Pacific Islander (AAPI) and Middle Eastern North African (MENA) Women in the Legal Academy Workshop, hosted by CUNY School of Law, as well as the participants of the Clinical Writers’ Workshop hosted by NYU School of Law, for their valuable feedback on a draft of this piece.

Vanessa Casado Pérez†

† Professor of Law, Texas A&M University School of Law, Research Professor, Texas A&M Department of Agricultural Economics. I would like to thank the participants at the Rural West Workshop and Grayson Ford for his research assistance. We are grateful for the hard work of the Southern California Law Review editors.

Eighth Amendment Stare Decisis

April 2025April 2025William W. Berry III*

In 2008, the United States Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment barred death sentences for the crime of child rape because such punishments were cruel and unusual. In 2023, Florida passed a statute that directly contravenes this constitutional rule. Under the Florida statute, committing sexual battery against a child is a capital offense.

The Court’s description of the scope of stare decisis stems from its abortion cases. The Court initially explained stare decisis in Planned Parenthood of Southeastern Pennsylvania v. Casey but arguably loosened its meaning in its decision in Dobbs v. Jackson Women’s Health Organization. Indeed, the Court’s decision in Dobbs, in which it reversed the fifty-year-old precedent of Roe v. Wade and its successor Casey, suggests that the Kennedy case could face a similar fate.

But the Eighth Amendment contains substantive doctrinal characteristics that suggest it is unique with respect to stare decisis. In particular, the Eighth Amendment’s relationship to stare decisis is unusual because the premise of the underlying doctrine is that the meaning of the Amendment will change over time. Pursuant to “the evolving standards of decency that mark the progress of a maturing society,” the Eighth Amendment expands over time to bar punishments formerly constitutional but now determined to be draconian.

As such, there become two possibilities with respect to applying stare decisis under the Eighth Amendment. First, stare decisis could mean what it means in other contexts—deferring to precedent and refusing to overrule a prior decision unless it rises to the level of the test previously set forth in Casey and now articulated in Dobbs. Alternatively, stare decisis could mean following the evolving standards of decency doctrine. This approach contemplates that the Amendment would change over time, such that stare decisis would require the overruling of precedent, moving the case law in a progressive, less punitive direction.

This Article argues for the latter reading. Specifically, the Article makes the novel claim that the Eighth Amendment has its own unique stare decisis doctrine, the doctrine moves in one direction, and such a reading of the Eighth Amendment is consistent with the Court’s decision in Dobbs.

In Part I, the Article explores the origins of the unique doctrine of Eighth Amendment stare decisis. Part II examines past and future applications of this doctrine. Finally, in Part III, the Article explains why the Court’s decision in Dobbs supports Eighth Amendment Stare Decisis.

All bad precedents have originated from good measures.

—Julius Caesar¹

INTRODUCTION

In 2008, the United States Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment barred death sentences for the crime of child rape because such punishments were cruel and unusual.² In 2023, Florida passed a statute that directly contravenes this constitutional rule.³ Under the Florida statute, raping⁴ a child is a capital offense.⁵

In a vacuum, one might expect the Court to strike down Florida’s statute as clearly unconstitutional in violation of the Eighth Amendment based on the principle of stare decisis. Traditionally, the concept of stare decisis has referred to the obligation of the Court to follow prior precedent.⁶ A concept central to the rule of law, stare decisis presumes the binding nature of a prior decision, except under certain circumstances that allow for the reversing of the precedent to remedy an incorrect decision.⁷

The Court’s description of the scope of stare decisis stems from its abortion cases. The Court initially explained stare decisis in Planned Parenthood of Southeastern Pennsylvania v. Casey,⁸ but arguably loosened its meaning in its decision in Dobbs v. Jackson Women’s Health Organization.⁹

In Casey, the Court explained that while stare decisis is “not an ‘inexorable command,’ ”¹⁰ its application relates to “a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law.”¹¹ Specifically, the Court examined (1) whether the central rule has become unworkable;¹² (2) whether the Court could remove the rule’s limitation on state power without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it;¹³ (3) whether the law’s growth in the intervening years has left the precedent’s central rule a doctrinal anachronism discounted by society;¹⁴ and (4) whether the precedent’s premises of fact have so far changed as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.¹⁵

But in Dobbs, the Court adjusted the stare decisis test, using a five-factor inquiry in deciding to overrule Roe v. Wade and Casey.¹⁶ Specifically, the Court examined (1) the nature of the court’s error, (2) the quality of its prior reasoning, (3) the workability of the current standard, (4) the effect on other areas of law, and (5) the reliance interests in the precedent.¹⁷ One way to read this shift is as a means of freeing the Court to reverse precedents it thinks are normatively incorrect.

Indeed, the Court’s decision in Dobbs,¹⁸ in which it reversed the fifty-year-old precedents of Roe v. Wade¹⁹ and its successor Casey,²⁰ suggests that the Kennedy case could face a similar fate if the Court normatively disagrees with the outcome in that case.²¹ A more open-ended view of stare decisis, in which the Court places more weight on getting the “right” answer as opposed to following its precedent, could incentivize the Court to focus on policy over precedent.²²

Likewise, a cursory glance at the Supreme Court’s Eighth Amendment cases suggests that the principle of stare decisis may carry less weight in this context.²³ For instance, the Court reversed its decisions in Penry v. Lynaugh²⁴ and Stanford v. Kentucky²⁵ a mere thirteen and sixteen years later in Atkins v. Virginia²⁶ and Roper v. Simmons, ²⁷ respectively.

But the Eighth Amendment contains substantive doctrinal characteristics that suggest it is unique with respect to stare decisis. In particular, the Eighth Amendment’s relationship to stare decisis is unusual because the premise of the underlying doctrine is that the meaning of the Amendment will change over time.²⁸ Pursuant to “the evolving standards of decency that mark the progress of a maturing society,” the Eighth Amendment expands over time to bar punishments formerly constitutional but now determined to be draconian.²⁹

As such, two possibilities exist for applying stare decisis to Eighth Amendment decisions. First, stare decisis could mean what it means in other contexts—deferring to precedent and refusing to overrule a prior decision unless it rises to the level of the test previously set forth in Casey and now articulated in Dobbs. Alternatively, stare decisis could mean following the evolving standards of decency doctrine. This approach contemplates that the Amendment would change over time, such that stare decisis would require overruling of precedent, moving the case law in a progressive,³⁰ less punitive direction.³¹

This Article argues for the latter reading. Specifically, the Article advances the novel claim that the Eighth Amendment has its own unique stare decisis doctrine, the doctrine moves in one direction, and such a reading of the Eighth Amendment is consistent with the Court’s decision in Dobbs.

I. ORIGINS OF EIGHTH AMENDMENT STARE DECISIS

Stare decisis, at its core, reflects a commitment to the rule of law.³² A vestige of the common law, the idea relates to honoring past decisions for the sake of predictability and consistency.³³ Cases with difficult factual situations challenge this paradigm.³⁴ When a rule of law generates unfair or inequitable outcomes, courts often elect to change the rule or distinguish the case such that the rule becomes inapplicable.³⁵

A more consequential decision, however, relates to a decision to reject the rule itself and replace the rule with a new one.³⁶ Courts seem hesitant to engage in such a rejection of stare decisis without a strong normative reason for doing so.³⁷

Interpreting constitutional language adds an additional wrinkle to the stare decisis calculation.³⁸ The Court has noted that stare decisis should carry less weight in the constitutional context.³⁹ This is precisely because the Court is responsible for defining the scope and meaning of the Constitution, which often includes open-ended language.⁴⁰ The inability to easily amend the federal Constitution means that the Court’s interpretation is not subject to review and will change only when the members of the Court change.⁴¹ When such decisions include placing limits on the power of state legislatures or Congress, the countermajoritarian difficulty arises.⁴²

And yet, in Marbury v. Madison, the Court made clear that its constitutional role is to engage in such judicial review, deciding who decides the scope and meaning of the Constitution.⁴³ The Court usually decides that it is its role to determine the meaning of the Constitution.⁴⁴ The Court has further explained that when it has made such determinations incorrectly, it has the responsibility to push aside the mandates of stare decisis and change the applicable constitutional rule.⁴⁵

What happens, though, when the precedent itself envisions that the rule will change over time, is different. The Eighth Amendment contemplates that the line between acceptable and unacceptable punishment will shift as society matures.⁴⁶ As such, the stare decisis tension at the heart of Casey and Dobbs dissipates. Instead, applying stare decisis means changing the rule.

A. The Evolving Standards Test

The evolving standards test originates from the 1910 case of Weems v. United States.⁴⁷ In Weems, the Court considered whether a punishment of cadena temporal—fifteen years of hard labor—for the crime of forgery constituted a cruel and unusual punishment under the Eighth Amendment.⁴⁸

In finding that the cadena temporal punishment was unconstitutional, the Court explained its approach to interpreting the Eighth Amendment:

Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.⁴⁹

The Court added that constitutional provisions “are not ephemeral enactments, designed to meet passing occasions,” but instead seek to “approach immortality as nearly as human institutions can approach it.”⁵⁰

Almost fifty years later, the Court further developed the concept that the Eighth Amendment did not contain a static meaning, but one that would change over time. In Trop v. Dulles, the Court considered the constitutionality of the punishment of loss of citizenship for wartime military desertion.⁵¹ Specifically, the Court considered whether permanently denying Trop a passport constituted a cruel and unusual punishment.⁵²

In finding for Trop, the Court explored the meaning of the Eighth Amendment.⁵³ Citing Weems, the Court echoed the idea that “the words of the [Eighth] Amendment are not precise, and that their scope is not static.”⁵⁴ As a result, “[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”⁵⁵

Having cemented the idea that the Eighth Amendment would evolve over time in a progressive way, the Court later established a test to determine whether a particular punishment violated society’s evolving standards of decency. In Coker v. Georgia, the Court developed this test in assessing whether a punishment of death for the crime of rape was constitutional.⁵⁶

As established in Coker, the Court’s inquiry contains two parts—an objective assessment and a subjective component.⁵⁷ The objective determination seeks “guidance in history and from the objective evidence of the country’s present judgment” concerning the punishment in question.⁵⁸ In Coker, the Court looked to the number of jurisdictions that allowed death sentences for the crime of rape, finding that Georgia was the only state allowing that punishment where the victim was an adult woman.⁵⁹ Its assessment of the objective indicia also included jury verdicts, which revealed that Georgia juries only imposed death sentences in six out of sixty-three cases involving the crime of adult rape.⁶⁰

After finding that the objective evidence revealed that the punishment of death for rape was inconsistent with the societal standards of decency, the Court “brought to bear” its own independent judgment concerning the constitutionality of the punishment.⁶¹ This judgment constituted an assessment of the proportionality of the punishment in light of the crime committed and the characteristics of the perpetrator.⁶² As the Court developed this subjective inquiry in later cases, it increasingly relied on the purposes of punishment—retribution, deterrence, incapacitation, and rehabilitation—to determine whether a punishment was proportionate.⁶³

Following the Court’s precedents in applying the Eighth Amendment, then, means applying the evolving standards of decency test to determine whether a punishment is cruel and unusual. It is worth noting that the Court initially cabined the application of this test to capital cases, because “death is different.”⁶⁴ It subsequently expanded the test to include juvenile life-without-parole sentences, because “children are different too.”⁶⁵

Practically, this means that stare decisis—following prior precedent—contemplates changing the rule to reflect the evolving standards of society. So, overruling a prior precedent would actually be following the doctrine when the move is from a harsher punishment to a less harsh punishment. The doctrine also makes clear, however, that this concept operates only in one direction—from more severe punishment to less severe punishment.

B. Why It Moves in One Direction

The Court’s Eighth Amendment cases demonstrate why the Eighth Amendment only changes in one direction—with increasing limits on the power of state and federal governments to impose draconian punishments. In particular, the Eighth Amendment values of dignity and proportionality underscore this point.⁶⁶

In its decision in Trop, the Court emphasized that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”⁶⁷ In other words, when the Eighth Amendment bars a particular punishment practice, it reflects the conclusion that a particular punishment treats the defendant “as an object”⁶⁸ beyond what society deems as “civilized, decent, and virtuous.”⁶⁹

The Court has made clear that it “look[s] to the evolving standards of decency that mark the progress of a maturing society” to “enforce” this “duty of the government to respect the dignity of all persons.”⁷⁰ If the society matures to find a formerly acceptable form of punishment to violate a person’s dignity, then the punishment cannot, by definition, become constitutional again at some later date. Indeed, an undignified punishment or a punishment that objectifies an inmate cannot, at a later date, magically become dignified or civilized, decent, and virtuous. If the “Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be,” as the Court has explained, that means that over time, the United States will discard more draconian forms of punishment in favor of more humane ones.⁷¹

A change operating in the other way, from less severe punishment to more severe punishment, contravenes the core principle of the evolving standards.⁷² The evolving standards “mark the progress of a maturing society,” and increasing punishment severity undercuts that very progress.⁷³ This is particularly true concerning the punishments at issue—the death penalty and life without parole. Many states⁷⁴ and Western nations⁷⁵ have abandoned the death penalty, and the United States remains the only nation that allows juvenile life-without-parole sentences.⁷⁶ Undoing limits on punishments that most of the rest of the civilized world abolished long ago would reflect a move away from societal maturation and instead embrace societal savagery. Such a move would be the antithesis of promoting human dignity.

A second principle that the Court has linked to the evolving standards of decency—proportionality—similarly demonstrates why the Eighth Amendment only moves in one direction. The Court has explained that the evolving standards test is a tool by which to measure “the requirement of proportionality contained within the Eighth Amendment.”⁷⁷ As with dignity, the Court has long emphasized the concept of proportionality as “central to the Eighth Amendment.”⁷⁸ That means that when the Court bars particular punishments under the Eighth Amendment, it is because the punishment is excessive in light of the characteristics of the offense⁷⁹ or the characteristics of the offender.⁸⁰

Under the evolving standards test, the proportionality inquiry looks at the objective indicia of national consensus in that the sentence is excessive in light of what other jurisdictions permit and impose.⁸¹ And under the subjective indicia, the Court assesses whether the sentence is disproportionate in light of the purposes of retribution, deterrence, incapacitation, and rehabilitation.⁸²

For a barred punishment to again be constitutionally permissible, it would mean that the consensus against the punishment has reversed. Such a scenario is unlikely because it would involve states implementing punishment practices in violation of the Constitution. One or more states, like Florida and Tennessee currently, might engage in a barred punishment practice, but such actions would not be enough to create a consensus to allow that kind of punishment again.⁸³

In addition to a change in national consensus, a reversal would also mean that the concept of proportionality would have a fickle application. When a punishment is excessive, whether in light of retribution or one of the utilitarian purposes of punishment, it cannot magically become proportionate again. The argument would be that the initial determination was incorrect, that the Court defined a proportionate punishment as a disproportionate one.

The cautiousness of the Court’s evolving standards doctrine, though, makes such a claim less persuasive. All of its decisions to find punishments disproportionate under the Eighth Amendment have first found a majoritarian objective consensus⁸⁴ against the punishment in question before also finding the punishment disproportionate in its own subjective judgment.⁸⁵

A view of the Eighth Amendment as moving only in a more progressive direction is also consistent with its original meaning.⁸⁶ As John Stinneford has explained, the concept of “unusual” reflects a notion of longstanding usage.⁸⁷ Drawing on the writings of Edward Coke as well as the common law, this original understanding reflected a proscription against cruel innovation—the adoption of newer methods of harsh punishment.⁸⁸ The idea is that moving in a harsher direction undoes the original Eighth Amendment meaning of contrary to long usage, even if the evolving standards evolved in a more punitive direction.⁸⁹ Under either an evolving standards reading or under an originalist reading, then, it is clear that the Eighth Amendment can change in only one direction—expanding to bar harsh punishments.

II. APPLICATIONS OF EIGHTH AMENDMENT STARE DECISIS

While not describing its application of the Eighth Amendment as a unique form of stare decisis, the Court has nonetheless followed this approach on several occasions. And, as discussed, the national consensus continues to evolve.

A. Past Applications

Arguably, the first application of the concept of evolving stare decisis was outside of the Eighth Amendment, before the Court articulated the details of its test in Coker. But the discussion begins here because the sentiment is the same—promoting a more progressive, humane form of punishment by placing constitutional limits on a draconian one.

1. McGautha and Furman

In 1971, the Court considered the constitutionality of the death penalty in two companion cases, McGautha v. California⁹⁰ and Crampton v. Ohio.⁹¹ These challenges made Fourteenth Amendment claims, specifically that the procedures used to impose the death sentences violated due process.⁹² Both claimed that the lack of guidance given to the jury determining the sentence allowed the imposition of the death sentence without any governing standards.⁹³ Crampton also challenged the unitary trial procedure in which the jury determined guilt and punishment at the same time.⁹⁴

In a 6–3 decision, the McGautha court rejected petitioners’ arguments, finding that the Ohio and California sentencing procedures were constitutional.⁹⁵ Examining the history of the death penalty, the Court surmised that sentencing discretion in capital cases constituted a form of mercy, not the application of a generalizable concept or standard.⁹⁶ While recognizing the force of petitioners’ claim on a general level, the Court nonetheless emphasized the indeterminacy of the task of developing an applicable standard for capital juries.⁹⁷ It explained, “[t]o identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.”⁹⁸

Even though the criteria given to the juries in McGautha and Crampton did not do more than exercise “minimal control” of the jury’s “exercise of discretion,” the Court found it “quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.”⁹⁹ This was because “[t]he infinite variety of cases and facets to each case would make general standards either meaningless ‘boiler-plate’ or a statement of the obvious that no jury would need.”¹⁰⁰

Likewise, the Court found that the unitary trial procedure of forcing a defendant to choose between arguing innocence and arguing for mercy did not violate due process because requiring that difficult choice was not a denial of process.¹⁰¹ For similar reasons, the Court likewise concluded that the unitary trial model did not infringe upon Crampton’s Fifth Amendment privilege against self-incrimination.¹⁰²

Just a year later, the Court considered the constitutionality of the death penalty under the Eighth Amendment in Furman v. Georgia.¹⁰³ Based on similar arguments to the ones raised in McGautha, the Court held 5–4 that the death penalty was unconstitutional as applied.¹⁰⁴

Unlike the later examples of Eighth Amendment stare decisis, the decision in Furman turned on the procedure in question, not the substance.¹⁰⁵ But the idea is the same—moving from a more draconian procedure to a less draconian one. The failure to provide juries guidance on how to differentiate between murderers who should receive the death penalty and those who should not resulted in sentencing outcomes that the Court found to be random and arbitrary.¹⁰⁶ Imposing death sentences in an arbitrary and random manner was particularly troubling because “death is different”—the consequence is severe and irrevocable.¹⁰⁷

So, the decision in Furman followed the underlying principle of the evolving standards of decency—protecting the dignity of criminal defendants by preventing states from subjecting them to arbitrary, random sentencing procedures in capital cases.¹⁰⁸ The Court did not find that the death penalty itself was now cruel and unusual; instead, it was the unprincipled ways that Georgia imposed it that made it unconstitutional.¹⁰⁹ Capital punishment without any jury guidance was the prevailing practice, and the Court found that it no longer constituted a constitutional punishment.¹¹⁰

Penry and Atkins

The Court’s cases concerning whether it is constitutional to execute an intellectually disabled¹¹¹ offender provide a clear example of the application of Eighth Amendment stare decisis.¹¹² In Atkins v. Virginia, the Court reversed its decision in Penry v. Lynaugh as a matter of stare decisis because the standard of decency had changed.¹¹³

In 1989, the Court decided Penry.¹¹⁴ Penry brutally raped, beat, and stabbed Pamela Carpenter with a pair of scissors, causing her subsequent death a few hours later.¹¹⁵ A Texas jury sentenced Penry to death despite his claims of intellectual disability and insanity.¹¹⁶ As part of his habeas appeal, the Court considered whether the Eighth Amendment barred his execution in light of his intellectual disability and resulting diminished culpability.¹¹⁷

The Court found no evidence of a national consensus against the execution of intellectually disabled offenders.¹¹⁸ Only two states and the federal government barred such death sentences.¹¹⁹ Adding in the fourteen states that barred capital punishment, this meant that sixteen states barred the

execution of intellectually disabled offenders, falling short of establishing a national consensus.¹²⁰

Similarly, the Court concluded that its own subjective judgment did not bar such sentences.¹²¹ Applying the purposes of punishment, the Court held that the execution of some intellectually disabled individuals could serve the purpose of retribution—the variance among such individuals did not mean that such individuals could never act with the culpability required to receive the death penalty.¹²²

Just over a decade later, the Court considered the same question in Atkins.¹²³ It applied its evolving standards of decency test in finding that the Eighth Amendment now prohibited the execution of intellectually disabled offenders.¹²⁴

In its analysis of objective indicia, the Court found a national consensus against executing the intellectually disabled.¹²⁵ The Court noted that state legislatures had reacted to its decision in Penry as well as the execution of a different intellectually disabled inmate.¹²⁶ By 2002, thirty states barred the execution of intellectually disabled offenders, including twelve states that had abolished the death penalty.¹²⁷ This number far surpassed the number of states previously barring the punishment in question—a change from sixteen to thirty.¹²⁸ The Court also emphasized the direction of the change, a consistent move by state legislatures away from allowing the execution of intellectually disabled offenders.¹²⁹ Finally, the Court noted that states had executed only five known offenders with a known IQ under seventy since Penry.¹³⁰

With respect to the subjective indicia, the Court concluded that none of the purposes of punishment justified the execution of intellectually disabled offenders.¹³¹ The reduced culpability of intellectually disabled offenders meant that death sentences for those individuals did not satisfy the purpose of retribution.¹³² With respect to deterrence, the Court also concluded that the execution of intellectually disabled offenders was unlikely to deter other intellectually disabled individuals from committing homicides.¹³³

In overruling its decision in Penry, the Court did not address the concept of stare decisis as a hurdle that it had to overcome.¹³⁴ This is because the Court majority did not view the decision in Atkins as overturning precedent.¹³⁵ Instead, the Atkins decision followed precedent—the precedent of the evolving standards of decency doctrine—in reaching a different outcome. The decision in Atkins did not constitute an abrogation of a prior position; it constituted a foreseeable evolution in the application of a constitutional principle.¹³⁶

3. Stanford and Roper

The Court’s decision in Roper v. Simmons, three years after Atkins, provides another example of the application of Eighth Amendment stare decisis. Roper held that the execution of juveniles—offenders under the age of eighteen at the time of the homicide—violated the Eighth Amendment,¹³⁷ reversing the Court’s decision in Stanford v. Kentucky, which had allowed the execution of seventeen-year-old defendants.¹³⁸

In its first consideration of age and capital sentences, the Court held in Thompson v. Oklahoma that the execution of a fifteen-year-old defendant violated the Eighth Amendment under its evolving standards of decency test.¹³⁹ Under its objective indicia, the Court found that eighteen states set the minimum age for a capital sentence at sixteen years old.¹⁴⁰ When combined with the fourteen states that had abolished capital punishment, the Court counted thirty-two jurisdictions that barred the execution of defendants under the age of sixteen.¹⁴¹ The Court also looked to jury verdicts and found less than twenty instances of executions of individuals who committed capital crimes under age sixteen.¹⁴² And none of those verdicts had been after 1948, in the forty years prior to the case.¹⁴³

With respect to the subjective indicia, the Court highlighted the diminished culpability of juvenile offenders as a basis for finding that retribution did not support the execution of a fifteen-year-old offender.¹⁴⁴ It also found that deterrence did not support executing those under the age of sixteen who committed crimes; offenders over the age of sixteen had committed ninety-eight percent of homicides.¹⁴⁵

In Stanford v. Kentucky, the Court found that the evolving standard of decency that had reached under-sixteen-year-old offenders had not reached sixteen and seventeen-year-olds.¹⁴⁶ The Court held that the Eighth Amendment did not bar the execution of Stanford, who was seventeen when he committed murder.¹⁴⁷

With respect to the objective indicia, the Court found that most states permitted capital punishment for sixteen-year-olds.¹⁴⁸ Fifteen states rejected the death penalty for offenders under seventeen years old and twelve for offenders under eighteen years old.¹⁴⁹ The Court also rejected the evidence that few juries had sentenced under-eighteen-year-old offenders to death because so few under-eighteen-year-old offenders had committed capital crimes.¹⁵⁰

In applying the subjective indicia, the Court found no conclusive evidence supporting a determination with respect to either retribution or deterrence.¹⁵¹ And the Court did not really engage with this idea because it had found that a national consensus against executing sixteen- and seventeen-year-olds did not exist.¹⁵²

Sixteen years later, the Court decided Roper, following the same Eighth Amendment stare decisis approach used in Atkins to find that death sentences for juvenile offenders were cruel and unusual punishments.¹⁵³ As in Atkins, the application of the majoritarian objective indicia commenced with counting the state laws, and like Atkins, thirty states prohibited the execution of juvenile offenders (twelve of which banned the death penalty altogether).¹⁵⁴ Also like Atkins, the Court in Roper was assessing whether the evolving standards of decency provided enough evidence of changed circumstances to reverse its prior decision in Stanford.¹⁵⁵ The Court also noted the presence of objective evidence moving toward ending juvenile executions, although only five states (as compared to sixteen in Atkins) had abandoned the juvenile death penalty since Stanford.¹⁵⁶ Also, no state had reinstated the juvenile death penalty since Stanford.¹⁵⁷

With respect to the subjective standards, the Court developed the idea that juveniles were offenders that, by definition, possessed a diminished level of culpability.¹⁵⁸ Specifically, the Court cited (1) the lack of maturity and undeveloped sense of responsibility, (2) the susceptibility of juveniles to outside pressures and negative influences, and (3) the unformed nature of juveniles’ character as compared to adults.¹⁵⁹

In light of the diminished level of culpability, the purposes of punishment, in the Court’s view, failed to justify the imposition of juvenile death sentences.¹⁶⁰ Such death sentences failed to achieve the purpose of retribution in light of the diminished culpability.¹⁶¹ Likewise, the Court concluded that execution of juveniles did not achieve a deterrent effect—offenders with diminished capacity will be unlikely to be susceptible to deterrence.¹⁶² In addition, the Court found no evidence that a juvenile death sentence would add any deterrent value beyond that achieved by a life-without-parole sentence.¹⁶³

As with Atkins, the decision in Roper is a clear example of the principle of Eighth Amendment stare decisis. The Court followed its precedent—the evolving standards of decency—in finding that the national consensus and its subjective judgment demonstrated that the execution of juveniles constitutes a cruel and unusual punishment. As such, the decision in Roper to overrule Stanford constituted an application of Eighth Amendment stare decisis, reflecting the Court’s interpretation of the Eighth Amendment.

4. Death Is Different and Juveniles Are Different

A final important example of the Court’s application of Eighth Amendment stare decisis relates to its use in the juvenile life-without-parole context in Graham v. Florida.¹⁶⁴ Here, the Court found that a principle underlying its evolving standards of decency—differentness—had evolved to include another category of cases.¹⁶⁵

For over thirty years after Furman, the Court had cabined its application of evolving standards to capital cases.¹⁶⁶ The Court’s reasoning for this bright line focused on the idea that “death is different.”¹⁶⁷ As a punishment, death was unique both in terms of its severity—the most severe punishment available—and its irrevocability—one cannot undo a death sentence after an execution.¹⁶⁸

In Graham v. Florida, the Court considered whether the Eighth Amendment forbid life-without-parole sentences for juvenile offenders in non-homicide cases.¹⁶⁹ Building upon its decision in Roper, the Court applied the evolving standards of decency to cases of juvenile life without parole in barring such sentences in non-homicide cases.¹⁷⁰

The Court further clarified its expansion of the differentness principle to include juvenile life-without-parole cases in Miller v. Alabama, in which it struck down mandatory juvenile life-without-parole sentences under the Eighth Amendment.¹⁷¹ The Court in Miller explained that while death is different, “children are different too.”¹⁷²

As with its other applications of Eighth Amendment stare decisis, the Court in the juvenile life-without-parole cases relied on both objective and subjective understandings of the nature of juvenile offenders. The Court in Graham emphasized that only eleven states allowed life-without-parole sentences for juveniles in non-homicide cases.¹⁷³ Both cases also expanded on the conversation from Roper concerning the reduced culpability of juveniles.¹⁷⁴ Juvenile life-without-parole sentences not only make retribution and deterrence less justifiable, but also implicate incapacitation and rehabilitation, with the age of juveniles making change more possible than with older offenders.¹⁷⁵

The important point here relates to the idea that part of the evolving standards expansion includes punishments other than the death penalty. It is certainly possible that, as society evolves, other kinds of punishment, including life without parole and solitary confinement, might also violate the Eighth Amendment.¹⁷⁶

B. Distinguishable Deviations

The Court’s application of the Eighth Amendment has arguably moved in a more punitive way in a few situations, but careful examination of these cases in context shows that they are distinguishable from the concept of Eighth Amendment stare decisis and do not undermine that concept.

1. Furman and Gregg

The first example where one might argue that the Court moved in a direction favoring harsher punishment occurred when it reinstated the death penalty in Gregg v. Georgia,¹⁷⁷ four years after it had declared it unconstitutional in Furman.¹⁷⁸

The Court in Furman, however, with its per curiam opinion and five concurrences, did not rule out the future use of the death penalty.¹⁷⁹ Rather, the Court’s as-applied decision meant that the states had to remedy the flaw in the death penalty—the random and arbitrary use of it—before using it again.¹⁸⁰

Importantly, a majority of the Court did not find a consensus against the death penalty,¹⁸¹ and the response of the states—an overwhelming number immediately passing new statutes—supports the idea that, at least at that time, the evolving standard did not bar death sentences.¹⁸²

Even so, a modern examination of the Court’s decision in Gregg suggests that it is incorrect. This is because the safeguards it believed remedied the problems identified in Furman actually were insufficient to do so.¹⁸³ The number and diversity of aggravating factors that most states used in their statutes did little to narrow the class of murderers; with felony murder, almost all homicides could still be death-eligible if the prosecutor was so inclined.¹⁸⁴ Equally as important, the comparative proportionality review never occurred as promised, but instead as a diminished form of review that never included cases with life sentences.¹⁸⁵ As a result, the arbitrariness and randomness in jury outcomes persists and is perhaps even worse that it was in 1972.¹⁸⁶

2. Enmund and Tison

Another set of cases that might appear to demonstrate a move from less harsh to more harsh punishment are the Court’s decisions in Enmund v. Florida¹⁸⁷ and Tison v. Arizona.¹⁸⁸ These cases, nonetheless, are similarly distinguishable.

In Enmund, the Court considered whether a death sentence for a felony murder involving a person who did not kill, attempt to kill, or intend to kill violated the Eighth Amendment.¹⁸⁹ Of the thirty-six jurisdictions that permitted the death penalty at the time, the Court noted that only eight jurisdictions authorized the death penalty for accomplices in felony murder robbery cases like Enmund without proof of additional aggravating circumstances.¹⁹⁰ In addition, another nine states allowed death sentences for felony murder accomplices where other aggravating factors were present.¹⁹¹ The Court found that the legislative practice weighed “on the side of rejecting capital punishment for the crime at issue.”¹⁹²

In the second part of the evolving standards test, the Enmund Court brought its own judgment to bear, finding that the death sentence was inappropriate for Enmund.¹⁹³ Specifically, the Court held that his criminal culpability did not rise to the level required by just deserts retribution to warrant a death sentence.¹⁹⁴ The Court similarly dismissed deterrence as a supporting rationale for a death sentence in Enmund’s case.¹⁹⁵

Finally, it is notable that Enmund appeared to focus only on the relevant facts of Enmund’s case.¹⁹⁶ The Court did not explicitly create a categorical rule with respect to death sentences for felony murder convictions.¹⁹⁷

Tison involved the prosecution of two of Gary Tison’s sons after their father and an associate brutally murdered a family after stealing their car.¹⁹⁸ The sons participated both in helping Tison break out of prison and in the carjacking.¹⁹⁹ They were not directly present, however, at the moment when their father killed the family²⁰⁰ and were unaware that he intended to do so.²⁰¹

In assessing the jury’s imposition of death sentences on the sons, the Tison Court considered whether their punishments violated the Eighth Amendment.²⁰² The Tison Court adopted a new rule—that a capital felony murder is constitutional when the individuals in question are (1) major participants in the felony and (2) exhibit a reckless indifference to human life.²⁰³

Using the evolving standards of decency doctrine, the Court applied the same counting of state statutes as in Enmund but combined the jurisdictions that allowed felony murder for any accomplice with those that only allowed felony murder with additional aggravating circumstances.²⁰⁴ The Court reasoned that, unlike Enmund, the Tison sons played an active role in the crime (particularly the prison escape), and as a result both categories of jurisdictions should count, leading to a finding that only eleven jurisdictions did not allow death sentences in felony murder cases like Tison.²⁰⁵

The Court’s subjective judgment likewise found that the death sentences imposed on the Tison sons were not disproportionate.²⁰⁶ Specifically, the Court cited that the Tison sons’ “reckless indifference to human life” provided the intent to justify a death sentence, even though the sons did not participate in the killing itself.²⁰⁷ The distinction, then, between the outcomes in Enmund and Tison was the intent of the felony murder accomplices.²⁰⁸ Unlike in Enmund, the Tison Court made clear that the majority view did not provide a consensus view in favor of eliminating the application of the punishment at issue.²⁰⁹

So, the Court’s decisions here were not a move toward narrowing the Eighth Amendment. Rather, the Court in Tison simply qualified the scope of Enmund, which did not even impose a categorical rule in the first place. Tison did not overrule Enmund but instead reframed the inquiry. Note that the shift with respect to the act requirement moves the inquiry to the relationship of the act of the defendant to the felony, not the homicide.²¹⁰ In addition, the Tison rule keeps the mens rea connected to the homicide and captures all reckless actors.²¹¹

3. Thompson and Stanford

One might perceive that the decisions in Thompson and Stanford, discussed above, constitute a move away from the evolving standards, but like Enmund and Tison, the decisions reached parallel, but not overlapping, conclusions. Thompson barred the execution of fifteen-year-olds and younger; Stanford allowed the execution of sixteen and seventeen-year-olds.²¹² In much of the same way that Tison clarified the scope of Enmund, Stanford clarified the scope of Thompson.²¹³

4. Solem and Harmelin

The final example of the Court arguably narrowing the Eighth Amendment occurs in the cases of Solem v. Helm²¹⁴ and Harmelin v. Michigan.²¹⁵ Both of these cases concern the Eighth Amendment doctrine that the Court applies in non-capital, non-juvenile cases—the gross disproportionality doctrine.²¹⁶ These decisions parallel the opinions in Enmund and Tison, with the Court granting relief under the Eighth Amendment in the first case but using the second case to make sure that the outcome in the first case only had a narrow application.

In Solem v. Helm, the Court found that the life-without-parole sentence imposed for a bad check in the amount of $100 was grossly disproportionate in violation of the Eighth Amendment.²¹⁷ Specifically, the Court explained that the Eighth Amendment required consideration of (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.²¹⁸ Applying these concepts, the Court held that Helm’s sentence violated the Eighth Amendment because it was a far less severe crime than others for which the life-without-parole punishment—the most serious other than death—had been applied.²¹⁹ Even with the recidivist premium, the Court found that the punishment of life without parole for passing a bad check was grossly disproportionate.²²⁰

Less than a decade later, however, the Court clarified its test from Solem. In Harmelin, the Court upheld a mandatory life-without-parole sentence for a first-time offense of possession of 672 grams of cocaine.²²¹ In a 5-4 decision, the Justices in the majority splintered on the reasoning for the decision.²²² In a clear attempt to narrow Solem, Justice Scalia, joined by then-Chief Justice Rehnquist, held that the Eighth Amendment did not contain a proportionality guarantee, and therefore Harmelin’s sentence could not be unconstitutionally disproportionate.²²³ The controlling plurality, however, found that the Eighth Amendment had a proportionality guarantee,²²⁴ but that Harmelin’s sentence was nonetheless proportionate in light of the deference accorded to states in non-capital sentencing.²²⁵ Justice Kennedy determined that the Solem three-part analysis remained useful,²²⁶ but a reviewing court should consider the second and third factors—that is, the intra- and inter-jurisdictional analyses—only if “a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.”²²⁷

Harmelin, then, did not overrule Solem. It simply qualified the gross disproportionality test, specifying that failing to pass the first part, which most cases do not, ends the inquiry.²²⁸

C. Future Applications

A cursory examination of recent trends in state punishment practices suggests that the evolving standards have already evolved to reach other kinds of punishments.²²⁹ The most obvious category of punishments is the categorical areas barred in capital cases, but not juvenile life-without-parole cases.²³⁰

The Court has identified six categories of capital punishment that the Eighth Amendment proscribes: (1) mandatory death sentences;²³¹ (2) executions of juveniles;²³² (3) executions of intellectually disabled defendants;²³³ (4) executions for certain felony murder crimes;²³⁴ (5) executions for the crime of adult rape;²³⁵ and (6) executions for the crime of child rape.²³⁶ The Court has extended some of the categorical punishment bars to juvenile life without parole, covering three of the unconstitutional capital punishment categories—mandatory juvenile life-without-parole sentences,²³⁷ juvenile life-without-parole sentences for adult rape,²³⁸ and juvenile life-without-parole sentences for child rape.²³⁹

The other categories the Court should extend the death penalty evolving standards doctrine to are (1) categorical limits on juvenile life-without parole sentences in felony murder cases like in Enmund and Tison; (2) categorical limits on juvenile life-without-parole sentences for intellectually disabled defendants like in Atkins; and (3) a categorical limit on juvenile life-without-parole altogether, mirroring the Court’s decision in Roper imposing a categorical ban on the death penalty for juveniles.

Beyond these categorical exceptions, three broad categories of punishment seem like future candidates for constitutional bars under Eighth Amendment stare decisis: the death penalty, juvenile life-without-parole sentences, and emerging adult life-without-parole sentences.²⁴⁰

1. Death Penalty

The recent move toward death penalty abolition among the states suggests that it may soon reach the evolving standards threshold of national consensus against it, if it has not already.²⁴¹ At the time of Gregg, thirty-nine states had capital statutes.²⁴² Currently, twenty-seven states allow capital punishment, but six have gubernatorial holds on executions.²⁴³ Of those twenty-seven states, fifteen have not had an execution in the past five years and thirteen have not had an execution in the past decade.²⁴⁴ Indeed, only Alabama, Arizona, Florida, Georgia, Mississippi, Missouri, Oklahoma, South Carolina, Utah, Tennessee, and Texas—eleven states—have executed anyone in the past five years.²⁴⁵

And those states are not conducting many executions.²⁴⁶ For the past five years, fewer than twenty-five executions have occurred each year, with a total of ninety-two in the period from 2019–2023.²⁴⁷ The direction of change is also clear. Since 2007, ten states have abolished the death penalty.²⁴⁸ Finally, the number of new death sentences has dropped drastically²⁴⁹ with the adoption of life without parole in almost every jurisdiction.²⁵⁰

With respect to the objective indicia of national consensus, then, the evidence is close if not already there. While there are twenty-seven capital statutes in place, only twenty-one states allow executions currently, and only twelve states have recently executed an offender.²⁵¹ The pattern of abolition, including five states in the past decade,²⁵² and the decline in death sentences also supports this conclusion.²⁵³ International consensus supports a similar conclusion, with the European Union and most Western nations having abolished the death penalty long ago.²⁵⁴

With respect to the subjective indicia, it would not be a stretch for the Court to conclude that the death penalty does not serve any of the purposes of punishment.²⁵⁵ It is certainly possible to conclude that the death penalty is an excessive punishment for the purpose of retribution.²⁵⁶ And there is strong evidence that the death penalty does not deter.²⁵⁷

2. Juvenile Life Without Parole

If there is evidence that the death penalty has contravened the evolving standards of decency under the Eighth Amendment, there is perhaps even more evidence that juvenile life-without-parole sentences also cross the constitutional line.²⁵⁸ After the Court’s 2012 decision in Miller v. Alabama, states have moved consistently in the direction of abolishing juvenile life without parole.²⁵⁹

As of 2023, thirty-three states and the District of Columbia have no one serving juvenile life-without-parole sentences, with twenty-eight of those states banning juvenile life without parole.²⁶⁰ In addition, the number of juvenile life-without-parole sentences has drastically declined over the past decade in light of the Court’s decisions in Graham,²⁶¹ Miller,²⁶² and Montgomery v. Louisiana.²⁶³ A survey of the Sentencing Project found 1,465 people serving juvenile life-without-parole sentences in January 2020, a 38% decline from 2016 and a 44% decline from 2012.²⁶⁴ With respect to international consensus, the United States remains the only country in the world that permits juvenile life-without-parole sentences.²⁶⁵

In addition to the evidence of national consensus against juvenile life without parole, it is clear that the purposes of punishment do not support these sentences. The diminished culpability of juveniles, as discussed in Roper, Graham, Miller, and Montgomery, makes it unlikely that a juvenile would deserve a life-without-parole sentence.²⁶⁶ The Court has explained this point at length in the context of the juvenile death penalty, juvenile life-without-parole sentences for non-homicide crimes, and mandatory juvenile life-without-parole sentences.²⁶⁷

It likewise seems impossible to determine that a juvenile’s “crime reflects irreparable corruption” at the time of sentencing, meaning that the utilitarian purposes of deterrence, incapacitation, or rehabilitation would not support such a sentence.²⁶⁸ In particular, the Court has emphasized the pronounced potential that juveniles have for rehabilitation.²⁶⁹

3. Emerging Adult Life Without Parole

A similar, but broader category of young offenders has also garnered judicial interest in the context of state constitutions. The Court in its juvenile life-without-parole cases recognized the diminished capacity and culpability of under-eighteen offenders.²⁷⁰ But the science supporting this understanding does not draw a bright line at age eighteen.²⁷¹ If anything, it suggests that brain development is not complete until one reaches their late twenties.²⁷²

As a result, courts have begun to consider emerging adults—offenders aged eighteen to twenty—as similar to juveniles and worthy of the same constitutional protections.²⁷³ A recent case, Commonwealth v. Mattis, demonstrates this trend.²⁷⁴ In Mattis, the Massachusetts Supreme Court struck down all life-without-parole sentences for emerging adults, individuals aged eighteen to twenty, under the state constitution.²⁷⁵

In applying the language of its state constitution,²⁷⁶ the Mattis court relied heavily on the Court’s Eighth Amendment juvenile cases—Roper, Graham, and Miller—in recognizing the “mitigating qualities of youth.”²⁷⁷ In assessing the contemporary standards of decency, the court looked to science, trends in the state, and trends in other jurisdictions.²⁷⁸ After explaining why the science overwhelmingly supports treating twenty-year-old offenders like seventeen-year-old offenders,²⁷⁹ the court looked to examples of how Massachusetts treated emerging adults more like juveniles than adults.²⁸⁰ It then surveyed other jurisdictions in finding that Massachusetts was only one of ten states that currently requires eighteen- to twenty-year-old offenders convicted of murder to receive life-without-parole sentences.²⁸¹

With Michigan and Washington reaching similar conclusions under their state constitutions, it seems possible that the Court could arrive at a similar place.²⁸² The first step would be a conclusion that emerging adults were like juveniles in that they would also be “different” for purposes of the Eighth Amendment. Then, the question would be whether a consensus existed. As the Mattis court found, most states bar mandatory life-without-parole sentences, suggesting a national consensus with respect to mandatory life-without-parole sentences for emerging adults.²⁸³ A broader application could exist if other states follow the lead of Massachusetts, Michigan, and Washington in barring the imposition of life-without-parole sentences on emerging adults.²⁸⁴

The subjective proportionality analysis would be less difficult. The scientific evidence of the similarity between juveniles and emerging adults means that the same arguments from Roper, Graham, and Miller would apply.²⁸⁵ That means that retribution, deterrence, incapacitation, and rehabilitation might not support the imposition of life-without-parole sentences on emerging adults.²⁸⁶

D. The Limit of Evolving Standards

Having mapped out the concept of Eighth Amendment stare decisis and some potential future applications, the next question is whether the doctrine limits the Court, particularly in considering laws that violate the current doctrine, such as the Florida law highlighted at the beginning of the Article. In particular, the issue is whether Eighth Amendment stare decisis would bar the Court from reversing the limits imposed in Kennedy v. Louisiana²⁸⁷ and Graham v. Florida.²⁸⁸

1. Kennedy

As discussed, the Court in Kennedy barred the imposition of death sentences for the crime of child rape.²⁸⁹ Applying the evolving standards demonstrates why the Florida law is unconstitutional. First, the evolving standards only evolve in one direction—from more severe to less severe. If the Eighth Amendment currently limits the harshest punishment for child rapes, the only direction this punishment could move is to less severe—to barring life-without-parole for child rape.

In addition, there is a clear national consensus against the death penalty for child rape as, prior to the Florida and Tennessee laws, no state has sentenced anyone to death for child rape since at least before the Court barred it in 2008.²⁹⁰ Further, as the Court explained in Kennedy, the death penalty for adult rape was rare even before Coker, much less for child rape.²⁹¹

The subjective indicia also counsel against the death penalty as a punishment for rape. The Court has made clear in Coker and Kennedy that death is an excessive punishment in most cases for non-homicide crimes, particularly sex crimes.²⁹² The Court views death as a punishment for a non-death crime as extending beyond just deserts retribution, as well as being insufficient to accomplish the purpose of deterrence.²⁹³

2. Graham

The analysis for a challenge to the rule in Graham would be almost identical. In Graham, the Court barred the imposition of life-without-parole sentences in non-homicide cases.²⁹⁴

To reverse this decision under the Eighth Amendment stare decisis rule would be impossible, as it would require the Court to move from a less harsh punishment to a harsher one in allowing juvenile life without parole for a non-homicide crime when it was previously unconstitutional.

Likewise, there is a national consensus against imposing life-without-parole sentences for non-homicide crimes committed by juveniles.²⁹⁵ If anything the evidence is even stronger than in Graham, with a majority of states having either banned juvenile life without parole or having no person serving such a sentence.²⁹⁶

And the analysis of the subjective indicia would be the same. The diminished culpability of juveniles would mean that juvenile life without parole would be a disproportionate sentence in light of the goals of retribution, deterrence, incapacitation, and rehabilitation.

Under the evolving standards, then, the Court would apply Eighth Amendment stare decisis to strike down any statute, like Florida’s, that contravened Kennedy or any state statute that contravened Graham. The one possible loophole in this analysis would relate to the Court’s decision in Dobbs, which articulated the current stare decisis standard. Section III.B eliminates that possibility by demonstrating that Eighth Amendment stare decisis is consistent with the rule in Dobbs.

III. WHY DOBBS SUPPORTS EIGHTH AMENDMENT STARE DECISIS

In considering whether the Court has latitude to overrule Kennedy, the question involves the application of Dobbs to Eighth Amendment stare decisis. As demonstrated below, the Dobbs approach to stare decisis affirms both the concept of Eighth Amendment stare decisis and the individual decision in Kennedy. The Dobbs case articulated five factors the Court should consider when weighing whether to follow its prior precedents: (1) the nature of the Court’s error, (2) the quality of its prior reasoning, (3) the workability of the current standard, (4) the effect on other areas of law, and (5) reliance interests in the precedent.²⁹⁷

A. The Dobbs Test

It is worth noting that the framework of the evolving standards of decency rests in part on an assessment of majoritarian consensus, despite its purpose of articulating a countermajoritarian right.²⁹⁸ This means that Court decisions in this area are much less likely to be products of judicial activism as they base their decisions on what they perceive to be the majority practice.²⁹⁹

1. The Nature of the Court’s Error

While the Court has often had disagreements concerning the application of the evolving standards of decency test, the test itself has never been a point of contention.³⁰⁰ From the beginning of its Eighth Amendment cases, the Court has been virtually unanimous in its determination that the Eighth Amendment evolves over time, and only moves in one direction—toward less harsh punishments.³⁰¹ A decision ignoring or overruling Eighth Amendment stare decisis as a general principle would constitute a complete disregard of the rule of law.³⁰²

If there is an error in the evolving standards of decency test, it would relate either to the objective determination of the Court concerning the national consensus for a particular punishment or to the subjective determination of the Court with respect to the purposes of punishment.³⁰³

With respect to Kennedy, finding an error with respect to the objective indicia would be almost impossible. At the time of Kennedy, only five states allowed the execution of child rapists.³⁰⁴ And currently, only two states allow the death penalty for child rape.³⁰⁵

To reverse this perception, a national revolution with more than half of the states adopting statutes similar to Florida’s statute would be a prerequisite for even raising the objective indicia question.³⁰⁶ Even then, some additional evidence of state juries sentencing individuals to death for child rape would also be necessary. And as the Court in Kennedy indicated, such prosecutions have been rare.³⁰⁷

This is exactly the point. Where almost every jurisdiction is unwilling to sanction a particular punishment for a particular crime and juries are unwilling to impose such sentences, the rare jurisdiction with the outlier jury that imposes a death sentence for child rape defies the evolving standards of decency that mark the progress of a mature society.³⁰⁸

Moving to the subjective standards, the Court likewise would be unlikely to find that the punishment of the death penalty was a proportionate punishment for child rape. First, the Court has always reached the same conclusion under the subjective standards as it has under the objective standards when it applies the evolving standards of decency test.

Second, the Court has made clear, both in Coker and Kennedy, that it finds imposing death for a non-homicide sexual crime to be disproportionate.³⁰⁹ It has consistently found that despite the brutal and scarring nature of sex crimes, such crimes do not result in physical death.³¹⁰ A punishment of death, then, would be excessive in light of the crime committed.³¹¹ While the anger that many feel toward child sex offenders likely makes that bright line unsatisfying, it is nonetheless the bright line that the Court has chosen twice.³¹²

The purposes of punishment support such a determination. If retribution concerns just deserts, and not revenge, then it requires courts to impose a sentence no more than and no less than what the offender deserves based on the culpability of the offender and the harm caused.³¹³ If the harm caused did not involve death, then it follows that the punishment should not involve death either.³¹⁴ Similarly, deterrence does not support death as a punishment for child rape.³¹⁵ The marginal deterrence between a death sentence as opposed to a life-without-parole sentence is likely insignificant, particularly in light of the two-decade time gap between sentencing and execution.³¹⁶

Finally, as discussed, the deeper problem here would be that remedying that “error” would violate the core principle of Eighth Amendment stare decisis—that the evolving standards only evolve in one direction.³¹⁷ It would involve enabling states to engage in a harsher punishment than before for a particular crime or offender.³¹⁸

2. The Quality of Its Prior Reasoning

The question of the strength of the prior reasoning with respect to Eighth Amendment stare decisis and the evolving standards approach mirrors the question of error. If there is a flaw in the overall structure of the evolving standards paradigm, it is that it relies on majoritarian indicia to inform a countermajoritarian standard.³¹⁹ In the Court’s cases, this has served as a mechanism to reduce judicial activism and the aggressive substitute of the Court’s normative views for those of state legislatures and juries.³²⁰ If anything, it has caused the Court to be entirely too hesitant in permitting states to use the draconian sentencing practices that have contributed to mass incarceration.³²¹

A likely argument against the reasoning of the evolving standards doctrine would be that the standards should evolve in both directions, allowing punishments to become harsher. The Court cannot achieve such a result without repudiating the entire doctrine. As discussed, the evolving standards doctrine serves to protect human dignity and promote proportionality.³²² Moving toward harsher punishments would undermine both.

To allow movement toward harsher punishments would invert the entire Eighth Amendment and its basic meaning. Instead of being a constitutional protection for individuals against cruel and unusual punishment, the Eighth Amendment would protect the ability of outlier states to engage in extreme punishments disallowed by most other jurisdictions. In other words, reading the Eighth Amendment to allow harsher punishments to reemerge would mean that the Eighth Amendment would authorize cruel and unusual punishments—the very thing it proscribes.

As applied to Kennedy, these objections would be even more robust. Attacking the underlying reasoning of the evolving standards would mean ignoring both the dignity of the offender and the concept of proportionality. And undoing the outcome in Kennedy would sanction the imposition of a cruel and unusual punishment.

The imposition of the death penalty for a child rapist in Florida would be cruel as it is disproportionate in two senses. First, as discussed above, it is an excessive punishment for the crime committed.³²³ Second, it is comparatively disproportionate—almost no other child rapist would receive the same punishment.³²⁴

For the same reason, it would be an unusual punishment in several ways. Not only would it be rare, as almost no other child rapists would receive a death sentence, but it would also be contrary to longstanding practice.³²⁵ Even when the Eighth Amendment allowed the death penalty for child rape, almost no states had such a law, and within those states almost no one received a death sentence.³²⁶

3. The Workability of the Current Standard

The concept of the evolving standards of decency remains very workable. It is a simple two-part test that requires the Court to assess readily available information and then make its own determination, applying criminal law theory to criminal sentences.

In reviewing Kennedy, for instance, it will not be difficult to determine how many states authorize the death penalty for child rape. It will similarly be easily ascertainable how many individuals have received death sentences for the crime of child rape.

With respect to the Court’s subjective analysis, it will similarly not have difficulty engaging in the analysis of whether a death sentence satisfies the purposes of retribution and deterrence for the crime of child rape.

4. The Effect on Other Areas of Law

The Court’s Eighth Amendment stare decisis approach will not have a significant effect on other areas of law. While the Eighth Amendment is not unique in its reliance on jurisdiction counting, it also does not bear particularly on other kinds of constitutional interpretation.³²⁷ While having some similar characteristics to the due process doctrine, the Eighth Amendment does not invoke that doctrine, and that doctrine does not invoke it.³²⁸

As such, this part of the Dobbs test would not have much of an impact on its application to Eighth Amendment stare decisis or the evolving standards doctrine. Upholding Kennedy would not create a significant change in other areas; striking it down would not either. The analysis here would pertain simply to the future of the doctrine itself and its application.

Even so, one could imagine tangential effects from overturning the evolving standards doctrine. There are certain parallels with Sixth Amendment jurisprudence in which the doctrines of the Sixth Amendment and Eighth Amendment could inform each other.³²⁹ These relate to the similar constitutional restrictions both amendments have placed on mandatory sentencing schemes.³³⁰

Another possible ripple from abandoning the evolving standards of decency doctrine could relate to juvenile offenders. The concept that juveniles are different from adults extends beyond the Eighth Amendment. In other areas of law, courts and legislatures have chosen to treat juveniles differently from adults. Changing the approach to juveniles under the Eighth Amendment could influence other areas that have adopted similar approaches.

5. The Reliance Interests in the Precedent

Finally, the question becomes whether there are significant reliance interests in the Eighth Amendment stare decisis approach and the evolving standards of decency doctrine. Criminal defendants clearly have an interest in preventing states from subjecting them to draconian punishments. While the Court’s limits on states have been few—far fewer than perhaps the national consensus reflects—rolling back those limits could exacerbate expansive uses of the death penalty by outlier jurisdictions and promote unequal punishment. It could also invite small groups of citizens to engage in human rights abuses with no judicial review.

B. The Dobbs Reasoning

Implicit in the Court’s holding in Dobbs is both a disdain for abortion and the Court’s prior holdings in Roe and Casey. For the majority, the decision clearly reflects a view that the Court “got it wrong” in its earlier cases in a fundamental way. On some level, the Court’s reasoning was beside the point.³³¹

Unlike the culture war terrain of the abortion issue, criminal justice has historically enjoyed a bipartisan consensus of sorts.³³² Liberals and conservatives, for different reasons, both rode the “tough on crime” wave of the 1980s and 1990s to unprecedented levels of mass incarceration.³³³ And since the turn of the century, both groups have worked to slowly and incrementally undo some of this trend.³³⁴ The bipartisan First Step Act provides one example of this consensus.³³⁵

Outside of Furman, the Court’s Eighth Amendment decisions have not generated widespread public response or objection.³³⁶ This is in part because the evolving standards doctrine has served to restrict outliers, not advance broad normative change.

Undoing the decision in Kennedy would encourage states to engage in draconian punishment practices to test the boundaries of the Eighth Amendment. Florida’s statute is unconstitutional on its face. Upholding it would not only undermine the rule of law, but would also encourage state legislatures to disregard the Court’s decisions and the evolving standards. This would be different than ignoring stare decisis. It would constitute a repudiation of over one hundred years of jurisprudence.

Further, a significant part of the Court’s reasoning in Dobbs dealt with its concern with the “disruption of democratic deliberation.”³³⁷ The concern related to the use of the constitution to interfere with legislative authority, particularly on issues of “profound importance to the electorate.”³³⁸ As shown by the response to the Court’s decision in Furman, abolition of the death penalty might constitute a similar kind of issue.³³⁹ But it does not appear that the evolving standards of decency generally or the execution of child rapists specifically would fall into this category.

The difference again relates to the majoritarian anchor of the evolving standards of decency. Overruling an Eighth Amendment limit would not restore the power to the people as a general matter. It would give power to a particular state to violate a national, and in some cases international, consensus against a particular punishment practice. Put differently, it would provide a license to certain jurisdictions to violate the individual rights of defendants when an overwhelming majority of jurisdictions accord defendants those very rights.

CONCLUSION

Florida’s decision to pass a new statute that clearly violates the Eighth Amendment and the Court’s decision in Kennedy does not change the analysis in the case or under the Constitution. The Court’s decision in Dobbs does not open the door to such defiance, and it does not support rejection of the Court’s precedents.

This Article has demonstrated why, even if the Court thinks the normative outcome in Kennedy is wrong, the Court still must strike down the Florida statute if given the opportunity. Specifically, this Article has made the case for a novel reading of the doctrine of stare decisis under the Eighth Amendment. Drawn from the Court’s evolving standards of decency doctrine, this Eighth Amendment stare decisis requires the Court to change the rule in cases in which the national consensus has evolved and the Court finds the sentence to be disproportionate.

The Article first developed this concept by explaining the origins of this doctrine and defending the core principle that the evolving standards only evolve from more severe to less severe punishment. The Article then explored past applications of the doctrine, distinguished deviations from the doctrine, highlighted some future applications of the doctrine, and delineated the limits of the doctrine on state legislatures. Finally, the Article concluded by demonstrating how this reading of the Eighth Amendment is consistent with the Dobbs decision, both as a doctrinal and theoretical matter.

98 S. Cal. L. Rev. 255

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William W. Berry III*

* Associate Dean for Research and Montague Professor of Law, University of Mississippi. The author would like to thank Corinna Barrett Lain, Meghan Ryan, Cara Drinan, Kathryn Miller, Eric Berger, Alex Klein, Katie Kronick, Rachel Lopez, and Daniel Harawa for helpful comments on an early draft during the Eighth Amendment Roundtable at Cardozo Law School in April 2023.

Evidence that the President Is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment

March 2025March 2025James A. Heilpern* & Michael T. Worley†

AUTHORS’ NOTE

This Article was written during the weeks before certiorari was sought in Trump v. Anderson in the aftermath of the Colorado Supreme Court’s decision to remove former President Donald Trump from the 2024 Republican primary ballot. An initial draft was uploaded to SSRN on Jan. 1, 2024, and a revised draft incorporating constructive feedback we received from other scholars was uploaded on Jan. 8, 2024. Because those versions of the Article featured prominently in the Respondents’ merits briefing¹ and were discussed at length by popular media sources² and scholarly circles,³ we have decided to make no substantive changes to the text of the Article, treating it instead as an artifact of a specific and important historical period. We have made grammatical and syntactic revisions, and updated some of the footnotes in order to reference final versions of articles which, at the time, were only available in draft form on SSRN.

INTRODUCTION

In 1868, three years after the conclusion of the Civil War and the assassination of Abraham Lincoln, the Fourteenth Amendment was ratified and became part of the United States Constitution. The Amendment officially overturned the notorious Dred Scott decision and was designed to grant citizenship and ensure equal protection under the law for recently freed slaves. But Section 3 of the Amendment also contained a provision that limited the ability of a small class of former Confederates—those who had previously taken oaths to support the U.S. Constitution—from holding public office in the future:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.⁴

Six months prior to the writing of this Article, William Baude and Michael Stokes Paulsen made headlines by publishing an article on SSRN, The Sweep and Force of Section Three, in which they argued that Donald Trump’s actions on January 6, 2021 qualified as an insurrection and that Section 3 therefore disqualified him from being elected President again.⁵ At the time, Trump was the front-runner for the Republican nomination for President in 2024. Baude and Paulsen’s paper inspired lawsuits in twenty-one states, seeking to remove President Trump from the upcoming primary ballots.

Most of the media attention has focused on whether Trump actually “engaged in insurrection.” This paper focuses on a far less titillating question. In order for Section 3 to apply to Donald Trump, he must have been an “officer of the United States” prior to committing the alleged insurrection. Baude and Paulsen argue that, as President of the United States, Trump was an officer of the United States.⁶ In making that argument, Baude and Paulsen disagreed with an earlier piece by Josh Blackman and Seth Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?⁷ Blackman and Tillman examined the original 1788 Constitution and concluded that the founding generation understood that the President was not an “officer of the United States.”⁸ Their analysis focused on the text of the constitution and subsequent sources. Based on this conclusion, Blackman and Tillman “contend that the phrase ‘officer of the United States’ has the same meaning in Section 3 as it does in the Constitution of 1788.”⁹ This implies that “the elected President is not an ‘officer of the United States.’ ”¹⁰

On December 19, 2023, the Colorado Supreme Court concluded that Donald Trump is ineligible to be on the Colorado Republican primary ballot for President because he is disqualified under Section 3.¹¹ The opinion reversed a trial court judge who had found Trump did commit insurrection but that Section 3 did not apply because Presidents are not officers of the United States.¹² Rejecting Trump’s contention that “officer of the United States” was a term of art, the state supreme court concluded that “[i]f members of the Thirty-Ninth Congress and their contemporaries all used the term ‘officer’ according to its ordinary meaning to refer to the President, we presume this is the same meaning the drafters intended it to have in Section Three.”¹³ The court cited examples of the contemporaries of the Fourteenth Amendment referring to the President as an officer,¹⁴ but only cited limited evidence about the use of the full term “officer of the United States.”¹⁵ Baude and Paulsen similarly cite limited historical evidence, spending under ten pages on this issue, which they spend discussing logical reasoning more than historical evidence.¹⁶

This Article attempts to fill the gap in historical evidence and provide a more detailed theoretical foundation. Part I reviews Blackman and Tillman’s article and other arguments made in the Colorado litigation, including the argument that the President is not an officer because he is “elected” not “appointed,” and the argument that he is not an officer because he does not take an oath to “support” the Constitution as required by Article VI, but instead takes the Article II oath to “preserve, protect, and defend” the Constitution.¹⁷ In Part II, we respond to these arguments as a textual matter, ultimately concluding that the President was an “officer of the United States” at the time of the Founding. Here, we (1) provide corpus linguistic evidence that the full phrase “officer of the United States” was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words “appoint” and “elect” were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an “officer of the United States” or otherwise indicate that he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President’s and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Part III, we briefly discuss the phenomenon of “linguistic drift.” In Part IV and V, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part IV, we discuss and confirm that historical records including the text, legislative history, and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including “officers of the United States.”¹⁸ Part V then discusses specific evidence that the President is not just an officer, but is an “officer of the United States” as contemporaries of the Fourteenth Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the Fourteenth Amendment was ratified—explicitly referring to himself as either the “chief executive officer of the United States” or “chief civil executive officer of the United States.” Other evidence comes from numerous texts, including legislative history, Johnson’s impeachment trial, and newspapers.¹⁹ Part VI reexamines case law that Blackman and Tillman rely on. We then conclude.

In his brief to the Colorado Supreme Court, President Trump argued that “not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.”²⁰ We have done our best to collect and catalog extensive evidence to the contrary.

Our conclusion is simple: the President was an officer of the United States as originally understood both at the Founding and the ratification of the Fourteenth Amendment. Numerous sources confirm that “officer of the United States” was not a term of art, which by itself settles the matter. Regardless, founding-era sources also refer to the President as an officer of the United States. This includes the Postal Act of 1799, which lists the President with officers of the United States. Additionally, there is strong probative evidence that in 1868 the President was considered an officer of the United States.

I. SUMMARY OF PAST SCHOLARSHIP AND ITS USE IN THE COLORADO PROCEEDINGS

This Section attempts to fairly familiarize the reader with Blackman and Tillman’s points and walk through how their article informed the proceedings in the Colorado case regarding President Trump’s eligibility to appear on the 2024 Colorado Republican Primary ballot.

A. Summary of the Blackman-Tillman Interpretation

Blackman and Tillman argue that Section 3 of the Fourteenth Amendment cannot bar President Trump from holding future office because the only office he has held is that of President, and the President is not an officer of the United States. They compare the text of the Fourteenth Amendment to the text of the original Constitution and infer that (1) “Section 3’s ‘officer of the United States’-language was imported from the Oath or Affirmation Clause,”²¹ and (2) “[i]n 1788, the President was not an ‘officer of the United States.’ ”²² They also tentatively state a third conclusion: “[W]e do not think linguistic drift occurred with respect to the phrase ‘officer of the United States’ ” between the founding in 1788 and the enactment of the Fourteenth Amendment in 1868.²³

Blackman and Tillman first look at the Constitution’s text, specifically the use of the term “officers of the United States” in the Appointments Clause, the Commission Clause, the Impeachment Clause, and the Oath or Affirmation Clause. They claim that none of these clauses suggest the existence of officers who are elected, only officers who are appointed.

First, Blackman and Tillman emphasize that the Appointments Clause states that the President shall appoint “Ambassadors, other public Ministers and Consuls, Judges of the [S]upreme Court, and all other Officers of the United States.”²⁴ Because the President does not appoint himself, they reason that he cannot be an officer of the United States.²⁵

Next, they rely on the Impeachment Clause’s reference to “[t]he President, Vice President and all civil Officers of the United States.”²⁶ From this language, they conclude that

the president and vice president’s [express] enumeration in the Impeachment Clause in addition to ‘all civil Officers of the United States’ shows that the president and vice president are not deemed ‘officers of the United States’ themselves. Otherwise, the Framers would have stated that ‘all other civil officers’ were subject to impeachment.²⁷

Third, they cite the Oath or Affirmation Clause, which requires the “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States” to take an oath to “support the Constitution.”²⁸ But because the President takes a different oath specified at the end of Article II, they conclude he must not be an officer of the United States.²⁹

Finally, they note that Article II, Section 3, states that the President “shall Commission all the Officers of the United States.”³⁰ Here, they argue, “All means all.” This structure explains why appointed executive-branch and judicial-branch officers receive commissions, but there is no record of any elected official, whether a president, vice president or a member of Congress, ever receiving a [presidential] commission.”³¹

Based on their analysis, Blackman and Tillman claim that “Section 3’s ‘officer of the United States’-language was imported from the Oath or Affirmation Clause.”³² They make this claim because both clauses “reference the same four categories of office holders who swore an oath to support the Constitution: [1] Senators and Representatives, [2] members of the state legislatures, [3] executive and judicial officers of the United States, and [4] executive and judicial officers of the states.”³³ Based on the parallel structure of these clauses, they conclude that because the President is not mentioned in the Oath or Affirmation Clause, the parallel language of Section 3 excludes him.³⁴

Blackman and Tillman next argue that “[i]n 1788, the President was not an ‘officer of the United States.’ ”³⁵ To support this conclusion, they first state that “[e]lected officials like the president are not ‘Officers of the United States.’ ”³⁶ Second, they rely on the drafting process surrounding the original Constitution:

For example, in the Succession Clause, the phrase “officer of the United States” was changed to “officer.” In the Impeachment Clause, the phrase “[President, Vice President,] and other Civil officers of the U.S.” was changed to “President, Vice President, and Civil Officers of the U.S.” And in its final form, the Impeachment Clause became: “President, Vice President, and all civil Officers of the United States.” The Framers changed the word that preceded “Civil Officers of the United States” from “other” to “all.”³⁷

From these changes, they conclude:

This and other similar alterations to the draft constitution’s “office”- and “officer”-language were significant. First, these revisions show that this language was not modified indiscriminately. The Framers paid careful attention to the words they chose. Second, the use of “other” in the draft constitution shows that at a preliminary stage, the Framers used language affirmatively stating that the President and Vice President were “Officers of the United States.” But the draft constitution’s use of “other” was, in fact, rejected in favor of “all.” The better inference, arising in connection with the actual Constitution of 1788, is that the President and Vice President are not “Officers of the United States.”³⁸

Finally, Blackman and Tillman tentatively conclude: “[W]e do not think linguistic drift occurred with respect to the phrase ‘officer of the United States’ ” between the founding in 1788 and the enactment of the Fourteenth Amendment in 1868.³⁹ They cabin this conclusion carefully, noting repeatedly that this conclusion was based on the lack of “direct, clear, or compelling evidence.”⁴⁰ They cite two cases—United States v. Mouat (1888) and United States v. Hartwell (1867)—as evidence.⁴¹ They also cite to statements from two individuals who viewed the President as not an officer of the United States:

In 1876, the House of Representatives impeached Secretary of War William Belknap. During the trial, Senator Newton Booth from California observed, “the President is not an officer of the United States.” Instead, Booth stated, the President is “part of the Government.”

Two years later, David McKnight wrote an influential treatise on the American electoral system. He reached a similar conclusion. McKnight wrote that “[i]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’ ”⁴²

However, Blackman and Tillman admit that they “do not suggest that there is no counter-authority” but ask for evidence “as probative as” their own before they accept the proposition of linguistic drift.⁴³ We do not suggest that, if Blackman and Tillman were right about these core points, they would be wrong in the conclusion they draw: that a President who had not otherwise served as an officer of the United States would not be subject to the Fourteenth Amendment.⁴⁴ Instead, we believe they are wrong on these points.⁴⁵

Blackman and Tillman have written a more recent article, Sweeping and Forcing the President into Section 3, where they respond directly to Baude and Paulsen’s criticism at length.⁴⁶ Much of their substantive discussion is indistinguishable from their earlier discussion as they focus their attention on their existing scholarship on the term “officer of the United States.” As they did in their original article, they cite Senator Booth and David McKnight.⁴⁷ They discuss the other Clauses their first paper discussed and spend time critiquing Baude and Paulsen’s discussion of this issue.⁴⁸

But they continue to convey a commendable level of humility about their position: “Maybe Booth and McKnight were right, or maybe they were wrong. No doubt, there are other competing authorities.”⁴⁹ “We do not say this question has an obvious answer. Rather, we say it does not have an obvious one. If so, ambiguity leans against extending disqualifications.”⁵⁰ In discussing if there was linguistic drift regarding “Office . . . under the United States,” they say, “[w]e would prefer to add to the body of scholarship and be correct, rather than overreach and be wrong.”⁵¹

In their response to Baude and Paulsen, Blackman and Tillman point to the Oath or Affirmation Clause as the source of the meaning of terms in Section 3, suggesting that “[i]f we are correct, it illustrates that constitutional draftspersons, in 1787–1788 and 1866–1868, closely adhered to parliamentary drafting conventions,” and critique the legal academy for not understanding those conventions.⁵² They also repeat an argument made in the Colorado litigation: that because the presidential oath says “preserve, protect and defend” and the Article VI oath says “support,” Section 3 includes the latter and excludes the former.⁵³ Blackman and Tillman also cite contemporary opinions by attorneys general and others that link Article VI and Section 3.⁵⁴

B. Reliance by Lower Colorado Court

In late 2022, Donald Trump announced he would run for President again.⁵⁵ In September 2023, five Colorado residents sued Colorado’s Secretary of State, arguing that Trump was ineligible to be on the ballot in Colorado because he had violated Section 3.⁵⁶ Obviously, Trump intervened.⁵⁷ Trump cited Blackman and Tillman in support of the proposition that the President was not an officer of the United States.⁵⁸ Trump quoted the examples Blackman and Tillman gave: Senator Booth and treatise writer David McKnight stating that the President was not an officer of the United States.⁵⁹ He also cited recent Supreme Court precedent, including the statement by Chief Justice Roberts that “[t]he people do not vote for the ‘Officers of the United States.’ ”⁶⁰ Finally, Trump cited the Appointments Clause, the Impeachment Clause, the Commission Clause, and the Oath or Affirmation Clause, closely tracking Blackman and Tillman in some detail as to why each Clause supports the idea that the President is not an officer of the United States.⁶¹

The trial court ultimately ruled against Trump on every dispositive issue except whether the office of the President was an officer of the United States.⁶² While the court did not cite Blackman and Tillman, it did cite to the same four clauses that Blackman and Tillman and Trump’s briefing rely on—the Appointments Clause, the Commission Clause, the Impeachment Clause, and the Oath or Affirmation Clause.⁶³ The trial court also noted that the President takes a different oath than Article VI officers, suggesting that his oath was not covered by Section 3.⁶⁴

However, part of the reason for the trial court’s decision was the implications of an alternative conclusion. The court stated:

To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.⁶⁵

C. Rejection by Colorado Supreme Court

Trump’s core argument at the Colorado Supreme Court was that the catch-all phrase “officer of the United States” excludes the President as “no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion” supports the conclusion that the President is an officer and “by contrast, three Constitutional provisions—the Appointments Clause, Impeachment Clause, and Commissions Clause in Article II—all distinguish the President from ‘officers of the United States.’ And ‘officers of the United States’ in Article VI take an oath different from the Presidential oath in Article II.”⁶⁶ Trump also argued that the presidential oath does not qualify as an oath under Section 3’s requirements for disqualification.⁶⁷

The Colorado Supreme Court disagreed. The court concluded: (1) “[T]he normal and ordinary usage of the term ‘officer of the United States’ includes the President”;⁶⁸ and (2) “Section Three’s drafters and their contemporaries understood the President as an officer of the United States.”⁶⁹

Trump was incorrect to argue that “ ‘officer of the United States’ . . . is a constitutional term of art” because the court “perceive[d] no persuasive contemporary evidence demonstrating some other, technical term-of-art meaning.”⁷⁰ In other words, if “officer of the United States” was a term of art, someone would have said so.

Attorney General Stanbery’s opinions on the subject suggest that the term “officer of the United States” was to be broadly understood.⁷¹

However, the Colorado Supreme Court did not cite much historical evidence referring to the President by the term “officer of the United States.” Many of the examples referred to the President simply as an “officer.”

While three Justices dissented from the holding of the majority, none of them argued that the President was not an officer of the United States.⁷²

D. The Colorado GOP’s Petition for Certiorari

The Colorado Republican Party filed for certiorari, represented by Jay Sekulow, a long-time ally of Trump who has argued fourteen or more cases at the Supreme Court. The leading question presented concerns whether the President is an officer of the United States.⁷³ Their brief for certiorari reads like a merits brief.

In arguing that the President is not an officer of the United States, the brief makes the following core points: First, the President is not an officer because officers are commissioned by the President under the Commissions Clause, not elected.⁷⁴ Second, “officers of the United States” is a term of art that is only used in three places in the Constitution: Section 3 of the Fourteenth Amendment, the Commissions Clause, and the Appointments Clause.⁷⁵ The Colorado Republican Party argues, “The Constitution uses a distinct, specific term, ‘officer of the United States.’ Generic references to the term officer do not overcome the more specific meaning evidenced by the constitutional language.”⁷⁶ Third, they rely on the same sources of Senator Booth and David McKnight that were previously explained.⁷⁷ Fourth, they make a distinction between the presidential oath and the Article VI oath, relying on Attorney General Stanbery’s discussion of the Article VI oath.⁷⁸ Finally, they posit that this exclusion of the President from Section 3 makes sense as a policy matter:

Every Senator or Representative represents a geographic area where sympathy for insurrection was (at the time of the post-Civil War era) a real and legitimate concern. Lower federal officers, meanwhile, are not elected and thus do not face national electoral scrutiny. Only the President (and Vice-President) face nationwide electoral accountability. And if an electoral majority of the voters determine that they want a certain individual as Chief Executive, regardless of alleged or even actual past transgressions, that is their national choice under the Constitution.⁷⁹

(This last argument appears poorly reasoned; if a President had previously served as a senator, governor, or general, as many Presidents have, it would not matter that “an electoral majority of the voters determine that they want [that former President] as Chief Executive” if that President committed insurrection; they would be ineligible to run for a second term. This argument does not explain why the Fourteenth Amendment’s drafters would have wanted to exclude only Presidents who had never held offices such as Senator, Governor, or General.)

II. THE PHRASE “OFFICER OF THE UNITED STATES” INCLUDED THE PRESIDENT AT THE TIME OF THE FOUNDING

Despite Blackman and Tillman’s articles being impressive examples of careful scholarship, there are at least four reasons we disagree with the conclusion that the original public meaning of “officers of the United States” did not include the President or Vice President: (1) corpus linguistics evidence—including our own past research—demonstrates that at the time of the Founding, “officer of the United States” was not a term of art but instead referred to any federal official; (2) the assumption that there was a rigid distinction between “elections” and “appointments” is at odds with the historical record, which shows that the words were instead used interchangeably; (3) the text of the Constitution specifically identifies the Presidency as an “office”; and (4) additional contextual considerations complicate Blackman and Tillman’s otherwise straightforward textual analysis. While this topic merits an article of its own, we will address each reason briefly below.

A. Corpus Linguistics Evidence Supports that the President Is an Officer of the United States

First, many who argue that the President is not an officer of the United States—including President Trump and Steven Calabresi—do so based on the assumption that the phrase “officer of the United States” is a term of art⁸⁰—an assumption that past research refutes. In 2018, we wrote an amicus brief on behalf of fifteen scholars of corpus linguistics which was submitted to the U.S. Supreme Court in the case Lucia v. SEC.⁸¹ As part of that brief, a corpus linguistic analysis of the phrase was performed, from which we drew the following conclusions:

The phrase “Officer(s) of the United States” appears in [BYU’s Corpus of Founding Era American English (“COFEA”)] just 109 times between 1789 and 1799, with just over a third of those being direct quotations of the Constitution. This is a tiny minority of the 5,353 times the word “officer” appears in the database overall during this same period―even though 59.8% of the time the word “officer” appears in COFEA it is clearly referencing a federal [official].

While the relative obscurity of the longer phrase does not prove that it was not a legal term of art at the time of the Founding, we perceive no specialized meaning attached to its use [to suggest that it was]. Instead, the appellation was often used simply to clarify that the agent was in the employ of the federal government, as opposed to a private actor or employee of a state or territory.

For example, in a letter to George Washington, General Arthur St. Clair expressed concern that the Attorney General of the new Ohio territory “would be an Officer of the Territory only, whereas he should be an Officer of the United States.” Likewise, Alexander Hamilton wrote to New York merchant William Seton, requesting he purchase public debt on behalf of the federal government since the government had yet to “employ some officer of the United States” for the task.⁸²

We did not see then—and do not see now—any evidence to suggest that the term excluded the President or was limited to some special subclass of federal officials. To the contrary, it applied broadly to all government officials—“civil and military”—exercising any non-trivial federal authority. For instance, in his Eighth Annual Address to Congress at the end of 1796, George Washington called for “legislative revision” of “[t]he compensation to the officers of the United States,” particularly “in respect to the most important stations.”⁸³ Congress responded a little over one year later, raising the salaries of sundry government officials, starting with “the President and Vice President of the United States.”⁸⁴ The fact that Congress did not use the phrase “officers of the United States” in this appropriations bill, but instead referred generally to “officers,” “offices,” and “persons employed,” even when referring to positions such as the Secretary of State, Attorney General, Secretary of the Treasury, Secretary of War, Chief Justice, and Consuls—positions that neither Blackman and Tillman nor President Trump would dispute are “officers of the United States”—further demonstrates that the larger phrase was not considered a term of art.

In fact, a corpus search of BYU’s Corpus of Early Statutes at Large⁸⁵—which the authors of the Lucia brief created and which contains all of the Statutes at Large from the first five Congresses—reveals that Congress almost never used the phrase “officer(s) of the United States” during this time period, despite being an era when Congress was constantly exercising its power to “establish[] by [l]aw”⁸⁶ such positions within the new government. In its first decade, Congress used the phrase just thirteen times, while using the word officer or officers 1,481 times and office or offices 630 times. This would be baffling if “officer of the United States” was a legal term of art but makes perfect sense if the phrase merely designated a federal official—after all it was the Congress of the United States creating the positions, what other type of office would we expect? One for Virginia? Japan? In the absence of clear textual clues to the contrary—such as perhaps territorial officers—the default assumption should be that all of such positions created by Congress are officers of the United States.

In addition, of the thirteen times the full phrase appears, one—a postal bill specifying which “officers of the United States” should be granted a franking privilege—specifically listed both the President and Vice President as officers of the United States.⁸⁷ The Postal Act of 1799 stated:

Sec. 17. And be it further enacted, That letters and packets to and from the following officers of the United States, shall be received and conveyed by post, free of postage. Each postmaster . . . ; each member of the Senate and House of Representatives of the Congress of the of the United States; the Secretary of the Senate and Clerk of the House of Representatives . . . ; the President of the United States; Vice President; the Secretary of the Treasury; Comptroller; Auditor; Register; Treasurer; Commissioner of the Revenue . . . .⁸⁸

The conclusion that the phrase “officer of the United States” was not a term of art at the time of the Founding is further buttressed by the research of Jennifer Mascott, who used aspects of corpus linguistics to demonstrate that the phrase was in use prior to the creation of the Constitution.⁸⁹ Using a corpus of 340,000 issues of early American newspapers, she found twenty uses of the phrase “prior to the signing of the Constitution on September 17, 1789.”⁹⁰ The first reference was in 1780, describing Benedict Arnold as a “general officer of the United States.”⁹¹ It appeared again in 1783 referring simply to continental officers. Other uses included “Judicial Officers of the United States” and “commissaries and other officers of the United States” who gave out certifications of debt under the Constitution.⁹²

Mascott also performed a corpus analysis of the Journals of the Continental Congress, “a highly relevant source for identifying the well-understood meaning of legally relevant terms and phrases in the time period just prior to the drafting and ratification of the Constitution.”⁹³ The Journals contain forty-one references to “officer(s) of the United States.”⁹⁴ Often the phrase was “just another way to describe continental military officers or identify national- as opposed to state-level, officers.”⁹⁵ For example, one letter distinguished between the time a military officer served as an “officer of the United States” and the time he served as a captain for his State.⁹⁶

From both a legal and linguistic perspective, we think the importance of the full phrase “officer of the United States” not being a term of art at the time of the Founding cannot be overstated. It narrows the scope of the linguistic inquiry: the meaning of the word “officer” standing alone becomes the relevant question, with “of the United States” simply being a prepositional phrase functioning as an adjective. A comment by Alexander Hamilton in Federalist 67 supports this conclusion:

The second clause of the second section of the second article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW.”⁹⁷

While we will return to the substance of Hamilton’s statement later, what is important for present purposes is his interesting use of capitalization for emphasis. If he had understood the term “officers of the United States” to be a term of art, he would have written “OFFICERS OF THE UNITED STATES.” But he did not. He focused on just the word “OFFICERS.”

The addition of a modifier—whether it is “tall,” “red,” or “of the United States”—can rarely change the meaning of the underlying noun it is modifying. As we observed in another corpus linguistics-based amicus brief we wrote in a different Supreme Court case:

An adjective is a word that modifies nouns and pronouns, primarily by describing a particular quality of the word that it is modifying. . . . In syntactic representations the adjective is a subordinate category, a dependent of the noun . . . that it modifies. In layman’s terms, this means that in the relationship between adjectives and their nouns, the noun is king—an adjective’s meaning and scope is always relative to the noun it is modifying . . . . Put another way, an adjective can hardly ever decontextualize a noun.⁹⁸

We think that this is important for evidentiary purposes: it dramatically expands the universe of helpful examples relevant in determining the original public meaning of the phrase in at least three ways. First, we can assume that references to “federal officers,” “national officers,” “officers of the federal government,” “United States officers” and similar phraseology are also references to “officers of the United States”—unless, of course, there is evidence that one of those phrases is a term of art.

Next, we also think that it makes historical details about state and local officers more relevant. While the fact that a state constitution might allow for a governor or other state officer to be elected does not tell us anything about whether the U.S. Constitution allows for a federal officer to be elected, it does provide evidence that there was nothing inherently wrong about officers generally being elected.

Finally, in his brief to the Colorado Supreme Court, President Trump argued, that “despite the many words and citations that treat the President as an officer[,] not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.”⁹⁹ While our discovery of the Postal Act of 1799 has already proven that the former President’s assertion is not true, even if it were, it would not matter. Those many “words and citations that treat the President as an officer” are absolutely relevant unless it can be shown that the full phrase “officer of the United States” means more than the sum of its parts. Which it does not.

B. At the Time of the Founding, “Appoint” and “Elect” Were Used Interchangeably

Second, the argument that the President is not an officer of the United States is built on the assumption that there is a rigid distinction between appointments and elections. Blackman and Tillman have repeatedly stated this:

“In order to reach this . . . conclusion [that the President could be an ‘Officer of the United States’], the interpreter must reject the distinction we drew between elected and appointed federal positions.”¹⁰⁰

“The Constitution hardwired this distinction between appointment and election.”¹⁰¹

“The President is in ‘the service of the government,’ but is not appointed by a President, a court of law, or a department head; indeed, he is not appointed at all . . . the Constitution expressly states that the President ‘shall . . . be elected.’ Under the rule in Mouat, the President is not ‘strictly speaking’ an officer of the United States.’ ”¹⁰²

“Presidents are not appointed; they are elected.”¹⁰³

“Presidents are not ‘appointed’ by the ‘government.’ Rather, Article II describes the President as an ‘elected’ position in several clauses.”¹⁰⁴

And they are not alone: Steven Calabresi¹⁰⁵ and Michael Mukasey¹⁰⁶ have all made similar arguments. But there is one really good reason to “reject the distinction [they all draw] between elected and appointed federal positions”¹⁰⁷: it did not exist at the time of the Founding. It is a linguistic anachronism. The words appear to have been used interchangeably, at least to the extent that an election was considered a mode of appointment. For example, in a speech given during the Constitutional Convention, James Madison discussed different options for selecting the President: “The option before us then lay between an appointment by Electors chosen by the people —and an immediate appointment by the people.”¹⁰⁸ Likewise, during the impeachment trial of Senator William Blount, Congressman Robert Harper of South Carolina—one of the House Impeachment Managers—stated, “[T]he President himself is liable to be impeached, as well as the officers whom he appoints. So also is the Vice President. And yet these two great officers are appointed by the people themselves, in a manner far more direct and immediate than Senators, and removable at shorter periods.”¹⁰⁹

And these comments were not one-offs. As we will show below, the historical record—including the text of the Constitution itself, the Articles of Confederation, early state constitutions, and repeated statements to and by George Washington—overwhelmingly shows that the founding generation used the word “elect” and “appoint” largely as synonyms.

1. Text of the Constitution

To begin with, the text of the Constitution itself demonstrates that the founding generation did not use the words “appoint” and “elect” in the same binary fashion we do today. This is evident in the original Constitution’s discussion of the Electoral College. It is often easy to forget that while the President is “elected” (as it states in the Constitution), he is not elected by the people. He is elected by the Electoral College—a non-standing, multimember body of sorts whose members choose the President and Vice President by vote. But how are these Electors chosen? There is no Constitutionally required method. Article II, Section 1 simply states: “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.”¹¹⁰

Ten states participated in the first Presidential Election of 1788–89.¹¹¹ While the methods for appointing electors varied, none followed the pattern we are accustomed to today with a single individual or council (with or without the approval of a legislative body) unilaterally making the decision. Instead, four states “appointed” these electors through popular elections. Unlike today where the voters generally cast ballots for Presidential candidates (with slates of electors who support the winner of the popular vote in the state being appointed behind the scenes in accordance with state law), in several states in 1789, the citizenry voted for individual electors. For example, “Virginia chose presidential electors by popular vote. The state was divided into electoral districts. The voters in each district selected one presidential elector, who was then certified to the governor by the sheriffs of the counties comprising that district.”¹¹² Delaware followed a similar procedure.¹¹³ And Pennsylvania and Maryland chose their electors through state-wide elections, with the highest vote getters at-large being “appointed.”¹¹⁴

Massachusetts and New Hampshire followed hybrid models. In Massachusetts, a popular election was held in each of eight districts, but then the legislature appointed one of the two highest vote getters.¹¹⁵ In New Hampshire, a state-wide election was held, and then the legislature selected five of the top ten vote getters.¹¹⁶ In three states—Connecticut, Georgia, and South Carolina—the state legislatures appointed their respective electors entirely themselves.¹¹⁷ But how does a multimember legislative body “appoint” someone? As one newspaper article about the legislative component of the Massachusetts process explained, “the Members of the two Houses [of the Legislature], assembled together in one room for the choice of Electors of President and Vice President of the United States, and proceeded to the choice by joint ballot.”¹¹⁸ In other words, they voted.

Thus, in nine of the ten states, the electors were chosen through some sort of election—either by the people, the legislature, or both. But these elections did not mean that the electors were not appointed. Instead, it demonstrates that at the time of the Founding, appointments and elections were not thought to be mutually exclusive.

2. Early State Constitutions

Next, we find evidence that the founding generation used the words “appointed” and “elected” interchangeably in the first constitutions of the thirteen original states. We collect the relevant text of these Constitutions in Appendices A and B. At the time, popular elections for chief executives and judges were almost unheard of.¹¹⁹ Instead, executive and judicial officers were typically chosen by a state’s general assembly. But while some of the states used the word elect to describe this process,¹²⁰ others used the word appoint.¹²¹ Often the same Constitution would use both words to describe the same process, often in the same sentence. For example, under the Georgia Constitution of 1776, the Governor was “cho[sen] . . . by ballot”¹²² by the legislature—that the drafters of the constitution considered this process to be both an election and an appointment is demonstrated by the governor’s constitutionally-mandated oath of office: “ ‘I, A B, elected governor of the State of Georgia, by the representatives thereof, do solemnly promise and swear that I will, during the term of my appointment, to the best of my skill and judgment, execute the said office faithfully and conscientiously’ according to law . . . .”¹²³ Likewise, the Maryland constitution states that “a person of wisdom, experience, and virtue, shall be chosen as Governor . . . by the joint ballot of both houses.”¹²⁴ The ballots were to be counted by “a joint committee of both Houses” and the results then reported to the rest of the Assembly so “that the appointment may be entered.”¹²⁵ However, the Constitution then specified that if after two rounds of voting, two or more candidates received the same number of votes, “then the election of the Governor shall be determined by lot.”¹²⁶

3. Articles of Confederation

Similarly, there is ample evidence that the Continental Congress under the Articles of Confederation used the two words interchangeably as well. The Articles of Confederation were adopted by the Continental Congress on November 15, 1777, as the new nation’s first constitution. It used the word “appoint” (or one of its variations) eighteen times, but for present purposes we will focus on just one. Article IX—the predecessor to the Constitution’s Appointments Clause—gave the “united states in congress assembled . . . [the] authority . . . to appoint . . . civil officers as may be necessary for managing the general affairs of the united states under their direction.”¹²⁷ But despite this verbiage, the Journals of the Continental Congress often used the word “elect” for such actions. We have reproduced just a handful of the many examples below:¹²⁸

Pursuant to the resolution of the 7th of March last, Congress proceeded to the election of a minister plenipotentiary, to succeed Mr. J. Adams at the court of the United Netherlands, and, the ballots being taken, William Livingston, esq. was elected having been previously nominated by Mr. Stewart.¹²⁹

Congress proceeded to the election of a secretary and paymaster to the navy board in the middle district, and the ballots being taken, Mr. Joseph Pennel was elected.¹³⁰

According to the order of the day, Congress proceeded to the election of a secretary for foreign affairs, but not agreeing in the choice, Resolved, That the order for electing a secretary for foreign affairs, be postponed till Monday next.¹³¹

Ordered, That the election of a secretary for foreign affairs be postponed till Friday next.¹³²

While some of these “elections” were undoubtedly uncontested—reminiscent of Senate confirmations today—others clearly featured multiple candidates, as demonstrated by a letter from James Mitchell Varnum, a delegate to the Continental Congress from Rhode Island, to General George Washington: “We have attempted to elect a Secretary at War—Genls Greene, Lincoln & Knox are in Nomination; all the Votes for one or other of those Gentlemen. We effected nothing.”¹³³

We also found evidence that in their private correspondence, many delegates (and former delegates) to the Continental Congress used the words “appoint” and “elect” as synonyms, even when talking about the same position. For example, in 1781, George Washington wrote a letter to Phillip Schuyler—the father-in-law of his young protegee Alexander Hamilton—informing Schuyler of his “prospect of . . . election” as “Minister of War” and urged him not to refuse the post “if the choice should fall on [him].”¹³⁴ But four years later, Washington wrote to Henry Knox after the latter was appointed to the same position, saying “It gave me great pleasure to hear of your appointment as Secretary at War – without a complimt [sic], I think a better choice could not have been made.”¹³⁵ Likewise, in 1779, John Adams wrote to Samuel Huntington, the President of the Continental Congress, stating: “I had Yesterday the Honour of receiving your Letter of the twentyeth of October inclosed with two Commissions, appointing me Minister Plenipotentiary, from the United States, to negotiate Peace and Commerce with Great Britain.”¹³⁶ Yet he told the Comte de Vergennes, “The Congress of the United States of America did me the honour to elect me their Minister Plenipotentiary, to negotiate a Peace with Great Britain.”¹³⁷

As in state constitutions, sometimes the terms were used interchangeably even in the same document. Consider the following letter from Samuel Huntington, President of the Continental Congress, to Thomas Jefferson, informing the latter of his appointment as a peace commissioner:

Before this comes to Hand your Excellency will have received my Letter of the 2d Instant with it’s [sic] Enclosures, by which you will be informed that a Negotiation for Peace between the Belligerent Powers may probably take Place through the Mediation of the Empress of Russia and Emperor of Germany.

In Consequence of which Congress have thought proper to add four other Plenipotentiaries to the Honorable John Adams Esquire to assist in the expected Negotiation, of which you are elected one . . . Your Appointment is ordered to be kept secret that the Enemy may not get Intelligence of your Embarkation.

With very great Respect I have the Honor to be Your Excellency’s Most obedient & most humble Servant,

Sam. Huntington President

ENCLOSURE

By the United States in Congress assembled June 14. 1781

Resolved That four persons be joined to Mr. Adams in negotiating a peace between these United States and Great Britain.

The following were elected

The honble. Benjamin Franklin

The honble John Jay

The honble. Henry Laurens

The honble. Thomas Jefferson¹³⁸

Given this clear linguistic pattern in both early state Constitutions and the Articles of Confederation, it seems odd to suggest that a rigid distinction between the two words would suddenly appear in 1787 in the U.S. Constitution.

4. Addresses to and from George Washington

We have shown that the founding generation frequently used the word “elect” to describe the process of appointment, but is the inverse true as well? Were the “elected” positions in the Constitution ever referred to as “appointments”? The answer is a resounding yes.

When George Washington was elected president in 1789, he was universally “sated with adulation.”¹³⁹ His trip from Mount Vernon to New York for his inauguration took longer than he expected because he was constantly delayed by public feasts. As one biographer described his procession through Pennsylvania, “[a]s Washington entered Philadelphia, he found himself, willy-nilly, at the head of a full-scale parade. Twenty thousand people lined the streets, their eyes fixed on him in wonder.”¹⁴⁰ Newspapers around the country reprinted a host of “addresses” from prominent citizens and government figures given that day congratulating the President on his electoral victory. These messages often spoke of Washington as having been appointed President. The “President and Supreme Executive Council of Pennsylvania” stood “to congratulate you upon the establishment of the federal constitution, and felicitate ourselves, and our country, upon your unanimous appointment to the Presidency of the United States.”¹⁴¹ The “Mayor, Recorder, Alderman and Common Council of the city of Philadelphia . . . assembled[] to present you our sincerest congratulations on your appointment to the station of President of the United States.”¹⁴² The “standing committee of the Pennsylvania State Society of the Cincinnati” congratulated Washington on his “appointment, by the people, to the office of first Magistrate of this great empire.¹⁴³ “The Synod of the Reformed Church in North-America” met for the first time since Washington’s “appointment” in order to congratulate him and “join in that great and general joy testified by all descriptions of citizens on your acceptance of the highest office in the nation.”¹⁴⁴ Not to be outdone, the leadership of the German Lutheran Church “announce[d] the joy we entertain” in Washington’s “appointment to the station of President in Chief.”¹⁴⁵ To be sure, other speeches spoke of his election or ascension to the Presidency, but references to his “appointment” were commonplace.

The newspapers also reprinted the President-elect’s response to each elegy, where we see Washington himself employing appointment language to describe his election. He thanked the leadership of Pennsylvania for their “affectionate congratulations . . . on my appointment to the Presidency of the United States.”¹⁴⁶ To the leaders of Philadelphia, he said he felt “particularly obliged . . . for your congratulatory address on my appointment to the station of President of the United States.”¹⁴⁷ In response to praise from the Governor of New Hampshire, Washington promised, that “[i]n discharging the duties of my civil appointment . . . the love of my country will be the ruling influence of my conduct.”¹⁴⁸ He also accepted “with peculiar pleasure, the address of the University of the state of Pennsylvania, upon my appointment to the first office in the Union,” but conceded that he suspected that his “fellow-citizens anticipate[d] too many and too great advantages from the appointment.”¹⁴⁹

Nor was this appointment language limited to the celebrations in Philadelphia. Two months later, Vice President John Adams gave a speech on behalf of the Senate, thanking the President for his address to Congress:

We the Senate of the United States return you our sincere thanks for your excellent speech, delivered to both houses of Congress; congratulate you on the complete organization of the federal government, and facilitate ourselves, and our fellow-citizens, on your elevation to the office of President—an office, highly important by the powers constitutionally annexed to it, and extremely honorably from the manner in which the appointment is made. The unanimous suffrage of the elective body in your favor, is peculiarly expressive of the gratitude, confidence and affection of the citizens of America.”¹⁵⁰

In light of these examples, we feel comfortable concluding that the terms appointment and election were truly interchangeable, at least to the extent that an election was one form of appointment.

* * *

To summarize, we have shown extensive evidence—including the text of the Constitution itself, early state constitutions, the Articles of Confederation and Journals of the Continental Congress, and statements to and from George Washington, John Adams, and James Madison—to demonstrate a consistent linguistic pattern of using the words “appoint” and “elect” interchangeably. In light of this, we feel confident in rejecting “the distinction [Blackman, Tillman, and others] dr[a]w between elected and appointed federal positions.”¹⁵¹

C. The Text of the Constitution Identifies the Presidency as an Office

Third, the original Constitution of 1789 repeatedly refers to the Presidency as an “Office”—a fact that is undisputed. For example, in Article I, it states “The Senate shall chuse . . . a President pro tempore, in the Absence of the Vice President, or when he shall exercise the office of President of the United States.”¹⁵² Likewise, in Article II, it states that the President “shall hold his Office during a Term of four Years” and limits eligibility “to the Office of President” to “natural born citizens” who have “attained the age of thirty-five years.”¹⁵³

In an amicus brief submitted to the Colorado Supreme Court, Tillman acknowledges this. But he claims that “although the President holds an ‘office,’ he is not an ‘Officer of the United States.’ ”¹⁵⁴

We find this distinction difficult to square with early case law. In United States v. Maurice—an important Appointments Clause case Chief Justice John Marshall heard while riding the Circuit—Chief Justice Marshall concluded that “an office is defined to be ‘a public charge or employment,’ and he who performs the duties of the office, is an officer. If employed on the part of the United States, he is an officer of the United States.”¹⁵⁵ While not binding precedent, Maurice was frequently cited by lower courts both before and after the ratification of the Fourteenth Amendment and has been cited approvingly by the U.S. Supreme Court seventeen times, including in the majority opinion of Metcalf & Eddy v. Mitchell,¹⁵⁶ and more recently in Justice Thomas’ concurring opinion in Lucia v. SEC.¹⁵⁷ Blackman and Tillman have repeatedly quoted Justice Felix Frankfurter’s quip that when language is “obviously transplanted from another legal source”—as the phrase “Officers of the United States” in Section 3 clearly is—“it brings the old soil with it.”¹⁵⁸ We see no reason why that soil should not include Chief Justice Marshall’s early definition of an officer of the United States explicitly linking offices with officers.¹⁵⁹

D. Additional Context About the Original Meaning of “Officer of the United States” in the 1789 Constitution.

Fourth, we find Blackman and Tillman’s textual analysis of the original meaning of the phrase “officers of the United States” to be incomplete because it overlooks important contextual details. The phrase appears in the original Constitution of 1789 four times: in the Appointments Clause, the Impeachment Clause, the Oath or Affirmation Clause, and the Commission Clause. Context leads us to disagree with Blackman and Tillman’s readings of three out of four of these clauses. Along the way we critique the argument recently presented that suggests the President is not an Officer of the United States because he does not take an oath that has the words “support the Constitution” drawn from Article VI of the Constitution.

1. Appointments Clause

With respect to the Appointments Clause, it is not true that the Constitution empowers the president to appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,” as has been asserted by President Trump. He only has the authority to appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.”¹⁶⁰ We think the most natural reading of this proviso is that at least some of the other positions specifically enumerated elsewhere in the Constitution are (1) officers of the United States and (2) are potentially appointed through alternative channels other than those spelled out in the Appointments Clause.

We are not alone in that view. One of the original students of the Constitution, Alexander Hamilton, paraphrased the Appointments Clause for Federalist 67 as follows:

The capitalization—which was in the original—shows that Hamilton viewed the phrase “whose appointments are not herein otherwise provided for” as a modifier of “officers,” and that the phrase is making reference to officers mentioned elsewhere in the Constitution outside of the Appointments Clause.

Justice Antonin Scalia also reached this conclusion. Writing a concurrence in NLRB v. Noel Canning, Justice Scalia explained: “Except where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’ ”¹⁶² Thus, Justice Scalia stated that there are Officers of the United States listed in the Constitution but not appointed by the President. Tillman actually wrote the Justice to ask what he meant by this statement. Justice Scalia surprised him by responding and left no doubt as to his position:

I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.¹⁶³

The same view was taken by Thomas Merrill in a 2004 article, although he did not specifically mention the President and Vice President like Justice Scalia did.¹⁶⁴

Blackman and Tillman disagree, arguing for an alternative reading of “whose appointments are not herein otherwise provided for” in their third article in their ten-part series on Office and Officers:

The phrase . . . is, admittedly, a mouthful. We think this phrase tells the reader that the appointment of “Officers of the United States” is limited to the processes announced in Article II, Section 2. This sub-clause directs the reader not to scour the remainder of the Constitution for other provisions that provide authority to fill other federal “Officers of the United States” positions—by election or appointment. In other words, the Appointments Clause’s “not herein otherwise provided for”-language is not an invitation to search for other constitutional provisions providing authority to create or fill federal offices; rather this language puts the reader on notice that no such constitutional provisions exist beyond the textual bounds of Article II, Section 2.¹⁶⁵

In their view, anyone advocating for an “alternative reading that leads readers to look for other constitutional mechanisms to fill ‘Officers of the United States’ positions is mistaken.”¹⁶⁶ They critique the statements of both Hamilton and Scalia mentioned above, calling the former unclear¹⁶⁷ and the latter wrong.¹⁶⁸

But why? Because if Hamilton, Scalia, and Merrill are correct, the other officers “whose appointments are . . . provided for” elsewhere in the Constitution almost certainly includes at least some positions who are elected, either by the people or a multimember body such as the Electoral College or legislature, as shown in Table 1 below.

Table 1.
Position	Appointment Mechanism
Members of the House of Representatives	“[C]hosen every second Year by the People of the Several states”a
Electors [of Members of the House]	“Shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”b
Speaker and other Officers of the House	Chosen by Housec
Senators	“[C]hosen by the Legislature [of each state]”d
President Pro Tempore and “other Officers” of the Senate	Chosen by the Senatee
President of the United States	Electoral Collegef
Vice President	Electoral Collegeg
Electors for President and Vice President	“[I]n such Manner as the Legislature thereof may direct”h
Sources: a U.S. Const. art. I, § 2. b Id. c Id. d U.S. Const. art. 1, § 3. e Id. f U.S. Const. art. II, § 1. g Id. h Id.

As Blackman and Tillman explain, in their view “[o]nly appointed positions can be ‘Officers of the United States,’ i.e., positions ‘whose Appointments are not herein otherwise provided.’ Therefore, it would be a mistake to scour the Constitution for positions that are filled by election.”¹⁶⁹ Chad Squitieri reached a similar conclusion for similar reasons:

Article II, Section 2, Clause 2’s reference to “Appointments . . . not herein otherwise provided for” should not be understood as a reference to [other positions such as] Members of Congress. Instead, the use of ‘herein’ in Article II, Section 2, Clause 2 is best understood as a reference to Article II, Section 2, Clause 2 itself. Specifically, when Article II, Section 2, Clause 2 states “herein,” it references the types of appointed officers mentioned within the very same clause – i.e., “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.”¹⁷⁰

For this reason Squitieri did not feel that “Members of Congress” could be officers of the United States: “Article I does not speak to the ‘appointment’ of Members of Congress—it speaks to their election.”¹⁷¹

But we have already shown that the “the distinction [these scholars draw] between elected and appointed federal positions is a linguistic anachronism that did not exist at the time of the Founding. The Articles of Confederation, Journals of the Continental Congress, state constitutions, various founding fathers including George Washington, John Adams, and James Madison—not to mention the text of the Constitution itself—all used the terms “appoint” and “elect” interchangeably, at least to the extent that an election was a valid form of appointment. Once one understands this linguistic convention, we think the meaning of “whose Appointments are not herein otherwise provided for” is clear and see no reason that it would not include the President.

But what about Chief Justice Roberts’ statement in Free Enterprise that Blackman and Tillman frequently invoke to support their conclusion that officers of the United States cannot be elected: “The people do not vote for the ‘Officers of the United States’ ”?¹⁷² We do not think that our reading of the Appointments Clause is at odds with Chief Justice Roberts’s statement. The people do not vote for the President, the Electoral College does.¹⁷³ As our discussion in Section II.B and Appendix A and B demonstrates, there was a long history of multimember bodies “appointing” chief executives (and other officers) by ballot. That is exactly the process followed by the Electoral College. If the 152-member Virginia Legislature could “appoint” a judge,¹⁷⁴ surely the Electoral College—which in 1789 had only sixty-nine members¹⁷⁵—could “appoint” a President and Vice President as well.

There is a second reason we disagree with Blackman and Tillman’s reading of the Appointments Clause: it would limit the scope of the word herein to just that specific clause. And while that may not sound totally absurd when looking at the Appointments Clause alone, it makes no sense in the two other places the word appears in the Constitution. Take for example, the Direct Tax Clause in Article I, Section 9: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.”¹⁷⁶ There are only two other references to an enumeration or census in the 1789 Constitution, neither of which is in Article I, Section 9. They are earlier, side-by-side in Article I, Section 2. The third and final use of the word herein is in the first sentence in the Constitution following the Preamble: “All legislative Powers herein granted shall be vested in a Congress of the United States.”¹⁷⁷ Such a narrow construction of “herein” there would completely destroy the Separation of Powers. Surely, Blackman and Tillman are not suggesting that there might be some legislative powers reserved for the President in Article II, so we are not sure why they insist on such a narrow construction of the inverse phrase in the Appointments Clause.

2. Impeachment Clause

We likewise are unpersuaded by Blackman and Tillman’s reading of the Impeachment Clause. They conclude that the “the president and vice president’s [express] enumeration in the Impeachment Clause in addition to ‘all civil Officers of the United States’ shows that the president and vice president are not deemed ‘officers of the United States’ themselves.”¹⁷⁸ We concede that this is a plausible reading of the clause, but we do not think it is the best reading. In English, this grammatical construction is often used to highlight the most important or most famous member of a broader group. Consider the following actual line from a 1963 speech given by Congressman Hale Boggs of Louisiana on the floor of the House of Representatives: “He leads the orchestra when his records are playing. He’s Dave Seville and Alvin and all the Chipmunks. He dances the twist like his life depended on it.”¹⁷⁹ Was Representative Boggs really suggesting that Alvin was not a chipmunk? Or consider this line from an article from USA Today: “[Vice President] Pence told Hannity Monday that all of his discussions with Zelensky, and all of the administration’s contacts, ‘were based upon proper considerations of how we support Ukraine.”¹⁸⁰ Surely, the article wasn’t suggesting that President Zelensky was not one of the Trump administration’s contacts.¹⁸¹

Nor is this construction a modern development. It appears frequently in documents from the Founding Era. Consider the closing line from a letter sent from General Charles Lee to his Commander-in-Chief: “My love to Mrs Washington and all the Ladies–adieu.”¹⁸² General Lee and General Washington may have had their differences, but Lee was clearly not suggesting that his commanding officer’s wife was not a “lady.” Likewise, one set of General Orders signed by Washington in 1777 stated, “The Commander in Chief thanks the Majors General Sullivan and Greene, and all the officers, and soldiers, engaged this day, to pursue the enemy, for their alacrity and zeal manifested in that service.”¹⁸³ Per Blackman and Tillman’s logic, we would have to conclude that Washington was suggesting that neither Sullivan—one of the heroes of the Battle of Trenton—nor Greene—the Continental Army’s Quartermaster-General—were “officers.” We think not.

The fact that Justice Joseph Story also felt that the language of the Impeachment Clause “would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than included in the description of civil officers of the United States”¹⁸⁴ does not dissuade us. Others have suggested that this express enumeration might be because the President as Commander-in-Chief, and the Vice President with his potential to serve as Acting President, are not strictly speaking civil officers of the United States, but rather both military and civil officers. We think this interpretation is compelling, but also not necessary. While we are loath to disagree with Justice Story, we do not think he was infallible.

Context matters here. And we think that context points to the best reading of the Impeachment Clause being that the President and Vice President being the two most important members of the broader category “officers of the United States”—the Alvin among the proverbial Chipmunks.

3. The Presidential Oath and the Article VI Oath

In their latest article, Blackman and Tillman reference an argument from the litigation.¹⁸⁵ That argument begins with the premise that the President takes an oath to “preserve, protect, and defend” the Constitution, found in Article II, and does not take the oath to “support” the Constitution, found in Article VI. Because Section 3 refers to officers who have “previously taken an oath . . . to support the Constitution of the United States,”¹⁸⁶ the President, the argument goes, has not taken such an oath and is not in the scope of Section 3.

This argument does not persuade us. In the first place, we are confident that one cannot take an oath to “preserve, protect, and defend” the Constitution without implicitly swearing to “support” the Constitution. By swearing to preserve, protect and defend the Constitution, one swears to support it more.

Evidence from the time of the Fourteenth Amendment confirms our view. Recall that Section 3 extended to any “person . . . who, having previously taken an oath, . . . as an executive or judicial officer of any State, to support the Constitution of the United States” and subsequently engaged in insurrection.¹⁸⁷ Thus, no one doubts that executive officers in the Southern states—for example, South Carolina—who had taken an oath prior to the rebellion, were covered by Section 3.

But when you look at the oath South Carolina officers were required by the South Carolina Constitution to take, the language mirrors the presidential oath, not the Article VI oath:

Every person who shall be chosen or appointed to any office of profit or trust; before entering on the execution thereof, shall take the following oath: “I do solemnly swear, (or affirm), that I will be faithful, and true allegiance bear to the State of South Carolina, so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the constitution of this State, and of the United States: So help me God.¹⁸⁸

A newspaper transcript confirms this is the one and only oath that Governor William Henry Gist took in 1858.¹⁸⁹ Governor Gist went on to sign South Carolina’s Ordinance of Secession.¹⁹⁰

Given no one doubts Section 3 was to apply to Governor Gist and other South Carolina rebels, it is clear that the drafters of the Fourteenth Amendment viewed an oath to “preserve, protect, and defend” the United States Constitution as inherently an oath to “support” the United States Constitution. Any other reading of Section 3 appears absurd to us.

And South Carolina is not the only state. As documented in Appendix C, it appears Florida also had an oath that mirrored the presidential oath, not the Article VI oath. Georgia’s oath for its governor likewise mirrored the presidential oath, while other officers received an oath that mirrored the language of Article VI.¹⁹¹

We also note that, in Florida, the constitution was drafted as a prerequisite to admission into the union.¹⁹² Thus, Congress viewed Florida’s antebellum Constitution, complete with its “preserve, protect and defend” language, as acceptable language to satisfy Article VI’s “support” requirement. The presidential oath, just like the oaths in Florida, Georgia, and South Carolina, qualifies as an oath under Section 3 of the Fourteenth Amendment

For the sake of completeness, we cite the Texas Constitution’s oath, again approved by Congress prior to Texas’ admission. Ignoring a section about dueling, the oath reads in full: “I, (A. B.) do solemnly swear (or affirm) that I will faithfully and impartially discharge and perform, all the duties incumbent on me as ———, according to the best of my skill and ability, agreeably to the Constitution and laws of the United States and of this State.”¹⁹³

If we were writing on a blank slate, we would doubt that an oath to “discharge and perform all the duties . . . agreeably to the Constitution” has the same vigor as an oath to either “support” or “preserve, protect, and defend” the Constitution. But this is not a blank slate: several Texans took an oath under their state Constitution to “discharge and perform all the duties . . . agreeably to the Constitution” and then forced Governor Sam Houston (who was loyal to the union) out of office as a part of joining the Confederacy.¹⁹⁴ They were obviously covered by Section 3. There is no basis for arguing the President is not covered by Section 3 because his oath is, if anything, more rigorous than the requirement to “support” in Article VI: “preserve, protect, and defend.”

But the problems with the argument that the President does not take an Article VI oath did not die with the confederacy. Today, South Carolina,¹⁹⁵ Georgia,¹⁹⁶ and Texas,¹⁹⁷ all administer a “Preserve, Protect, and Defend” oath to at least some of their officers—oaths that do not include the word support. Near as we can tell from videos of the inaugurations, these officials, like Governor Gist in 1858, only take one oath. Were this enough to avoid taking an Article VI and Section 3 oath, numerous state officials today would be exempt from Section 3 even if they someday participate in an insurrection.¹⁹⁸

Blackman and Tillman rely on parallels between the structure of the Oath or Affirmation Clause of Article VI and Section 3 to suggest that the drafters used the Oath or Affirmation Clause as a model for Section 3. We have no quarrel with that. But because the presidential oath, like oaths of some state officers, is an oath to support the constitution through the language “preserve, protect, and defend,” we make two suggestions. First, it is entirely possible that the President is mentioned as an officer in Article VI, as the President is “bound by Oath or Affirmation, to support this Constitution.”¹⁹⁹ He simply takes the more specific presidential oath to do so. Second, because we’ve already shown that oaths to “support” include oaths to “preserve, protect, and defend” and oaths to act “agreeably” we should be slow to read terms in Section 3 narrowly because they were (supposedly) used narrowly in the Oath or Affirmation Clause.

4. Commission Clause

Blackman and Tillman’s best evidence comes from the Commission Clause. It is true that Section 3 of Article II of the Constitution states that the President “shall Commission all the Officers of the United States.”²⁰⁰ If viewed alone, this might be a silver bullet. But as mentioned above, the Appointments Clause indicates that there are other Officers of the United States whose appointment mechanisms are provided for elsewhere in the Constitution.²⁰¹ But none of the officials listed in Table 1, supra, receive presidential commissions. This produces a bit of a conundrum. If Blackman and Tillman are right that officials that do not receive commissions cannot be “officers of the United States,” then the Appointments Clause contains a meaningless surplusage. By contrast, if the phrase “whose Appointments are not herein otherwise provided for”²⁰² is not surplusage, then either “all” does not mean “all” or the Commission Clause has not been liquidated appropriately and other officials—including the President and Vice President—should receive a Commission.

One way out of this Mexican standoff is to not read the Commission Clause literally. As Lawrence Solum has noted, originalism is not literalism:

[A] grave misunderstanding of contemporary formalism is the idea that formalists are seeking the literal meaning of legal texts, and nothing could be further from the truth. And that’s because once we become acquainted with the philosophy of language, we realize that verbal communication, oral communication, written communication does not rely on words and punctuation marks alone to convey meaning, it also relies on context.

We almost never say, explicitly, everything we wish to convey. Instead, we rely on a mutual recognition of reader or listener and author or speaker of the context of communication to fill in the gaps.

So a famous example from the philosophy literature, Jack and Jill are married. And most of the time, we fill in that utterance with to each other. Because usually, when you say Jack and Jill are married, you mean to each other, although there are contexts where you might say those words in order to convey that Jack and Jill are actually married to other people. [i.e. “I saw Jack and Jill coming out of the hotel room together, but Jack and Jill are married!”]

In the law, it is the same. Context does much of the work of legal communication.²⁰³

We think that the context suggests that the Commission clause should be understood to read the President “shall commission all the officers of the United States” other than himself or perhaps “shall commission all of the officers of the United States” that he appoints.²⁰⁴ While critics will argue that this is circular reasoning, we think it is superior to the alternative reading promoted by Blackman and Tillman and President Trump, which views a whole clause of the Constitution as a mere “ink blot.”²⁰⁵

* * *

In sum, we believe context matters, and the added context we’ve supplied here calls into question the conclusion that the 1789 Constitution implies that the President was not an Officer of the United States.

III. A PRIMER ON LINGUISTIC DRIFT

While our own review of the evidence from the Founding Era leads us to firmly conclude that the original public meaning of the term “officer of the United States” included the President and Vice President, we agree with Blackman and Tillman that “it is the sort of question on which dispassionate, reasonable minds can disagree after having reviewed competing streams of authority, argument, and evidence.”²⁰⁶ As we noted above, at a minimum the Appointments Clause and Commission Clause are in tension with each other, and some sort of saving construction is necessary to harmonize the two.²⁰⁷

We likewise appreciate Blackman and Tillman’s open-mindedness about the possibility that the phrase “officer of the United States” could have undergone “some linguistic drift or slippage between the 1788 ratification of the Constitution and the 1868 ratification of the Fourteenth Amendment.” As they explain in their 2021 article:

Let’s assume that the President is not an “officer[] of the United States” for purposes of the 1788 Constitution. Under that assumption, it is still possible that the President might be an “officer of the United States” for purposes of Section 3. Thus, a reader might take the limited position that the President is an “officer of the United States” for the purposes of Section 3’s jurisdictional element.

This position is conceivable. Indeed, more than a decade ago, Tillman suggested that linguistic drift may have occurred with respect to this phrase between 1788 and 1868. He wrote that “[t]he stretch of time between the two events [1788 and 1868] was more than half a century . . . . It is hardly surprising that in the post-bellum epoch new meanings might have accrued to older language. Such linguistic slippage is common.” . . . Absent contrary evidence, [however] the default presumption should be one of linguistic continuity, rather than a presumption of linguistic drift. In other words, the proponents of the view that Section 3’s jurisdictional element applies to the presidency have the burden to prove two propositions. First, proponents must show that the particular linguistic drift involving the Constitution’s “officer of the United States”-language had actually occurred. And second, proponents must show that Section 3’s “officer of the United States”-language, in fact, drifted to include the presidency. In other words, even if the meaning shifted over time, it is not self-evident that the shift would embrace the presidency. Both propositions must be proven.²⁰⁸

Although we continue to respectfully disagree with Blackman and Tillman about the original meaning of the phrase “officer of the United States” in the original Constitution—and therefore believe that “linguistic continuity” favors holding that the President is an “officer of the United States”—we will devote the remainder of our Article to marshaling evidence to demonstrate that even if they are correct about the meaning of the phrase in 1788, by 1865 the phrase had morphed to include elected officials, including the President of the United States.

But first, it is important to understand what we mean by “linguistic drift.” The phrase was coined by Edward Sapir—an American anthropologist and linguist—back in 1921 when he observed:

The drift of a language is constituted by the unconscious selection on the part of its speakers of those individual variations that are cumulative in some special direction. This direction may be inferred, in the main, from the past history of the language. In the long run any new feature of the drift becomes part and parcel of the common, accepted speech, but for a long time it may exist as a mere tendency in the speech of a few, perhaps of a despised few.²⁰⁹

It is difficult to be able to discern exactly when a word reaches its “tipping point,” the moment in which the meaning that was favored initially by just “a despised few” becomes the prevailing norm. There is an analogy here to the difficulty courts face in determining when a registered trademark has gone generic. Even though many people use the word “coke” to refer to any soda, it is still largely a reference to the principal product of the Coca-Cola Company. But the same is true after the tipping point has been reached. Even after the word “trampoline” and “escalator” reached a point of genericide, there were likely still those who used those words in their branded sense for some time.²¹⁰

Thus, we are not surprised that Blackman and Tillman have identified a few sources from around the time that the Fourteenth Amendment was ratified that use the phrase “officer of the United States” in a way that excludes the President. Whether these are vestiges of an earlier understanding of the phrase—as Blackman and Tillman suggest—or early-adopters of a linguistic innovation does not matter. As the subsequent sections will show, we think that at the time the 39th Congress convened to draft the Fourteenth Amendment, the public meaning of the phrase included the President of the United States.

IV. EVIDENCE THAT OFFICERS (INCLUDING OFFICERS OF THE UNITED STATES) MAY BE ELECTED

Blackman and Tillman assert that one of the principal reasons that the President cannot be an officer of the United States is because officers are appointed, not elected.²¹¹ They are not alone in this view. Steven Calabresi—a long-time Trump critic—has advanced similar arguments.²¹² However, as shown in Sections II.B above, this position is based on a linguistic anachronism. At the time of the Founding, the strict dichotomy between “appointments” and “elections” that we employ today did not exist. Rather, an election—either by the people or a multimember body such as a legislature or the electoral college—was viewed as one potential mode of appointment.

That officers could be elected at the time the Fourteenth Amendment was ratified was even more clear. In the following Section, we will detail evidence gleaned from the text of the Amendment itself, legislative history of the Fourteenth and Fifteenth Amendments, the ratification debates in the states, and other sources that show that people regularly talked of officers being “elected.” We note that in each of the subsequent sections, we have not limited ourselves to explicit references to “officers of the United States.” While we acknowledge that this is the best evidence, because we do not find the term “officers of the United States” to be a term of art, we believe that clear references to federal officers, officers generally, or analogous state officers are still relevant for understanding the original meaning of “OFFICERS of the United States” as used in Fourteenth Amendment, as we discussed in greater detail in Section II.A.

A. Evidence from the Text of the Fourteenth Amendment

The best evidence that at the time of the ratification of the Fourteenth Amendment the word “officers” was understood to encompass elected officials is the text of Section 3 itself:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.²¹³

Most of the scholarship about the scope of Section 3 of the Fourteenth Amendment has focused exclusively on federal officers, without considering the analogous state positions.²¹⁴ But having shown that “officers of the United States” was not a legal term of art at the time of the Founding,²¹⁵ the selection mechanism for the parallel state officials mentioned in Section 3 is equally valid evidence for whether “officers” can be elected as a general matter. This is especially true if Blackman and Tillman are right that “Section 3 was modeled after the structure and language of the Oath or Affirmation Clause.”²¹⁶ The parallel structure and language of the Oath or Affirmation Clause presents “Officers of the United States” and “Officers of the several states” as closely analogous positions: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”²¹⁷

As noted above and shown in detail in Appendix A, at the time the original Constitution was ratified, few states had a Governor elected directly by the people. The rest had their governors selected by the state’s General Assembly, usually through a ballot process that resembled (and perhaps inspired) the Electoral College. However, by the time the Fourteenth Amendment was ratified, these facts had changed considerably. By 1865 the vast majority of states had governors elected directly by the people.

A similar evolution took place with respect to judicial officers. As shown in Appendix B, at the time of the Founding, judicial elections—at least as we conceptualize them today—were unheard of. Instead, judges were typically selected by the General Assembly, appointed by Governors, or were themselves legislators wearing a separate hat. But as Harvard Law Professor Jed Handelsman Shugerman has noted, beginning in the 1840s, America experienced something of a Constitution-writing renaissance, with many states adopting amendments or rewriting their constitutions entirely, introducing judicial elections in the process as part of a broader set of anti-legislative reforms:

The constitutional revolutionaries of the time believed elected judges were more likely to enforce limits against legislative excesses. From 1846 to 1851, twelve states adopted judicial elections for their entire court systems, and five states adopted partially elective systems. By 1860, out of thirty-one states in the Union, eighteen states elected all of their judges, and five more elected some of their judges. There were also proposals to subject federal judges to election, but the federal constitution was far more difficult to change.²¹⁸

In fact, the language of Section 2 of the Fourteenth Amendment acknowledges this evolution explicitly. Section 2 abolished the Three-Fifths Compromise of the original Constitution, replacing it with a fairer calculation for representation: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”²¹⁹ In an effort to prevent Southern states from disenfranchising African Americans, the Amendment then ties future representation to the number of eligible voters.

But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.²²⁰

“The right to vote at any election for the choice of . . . the Executive and Judicial officers of a State”—it is difficult to be more explicit that officers can be elected than that.

Thus, even if Blackman and Tillman were right about officers not being elected at the time of the Founding, we think these seismic changes of state constitutional law between 1789 and the outbreak of the Civil War would have necessitated an evolution of the meaning of “officers” generally to include elected officials.

B. Evidence from the Legislative History of the Fourteenth Amendment

Another rich source of evidence that the officers mentioned in the Fourteenth Amendment included elected officials is the legislative history produced by Congress while debating the merits of the Amendment. In citing this evidence, we are well aware—and agree with—much of the criticism about over-reliance on legislative history.²²¹ But in this and subsequent Sections, we are not invoking legislative history in an attempt to divine Congressional intent. Instead, we are looking for clues about the way Congress used certain words and phrases. As Judge Frank Easterbook, one of the great critics of the use and abuse of legislative history once stated, “Clarity depends on context, which legislative history may illuminate. The process is objective; the search is not for the contents of the authors’ heads but for the rules of language they used.”²²²

In total, we found statements from at least ten Senators and six Congressmen that suggest that according to “the rules of language they used” the word “officer” included elected officials. One of these statements included explicit references to “Officers of the United States.” Senator Thomas A. Hendricks of Indiana proposed a change to the language of Section 3 that would have limited those barred from holding office in the future to those who entered the rebellion while they were still officers of the United States or one of the states. The reason was because he felt that an individual’s oath of office expired at the end of each term:

Everybody, by virtue of his allegiance, is bound to obey the Constitution of the United States, to stand by the Union. But this oath of itself is an oath of office binding upon him as an officer, else why is it that if a Senator taking this oath, serves six years and is reelected, he is sworn again? For the simple reason that he is entering upon another term of service, and for that term of service he must take this official oath to obey the Constitution of the United States. I presume this oath means as if it read, “Senators and Representatives and all other officers in the United States and in the States shall be bound by an oath or affirmation to support the Constitution of the United States in their offices.” I know of no other purpose that there can be to require a special oath from an officer.²²³

By sweeping Senators and Representatives into the category of “officers of the United States,” he made clear that he believed the category to be broad enough to include positions elected by multimember bodies (such as Senators) or directly by the people (as with Congressmen).²²⁴

Other statements made clear that the speakers thought that federal officers could be elected, even if they did not use the full phrase “officers of the United States.” Since we have debunked the notion that “officers of the United States” was a legal term of art at the time of the Founding, these synonyms are equally valuable clues as to the intended meaning of the full phrase. Senator Luke Poland of Vermont stated that he felt the Amendment as written was more merciful than the rebels deserved because it preserved their right to vote: “we leave the great mass [of Southerners] utterly untouched, and the leaders with their lives, their property, the full enjoyment of all their civil rights and privileges, with the right of voting for all officers, both State and national, with the single restriction they shall not hold office.”²²⁵

A number of these statements came during the debate in the House over an ultimately rejected section which would have stripped former Confederates of the right to vote until 1870.²²⁶ For example, future president James A. Garfield—then a Congressman from Ohio—stated:

If the proposition had been that those who had been in rebellion should be ineligible to any office under the Government of the United States, and should be ineligible to appointment as electors of the President and Vice President of the United States, or if all who had voluntarily borne arms against the United States had been declared forever incapable of voting for a United States officer, it would, in my judgment, be far more defensible.²²⁷

Congressman Robert C. Schenck, also from Ohio, used similar language while supporting the ultimately rejected proposal, claiming that it

does not disfranchise, but refuses to enfranchise. If you say that the people of these States, because of their having been engaged in the rebellion, shall not vote for Federal officers, there is nothing taken from them, because they have already divested themselves of that privilege, voluntarily abandoned, given it up, flung it away by breaking loose from the rest of the Union, as far as by their act, disposition, and power they could do so.²²⁸

Likewise, Congressman Henry J. Raymond of New York, stated that the rejected section “proposes to exclude the great body of the people of those States from the exercise of the right of suffrage in regard to Federal officers.”²²⁹ Representative Rufus P. Spalding of Ohio supported this proposal to “disqualif[y] active and known rebels from participating in the election of Federal officers.”²³⁰

There were also a number of other statements that discussed electing officers in general.²³¹ For instance, while arguing that Section 3 would not impose a punishment on former Confederates, but merely withhold a privilege, Senator Edgar Cowan of Pennsylvania stated that “[a]n elector is one who is chosen by the people to perform that function, just the same as an officer is one chosen by the people to exercise the franchises of an office.”²³² Later in the debates he returned to this distinction, asking “is not the elector just as much the choice of the community as an officer is the choice of it, except that the electors are chosen by a class and described by a general designation, whereas the officer is chosen by name to perform certain functions?”²³³

The widespread understanding that officers could be elected was repeatedly highlighted in the back and forth between Senator John B. Henderson of Missouri and Senator William Pitt Fessenden of Maine, as the pair debated an amendment to Section 2 proposed by Henderson. At the time, the language of Section 2 stated that “whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation.”²³⁴ Henderson wanted to make the section more explicit, changing the language to read “[b]ut whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, &c.”²³⁵ He stated that “the inference [of this amendment] will be that it applies only to those general elections at which political officers are elected, members of the Legislature, Governor, judges, &c.”²³⁶ While Fressenden disputed whether the amendment was really necessary, he clearly agreed that officers could be elected, stating that he believed that the original language was “intended to cover the election of officers generally.”²³⁷ Some time later, Senator George Williams of Oregon proposed his own amendment to Section 2 along the same lines, adding words which were ultimately ratified—“But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or members of the Legislature thereof”²³⁸—in order to (in his words) “specify[] particularly the officers for which these people must be allowed to vote in order to be counted.”²³⁹

Finally, we found a number of statements that support the proposition that state officers could be elected. While this proposition is hardly controversial—as shown in the last Section, the language of the Fourteenth Amendment itself acknowledges it as fact—these statements are still relevant evidence for showing that officers as a class—be they federal or state—can be elected. Senator Henderson, after acknowledging that any effort to strip ex-Confederates of the right to vote would be unworkable, stated that under the Amendment, “Lee, Johnston, Wade Hampton, Moseby, and even Jeff Davis, are left as qualified electors, competent to vote for State officers and members of Congress.”²⁴⁰ Congressman John A. Bingham—the father of the Fourteenth Amendment—made a similar statement in the House,

This amendment does not disqualify any rebel or aider of the rebellion from voting at all the State elections for all State officers, nor does it disqualify them from being appointed presidential electors. It amounts, therefore, to this: though it be adopted, and made part of the Constitution, yet all persons “who voluntarily adhered to the late insurrection, giving it aid and comfort,” may vote at all the State elections for State officers, and, being largely in the majority in every insurrectionary State, may elect the State Legislature, which may appoint electors for President and Vice President of the United States, and from aught in the amendment may appoint rebels as such electors.²⁴¹

Another example came during a debate over whether Confederate officials who had taken advantage of President Johnson’s general pardon should be barred from holding future office under Section 3. Senator James Doolittle of Wisconsin believed that they should not. To demonstrate that the Amendment would still punish those most culpable, he noted that a number of “prominent rebel officials” remained unpardoned—535 of them—including thirty-seven “cabinet officers and governors of States.”²⁴² Senator Hendricks likewise spoke of “[j]udicial officers” being “elected.”²⁴³ Senator Henderson spoke of the people “elect[ing] . . . members of the Legislature, Governor, judges, &c”²⁴⁴ as “political officers.”²⁴⁵ And Senator Timothy O. Howe of Wisconsin quoted and summarized a letter from W.L. Sharkey to Secretary of State William H. Seward “in which he tells him that the Governor and all the officers elected by the people had been duly installed, qualified, and taken possession of their offices.”²⁴⁶ Senator Henderson, Senator Fessenden, and Senator Daniel Clark of New Hampshire even briefly discussed the election of “municipal officers” and “township officers” such as mayors and recorders.²⁴⁷

Taken together, these statements reveal a consistent speech pattern among the Framers of the Fourteenth Amendment of referring to elected officials at all levels of government—federal, state, and local— as “officers.” It is also worth noting that while there may be examples suggesting the contrary—examples that could be revealed by a future corpus linguistics analysis of the Congressional Globe—we did not find any.

C. Evidence from the Ratification Debates of the Fourteenth Amendment in the States

Next, we turn to the ratification debates of the Fourteenth Amendment in the States. While not as well documented as the debates in Congress, they can still be a valuable source of evidence about how particular words or phrases were understood by the broader public at the time. Research into these debates has been greatly aided by a collection published by Kurt Lash in 2021.²⁴⁸ It includes transcripts of state legislative history as well as contemporary newspaper articles reporting on these debates. Here, too, we see a consistent pattern—mined from the debates in Alabama, Louisiana, and North Carolina—of the word “officer” being broad enough to include elected officers.

Alabama: On the day Alabama ratified the Fourteenth Amendment (reversing its earlier rejection), the Alabama Senate Journal recorded the following two statements. First, “The Senate met at 12 m. and elected officers. The 14th amendment was ratified and the Senate adjourned until to-morrow.”²⁴⁹ And second, “In the House, officers were elected and the 14th amendment ratified.”²⁵⁰ Although these are legislative officers—as opposed to general state officers—the statements still show that officers can be elected as a general principle, not to mention elected by a multimember body.

Louisiana: An article reporting on the ratification of the Fourteenth Amendment by Louisiana, which was published by the Boston Daily News, contained the following order from General Buchanan, the Commanding General of Union forces in the state: “All civil officers acting under military appointment will transfer their offices and everything pertaining thereto to their successors, who have been duly elected, and who are qualified under the laws of the State.”²⁵¹

North Carolina: A Joint Committee Report Rejecting the Fourteenth Amendment contained the following statement:

A leading feature of this second section is, that, virtually, it makes the basis of representation to consist of the voters only, which is manifestly inconsistent with the theory of our political system. The voters are merely the appointing power, whose function is to select the representative; but his true constituency is the whole population. It is a great fallacy to maintain that an officer represents only those who vote for him.”²⁵²

Not only does this show that officers are elected, but also demonstrates that Founding Era understanding of election being a type of appointment continued into the 1860s.

The Lash collection also contains a proposed “compromise” amendment—reported in the New York Times—which was proposed by Southern Governors to President Johnson after a number of Southern legislatures initially refused to ratify the Fourteenth Amendment. The language of the Compromise Amendment’s Section 4—which relates to apportionment of representatives—is particularly relevant for our purposes:

Sec. 4. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when any State shall, on account of race or color, or previous condition of servitude, deny the exercise of the elective franchise at any election for the choice of Electors for President and Vice President of the United States, Representatives in Congress, Members of the Legislature and other officers elected by the people, to any of the male inhabitants of such State, being 21 years of age and citizens of the United States, then the entire class of persons so excluded from the exercise of the elective franchise shall not be counted in the basis of representation.”²⁵³

This statement not only shows that officers can be elected, but the phrase “officers elected by the people” also suggests that officers can be elected in other ways, such as by multimember bodies like legislatures or the Electoral College.

D. Evidence from the Legislative History of the Fifteenth Amendment

We also looked at the legislative history of the Fifteenth Amendment, which was passed by the 40th Congress. Although one Congress removed from the cohort that passed the Fourteenth Amendment, it is still a valuable source of evidence of the linguistic conventions used in the Fourteenth Amendment, especially since so many of the members of the 40th Congress were also members of the 39th Congress. As with the legislative history and ratification debates of the Fourteenth Amendment, we found a consistent linguistic pattern of referring to elected officials—including federal ones—as both “officers” and “officers of the United States.”

Senator Frederick Theodore Frelinghuysen of New Jersey:

The consequences, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of the United States would have been that in some of the States there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in national elections.²⁵⁴

Representative Samuel Shellaburger of Ohio:

I understood the first proposition of the gentleman’s argument to be substantially this: that if the Constitution had reposed in the States the unlimited power to regulate the matter of voting for Federal officers it would involve this mischief, to wit: that thereby the power would be placed in the States to withhold from the Government the election of Federal officers at all, and that that mischief might be fatal to the Government itself. Am I right in that statement?²⁵⁵

Representative Charles A. Eldridge of Wisconsin:

If the power exists in the Federal Government to pass this bill, whether under any one or all the provisions referred to, then I admit that Congress has the right to control the whole question of suffrage and the qualification of electors for all officers, State and national. There can be no reason for its entering the State and determining the qualification of those who are to elect the officers named in the bill that will not apply to every officer of the State so far as the question of power is concerned. The electors of President and Vice President are not named in section four of the first article. The power claimed, therefore, under the word “manner” in this section can no more apply to them than to the Governor of the State or any other State officer. So that if it covers electors it may as well cover, and does as necessarily cover, all that is contemplated by the amendment proposed by the joint resolution.²⁵⁶

Representative James Burnie Beck of Kentucky:

It is contended by the gentleman from Massachusetts that this is only a political punishment to be imposed on such States as refuse to obey the mandates of the first section till such time as Congress can enforce its provisions, which he asserts provides that the right to vote for certain officers cannot be denied or abridged.²⁵⁷

E. Evidence from Popular Sources that Officers Are Elected

Finally, we looked at popular sources such as newspapers and found numerous references to “officers of the United States,” “federal officers,” “national officers,” and “officers of the general government” being elected. Searching the Newspapers.com database for the years 1850–1870, we found examples from almost every state and several territories. While our search was by no means exhaustive—we hope to perform a more comprehensive corpus linguistic analysis of the subject at some point in the future—it demonstrates the ubiquitousness of referring to “officers of the United States” in a way that includes elected officials.

Alabama:

The South, for the humble privilege of being allowed to have a hand in the election of federal officers, has permitted her rights to be assailed and our leading politicians have compromised their principles for the sake of currying favor with their Northern allies.²⁵⁸

Arkansas:

To every marshal or duly elected officer of the United States.—You, and each of you are hereby commanded to bring up the body of J.W. Brown, said to be held in unlawful confinement on board the steamer Commodore.²⁵⁹

Connecticut:

Mr. Blaine asked Mr. Stevens if the third section would not be considered objectionable, as it excluded from the right to vote for national officers all who have voluntarily aided rebellion, and asked if the amnesty would exempt such.²⁶⁰

Delaware:

A universal suffrage bill has been prepared for presentation at the next session of Congress. It does not extend the suffrage beyond the election of Federal officers.²⁶¹

Georgia:

However desirable it may be, in the minds of many, to abrogate the unjust discrimination on account of color which prevails in the qualification for voters in most of the States, and to establish a uniform rule in that respect, particularly in the election of Federal officers, the loyal people of the land have recently made too great a struggle for the maintenance of the Constitution, to seek to accomplish the object by Congressional enactment, at a sacrifice of the obvious meaning and spirit of that instrument.²⁶²

Idaho:

It will be remembered a bill was some time ago prepared and introduced in Congress, in anticipation of this so-called ratification of the establishment of a despotism upon the ruins of the Republic, taking the management and control of elections of all Federal officers entirely away from the States, and subjecting the whole to the dictation and control of Congress.²⁶³

Indiana:

While conservative and law-abiding citizens, who are deprived of the privilege of voting, may obey the law, others, with no characters to sustain and no reputation to lose—lawless in person and purse—such as are found in all our large cities, will vote for national officers in defiance of the law.²⁶⁴

Iowa:

They know that the present Rebellion is the unprovoked work of bad, ambitious Demagogues, who have made a legal election of National officers an assumed justification for the worst of crimes.²⁶⁵

Kansas:

It was then resolved that all who participated in the rebellion should be disfranchised from voting for Federal officers, and that the rebel debt should be repudiated.²⁶⁶

Kentucky:

That a faithful execution of the fugitive slave law—a non-interference with slavery where it exists in the States, by citizens of the non-slaveholding States—a non-interference with the slave owner in the Territories while Territories, and the condemnation and rejection for office of politicians of all parties who shall hereafter attempt to agitate the subject of slavery, or make it a question in elections for officers of the United States, would restore peace and harmony to the States and people thereof.²⁶⁷

Louisiana:

A radical member of Congress, now here, has prepared a bill, which will be presented at the opening of Congress, providing for national suffrage. It differs very materially from similar bills presented by Mr. Sumner last session, and confines the suffrage to elections for national officers.²⁶⁸

Maine:

In the coming campaign for the election of the officers of the national government, let the watchwords be the rights of the people, the rights of humanity.²⁶⁹

Massachusetts:

If they are not citizens of the United States, then they have no right to vote for officers of the United States.²⁷⁰

Maryland:

[T]he right of the loyal States to decide for themselves the suffrage question does not in our opinion, give them power to prevent citizens of the United States from voting for officers of the United States.²⁷¹

Minnesota:

He said that one singular thing in the report was comparing Minnesota to Wisconsin in regard to the election of her federal officers. Wisconsin elects her officers and pays them out of the State Treasury; and it would be inconsistent for Minnesota to elect her federal officers and then have them paid out of the U.S. Treasury.²⁷²

Missouri:

Mr. Raymond, of New York, while not willing to accept it as a condition precedent to Southern representation was willing that all of the amendment, but the third section, depriving those who voluntarily aided in the rebellion, from voting for Federal officers.²⁷³

Nevada:

We do not believe that it is one of the rights of any State to deny any citizen of the United States a voice in the election of officers of the general government.²⁷⁴

New Jersey:

This act gives United States officers power to make arrests at the polls, and to inspect all records of elections for Federal officers.²⁷⁵

New York:

Charles C. Burleigh supported the resolutions against allegiance to the Constitution, and opposed voting for officers of the United States.²⁷⁶

North Carolina:

Mr. Lincoln distinctly contends for the right of any State to confer upon negroes citizenship, and the right to vote for Federal officers.²⁷⁷

Ohio:

[S]upposing that no one should vote for a United States’ officer, only for State officers, the General Government would cease to be, in four years.²⁷⁸

Oregon:

There was an informal meeting of a good many Republican Senators and Representatives to-day, to see if some action could not be had in the Senate to strike out the third section of the Constitutional Amendment, which disfranchises rebels from voting for Federal officers.²⁷⁹

Pennsylvania:

The unprecedented position of the legally elected officers of the United States should have at least gained for them the generosity of their former political foes.²⁸⁰

South Carolina:

To make out the inconsistency, he leaves out all the State elections ‘so often recurring,’ and Mr. Calhoun’s influence, and represents me as having attributed our unanimity solely to the election of Federal officers.²⁸¹

Tennessee:

Hence all the arrangements for the election of Federal officers by the people were necessarily based upon the rule that the persons entitled by law of the States to vote for members of the popular branch of the State Legislature should be the persons who would have the right to vote for representatives to Congress and for the presidential electors.²⁸²

Texas:

The evils that follow from the concentration of the attention of the people to national offices are extravagance in expenditures, an intense excitement pending the election of national officers, and a neglect of the people and their representatives to look to their own home as calculated to benefit them in all the relations of life, and to make them a happy and prosperous community.²⁸³

Vermont:

[T]he people of the States of California will sustain and uphold the constitutionally elected officers of the United States government, in all constitutional efforts to preserve the integrity of the Union.²⁸⁴

Virginia:

Mr. Boutwell reported a bill declaring who may vote for Federal officers, which he gave notice he would call up for action in ten days.²⁸⁵

Wisconsin:

He has not only sought no office, but has been so scrupulous that, feeling it might be inconsistent and dishonorable to take any part in a government which he considered in league with injustice and wrong, he has for years abstained from voting for federal officers.²⁸⁶

When viewed collectively, we think it is beyond dispute that at the time of the ratification of the Fourteenth Amendment, the ordinary meaning of the word “officer” in general and “officers of the United States” in particular included elected officials.

V. EVIDENCE THAT THE PRESIDENT IS AN OFFICER OF THE UNITED STATES FOR PURPOSES OF THE FOURTEENTH AMENDMENT

Having shown the text, drafters of the Fourteenth Amendment, ratifiers of the Fourteenth Amendment, and others understood the word officers—including “officers of the United States”—to encompass elected officials, we now turn to the precise question of whether the President of the United States is an officer of the United States. In some respects, this is overkill. Having shown that the full phrase “officer of the United States” was not a legal term of art, President Trump’s concession that the President is an “officer” is lethal to his case. However, in the following Sections we will amass additional evidence to show that at the time of the drafting of the Fourteenth Amendment, it was a common linguistic convention to refer to the President as an officer of the United States.

A. Evidence from the Legislative History of the Fourteenth Amendment

As noted above, we looked to the legislative history of the Fourteenth Amendment not to determine the intended meaning of the Fourteenth Amendment, but to look for evidence of how the legislators used the phrase “officer of the United States” and its synonyms in the course of their duties.²⁸⁷ Unfortunately, we did not find any explicit references to the President (or Vice President) as an “officer of the United States.” We suspect that Blackman and Tillman would argue that this proves their point. As Tillman explained in his amicus brief to the Colorado Supreme Court, “These references to the President may have been made in a more colloquial sense, but they did not state the President was an ‘Officer of the United States.’ ”²⁸⁸ But that is exactly our point. The phrase “Officer of the United States” is not a term of art, and therefore its original public meaning is the “colloquial sense.”

As noted in Section II.A, even during the first few years of the Republic, when Congress was busy creating positions within the new government, Congress almost never used the full phrase “officer of the United States.” The same is true of the debates over the Fourteenth Amendment. We found only twelve explicit uses of the phrase “officer of the United States” and one use of “officers of the United States.” Of these, ten were quotations of the exact language of the proposed amendment and two were close paraphrases. But they did refer to the President as an “officer of the government,” “executive officer,” and “officer.” This is exactly what one would expect if the full phrase was not a term of art, and as such is still probative of the proposition that the Framers of the Fourteenth Amendment viewed the President as an officer of the United States.

For example, in discussing who had the power to declare the insurrection over, Senator Garrett Davis of Kentucky referred to the President as an “officer of the Government”:

[T]here was a necessity for some power, some officer of the Government to declare when the insurrection was suppressed. There is such a power and such an officer to execute it; and who is he? The Constitution had been attacked by an armed resistance to the execution of the laws, and an attempt to set up an independent power and government within the United States. It is made the duty of the President, by the Constitution, to the best of his ability to preserve, protect, and defend that Constitution, and to take care that the laws be faithfully executed throughout the United States.²⁸⁹

Senator James Doolittle of Wisconsin used the same phrase to discuss the relationship between the President and other officers within the Executive Department. He had been accused by Senator Trumbull of Illinois of suggesting that inferior officers were “officers of the President.” Senator Doolittle disagreed:

I stated that executive officers were responsible to the President as the chief executive officer of the Government. My friend from Illinois seems to think that because I made this statement that they are responsible to the President, because he under the Constitution has placed upon him the responsibility of seeing that the laws are faithfully executed, I intended to say that these men were subject merely to the will of the Executive and not to the laws of the land. Not at all, sir.²⁹⁰

In addition, Senator Timothy Howe of Wisconsin once referred to the President as an “executive officer” and Senator Davis twice referred to him as the “chief executive officer.”

Senator Timothy Howe of Wisconsin:

It was argued, I recollect, by the Senator from Pennsylvania [Mr. Cowan] some time since that the President had a peculiar gift, or a peculiar right, for doing these things because he was an executive officer.²⁹¹

Senator Garrett Davis of Kentucky:

We now see, though, that this majority, lately the friends of the President, are engaged in a war upon him, and that war manifests itself in various aspects and modes. They denounce him; they denounce his measures, his policy. He is a coordinate branch of the Government; or at least the executive department is, and he is the chief executive officer.²⁹²

Senator Garrett Davis of Kentucky:

The powers of a Government are unavoidably augmented and energized during war, and then there is generally an accord between the legislative and executive branches, produced by the active presence of a common danger and a mutual effort to avert it, that makes the chief executive officer the instrument to give effect to their common policy and purposes.²⁹³

We found this language particularly probative given the connection identified by Blackman and Tillman between the Oaths and Affirmation Clause and Section 3.²⁹⁴

We also found a fourth reference by Senator Davis to the President as simply an “officer.” He referenced a debate back at the start of the Civil War about whether to seat the Senators elected from the loyal portions of Virginia—i.e., what would become West Virginia—after the rest of the state had voted to secede. The question was whether “notwithstanding the State of Virginia had passed an ordinance of secession and was in the condition of armed and active insurrection against the United States, still she was one of the United States and in the Union.” Senator Davis said that the Senate decided that the question was a “political question” and “[t]hat the President is the proper officer and power to decide” it.²⁹⁵

B. Evidence from the Impeachment Trial of Andrew Johnson

We were unsatisfied with the relatively few references we found in the legislative history of the Fourteenth Amendment, especially since four of the six references we found came from a single Senator. After all, individuals can be linguistic rebels, part of the “despised few” Sapir discussed.²⁹⁶ We therefore looked at the transcript of the impeachment trial of President Andrew Johnson for more examples of legislative speech.²⁹⁷

Following the assassination of Abraham Lincoln, his Vice President, Andrew Johnson, became President. Johnson, a loyal southern Democrat, had replaced a Republican, Hannibal Hamlin, as Lincoln’s running mate in 1864. Given the Republican majorities in the House and Senate, conflict with Johnson soon occurred. Relevant to our discussion, Congress passed a law over President Johnson’s veto that restricted his ability to fire officers appointed with the advice and consent of the Senate.²⁹⁸ When Johnson ignored that law and removed Edwin Stanton as Secretary of War, he was impeached.

We selected the transcript of the trial as a document to examine because it involves frequent use of the word “officer” by the Congress after the Congress that passed the Fourteenth Amendment. We view this transcript as a resource to answer multiple questions about the term “officer of the United States.”

A search for the term “officer of the United States” reveals a limited number of hits during the debates over the Fourteenth Amendment, but several actually use that term to refer to the President. For example, during a lengthy speech explaining his views on the impeachment, Senator George Edmunds of Vermont said that “[t]o this tribunal, sworn to impartiality and conscientious adherence to the Constitution and the laws, they [the founding fathers] committed the high powers indispensable to such a frame of government, of sitting in judgment upon the crimes and misdemeanors of the President, as well as all other officers of the United States.”²⁹⁹

A statement of Senator Joseph Fowler of Tennessee is likewise evidence that the term “officer of the United States” includes the President. In explaining the Impeachment Clause of the Constitution, he stated:

The framers of the Constitution . . . defined in their great charter the offences for which a President or other officer could be impeached and divested of his office. The Constitution says that “the President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.”³⁰⁰

Here, the parallel structure of these sentences plainly indicates (1) that Senator Fowler viewed the President as an officer under the Impeachment Clause, and (2) that he did not see a distinction between “officer” and “civil officer of the United States.”³⁰¹

In addition, the trial transcript twice quotes an article by John C. Hamilton, the son of Alexander Hamilton, which specifically identifies the Vice President as an officer of the United States, while discussing how the Constitutional Convention decided to have the Senate try impeachments.³⁰² In this discussion, Hamilton recounts that on

the 8th of September, Roger Sherman raised the objection that the Supreme Court was “improper to try the President because the judges would be appointed by him.” This objection prevailed, and the trial was [e]ntrusted to the Senate by the vote of all the States with one exception; and thus, on the same day, immediately after, the subjects of impeachment were extended from treason and bribery to “other high crimes and misdemeanors,” and thus [e]ntrusted and thus enlarged, it was on the same day made to embrace “the Vice-President and other civil officers of the United States.”³⁰³

Obviously, the inclusion of the word “other” in the phrase “the Vice-President and other civil officers of the United States” implies that the Vice President is a civil officer of the United States. Thus, the trial reveals that John Hamilton viewed the Vice President as a civil officer of the United States. Since all of Blackman and Tillman’s arguments apply with equal force to the Vice President as to the President, we think that evidence that the Vice President is an officer of the United States is equally probative for the President, and vice versa. (We also note that if “officer of the United States” was understood at the time of the founding or subsequently to be a term of art that excluded certain officials including the President and Vice-President, one would imagine John Hamilton, as a son of one of the writers of the Federalist Papers, would have understood that.)³⁰⁴

While these are the only direct references to the President as an officer of the United States, several Senators referred to the President as an officer. We reproduce them below:

Senator Garrett Davis of Kentucky:

The Constitution has no provision declaring a violation of any of its provisions to be a crime; that is a function of the legislative power, and it has passed no law to make violations of the Constitution, or of official oaths, by the President or any other officers, crimes.³⁰⁵

Senator Reverdy Johnson of Maryland:

[B]ut the Constitution for wise purposes says that in the contingency of an impeachment of a President of the United States or any other officer falling within the clause authorizing an impeachment they are to become, as I understand, a court. So have all our predecessors ruled in every case; and who were they?³⁰⁶

Senator Charles Beckalew of Pennsylvania:

The Constitution provides that when there is no President or Vice-President to discharge the duties of the presidential office, such duties shall be discharged by some other officer to be designated by law, until a new President shall be chosen.³⁰⁷

Senator John Sherman of Ohio:

The power of removal is expressly conferred by the Constitution only in cases of impeachment, and then upon the Senate, and not upon the President. The electors may elect a President and Vice-President, but the Senate only can remove them. The President and the Senate can appoint judges, but the Senate only can remove them. These are the constitutional officers, and their tenure and mode of removal are fixed by the Constitution.³⁰⁸

Senator Thomas Tipton of Nebraska:

It appears that while General Emory was acting under a commission requiring him to observe and follow such orders and directions as he should receive from the President and other officers set over him by law, an order reached him embodying a section of law, which law had been previously approved by the President himself, but, as it provided that orders from the President and Secretary of War should be issued through the General of the army, or next in rank, and the President being engaged to remove the Secretary of War and thwart the action of the Senate, in a discussion with General Emory, as to his duty as an officer, said, “This (meaning the order) is not in conformity with the Constitution of the United States, which makes me Commander-in-chief, or with the terms of your commission.”³⁰⁹

We also examined the House proceedings on the impeachment of President Johnson, as well as material from surrounding weeks.³¹⁰ Here there are also references to the President as an Officer of the United States. Representative Aaron F. Stevens, for example, stated “the executive officers of the United States, from the President down, are creatures of the people, and not creatures of the President.”³¹¹ Representative John Bingham³¹² from the House floor in the final days before President Johnson was impeached similarly referred to the President:

Did the gentleman from New York [Mr. Brooks] not know . . . that it is written in the Constitution of this country that the President, the Vice President, and every other civil officer of the United States shall be removed from office on impeachment for, and conviction of high crimes and misdemeanors.³¹³

Other representatives referred to the President as an executive officer. Referencing President Johnson, Representative Shelby M. Cullom said, “We are to-day [sic] considering the report of the committee appointed by the House to prepare and report articles of impeachment against that high officer of the Government.”³¹⁴ Representative Robert T. Van Horn referred to the President as “the executive officer of the nation.”³¹⁵ Representative William H. Kelsey stated, “In England, the chief executive officer of the Government cannot be impeached. Here he can be.”³¹⁶ Representative Ebon C. Ingersoll stated, “The President is merely an executive officer and cannot rightfully exercise any of the functions belonging to a judicial officer.”³¹⁷

We also found references to the President as an officer. Representative Rufus P. Spalding called the President “this high officer of our Government.”³¹⁸ In a discussion on appropriations, Representative William E. Nilback stated, “The President is the commander in chief of the Army and Navy, and as such is as much entitled as any other officer of the Army or Navy to have detailed for his assistance any subordinate officer.”³¹⁹

Taken together, we believe that the legislative history of the Fourteenth Amendment and the Impeachment debates and Trial of President Andrew Johnson demonstrates a consistent linguistic practice of identifying the President as an officer generally, and “Officer of the United States,” specifically.

C. Evidence from President Andrew Johnson’s Appointment Proclamations

We also found that Andrew Johnson—the President at the time the Fourteenth Amendment was ratified—referred to himself as an “officer of the United States” in numerous official proclamations appointing individuals to important posts in the former Confederate states. For example, consider this May 29, 1865, Proclamation appointing William W. Holden Provisional Governor of North Carolina:

Whereas, The President of the United States is by the Constitution made Commander-in-Chief of the army and navy as well as chief Executive officer of the United States and is bound by solemn oath, faithfully to execute the office of President of the United States, and to take care that the laws be faithfully executed . . . . I, Andrew Johnson, President of the United States and commander-in-chief of the army and navy of the United States, do hereby appoint Wm. W. Holden provisional governor of the State of North Carolina.³²⁰

We found similar proclamations by Johnson appointing governors over Alabama,³²¹ Georgia,³²² Mississippi,³²³ Texas,³²⁴ and South Carolina.³²⁵ In each of them, he referred to himself as an “officer of the United States.” While these proclamations were largely formulaic, using almost word-for-word language, there were some interesting variations. In the Alabama, Mississippi, and North Carolina proclamations, he refers to himself as the “chief executive officer of the United States,” but in the ones for Georgia, Texas, and South Carolina he adds a word, identifying himself as the “chief civil executive officer.” This tiny difference persuades us that the terms that “chief,” “civil,” and “executive” were all just adjectives modifying “officers of the United States”—lest anyone try to argue that that a “chief executive officer of the United States” or “executive officer of the United States” is somehow different from an “officer of the United States” for purposes of Section 3.

D. Evidence from the Amnesty Proclamations of Presidents Lincoln and Johnson

A fourth strain of evidence that, at the time the Fourteenth Amendment was ratified, the phrase “officers of the United States” included the President is the amnesty proclamations issued by Presidents Abraham Lincoln and Andrew Johnson pardoning confederates. On December 8, 1863, President Lincoln issued “a full pardon” which “restor[ed] [] all rights of property” to “all persons who have, directly or by implication, participated in the existing rebellion,” provided that they willingly took an oath to “support, protect and defend the Constitution of the United States, and the union of States thereunder” and respect all laws and proclamations issued by Congress and the President respecting slavery during the Civil War.³²⁶ Then in May 1865, President Andrew Johnson issued his own amnesty proclamation “grant[ing] to all persons who have directly or indirectly participated in the existing rebellion . . . amnesty and pardon, with restoration of all rights of property, except as to slaves.”³²⁷ Both of these proclamations contained a long list of exemptions—individuals participating in the rebellion that were not covered by the general pardon—chief among them “all who are, or shall have been, civil or diplomatic officers or agents of the so-called Confederate government” as Lincoln put it,³²⁸ or in the words of Johnson, “All who are, or shall have been, pretended civil or diplomatic officers, or otherwise, domestic or foreign agents, of the pretended Confederate Government.”³²⁹

Subsequent history demonstrates that Confederate President Jefferson Davis and Vice President Alexander H. Stephens were not covered by either of these amnesty proclamations. Davis was dogged with prosecutions for years.³³⁰ As for Stephens, he was elected to the U.S. Senate in 1866 but prohibited from taking his seat due to restrictions on former Confederates.³³¹ While he would go on to serve as a Congressman from the State and Georgia’s fiftieth governor, he held both of these positions only after Congress passed the Amnesty Act of 1872.³³²

But why were they excluded from Lincoln and Johnson’s amnesty proclamation? Obviously because they were “civil officers . . . of the pretended Confederate Government.” It is the only exemption that could possibly apply. And yet, the Confederate Constitution was modeled after the U.S. Constitution, and the four clauses that Blackman and Tillman cite to support their thesis—that the President and Vice President are not officers of the United States—are copied word-for-word as shown below, with the exception that “Confederate States” is substituted in place of “United States,” and some tweaks to capitalization.³³³

Table 2.
United States Constitution	Confederate States Constitution
Art. II, § 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for . . .”	Art. II, § 2: “[The President] shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the Confederate States whose appointments are not herein otherwise provided for . . .”
Art. II, § 3: “[The President] shall . . . Commission all the Officers of the United States.”	Art. II, § 3: “The President shall . . . commission all the officers of the Confederate States.”
Art. II, § 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”	Art. II, § 4: “The President, Vice President, and all civil officers of the Confederate States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.”
Art. VI: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”	Art. VI: “The Senators and Representatives before mentioned, and in the members of the several State Legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation to support this Constitution.”

Yet, surely no one in the North would have allowed Alabama to elect Jefferson Davis to the Senate on grounds that he was just the President, not an officer, of the Confederate States.

Critics might quibble that neither Amnesty Proposal used the phrase “officers of the Confederate States” or at least “officers of the so-called Confederate States,” and that the broader term “officers of the so-called Confederate government” was more all-encompassing. But does anyone really believe that it would have made a difference if it did? We have already shown that the phrase “officers of the United States” was not a term of art, so why would its counterpart be? An “officer of the so-called Confederate government” was the same thing as an “officer of the so-called Confederate States.”

Others might argue that this line of reasoning is irrelevant because the Confederate Constitution was never recognized by the United States as valid law due to the Confederate States never being recognized as a legitimate country. But it is still evidence of the linguistic norms of the day for at least twelve states—twelve states that ultimately ratified the Fourteenth Amendment. Davis and Stephens were therefore officers only in “the colloquial sense.”³³⁴ But that is exactly the point. The colloquial understanding—or to put it in legal terms, original public meaning—of the officers of a country, pretended or otherwise, included the President and Vice President.

E. Evidence from Other Contemporary Sources

Having shown that the President was frequently referred to as an officer of the United States, federal officer, and officer in various legal sources, we turn now to other more popular sources as evidence of the original public meaning of the Fourteenth Amendment.

First, we found dozens of newspaper articles written between 1850 and 1870 that refer to the President explicitly as an officer of the United States. These articles—which we found by searching the Newspapers.com database—came from more than two-thirds of the states that were part of the Union when the Fourteenth Amendment was ratified. They included newspapers from the Deep South, the far West, the mid-Atlantic, the Midwest, and New England; papers in large cities like New York and Philadelphia and small towns like Rock Island, Illinois; papers that were pro-Union and pro-Confederacy. Some of the articles were actually reprintings of official government documents or Congressional speeches, while others were written as letters to the editor or mere gossip; some were written by local authors, while other articles we saw reprinted in papers in multiple states. Through it all, we noticed a consistent linguistic pattern of using the phrase “officer of the United States” in a way that included the Presidency.³³⁵ A fraction of the quotations are listed below:

Alabama:

On the 20th of June, the day of his letter, there were a President of the United States, a Cabinet, Judges of the Supreme Court, and thousands of other civil officers of the United States.³³⁶

Arkansas:

This creature [i.e., Brigham Young] and his deluded followers are in the constant habit of denouncing the President and all the other officers of the United States in the most indecent terms.³³⁷

California:

Great power is contided [sic] to the President, Vice President, and othhr [sic] civil officers of the United States.³³⁸

Connecticut:

[T]he President of the United States is by the Constitution made Commander-in-Chief of the Army and Navy, as well as chief executive officer of the United States, and is bound by solemn oath faithfully to execute the office of President of the United States.³³⁹

District of Columbia:

Mr. Fillmore . . . has been a faithful and honest President. . . . No chief executive officer of the United States ever displayed more wisdom, moderation, and conciliation.³⁴⁰

Georgia:

[W]hereas, the President of the United States is, by the Constitution, made commander-in-chief of the army and navy, as well as chief civil executive officer of the United States . . . I, Andrew Johnson, President of the United States . . . do hereby appoint James Johnson, of Georgia, Provisional Governor of the State of Georgia whose duty it shall be . . . to prescribe such rules and regulations as may be necessary.³⁴¹

Idaho:

The president and other officers of the United States receives a very small salary compared to the crowned heads of Europe.³⁴²

Illinois:

Their contest has been one of principle alone—a principle which, if Mr. Lincoln is the chief executive officer of these United States for the next four years, he will be compelled to carry out.³⁴³

Indiana:

Now, the President is an officer of the United States.³⁴⁴

Iowa:

This vain old man was made to believe that he was in communication with the Secretary of State, the President, and other important officers of the United States.³⁴⁵

Kansas:

Jefferson Davis . . . personally advised and assisted in maturing the plan for the cowardly murder of the President and other officers of the United States government.³⁴⁶

Kentucky:

The ‘august master’ of Russia, in his letter to President Lincoln, has given the Chief Executive officer of the United States some wholesome advice.³⁴⁷

Louisiana:

No provision of this nature has ever been made for the widows or families of any one of the Presidents or other civil officers of the United States.³⁴⁸

Maine:

Whereas the President of the United States is by the Constitution made commander-in-chief of the army and navy, as well as chief Executive officer of the United States . . . I, Andrew Johnson, President of the United States, and commander-in-chief of the army and navy of the United States, do hereby appoint William W. Holden, Provisional Governor of the State of North Carolina.³⁴⁹

Michigan:

No provision of this nature has ever been made for the widows or families of any one of the Presidents or other civil officers of the United States.³⁵⁰

Minnesota:

The Evening Post argues editorially that the plot for the murder of Lincoln, Johnson, Seward, Stanton and Grant, was known and approved by Jeff. Davis and other rebel leaders. It says at the very time when the assassins in Washington were preparing to do their work, Davis opened negotiations with Sherman, in which he dealt with that General as if Sherman were in fact chief officer of the United States Government, the others [including Lincoln] being supposed to be killed.³⁵¹

Mississippi:

At the instance of President Johnson, and to facilitate his patriotic work of reconstruction, the people of the South elected members [to] Congress. Without this invitation from the Chief Executive officer of the United States, they would not have afforded the radical majority in Congress an opportunity for perpetrating an outrage which virtually defeats the end for which so much blood and treasure were expended during the past four years.³⁵²

Missouri:

Then the clause after being so amended so as to include besides the President, the Vice President, and other civil officers of the United States . . . was agreed to as now found in article 2, section 4 of the Constitution.³⁵³

New York:

[T]he result was that neither the President, Vice President, nor other civil officer of the United States could lawfully do an act . . . contrary to the good morals . . . of the office he holds.³⁵⁴

North Carolina:

Here the President declares, not merely as Commander-in-chief, but as “Chief Executive officer of the United States,” that under the Constitution of the United States it is his duty to enforce the laws.³⁵⁵

Ohio:

The design of the provision undoubtedly was to prevent the juncture of executive and legislative authority in the same individual; and unless its force is destroyed by some other provision, it is evident that neither the President nor any other officer of the United States . . . can legally be a member of either House.³⁵⁶

Pennsylvania:

The official papers of Davis captured under the guns of our victorious army in the Rebel capitol identified beyond question or shadow of doubt, and placed upon your record, together with the declarations and acts of his conspirators and agents, proclaim to all the world that he was capable of attempting to accomplish his treasonable procuration of the murder of the late President, and other chief officers of the United States.³⁵⁷

South Carolina:

[T]he Provisional Governor is hereby authorized and empowered to appoint a competent Agent . . . and also as Agent of the Provisional Governor of this State in all matters which he may desire to bring through such Agent before the President or other officers of the United States Government.³⁵⁸

Tennessee:

[T]he President is an officer of the United States.³⁵⁹

Vermont:

no less so in respect to Senators or Representatives than in respect to the President or any other officer of the United States³⁶⁰

Virginia:

All persons who shall have knowledge of such plot, and shall not disclose the same to the President of the United States or some other officer of the United States, shall be guilty of misprision of treason . . . .³⁶¹

Wisconsin:

bill declaring the effect of impeachment by the House of Representatives, on the President and other officers o[f] the United States³⁶²

It is worth noting that at least a few of these articles were reprintings of the official proclamations mentioned above, where President Johnson explicitly identified himself as the “Chief Executive Officer of the United States” or “chief civil executive officer of the United States.”

Other newspaper accounts clearly referred to the President as a federal officer without explicitly using the phrase “officer of the United States.” A few are shown below:

Connecticut:

Mr. Covode on Monday also moved a resolution inquiring into the outlay of money for the purpose of electioneering, &c.,—and also inquiring whether the President or any other officer of government has with the use of money, patronage, or any other improper means, sought to influence Congress.³⁶³

Delaware:

This left me [James Buchanan] no alternative, as the chief executive officer under the Constitution of the United States, but to collect the public revenue and protect the public property, so far as might be practicable under the existing laws.³⁶⁴

Maine:

While at Washington, subsequent to his escape from Richmond, the loyalty of Mr. Starrett was abundantly substantiated to the satisfaction of the President and other officers of the Government.³⁶⁵

Maryland:

Hon. John Cochrane accompanied the officers of the Seventh Regiment to the President’s House this morning, and introduced them to the President and other officers of the Government.³⁶⁶

Massachusetts:

It declares the title of all abandoned lands to be in the United States, and forbids the President or any other officer of the Government from surrendering it or doing any act to impair or affect the title of the United States.³⁶⁷

New Jersey:

The Embassy first landed at Washington and will be received by the President and other officers of the Government with great ceremony.³⁶⁸

Pennsylvania:

He was the President, the chief officer of the government . . . .³⁶⁹

West Virginia:

[T]hey not only often call it requisition, but find it to answer the end desired, which is proven by their nomination for President, and other officers of the government.³⁷⁰

We also found evidence in legal treatises of the day. In Commentaries on American Law, the great American jurist James Kent stated, “The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfil it.”³⁷¹ And Calvin Townsend in his educational reader, An Analysis of Civil Government, was even more explicit: “The Vice-President is an Officer of the United States.”³⁷² Because all of Blackman and Tillman’s arguments apply equally to the Vice President as it does to the President, we find this to be relevant as well.

Finally, in the Republican Party Platform of 1868, we found the following statement that explicitly identifies the President as an officer:

We profoundly deplore the untimely and tragic death of Abraham Lincoln, and regret the accession of Andrew Johnson to the Presidency, who has acted treacherously to the people who elected him and the cause he was pledged to support; has usurped high legislative and judicial functions; has refused to execute the laws; has used his high office to induce other officers to ignore and violate the laws.³⁷³

* * *

In summation, we have compiled a significant body of evidence—including numerous proclamations by President Andrew Johnson, statements by Senators and Representatives during the debates over the Fourteenth Amendment and the impeachment trial of Andrew Johnson, Amnesty Proclamations by President Lincoln and Johnson, as well as dozens of contemporary newspaper articles which suggest that at the time the Fourteenth Amendment was ratified, the term “officer of the United States” was broad enough to include the President.

V. HARTWELL AND MOUAT REVISITED

Having marshaled significant evidence that the original public meaning of the phrase “officer of the United States”—both at the time of the Founding and the ratification of the Fourteenth Amendment—was broad enough to include elected officials generally and the President, in particular, we now look with fresh eyes at the two cases Blackman and Tillman cite in support of their conclusion to the contrary: United States v. Hartwell and United States v. Mouat.

A. United States v. Hartwell Supports Our Conclusion that the President Is an Officer of the United States

United States v. Hartwell was a criminal case brought under the Act of August 6th, 1846, which criminalized embezzlement of public funds.³⁷⁴ The Defendant was a clerk in the office of the assistant treasurer stationed at Boston.³⁷⁵ The case focused on whether as a clerk, Hartwell was an “officer” within the meaning of the statute.³⁷⁶ The Supreme Court said that he was.³⁷⁷ Blackman and Tillman summarized the Court’s holding as follows:

Justice Noah Swayne wrote the majority opinion. He offered a two-part definition of an office. First, “[a]n office is a public station, or employment, conferred by the appointment of government.” Second, “[t]he term [office] embraces the ideas of tenure, duration, emolument, and duties.”

In Hartwell, the clerk “was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.” The court did not expressly connect the term “officer” in the embezzlement statute with the phrase “officer of the United States” in the Appointments Clause. However, the court’s discussion of the appointment being made by the head of the department suggests the two concepts were closely related—rightly so, in our view.³⁷⁸

They then conclude that because “Presidents are not appointed by the government” but are instead “elected by the people,” they cannot be Officers of the United States.³⁷⁹

As an initial matter, it bears repeating that Presidents are not “elected by the people.” They are elected by the Electoral College, which is as much an organ of the government as Congress or the Supreme Court is. Furthermore, as we showed in Section II.B, at the time of the Founding, the words “elect” and “appoint” were used interchangeably. Remember James Madison’s comment at the Constitutional Convention about the Electoral College we quoted above? “The option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people.”³⁸⁰ The Constitutional Convention chose the prior. The Joint Committee Report from North Carolina, which we quoted in Section IV.C, shows that this understanding of the word “appoint” continued at the time Justice Swayne was writing: “The voters are merely the appointing power, whose function is to select the representative.”³⁸¹ In light of this linguistic insight, we think Presidents easily satisfy the Hartwell test.

We think the opinion supports our conclusion in at least two additional ways. First, as Blackman and Tillman note, the opinion does not use the full phrase “officer of the United States,” instead using the words “officer” and “public officer.” Yet it is clear that the Court is analyzing Hartwell’s position under the Appointments Clause. If there was an understood legal or colloquial distinction between “officers” and “officers of the United States,” we think Justice Swayne would have felt it necessary to use the latter phrase. Instead, we think the Hartwell opinion strengthens our view that all references to the President as an “officer” is evidence that he is an “officer of the United States.”

Second, we think the opinion supports our reading of the Impeachment Clause. This actually comes from Justice Miller’s dissenting opinion which argued that the Defendant fell outside the contours of the embezzlement statute because he had not been explicitly entrusted with the money by an act of Congress. But in reaching that conclusion, we couldn’t help but notice one of the sections that he quoted:

That the Treasurer of the United States, the treasurer of the mint of the United States, the treasurers and those acting as such of the various branch mints, all collectors of customs, all surveyors of customs acting also as collectors, all assistant treasurers, all receivers of public moneys at the several land offices, all postmasters, and all public officers of whatever character, be, and they are hereby, required to keep safely . . . all the public moneys collected by them.³⁸²

Surely, Congress was not suggesting that the Treasurer of the United States, the treasurer of the mint of the United States, and other enumerated positions were not public officers. This is yet another example of the Alvin and the Chipmunks rule.

B. United States v. Mouat’s Test Misconstrues the Appointments Clause by Ignoring the Modifying Clause

United States v. Mouat considered whether a paymaster’s clerk—appointed by a paymaster in the navy with the approval of the Secretary of the Navy—was entitled to mileage reimbursement under the Act of June 30, 1876.³⁸³ The Act limited reimbursement to “actual travelling expenses” and prohibited “disbursing officers of the United States” from collecting “for mileages and transportation in excess of the amount actually paid.”³⁸⁴ Writing for the majority, Justice Samuel Miller stated:

What is necessary to constitute a person an officer of the United States in any of the various branches of its service has been very fully considered by this Court in United States v. Germaine, 99 U. S. 508. In that case, it was distinctly pointed out that under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law or the head of a Department, and the heads of the departments were defined in that opinion to be what are now called the members of the Cabinet. Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.³⁸⁵

But, as pointed out in Section II.D.1 above, that is not actually what the Constitution says. The President, courts of law, and department heads do not appoint all of the officers of the United States. There is another category: those officers “whose Appointments are . . . otherwise provided for” elsewhere in the Constitution. Words, we note, that the Germaine Court failed to quote.

As such, we find Justice Miller’s statement that

Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the President or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States,³⁸⁶

to be simply wrong. It flies in the face of the express language of Article II. And we feel that both its rigid test—based as it was on an incomplete version of the Appointments Clause—and its suggestion that “Congress may have used the word ‘officer’ in some other connections in a more popular sense” should be disregarded as dicta.

As such, we actually think Blackman and Tillman are interpreting the historical record exactly backwards. Mouat is not a linguistic continuity of the original meaning of the phrase “officer of the United States” but rather a departure from it. As we have shown, the phrase was not a term of art at the time of the Founding. Instead, it referred broadly to almost all federal officials whose positions were established by law—be that the Constitution or a federal statute. And it was broad enough to encompass both elected officials generally and the President of the United States specifically.

That understanding—shared by Chief Justice Marshall in his opinion in Maurice and by Congress in the Postal Act—continued at the time of the drafting and ratification of the Fourteenth Amendment. As we have shown, the explicit text, legislative history, and ratification debates of the Fourteenth Amendment and legislative history of the Fifteenth Amendment—not to mention newspapermen across the country—consistently spoke of electing officers, including officers of the United States. And Congress, Presidential proclamations, newspapers, and academic works published around the time the Fourteenth Amendment was ratified routinely referred to the President and Vice-President as an “officer of the United States.” Blackman and Tillman stated that the burden was on “proponents of the view that Section 3’s ‘officer of the United States’-language includes the presidency” to “put forward evidence as probative as Mouat and Hartwell.”³⁸⁷ We think we have more than met that challenge.

CONCLUSION

There is plenty, frankly, that we do not know. We do not know the meaning of the word “insurrection” in the Fourteenth Amendment, or how that meaning would apply to the events of January 6, 2021. We have not done historical research on if the Amendment is “self-executing.” We do not know many things about Section 3 of the Fourteenth Amendment. And we emphatically take no position on pending litigation other than the issue this paper addresses. We understand this piece is entering a complex national debate accompanying a presidential election. We would bury this paper with disclaimers if needed to get this point across that we cannot and will not answer many important questions surrounding these big topics. As is, we’ve settled for the first paragraph of our conclusion.

But this we know: The term “officer of the United States” in the 1788 Constitution is not a term of art. It thus applies to all “OFFICERS of the United States,” as a standard textualist interpretation of the phrase implies. There is no doubt that the person who holds the office of President of the United States becomes an officer of the United States when the person takes the presidential oath. Donald Trump was an officer of the United States.

Even assuming that was not the end of the matter, we also know this from a wide range of sources: At the time of the Fourteenth Amendment, the term “officer of the United States” included elected officials. Many references in that era refer to the President himself, as well as the Vice President, as an “officer of the United States.” The historical record in 1868 confirms what has been true since 1789: the President of the United States is an officer of the United States.

APPENDIX A. SELECTION MECHANISM FOR GOVERNORS IN THE EARLY STATES
State Constitution	Selection Mechanism	Referred to as Appointment, Election, or Both?	Relevant Passages
Connecticut (1818)	General Election	Election	Art. IV, § 1: The supreme executive power of the State shall be vested in a Governor, who shall be chosen by the electors of the State, and shall hold his office for one year from the first Wednesday of May next succeeding his election, and until his successor be duly qualified. No person who is not an elector of this State, and who has not arrived at the age of thirty years, shall be eligible.
Delaware (1776)	Joint ballot of both houses	Appointment	Art. 7: A president or chief magistrate shall be chosen by joint ballot of both houses’ to be taken in the house of assembly . . . and the appointment of the person who has the majority of votes shall be entered at large on the minutes and journals of each house.
Georgia (1777)	Chosen by ballot by the General Assembly	Both	Art. II: On the first day of the meeting of the representatives so chosen, they shall proceed to the choice of a governor, . . . and of an executive council, by ballot out of their own body. Art. XXIV: “I, A B, elected governor of the State of Georgia, by the representatives thereof, do solemnly promise and swear that I will, during the term of my appointment, to the best of my skill and judgment, execute the said office faithfully and conscientiously’ according to law, without favor, affection, or partiality; that I will, to the utmost of my power, support, maintain, and defend the State of Georgia, and the constitution of the same.”
Maryland (1776)	Joint ballot of both houses	Both	XXV: That a person of wisdom, experience, and virtue, shall be chosen Governor . . . on the second Monday in every year forever thereafter, by the joint ballot of both Houses (to be taken in each House respectively) deposited in a conference room; the boxes to be examined by a joint committee of both Houses, and the numbers severally reported, that the appointment may be entered . . . . [I]f the ballots should again be equal between two or more persons, then the election of the Governor shall be determined by lot.
Massachusetts (1780)	General Election	Chosen/Election	Ch. II, Art. II: The Governor shall be chosen annually: And no person shall be eligible to this office, unless at the time of his election . . . . Ch. II, Art. III: Those persons who shall be qualified to vote for Senators and Representatives within the several towns of this Commonwealth, shall, at a meeting, to be called for that purpose, on the first Monday of April annually, give in their votes for a Governor.
New Hampshire (1776)	Appointed by Council	Appointment	Accordingly pursuant to the trust reposed in us, WE DO Resolve, that this Congress assume the name, power and authority of a house of Representatives or Assembly for the Colony of New-Hampshire And that said House then proceed to choose twelve persons, being reputable freeholders and inhabitants within this colony, in the following manner, viz. five in the county of Rockingham, two in the county of Stratford, two in the county of Hillsborough, two in the county of Cheshire, and one in the county of Grafton, to be a distinct and separate branch of the Legislature by the name of a COUNCIL for this colony, to continue as such until the third Wednesday in December next; any seven of whom to be a quorum to do business. That such Council appoint their President.
New Hampshire (1784)	General Election	Chosen/Election	Part II: The President shall be chosen annually; and no person shall be eligible to this office, unless at the time of his election, he shall have been an inhabitant of this state for seven years next preceding, and unless he shall be of the age of thirty years; and unless he shall, at the same time, have an estate of the value of five hundred pounds, one half of which shall consist of a freehold, in his own right, within the state; and unless he shall be of the Protestant religion.
New Jersey (1776)	Election by the Council & Assembly	Election	Art. VII: [T]he Council & Assembly jointly at their first Meeting, . . . shall, by a Majority of Votes, elect some fit Person within the Colony to be a Governor for one Year, the Governor.
New York (1777)	Election by freeholders of the State	Election	XVII: [T]he supreme executive power and authority of this State shall be vested in a governor; and that statedly, once in every three years . . . shall be, by ballot, elected governor . . . which elections shall be always held at the times and places.
North Carolina (1776)	Joint ballot of both houses	Election	Art. XV: [T]he Senate and House of Commons, jointly at their first meeting after each annual election, shall by ballot elect a Governor for one year.
Pennsylvania (1776)	Joint ballot of the General Assembly & Council	Chosen	§ 19: All vacancies in the council that may happen by death, resignation, or otherwise, shall be filled at the next general election for representatives in general assembly, unless a particular election for that purpose shall be sooner appointed by the president and council. The president and vice-president shall be chosen annually by the joint ballot of the general assembly and council.
Rhode Island (1842)	Election at the town, city, or ward meetings	Election	Art. VII, § 1: The chief executive power of this State shall be vested in a governor, who, together with a lieutenant governor, shall be annually elected by the people. Art. VII, § 11: The compensation of the governor . . . shall not be diminished during the term for which they are elected. Art. VIII, § 1: The governor . . . shall be elected at the town, city, or ward meetings, to be holden on the first Wednesday of April, annually.
South Carolina (1776)	Joint ballot of both houses	Chosen/Appointment	§ III: That the general assembly and the said legislative council shall jointly choose by ballot from among themselves, or from the people at large, a president and commander-in-chief and a vice-president of the colony. § XIV: That in case of the death of the president and commander-in-chief, or his absence from the colony, the vice-president of the colony shall succeed to his office, and the privy council shall choose out of their own body a vice-president of the colony, and in case of the death of the vice-president of the colony, or his absence from the colony, one of the privy council (to be chosen by themselves) shall succeed to his office, until a nomination to those offices, respectively, by the general assembly and legislative council for the remainder of the time for which the officer so dying or being absent was appointed.
Virginia (1776)	Joint ballot of both houses	Chosen/Appointment	A Governor, or chief magistrate, shall be chosen annually by joint ballot of both Houses (to be taken in each House respectively) . . . who shall not continue in that office longer than three years successively.

APPENDIX B. SELECTION MECHANISM FOR JUDGES IN THE EARLY STATES
State Constitutions	Selection Mechanism	Referred to as Appointment, Election, or Both?	Relevant Passages
Connecticut (1818)	Nomination by the Governor and appointment by the General Assembly for Supreme Court and lower court	Appointment	Art. V, § 1: The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. Art. V, § 3: Judges of the lower courts shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed, for terms of four years.
Delaware (1776)	Joint ballot of the President and General Assembly	Appointment	Art. 12. The president and general assembly shall by joint ballot appoint three justices of the supreme court for the State, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans’ courts for each county.
Georgia (1798)	General Election	Election	Art. III, § 1: The judicial powers of this state shall be vested in a superior courts . . . . The judges of the superior court shall be elected for the term of three years, removable by the governor.
Maryland (1776)	Appointment by Governor with advice and consent of the Council	Appointment	XLVIII: That the Governor, for the time being, with the advice and consent of the Council, may appoint the Chancellor, and all Judges and Justices.
Massachusetts (1780)	Appointment by Governor with advice and consent of the Council	Appointment	Ch. 2, Art. 9: All judicial officers . . . shall be nominated and appointed by the Governor, by and with the advice and consent of the Council.
New Hampshire (1784)	Appointment by President & Council	Appointment	Part II: All judicial officers . . . shall be nominated and appointed by the president and council . . . no appointment shall take place, unless three the council agree thereto.
New Jersey	N/A	N/A	N/A
New York (1777)	Appointment by Commission of Senators & the Governor	Appointment	XXIII: That all officers [including Chancellor, and Justices of the Supreme Court], shall be appointed in the manner following, to wit: The assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a council for the appointment of the said officers, of which the governor . . . shall be president and have a casting voice, but no other vote; and with the advice and consent of the said council, shall appoint all the said officers.
North Carolina (1776)	Appointment of the General Assembly by joint ballot of both houses	Appointment	XIII: That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty . . . who shall be commissioned by the Governor.
Pennsylvania (1776)	Appointment by the President with the Council	Appointment	§ 20: The president, and in his absence the vice-president, with the council, five of whom shall be a quorum, shall have power to appoint and commissionate [sic] judges.
Rhode Island (1842)	Election by the two Houses in grand committee	Election	Art. X, § 4: The Judges of the Supreme Court shall be elected by the two Houses in grand committee.
South Carolina (1776)	Chosen by ballot jointly by the General Assembly and Legislative Council and commissioned by the President and Commander-in-Chief	N/A	XX: That all other judicial officers shall be chosen by ballot, jointly by the general assembly and legislative council, and except the judges of the court of chancery, commissioned by the president and commander-in-chief.
Virginia (1776)	Appointed by joint ballot of the two Houses	Appointment	The two Houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Secretary, and the Attorney-General, In case of death . . . the Governor . . . shall appoint persons to succeed in office. House of Assembly or the Privy Council.

APPENDIX C. OATHS THAT STATE EXECUTIVE OFFICERS TOOK IN SOUTHERN/FUTURE REBEL STATES IN THE ANTEBELLUM ERA
State Constitutions	Oath
Alabama (1819)	Art. VI, § 1: The members of the General Assembly, and all officers, executive and judicial, before they enter on the execution of their respective offices, shall take the following oath or affirmation, to wit: “I solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and Constitution of the State of Alabama, so long as I continue a citizen thereof, and that I will faithfully discharge, to the best of my abilities, the duties of ——— according to law: so help me God.”
Arkansas (1836)	§ 28: The appointment of all officers not otherwise directed by this constitution shall be made in such manner as may be prescribed by law; and all officers both civil and military acting under the authority of this State shall before entry on the duties of their respective offices take an oath or affirmation to support the Constitution of the United States and of this state and to demean themselves faithfully in office.
Florida (1838)	§ 11: Members of the General Assembly, and all officers, Civil or Military, before they enter upon the execution of their respective offices, shall take the following oath or affirmation: I do swear (or affirm,) that I am duly qualified, according to the Constitution of this State, to exercise the office to which I have been elected, (or appointed) and will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the Constitution of this State, and of the United States.
Georgia (1798)	Art. I, § 19: Every member of the senate or house of representatives shall, before he takes his Seat, take the following oath or affirmation. to wit: “I, A B, do solemnly swear (or affirm, as the case may be) that I have not obtained my election by bribery, treats, canvassing, or other undue or unlawful means, used by myself, or others by my desire or approbation, for that purpose; that I consider myself constitutionally qualified as a senator, (or representative,) and that, on all questions and measures which may come before me, I will give my Vote and so conduct myself as may, in my judgment, appear most conductive to the interest and prosperity of this State; and that I will bear true faith and allegiance to the same; and to the utmost of my power and ability observe, conform to, support, and defend the constitution thereof.” Art. II, § 5: The governor shall, before he enters on the duties of his office, take the following Oath or affirmation: “I do solemnly swear (or affirm, as the case may be) that I will faithfully execute the office of governor of the State of Georgia; and will, to the best of my abilities, preserve, protect, and defend the said State, and cause justice to be executed in mercy therein, according to the constitution and laws thereof.”
Louisiana (1845)	Title VI, Art. 90: Members of the General Assembly, and all officers, before they enter upon the duties of their office, shall take the following oath or affirmation: “I (A B), do solemnly swear (or affirm) that I will support the Constitution of the United States and of this State, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States and of this State; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State, nor out of it, with a citizen of this State, nor have I sent or accepted a challenge to fight a duel with deadly weapons with a citizen of this State, nor have I acted as second in carrying a challenge or aided, advised or assisted any person thus offending, so help me God.”
Mississippi (1832)	Art. VII, § 1: Members of the legislature, and all officers, executive and judicial, before they enter upon the duties of their respective offices, shall take the following oath or affirmation, to wit: “I solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the state of Mississippi, so long as I continue a citizen thereof, and that I will faithfully discharge, to the best of my abilities, the duties of the office of __________________ according to law. So help me God.” Art. VII, § 6: The legislature shall pass such laws to prevent the evil practice of duelling as they may deem necessary, and may require all officers before they enter on the duties of their respective offices, to take the following oath or affirmation: “I do solemnly swear (or affirm, as they case may be) that I have not been engaged in a duel, by sending or accepting a challenge to fight a duel, or by fighting a duel since the first day of January, in the year of our Lord one thousand eight hundred and thirty-three, nor will I be so engaged during my continuance in office. So help me God.”
North Carolina	Provision not found in Constitution.
South Carolina (1790, as amended in 1834)	Art. IV, § 5: Every person who shall be chosen or appointed to any office of profit or trust; before entering on the execution thereof, shall take the following oath: “I do solemnly swear, (or affirm), that I will be faithful, and true allegiance bear to the State of South Carolina, so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the constitution of this State, and of the United States: So help me God.”
Tennessee (1835)	Art. X, § I: Every person who shall be chosen or appointed to any office of trust or profit, under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office.
Texas (1845)	Art. VII, § 1: “I, (A. B.) do solemnly swear (or affirm) that I will faithfully and impartially discharge and perform, all the duties incumbent on me as ———, according to the best of my skill and ability, agreeably to the Constitution and laws of the United States and of this State: And I do further solemnly swear (or affirm) that since the adoption of this Constitution by the Congress of the United States, I being a citizen of this State, have not fought a duel with deadly weapons, within this State, nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, or aided, advised or assisted, any person thus offending – so help me God.”
Virginia	Provision not found in Constitution.

98 S. Cal. L. Rev. 65

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James A. Heilpern*

* Research Fellow at the Georgetown Center for the Constitution. The authors would like to thank Daniel Ortner, Sarah Jenkins Dewey, Christian Sanchez Leon, Alex Worley, and Samuel Clemence for their editorial help, as well as Kindra Heilpern and Robert Forsberg for facilitating access to important research materials. The authors would also like to thank Josh Blackman, Seth Tillman, Will Baude, and H. Jefferson Powell for comments on previous drafts of this article.

Michael T. Worley†

† Attorney, Provo, UT. The work of this paper should not be attributed for good or ill to my employer or any other entity. These entities had nothing to do with this paper, which was written off the clock.

The Lost History of “History and Tradition”

March 2025March 2025Dov Fox* & Mary Ziegler†

The Supreme Court has decided one blockbuster after another by appealing to “history and tradition,” deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action; from narrowing the scope of public accommodations to widening the margin for church/state entanglements. The Court says that its history-and-tradition test emerged fully formed in 1997 from an assisted-suicide case that was designed to rein in the drift toward living constitutionalism under the Warren and Burger Courts. This origin story is compelling. The problem is that it is not true—not where the test came from or even what it is. The Court’s narrative erases decades of social-movement conflict that this Article is the first to excavate. This Article marshals original archives to reveal that the history-and-tradition test was fashioned from the crucible of earlier struggles: over the value of deep and more recent history, over which communities and what kind of evidence define tradition, and, ultimately, over the role of America’s past in our constitutional present.

The contours of this debate were sharpened across doctrines and eras, inside the courts and beyond them. Recovering this history uncovers a rival vision of the history-and-tradition test—not entrenched but evolving. Taking seriously this dynamic alternative makes three contributions. First, it casts doubt on major decisions about race, abortion, guns, and God, while challenging the fixed-in-time conception of traditionalism these rulings stand on. Second, the more adaptive version of history and tradition sheds light on puzzles, including the levels-of-generality problem, the constitutional-progressive response to charges of judicial activism, and how a modern conservative legal coalition was forged out of fierce divisions over originalist methods and outcomes. Finally, this lost method bears surprising implications for claims that span the ideological spectrum: from fetal rights and gay marriage to gender-affirming care and conversion therapy. For instance, entrenched history and tradition probably would not operate to protect widely accepted rights such as interracial marriage and medical refusal. And evolving traditionalism could protect yet-unrecognized rights that it would not protect right now, such as aid-in-dying or assisted reproduction.

[G]uided by the history and tradition . . . , we must ask what the Fourteenth Amendment means by the term “liberty.” . . . [The answer is that it] does not protect the right to an abortion.¹

—Justice Alito

[T]his Court has instructed that the Establishment Clause [for government involvement with religion] must be interpreted by “reference to historical practices and understandings.”²

—Justice Gorsuch

Only if a firearm regulation is consistent with this Nation’s historical tradition . . . [does] the individual’s conduct fall[] outside the Second Amendment’s “unqualified command.”³

—Justice Thomas

INTRODUCTION

How should courts determine when individual freedoms enjoy constitutional standing? This is the central question that the U.S. Supreme Court answered in a recent trilogy of rulings about abortion, guns, and God.⁴

All three ascertained the status and scope of constitutional rights by invoking “history and tradition.”⁵

In Dobbs v. Jackson Women’s Health Organization, the Court enlisted a history-and-tradition test to overturn Roe v. Wade⁶ on the ground that a right to abortion is not “deeply rooted in this Nation’s history and tradition.”⁷ New York State Rifle & Pistol Association v. Bruen revolutionized the Court’s Second Amendment doctrine by striking down gun control measures that do not “comport[] with history and tradition.”⁸ And in Kennedy v. Bremerton School District, the Court set aside its fifty-year-old Lemon test—which assesses church/state violations according to a law’s purposes, effects, and entanglement with religion⁹—and replaced it with an approach that’s anchored in the “traditions undergirding” the Establishment Clause, “consistent with a historically sensitive understanding” of its provisions.¹⁰

The role assigned to history and tradition varies across these contexts, as does the relationship between the two.¹¹ The constant in each is how rights claims are interpreted based on history and tradition: not what the text originally meant to people who were alive when it was ratified or the normative understandings that are most desirable to us today, but the social practices that resonate with our shared history and tradition. Reliance on history and tradition has made waves in a range of other constitutional domains too: from free speech, affirmative action, and voting rights, to tribal authority, immigration, and sentencing.¹² All told, the Court’s appeal to history and tradition has upended decades of settled law across the constitutional landscape, with a raft of new occasions on the horizon.¹³

A rich literature has emerged to unpack this turn to history and tradition. Sherif Girgis identifies the distinguishing mark of that test as gleaning constitutional meaning from “practices” that are widely accepted or deeply embedded within American life.¹⁴ Miranda McGowan expounds that these meaning-making practices may be undertaken by elected officials, social movements, or other ordinary citizens working together.¹⁵ Larry Solum and Randy Barnett explain that the relevant social practices enjoy density, breadth, and staying power in relation to a constitutional amendment or provision at issue.¹⁶

Marc DeGirolami distinguishes those practices from other sources of interpretation.¹⁷ They’re not moral principles like the “evolving standards of decency” that shape which punishments the Eighth Amendment bars as cruel or unusual, consistent with “the progress of a maturing society.”¹⁸ Nor do judicial precedents count as practices¹⁹—that is, unless it is state court judges applying state constitutional texts. Curtis Bradley and Neil Siegel clarify that the social practices which make up history and tradition constitute more than “historical gloss” on constitutional powers or limits.²⁰ They’re a standalone criterion for adjudicating disputes about when and why the Constitution recognizes individual rights.

Scholars have also criticized the use of history and tradition in Dobbs. Reva Siegel reveals that the majority’s method of discerning social practices by counting state laws was deployed by segregationists before it was rejected in Brown v. Board of Education.²¹ Aaron Tang argues that almost half the states that Dobbs credits wholesale abortion bans to, in fact, allowed the ending of pregnancies until quickening.²² Melissa Murray and Katherine Shaw show how democratic deficits like gerrymandering cast doubt on Dobbs’s rhetorically potent claim that abolishing the national right to abortion would facilitate deliberation in the states.²³

Yet the most salient feature of this history-and-tradition test has received just passing reference. Namely, it asks whether the putative right in question fits within a pattern of practice relative to the Bill of Rights or Civil War Amendments.²⁴ That inquiry is rooted in the era of ratification. The Supreme Court has presented this temporal limit as natural and neutral, detached from preferences or politics.²⁵ On the Court’s telling, the test emerged in response to the freewheeling, unenumerated-rights decisions of the Warren and Burger Courts. The Rehnquist and Roberts Courts turned to the history and tradition of a long-ago past in order to rein in that earlier impulse for Justices to make policy.²⁶

This fixed-in-time approach promises to anchor constitutional rights and even to resolve interpretive disputes about them by appeal to shared customs. Yet it distorts the origins and implications of the history-and-tradition test, obscuring fierce debates over its meaning and significance in 2024 cases about guns,²⁷ immigration,²⁸ presidential immunity,²⁹ and free speech.³⁰ The history-and-tradition approach has fractured Justices on matters including the space it makes for post-ratification evidence,³¹ what other kinds of evidence help to establish a tradition,³² what level of generality a tradition should be articulated at,³³ whether history and tradition can constrain Justices,³⁴ and its relationship to originalism.³⁵ These conflicts cannot be fully understood without a sense of the historical struggles over history and tradition that shape today’s debate. This Article excavates the origins of these debates to uncover a rival version of the history-and-tradition test missing from contemporary cases and commentary. Our analysis chronicles the deep roots that this hidden conception has in the Court’s own jurisprudence and the social-movement struggle that has unfolded alongside it. And it spells out distinctive attractions of this alternative for constitutional theory and practice.

Part I and II mine original archives to unearth a more dynamic understanding of this test that sees the potential for consequential practices to change over time when newer customs dislodge older ones. On this account, traditions aren’t entrenched but evolving. Those of more recent vintage must still have a longstanding pedigree and be deeply embedded into the fabric of the American life, even if they’re contested in a diverse and polarized country. This evolving form of traditionalism runs through half a century of conservative and liberal opinions, amicus briefs, and social movements. “[T]radition is a living thing” is how Justice John Marshall Harlan II described this ideal in 1961.³⁶

Part II reveals that entrenched traditionalism did not emerge until the 1980s. That is when Christian conservatives and the right-wing legal movement sought to bridge growing divides among them by harmonizing originalist interpretive methods with natural-law principles that were seen as predating the Constitution and informing it. The Federalist Society embraced interpretive methods based on original public meaning.³⁷ But antiabortion lawyers and other social conservatives sometimes found originalism too limiting and worried that it would not deliver their preferred outcomes that states be made to promote Christian values, and that laws permitting abortion be struck down as unconstitutional.³⁸ An entrenched approach to history and tradition forged a powerful coalition on the political right, allowing for evidence of what social conservatives deemed Christian teachings and Western values.

Part III spells out three payoffs of recovering the evolving vision of that test. First, it makes progress on doctrinal puzzles like the levels-of-generality problem;³⁹ the enduring charges that reliance on tradition is both too manipulable (covering for judicial activism) and too intransigent (rooting injustices);⁴⁰ and the blurry lines between traditionalism and methods that resemble it, like historical gloss (to clarify ambiguous terms) and liquidation (to lock in their meaning).⁴¹ Second, resurrecting that evolving history-and-tradition test offers a shared vocabulary with the mediating potential to broker ideological compromise (between the prevailing interpretive extremes of conservative and progressive constitutional theory) by splitting the difference between originalism and living constitutionalism.⁴² Finally, we apply both traditionalisms—entrenched and evolving—to show how each would resolve controversies from fetal rights and gay marriage to gender-affirming care and conversion therapy. The implications are surprising. For example, the entrenched history-and-tradition test likely would not protect widely accepted rights such as interracial marriage and medical refusal. Meanwhile, evolving traditionalism might protect yet-unrecognized rights like aid-in-dying and assisted reproduction in a future that made these practices routine, but it probably would not protect any of them right now.

I. SOCIAL MOVEMENT POLITICS

Today’s Supreme Court majority advances a distinctive origin story for the history-and-tradition test. Dobbs directs our attention to struggles over substantive due process in the 1960s and 1970s.⁴³ But there are other plausible places to begin telling the history of the history-and-tradition test. The uses of history in jurisprudence could be documented from the Court’s early cases at the outset of the nineteenth century. A more recent point of departure emerges in the second half of the twentieth century, when social movements first contested the meaning of history and tradition. Or one could start with the uses of history and tradition that have become so salient over the Court’s last couple Terms. A sensible middle ground for launching the history of history and tradition is when the Court got into the business of recognizing unenumerated rights in the early twentieth century.

It is true that Supreme Court decisions of the nineteenth century mentioned rights that animate the “fundamental principle[s] of a republican government”⁴⁴ or that applied to “all civilized nations.”⁴⁵ For example, in the 1823 case of Corfield v. Coryell, George Washington’s nephew, Justice Bushrod Washington, described “privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union.”⁴⁶ History and tradition also appears to have figured centrally in early jurisprudence on the Seventh Amendment.⁴⁷ These earlier discussions matter for various purposes adjacent to ours.⁴⁸

We focus our historical analysis on the twentieth and twenty-first centuries because that reflects the most faithful understanding of the history-and-tradition test applied by the Court today.

The question at the center of our inquiry—whether tradition and history are entrenched or evolving—became far more central to social-movement and judicial debate in the past several centuries than it was before. Consider the account of “general law” developed by William Baude, Jud Campbell, and Stephen Sachs—they argue that the Fourteenth Amendment “secured but did not confer” rights already recognized in general law, which was “derived from general principles and customs and operating across jurisdictions.”⁴⁹ These scholars acknowledge that the scope of the general law was characterized by “imprecision and woolliness”—not least when it came to the question of whether general-law principles were fluid, “capable of developing over time, through a course of long-standing legal practice”⁵⁰—and whether the “rights of Englishmen,”⁵¹ as Sachs writes, were a “closed set.”⁵² Baude, Campbell, and Sachs recognize that nineteenth-century Justices were comfortable with the imprecision of general law and did not always openly grapple with questions about the scope of common-law custom and tradition in ways we might expect today.⁵³ In the twentieth and twenty-first centuries, by contrast, the fixed-versus-fluid question became a flashpoint for constitutional conflicts for a range of actors.⁵⁴ By studying their debates, we can gain crucial perspective on the workings and origins of both an evolving and fixed approach to history and tradition today.

Earlier discussions of common-law tradition bear an ambiguous relationship to present-day case law. With the decisions of Slaughter-House Cases⁵⁵ and later, Erie Railroad Co. v. Tompkins,⁵⁶ the Court rejected the readings of the Privileges or Immunities Clause favored by some originalist scholars. Accordingly, Baude, Campbell, and Sachs acknowledge that their approach to general law might be—and remain—“legally dead.”⁵⁷ Earlier understandings of tradition—perhaps rooted in general law or in the Privileges or Immunities Clause—may not tell us much about how the Court will apply a history-and-tradition test in the future. While Sachs reads Dobbs as consistent with originalist arguments about the Privileges or Immunities Clause or general law,⁵⁸ profound tensions separate the approaches rejected in Slaughter-House and Erie from present-day traditionalism, which is better understood as a new phenomenon that’s distinct from originalism and worth taking seriously in its own right.⁵⁹

To be sure, by the twentieth century, the Court had long referred to tradition when the Justices decided the 1905 working-hours case of Lochner v. New York. There, the Supreme Court recognized a “liberty of person or of free contract” provided for in the Federal Constitution with little mention of where that liberty came from or how to identify it.⁶⁰ But in dissent, Justice Oliver Wendell Holmes advanced a role for history and tradition, suggesting that the meaning of the Fourteenth Amendment might be gauged by evaluating whether “a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”⁶¹

Holmes did not explain how one should go about identifying such a tradition beyond suggesting that many a “reasonable man” would find nothing wrong with the disputed New York law.⁶² It would be another decade until a majority hinted at a role for tradition and history.⁶³ In the parental liberty case of Meyer v. Nebraska, the Court held that the Due Process Clause protected “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”—without explaining how they counted, or how much.⁶⁴ We focus on the period after Meyer because judges, litigators, and eventually, grassroots movements began a more robust debate about how tradition mattered in law. Which traditions should count—and was tradition necessarily backward looking? What kinds of evidence could establish a tradition? These questions began to more centrally influence debates on the pages of the United States Reports and beyond in the first decades of the twentieth century.

A. The Pre-History (and Tradition)

Arguments about history and tradition played a more dominant role in incorporation debates surrounding the Fourteenth Amendment.⁶⁵ In the years following the ratification of the Fourteenth Amendment, the Supreme Court has eviscerated its Privileges or Immunities Clause, leaving litigants to rely on the Due Process Clause when challenging the constitutionality of state policies.⁶⁶ Competing ideas about the effect of the Fourteenth Amendment on the Bill of Rights emerged after the Court began incorporating parts of the Bill of Rights against the states in Gitlow v. New York in 1925.⁶⁷ While Justice Hugo Black maintained that the Fourteenth Amendment had only incorporated the Bill of Rights,⁶⁸ other Justices believed that the Due Process Clause was itself a source of fundamental rights.⁶⁹

1. Holmes and Moody

Justice Holmes’ reflections on history and tradition came into clearer view in one early case, Twining v. State of New Jersey, where he joined a majority opinion suggesting that the meaning of tradition shifted over time.⁷⁰ Twining, a bank manager facing misdemeanor charges, had declined to testify on his own behalf, and a prosecutor suggested that his reasons for doing so were less than pure.⁷¹ Twining protested, arguing either that the Fourteenth Amendment incorporated a right against self-incrimination or that such liberty wasn’t enumerated under the Fourteenth Amendment.⁷² Rejecting Twining’s claim, Justice William Henry Moody laid out three principles governing unenumerated rights. He wrote that such a right could be “ascertained by an examination of . . . the common and statute law of England before the emigration of our ancestors.”⁷³

But this historical inquiry was not the end of the matter.⁷⁴ Moody suggested that the meaning of history and tradition was subject to change, but only in rare circumstances when government action offended “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”⁷⁵ Twining ultimately lost—because the Court did not think that the right against self-incrimination had adequate historical pedigree, to be sure, but also because the Court found no evidence that the relevant tradition had changed.⁷⁶

This vision of tradition echoed the conservatism of Edmund Burke, the Anglo-Irish theorist who loomed large in early conservative constitutional theory.⁷⁷ Burke celebrated the wisdom reflected in time-tested social practices more than whatever meaning could be derived from abstract theories or principles.⁷⁸ Yet, he squarely rejected the notion that tradition could not change. Tradition, as Burke saw it, did not change in response to “floating fancies or fashions.”⁷⁹ But its slow pace of reform is not the only reason that tradition worked as a welcome check on haste or revolution. Precisely because tradition was flexible is what invited a manageable and incremental kind of change that discouraged more radical ruptures with the past.⁸⁰ In Twining, Justice Moody implicitly embraces this Burkean conception of tradition.

2. Ozie Powell and Frank Palka (not Palko)

An evolving-tradition test circulated in the Court’s jurisprudence throughout the 1930s, though its contours remained fuzzy. In Powell v. Alabama, for example, Ozie Powell and four other Black teenagers had hitched a ride on a freight train crossing Alabama when they got into a fight with several white boys.⁸¹ Two white girls then accused Powell and his co-defendants of sexually assaulting them.⁸² The State tried Powell and his co-defendants without appointing defense counsel and sentenced all five to death.⁸³ Powell’s counsel responded that Alabama had denied the defendants due process of law by failing to appoint them counsel.⁸⁴ The Court recognized that, in the past, it had applied a primarily backward-looking history-and-tradition test, asking about “the settled usages and modes of proceeding under the common and statute law of England before the Declaration of Independence,” assuming they had not proven “unsuited to the civil and political conditions of our ancestors by having been followed in this country after it became a nation.”⁸⁵ Based on the evidence before it, the Powell Court concluded that the right to counsel failed this backward-looking test.⁸⁶ Nevertheless, the Court found that such a right was central to due process by focusing on “later cases,” including Twining itself.⁸⁷

By contrast, in Snyder v. Massachusetts, a man faced charges for murder and armed robbery, and prosecutors filed a motion requesting that jurors be brought to the gas station where the murder took place.⁸⁸ Snyder argued that defendants had an unenumerated right to tour crime scenes alongside jurors—a right deeply rooted in the nation’s tradition and history.⁸⁹ In rejecting Snyder’s claim, the Supreme Court likewise scoured decisions dating back to 1747 and said little about current practice.⁹⁰

But elsewhere, the Court reiterated that tradition was a living thing. In an incorporation case, Frank Palka (whose name would be forever misspelled as “Palko”) broke into a store, stole a phonograph, and murdered a police officer while making a getaway.⁹¹ A Connecticut jury convicted Palka, but the State appealed, invoking a Connecticut law permitting new trials when there had been an error “to the prejudice of the state.”⁹² Palka’s appointed lawyer, David Goldstein, argued that a second trial would violate Palka’s right to avoid double jeopardy.⁹³ In Palko v. Connecticut, the Court held that double jeopardy protections did not qualify as a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”⁹⁴ In reaching the conclusion, the Court said almost nothing about the constitutional past.⁹⁵ “Reflection and analysis” were all that was required—whether the Court could imagine an equitable justice system without such a right.⁹⁶

B. Post-War Family Planning

A more full-throated vision of an evolving history-and-tradition test emerged from conflicts about birth control—many of them unfolding outside the Supreme Court. Following World War II, Planned Parenthood combined arguments about the need to curb population growth with existing claims about the rights of married couples to plan their families.⁹⁷ But in the 1950s, it was segregationists rather than birth controllers who insisted that the past should guide constitutional interpretation—and that constitutional meanings were entrenched rather than evolving.⁹⁸ As Reva Siegel has shown, the famed Supreme Court litigator John Davis, who represented South Carolina in the Brown litigation, argued that the meaning of the Fourteenth Amendment was fixed at the time of ratification.⁹⁹ To determine the amendment’s original expected application, Davis pointed out that “23 [states] either then had, or immediately installed, separate schools for white and coloured children.”¹⁰⁰ Davis’s argument ultimately failed to convince the Brown Court. But other segregationists persisted in using state counting as a key method to establish constitutional meaning.¹⁰¹

1. “Tradition is a living thing.”

A different vision of the role for history and tradition appeared in conflicts about contraception at the Supreme Court. In the 1950s, Planned Parenthood lawyers hoped to challenge Connecticut’s anti-contraception law, the last in the nation to bar birth control by married couples.¹⁰² By 1961, when the Supreme Court was poised to hand down a decision on the law, the environment seemed ripe for a favorable decision. The FDA approved the birth control pill in May 1959, and within two years, one million people had used it.¹⁰³

The case that would become Poe v. Ullman had been winding its way through the Connecticut courts, and the plaintiffs in Poe told various horror stories about their lack of contraceptive access: one woman suffered three consecutive stillbirths, while a second nearly lost her life as a result of a foreseeably dangerous pregnancy.¹⁰⁴ Their attorney, Fowler Harper, made little mention of an unenumerated right to privacy. His argument instead mirrored an amicus brief from the Planned Parenthood Federation of America: the Connecticut law lacked a rational basis, forcing couples to use contraceptive methods that were “the most unreliable and least desirable.”¹⁰⁵ Nor did Connecticut mention history and tradition in defending the law, instead chastising Planned Parenthood for making an argument that was “sociological and physiological rather than legal.”¹⁰⁶

It was Justice John Marshall Harlan who raised the importance of history and tradition in his Poe dissent. The majority ruled that the plaintiffs had not suffered a redressable injury because they faced neither prosecution under the Connecticut law nor a realistic threat of one (after all, as the majority remarked, birth control was “commonly and notoriously sold in Connecticut drug stores”).¹⁰⁷ Justice Harlan disagreed. He said that the Court should identify unenumerated rights by consulting “what history teaches are the traditions from which it developed as well as the traditions from which it broke.”¹⁰⁸ The meaning of neither history nor tradition was fixed, in his view. “That tradition is a living thing.”¹⁰⁹ Harlan’s test pointed to a traditionalism that evolves. This change doesn’t come easy or rely on “merely personal and private notions.”¹¹⁰ But when a tradition did evolve, and when a new way of being fell into place, it was this more recent constitutional understanding that carried the day—in the tradition that married couples were using contraception to plan their families.¹¹¹

2. Constitutional Updating

Harlan’s opinion failed to carry the day in Poe, and his dissent did not command the change that he sought in social practices around privacy and birth control. But his proposed inquiry into evolving traditions raised a hard question about majority decisions that might influence such reform in the future. What if a judicial intervention itself nudges a tradition to change, or undermines a shift otherwise and already underway? Curtis Bradley and Neil Siegel observe that updating the Constitution in response to society’s changing needs “implicates an inherent tension between the benefits of customary evolution and centralized judicial review. Given the authority that federal courts possess in our constitutional system today, practice is likely to coordinate around judicial decisions.”¹¹² Won’t the recognition of salient rights like contraception and interracial marriage leave a mark on those practices? How can the Supreme Court identify an organically evolving tradition within American society if its own decision reworks the very content of that tradition or what it ultimately comes to be?¹¹³

Legal historians harbor well-founded skepticism about the degree to which the Supreme Court changes public attitudes or popular understandings of the Constitution, never mind the social traditions that might follow from those ideals. Scholars like Jeffrey Rosen, Reva Siegel, and Robert Post have documented the extent to which the Court tends to mirror or codify constitutional understandings, rather than transform them.¹¹⁴ They present robust evidence to reject a strong version of the transformation claim that the Court alone can dictate a new tradition. What of a weaker version? The first important thing to say is there is good reason to think the Court’s decisions have little meaningful effect on behavior at all—whether because most of its rulings don’t break through into the public conscience, or because, even if they do, most Americans may find the reasoning or result unconvincing.¹¹⁵

But two other possibilities emerge. First, the Court might sometimes reinforce or advance a shift that is already underway. Michael Klarman shows that seems to have happened with Brown, further legitimizing a new consensus in favor of integration.¹¹⁶ Also Obergefell, which might have done the same for same-sex marriage.¹¹⁷ On other occasions, backlash to a decision may push a tradition in the opposite direction. For example, the Massachusetts Supreme Judicial Court’s same-sex marriage decision in Goodridge v. Department of Health appeared to have triggered resistance to same-sex marriage, at least in the short term.¹¹⁸ Dobbs looks to have sparked a similar backlash.¹¹⁹ By the most reliable accounts, the incidence of abortions hasn’t gone down overall since trigger bans went into effect, with many Americans in ban states accessing pills by mail or crossing state lines for care.¹²⁰

In evaluating an evolving tradition, it makes little sense to disentangle the influence of an intervening decision that makes, at most, a modest contribution within a larger constitutional conversation. A decision might nudge changes in social practice in one direction or another. But that influence depends on the persuasiveness of its reasoning and the extent to which a court’s conclusion tracks what people already think. The evolving test needn’t stop its search for relevant practices when the Court hands down a decision that recognizes a new right or takes an old one away. Instead, it looks to the most current among longstanding traditions, which in turn incorporates how much, if at all, the Court ended up impacting that tradition and how.

3. Privacy and Penumbras

Harlan’s evolving-tradition test reflected this dialogic dynamism. It embodied the idea that social practices around contraception had changed, especially among married people, including Catholics.¹²¹ In the early 1960s, many believed that the Vatican would soften its opposition to birth control,¹²² and some Catholic leaders suggested that the church’s living traditions compelled them to do so.¹²³ By the mid-1960s, there were signs that lay Catholics made claims on tradition as well—over half of them in a 1966 poll favored federal funding for contraceptive programs.¹²⁴ While this dialogue took place mostly within Catholicism, its effects reverberated more broadly, for it had been Catholics who had most vigorously opposed the legalization of contraception since at least the 1930s.¹²⁵

This idea of an evolving tradition around contraception struck proponents of birth control as promising, and Harlan’s idea of a living tradition appeared to be a perfect vehicle for it. When Griswold came before the Court, Thomas Emerson and Katie Roraback, the attorneys for the Planned Parenthood League of Connecticut, argued that there was an unenumerated right to privacy that encompassed married couples’ use of birth control.¹²⁶ But how would a court define its limits? Citing Harlan’s dissent in Poe, Roraback and Emerson offered three guideposts for an evolving tradition test: “reason, tradition and current practice.”¹²⁷ Only proof of a new way of being, one that mirrored “current practice,” would carry the day because it would show that the relevant constitutional tradition had changed.

The Court’s decision in Griswold hardly settled questions about the utility of an evolving history-and-tradition test. Justice William O. Douglas’s majority opinion famously concluded that this right could be found in the Constitution’s penumbras.¹²⁸ The constitutional past seemed to matter in this analysis: Douglas stressed that marital use of contraception touched on a right to privacy older than the Bill of Rights, but the precise role for history or tradition was hardly clear.¹²⁹ Justice Goldberg’s concurring opinion centered on the Ninth Amendment and looked to history and tradition for guidance in fleshing out which liberties that amendment guaranteed.¹³⁰ By far the longest discussion of an evolving tradition test, however, came in Justice Hugo Black’s dissent.¹³¹ He argued that any evolving-tradition test required judicial activism.¹³² How could the Justices determine that a tradition had changed? Black quipped: “Our Court certainly has no machinery to take a Gallup poll.”¹³³

C. Sex, Abortion, and Cohabitation

After Griswold, the fate of an evolving-tradition test would intersect with a growing movement to reform criminal abortion laws.¹³⁴ In 1962, the American Law Institute (“ALI”) released changes to the Model Penal Code that included proposed reforms to criminal abortion laws, including exceptions for rape, incest, and certain fetal abnormalities and health threats.¹³⁵ By the mid-1960s, some state legislators had begun considering ALI bills, and antiabortion scholars, lawyers, and activists started to mobilize.¹³⁶

Leading antiabortion commentators insisted that respect for fetal life (and the criminalization of abortion at any stage in pregnancy) were deeply rooted in the nation’s history and tradition—and that this conviction had nothing to do with Catholicism, the faith practiced by most in the early antiabortion movement. At first, these arguments, too, echoed the idea of an evolving tradition. Antiabortion scholars did not limit their claims to the idea that Christian teachings, Western civilization, and the common law had always protected fetal life, even if some, like antiabortion scholar Eugene Quay, argued that “[p]rotecting the life of the unborn child has been a major concern of the earliest laws known to us.”¹³⁷

1. Catholics, Protestants, and Jews

Abortion-rights supporters questioned whether the nation’s history and tradition were as clear as abortion opponents claimed—in either the past or the present. In 1967, the Protestant Council of the City of New York and three Jewish organizations released a statement insisting the contemporary opposition to abortion did not reflect Judeo-Christian values or even national customs.¹³⁸ Harriet Pilpel of Planned Parenthood similarly explained in 1970 that “[t]hose of us who did not grow up in rigid religious tradition which decries all abortion . . . as murder, look at abortion . . . in terms of freedom of choice as to when and whether to have a child.”¹³⁹ The history and tradition of abortion remained contested as the conflict moved into the courts.¹⁴⁰

Significantly, both proponents and opponents of legal abortion at times framed tradition as evolving. In 1971, for example, Robert Byrn, an antiabortion law professor, sought to be named the guardian ad litem for all fetuses scheduled for abortion in New York City’s municipal hospitals.¹⁴¹ While claiming that rights for the fetus had been recognized since “time immemorial,” Byrn stressed that this claim constituted a living tradition, with emerging awareness of the rights and humanity of the unborn child in modern tort law, human rights law, and welfare law.¹⁴² Byrn thus conceded that constitutionally relevant traditions change over time.¹⁴³ In rejecting his fetal-rights argument on the merits, the New York Appellate Division defined history and tradition in a similar way, looking both to understandings at the time of the founding and the shifting meanings established in the present day.¹⁴⁴

2. From Poe to Roe

When the Supreme Court agreed to hear Roe v. Wade, those on both sides contested how a history-and-tradition test would apply to the constitutional status of abortion bans. Some antiabortion attorneys like Joseph Witherspoon, a member of the board of directors of the National Right to Life Committee, focused not on Poe’s evolving traditionalism, but on what he described as the original meaning of the Fourteenth Amendment.¹⁴⁵ In an amicus brief for the National Right to Life Committee, Juan Ryan, the long-standing president of the organization, likewise suggested that abortion could not be an unenumerated right unless there was an unbroken tradition supporting it.¹⁴⁶ Ryan argued that abortion “was always condemned at common law.”¹⁴⁷

In Roe, abortion-rights groups made their own claims about history and tradition. Planned Parenthood’s amicus brief in Roe sought to discredit the historical ancestry of fetal personhood, claiming that there was “only one instance other than the very recent abortion cases in which the contention has been made that a fetus is a person under the Fourteenth Amendment.”¹⁴⁸ An amicus brief submitted by a coalition of feminist organizations insisted that an evolving tradition test favored the recognition of abortion rights.¹⁴⁹ The Fourteenth Amendment, the feminist brief reasoned, required an analysis of “its full development and its present place in American life throughout the Nation.”¹⁵⁰

When the Court handed down a decision in Roe, the meaning of history and tradition lurked in the background of the debate between the majority and dissent. The majority acknowledged that medical customs around abortion had once been very different, culminating in abortion’s criminalization in most states during the nineteenth century.¹⁵¹ Critical to the majority’s telling was how the relevant tradition had changed: physicians had called for the reform of criminal laws, and abortion itself had become safer.¹⁵² Roe credited these changing practices and values in defining the scope of constitutional privacy.¹⁵³ By contrast, Justice William Rehnquist, writing in dissent, emphasized that the framers of the Fourteenth Amendment would not have recognized a right to choose abortion, but that’s not all.¹⁵⁴ He also suggested that the abortion right would fail an evolving history-and-tradition test. “Even today,” he said, “when society’s views on abortion are changing, the very existence of the debate [about abortion] is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe.”¹⁵⁵

3. City of East Cleveland

Harlan’s evolving history-and-tradition test reemerged in the Supreme Court in Moore v. City of East Cleveland.¹⁵⁶ Ordinances like the one in Moore, which zoned certain neighborhoods for nuclear families, formed part of an intensifying conflict about what the American Civil Liberties Union (“ACLU”) called sexual privacy.¹⁵⁷ A backlash to the sexual revolution in the 1960s and 1970s took aim at nonmarital cohabitors.¹⁵⁸ In 1972, twenty-eight states and several local communities criminalized cohabitation outside of marriage.¹⁵⁹ A more subtle strategy used family zoning ordinances like the one in Moore to exclude couples who did not wish to marry or were prevented from doing so by law.¹⁶⁰

This backlash belied fundamental changes in how Americans lived. Attitudes toward premarital sex were becoming more permissive, and premarital sex was becoming more common.¹⁶¹ By the 1970s, the advent of no-fault divorce meant that marriages were often temporary—the rate of no-fault divorces doubled¹⁶²—and the women’s liberation movement challenged a sexual double standard governing marriage while insisting that marriage should be unnecessary for women’s security or thriving.¹⁶³ The practice of living with non-nuclear family was increasingly common, even if states and cities sought to rein it in.

In Moore, Inez Moore was raising her grandsons, and her attorneys argued that the nation’s evolving history and tradition meant that East Cleveland could not use its zoning laws to exclude a family like hers.¹⁶⁴ Moore’s brief stressed that the extended family was an “institution that predates, and very likely will antedate, other legal and social institutions, such as the municipality.”¹⁶⁵ But contemporary recognition of the importance of the extended family was important too. “This practice of expanding the home to assist relatives,” the brief explained, “has continued to be an accepted tenet of our society.”¹⁶⁶ The ACLU’s brief in Moore asked the Court to go further, recognizing a substantive due process right to “determine basic family relationships and living arrangements,” as well as “broad rights to free association and privacy within the home.”¹⁶⁷

The Court voted to invalidate East Cleveland’s ordinance, and Justice Lewis Powell wrote a plurality opinion joined by three of the Court’s more liberal Justices.¹⁶⁸ Powell agreed with the ACLU that Moore’s decision to live with and raise her grandsons fell into the category of family rights protected under the Fourteenth Amendment.¹⁶⁹ Powell acknowledged that “[t]here are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights.”¹⁷⁰ At the same time, he made clear that traditions must change, and often did, but that the process took time and required the forging of new norms and consensus.¹⁷¹ The risks of judicial overreach were no reason for leaving unenumerated rights unenforced or artificially limited. Instead, the Court would look to an evolving tradition test, one that would show “respect for the teachings of history [and] solid recognition of the basic values that underlie our society,” while recognizing and honoring meaningful changes in tradition over time.¹⁷²

II. FORGING A CONSERVATIVE LEGAL MOVEMENT

A very different conception of history and tradition helped to bridge divides in an emerging conservative coalition. By the early 1980s the Federalist Society had formed and was rapidly expanding, with Ronald Reagan tapping the organization’s members to join his administration or nominating them to the federal judiciary. Originalism emerged as a foundational principle that guided the conservative legal movement’s approach to the Constitution and led the Reagan Administration to promise voters revolutionary changes in the law under the cover of neutrality. But originalism itself was not a perfect vehicle for the demands of the emerging conservative Christian bar or its counterparts in the antiabortion movement.

Conservative Christian lawyers, for their part, believed that the nation’s founding itself was explicitly Christian and wove religious teachings into the founding document—a claim that the Federalist Society was not prepared to make. A kind of Burkean history-and-tradition test did not suit conservative Christian lawyers either. Judges who adopted it had recognized the very rights that conservative Christians believed to be at odds with the nation’s founding character. For abortion opponents, arguments from original intent or original public meaning for fetal personhood were complicated because the framers of the Fourteenth Amendment said nothing about abortion, and because the antiabortion movement of the nineteenth century said nothing about the Constitution.¹⁷³

A looser focus on history and tradition—as opposed to original intent, original public meaning, or original expected application—had a unique appeal for social conservatives. For abortion opponents, looking more broadly at history and tradition could account for a range of other evidence beyond 1868 that included stigma surrounding abortion, criminal abortion laws that remained in place for nearly a century, and the like. For conservative Christians, a history-and-tradition approach could allow attorneys to weave in beliefs about a faith-based founding without explicitly tying interpretation to natural law or religious doctrine—and without imputing a desire to enforce Christian beliefs to framers who themselves had varied views of religion. This new history-and-tradition approach wasn’t evolving but entrenched. It assumed that the meanings of constitutional provisions were more or less fixed around the time of their ratification—and that later developments and constitutional understandings were entirely irrelevant.

A. Coalition and Constitution-Making

1. The Federalist Society

In 1968 and 1972, Richard Nixon had campaigned on criticism of the Supreme Court, which he painted as soft on crime.¹⁷⁴ Nixon’s comments galvanized conservatives who were critical of what they saw as unprincipled decisions of the Warren and Burger Courts. But in the 1970s, Nixon nominees hardly proved to be rock-ribbed conservatives. After all, it was a Nixon nominee, Harry Blackmun, who wrote the majority in Roe.¹⁷⁵

Ronald Reagan’s election in 1980 represented an unprecedented opportunity for the Federalist Society, which organized in 1983.¹⁷⁶ The founders and early members of the Federalist Society had any number of objections to the legal status quo. Some, aligned with business interests and libertarianism, sought to create a legal bulwark against the threat posed to business by progressive public interest groups like the Environmental Defense Fund.¹⁷⁷ Others had concerns about what they saw as race-based preferences or religious liberty.¹⁷⁸ The Federalist Society itself served as an umbrella for conservative lawyers that would “break what [members] see[] as the liberal control of many of the institutions of modern America.”¹⁷⁹

For Reagan, the Federalist Society offered a ready supply of smart and reliably conservative lawyers, both for positions in the administration and judicial nominations. Attacks on the Court delivered a potent political payoff.¹⁸⁰ On the campaign trail, Reagan channeled backlash to the decisions of the Warren and Burger Courts and vowed to stop the Court from “threatening to change traditional ways of life.”¹⁸¹ Reagan ran on a platform that included a commitment to nominate “judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”¹⁸²

But before and after his election, the American Bar Association hammered Reagan for elevating ideology over qualifications, and the administration looked for an interpretive method—or set of traits—that would appear neutral and legitimate while ensuring the kinds of results that Reagan demanded.¹⁸³ As Reva Siegel has shown, aligning with the Federalist Society offered an alternative source of legitimacy for the judges the administration put forward. Originalism, in turn, commended itself to the Reagan Administration and the conservative legal movement as a way to frame the administration’s vision of the law and identify sympathetic judges, without calling for substantive and specific outcomes.¹⁸⁴

After Reagan’s re-election, the Federalist Society established itself as a pipeline to power: Edwin Meese, the attorney general, launched an attack on judicial activism at the organization’s national gathering in 1985; Supreme Court Justice Antonin Scalia was another prominent speaker.¹⁸⁵ Where conservatives had been disorganized and demoralized, the Federalist Society united them by appealing to originalism and judicial restraint—and by rallying against the influence of left-leaning legal scholars like the movement for Critical Legal Studies.¹⁸⁶ The Federalist Society claimed that the legal left had distorted the judiciary’s proper role insofar as “the independence of the Supreme Court [was] at risk of being subverted by political gamesmanship.”¹⁸⁷

The Federalist Society was an insurgent force challenging a legal orthodoxy that had been accepted by a broad spectrum of legal professionals for decades—and was epitomized by the putative legalism of the Warren Court.¹⁸⁸ Reframing that legal consensus as political allowed Federalist Society leaders to claim that they were not revolutionaries but stewards of the rule of law.¹⁸⁹

2. The Rutherford Institute

But antiabortion lawyers and conservative Christian litigators did not see originalism as ideal, at least not how Meese and his colleagues defined it. Antiabortion lawyers hoped eventually for a court that would recognize fetal personhood.¹⁹⁰ In recent decades, the movement promoted a wide range of arguments that reflected existing Supreme Court jurisprudence—the recognition of a new suspect class or a substantive due process right—more than it did textualism or originalism.¹⁹¹ Attorneys for conservative Christian groups, like the Rutherford Institute, believed that courts should adhere to the Christian principles they claimed animated the nation’s founding.¹⁹² An entrenched history-and-tradition test could reconcile these ambitions with the Federalist Society’s calls for judicial modesty.

A trial of this entrenched approach to history and tradition came in the form of a struggle over the fate of criminal sodomy laws. As Bowers v. Hardwick was making its way to the Supreme Court, an emerging conservative Christian public-interest bar changed the claims made on a history-and-tradition test.¹⁹³ The Rutherford Institute, which opened its doors in 1982, played a particularly important role in the creation of a fully entrenched version of the test.¹⁹⁴ There were other conservative Christian litigation firms when John Whitehead launched Rutherford, but Whitehead himself was renowned because of his success in Christian publishing.¹⁹⁵ Like other prominent conservative Protestants, Whitehead maintained that the Constitution was a Christian document.¹⁹⁶ The Fundamental Law, “clearly expressed in God’s revelation as ultimately found in the Bible,” had shaped the nation’s founding as well as the Constitution, which “presuppose[d] the Declaration [of Independence] and the higher, fundamental law to which the Declaration [bears] witness[].”¹⁹⁷

When Rutherford filed as amicus in Bowers, an evolving-tradition test might have served Rutherford’s aims: less than a third of Americans polled in 1986 opposed sodomy bans.¹⁹⁸ But Rutherford attorneys framed the nation’s traditions as both Biblical and unchangeable, and they wove this conviction into a vision for the history-and-tradition test.¹⁹⁹ Antiabortion lawyers had made a similar argument in struggles over end-of-life decision-making, insisting that legitimate substantive due process rights had to reflect the broader history of “Western Civilization.”²⁰⁰ Rutherford’s amicus brief argued that criminal prohibitions of sodomy had roots in “the Judeo-Christian Scriptures.”²⁰¹ Remarkably, Rutherford also acknowledged that attitudes toward same-sex intimacy had changed—in recent years, tolerance for same-sex intimacy had grown—if not impressively.²⁰² But this contemporary history did not matter, Rutherford insisted, for a deeply rooted tradition could not evolve.²⁰³

Originalism might have delivered the same result in Bowers as this kind of entrenched history-and-tradition test. The framers of the Fourteenth Amendment had drafted its text at a time when criminal sodomy laws were venerable and unquestioned. It would not be long before state lawmakers began expanding sodomy laws to cover oral sex, while applying them more selectively to same-sex intimacy.²⁰⁴ Looking at an entrenched history and tradition—which could include scriptural condemnations of sodomy—would likely have yielded the same result. But for Rutherford, the point was to advance an alternative that could take into account other Christian and “Western” values across the broader run of cases—and to advance a test that both the conservative legal movement and Christian legal movement could sometimes embrace.

The Bowers Court did not fully adopt an entrenched history-and-tradition test, even as the Court upheld Georgia’s sodomy ban.²⁰⁵ The majority noted that “[p]roscriptions against [sodomy] have ancient roots,” and that more than a dozen states criminalized sodomy, both at the time that the Bill of Rights was written and at the ratification of the Fourteenth Amendment.²⁰⁶ But the majority also emphasized that there was no new, tolerant tradition regarding sodomy: “24 States and the District of Columbia continue to provide criminal penalties for sodomy.”²⁰⁷ Justice Burger, who contended that condemnation of sodomy was “firmly rooted in Judeao-Christian moral and ethical standards,” picked up on even more of Rutherford’s claim.²⁰⁸

B. From Michael H. to Casey

Movement organizations were not very involved in the 1989 case of Michael H. v. Gerald D., but the history-and-tradition test was front and center.²⁰⁹ Conflict over that test continued to be central in constitutional struggles over abortion too. The Supreme Court whittled away at Roe in a series of decisions, including another from 1989, Webster v. Reproductive Health Services, which articulated the view that Roe’s trimester framework was hopelessly unworkable.²¹⁰ When the Justices agreed to hear a challenge to a Pennsylvania multi-restriction law, in Planned Parenthood of Southeastern Pennsylvania v. Casey,²¹¹ reproductive rights attorneys Kitty Kolbert and Linda Wharton argued that the history-and-tradition test required exploration of “evolving standards” for both liberty and equality.²¹²

1. Integrating the New Christian Right

Antiabortion lawyers, for their part, invoked Bowers as the prime example of an entrenched history-and-tradition test²¹³: they argued that abortion failed that test because it had been “a crime at common law.”²¹⁴ The plurality decision in Casey invoked Justice Harlan’s dissent in Poe and reinforced that tradition was a “living thing”—one defined not by a single moment in the past (or any one interpretation of that moment).²¹⁵ Casey described the Court’s own substantive due process decisions as helping to define past tradition, but said little else.²¹⁶

Casey, together with growing conflicts over same-sex marriage and end-of-life decision-making, increased interest in a history-and-tradition test as a mobilizing tool on the right. Before the second half of the 1990s, mostly single-issue antiabortion groups had fought for influence in the conservative legal movement, with key figures bridging the divide between the two. These included such figures as James Bopp Jr., the influential general counsel for the National Right to Life Committee tapped to head a new election law and campaign finance committee within the Federalist Society, and Leonard Leo, the Federalist Society attorney with deep ties to antiabortion activism and conservative Catholic voters who had been tasked with steering Clarence Thomas’s Supreme Court confirmation through Congress.²¹⁷

2. Alliance Defending Freedom

In 1994, Larry Burkett, a tycoon in the world of Christian financial consulting, teamed up with Bill Bright, the founder of the massively successful Campus Crusade, to develop a conservative Christian alternative to the ACLU that they would call the Alliance Defense Fund (“ADF”) (later the Alliance Defending Freedom).²¹⁸ Bright and Burkett convinced a group of leading televangelists in 1993 that conservative Christian litigators were massively underfunded—a conclusion that led to the founding of ADF, which would fund cases involving “religious freedom, the sanctity of human life, and family values.”²¹⁹ Central to this vision was a particular approach to history and tradition, one that fixed on a point in the nation’s supposed past while assigning Christian Scripture a foundational role in determining the Constitution’s meaning. “America’s founders were Christians who established our nation on Christian principles, deeply rooted in the Bible,” ADF leader Alan Sears explained in a 1996 fundraising letter.²²⁰

ADF quickly built up a formidable budget, desperately needed by even the best-funded antiabortion groups, and ADF’s claims about the persecution of Christians resonated with antiabortion activists angry about the prosecutions and fines of those seeking to block entrances to reproductive health facilities.²²¹ But most antiabortion groups remained loathe to stray from a single-issue framework, and members of the Federalist Society did not openly embrace ADF’s vision of a Christian Constitution. Rallying around a history-and-tradition test could overcome these differences.

C. Evolving and Entrenched Traditionalism

In the mid-1990s, a handful of states began passing aid-in-dying laws. Antiabortion attorneys argued that those laws violated the Constitution.²²² When the Supreme Court agreed to hear Glucksberg, antiabortion groups privileged arguments about history and tradition.²²³ “It is clear that a right to assisted suicide is neither implicit in the concept of ordered liberty nor deeply rooted in American history and tradition,” the National Right to Life Committee argued.²²⁴

1. The Battle in Glucksberg

The right-to-die advocates litigating Glucksberg stressed that Casey had not “removed history and tradition from the due process equation.”²²⁵ Instead,

Casey recognized that constitutional significance inheres . . . not in the historic legality or illegality of a specific act, but in the treatment, in our history and tradition, of interests like those in bodily integrity and autonomy, in avoiding pain and suffering, and in making profoundly intimate and personal life-shaping decisions.²²⁶

The ACLU’s amicus echoed this interpretation, stressing that the right of “a mentally competent, terminally ill person to choose an end to [physical] suffering” was “deeply rooted in [the] Nation’s history and tradition.”²²⁷

Glucksberg rejected constitutional claims against assisted suicide but did not clearly embrace an entrenched history-and-tradition test. Justice Rehnquist’s majority opinion juxtaposed living constitutionalism with an alternative focused on “fundamental rights found to be deeply rooted in our legal tradition.”²²⁸ And Rehnquist stressed themes of judicial restraint that conservatives had tried to associate with an entrenched traditionalism, suggesting that a focus on history and tradition could “rein in the subjective elements that are necessarily present in due process judicial review.”²²⁹

But Glucksberg hardly focused on just a few points in the distant constitutional past.²³⁰ The Court also stressed more recent support for bans on aid-in-dying, which had “been reexamined and, generally, reaffirmed.”²³¹ And Glucksberg reaffirmed that Casey had applied a history-and-tradition test.²³² “[T]he Court’s opinion in Casey,” Glucksberg reasoned, “described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, . . . that they are protected by the Fourteenth Amendment.”²³³ This was a far cry from the evolving history-and-tradition test that Justice Harlan had set forth in Poe.²³⁴

2. From Lawrence to Obergefell

ADF used history and tradition to describe what its leaders understood to be divisive positions—for example, opposing heightened scrutiny for sex classifications—and to bridge possible divides with members of the Federalist Society and the conservative legal movement. Rather than denouncing sex equality or even feminism, ADF suggested that strict scrutiny for sex classifications would overturn deeply rooted laws recognizing “reasonable, time-honored differences between the sexes.”²³⁵ When it came to efforts to decriminalize same-sex intimacy, expand sex-education curricula, or bolster laws prohibiting same-sex marriage, ADF long framed its work as a fight to stop “homosexuals” from changing the law and using a “battering ram . . . to smash the biblical values on which our country was built.”²³⁶

By the end of the 1990s, these claims became politically toxic—and quite different from the kind of textualist and originalist arguments advanced by the Federalist Society. Polls showed growing tolerance for legalizing same-sex intimacy, and in the 1996 case Romer v. Evans, the Court struck down a Colorado state constitutional amendment for lacking a rational basis and codifying anti-gay animus.²³⁷ An entrenched traditionalism had operated to allow conservative movements to update what had become politically out-of-bounds claims. It also enabled them to frame the demands of the Christian legal movement and antiabortion forces in terms that the Federalist Society could accept.

Conservative Christians again sought to use arguments from history and tradition to create common ground in Lawrence v. Texas, a case involving a challenge to Texas’s sodomy ban.²³⁸ The State of Texas, for example, stressed that the nation had a tradition of “historically prohibiting a wide variety of extramarital sexual conduct.”²³⁹ Lawrence proved a devastating setback for proponents of an entrenched history-and-tradition test. Justice Kennedy’s majority began by casting doubt on the narrative of consistent hostility to homosexuality offered up by Bowers—as leading historians had documented, a focus on same-sex intimacy was relatively recent, as was an understanding of homosexuality as a stable identity.²⁴⁰ But the Lawrence Court suggested that it was the “laws and traditions in the past half century” that were of the “most relevance.”²⁴¹

Lawrence did nothing to decrease social-movement interest in arguments about history and tradition, especially as the fight for same-sex marriage continued. Groups like the National Organization for Marriage (“NOM”), founded in 2007 to preserve a California ban on same-sex marriage, presented their cause as a defense of “traditional marriage.”²⁴² In 2008, when the California Supreme Court held that the state constitution required access to marriage for same-sex couples, Maggie Gallagher, one of NOM’s co-founders, complained that the decision “brushed aside the entire history and meaning of marriage in our tradition.”²⁴³ In 2009, NOM moved its headquarters to Washington, D.C. and repackaged the group’s cause, as the Washington Post explained that year, to argue that “opposing gay marriage does not make them bigots, that the argument should have nothing to do with hate or fear, and everything to do with history and tradition.”²⁴⁴

Arguments about history and tradition also figured centrally in efforts to fortify the alliance between conservative Catholics, evangelical Protestants, and Orthodox Christians, spearheaded by Robert George, the Princeton professor who served as the chairman of NOM.²⁴⁵ George helped to draft and publicize the 2009 Manhattan Declaration, which identified traditional marriage, opposition to abortion, and support for a particular idea of religious liberty as the unifying demands of conservative Christians.²⁴⁶ The declaration, in turn, framed opposite-sex marriage as honored or even required by “Christian tradition, and . . . Western law.”²⁴⁷

History-and-tradition arguments also defined conservative movements’ strategies when a challenge to bans on same-sex marriage reached the Supreme Court in Obergefell v. Hodges.²⁴⁸ Some amicus briefs stressed that there was a history and tradition of allowing states to define marriage as they saw fit.²⁴⁹ Others suggested that only marriage between persons of the opposite sex was deeply rooted in the nation’s history and tradition.²⁵⁰ Obergefell embraced a kind of evolving traditionalism. Justice Kennedy’s majority underscored that “[h]istory and tradition guide and discipline” analysis of the Fourteenth Amendment, “but do not set its outer boundaries.”²⁵¹ What made this longer-term perspective so important, Kennedy said, is that “[t]he nature of injustice is that we may not always see it in our own times.”²⁵² But Obergefell would not usher back in the evolving traditionalism of yore.

An entrenched history-and-tradition test remained a priority for antiabortion lawyers, especially following the confirmations of Justices Gorsuch, Kavanaugh, and Barrett.²⁵³ And then, Dobbs elevated this entrenched species of traditionalism, alongside other key cases from the 2021–2022 and 2022–2023 Terms.²⁵⁴ But the meaning of a history-and-tradition test had, in fact, been a site of contestation for decades before the newly constituted conservative majority declared that “history and tradition” teaches that “what the Fourteenth Amendment means by the term ‘liberty’ . . . does not protect the right to an abortion.”²⁵⁵

III. REMAKING TRADITIONALISM

Recovering this lost approach to history and tradition is significant for three reasons. First, it sheds new light on old puzzles that have beset constitutional interpretation. These include charges of judicial activism and deep-rooted injustice, generality problems, and difficulties in differentiating between the traditionalist method and either “gloss” or “liquidation.” Second, a shared focus on longstanding and widespread practices promises to take the edge off interpretive divisions between the prevailing extremes of originalism and living constitutionalism, especially if looking to the way in which they have evolved over time. Third, distinguishing entrenched from evolving traditionalism provides a constructive way to clarify which rights merit constitutional recognition. The final Section details how these distinct approaches to traditionalism would go about analyzing a number of fundamental rights claims that the Supreme Court has already recognized (e.g., birth control, interracial marriage, medical refusal) as well as others that it hasn’t (e.g., assisted reproduction, aid-in-dying, gender-affirming care).

A. Doctrinal Puzzles

Traditionalism is criticized for being either too manipulable or too stuck in the past. These objections come from opposite directions. One casts this method of interpretation as so unmoored that it invites judicial activism. The other says it is so rigid that it entrenches injustice. The evolving approach to history and tradition proves less vulnerable to both criticisms than the entrenched version of that test. And there are a couple other doctrinal puzzles that evolving traditionalism makes meaningful progress on too. One relates to the levels-of-generality problem in determining the scope of constitutional rights and holdings. The other is about the complexities of distinguishing traditionalism from “gloss” or “liquidation.” The evolving kind of history and tradition isn’t immune to these challenges. But it fares better.

1. Activism and Calcification

The evolving test attracts charges of judicial activism because it doesn’t confine the inquiry to a preset timeframe in the distant past. And if a judge has more time periods to pick from, she has more discretion to pick and choose her favorite practices. But that analysis is still anchored in extra-judicial practices whose roots run deep. There’s no picking and choosing among isolated customs or fleeting fads—let alone freestanding normative principles or cost-benefit analyses. And this methodological point is critical: evolving history and tradition advises looking to the most recent among sufficiently longstanding practices. Accordingly, it offers the judge no wider variation than entrenched traditionalism.

Besides, fixing a traditionalist analysis on some earlier era isn’t determinate. It leaves ample space to exercise judicial discretion. For one, as Justice Amy Coney Barrett asked in the Bruen gun rights case, “How long after ratification may subsequent practice illuminate original public meaning?”²⁵⁶ The absence of any clear answer invites arbitrary line-drawing on either side. Adam Winkler catalogs the ways in which the Bruen “Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like,” dismissing “all of the historical precedents for heavy restrictions on concealed-carry laws as outliers,” “early English common law as too old,” and “laws that were adopted after the mid-eighteen-hundreds as too young.”²⁵⁷ Joseph Blocher and Reva Siegel give the name “asymmetric updating” to the danger that Second Amendment rights expand to include new kinds of weapons, while the government’s regulatory authority stays frozen in 1791 or 1868.²⁵⁸ Entrenched traditionalism is vulnerable to cherry-picked traditions and badly done history too, while the evolving test can find expression in tangible practices grounded in objective, empirical evidence.

When it comes to the problem of intransigence, entrenched traditionalism is susceptible to injustices that reach further back in our past. All that matters is that a practice was accepted at the relevant ratification era—its animating rationale or subsequent rejection escapes scrutiny.²⁵⁹ So does the way in which tradition is deployed: to uphold a law that’s consistent with longstanding practices, to strike one down because it is at odds with them, or to interpret a provision that was enacted precisely to abolish a persisting evil like slavery. Consider the 2021 case Brnovich v. Democratic National Committee,²⁶⁰ which read into the Voting Rights Act a presumption that any practice is valid that was “standard” when the Act was enacted in 1965, even if it operated to deny black voters the opportunities afforded to others.²⁶¹ Justice Elena Kagan dissented on the ground that the purpose of the statute was “to eradicate then-current discriminatory practices, not to set them in amber.”²⁶²

Obergefell, the 2015 case affirming a right to same-sex marriage, underscores the injustices in an entrenched appeal to traditionalism: “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”²⁶³ Evolving traditionalism combats the reflexive appeal to “what we have always done,” when our past embodies grave wrongs. Longitudinal analysis about historical practices leaves space to recognize the ways in which traditions tend to grow progressively fairer over time. There is no guarantee that “what we have done more recently” ever and always bends toward decency and fairness. It is possible that more recent traditions are not especially more likely to be just. Later generations can certainly make moral mistakes too. What an evolving test enables us to do is avoid reifying the transgressions that we can see clearly when looking back in the rearview mirror, so that at least those we won’t perpetuate indefinitely into the future.

That’s what persuaded the Massachusetts Supreme Judicial Court (the state’s highest) in a 2022 case to grant due process protections to medical aid-in-dying under the state constitution. The Court identified two methods of traditionalism that it referred to as narrow and comprehensive: “a fundamental right may be determined either through a narrow view of this nation’s history and traditions or through a more comprehensive approach, which uses ‘reasoned judgment’ to determine whether a right is fundamental.”²⁶⁴

The Massachusetts high court adopted the “comprehensive” approach whose consideration of “modern precedent alongside history” enabled the majority “to cleanse our substantive due process analysis of the bigotry that too often haunts our history.”²⁶⁵ Social practices occupy a relatively weak place in this “comprehensive” conception of history and tradition. It holds that practices are neither a necessary nor sufficient condition of interpretative meaning. Evolving traditionalism reserves a stronger role for social practices. They give a judge a source of legal authority to cite when she agrees with it but also constrain her when she does not.

2. Levels of Generality

Generality problems pervade constitutional, statutory, and common law.²⁶⁶ They boil down to the description of a law, provision, or case at a lower level of generality or a higher one—in other words, in terms that are either more particular, and so would accordingly apply to a narrower set of future facts or questions, or stated as an abstract matter, which has relevance to a wider range of legal issues.²⁶⁷ This framing can have a profound impact on a legal conclusion. In 1937, legal theorist Jerome Hall put the problem like this: “Upon the level of generality selected for the criteria of likeness or dissimilarity depends the outcome.”²⁶⁸

The generality problem we focus on is the level at which a rights claim is articulated before the court, or in the understanding of its holding. It is a debate that Laurence Tribe and Michael Dorf launched in 1990,²⁶⁹ the year after Justice Antonin Scalia suggested that courts select “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”²⁷⁰ The question is how specifically or generally to identify a “relevant tradition”—for example, as allowing adulterous fathers to interfere with families, or letting genetic parents visit the children they learned of their biological connection to only at some point after their birth.²⁷¹ Marc DeGirolami argues that empirical appeal to the fact of social practices itself might help to rein in the choice of level by limiting the range of plausible answers to those that find expression in practices that are especially pervasive and longstanding.²⁷²

Evolving traditionalism can help to gain traction on the levels-of-generality problem. Take Obergefell. America has long respected the general framing of a liberty interest in two people getting married in cases like Loving v. Virginia, which recognized rights of marriage rather than “interracial” marriage.²⁷³ But the same interest might also be characterized in terms of a more specific framing about same-sex couples specifically. The question is whether two decades of same-sex marriage recognition in a growing minority of states is enough to root a tradition deeply. The answer depends on which practices endure most when the lens of tradition is refracted from the ratification era into more recently longstanding practices. The Obergefell majority reasoned about history not as a limit but as a guide that’s “entrusted to future generations” to protect individual freedom in a manner that evolves “as we learn its meaning.”²⁷⁴

By contrast, the reconstituted Supreme Court majority in Dobbs adopted a low level of generality to define a specific right to abortion, as that practice had been entrenched under nineteenth-century state restrictions.²⁷⁵ An evolving traditionalism that accounted for battles over birth control and medical refusal would have advised a more general right of reproductive freedom or healthcare. Distinguishing entrenched from evolving traditionalism also guards against selectively favoring whichever level of generality suits a preferred outcome: for example, describing the types of “arms” covered by the Second Amendment right at a high level of generality to include weapons unknown to the founding era, while casting gun control regulations at a low level of generality that requires laws which closely resemble past practice.²⁷⁶

3. Gloss and Liquidation

Distinguishing the evolving from entrenched tests for history and tradition also sharpens the differences between traditionalism and similar-but-distinct interpretive methods: gloss and liquidation. Historical gloss traces back to the separation-of-powers landmark Steel Seizure Case,²⁷⁷ specifically to Justice Felix Frankfurter’s concurrence, detailing that permissible sources of presidential power include “the gloss which life has written upon them” through “a systematic, unbroken . . . practice.”²⁷⁸ Gloss is just one data point among others, so relevant practices feature less prominently than they do in traditionalist interpretation, where social practices take center stage.²⁷⁹

Historical gloss more closely resembles evolving history and tradition in its analysis of relevant actions and inactions over time.²⁸⁰ The biggest difference is that gloss considers only government practices.²⁸¹ The history-and-tradition test widens the focus to salient and “systematic” practices by non-state communities too. Beyond legal advocacy, this could include widely shared primary conduct by unorganized groups of individuals, such as the growing use of contraceptives even among Catholics, or cohabitation of the sort cited in Moore.²⁸² By contrast to gloss, evolving traditionalism qualifies a social practice as relevant to recognizing a constitutional right, or declining to recognize it, when lots of people have undertaken or abstained from that practice for a long time.

Liquidation also goes beyond constitutional text to set the scope of indeterminate provisions in light of how political branches, states, or the people apply them after they’re enacted.²⁸³ Federalist No. 37 says liquidation is necessary when and because a newly ratified rule is “more or less obscure and equivocal.”²⁸⁴ This method features elements of both the evolving and entrenched versions of traditionalism. Liquidation is evolving in its openness to amplification by post-ratification practices that boast longevity and adherence. But then it fixes the meaning of that gap in the text through a period of acquiescence to a particular view in a process known as settlement.²⁸⁵

William Baude argues that liquidation tends to be achieved by people of great stature, working at the nerve centers of political power.²⁸⁶ By contrast, traditionalism finds the development of tradition in sometimes small places. And an evolving brand of that test looks for uniformity in the practices that cash out constitutional meaning across space and time. Liquidation also closes off interpretation to the possibility of future revision, without especially worthy justification. Whereas evolving traditionalism counts any change in longstanding social practices as meaningful to rights recognition.

B. Common Ground

The prevailing constitutional theories tend to talk past each other. Originalism and living constitutionalism appeal not only to different eras, but also to disparate values and core commitments.²⁸⁷ It is not that there haven’t been rigorous scholarly efforts to engage the other side.²⁸⁸ And yet these camps now find themselves more polarized than ever. They’re at odds about the Constitution’s meaning in most of the hard cases, that is, whenever the document is vague, silent, or cannot be substantiated with reliable historical context.²⁸⁹ That’s when they part ways for good, for example, about the role of original meaning (or original intent or law or methods). An evolving form of traditionalism holds out hope for bridging this gap, offering interpretive opponents a more conciliatory set of first principles and shared vocabulary.²⁹⁰

Most originalists think the meaning of each constitutional provision was pretty much fixed at the time that provision was adopted. So, it might seem reasonable to think that most would be reluctant to embrace social practices that were entrenched long ago in lieu of ones whose durability and pervasiveness evolved more recently. But there are other originalist commitments too. One is that constitutional practice constrains judicial decision-making. And this would seem to counsel openness to the external restraint that longstanding history and tradition places on this method of interpretation. The promise is more modest than any easy compromise. It is just the chance to bring constitutional antagonists to the same table to engage in meaningful conversation.

The evolving approach to history and tradition can be understood as a particular variant of living constitutionalism, defined as the idea that the Constitution’s authoritative meaning can and should be responsive to changing values absent any formal change to Article V.²⁹¹ Evolving traditionalism anchors itself in the most recent among those lasting social practices that go back at least decades, whereas most forms of living constitutionalism impose no such check on their interpretations that are grounded in changing circumstances and values.

The difference between entrenched traditionalism and originalism is subtler. Solum and Barnett diagnose their resemblance when they ask why Dobbs and Bruen fix the focus of traditionalism on historical evidence about the prevalence of state legislation around the time of constitutional ratification in 1791 or 1868. Their answer invokes originalism: firearms and pregnancy restrictions lend insight into what the public would have understood the Second and Fourteenth Amendments to mean when it comes to gun and abortion rights.²⁹² Solum and Barnett are right to observe that entrenched traditionalism and original public meaning can rely on similar evidence, even often. What distinguishes them, however, is the self-conscious attention each pays either to concrete social practices (traditionalism) or to abstract textual construction (originalism).

As for the entrenched and evolving variations of the history-and-tradition test, each focuses on different eras, either around the time of constitutional ratification or else extending for wider windows before and after that era. But both share minimal agreement on the interpretive importance of especially meaningful social practices.²⁹³ Those pervasive and entrenched practices are their North Star and point of departure. This first principle is what Justice Harlan described in his Poe dissent as the “regard to what history teaches are the traditions from which [this country] developed as well as the traditions from which it broke.”²⁹⁴ Compared with the entrenched approach to history and tradition, evolving traditionalism boasts the advantage of not forever preserving status inequalities and other past injustices, even if it might still risk ratifying contemporary evils.²⁹⁵

1. Shared Vocabulary

Traditionalism supplies a shared vocabulary that replaces abstract moral principles or contested balancing tests with tangible practices as the basis of constitutional meaning. These conversations about social practices can be mediated most effectively when tradition is treated as “a living thing,” in Harlan’s words.²⁹⁶ Practices that stand the test of time can form a shared way of talking about these questions. Analyzing the entire historical spectrum of tradition from ratification to present day moves litigants and courts into a common arena by eliminating temporal bounds and inviting inquiry into why practices came into being and stuck around, thereby shoring up their staying power. Even the most enduring practices may be subject to disagreement about their social meaning or moral value.²⁹⁷ And yet, as Harlan put it, “a decision which builds on what has survived is likely to be sound.”²⁹⁸

Entrenched history-and-tradition tests lack clear answers to the question about just how far back to go or even reach ahead up to the present. This temporal uncertainty emerges in the trilogy itself. In Dobbs, the majority’s historical analysis extends from thirteenth-century British common law until Roe was decided on January 22, 1973.²⁹⁹ Whereas in Bruen, the Court focuses on eighteenth- and nineteenth-century practices,³⁰⁰ in Kennedy, the Court looks instead from the Constitution’s ratification through that of the Fourteenth Amendment.³⁰¹ It is not just the trilogy, either. In McDonald v. City of Chicago and Timbs v. Indiana—two cases that Dobbs cited as examples of the history-and-tradition analysis³⁰²—the time periods for analysis also differed: McDonald covered ratification-era common law until the early nineteenth century,³⁰³ while the examination of relevant social practices in Timbs started with British common law and went not only up to the ratification of the Fourteenth Amendment but all way through to the present.³⁰⁴

2. Constitutional Trimming

An evolving history-and-tradition test starts from the first principle of enduring social practices, from before ratification until the present. Its shared vocabulary of tangible actions and inactions seeks to split the difference between the polarized margins of original meaning and living constitutionalism.

Evolving traditionalism satisfies some (albeit not all) of the considerations that move originalists to be originalists, and that attracts living constitutionalists to living constitutionalism. For originalists, traditionalism curbs judicial discretion by appealing to the longstanding social practices of politically accountable actors or the people they represent. It satisfies the popular sovereignty motivations of originalism through finding expression of the people’s will in diffuse practices over time. Meanwhile, living constitutionalists will find much to like in how evolving history-and-tradition isn’t rigidly fixed to meanings from long-ago eras very different from our own—and how it accedes to social practices that have embedded more recently based on the ethical understandings those practices reflect.

Cass Sunstein casts traditionalist interpretation as forging a constitutional compromise that demands concessions from both originalists and living constitutionalists, an example of what he calls “trimming.”³⁰⁵

Confronted with a disagreement between themselves and their critics, trimmers might conclude not that the original understanding is determinative, but that it is entitled to consideration, and that when precedents do not cut the other way, originalism should be followed. For this reason, some trimmers might be inclined to accept a form of “soft originalism,” giving weight to the original understanding without being bound by it.³⁰⁶

Shedding the least compatible of this ideological baggage can facilitate more discursive engagement on a meaningful common ground. Steering this middle course can be seen as a Goldilocks kind of exercise. Nobody wants to be entirely rigid or entirely fluid. Being too rigid makes you stiff, intransigent, and uncompromising, whereas being too fluid leaves you unmoored, floating, and aimless. DeGirolami argues that traditionalist methodology habituates judges to strike the right balance by thinking “in preservationist and custodial terms, asking them to extend and renew long-lived practices in an ongoing argument about the political virtues they serve.”³⁰⁷ An evolving kind of history and tradition holds particular promise to mediate between the extremes of originalism and living constitutionalism.

C. Remaking Rights

Beyond theoretical debates over constitutional jurisprudence, distinguishing evolving from entrenched traditionalism impacts the practical recognition of fundamental rights in profound and sometimes surprising ways. Fidelity to entrenched traditionalism would call into question rights that are clearly established and rarely contested—medical refusal, interracial marriage, and birth control. On the other hand, evolving traditionalism would not necessarily recognize new rights like medical aid-in-dying, assisted reproduction, and gender-affirming care.

That more dynamic approach also invites the possibility of an evolving right to treatments that the medical profession recognizes as standard-of-care, such as abortion, birth control, in vitro fertilization (“IVF”), and honoring advance directives, including for people who are pregnant when they fall into an irreversible coma.³⁰⁸

An important caveat is in order: the ultimate outcomes of an evolving history-and-tradition test will of course remain complicated and contested. And limited space here doesn’t permit working out definitive answers, especially in contexts as hard as these. The conclusions in this final Section are accordingly preliminary and tentative. The goal is simply to spell out the plausible operation of evolving traditionalism to give a sense of how this interpretive method would apply in practice. We start with the trilogy of Dobbs, Bruen, and Kennedy.

1. Abortion, Guns, and God

Dobbs concludes that “a right to abortion is not deeply rooted in the Nation’s history and traditions,” noting that, by the late-nineteenth century, thirty states “prohibited abortion at all stages except to save the life of the mother.”³⁰⁹ But most historians agree that abortion was in fact legal and common for most of American history, at least in the early stages of pregnancy, while half of the states that Dobbs appealed to did not make abortion a crime at all, let alone one that was prosecuted.³¹⁰ Selective history aside, Dobbs doesn’t reckon with the salient circumstance that, during the civil war era, women were deprived of now-uncontroversial freedoms that range from voting to property ownership.³¹¹ A plurality had put it plainly in the Frontiero pregnancy discrimination case that was decided the same year as Roe: “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.”³¹²

An evolving traditionalism that extends beyond the age of coverture and disenfranchisement could find ample evidence of acquiescence in abortion. The Dobbs majority summarily dismisses the notion that even expanding the lens by another century to when Roe was decided in 1973 would provide social-practice support for a right to abortion. But the liberalization of abortion laws over that period makes it confusing to see how that pre-1973 state of affairs would not support a right to abortion. Nor does the majority even mention the fact of abortion practices that took place after 1973. One reason that Dobbs may have discounted post-1973 practices is that the Court’s intervention in Roe scrambled the signal, making it hard to read them off the public’s will. But the majority in Dobbs doesn’t say, or try to justify this move, beyond appealing to the incomplete history of traditionalism it misleadingly ascribes to Glucksberg.

On Bruen’s Second Amendment traditionalism too, the “definition of ‘arms’ is fixed according to its historical understanding,” yet “covers modern instruments that facilitate armed self-defense.”³¹³ Bruen looks into the nineteenth century, too, but dates the relevant firearm history back to the right of self-defense in the 1689 English Bill of Rights.³¹⁴ Beyond the right’s historic ties to state militias is the longstanding prevalence of trap-gun bans that reserved self-defense to one’s person—state legislation did not protect the use of firearms to defend one’s home or property.³¹⁵ The fixed-in-time account of traditionalism makes much of the gunpowder laws from the late-eighteenth century.³¹⁶

Only the evolving version of history and tradition can account for more recent kinds of gun control regulations. Consider the safe-storage laws enacted in the 1980s, designed to head off pervasive accidental gun deaths, and mass shootings or suicides by minors.³¹⁷ Yet, these are precisely the kinds of social practices that the entrenched traditionalism of Bruen closes its eyes to. There is a long history and tradition supporting Second Amendment rights. But lots of gun control measures that weren’t around in the nineteenth century have become extremely common for much of the twentieth, and not seriously contested until very recently.

In Kennedy, the Establishment Clause case, the Supreme Court again teaches that rights “must be interpreted by reference to historical practices . . . [that] faithfully reflec[t] the understanding of the Founding Fathers.”³¹⁸ Legislative prayers, school prayers, and Sunday observance laws are instructive.³¹⁹ Entrenched traditionalism finds considerable state intervention with religion in all three.³²⁰ There’s the revolutionary-era tradition of opening legislative sessions with prayers, dating back to the First Congress that hired a pastor to deliver them.³²¹ Then there are nineteenth-century norms of daily prayers and religious readings in public schools, accepted as a symbol of patriotic values and moral guidance to preserve a unified and peaceful society.³²² Also, Sunday closing laws were incorporated from the English common law during America’s founding for the purpose of observing Christian faith and facilitating church attendance.³²³

An evolving traditionalism might look very different. Deferring legislative prayers to outside clergy invites less risk of proselytizing or subtle coercion than the newer practice that has divided courts involving prayers led by lawmakers or other officials themselves.³²⁴ Public school prayer itself was held to violate the First Amendment in the 1962 landmark case of Engel v. Vitale.³²⁵ And Sunday closing laws have evolved to replace a religious purpose with a secular one to provide workers with a collective day of rest.³²⁶ Under an entrenched approach to history and tradition, ratification-era social practices deeply root all kinds of government involvement with religion. Only evolving traditionalism provides a determinate basis for rejecting such church/state entanglements.

2. Medical Refusal and Aid-in-Dying

The entrenched history-and-tradition test likely risks ruling out the uncontroversial right to medical refusal, while an evolving approach might not warrant recognition of aid-in-dying. In the 1989 Cruzan case, the Supreme Court recognized the right of competent persons to refuse unwanted medical interventions that extends to the denial of life-sustaining treatment.³²⁷ Cruzan itself appeals to the longstanding embrace of medical refusal in extrajudicial practices that include the common law tort principles governing informed consent and battery, state court landmarks, and state statutory law about vaccines, prisoners, children, and people with mental illness.³²⁸

Despite its rich lineage, the right to refuse life-sustaining treatment would fare poorly under the entrenched history-and-tradition test. When the Fourteenth Amendment was ratified in 1868, there were no ventilators or feeding tubes. The legal doctrine of informed consent itself wasn’t even invented until the twentieth century.³²⁹ Only a general freedom from nonconsensual touch was alive in the common law tort of battery. Neither would a right to assisted suicide be possible under an entrenched history-and-tradition test. It might not be under an evolving test either, at least not yet. The Model Penal Code barred assisted suicide well into the twentieth century.³³⁰ But the landscape has shifted in recent decades. Ten states have some form of legalized assisted suicide, whether legislatively or by voter initiative.³³¹

The scope of these practices remains partial and contested for now, even under the evolving test for history and tradition. But the pendulum is swinging. Evolving traditionalism would not have protected a right to assisted suicide in 1997, consistent with Glucksberg’s decision not to recognize that right. But if more and more states continue to codify a right to aid-in-dying under limited circumstances, that more adaptable history-and-tradition test could well protect that right some decades hence. That makes clear a significant implication of evolving traditionalism: depending on how prevailing social practices take shape, a future court applying this kind of history-and-tradition test could protect certain rights that a court today (or in the past) would and should say lack protection right now.

3. Birth Control, Sexual Intimacy, and Marriage

Justice Clarence Thomas, concurring in Dobbs, advocated “reconsider[ing] all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”³³² This Section considers the entrenched-versus-evolving implications of each in turn, starting with the Court’s 1965 decision in Griswold to affirm a privacy right to birth control.³³³ That right would readily be vindicated under the evolving history-and-tradition test. By the 1930s, the contraceptive movement was large and visible, with birth control clinics opened across the country in a rebranding of what had once been deemed an immoral device now labeled as standard medicine.³³⁴ Contraceptives were widely recognized as essential healthcare and a social norm, even before Griswold and Eisenstadt v. Baird legalized birth control nationwide.³³⁵ But the birth control right may be unlikely to find solicitude under the entrenched approach to history and tradition. As the Dobbs dissent noted, “the American legal landscape in the decades after the Civil War was littered with bans on contraceptive devices.”³³⁶

A right to same-sex intimacy finds ample support under an evolving account of history and tradition, before such rights received recognition in Lawrence.³³⁷ In the era after World War II, dozens of activist groups formed to support sexual minorities.³³⁸ By 1955, the American Law Institute’s Model Penal Code advocated repeal of the sodomy laws.³³⁹ And in 1969, the Stonewall uprising inspired the formation of more than a thousand gay rights organizations nationwide, including the Human Rights Campaign, the Gay Liberation Front, and the Gay and Lesbian Alliance Against Defamation.³⁴⁰ The gay rights movement grew stronger still after Bowers.³⁴¹ In the 1990s and 2000s, state courts struck down several anti-sodomy laws under the equal protection clauses of state constitutions,³⁴² and the handful of remaining bans were rarely enforced.³⁴³

Entrenched traditionalism may look less kindly on the same-sex marriage right that Obergefell recognized under the Equal Protection Clause of the Fourteenth Amendment.³⁴⁴ In the era around the Civil War, sexual orientation was not a suspect class, and marriage was understood as being less about love and companionship than about raising the kids you had, something reserved to a man and woman.³⁴⁵ An evolving history and tradition, by contrast, would account for recognition of same-sex marriage in states like Vermont and Massachusetts by the early 2000s,³⁴⁶ and at least the benefits of civil unions and domestic partnerships in thirty other states in the following decade.³⁴⁷

Slavery and racial subordination are among America’s longest-standing “histories and traditions.” The constitutional reset that was the Reconstruction Amendments left pervasive redlining and institutional segregation, which extended to laws forbidding people of different races from getting married.³⁴⁸ The Supreme Court held that anti-miscegenation laws violated equal protection under the law in the 1967 case of Loving v. Virginia.³⁴⁹

An entrenched account of history and tradition might turn up conflicting evidence.³⁵⁰ On the one hand, anti-miscegenation statutes were on the books at some point in thirty-eight states by the end of the nineteenth century, and in twenty-nine still by 1951.³⁵¹ On the other hand, some states had begun to repeal their interracial marriage bans even before the Fourteenth Amendment, while others rejected proposals to write miscegenation bans into their state constitutions.³⁵² Only an evolving approach could account for the fourteen states that had repealed their prohibitions on interracial marriage in the decade or so before Loving—and the fact that sixteen bans remained up until that judgment, including Alabama’s until 2000.³⁵³

4. Fetal Rights and Assisted Reproduction

For the pro-life movement, the next major campaign after the demise of Roe will be a fight for fetal personhood—recognition that a fetal person has rights to due process and equal protection—and quite likely, a conclusion that liberal abortion laws are unconstitutional.³⁵⁴ Scholars from John Finnis to Josh Craddock argue that, as a matter of original public meaning, the word “person” in the Fourteenth Amendment applies from the moment of fertilization.³⁵⁵ Personhood claims have also captured headlines in contexts beyond abortion. An Alabama case in early 2024 involved several couples who sued over the wrongful destruction of embryos they had created during fertility treatment in the hopes of using them to have children.³⁵⁶ In LePage v. Center for Reproductive Medicine, the couples pursued a number of legal theories, including a negligence claim against the fertility clinic. The Alabama Supreme Court vindicated their action for wrongful death on the ground that the state’s Wrongful Death of a Minor Act applied to “all unborn children, regardless of their location.”³⁵⁷

LePage had the effect of pausing IVF in the state, as providers and intermediaries involved in the practice feared that even inadvertently destroying an embryo could lead to serious legal liability.³⁵⁸ The decision did not resolve the constitutional status of fetal personhood, even for the purpose of state law. But Chief Justice Tom Clark gestured toward a possible broader ruling in a concurring opinion, writing that “all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”³⁵⁹ LePage made clear that recognizing personhood rights for the unborn would have implicated not just abortion but IVF as well. Conservative and progressive scholars have doubted originalist arguments for unborn personhood under the Fourteenth Amendment.³⁶⁰ At any rate, history and tradition may offer a more straightforward path to fetal personhood. Still, personhood proponents would struggle under an entrenched history-and-tradition test. For centuries, colonies, territories, and states allowed abortion before quickening, and British legal authorities dating back to Blackstone conferred the status of “natural persons” only after “an infant is able to stir in the mother’s womb.”³⁶¹ Even in the nineteenth century, when antiabortion doctors mobilized widely to criminalize abortion, no similar movement developed on behalf of fetal rights, whether at common law or under the Constitution.³⁶²

Surprisingly, an evolving history-and-tradition test would look kindlier on claims to fetal personhood. The 1960s is when a robust fetal rights movement began to take shape and forge a powerful political partnership with the Republican Party.³⁶³ A commitment to fetal rights, once dismissed as Catholic dogma, now holds sway among conservative evangelicals, Mormons, and some orthodox Jews.³⁶⁴ Support for fetal personhood has room to grow on the political right. Fetal rights still find too little support in social practices today, when polls show that the smallest fraction of the population approves of abortion bans early in pregnancy.³⁶⁵ So an evolving history-and-tradition test would not yet give champions of unborn personhood what they want. But history and tradition is their best bet in future constitutional struggles.

What of a right to assisted reproduction? IVF combines egg and sperm in a laboratory before testing the resulting embryo by implanting it into someone who can carry it to term. It is the most effective way to have biologically related kids for many single people, cancer patients, and infertile or same-sex couples.³⁶⁶ Many fear that this social practice will be forbidden if the law recognizes fetal personhood. In the nineteenth century, the notion of conceiving a child apart from sexual intercourse was far-fetched, let alone in some way that would make it possible to pick and choose certain aspects of offspring makeup before birth.³⁶⁷ IVF wasn’t invented until the late 1970s, and a right to access it fails under entrenched traditionalism.³⁶⁸ As early as 1897, the Catholic Church took a stand against any form of “artificial insemination.”³⁶⁹ Most physicians remained hostile to the idea of assisted reproduction during that time, while courts and commentators compared any use of donor sperm to adultery.³⁷⁰ A right to these and other forms of assisted reproduction would accordingly find next to no support under an entrenched form of traditionalism.

A right to assisted reproduction stands a better but still outside chance under the evolving test. Donor insemination has been relatively common since the 1930s and 1940s.³⁷¹ By 2018, a third of Americans either know someone who has used assisted reproductive technologies or have used it themselves.³⁷² Twenty-one states now require insurance coverage for infertility treatment, including fifteen that address IVF specifically.³⁷³ Over fifty percent of large employers (those with more than 20,000 employees) covered IVF in 2022, compared with only thirty-six percent in 2015.³⁷⁴ Still, a tradition favoring IVF access remains contested: federal legislation to enhance IVF access has stalled,³⁷⁵ and many patients live in states without IVF coverage or depend on state or federal Medicaid, which does not cover assisted reproductive technologies.³⁷⁶ Some antiabortion groups and their lawmakers in state legislatures frame IVF as lawless and immoral and have ambitions to restrict or ban it—an ambition that has become even clearer after LePage.³⁷⁷ A half-century of evidence doesn’t yet support a right to access IVF under the evolving-tradition test. But that may be changing.

5. Gender-Affirming Care and Conversion Therapy

The two history-and-tradition tests also have surprising implications for other due process claims. Two claims making headlines in the wake of state bans are conversion therapy and gender-affirming care. Parents have asserted due process rights to each form of medical treatment on behalf of their minor children—designed either to convert those youths’ sexual orientation from gay to straight, or to temporarily block puberty-related changes to breasts, muscle, and voice to buy time for adolescents who consistently identify as transgender to consider more permanent changes later in adulthood.³⁷⁸ The Supreme Court has held that the “interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests.”³⁷⁹ But the Court has also made clear that clinical decisions on their kids’ behalf must be weighed against the State’s own concern for the health and wellbeing of its vulnerable citizens.³⁸⁰ That leaves uncertain any rights claims by parents to access treatments for their children that the government has forbidden.³⁸¹

Entrenched traditionalism might look more favorably on parental rights to conversion therapy, notwithstanding overwhelming evidence that it harms the very children it purports to help. Conversion therapy traces to the Civil War era, when the medical profession widely regarded homosexuality as “either a criminal act or a medical problem, or both,”³⁸² and authorized parental attempts to “cure” it through invasive measures like lobotomy and castration that have since given way to hypnosis and talk therapy.³⁸³ Parental claims to gender-affirming treatments stand little chance under the entrenched history-and-tradition test. For one, hormones like estrogen and testosterone weren’t discovered until the 1920s and 1930s.³⁸⁴ That puberty blockers and cross-hormone therapy weren’t around when the Fourteenth Amendment was ratified is all the Sixth and Eleventh Circuit needed to conclude that “the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”³⁸⁵

Under an evolving test, parental claims to gender-affirming care could stand an outside chance, while conversion therapy does not. Conversion therapy peaked in popularity in the 1960s when electroconvulsive therapy became increasingly common and the American Psychiatric Association briefly defined homosexuality as a mental disorder from 1968 to 1973.³⁸⁶ But healthcare organizations have roundly rejected conversion therapy over the ensuing decades as clinical evidence made clear that it is more likely to harm than benefit those distressed by a conflict between their sexual desires and their faith or family—especially if it reflects a disparaging view of same-sex attraction that inspires self-hatred.³⁸⁷ About half of the fifty states now ban the practice.³⁸⁸

The evolution of hormone therapy to affirm gender in minors has taken a different path.³⁸⁹ Puberty-blocking injections and implants emerged with programs in the Netherlands in the early 2000s.³⁹⁰ In 2009, the Endocrine Society published guidelines recommending the use of puberty blockers for adolescents whose distress, experienced from persistently identifying with a gender that doesn’t match their bodies’ sex-based traits, is not alleviated through psychosocial counseling and behavioral support.³⁹¹ By 2014, thirty-two clinics in the United States offered this treatment alongside parental support, with that number rising to about sixty by 2022.³⁹² Until 2023, gender affirming care was routinely provided to qualifying minors in forty-six states.³⁹³ But the months since have now presented a serious challenge for any rights claims under the evolving history-and-tradition test: the flurry of recent bans have left gender-affirming care legal in only thirty-one states.³⁹⁴

CONCLUSION

In declaring that the Supreme Court has “long asked whether the right is ‘deeply rooted in [our] history and tradition,” Justice Alito wrote that a history-and-tradition test emerged to constrain a more freewheeling living constitutionalism.³⁹⁵ His story takes off the stage entirely the heady days of substantive due process in the 1960s and 1970s that helped to forge the Roe decision. A history-and-tradition test, in turn, emerged in the 1980s and 1990s as the Justices retreated from the excesses of earlier decades. As Alito tells it, Glucksberg required the Justices to “exercise the utmost care whenever . . . asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”³⁹⁶ In other areas of doctrine, the Court’s approach to history and tradition is different, but the common denominator is the same: to count, a tradition must be rooted in the ratification era. From there, it is timeless and unchanging.

This origin story is compelling. The problem is that it is not true: neither where the test came from nor what it is. For decades before Glucksberg, social movement contestation over the role of history and tradition had wrestled with the very meaning of that test. Progressive movements, at times, contended that the nation’s traditions evolved to include those once left out of old status hierarchies, and that any legitimate understanding of constitutional tradition included the present and recent past as much as it did Blackstone. Some of the Justices, in turn, came to define an evolving history-and-tradition test as a middle ground between a true living constitutionalism and a hidebound constitutionalism anchored only to one point in an imagined past.

Conservative movements, in turn, forged their own ideas of a history-and-tradition test, insisting that such an approach had always properly honored only traditions that reached back to the time of the nation’s founding—or before. Members of the conservative legal movement found this history-and-tradition test an effective way to bridge divides within an emerging coalition on the right; a way to reiterate shared commitments to judicial restraint while codifying deeply held beliefs and values on subjects from religious freedom to abortion.

Understanding the Court’s contemporary uses of history and tradition as the byproduct of social movement conflict reveals the other normative commitments that reliance on history and tradition disguises. Seeing it in historical context also calls into question the precedential pedigree the Dobbs Court claims for both its decision and its vision of traditionalism that overlooks a very different version of that test. And that one we have forgotten has profound implications for remaking the controversies of our time.

98 S. Cal. L. Rev. 1

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Dov Fox*

* Herzog Research Professor of Law, University of San Diego School of Law.

Mary Ziegler†

† Martin Luther King Jr. Professor of Law, University of California, Davis School of Law. Thanks for insights to Vic Amar, Niko Bowie, Joseph Blocher, Jud Campbell, Marc DeGirolami, Murray Dry, Sherif Girgis, Felipe Jiménez, Sally Gordon, Laura Kalman, Ken Kersch, Mike Ramsey, Eric Rueben, Stephen Sachs, Neil Siegel, Reva Siegel, and Aaron Tang. We are grateful to Sasha Nuñez and Liz Parker for editing support. Caroline Bulger, Jenna Gatto, Alyssa Guthrie, Emmanuela Kubari, Bailey Neal, Emily Serleth, and Joseph Wilhardt provided wonderful research assistance. We are grateful for expert edits and cite-checking to Charles Murphy, Jacob Karlin, and the staff of the Southern California Law Review.

Public Protest and Governmental Immunities

October 2024October 2024Timothy Zick*

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of monetary actions against federal officials. Qualitatively, the study shows protesters’ rights are underdeveloped in several respects, including recognition of the right to record law enforcement and limits on law enforcement’s use of force. The study lends additional support and new urgency to calls for qualified immunity reform or repeal, as well as reconsideration of other governmental immunities. It also concludes that much more than money damages for injured plaintiffs is at stake. Lack of adequate civil remedies may significantly chill future public protest organizing and participation.

INTRODUCTION

Between January 2020 and June 2021, there were more than thirty thousand public demonstrations in the United States.¹ In what were perhaps the largest public protests in American history, an estimated fifteen to twenty-six million protesters gathered in the nation’s public streets after George Floyd’s murder.² Although the demonstrations were predominantly peaceful, state and local law enforcement used aggressive policing methods to restrict and suppress them.³ Officers beat protesters with batons, rammed them with bicycles, used dangerous crowd containment strategies, arrested protesters without probable cause, used tear gas and other “less-lethal” force against peaceful assemblies, and unlawfully arrested legal observers including members of the press.⁴ In several cities, including Portland and the District of Columbia, federal law enforcement and other agency personnel also engaged in aggressive and violent protest policing.⁵ Former President Donald Trump told state governors to “dominate” the protesters and send them to jail.⁶

Many of these law enforcement actions violated protesters’ First Amendment and Fourth Amendment rights. Protesters can sometimes obtain judicial injunctions preventing law enforcement from using such tactics in future protests.⁷ Police departments sometimes, though far too infrequently, discipline officers for violating constitutional rights and other misconduct.⁸ However, injunctive relief and departmental discipline do not compensate for the physical and emotional injuries protesters experience at the hands of aggressive and sometimes violent law enforcement officers. As Joanna Schwartz has observed, “for many people, filing a lawsuit [for damages] is the best available way to punish police when they violate the law and give police reason not to violate the law again.”⁹

Both 42 U.S.C. § 1983 (“section 1983”)¹⁰—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics¹¹ allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights). Section 1983 applies to state and local officials, while Bivens applies to federal officials. However, protesters face a daunting array of obstacles to recovering civil damages under these laws.¹² The constitutional standards that govern protesters’ underlying First Amendment and Fourth Amendment claims may offer less-than-robust substantive protection for protesters’ activities. But even with respect to some egregious violations of protesters’ constitutional rights, governments and government officials possess broad legal immunities that often prevent recovery of civil damages.

Under section 1983, unless officers violate what the Supreme Court has described as “clearly established law,” they cannot sue officials for money damages.¹³ The doctrine of “qualified immunity” shields “all but the plainly incompetent” law enforcement and other officials from liability.¹⁴ In general, plaintiffs cannot recover unless they can show that “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority” have recognized the underlying misconduct as a constitutional violation.¹⁵ Municipal employers, who have much deeper financial pockets than individual officers, cannot be held accountable unless plaintiffs can prove they adopted and enforced a “policy or custom” of violating protesters’ constitutional rights.¹⁶ Although this evidence is hard to come by, plaintiffs are required to present it as early as the pleadings stage of a lawsuit.¹⁷

In recent years, the Supreme Court has further narrowed the circumstances in which local and federal officials can be sued for civil rights violations under section 1983 and Bivens. For example, in Nieves v. Bartlett, a 2019 decision, the Court held that so long as officers have probable cause to arrest protesters for some criminal offense, however minor, they cannot pursue a First Amendment claim that the officer retaliated against them for exercising expressive rights—unless they can prove law enforcement singled them out and treated them unequally.¹⁸ With regard to Bivens suits against federal officials, the Court has assumed such claims can go forward, but has also strongly suggested they are unwarranted extensions of Bivens.¹⁹ If these claims are rejected, protesters will be barred from suing National Park Service officials, U.S. Capitol police officers, U.S. Secret Service agents, and other federal defendants for money damages in connection with protest policing.

Protesters whose constitutional rights are violated by law enforcement and other officials deserve to be compensated for their injuries. Further, as the 2020–2021 mass protests demonstrated, officials who violate First Amendment, Fourth Amendment, and other constitutional rights need to be deterred from doing so and held accountable.²⁰ To the extent protesters believe officials cannot or will not be held fully accountable for even egregious and abusive constitutional violations, they may be chilled from exercising protest-related rights.

Despite the importance of these remedial and other concerns, there has been no systematic effort to measure the effects governmental immunities have on protesters’ ability to obtain compensation for their constitutional injuries.²¹ To obtain a measure of these effects, this Article presents the findings of a unique quantitative and qualitative study. Unlike prior studies, which focused on qualified immunity across cases and contexts, this study focuses on the fate of First Amendment and Fourth Amendment claims brought by plaintiffs against state, local, and federal officials in public protest cases.²² The study is based on three datasets consisting of more than three hundred federal court decisions and four hundred claims. In addition to qualified immunity in section 1983 cases, the study examines governmental immunities in First Amendment retaliation cases and actions against federal officials. Decisions in each unique dataset were coded to assess defendants’ success in invoking immunities to defeat protesters’ damages claims. Finally, the study provides a qualitative analysis of protesters’ First Amendment and Fourth Amendment rights. This part of the study identifies the types of constitutional claims plaintiffs typically pursued in public protest cases and the substantive “law” as the Supreme Court and lower federal courts have developed it.

The study shows that individual officers had considerable success, particularly at the summary judgment stage, defeating protesters’ section 1983 claims, and municipal defendants had even greater success. Defendants also enjoyed substantial success defeating First Amendment “retaliation” claims under the standard adopted in Nieves, often based on arrests for minor offenses. Owing to the Supreme Court’s recent skeptical pronouncements regarding Bivens claims, the study concludes that defendants are likely to defeat future First Amendment and Fourth Amendment damages claims against federal defendants. While some of the study’s quantitative findings differ from those in prior studies, in general, the results support criticisms of qualified immunity and other immunity doctrines.²³ As applied in public protest cases, qualified immunity does not serve the policy goals the Supreme Court has ascribed to the doctrine, including providing a means of redress for constitutional injuries, deterrence of unlawful conduct, and shielding officers from the burdens of discovery.²⁴ Further, the qualitative portions of the study demonstrates the relatively weak rights protester plaintiffs possess and supports the criticism that qualified immunity doctrine has resulted in a lack of development of substantive rights.²⁵ Based on these findings, the study concludes that without repeal or reform of governmental immunities, public protest itself may be significantly imperiled.

From here, the Article proceeds in four parts. Part I describes the First Amendment and Fourth Amendment rights at stake in the public protest context and the governmental immunities that affect recovery of monetary damages for rights violations. Part II describes the study design and elaborates further on the content of the three unique datasets. Part III presents the study’s quantitative and qualitative findings regarding qualified immunity, municipal liability, First Amendment retaliation claims, and lawsuits against federal officials under Bivens. Part IV proposes several reforms and actions to strengthen protesters’ rights and remedies.

I. PROTESTER INJURIES AND GOVERNMENTAL IMMUNITIES

Protesters who are injured during a public demonstration or other event can bring various legal claims against those responsible for their injuries. The focus in this study is on alleged violations of First Amendment and Fourth Amendment rights by government officials and entities, which are the most common claims pursued by injured protesters. A variety of officials and governmental entities participate in policing public protests. Possible defendants in civil rights lawsuits include state and local law enforcement, U.S. Secret Service, National Park Service, and other federal agency officials, and state or local governments. Each type of defendant can rely on robust governmental immunities. Separately and in combination, these immunities are obstacles for protesters seeking compensation for constitutional injuries.

A. Protesters’ Rights and Remedies

Protesters can experience a variety of constitutional injuries when they participate in demonstrations and other public events. Although other rights may come into play, the two principal federal constitutional protections available to protesters are the First Amendment, which protects speech and peaceable assembly, and the Fourth Amendment, which generally prohibits unreasonable searches and seizures.²⁶

Protesters may be injured owing to a wide array of First Amendment violations.²⁷ For example, officials may unlawfully deny protesters access to “public forums,” including public parks, streets, and sidewalks, where they have recognized rights to speak and assemble.²⁸ Governments may rely on invalid content-based speech regulations or enforce unlawful speech zones and other regulations that unduly restrict speech and assembly.²⁹ Law enforcement officers may also unlawfully retaliate against protesters for exercising their First Amendment rights, confiscate their signs and displays, prohibit the recording of police officers at public demonstrations, and engage in abusive protest policing methods.³⁰

Protesters may also suffer physical and other injuries stemming from Fourth Amendment violations.³¹ They may be subject to arrest without probable cause or unlawfully detained.³² Protesters may also be injured when police officers use excessive force, including physical force used during an arrest, handcuffing and other types of restraints, and use of less-lethal munitions including tear gas, pepper spray, and projectiles.³³ These violations may cause physical and psychological injuries.

There are two general types of remedies protesters can pursue when they are the victims of these or other constitutional torts. They can seek injunctive relief against government actions and policies they allege violate the U.S. Constitution (or state constitutional provisions). For example, peaceful protesters expelled from a public park can seek a court order mandating they and others be allowed to protest there in the future. Or protesters could sue for an injunction preventing police from firing tear gas into crowds of peaceful protesters.³⁴

Enjoining current or future First Amendment or Fourth Amendment violations is an important remedy. However, injunctive relief is forward-looking and declaratory. It does not compensate protesters for physical and other injuries sustained during a demonstration or other protest event because of constitutionally tortious conduct.

The other kind of relief protesters can seek in the event of constitutional violations is an award for monetary damages against individual officials and their government employers. Both section 1983 and the Supreme Court’s decision in Bivens allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights).³⁵ Section 1983 applies to state and local officials, while Bivens applies to federal officials. Both section 1983 and Bivens protect against deprivations of rights secured by the U.S. Constitution. Section 1983 explicitly authorizes such claims, while Bivens implies such claims from constitutional rights provisions.

Civil rights suits for money damages are a critically important means of vindicating constitutional rights. Owing to the infrequency of prosecutions brought against law enforcement for civil rights violations and the reluctance of police departments to investigate and punish their own, a lawsuit for damages may be the only way for a protester who has been injured to obtain some measure of justice.³⁶ Monetary relief compensates injured protesters for physical, economic, and other kinds of tangible harm. It can also have deterrent effects in terms of individual officer actions and municipal policies. As in other legal contexts, damages awarded for constitutional violations are intended to make injured parties whole. The damages include not only monetary and out-of-pocket expenditures, but also recovery for pain, suffering, and emotional distress. When plaintiffs prevail in federal civil rights lawsuits, they are also entitled to recover attorneys’ fees.³⁷

Although my study focuses on federal constitutional claims, protesters can sue under state civil rights laws and precedents, which generally adopt similar qualified immunity restrictions in cases involving violation of state constitutional rights. They can also bring state common law personal injury claims including assault, battery, false arrest, damages to property, and infliction of emotional distress.

Protesters’ remedial menu sounds expansive. However, as this study confirms, protesters’ claims for monetary damages against government officials and municipal entities are substantially constrained by an offsetting menu of liability-limiting immunities and related doctrines. As a result, protesters injured while engaged in lawful and peaceful expressive activities often find it difficult or impossible to hold government officials accountable for their actions.

B. Section 1983 and “Qualified Immunity”

Government officials may be entitled to “qualified immunity” in section 1983 and Bivens lawsuits. Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations.³⁸ When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.) As a general matter, officials enjoy broad legal immunity from civil rights claims under this doctrine. As the Supreme Court has observed, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”³⁹

Historically, under Supreme Court precedents, whether a defendant was entitled to qualified immunity turned on the subjective “good faith” of the official who committed the alleged violation.⁴⁰ In 1982, however, the Supreme Court replaced that subjective standard with a new test framed in “objective terms.”⁴¹ Under the new test, officials are personally immune from monetary liability “even if they act in bad faith, so long as there is no prior court decision with nearly identical facts.”⁴² As the Court has explained, as long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” police officers and other officials are not liable for money damages under section 1983.⁴³

The Court has made clear its new standard is intended to be more protective of government officials than the “good faith” test. At the same time, it has also stated that the standard provides “no license to lawless conduct.”⁴⁴ According to the Court, “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”⁴⁵

However, as Joanna Schwartz has observed after close examination of section 1983 qualified immunity cases, “the Court’s decisions over the next forty years have created a standard that seems virtually impossible to meet.”⁴⁶ Since the Court adopted its objective test, it has applied the doctrine in several ways that have made it far more favorable to defendants.

First, the Supreme Court adopted a heightened pleading standard for complaints in civil cases. The new standard requires that to avoid having claims dismissed, plaintiffs must state facts supporting a “plausible” claim for relief.⁴⁷ Schwartz has observed that this standard “may be particularly difficult for plaintiffs in civil rights cases to overcome.”⁴⁸ In some kinds of cases, including those that focus on the intent of government actors or the existence of local government policies or practices, “[a] plaintiff will not likely have any evidence . . . until they get to discovery.”⁴⁹

Second, to show the law was “clearly established,” the Supreme Court has generally required plaintiffs to point to an already existing authoritative judicial decision (or perhaps multiple decisions), with substantially similar facts. The decisional landscape is narrow. Protester plaintiffs must identify “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.”⁵⁰ Unpublished decisions do not count, and courts are reluctant to consider district court decisions.⁵¹ The clearly established standard expands the scope of the qualified immunity defense by requiring that plaintiffs identify Supreme Court or published federal appeals court decisions that are identical, or nearly identical, to the one being litigated.⁵² For example, plaintiffs’ allegation that officers’ use of a particular protest policing method violated their constitutional rights would have to point to published appeals court precedents establishing that use of this method was a clearly established violation of the First Amendment or Fourth Amendment.

Third, the Court has instructed that in assessing clearly established law, courts should not define the inquiry “at a high level of generality.”⁵³ As a result, “[c]ourts have granted officers qualified immunity even when they have engaged in egregious behavior—not because what the officers did was acceptable, but because there wasn’t a prior case in which that precise conduct had been held unconstitutional.”⁵⁴

Fourth, in 2009, the Court altered the way in which courts apply qualified immunity doctrine in a manner that created another significant obstacle for civil rights plaintiffs.⁵⁵ In an earlier decision, the Court held that when assessing a qualified immunity defense, courts must first determine whether there was a violation of a constitutional right and then address whether the law was clearly established as to that right.⁵⁶ However, the Court’s current approach allows courts to grant qualified immunity based solely on whether the law in question was clearly established—that is, without determining whether there was a constitutional violation.⁵⁷ This creates a catch-22 for civil rights plaintiffs. If courts resolve cases based on the lack of clearly established authority, there will be fewer precedents defining constitutional violations.⁵⁸ That situation, in turn, results in decisions concluding that officials are not liable because of a lack of clearly established law.⁵⁹ According to critics, it also has the effect of rendering constitutional protections “hollow.”⁶⁰ By allowing courts to rely on a lack of clearly established law without ruling on the underlying constitutional claim, the Court “perpetuates uncertainty about the contours of the Constitution and sends the message to officers that they may be shielded from damages liability even when they act in bad faith.”⁶¹

Fifth and finally, the Court’s construct of a “reasonable officer” has shifted over time to grant government officials broader deference. In a 1986 decision, the Court famously wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”⁶² Since then, the Supreme Court has stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer”⁶³ or “every reasonable official.”⁶⁴ As one scholar observed, this shift implies “that in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’ ”⁶⁵

As Joanna Schwartz has observed, the Court has “[created one additional qualified] immunity hurdle for plaintiffs: defendants’ right to immediately appeal any qualified immunity denial.”⁶⁶ Under normal procedural rules, a litigant would have to wait until the court enters a final judgment in the case to file an appeal. The special appeals process in qualified immunity cases can add “months or years to the case and dramatically increas[e] the costs of litigation” for plaintiffs.⁶⁷

The Supreme Court has offered some general justifications for its qualified immunity standards. It has asserted that qualified immunity achieves a “balance” between allowing victims to hold officials accountable and minimizing “social costs” to “society as a whole.”⁶⁸ Noting that “claims frequently run against the innocent as well as the guilty,” the Court has identified four “social costs.”⁶⁹

First, the Court has explained that the doctrine aims to avoid “the expenses of litigation” by allowing district courts to dismiss suits against officers at early stages in the litigation—and without making fact-intensive inquiries into a particular officer’s motivations.⁷⁰ Second, and relatedly, the Court expressed concern that requiring officials to respond to such litigation can “diver[t] . . . official energy from pressing public issues.”⁷¹ Third, the Court worried that the threat of litigation would “deter[] . . . able citizens from acceptance of public office.”⁷² Finally, the Court noted that the threat of lawsuits could chill lawful law enforcement conduct. It posited “there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’ ”⁷³ Along similar lines, the Court explained that the doctrine of “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”⁷⁴

The Court has also defended qualified immunity’s focus on clearly established law on the basis that it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation. It first articulated this idea in an early decision, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”⁷⁵ Later, the Court explained: “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”⁷⁶ As the Court has observed, “the focus” of qualified immunity is “whether the officer had fair notice that her conduct was unlawful.”⁷⁷

Critics have offered strong challenges to these justifications and to qualified immunity generally.⁷⁸ Some have attacked qualified immunity as both bad law and bad policy.⁷⁹ However, at least for the time being, the Supreme Court appears committed to retaining the doctrine.

C. Municipal Liability

Qualified immunity doctrine applies to claims against individual government officials. However, protesters can also sue municipalities, counties, and other government bodies under section 1983.

Holding governmental entities liable for constitutional violations is important for several reasons. First, these entities have much deeper pockets than individual law enforcement officers.⁸⁰ Second, holding employers liable for constitutional violations caused by their actions or policies puts pressure on those employers to change their unconstitutional behavior.⁸¹ Third, assuming the unconstitutional harm emanated from the employer, it is just to hold it, as opposed to individual officers following the employer’s commands, directly responsible for the violations.⁸²

In Monell v. Department of Social Services, the Supreme Court held that a municipal government can be held liable under section 1983 for constitutionally tortious actions.⁸³ However, under Monell and subsequent precedents, the Court has significantly narrowed the path to recovery.⁸⁴

Local governments can be held liable under section 1983 for enacting unconstitutional policies.⁸⁵ They can also be held liable if an official with “final policymaking authority” violates the Constitution.⁸⁶ However, these theories are “uncommonly relied upon” because they require plaintiffs demonstrate constitutional wrongdoing “at the highest levels of government.”⁸⁷ “Final policy makers” such as local police chiefs are rarely directly involved in applying unconstitutional policies.⁸⁸ Moreover, as Schwartz has observed, “local governments do not usually adopt policies that are unconstitutional on their face—a policy requiring officers to use excessive force, for example, or requiring officers to arrest people who exercise their First Amendment free speech rights.”⁸⁹

Most commonly, to establish Monell liability, plaintiffs must demonstrate a deprivation of a federal right occurred because of a “policy or custom” of the local government’s legislative body or of those local officials whose acts may fairly be said to be those of the municipality.⁹⁰ The informal policy or custom alleged to have caused the constitutional injury must be “so persistent and widespread as to practically have the force of law.”⁹¹ Under the policy or custom theory of section 1983 liability, local governments cannot be held liable for the actions of their employees solely because of their employment status.⁹² Rather, an employee must be acting pursuant to a municipal policy or custom, and the employer can only be held liable if one of their employees has committed an underlying constitutional violation pursuant to the policy or custom.⁹³

One theory or basis of policy or custom municipal liability that is particularly germane to public protest cases is the charge that local governments failed to train and supervise law enforcement and other officers.⁹⁴ As with other theories, however, it is very difficult to prevail on this claim. Courts have essentially treated the way a police force chooses to train its officers as a matter of policy not generally subject to judicial second-guessing in civil rights lawsuits. As the Supreme Court has noted, “the inadequacy of police training may serve as the basis for § 1983 liability,” but “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”⁹⁵

At each stage of litigation, protester plaintiffs face severe challenges in terms of alleging and proving a policy or custom sufficient to hold local governments accountable. At the complaint-drafting stage, plaintiffs often lack access to the facts necessary to allege an informal policy or custom.⁹⁶ Thus, they may not be able to survive a local government’s motion to dismiss for failure to meet basic pleading requirements. Even at later stages of litigation, plaintiffs are likely to struggle to adduce evidence not just that their constitutional rights were violated, but that any violations were caused by an informal policy or custom. Among other issues, the Supreme Court “has not clarified what can serve as evidence of prior constitutional violations sufficient to put police chiefs on notice that their officers need better training or supervision.”⁹⁷

The municipal liability standards have resulted in a complex, stringent, and “nonsensical” standard of municipal liability.⁹⁸ As one commentator observed, “[the] doctrine of municipal liability is convoluted and can require difficult inquiries into which city officials are ‘policymakers’ under state law on local government, into whether a[n] official was acting in a ‘local’ or ‘state’ capacity, into the extent of departmental ‘custom’ authorizing constitutional violations, into individual cities’ training and hiring processes, and into demanding questions about causation and fault.”⁹⁹

D. First Amendment “Retaliation” Claims

In addition to the many challenges posed by general qualified immunity doctrines under section 1983, the Supreme Court has recently adopted new liability limits on a specific type of claim based on retaliation for the exercise of First Amendment rights. The Court has recognized a general defense to such claims based on a finding of probable cause to arrest the speaker for any violation of law.

The First Amendment prohibits government officials from subjecting individuals to retaliatory actions because they engaged in protected speech.¹⁰⁰ To succeed on a First Amendment retaliation claim, plaintiffs must prove they engaged in a constitutionally protected activity, the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and the intent to chill speech.¹⁰¹

These claims have always been difficult to win. Proving retaliatory motive is difficult, but in any event not sufficient. The speaker must show that the adverse action would not have been taken absent the official’s retaliatory motive.¹⁰² For example, suppose participants arrested at a public protest claimed law enforcement restricted or suppressed their speech in retaliation for the message they conveyed. To prevail, plaintiffs must show the officer would not have arrested them or interfered with their protected speech “but for” the retaliatory reason. If the officer can show the protesters were obstructing traffic or there was any other non-retaliatory reason for the arrest, the First Amendment claim would fail.

One long-unsettled question in such cases was whether the existence of probable cause to arrest a speaker precluded a First Amendment retaliation claim brought under section 1983. In Nieves v. Bartlett, the Supreme Court answered this question in the affirmative.¹⁰³

In Nieves, the Court upheld the dismissal of a First Amendment retaliation claim brought by an individual arrested at a festival after he exchanged heated words with officers assigned to police the event. The Court held that when speakers allege officers arrested them in retaliation for the exercise of First Amendment activities, probable cause for the arrest is usually a complete defense.¹⁰⁴ Echoing its justifications for adopting the general qualified immunity standards, which were discussed earlier, the Court indicated it was concerned that officers who must often make “split-second” decisions when deciding whether to arrest will sometimes rely on the suspect’s protected speech in doing so.¹⁰⁵ The Court also reasoned that determining whether the arrest was in retaliation for the speech in such cases would often be difficult.¹⁰⁶ Thus, it concluded plaintiffs should be required in retaliation cases to plead and prove the arrest was objectively unreasonable before inquiring into the official’s subjective mental state.¹⁰⁷

The Nieves standard applies in a broad variety of contexts. However, the Court justified it using a protest-related example. The Court was concerned, it said, that “policing certain events like an unruly protest would pose overwhelming litigation risks” for officers who arrest participants.¹⁰⁸ “Any inartful turn of phrase or perceived slight during a legitimate arrest,” the Court worried, “could land an officer in years of litigation.”¹⁰⁹ The Court was concerned officers would be deterred from discharging their duties or “would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive—a result that would leave everyone worse off.”¹¹⁰

The Nieves rule is subject to an exception. The Court concluded “the no-probable-cause rule should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”¹¹¹ If a plaintiff produces this comparative evidence, the burden shifts to the official to show some non-retaliatory basis for the arrest.¹¹²

The Nieves rule makes it more difficult for protesters, reporters, and others attending or participating in a public protest to demonstrate they were arrested in retaliation for their communications or other First Amendment–protected activities.¹¹³ As the data from this study confirm, in most cases it will mean that probable cause to arrest a speaker for any offense, however minor, will negate a First Amendment retaliation claim.¹¹⁴

E. Damages Claims Against Federal Officials

In Bivens, the Court implied a cause of action for damages against federal officials who violate individuals’ rights under the Constitution.¹¹⁵ The claim in Bivens was based on a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures.¹¹⁶ The Court has also recognized Bivens actions for Fifth Amendment and Eighth Amendment violations.¹¹⁷ However, during the past four decades, the Court has not recognized any additional Bivens claims. It has become increasingly skeptical of Bivens lawsuits in general, and specifically in the context of First Amendment and Fourth Amendment claims.¹¹⁸ At this juncture, it is not clear protesters have any right to sue federal officials for damages relating to First Amendment or Fourth Amendment violations.

According to the Court, Bivens and its progeny “were the products of an era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in the text of the provision that was allegedly violated.”¹¹⁹ The Court has criticized this “ancien regime,” noting that “[i]n later years, [it] came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power.”¹²⁰ Accordingly, the Court noted, “for almost 40 years,” it has “consistently rebuffed requests to add to the claims allowed under Bivens.”¹²¹

In 2017, the Court outlined a two-step framework intended to limit the expansion of Bivens remedies.¹²² Under this framework, a court must first consider whether a case “arises in a ‘new context’ or involves a ‘new category of defendants.’ ”¹²³ The Court’s “understanding of a new context is broad.”¹²⁴ The standard is whether “the case is different in a meaningful way from previous Bivens cases” decided by the Court.¹²⁵ If so, the court must “ask whether there are any ‘special factors that counsel hesitation’ about granting the extension.”¹²⁶

According to the Court, “special factors” are rooted in concerns about the separation of powers among the branches of federal government.¹²⁷ They include, but are not limited to, the existence of alternative remedies and respect for coordinate branches of government. Thus, a court must “consider the risk of interfering with the authority of the other branches, . . . ask whether ‘there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy’ . . . and ‘whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.’ ”¹²⁸ If any factor causes a court to hesitate, the court should “reject the request” to recognize the Bivens claim.¹²⁹ In general, the Court has described the expansion of Bivens as “a disfavored judicial activity.”¹³⁰

Although the Court has assumed First Amendment claims may be brought under Bivens, it has never expressly held as much and has sometimes expressed skepticism regarding such claims.¹³¹ In Egbert v. Boule (2022), the Court ruled that plaintiffs could not sue federal officials for money damages based on First Amendment retaliation and Fourth Amendment excessive force claims.¹³² The Court rejected both claims on the grounds that implied actions under Bivens do not extend to “new” contexts and Congress was in a better position to determine whether to recognize any such actions.¹³³ Although Egbert did not arise in the context of a public protest, the Court’s holding that First Amendment retaliation claims and Fourth Amendment excessive force claims are not viable under Bivens bodes ill for similar claims in other contexts.

II. STUDY DESIGN AND DATASETS

The purpose of this study is to assess how the foregoing governmental immunities have affected plaintiffs’ First Amendment and Fourth Amendment claims against government officials under section 1983 and Bivens for injuries sustained at public demonstrations and other events. The study tracks the disposition of more than 400 constitutional claims in over 300 federal civil rights cases.

Unlike other qualified immunity studies, which examined broad categories of decisions or dockets, my study focuses on a discrete set of activities—“public protest”—that gave rise to section 1983 and Bivens claims.¹³⁴ The decision to focus on public protest cases and claims required that the study define and identify “public protest.” For purposes of all three datasets, “public protest” was generally defined as a set of facts in which one or more individuals participated in a public march, rally, demonstration, parade, or other similar activity. Claims involving conduct related to public protest, including leafletting, public displays, and certain kinds of expressive conduct such as flag burning, were also included in the datasets. By contrast, the datasets excluded First Amendment and Fourth Amendment claims in areas including prisoner litigation, employment-related actions, conflicts involving K-12 student speech, and actions filed in connection with ordinary traffic stops or domestic disturbance calls. This definition obviously could be narrower or broader, and the public protest limit necessitated some judgment calls. Not all decisions involved large or mass demonstrations, but many did, and all included claims involving the kind of “out of doors” protest, hand-billing, and related activities typically engaged in during traditional public protest activity.¹³⁵

To conduct the study, I compiled three unique datasets. Each dataset consists of federal district court and appeals courts (including Supreme Court) decisions, which I read and coded. The first dataset, Qualified Immunity, includes 253 district and appellate court decisions, both published and unpublished, in which qualified immunity was raised as a defense to First Amendment or Fourth Amendment claims in the context of public protests.¹³⁶ In combination, these decisions addressed a total of 468 First Amendment and Fourth Amendment claims. The study examined cases from 1982, when the Supreme Court adopted its modern “two-step” qualified immunity approach, to December 2022.¹³⁷

Each of the 253 decisions in the Qualified Immunity dataset was coded for: (1) court; (2) date of decision; (3) whether the decision was published or unpublished; (4) type of constitutional claim (First Amendment or Fourth Amendment); (5) procedural posture in which a qualified immunity defense was raised (Summary Judgment, Motion to Dismiss, or Trial); (6) disposition of the motion to dismiss on qualified immunity grounds (granted or denied); (7) whether denials of summary judgment addressed the merits or were based on the existence of genuine issues of material fact; (8) whether a motion to dismiss or for summary judgment was granted based on Step One, Step Two, or Both steps of the qualified immunity analysis; (9) in appeals, whether the appellate court affirmed or reversed the district court’s qualified immunity disposition; (10) description of the First Amendment or Fourth Amendment claim; and (11) basis for the court’s conclusion on the qualified immunity motion. All decisions in the Qualified Immunity database were also coded for (12) whether plaintiffs pursued a claim for municipal liability under Monell; (13) whether a defense motion to dismiss or for summary judgment on the Monell claim was granted or denied; and (14) general grounds for the court’s disposition of the municipal liability claim.

The other two datasets are more limited in scope. The Nieves Retaliation Claims dataset includes forty-one published and unpublished federal court decisions from 2019 through December 2022.¹³⁸ Each decision was coded for (1) procedural posture; (2) disposition of a defense motion to dismiss or for summary judgment based on Nieves; (3) criminal offense(s) charged; (4) whether the decision addressed the Nieves unequal treatment exception and, if so, the court’s disposition of that part of the claim; (5) whether plaintiffs pursued a claim for retaliation against the municipality; and (6) disposition of the retaliation claim.

The Bivens Claims dataset includes twenty-six published and unpublished decisions between 1971 and the end of December 2022 in which courts addressed First Amendment or Fourth Amendment Bivens claims in the context of public protests.¹³⁹ Each decision was coded for (1) type of constitutional claim (First Amendment, Fourth Amendment, or both); (2) whether the court recognized a Bivens First Amendment or Fourth Amendment cause of action; and (3) in the event the court did not recognize the Bivens action, its reasoning (for example, claim arises in a “new context,” the presence of “special factors,” and so forth).

All three datasets have statistical and other limitations that narrow the study’s scope and findings. Most empirical qualified immunity studies have relied on decisions available on Westlaw.¹⁴⁰ However, as Joanna Schwartz has observed, because Westlaw omits many unpublished opinions as well as lawsuits resolved without any opinion, such studies can “say little about the frequency with which qualified immunity is raised, the manner in which all motions raising qualified immunity are decided, and the impact of qualified immunity on case dispositions.”¹⁴¹ However, as Schwartz acknowledges, such studies can “offer insights about the ways . . . courts assess qualified immunity . . . in a written opinion.”¹⁴² The study examines opinions accessible to courts when they analyzed qualified immunity and other defenses in protest cases.

There are some quantitative limitations. Since my study is limited to claims brought in “public protest” cases, it is not based on a random or complete sample of all qualified immunity decisions. Thus, quite intentionally, it does not purport to make claims about the dispositions of all qualified immunity motions. Moreover, because my study considers both district court and appeals courts decisions, and primarily claims addressed at both the motion to dismiss and summary judgment stages, it cannot account for all final dispositions of qualified immunity motions in the study.¹⁴³ For example, a qualified immunity motion denied at the motion to dismiss stage could be granted or denied later at summary judgment. Or the case may settle. The Retaliation Claims and Bivens Claims datasets, which are smaller samples, have similar quantitative limitations. In addition, the sample sizes in these two datasets are relatively small. The three datasets provide snapshots of how courts have disposed of qualified immunity and other motions in public protest cases during the relevant time periods.

Even with the foregoing limitations, the study offers a rare glimpse into how courts address qualified immunity in public protests cases. The data also provide information about the most common types of claims protesters pursued and how these different claims fared under qualified immunity, whether defense motions to dismiss or for summary judgment were successful, how courts applied the two-step qualified immunity analysis, whether Monell claims were pursued and sustained, the effect of Nieves on First Amendment retaliation claims, and whether protesters have been able to pursue Bivens actions. In addition, the study’s qualitative analysis helps reveal the extent to which First Amendment and Fourth Amendment law has developed—or failed to develop—in the public protest context and the extent to which courts have left important questions unanswered. In sum, the study offers an in-depth analysis of how qualified immunity has affected constitutional claims brought by protester plaintiffs.

III. DATA AND FINDINGS

This Part presents the study’s data and principal findings. It begins with a quantitative and qualitative examination of the largest dataset, Qualified Immunity. The Part then turns to the effect of governmental immunities and defenses on municipal liability, First Amendment retaliation claims, and protesters’ Bivens actions.

A. Section 1983 and Qualified Immunity

This Section presents findings from the Qualified Immunity dataset. It begins with a general overview of the dataset, and then discusses more detailed quantitative findings concerning First Amendment and Fourth Amendment claims. In connection with the discussion of these claims, the Section also presents qualitative assessments of the state of clearly established First Amendment and Fourth Amendment law in public protest cases.

1. Qualified Immunity Dataset: Overview

Table 1 contains general information about the overall number of cases, whether decisions were published or unpublished, and the distribution of federal district court and courts of appeals decisions in the Qualified Immunity dataset. As indicated, this dataset includes federal district and appellate court public protest decisions from 1982 through the end of 2022 in which defendants sought dismissal or summary judgment based on qualified immunity. It does not include state-level constitutional claims or qualified immunity decisions.

The Qualified Immunity dataset consists of 253 (published and unpublished) federal district court and appellate court decisions. As noted earlier, for purposes of establishing whether there is clearly established law regarding a constitutional right, courts look primarily to published courts of appeal decisions (although some will also look to published district court decisions). There are more than twice as many published (170) as unpublished (83) decisions in the database. In terms of precedents most likely to be considered controlling, there are eighty-six published appeals court decisions—including two decisions from the Supreme Court.¹⁴⁴

Table 1. General Case Data
Cases in the Dataset	253
Published Cases	170
Unpublished Cases	83
Appellate Cases (Including Supreme Court)	114
District Court Cases	139
Published Appellate Cases	86

The study of the Qualified Immunity dataset focused primarily on the disposition of First Amendment and Fourth Amendment claims subject to defense motions for dismissal or summary judgment based on qualified immunity. As indicated in Table 2, the dataset includes 468 distinct First Amendment and Fourth Amendment claims as to which defendants filed such motions. A claim was counted just once, even if brought against multiple defendants—unless the court disposed of the claim differently for certain defendants, in which case the claim was counted more than once. In general, courts tended to analyze qualified immunity motions by multiple defendants together.

There were slightly more First Amendment (253) than Fourth Amendment (215) claims in the dataset. More qualified immunity motions concerning these claims were decided by federal district courts (287) than by federal appellate courts (181). In many cases, no appeal appears to have been filed after the district court disposition of defense qualified immunity motions. Although it is possible appeals were filed but not noted on Westlaw, many cases appear to have terminated at the district court level without any interlocutory or other appeals.

The study examines constitutional claims subject to defense qualified immunity motions, again in cases that resulted in a published or unpublished opinion available on Westlaw. If, at the time the study period closed, an appellate decision was not available in Westlaw, then the district court decision was included in the dataset. In all other cases, the highest available appellate decision (Supreme Court or federal court of appeal) was coded instead of the district court opinion.

Table 2. General Claims Data
Claims in the Dataset	468
First Amendment Claims	253
Fourth Amendment Claims	215
Claims Considered in District Courts	287
Claims Considered in Appellate Courts (Including Supreme Court)	181

Like other studies, mine tracks the disposition and analysis of constitutional claims brought by protester plaintiffs.¹⁴⁵ A docket study focusing on public protest cases, as defined for purposes of the study, was not feasible. Even if all public protest cases could be identified through a review of court dockets, to get a substantial sample one would need to review complaints filed in a multitude of districts.¹⁴⁶ Focusing on defendants would provide some information about how many individual officers were sued and how many achieved dismissals, but it would not provide information about why they were sued or how courts analyzed constitutional claims in qualified immunity cases.¹⁴⁷ Focusing on case-level data, for example, how many cases resulted in dismissal on qualified immunity grounds, would likewise not tell us what kinds of claims protesters typically bring, the dispositions or success rates of defense motions to dismiss or for summary judgment regarding specific claims, and information about substantive First Amendment and Fourth Amendment law. My study focuses primarily on claim-level findings to learn how courts have analyzed motions to dismiss claims based on qualified immunity in the specific context of public protest.

Success rates overall and by claim for defense motions to dismiss or for summary judgment based on qualified immunity are reported in Figure 1. The Qualified Immunity dataset includes only cases in which defendants raised a qualified immunity defense as to one or more constitutional claims and courts explicitly addressed the defense. A defense qualified immunity motion was deemed “successful” if it was granted or dismissal of the claim was upheld on qualified immunity grounds. Motion success was not defined as disposing of all claims in the case, including Monell, state law, and other actions.¹⁴⁸ Rather, my study focused on the qualified immunity determination with respect to each claim of constitutional wrong.

Figure 1. Defense Q.I. Motion Success Rates

Although approximately a third of qualified immunity motions succeeded at the pleadings stage (53/152 for all claims), as in other studies defendants were far more likely to prevail at summary judgment.¹⁴⁹ Examination of qualified immunity decisions in protest-related cases thus adds some support for the claim that the defense does not generally serve the goal of weeding out cases at the earliest stages of litigation and sparing defendants the expenses of discovery.¹⁵⁰ Defense success rates at the motion to dismiss stage in my study are somewhat higher than those reported in some others, but generally consistent with dismissal findings across studies.¹⁵¹ In sum, in most protest cases plaintiffs were able to proceed to discovery on their claims.

As noted, courts were more likely to grant summary judgment on qualified immunity grounds than to dismiss at the pleadings stage. Across all claims, defendants prevailed on 58% (183/313) of their motions. That success rate was consistent across claims, with courts granting 60% (101/168) of defense qualified immunity motions in First Amendment cases and 57% (82/145) of summary judgment motions in Fourth Amendment cases. Again, these numbers are generally consistent with those reported in other studies.¹⁵²

Courts denied summary judgment as to 130 claims. In 53% of those cases (69/130), the defense motion was denied because there were genuine issues of material fact at issue. In the other 47% (61/130) of summary judgment motions, courts denied the motions on the merits (that is, held that plaintiffs had met their burden of showing a violation of clearly established law).

As shown in Figure 2, appellate courts were more likely than district courts to rule in defendants’ favor on qualified immunity. In published and unpublished decisions available on Westlaw, district courts granted 45% (128/287) of defense motions. Appellate courts ruled in defendants’ favor on 60% (109/181) of plaintiffs’ constitutional claims. These numbers are likely owing in part to defendants’ low rate of success at the pleadings stage, which in many instances were the last results coded. District courts, which faced more defense motions at the pleadings stage, were inclined to allow for some factual development before dismissing plaintiffs’ claims.

Figure 2. Q.I. Motion Success Rates by Court

Figure 3 shows that appellate court success rates were similar if one considers only the eighty-six published decisions. Courts granted or upheld defense qualified immunity defenses with respect to 57% (77/135) of all constitutional claims. In published appellate decisions, the rate of success for defendants was still lower (48% or 15/31) at the motion to dismiss stage than when the case had reached the summary judgment stage (60% or 62/103). However, in published decisions appellate courts ruled in defendants’ favor at the pleadings stage at a somewhat higher rate than did all courts at that stage.¹⁵³ Appellate courts may have been responding to the Supreme Court’s directive that non-meritorious cases should be dismissed at an earlier stage, or they may simply have been convinced that plaintiffs had not adequately pleaded a clearly established violation under applicable pleading rules.

Figure 3. Q.I. Motion Success Rates in Published Appellate Decisions

As discussed earlier, under qualified immunity doctrine, courts can dismiss or grant summary judgment for defendants if the plaintiff has not demonstrated a constitutional violation occurred (“Step One”) or if, despite the occurrence of a constitutional violation, the law was not “clearly established” at the time the violation occurred (“Step Two”).¹⁵⁴ Prior to 2009, the Supreme Court instructed lower courts to address these two steps in order.¹⁵⁵ In 2009, the Court held the sequence was not mandatory; thus, courts could skip Step One and base decisions solely on analysis at Step Two.¹⁵⁶

Grants of defense qualified immunity motions were coded for sequencing. If a claim was dismissed or defendants prevailed on summary judgment, the disposition was coded “Step One” when the basis for granting or upholding qualified immunity was the absence of a constitutional violation, “Step Two” if the sole basis for granting or upholding qualified immunity was the court’s conclusion that the law was not “clearly established,” and “Both” if the court granted or upheld qualified immunity on the basis that there was a constitutional violation but the law was not “clearly established” at the time. The few instances in which the court’s decision was unclear regarding which Step it was relying on were also coded as “Both.”

Figure 4. Sequencing and Success Rate

As indicated in Figure 4, when courts ruled in defendants’ favor in public protest cases, they did so at Step One 57% of the time (133/235). For Fourth Amendment claims, courts granted qualified immunity at Step One 63% (67/107) of the time. That percentage dropped to 52% (66/128) for First Amendment claims. The higher rate for Fourth Amendment claims may be attributable to the lenient probable cause and excessive force standards applied in Fourth Amendment cases, which make it more likely courts will conclude there was no constitutional violation. Of course, the higher success rates for defense motions may also be attributable to the relative weakness of the plaintiffs’ Fourth Amendment claims. Although not included in Figure 4, the number of overall Step One dispositions was somewhat higher (65% or 50/77) if one looks only at the eighty-six published appellate court decisions in the dataset.

Scholars have raised the concern that if courts proceed directly to Step Two there will be fewer opportunities to develop “clearly established” law, thus making it more difficult for plaintiffs to prevail in qualified immunity cases.¹⁵⁷ There is also a related concern that constitutional law will stagnate or fail to develop if courts do not rule on the constitutional question at Step One.¹⁵⁸

My data do not indicate courts are engaged in widespread avoidance of constitutional issues in public protest cases. But again, the findings may be driven in part by the constitutional standards courts are called upon to apply to First Amendment and Fourth Amendment claims. Those standards call for, among other things, consideration of context and assessment of the “reasonableness” of governmental actions. The constitutional doctrine may make it easier for courts to dispose of claims by concluding no violation has occurred, that plaintiffs have not satisfied their burden of providing evidence of a constitutional violation, or that the law is not sufficiently clear.

The data show that in a significant percentage of instances, 35% overall (82/235), courts relied on the Step Two conclusion that the law was not “clearly established.”¹⁵⁹ In these instances, courts did not address the substance of the constitutional claims. As discussed later, judicial reliance on a lack of clearly established law in public protest cases has probably limited development of substantive constitutional law regarding First Amendment and Fourth Amendment rights.¹⁶⁰ Consider that in 42% (54/128) of rulings in defendants’ favor on First Amendment claims, courts relied on the absence of clearly established law regarding issues ranging from the constitutionality of exclusions of protesters from public properties to the right to record law enforcement. Those rulings make it more difficult for plaintiffs in future cases to prove a violation or show the law is clearly established.¹⁶¹ Courts also avoided the constitutional question in motions addressing a quarter of Fourth Amendment claims.

Some commentators have suggested that qualified immunity doctrine allows for development of substantive law because it permits courts to find a constitutional violation at Step One but still hold the law was not clearly established at Step Two.¹⁶² My data show little evidence of such innovative judicial practice. Only 6% (8/129) of First Amendment claims were disposed of in this way, with a slightly higher percentage of Fourth Amendment claims (11% or 12/108). Again, these percentages track other studies’ findings.¹⁶³

Finally, my data show that appellate reversal or affirmance rates in protest-related qualified immunity cases were very low. Overall, appeals courts reversed lower court decisions on qualified immunity only 33% (59/181) of the time. For First Amendment claims, the reversal rate was 33% (36/108) and for Fourth Amendment claims it was 32% (23/73). These reversal rates are generally consistent with those reported in other qualified immunity studies.¹⁶⁴ A closer look at these data demonstrates that appellate courts reversed district courts 40% of the time (25/62) when they denied a qualified immunity motion, but only 26% of the time (30/114) when they granted a qualified immunity motion. This finding is consistent with the data in Figure 2, which show appellate courts were more likely to rule in favor of qualified immunity across a range of claims.

2. First Amendment Claims

In addition to the general claims data discussed above, the Qualified Immunity dataset includes more specific information about First Amendment claims. The data include the types of claims protesters pursued, the success rates for qualified immunity motions respecting different types of claims, and the substantive law as it pertains to the First Amendment rights of public protesters.

i. Types of Claims

There are 253 First Amendment claims in the Qualified Immunity dataset. Figure 5 shows the distribution and frequency of the six most common types of First Amendment claims.

Figure 5. Types of First Amendment Claims

Retaliation claims were the most frequently litigated type of First Amendment claim. Law enforcement or other government officials violate the First Amendment when they arrest, use force against, or otherwise restrict expressive activity in retaliation for the exercise of First Amendment rights.¹⁶⁵ To prevail on a retaliation claim, “the plaintiffs must show that they engaged in protected activity, that the defendants’ actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity, and that a causal connection exists between the retaliatory animus and the injury.”¹⁶⁶

As discussed earlier, in Nieves v. Bartlett (2019), the Supreme Court modified the law with respect to retaliation claims.¹⁶⁷ The Qualified Immunity dataset includes decisions addressing seventy-eight retaliation claims subject to the standards that applied prior to Nieves.¹⁶⁸

Nearly half (124/253 or 49%) of the First Amendment claims pertained to protesters’ rights to access public properties and the doctrines that apply to speech and assembly in those places. Individuals and groups have a First Amendment right to speak and assemble in certain public properties, including public streets, parks, and sidewalks.¹⁶⁹ While governments can impose content-neutral time, place, and manner restrictions on speech and assembly in these “quintessential” public fora, they generally cannot restrict expression based on its content or prohibit access altogether.¹⁷⁰ Under the First Amendment, regulations of speech based on subject matter or viewpoint receive strict judicial scrutiny and must be narrowly tailored to further compelling governmental interests.¹⁷¹ Thirty-seven First Amendment claims asserted that government regulated speech based on its content. Time, place, or manner regulations are subject to a lower degree of judicial scrutiny. They must be content-neutral, supported by important governmental interests, narrowly tailored to burden no more speech than necessary, and must leave available alternative channels of communication.¹⁷² Fifty-three First Amendment claims involved application of this standard.

Under the First Amendment, protesters and other speakers also have a right to access other public forums, primarily depending on the extent to which governments intend to allow expressive activities in these places and the extent to which such activities would affect their ordinary functioning.¹⁷³ In places generally open to the public for expressive purposes, or so-called designated public fora, governments can impose content-neutral time, place, and manner regulations.¹⁷⁴ In “non-public” or “limited” public forums, regulations need only be viewpoint-neutral and reasonable.¹⁷⁵ Thirty-four First Amendment claims concerned government restrictions on access to various public properties.

Rounding out the First Amendment claims, protesters brought thirty-two claims challenging a variety of policing methods—for example, use of tear gas, herding or “kettling” of protesters, and surveillance of protest groups. Protesters claimed these actions chilled or prohibited expression. Plaintiffs also pursued a dozen claims relating to arrests or other adverse actions taken against protesters who were recording law enforcement at public demonstrations. As discussed below, whether there is a First Amendment right to record police is an issue on which courts remain somewhat divided.¹⁷⁶

ii. Claims Disposition Data

Figure 6 shows the success rates for qualified immunity motions respecting the five most common types of First Amendment claims.¹⁷⁷ Significant findings relate to the procedural posture of qualified immunity dispositions and the disparate success rates for qualified immunity motions challenging certain claims.

Figure 6. Q.I. Motion Success Rates by First Amendment Claim

Although some of the sample sizes are small, the data generally show that plaintiffs were able to keep claims alive at the pleadings stage. The success rate percentages for retaliation, content-based speech regulations, and access to forum claims were in line with the overall pleadings stage dismissal percentages reported earlier.¹⁷⁸

Two claims produced unanticipated results. In qualified immunity motions respecting challenges to time, place, and manner regulations, defendants prevailed 63% (10/16) of the time. The judicial balancing that applies to time, place, and manner regulations generally requires consideration of factual context not typically available at the pleadings stage. The high success rate may reflect the deferential standard applicable to content-neutral time, place, and manner regulations, the uncertain state of the law as it pertains to application of the standard, the relative strength or weakness of the claims in the dataset, or some combination of these factors.

The other unexpected finding is that only 7% (1/14) of motions to dismiss First Amendment challenges to protest policing methods were successful. However, several of these claims relied on allegations that police had used aggressive policing methods against compliant and peaceful protesters or dispersed assemblies without cause or warning.¹⁷⁹ Taking those allegations as true, courts concluded they stated a clear violation of the First Amendment.

At summary judgment, defendants substantially prevailed on their qualified immunity motions, winning 72% (26/36) of time, place, and manner claims, 62% (33/53) of retaliation claims, and 55% (11/18) of claims challenging protest policing methods. Again, there were a couple of exceptions. Defendants were granted qualified immunity as to only 44% (11/25) of claims involving content-based speech regulations and won only 50% (10/20) of motions relating to claims involving access to public property. This may reflect the fact that the law in both areas is longstanding and relatively clear. As discussed, under the First Amendment, laws or regulations based on content face a heavy presumption of invalidity. Similarly, protesters have a presumptive right to access certain public properties including public parks, streets, and sidewalks.

iii. First Amendment Law and Protesters’ Rights

The numbers paint an important, if only partial, picture when it comes to application of qualified immunity doctrine in First Amendment cases. The study was also designed to identify and critically analyze the substantive law that has developed—or failed to develop—during application of qualified immunity doctrine. The law that matters most is controlling authority in a specific jurisdiction. However, using a qualitative assessment, we can get a more general sense of the development of substantive standards concerning protesters’ First Amendment rights. The assessment that follows relies primarily on published appellate court decisions but, when useful in terms of filling some gaps, also considers published district court decisions.

Although retaliation claims were the most common in the Qualified Immunity dataset, the core First Amendment rights of protesters relate to access to public properties and the application of content neutrality standards there. Protesters rely on access to public forums such as public streets, parks, and sidewalks, as well as other public properties, to organize and participate in public demonstrations, rallies, and other events.

In public forum qualified immunity cases, several courts treated arbitrary, broad, and effective denials of access to public fora as First Amendment violations.¹⁸⁰ They also held that precedents clearly established protesters’ rights to distribute pamphlets and have access to an audience in a public forum,¹⁸¹ engage in peaceful residential picketing,¹⁸² protest on private property with the owner’s consent,¹⁸³ be present on State House grounds after 6:00 p.m.,¹⁸⁴ and engage in non-disruptive activity on a public sidewalk adjacent to a public school.¹⁸⁵

However, appellate courts upheld several bans on protest in government properties other than public streets, parks, and sidewalks.¹⁸⁶ In addition, they concluded the following actions did not violate clearly established First Amendment rights to access public properties:

Enforcing an invalid permit ordinance that violated the First Amendment, on the ground that the officer was entitled to rely on the ordinance;¹⁸⁷
Excluding a protester from state courthouse grounds and lands, because the “right of access to judicial proceedings” was not clearly established at the time;¹⁸⁸
Arresting a protester for refusing to move a rally from the sidewalk adjacent to Liberty Bell Center in Independence National Historic Park, because it was not clearly established at the time that the sidewalk was a public forum;¹⁸⁹
Promulgating and enforcing a curfew, since protestors did not have a clearly established right under the First Amendment to continuously occupy a plaza on state capitol grounds for an indefinite time;¹⁹⁰ and
Denying a state university student’s request to set up a table in the patio area outside the student union, since the right to access such space was not clearly established.¹⁹¹

As one might expect based on qualified immunity doctrine, the forum access precedents allow protesters to hold officials liable for egregious restrictions, including flat bans on access to traditional or quintessential public fora. However, they also permit officials to enforce otherwise unconstitutional permit requirements and exclude protesters from important venues on the ground that there is insufficient controlling authority addressing access to those places or no reasonable official would know this violated the First Amendment.

According to the decisions, it is difficult for protesters to prove a clearly established right to access a property unless that same property has been previously declared a public forum for First Amendment purposes. But when courts rely on the absence of controlling authority with respect to a public place, they fail to develop forum law. This is part of qualified immunity’s “vicious cycle.”¹⁹²

Protesters also rely on courts to enforce content neutrality rules in public places. The data suggest they have done so unevenly and inconsistently. The Supreme Court has admonished lower courts not to define constitutional issues at a high level of generality but to rely only on controlling precedent.¹⁹³ Nevertheless, in some contexts, courts applied general doctrinal rules to deny qualified immunity. In these instances, failure to follow the Court’s instructions benefitted protester plaintiffs.

For example, courts relied on the general principle that content-based regulations of expression violate the First Amendment. Based on that principle, they held that forcing abortion protesters to vacate a public sidewalk based on the content of their signs or arresting someone for, without more, burning an American flag violated clearly established First Amendment rights.¹⁹⁴ They also concluded, again based on general standards forbidding content-based speech regulations, that public university officials cannot prohibit student protests because of the content of their message and law enforcement officers violated the First Amendment when they made no serious effort to quell hecklers before shutting down a public protest.¹⁹⁵ Similarly, appellate courts held that it is clearly established that protesters cannot be arrested for communicating protected profanity.¹⁹⁶ Finally, one appeals court held that protesters cannot be arrested for engaging in an unusual form of dissent, on the ground that the First Amendment “protects bizarre behavior.”¹⁹⁷

By contrast, when courts followed qualified immunity law to the letter, they frequently upheld government actions that violated content neutrality rules. In several cases courts concluded defendants were entitled to qualified immunity even though they adopted or enforced content-based regulations. For example, courts held that the following actions and regulations did not violate clearly established First Amendment law:

Ordering anti-abortion activists displaying fetuses near a middle school to disperse under a law prohibiting disruptive presence at schools;¹⁹⁸
Arresting protesters for demonstrating publicly in thong underwear;¹⁹⁹
Arresting the driver of a truck who painted words on the side of his truck indicating he was “a fucking suicide bomber communist terrorist!” with “W.O.M.D. on Board”;²⁰⁰
Excluding a protester from a welcoming ceremony authorized by U.S. Senate resolution for carrying a sign objecting to the intended disposition of Olympic dormitories for correctional purposes;²⁰¹
Preventing a journalist from engaging with a counter-protester, under threat of arrest, at a public library children’s book reading event called “Drag Queen Story Hour”;²⁰² and
Excluding protesters from an official speech on private property because of the viewpoint of a message displayed on a bumper sticker on their car.²⁰³

In these instances, courts did not apply general content neutrality principles. Instead, they required that protesters identify controlling authority with facts similar or identical to those in the case under review—a case (or two) involving protesters in thong underwear or messages on bumper stickers, for example. With respect to novel claims, or at least claims courts viewed as such, they were quite strict about application of qualified immunity standards. To be fair to lower courts, even the Supreme Court has sometimes equivocated on the content neutrality point in the context of protests. The Court held in one case that it was not clearly established that Secret Service agents bore a responsibility to ensure that protest groups with different viewpoints had access to comparable locations during a presidential visit.²⁰⁴ Even so, looking for precedential twins and dead ringers in highly context-specific protest cases led courts to uphold qualified immunity.

Protesters’ speech and assembly rights are substantially affected by the enforcement of time, place, and manner regulations. Here, too, the data show very mixed success for protester plaintiffs. In several cases challenging time, place, and manner restrictions, courts concluded protesters had either not alleged or adduced evidence of a First Amendment violation.²⁰⁵ In others, courts concluded that the applicable law concerning time, place, and manner was not clearly established:

The Fourth Circuit held that a reasonable officer could have believed, in 2005, that prohibiting an abortion protester from displaying large, graphic signs depicting aborted fetuses at a major intersection was lawful because case law from the Fourth Circuit and Supreme Court was ambiguous on that issue.²⁰⁶
The Ninth Circuit concluded that denial of protestors’ application for a march permit without a promise on protestors’ part not to engage in civil disobedience was unlawful, but the condition did not violate clearly established First Amendment rights under controlling circuit and Supreme Court precedent.²⁰⁷
The D.C. Circuit held that a reasonable police officer could have believed that, given its proximity to the Capitol, a protest on the East Front sidewalk of the U.S. Capitol was subject to different First Amendment standards than apply in similar public properties.²⁰⁸ The court also agreed with the government’s assertion that because narrow tailoring is “ ‘not an exact science,’ a reasonable officer should not be expected to perform that analysis prior to arresting an individual for violating a time, place, and manner restriction governing expressive activity in a public forum.”²⁰⁹

As critics of qualified immunity doctrine have complained, in determining whether the law of time, place, and manner was clearly established, some courts engaged in factual parsing and line-drawing. For example, the Ninth Circuit concluded that relegation of a public prayer event to a “First Amendment area” burdened the plaintiffs’ speech to a substantially greater degree than necessary to achieve the government’s purposes.²¹⁰ However, the court held officials were entitled to qualified immunity because the relevant case law indicated that time, place, and manner doctrine, in particular the narrow tailoring requirement, distinguished between claims that an audience is essential to the message being conveyed and claims that location was essential for that purpose.²¹¹ Since plaintiffs were challenging the regulation based on locational as opposed to audience proximity, the court reasoned, a reasonable official would not have had sufficiently clear legal guidance to avoid violating the plaintiffs’ First Amendment rights.²¹² The Ninth Circuit’s “narrow tailoring” analysis highlights a central challenge plaintiffs face in terms of identifying clearly established law.

Protesters also brought First Amendment challenges to various protest policing methods, including issuance of unlawful dispersal orders, use of less-lethal weapons during protest events, and surveillance of protest groups. The Eleventh Circuit held that using cordons or barriers that prevent protesters from being seen or heard by anyone violates the First Amendment.²¹³ Several courts held that arbitrary dispersals of otherwise lawful public protests violate clearly established First Amendment law.²¹⁴ Courts also concluded that deploying tear gas and other less-lethal munitions against protesters who are not engaging in any illegal activity is unconstitutional.²¹⁵ Finally, the Ninth Circuit held that government officials violated clearly established First Amendment law when they conducted an eight-month investigation into a vocal, but entirely peaceful group.²¹⁶

However, results changed dramatically if courts discerned even an inkling of disruption or potential for violence at a public protest. In that event, they were far more likely to give law enforcement the benefit of the doubt in terms of protest-policing methods. For example, courts held that confiscating signs at demonstrations, using tear gas against protesters blocking egress from an industrial plant, arresting protesters who refused law enforcement directives to use a “free speech zone,” and making preemptive arrests did not violate the First Amendment or did not violate clearly established law.²¹⁷ In sum, while peaceful and compliant protesters were successful in pursuing challenges to protest policing methods, evidence or even allegations of disruption or potential for violence made success far less likely.

As noted earlier, the most frequently pursued First Amendment claim was that officials unlawfully retaliated against protesters for engaging in protected speech and assembly.²¹⁸ Lower federal court decisions in the Qualified Immunity dataset did not produce much law concerning First Amendment retaliation claims. Retaliation claims often turn on the motive of the defendant, thus making them poor vehicles for establishing bright line rules.²¹⁹ They are also fact-dependent in other ways.

In a typical case, the Eighth Circuit held that when protesters moved toward officers “in a threatening manner” and blocked traffic, “[a] reasonable officer could conclude that this conduct violated Minnesota law and was not protected speech.”²²⁰ Further, the court concluded that since there was no evidence the protesters had been singled out while other similarly situated speakers had not been arrested, “[t]he only reasonable inference supported by the record is that the group’s unlawful conduct, not the protected speech, motivated the officers’ actions.”²²¹

Nevertheless, a few retaliation decisions produced intriguing results. In one case, a district court held that retaliating against protesters for their speech by surveilling them and pointing a red laser from a sniper rifle at a group member during a speech violated the First Amendment.²²² In an unpublished decision, the Ninth Circuit concluded that a reasonable official would know that directing a train into the path of demonstrators, one of whom lost his legs as a result, to stop a protest violated the First Amendment.²²³ In these decisions, at least, the courts did not point to any prior precedent with similar facts. Perhaps when the facts are so egregious, courts are willing to bend the clearly established standard.

Finally, courts addressed claims that officers violated the First Amendment when they interfered with or prevented the recording of officers as they engaged in protest policing. As Joanna Schwartz has observed, “[c]oncerns that the Court’s qualified immunity jurisprudence renders the Constitution hollow are even more acute for constitutional claims involving new technologies and techniques.”²²⁴ Several courts have held that there is a First Amendment right to record police at a public protest and that right is clearly established.²²⁵ However, other courts have held that at the time of the alleged violation, the right to record was not clearly established or not apparent to all reasonable officers.²²⁶ Courts have also observed that the right is not unlimited, and that arresting protesters for recording officers in ways that interfere with their duties does not violate clearly established law.²²⁷

In sum, First Amendment decisions in the Qualified Immunity dataset demonstrate many of the pathologies of qualified immunity doctrine. While courts have held that egregious forms of governmental abuse can be the basis for a claim under section 1983, they have also upheld qualified immunity in cases involving denial of access to public fora, content discrimination, and questionable time, place, and manner regulations. Courts have applied the doctrine inconsistently, sometimes relying on general principles and in other instances demanding precise controlling authority.

We also learned that although wholly peaceful and compliant protesters can pursue claims for damages, at the first sign of disruption or potential violence, courts deferred to officers’ choice to use aggressive protest policing methods. In terms of retaliation, government actors probably cannot mow down demonstrators with a train—although the only opinion on this matter is unpublished and is not controlling authority concerning other types of conveyances. Again, in instances in which the facts are truly egregious, courts may apply the qualified immunity standard more flexibly. Finally, the cases indicate that not all appellate courts have concluded that there is a clearly established First Amendment right to record police at demonstrations.

3. Fourth Amendment Claims

The Qualified Immunity dataset includes court decisions in which 215 Fourth Amendment claims were the subject of defense qualified immunity motions. Although the data support some clear limitations on governmental actions under the Fourth Amendment in the protest context, they also demonstrate an overall lack of substantive development.

i. Types of Claims

Figure 7 shows the most common Fourth Amendment claims plaintiffs pursued in the cases in the Qualified Immunity dataset. The general standards governing these 215 Fourth Amendment claims are well-established.

Figure 7. Types of Fourth Amendment Claims

The Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches and seizures.”²²⁸ To prevail on a claim for false arrest, a plaintiff must demonstrate that officers lacked probable cause to make the arrest. Probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.²²⁹ The existence of probable cause to arrest, even for a very minor offense, is a complete defense to a Fourth Amendment false arrest claim.²³⁰

In an excessive force claim, a plaintiff must show that the use of force was excessive under the facts and circumstances presented.²³¹ In making this determination, the Supreme Court has instructed lower courts to pay “careful attention” to factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”²³² As the Court has emphasized, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”²³³

Finally, a seizure of the person occurs “when there is a governmental termination of freedom of movement through means intentionally applied.”²³⁴ To be valid under the Fourth Amendment, a seizure or detention must be reasonable under the circumstances. Under the Fourth Amendment, an officer may seize an individual’s property from a public area “only if Fourth Amendment standards are satisfied—for example, if the items are evidence of a crime or contraband.”²³⁵ Officers may also conduct searches incident to arrest when they have reasonable suspicion contraband is present.²³⁶

ii. Claims Disposition Data

The success rates for defense motions to dismiss or for summary judgment based on qualified immunity are shown in Figure 8. The same caveats that applied to determining successful disposition of defense motions respecting First Amendment claims apply to Fourth Amendment claims. The findings count granted motions to dismiss and for summary judgment, and appellate court rulings upholding those grants as successful whether or not plaintiffs amended their complaints or their claims were considered on remand after appeal. The success rates are, as indicated, snapshots of dispositions in reported decisions available on Westlaw.

Figure 8 shows that, like the First Amendment claims in the dataset, two-thirds or more of Fourth Amendment claims survived defense motions to dismiss. By contrast, at summary judgment, courts were much more inclined to grant or uphold qualified immunity for defendants for false arrest (61% or 48/79 claims) and unlawful search or seizure (71% or 15/21 claims).

Figure 8. Q.I. Motion Success Rates by Fourth Amendment Claim

As discussed earlier in the general data findings, when addressing qualified immunity respecting Fourth Amendment claims, courts were more likely to grant immunity at Step One. In those instances, courts held that no violation had occurred, instead of concluding that there was a lack of clearly established law at Step Two.²³⁷ As we have seen, courts were overall likely to grant defense motions for summary judgment. But the high rate of summary judgment for false arrest and unlawful search and seizure claims likely also reflects the deferential probable cause and reasonableness standards that apply to such claims.

The exception was defense motions for summary judgment on excessive force claims, which succeeded only 42% (19/45) of the time. As discussed below, several courts held that law enforcement uses of force against peaceful assemblies or compliant protesters constituted clear Fourth Amendment violations.²³⁸ In other cases, courts concluded that the degree or amount of force used against protesters violated clearly established Fourth Amendment standards.²³⁹ These decisions account for the lower defense success rates regarding excessive force claims at summary judgment.

iii. Fourth Amendment Law and Protesters’ Rights

Substantive Fourth Amendment law in the context of public protest has developed slowly in lower courts. Like the discussion of First Amendment law, the following analysis focuses primarily on published federal courts of appeals decisions to assess what substantive Fourth Amendment law has been established. However, it also considers district court decisions that apply circuit precedents in Fourth Amendment qualified immunity determinations.

Appellate courts consistently held that arresting protesters without actual or arguable probable cause violated clearly established Fourth Amendment law.²⁴⁰ They also concluded that it is a clear violation of the Fourth Amendment to arrest protesters without first issuing a dispersal order (although one district court held that officers are under no obligation to determine whether the order is lawful prior to enforcing it).²⁴¹ Notwithstanding these limits, courts applied a flexible probable cause standard and upheld arrests for various offenses, some very minor—using noise amplification near an abortion clinic,²⁴² falling asleep in a zipped tent in a public park,²⁴³ openly carrying firearms on a public fishing pier,²⁴⁴ burning the Mexican flag in public without a permit,²⁴⁵ and unfurling a banner outside a designated “speech zone.”²⁴⁶

Fourth Amendment law is unsettled when it comes to the validity of protesters’ arrests for engaging in protected expression. The Eighth Circuit held that arresting protesters solely for engaging in protected speech violates clearly established Fourth Amendment rights.²⁴⁷ Similarly, the Sixth Circuit held that the law was clearly established that a county fair patron could not be arrested for disorderly conduct based on his spewing profanities at police and a fairgrounds executive director when he was being escorted off the fairgrounds (apparently for wearing a shirt stating “Fuck the Police”).²⁴⁸

However, a federal district court applying circuit law concluded that officers who arrested a protester for anonymous comments made by others on his livestream after he posted the Chief of Police’s address did not violate clearly established Fourth Amendment law.²⁴⁹ Another district court held that officers did not act recklessly, negligently, or unreasonably in relying on a fellow officer’s determination that probable cause existed to arrest a protester for walking along the public sidewalks displaying “a gigantic Styrofoam middle finger emblazoned with the letters ‘Fuck cops.’ ”²⁵⁰ A district court also held that officers did not violate clearly established Fourth Amendment law when they arrested a protester for “interference” when he refused to relinquish a camera—something he otherwise had a right to possess under the circumstances—when ordered to do so.²⁵¹

As these decisions demonstrate, probable cause reasonableness standards make it difficult for courts to develop clearly established law concerning false arrest. As in other areas, egregious mass arrests and other actions not supported by any probable cause have been condemned as violating clearly established Fourth Amendment law. However, precedents show that even arrests closely related to, if not directly based on protected expression, have been the basis for qualified immunity for Fourth Amendment claims. The absence of precedents addressing similar or nearly identical circumstances has prevented courts from recognizing some clear constitutional violations.

In terms of excessive force claims, courts have consistently held that using less-lethal force, such as pepper spray and tear gas, against compliant and peaceful protesters violates clearly established Fourth Amendment law.²⁵² The same goes for using other types of force when arresting or subduing a compliant protester.²⁵³ Driving a train into a crowd of peaceful demonstrators may constitute excessive force, although the only decision reaching that conclusion is unpublished.²⁵⁴

However, as was true of some First Amendment claims, excessive force results sometimes hinged on whether the protest was wholly peaceful and non-disruptive. Courts held that the use of less-lethal munitions to disperse violent or unruly protests, tasing protesters in the context of “hostile” protest environments, and even kicking or choking protesters who refused to comply with officers’ commands did not constitute excessive force under the Fourth Amendment.²⁵⁵

Several district courts also rejected excessive force claims concerning the use of handcuffs or zip ties so tight they caused physical injuries to protesters. In some cases, courts reasoned that under circuit precedent, only force sufficient to break a person’s wrist violated clearly established Fourth Amendment law.²⁵⁶ The handcuffing/zip tie decisions demonstrate how the requirement that plaintiffs identify controlling precedent with the same facts undermines constitutional rights and prevents plaintiffs from being compensated for injuries. Absent a particular circuit court or Supreme Court decision (or perhaps more than one) holding that inflicting pain through bindings short of breaking the person’s wrist violates the Fourth Amendment, a protester plaintiff cannot recover even for serious injuries.

Several decisions in the Qualified Immunity dataset addressed the law as it relates to seizures under the Fourth Amendment. Some courts have held that warrantless seizures of protesters’ signs and other possessions violated the Fourth Amendment.²⁵⁷ By contrast, when officers had probable cause to believe the item was unlawful, or reasonable suspicion it could be dangerous, courts have upheld seizures of items including shofars and firearms.²⁵⁸ The fact that a shofar could “reasonably” be considered dangerous highlights the deference officers enjoy under Fourth Amendment cause and suspicion standards.

District courts applying circuit precedents disagreed concerning whether law enforcement uses of less-lethal weapons such as tear gas, pepper spray, and projectiles constituted “seizures” under the Fourth Amendment.²⁵⁹ Some decisions suggested that the answer turns on whether the protester’s movement was otherwise constrained, which implies that the use of less-lethal munitions by itself does not constitute a “seizure.”²⁶⁰ Other courts expressly held that the use of tear gas and other munitions can constitute a “seizure.”²⁶¹ At present, there is a lack of consensus or appellate authority on this important issue.²⁶²

Courts have also upheld brief detentions and searches incident to detention during public protests.²⁶³ They considered such actions justified as means of maintaining public safety and order. In some decisions, courts again relied on narrow factual distinctions relating to the detentions in determining whether they violated clearly established law. For example, although prior precedents in a circuit had established that a two-hour detention in which the plaintiff was handcuffed and detained in the back of a police cruiser was an unlawful seizure, a district court observed that in the case before it, protesters were not handcuffed, were not placed in the back of police vehicles, and were released after approximately one hour.²⁶⁴ Thus, the district court held, circuit precedents did not make clear to “every reasonable official” that detaining witnesses to a crime, without handcuffs and without moving them to a police vehicle, violated the Fourth Amendment.²⁶⁵

Fourth Amendment qualified immunity decisions exhibited some of the same pathologies as First Amendment decisions. While courts condemned some egregious law enforcement practices, they declined to recognize others as violations of clearly established law. Courts relied on narrow factual distinctions and the absence of controlling authority. Together the decisions have resulted in a largely under-developed law of public protest in the Fourth Amendment area.

B. Municipal Liability – Monell Claims

The Qualified Immunity dataset also collected information about plaintiffs’ claims against municipal defendants. Recall that to successfully hold a municipal defendant liable under section 1983, plaintiffs must demonstrate that the municipality directly violated their constitutional rights by, among other things, adopting and enforcing an unconstitutional “policy or custom.”²⁶⁶ In order to sue the municipality, plaintiffs must demonstrate that an official has violated their constitutional rights because of the municipal policy or custom.²⁶⁷

As shown in Figure 9, defendants were not successful at the motion to dismiss stage, as courts granted or upheld only eighteen of seventy-five (24%) dismissal motions. However, once cases reached the summary judgment stage, defendants were remarkably successful: 78% (113 out of 145) of municipal defendants’ motions for summary judgment were granted or upheld on appeal. Thus, although courts were inclined to allow plaintiffs to pursue discovery on Monell claims, they were overwhelmingly rejected at summary judgment.

Figure 9. Defense Motion Success Rates for Monell Claims

The data show that in most instances, municipal liability was rejected, owing to a lack of evidence of a “policy or custom.” Courts also frequently relied on a lack of underlying constitutional violation and plaintiffs’ failure to identify a policymaking official who acted in a manner that violated their constitutional rights.

Although municipalities represent deep financial pockets and are responsible for making law enforcement and other policies, the data confirm that Monell claims are among the most difficult for plaintiffs to pursue. Defendants’ efforts to defeat these claims were largely successful.

C. First Amendment Retaliation Claims

As discussed earlier, in Nieves, the Supreme Court adopted a probable cause standard for determining whether plaintiffs could bring a First Amendment retaliation claim.²⁶⁸ It also recognized a narrow exception for plaintiffs who could demonstrate they had been subject to unequal treatment. Concurring and dissenting Justices sounded various alarms about the Court’s reliance on probable cause. In general, the Retaliation Claim dataset, which includes all public protest retaliation claims subject to the Nieves standard, supports the dissenters’ objections and concerns.

A significant concern is that law enforcement officers possess broad discretion to charge protesters with even minor public disorder offenses. Under Nieves, an officer who can show a protester’s arrest for disorderly conduct, breach of peace, or other minor crimes is likely to have a complete defense to a First Amendment retaliatory arrest claim. As Justice Gorsuch observed in his partial dissent:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation.’²⁶⁹

Justice Gorsuch noted an additional shortcoming of the majority’s approach. When it folded the free speech claim into the unreasonable arrest inquiry, he asserted, the Court made a category error. As Justice Gorsuch explained, “the First Amendment operates independently of the Fourth and provides different protections. It seeks not to ensure lawful authority to arrest but to protect the freedom of speech.”²⁷⁰ By hanging so much on probable cause to arrest protesters and other speakers, the Court elided important free speech claims and interests.

In her dissent, Justice Sotomayor took aim at the exception to the Nieves rule, which requires protesters to produce “objective evidence that [they were] arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”²⁷¹ She characterized the exception as unclear and irrational and argued it will lead to perverse results. Which protesters, she asked, are “otherwise similarly situated” to the plaintiff, and who is engaged in the “same sort of protected speech”?²⁷² Further, under the Court’s approach, protesters who have more direct evidence of retaliatory motive, including officers’ own statements, cannot rely on that evidence, but must instead produce hard-to-come-by comparison-based evidence.²⁷³

Justice Sotomayor surmised that plaintiffs who can satisfy the Nieves exception “predominantly will be arrestees singled out at protests or other large public gatherings, where a robust pool of potential comparators happens to be within earshot, eyeshot, or camera-shot.”²⁷⁴ However, she failed to consider that even those plaintiffs would be hard-pressed to gather such evidence in chaotic mass protest environments. Among other complications, during mass protests, ideological and other affiliations can be difficult to discern. Moreover, the exception incentivizes protest policing activities that data show to be already prevalent, including “herding” or “kettling” all participants regardless of specific offense, using tear gas and other force indiscriminately, and engaging in mass arrests. No officer can be accused of singling anyone out if everyone is subject to the same dragnets and other abuses. For a few reasons, there will, as Justice Sotomayor warned, be “little daylight between the comparison-based standard the Court adopts and the absolute bar it ostensibly rejects.”²⁷⁵

Finally, Justice Sotomayor worried that the majority’s approach would “breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly.”²⁷⁶ For example, “a particularly brazen officer could arrest on transparently speech-based grounds and check the statute books later for a potential justification.”²⁷⁷ She and the other dissenters might also have raised the possibility that racial disparities in protester arrests might affect First Amendment retaliation claims.²⁷⁸

The Retaliation Claim dataset confirms many of the dissenters’ objections and concerns. Counting Nieves itself, there have been forty-one federal court decisions that applied the probable cause defense in protest-related cases. In twenty-seven of those decisions, or more than 65%, courts granted defendants’ motions to dismiss or for summary judgment with respect to First Amendment retaliation claims. An “absolute bar” may not have materialized. However, thus far, post-Nieves retaliation claims have not fared well at all in reported decisions. Courts granted or upheld dismissal at the pleading stage 56% of the time (10/18) and granted summary judgment to defendants 74% (17/23) of the time.

Table 3. Defense Motions in Post-Nieves Retaliation Cases
Posture	Motion Granted	Motion Denied	Total
MTD	10 (56%)	8 (44%)	18
SJ	17 (74%)	6 (26%)	23

The nature of the charges underlying dismissal or summary judgment substantiates Justice Gorsuch’s concern that “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.”²⁷⁹ The criminal charges that ultimately defeated First Amendment retaliation claims included disorderly conduct (6), trespass (5), failure to disperse (4), disturbing the peace (3), violation of a curfew order (2), obstructing vehicular or pedestrian traffic (3), obstructing government functions (1), and jaywalking (1). As Justice Gorsuch predicted, probable cause to arrest protesters for even very minor or trivial offenses was enough to defeat the retaliation claims.

What about the exception based on evidence of unequal treatment? Courts addressed the exception on the merits in only 24% (10/41) of cases. In six of those decisions (60%), courts concluded there was insufficient evidence of unequal treatment or that the plaintiff was not “similarly situated” to the comparator class. In three decisions, courts concluded there were sufficient allegations or evidence of disparate treatment to defeat defendants’ motions to dismiss or for summary judgment. In one decision, the court concluded that the plaintiff had produced evidence that “similarly situated” speakers had not been arrested under the narrow exception Nieves recognized.²⁸⁰ In that case, plaintiffs demonstrated that no one had ever been arrested for the offense (chalking public property).²⁸¹

The post-Nieves results suggest courts are engaging in a wooden application of the probable cause standard, rather than a “commonsensical[]” analysis.²⁸² They have generally been willing to accept officers’ claims that arrests for minor offenses were reasonable under the circumstances, a conclusion that in most cases defeated protesters’ First Amendment retaliation claims.

Review of post-Nieves decisions also supports other criticisms. Justice Gorsuch criticized the majority opinion in Nieves for failing to recognize the First Amendment and Fourth Amendment as independent sources of rights.²⁸³ As he predicted, Nieves has encouraged lower courts to focus on the legitimacy of the arrest to the exclusion of free speech, press, and assembly concerns.²⁸⁴ While courts have been hyper-focused on probable cause to arrest, they have had little to say about the effects of the arrests on collecting petition signatures, public preaching and singing, videorecording protest arrests, and participation in protests involving LGBTQ rights, Occupy Wall Street, the Dakota Access Pipeline, Black Lives Matter, Juneteenth, and the removal of Confederate monuments.

The data do not provide a basis for assessing Justice Sotomayor’s concern about rogue officers suppressing speech. However, post-Nieves decisions have dismissed retaliation claims in which protesters were arrested while singing anti-LGBT songs, confronting public officials at public events, and videotaping protest policing. In these and other cases, there is at least the possibility that officers have targeted or suppressed speech based on its content.

Finally, commentators have warned that Nieves may have negative effects on newsgatherers.²⁸⁵ Even if reporters have a First Amendment right to record government officials at public demonstrations, the decisions show that probable cause to arrest reporters for some minor offense may effectively negate press rights by allowing officials to target newsgatherers.

Prior to Nieves, the Supreme Court recognized another possible exception to the probable cause requirement. If a municipality adopts an official policy of retaliation against a speaker or group, the Court held, it may be held liable even if there is probable cause to arrest the speaker.²⁸⁶ Assuming this exception survives Nieves, it applies only in exceptional situations when a governmental body adopts a policy of retaliating against an individual or group for protected expressive activities.²⁸⁷

The Retaliation Claims dataset suggests plaintiffs are not likely to pursue this type of claim. Only five of the forty-one decisions (12%) addressed such a claim. Three claims were dismissed for failure to allege or provide sufficient evidence of a policy or custom of retaliation or failure to establish an underlying constitutional violation.²⁸⁸ One district court concluded that the plaintiff had alleged sufficient facts in the complaint to demonstrate a policy or custom of retaliation or harassment.²⁸⁹ Another district court concluded genuine issues of material fact concerning whether a defendant had final policymaking authority precluded summary judgment on the municipal retaliation claim.²⁹⁰

Lower courts have not had much time to adjust to and apply the Nieves standard. However, evidence indicates that concerns about how the probable cause and other aspects of the decision will be applied have already surfaced in early cases.

D. Claims Against Federal Officials

As discussed, the Supreme Court has never formally recognized a First Amendment claim under Bivens for monetary damages against federal officials.²⁹¹ Recent decisions have expressed general skepticism concerning Bivens claims and rejected certain types of claims under the First Amendment and the Fourth Amendment.²⁹² The twenty-six decisions included in the Bivens Claims dataset suggest that while lower courts have long recognized protest-related claims against federal officials, the Supreme Court’s recent decisions have placed such claims in jeopardy.

The data show that lower courts have long recognized protesters’ ability to pursue First Amendment and Fourth Amendment Bivens claims. Courts recognized a cause of action for First Amendment or Fourth Amendment violations against federal defendants under Bivens in 81% (21/26) of protest-related decisions.

However, twelve, or nearly half, of these decisions are from the D.C. Circuit and D.C. district courts. The D.C. Circuit first recognized a First Amendment protest-related Bivens claim in Dellums v. Powell, which was decided in 1977.²⁹³ The District of Columbia is the site of iconic protest venues, including the grounds near the U.S. Capitol and Lafayette Park near the White House. National Park Service, U.S. Marshals officials, U.S. Capitol Police, Secret Service, and other federal officials are involved in policing and managing mass and other protest events in the District.

In addition to the D.C. Circuit, the Third, Fourth, Eighth, Ninth, and Tenth Circuits have also recognized First Amendment and Fourth Amendment Bivens claims in protest-related cases.²⁹⁴ Constitutional claims in these cases have run the gamut from violation of protesters’ right to speak and assemble in a public forum under the First Amendment to allegations of excessive force, false arrest, and unreasonable seizure under the Fourth Amendment. One might assume decisions recognizing these Bivens claims long predated the Court’s recent turn against expanding Bivens. However, ten out of fifteen lower court decisions (67%) recognizing such claims or assuming they are viable were decided during the last decade, when the Court was expressing increasing skepticism about them.

There is some evidence that the Court’s Bivens negativity is starting to affect lower court decisions in protest cases. In the four most recent decisions, including one by the D.C. Circuit regarding the clearing of Lafayette Park during the 2020 Black Lives Matter protests, courts expressly rejected protesters’ First Amendment and Fourth Amendment Bivens claims.²⁹⁵ The courts emphasized the Supreme Court’s admonition not to expand Bivens into “new” contexts and to apply a “special factors” analysis to prevent expansion of Bivens claims. Applying those standards, only one recent federal district court decision has upheld a protest-related Fourth Amendment claim and none have recognized a First Amendment claim.²⁹⁶

The loss of a Bivens remedy would leave protesters without full recourse against federal officials who violate their First Amendment or Fourth Amendment rights. Officials with the National Park Service, Secret Service, and other federal agencies would be immunized from damages claims. As the 2020 racial justice protests demonstrated, holding federal officials liable for protest policing that violates individuals’ constitutional rights remains critically important.

IV. STRENGTHENING PROTESTER RIGHTS AND REMEDIES

This study confirms that protesters face steep obstacles in terms of holding government officials accountable for constitutional injuries. If protesters cannot be made whole in the event of serious injuries, they may be deterred from organizing and participating in public demonstrations. Thus, what is at stake is not just the important compensation owed to injured protesters but also broader injuries to our culture of public dissent. This final Part offers five proposals to strengthen protesters’ rights and remedies.²⁹⁷

First, as other scholars have advocated, qualified immunity should be abandoned or reformed.²⁹⁸ This study confirms that courts are disposing of a significant percentage (approximately 60% at summary judgment) of protesters’ First Amendment and Fourth Amendment claims based on qualified immunity. The data also show that qualified immunity shields officials from liability in all but the most egregious cases (and even in some egregious cases), is based on an impossibly narrow standard of controlling authority and reduces opportunities for courts to innovate and develop substantive law. The Court or Congress should abolish qualified immunity or reform it by, for example, changing the liability standard or doing away with the “clearly established law” requirement.²⁹⁹ Protesters and others would then be better able to recover for patently unconstitutional content-based regulations, abusive uses of force, invalid arrests, and other unconstitutional behavior.

Second, also in the realm of qualified immunity reform, the Supreme Court or Congress should revisit Nieves v. Bartlett. This study shows that First Amendment retaliation claims are frequently pursued in protest cases. Early lower court applications of Nieves’s probable cause rule confirm the objections raised by Justices Gorsuch and Sotomayor. The Supreme Court should at least clarify that probable cause is not an absolute bar to retaliation claims. Some commentators have also urged Congress to overturn Nieves.³⁰⁰ If neither institution is willing to act, civil rights lawyers will need to focus on collecting the necessary evidence of disparate treatment to defeat the probable cause bar. As Justice Sotomayor has urged, lower courts can also adopt a “commonsensical[]” interpretation of the standard.³⁰¹

Third, as this study confirms, courts need to strengthen constitutional protections under the First Amendment and Fourth Amendment. The lack of strong First Amendment and Fourth Amendment rights reduces and undermines protesters’ constitutional protections. Applications of qualified immunity doctrine show that First Amendment doctrines allow officials to exclude protesters from public properties, enforce restrictive speech zones, and significantly displace demonstrations. Joanna Schwartz has criticized substantive Fourth Amendment law, specifically the “reasonableness” standard that allows officers to “stop, arrest, beat, shoot, or kill people who have done nothing wrong without violating their constitutional rights.”³⁰² Similarly, she argues, the Court’s “excessive force” doctrine has “left officers with few limits on their power.”³⁰³ The First Amendment and Fourth Amendment doctrines addressed in this study are longstanding. However, the Supreme Court should more clearly establish the limits they place on government officials when they regulate protest activity and lower courts should apply these limits in ways that better protect the rights of protesters.

Fourth, and relatedly, courts must publish more decisions elaborating on applications of First Amendment and Fourth Amendment rights. Figure 10 shows the number of published qualified immunity protest-related decisions over time available on Westlaw. The Qualified Immunity dataset covers four decades but includes only eighty-six published federal appellate court decisions. To be sure, there are likely more such decisions; but if they are not accessible, they cannot be used to analyze qualified immunity. If published appellate decisions are to be the primary sources of clearly established law, it is obvious that litigants and courts need significantly more guidance. The uptick in published decisions during the last five years is encouraging, even if it may partially be related to the 2020–2021 mass street protests. More published decisions should produce more clearly established limits on protest policing and other activities. The Supreme Court could also take steps such as loosening the requirement of controlling circuit precedent and allowing courts to consult other decisions or to rely on general principles, rather than requiring plaintiffs to identify in-circuit cases involving the same or similar factual circumstances.

Figure 10. Published Qualified Immunity Protest Decisions over Time

Fifth, and finally, governmental immunity doctrines must allow injured plaintiffs to hold all parties that cause injuries accountable. This means reducing or repealing municipal immunities and allowing injured protesters to sue federal officials under Bivens for First Amendment and Fourth Amendment violations. In my study, although plaintiffs frequently sued municipalities, nearly 80% of their Monell claims failed at summary judgment.³⁰⁴ As Joanna Schwartz has argued, “[o]ne way to make sure that people are paid what they are owed is to do away with Monell standards and hold cities legally responsible for the constitutional violations of their officers—just as private companies are held vicariously liable for the acts of their employees.”³⁰⁵ Protester plaintiffs must also have the opportunity to hold Secret Service, National Park Service, and employees of other federal agencies accountable. Lower courts have traditionally perceived no impediment to recognizing and adjudicating such claims.³⁰⁶ As some recent decisions demonstrate, the Supreme Court’s negativity regarding Bivens threatens to undermine the fundamental right to express political dissent.³⁰⁷ Although the Supreme Court has not expressly rejected protest-related First Amendment claims against federal officials, it has crept ever closer to doing so. As the Court itself has urged, Congress should codify Bivens by creating civil damages claims against federal officials who violate First Amendment, Fourth Amendment, and other constitutional rights.

CONCLUSION

Governmental immunities have had a profoundly negative effect on public protesters’ ability to obtain compensation for constitutional harms. This study’s quantitative analysis shows defendants’ significant success using qualified immunity to defeat a variety of First Amendment and Fourth Amendment claims. Its qualitative analysis illustrates how application of qualified immunity and other doctrines have defeated protesters’ claims, even when defendants have engaged in egregious constitutional violations.

The study lends additional support to general criticisms of qualified immunity and related doctrines. More broadly, it shows that failure to reform or abolish governmental immunities will affect the right to protest peacefully, safely, and with high confidence that officials who regulate and police protests will respect constitutional rights.

This Article offers several proposals for strengthening protesters’ remedies or at least limiting obstacles to monetary recovery. These include judicial or legislative repeal of qualified immunity, developing stronger substantive First Amendment and Fourth Amendment protections, abandoning municipal liability restrictions, and retaining civil liability for federal officials. Without serious reform, in most cases protesters will continue to be un- or under-compensated, public officials will continue to escape liability, and traditionally valued public protest activity will be encumbered and chilled.

97 S. Cal. L. Rev. 1583

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Timothy Zick*

* John Marshall Professor of Government and Citizenship, William & Mary Law School. I would like to thank Paul Hellyer for his outstanding assistance with the study design and the research supporting this Article. Special thanks also to Rebecca Roberts for her help updating the study databases. Any errors are, of course, my own.

Rethinking Tax Information: The Case for Quarterly 1099s

October 2024October 2024Kathleen DeLaney Thomas*

When an electricity provider wants customers to pay their bills monthly, it sends them a bill each month. Yet, this is not how the tax system works—at least not for independent contractors. Their taxes are due quarterly, but they receive a tax statement (Form 1099) only one time a year. It is up to the individual, then, to know when their taxes are due and how to pay them, and it is on that individual to estimate how much they owe each quarter. As a result, compliance for independent contractors—particularly for online platform workers—tends to be lacking. Failure to pay their estimated taxes subjects these taxpayers to potential penalties and causes the government to collect less tax revenue.

There is a simple—yet entirely overlooked—reform that could vastly improve compliance when it comes to paying estimated taxes: third-party information returns (Form 1099s) should be issued to taxpayers on a quarterly basis. The idea is straightforward and intuitive. If the government wants people to pay taxes four times per year, it needs to effectively “bill” them four times per year. This idea is supported by social science research showing that, the more taxpayers are reminded to pay their taxes, the more likely they are to do so.

This Article is the first to propose quarterly tax information returns. It offers a detailed proposal for a new Form 1099-ES, which would communicate quarterly earnings and provide guidance on how much to pay in estimated taxes. In doing so, this Article argues for rethinking the conventional wisdom surrounding tax information, taking a more taxpayer-focused approach. Rather than viewing Form 1099s solely as a source of information for the government to monitor taxpayers and deter cheating, we should also view the role of information returns as assisting taxpayers in tracking their income and estimating their tax liability. When viewed in this light, the goal should not necessarily be more year-end returns to more people, but instead should be more frequent and useful information for taxpayers.

INTRODUCTION

When an electricity provider wants customers to pay their bills monthly, it sends them a bill each month. It would border on the absurd to do it differently. But imagine if an electricity provider wanted customers to pay their bill every month, yet it sent only one bill at the end of the year showing the customer’s total electricity use. This would certainly cut down on billing costs for the company, but at a steep price. People would undoubtedly miscalculate their monthly bills, pay the bills late, or forget to pay the bills altogether. Thus, unsurprisingly, whether it is utility companies, mobile phone service providers, or credit card companies, businesses that want to be paid monthly bill their customers monthly, often sending multiple reminders. Those communications not only remind customers to pay, but they also provide instructions—such as a link to an online payment website or a pre-addressed envelope—to make it as easy as possible.

Yet this is not how the tax system works, at least not for independent contractors. Their taxes are due quarterly, but they receive a tax statement only one time a year.¹ By the time independent contractors receive a Form 1099 reporting their earnings, typically in February of the following year, all four quarterly tax payment deadlines have come and gone.² It is up to the individual, then, to know when their taxes are due and how to pay them, and it is on that individual to estimate how much they should pay in taxes each quarter.

The significance of this asymmetry cannot be understated: the government expects taxpayers to take affirmative steps to make a tax payment four times per year, yet the government requires taxpayers receive information (through a third-party Form 1099) only once a year. It is, therefore, entirely unsurprising that compliance for independent contractors, particularly for online platform workers, is lacking.³ Studies indicate significant noncompliance when it comes to paying estimated taxes, which subjects these taxpayers to potential penalties and causes the government to collect less tax revenue.⁴

There is a simple—yet entirely overlooked—reform that could vastly improve compliance when it comes to paying estimated taxes: third-party information returns (Form 1099s) should be issued to taxpayers on a quarterly basis. This new quarterly information return—what this Article calls “Form 1099-ES”—should communicate the taxpayer’s quarterly earnings and provide clear instructions for how to make estimated tax payments, including guidance on how much to pay.⁵ The idea is straightforward and intuitive. If the government wants people to pay taxes four times per year, it needs to effectively “bill” them four times per year. Further, this idea is supported by recent social science research. That research shows that informational “nudges” are effective at motivating individuals to act, including paying their taxes on time.⁶ In other words, the more taxpayers are reminded to pay their taxes and the easier the process is, the more likely they are to do so.

This Article is the first to propose quarterly information returns. It urges Congress to require quarterly 1099s be sent to online platform workers who are already receiving an annual Form 1099-K, but who otherwise receive no assistance in making estimated tax payments.⁷ In doing so, this Article argues for rethinking the conventional wisdom surrounding tax information, taking a more taxpayer-focused approach.

Traditionally, scholars and policymakers have viewed third-party information returns, such as a Form 1099-K, as having two main functions, both of which aid Internal Revenue Service (“IRS”) enforcement efforts.⁸ One function is to tell the IRS what the taxpayer has earned. The second function is to serve as a deterrent. If taxpayers know the IRS is going to receive information about their income from third parties, they are far more likely to report their income accurately.

Recent expansions to Form 1099 reporting reflect this traditional view of information returns. In 2021, Congress passed legislation requiring online platforms, such as Venmo, PayPal, Airbnb, and Etsy, to send a Form 1099-K to taxpayers earning more than $600 of business income during the year through those platforms.⁹ This was a substantial change from the prior threshold of $20,000 and was designed specifically to raise revenue by subjecting more taxpayers to information reporting.¹⁰ Some critics of the new legislation have questioned whether the IRS has sufficient capability to process the influx of new information returns, while others have lamented that the new rules will lead to taxpayer confusion, anxiety, and possible over-reporting of tax liability.¹¹

While the efficacy of the new Form 1099-K reporting threshold remains to be seen, the rule reflects the overall trend in improving tax compliance over the past half a century: more year-end tax forms to more taxpayers. In gradually expanding information reporting requirements over the past several decades, the government has cast an increasingly wider net. But this wider net has come with virtually no safeguards for the taxpayers newly covered by information reporting.

This Article urges policymakers to look beyond the traditional policing function of 1099s and proposes a third, equally important function of information reporting. Rather than viewing 1099s solely as a source of information for the government to monitor taxpayers and deter cheating, we should also view the role of information returns as assisting taxpayers in tracking their income and estimating their tax liability. When viewed in this light, the goal should not necessarily be more year-end returns to more people, but instead should be more frequent information to taxpayers who are already obligated to report taxable income. The current system, in which taxpayers do not receive information until their deadlines to pay quarterly taxes have come and gone, falls woefully short.

This Article’s ultimate argument is that rethinking tax information means harnessing the ability of third parties to quickly process and distribute tax information in ways that will first and foremost help taxpayers. The cost to third parties of sending these quarterly statements to taxpayers would be minor, and it would impose no additional administrative costs on the IRS. (The IRS would continue to receive the taxpayer’s Form 1099 at the end of the year, but only the taxpayer would receive it quarterly.)

Rethinking the role of tax information as assisting taxpayers in meeting their payment obligations not only protects taxpayers from penalties and other burdens, but it should also result in higher tax compliance and more revenue raised. In other words, rethinking tax information in this way would only strengthen and enhance the traditional goals of information reporting.

This Article proceeds in four parts. Part I provides background on tax information reporting and surveys recent legislative changes to expand Form 1099 reporting. It also discusses the benefits and risks of expanding year-end information reporting. Part II explores the challenges faced by independent contractors like online platform workers in making timely tax payments. Part III then explores social science literature supporting the idea that, the more tax communications taxpayers receive, the more compliant they will be. Part IV offers a concrete proposal for quarterly information returns for platform workers (a new Form 1099-ES), including how to best design these returns to maximize accurate and timely tax payment. Part IV also proposes a simple safe harbor formula for calculating estimated tax payments: five percent of gross payments. The safe harbor would allow taxpayers to quickly and easily figure out how much to pay each quarter to avoid estimated tax penalties.

Quarterly information returns are a viable solution to a problem that has taken on increasing significance in recent years due to a growing gig economy and rising number of independent contractors. Mandating that certain businesses send their workers a Form 1099 every quarter would impose tax compliance costs on those entities that are best suited to handle those costs efficiently. At the same time, this reform would make the tax system more equitable for lower income workers who struggle to meet their tax compliance burdens.

I. THIRD-PARTY INFORMATION REPORTING: BACKGROUND AND CONSIDERATIONS

This Part offers a brief overview on the current law regarding third-party information reporting and tax payment obligations. As this Part explains, information reporting is a vital tool that ensures tax compliance and aids in the government’s collection of revenue.

A. What Is Third-Party Information Reporting?

The United States tax system is generally based on “voluntary compliance,” meaning the government relies on taxpayers to voluntarily self-report their taxable income each year on their tax return.¹² However, the most important way in which the government ensures that taxpayers report their income accurately is third-party information reporting.¹³ Third-party information reporting describes a system in which a third party (that is, not the taxpayer or the IRS) reports the taxpayer’s income on an information return.¹⁴ The third party is often (though not always) the same person or entity that pays the income to the taxpayer. That information return, such as a Form W-2 or Form 1099, is sent to both the taxpayer and to the IRS after the end of the year.¹⁵ The IRS then uses the form to monitor whether the taxpayer has accurately reported the income on their tax return, often through an automated process.¹⁶

Whether income is subject to third-party information reporting depends on the source of the income and how much the taxpayer earns. Employee wages are generally reportable on Form W-2 and are also subject to withholding.¹⁷ Other forms of income, such as interest, dividends, and sales of securities by brokers, as well as certain payments to independent contractors, are reportable on a Form 1099 (though not subject to withholding).¹⁸

B. Purpose and the Benefits

In ensuring that taxpayers report and pay their taxes, the government’s primary challenge is information asymmetry: taxpayers have more information about their income than the IRS. The most powerful mechanism to correct this asymmetry, thereby ensuring that most income gets reported accurately, is third-party information reporting.¹⁹ IRS compliance statistics bear this out. The overall rate of compliance in the United States, measured by the ratio of taxes collected versus taxes owed, is about 85%.²⁰ Much of that high compliance rate is attributable to income that is subject to information reporting.²¹

For employee wages, which are both reported on a Form W-2 and subject to withholding, compliance is nearly perfect (99%).²² Income that is not subject to withholding but subject to substantial information reporting, such as interest and dividends, is also reported accurately at very high rates (94%).²³ On the other hand, compliance is significantly lower when information reporting is not present. The IRS estimates the compliance rate for income not subject to information reporting to be 45%, meaning less than half of such income gets reported by taxpayers.²⁴ Simply put, taxpayers are much more likely to report income that gets reported to the IRS by a third party and are more likely to cheat when their income is not being reported by a third party.

These statistics demonstrate that information reporting is highly effective at achieving its intended purpose of ensuring tax compliance. Commentators note two reasons that information reporting is so effective. First, providing the IRS with information about taxpayers allows the agency to pursue those who underreport their income.²⁵ Much of this matching of information returns with taxpayers’ tax returns is done automatically through IRS computer programs.²⁶ Second, information reporting acts as a deterrent because taxpayers likely know the IRS is receiving information about their income.²⁷ Professor Leandra Lederman compares this effect to red light cameras that catch drivers running red lights: “[T]he taxpayer is aware the government is watching.”²⁸

C. Information Reporting for Platform Workers

Two information-reporting provisions are particularly relevant for taxpayers earning income through online platforms, who are the focus of this Article. First, certain payments made to independent contractors are reportable on Form 1099-MISC if the payments exceed $600 during the year.²⁹ More specifically, if a business pays an independent contractor more than $600 for the provision of services, the business must send the individual (and the IRS) a Form 1099-MISC.

In 2008, Congress expanded information reporting for some independent contractors that are paid through “third party settlement organizations” (“TPSOs”).³⁰ A TPSO generally serves as an intermediary to facilitate online transactions between buyers and sellers, charging a fee for its services.³¹ TPSOs include online payment platforms, like Venmo and PayPal, as well as other types of platforms on which taxpayers earn income from performing services or selling goods, like Uber or Etsy.³² The 2008 legislation required the online platform to issue a Form 1099-K to any taxpayer who was paid more than $20,000 and accumulated payments from more than 200 transactions on the platform during the tax year.³³ The higher $20,000 threshold “trumped” the $600 threshold under the 1099-MISC rules if both applied, meaning independent contractors paid through online platforms were subject to a much higher threshold for information reporting.³⁴

Commentators criticized this disparity in the information reporting thresholds—$600 versus $20,000/200 transactions—as confusing and arbitrary.³⁵ For example, if a painter was paid $5,000 by a business for a job, they would receive a Form 1099-MISC. But if a painter was hired and paid through an online platform like TaskRabbit, the Form 1099-K rules only required information reporting if that painter earned over $20,000 through the platform and had over 200 payment transactions. As a result, many independent contractors earning income through online platforms were not subject to any information reporting at all, because they never met the high payment and transactions threshold.³⁶

In response to these criticisms, and due to growing concern about lack of tax compliance in the gig economy, Congress amended the reporting threshold for Form 1099-K in 2021.³⁷ The new rule, enacted as part of the American Rescue Plan, unified the reporting threshold between the 1099-MISC rules and the 1099-K rules.³⁸ Now, online platforms must issue a Form 1099-K to any taxpayer who earns more than $600 from the platform during the tax year; there is no minimum number of transactions required.³⁹ This new reporting threshold, which does not take effect until 2025, is expected to substantially increase the number of taxpayers subject to information reporting and raise an estimate $8.4 billion in additional revenue over the next decade.⁴⁰

Notwithstanding the revenue and compliance benefits from expanding Form 1099-K reporting to cover more platform workers, the new legislation has also been met with significant criticism from all sides. The biggest source of such criticism is that the new threshold casts too wide a net and will inadvertently capture transactions that are not subject to tax.⁴¹ Technically, the 1099-K rules only apply to business income and not personal transactions.⁴² For example, a painter earning fees on Venmo should receive a Form 1099 if total annual fees exceed $600. But if an individual collects contributions for a group gift on Venmo, those transactions should not be reportable because they are personal in nature. However, it is possible that TPSOs (like Venmo) will not be able to adequately distinguish which transactions are reportable and which are not, with the result that too many Forms 1099-K will be issued. This, in turn, is likely to cause confusion among taxpayers, who may mistakenly believe the Form 1099-K means they have to report a transaction even if that transaction is not taxable (for example, if it is a gift).⁴³

Another source of potential confusion is that Forms 1099-K generally report gross earnings, which may differ significantly from taxable income, particularly for taxpayers who engage in selling goods.⁴⁴ As an example, imagine a taxpayer knits scarves and sells them on Etsy. Further imagine this taxpayer spent $700 on materials during the year and earned $1,000 in gross sales through the platform. The taxpayer’s net income, after accounting for their costs, is only $300 ($1,000 minus $700), and therefore only $300 is reportable for tax purposes. But, under the new 1099-K rules, Etsy will issue the taxpayer a Form 1099-K reflecting $1,000 in sales, because that gross amount is over the threshold. Critics argue that taxpayers may fail to understand that, although their Form 1099 says $1,000, the taxpayer may report a lower amount of income on their tax return.⁴⁵ Commentators also argue that confusion about the new rules will deter taxpayers from participating in online marketplaces.⁴⁶

Even for taxpayers who understand that their Form 1099 shows income that is not taxable—either because the transaction is not taxable or because the Form 1099 reflects a gross income amount—there may be anxiety and confusion over how to reconcile the form with their tax return. Taxpayers may overreport their income just to avoid IRS scrutiny, or may have to incur the cost of a tax professional to ensure they are in compliance with the law.⁴⁷ The IRS has delayed enforcement of the new 1099-K rules by several years in response to these concerns, stating that the delay will help “reduce the potential confusion caused by the distribution of an estimated 44 million Forms 1099-K sent to many taxpayers who wouldn’t expect one and may not have a tax obligation.”⁴⁸

Another line of criticism of the new 1099-K rules is that the IRS does not have the enforcement capacity to handle the new influx of information returns, many of which may not even pertain to taxable transactions.⁴⁹ For example, the Coalition for 1099-K Fairness argues:

[T]his new requirement will place a greater strain on the IRS, increasing processing delays for American taxpayers and small businesses. At the end of May 2022, the IRS had a backlog of 21.3 million unprocessed paper tax returns. . . . Because many of these casual sellers will not have taxable income resulting from these transactions, the burden on the IRS will not result in collection of additional tax revenue.⁵⁰

Finally, even those who support expanding information reporting for platform workers have argued that the $600 threshold is simply too low, reflecting a reporting threshold for independent contractors that dates back to the 1950s and has not been adjusted for inflation.⁵¹ In response to concerns about the threshold level, Congressional Democrats have introduced a bill to raise the threshold for 1099-K reporting to $5,000.⁵²

D. Lessons Learned from Recent 1099-K Reform

The recent change to the Form 1099-K rules offers a compelling illustration of the tradeoffs inherent in expanding information reporting. On the one hand, the lower threshold for online platforms was a long time coming. Scholars and organizations like the Government Accountability Office (“GAO”) had been urging Congress for years to lower the $20,000/200 transaction threshold to account for the fact that many platform workers were not receiving a Form 1099.⁵³ And, as discussed above, information reporting is vital to ensure that platform workers and other independent contractors report their income. But while increasing the number of taxpayers receiving 1099s will reduce evasion and enhance revenue collection, it comes at a cost of added complexity for taxpayers, who may not know how to report income reflected on a 1099.⁵⁴ Taxpayer confusion or mistakes also impose an increased enforcement burden on the IRS, as does processing additional 1099s.⁵⁵

In sum, the new Form 1099-K rule, which lowers the reporting threshold for payments from online platforms to $600, reflects the general trend in expanding information reporting over the past several decades.⁵⁶ That trend is to require more year-end 1099s, which means more taxpayers will receive them. But receiving a Form 1099 at the end of the year, by itself, does little to help platform workers fulfill their tax obligations if they don’t already have a good understanding of the tax law. The next Part explores the tax compliance challenges faced by online platform workers and other independent contractors.

II. THE PROBLEM: NONCOMPLIANCE AMONG INDEPENDENT CONTRACTORS

This Part provides background on the tax compliance obligations of platform workers and other independent contractors. As this Part shows, because they are not treated as employees for tax purposes, platform workers often face significant tax compliance burdens and may lack the expertise to fully comply.

A. Tax Compliance Obligations of Platform Workers

Online platform workers are generally treated as independent contractors, rather than employees, for tax purposes.⁵⁷ The tax consequences of this distinction are significant for the worker: while employees have their taxes withheld and paid by their employer, independent contractors are responsible for paying taxes on their own.⁵⁸ This means platform workers generally must budget for taxes and make estimated tax payments four times per year,⁵⁹ in addition to filing a year-end tax return and paying any additional balance due. Failure to make estimated tax payments can result in a tax penalty.⁶⁰

Taxpayers have two options to calculate their estimated tax payments in a manner that avoids penalties. First, they can pay 100% of their prior year’s tax liability through estimated taxes, and they will not face a penalty even if they end up owing more tax after the year is over.⁶¹ For example, if a taxpayer paid $5,000 in taxes in 2022, they can pay $5,000 during the course of 2023 through estimated taxes. Even if their total tax liability for 2023 is $8,000, and they owe another $3,000 at the end of the year, they will not face a penalty for failing to pay enough estimated tax. The other option is to pay enough estimated taxes to satisfy 90% of that year’s tax liability.⁶² This means that, for a taxpayer who owes $20,000 in tax at the end of 2023, they must have paid at least $18,000 during the year to avoid an estimated tax penalty. In any case, taxpayers are not subject to an estimated tax penalty if the total tax owed for the year is less than $1,000.⁶³

Independent contractors are also responsible for paying self-employment taxes on their net earnings. For employees, employment taxes are split between the employee and the employer, with employees bearing responsibility for a 7.65% tax on their wages⁶⁴ and employers bearing responsibility for another 7.65% on those wages.⁶⁵ In addition to paying half of the employment tax, the employer withholds the employee’s share of employment taxes and pays them to the IRS,⁶⁶ so the employee can effectively ignore these obligations. On the other hand, independent contractors are responsible for both portions shared by employers and employees, or a 15.3% self-employment tax on net earnings.⁶⁷ These workers must include payments for self-employment tax in their quarterly estimated tax payments.

Finally, in addition to paying quarterly taxes, which include both income and self-employment taxes, independent contractors must track their deductible business expenses and report them on Schedule C to their Form 1040.⁶⁸ This imposes further compliance costs and complexity compared to employees because workers must know which expenses are deductible, keep records to substantiate those expenses, and spend additional time preparing their year-end tax return (or spend money hiring a tax professional).

B. Many Platform Workers Struggle with Tax Compliance Obligations

The rise of online platforms has made it easier than ever before to become an independent contractor.⁶⁹ But this low barrier to entry means that many platform workers are young and financially inexperienced, particularly when it comes to managing tax obligations.⁷⁰ Even taxpayers with years of employment experience do not necessarily know how to manage the tax obligations associated with independent contractor status. For example, a survey of platform workers published in 2016 found that a third of such workers did not know whether they had to pay quarterly estimated taxes.⁷¹ Nearly half of the respondents also did not know how much they would owe in taxes and did not set aside money for taxes.⁷²

In a 2020 Report to Congress, the GAO documented the top tax compliance challenges faced by platform workers, which include understanding the tax responsibilities of independent contractors, receiving adequate information about their earnings (particularly when there is no Form 1099 reporting), and saving for and making quarterly estimated tax payments.⁷³ As to the third challenge, the report observes:

Because earnings of some platform workers may be low and earnings and expenses may fluctuate, they can have difficulty estimating their taxes owed and setting aside money to pay the taxes. . . . To the extent these burdens and difficulties confuse workers, they are less likely to pay the estimated tax payments fully and on time and may incur a penalty as a result. . . . [I]f the penalty or amount owed is more than workers can afford, they are at risk of falling into a cycle of noncompliance.⁷⁴

Researchers have also noted that another negative effect of failing to properly save for and remit estimated taxes relates to platform workers’ Social Security contributions. Not only does failing to fulfill their tax obligations subject workers to possible penalties and cause the government to collect less revenue, but workers also jeopardize their future Social Security benefits, as such benefits are based on previously reported earnings.⁷⁵ Further, platform workers who do not report their income (or do not report enough income) may also miss out on tax credits that could help them financially, such as the Earned Income Tax Credit.⁷⁶

C. Estimated Tax Penalties Have Increased with Rise of Platform Economy

As further evidence that platform workers are struggling with their tax compliance obligations, IRS data shows that the number of estimated tax penalties has increased substantially over the past two decades.⁷⁷ Specifically, the number of individual returns for which an estimated tax penalty was assessed has risen significantly alongside the expansion of the platform economy.⁷⁸ For example, in 2012, 7.1 million individual estimated tax penalties were assessed, while in 2022, 12.2 million estimated penalties were assessed, representing a 72% increase.⁷⁹ While other factors may play a role in the number of estimated tax penalties assessed, the general trend is consistent with the growth in online platform work.⁸⁰ It is worth repeating that when platform workers fail to pay estimated taxes, it not only deprives the government of tax revenue, but also harms the worker, because they may find themselves subject to back taxes and penalties they cannot afford.⁸¹

Figure 1 shows the total number of individual estimated tax penalties assessed from 2000 to 2022, with a notable increase over the past decade.⁸²

Figure 1. Number of Individual Estimated Tax Penalties Assessed from 2000–2022 (in Millions)

III. SOCIAL SCIENCE LITERATURE SUPPORTING A SOLUTION

Part II explained the complexity faced by platform workers in meeting tax compliance obligations. In particular, because they do not have their taxes withheld, these workers must take affirmative steps to estimate and pay their taxes each quarter. This Part looks to social science research to understand why paying taxes is so psychologically difficult and what can be done to motivate taxpayers to comply. As this Part reveals, noncompliance by independent contractors is not just a matter of lacking sufficient knowledge. Rather, taking affirmative steps to pay taxes on time requires motivation, self-control, and planning. Research over the past several decades on so-called behavioral nudges shows that policy design can have a drastic impact on whether individuals engage in desired behaviors like paying taxes. This research shows that, the easier and simpler obligations are made for people, the more likely they will comply with those obligations. Section A first describes the broader social science research on nudges. Section B discusses specific studies relating to tax compliance that suggest that more frequent reminders to pay would likely improve tax compliance for independent contractors.

A. Reasons for Tax Noncompliance and How Nudges Can Help

This Section first discusses psychological factors that contribute to taxpayers not meeting their payment obligations, even when they are aware of them. It also introduces the concept of nudges and discusses how these behavioral interventions can motivate desired behavior, including compliance with legal obligations.

1. Why Taxpayers May Struggle to Pay Estimated Taxes

There are a number of reasons that taxpayers fail to report their income and pay their taxes. One is simply opportunity. Recall that when taxpayers are not subject to third-party information reporting, they demonstrate low levels of compliance, which is unsurprising because they are unlikely to get caught. Scholars have also explored many non-economic factors that may contribute to noncompliance, such as social norms of noncompliance or perceptions that the tax system is unfair.⁸³

The focus of this Article, however, is on independent contractors—particularly online platform workers—who receive an annual Form 1099-K. For these taxpayers, there is little opportunity to underreport their income without getting caught, yet their compliance is still often lacking, particularly when it comes to making timely payments of quarterly estimated taxes.⁸⁴ In other words, workers who receive a Form 1099 are less likely to try to conceal their earnings (since they are likely to get caught) but may fail to pay timely taxes on those earnings. As discussed above in Part II, research reveals that many platform workers may simply fail to understand the tax consequences of independent contractor status. However, lack of knowledge is unlikely to be the only reason for noncompliance.

Recall that platform workers and other independent contractors do not have the benefit of having their taxes withheld.⁸⁵ This means they are responsible for tracking their earnings, budgeting for taxes from those earnings, and making quarterly remittances. A number of well-documented psychological biases likely make this difficult for many taxpayers, even if they have no intention of cheating. First, humans have limited attention and are inherently forgetful.⁸⁶ This is why a doctor’s office or a restaurant sends us one or more reminders about upcoming appointments or reservations.⁸⁷ For platform workers and other independent contractors, making quarterly tax payments without any reminder to do so is no small feat.

Even aside from the fact that taxpayers may simply forget about estimated tax deadlines, people also tend to procrastinate and lack self-control.⁸⁸ This might make it hard for taxpayers to follow through with making estimated tax payments despite their awareness of the obligation and despite their best intentions. This tendency to procrastinate is well-documented in the context of saving for retirement, where people frequently save less than they think they should.⁸⁹

Finally, people might avoid paying estimated taxes altogether because they find it difficult or overwhelming. The payments themselves can be made online (or through the IRS2Go app), and finding and navigating the IRS website to make the payments is a relatively straightforward process.⁹⁰ But calculating the amount of the payments is not, and this difficulty only serves as a further source of psychological friction for platform workers.

Recall that independent contractors can avoid estimated tax penalties by paying 100% of their prior year tax liability or 90% of their current tax liability.⁹¹ While these rules are not as complex as other parts of the tax law, they are not quickly and easily applied. Taxpayers who do not prepare their own returns may not have quick and easy access to a copy of their return to refer to their tax liability for the prior year. Many are likely not even aware of the safe harbor that allows them to rely upon last year’s tax liability. Further, estimating tax liability to rely on the 90% rule is not easy. Taxpayers may not realize that they need to estimate both their income tax liability and their self-employment tax liability to meet these obligations. Studies also show that most people don’t know what their average or marginal tax rates are, making it difficult to estimate one’s prospective income tax liability.⁹²

A taxpayer who consults IRS Form 1040-ES: Estimated Tax for Individuals, will be confronted with twelve pages of instructions for estimating and paying these taxes.⁹³ To determine the amount of estimated tax one should pay, the form points taxpayers to the Estimated Tax Worksheet, which is a full-page worksheet containing fifteen line items.⁹⁴ Several of these line items have multiple parts (for example, a, b, and c) that require computations. One of the line items is the taxpayer’s self-employment tax liability, which is calculated on yet another full-page worksheet with six line items.⁹⁵

It is worth pausing here to observe the numerous obstacles that stand between platform workers and their tax obligations. One is simply knowledge; the taxpayer must understand what it means to be an independent contractor for tax purposes. But even if a taxpayer has a general understanding that they are solely responsible for their tax payments because they don’t have an employer to withhold, there are numerous sources of friction that make it less likely the taxpayer will comply. There are no required reminders to pay, the deadlines are not obvious, and the actual process of calculating estimated payments is complex and requires significant work on the part of the taxpayer.

2. Information Reporting as a Nudge

The reasons that independent contractors often struggle to pay their taxes on time are both intuitive and well-documented in the literature. Paying estimated taxes takes memory, planning, motivation, and self-control. In short, the current tax regime creates high levels of psychological friction for taxpayers who do not have their taxes withheld or who do not have access to tax advisors. There is a role here for a quarterly Form 1099 to help reduce this friction by serving as a “nudge.”

As defined by Richard Thaler and Cass Sunstein, a “nudge” is an intervention that “alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives.”⁹⁶ In other words, nudges encourage people to engage in desired behavior without offering them significant financial incentives or coercing them through the threat of punishment.⁹⁷ Nudges often accomplish this by making a desired action simpler or easier for people.⁹⁸ Research has shown, for example, that when employees are automatically enrolled in 401K savings plans as a default, enrollment in those plans is significantly higher as compared to when employees have to take affirmative steps to enroll in such plans.⁹⁹

In addition to helping people overcome inertia and procrastination, nudges might also provide information or reminders to encourage behavior, such as simplifying form instructions or sending text message reminders.¹⁰⁰ For example, a New York City program that sent text message reminders to people right before they were due to appear in court significantly reduced the number of people who failed to appear.¹⁰¹ The rate of failure to appear in court declined even more when the text reminders were paired with a redesigned summons form that more prominently displayed pertinent information, such as where and when to appear, and the consequences of not appearing.¹⁰² Governments around the world have increasingly employed nudges to achieve a variety of other public policy goals, from promoting health, protecting the environment, and encouraging people to vote.¹⁰³

As illustrated by the success of automatic enrollment in retirement plans, nudges are well suited to guide behavior when procrastination, inertia, and similar psychological frictions are involved. This makes payment of taxes by platform workers an ideal candidate for nudges. Particularly, a nudge that could provide both information and a reminder to the taxpayer about paying estimated taxes—similar to the text reminder and redesigned summons form in the New York City program—could significantly enhance compliance. And policymakers would not need to reinvent the wheel because a source of information for taxpayers already exists: the Form 1099. Part IV develops a specific proposal for a redesigned Form 1099 that a taxpayer would receive quarterly: serving both as a source of information (how much income was earned and what steps must be taken to pay taxes) and as a reminder to pay immediately prior to each deadline.

When considering why platform workers struggle to meet tax payment obligations, the Form 1099 has the potential to take on a new and powerful role in enhancing tax compliance. To be sure, the traditional function of the 1099—as a way to inform the government of the taxpayer’s earnings and to deter cheating—will always be paramount. But a well-designed system of information reporting can also serve as a nudge. The 1099 can provide information, simplification, and timely reminders to pay, with little extra administrative cost. Before turning to the specifics of the proposal for a quarterly 1099, the next Section explores the social science literature on what makes an effective informational nudge, particularly in the context of taxes.

B. Designing Effective Informational Nudges

This Section discusses recent studies showing how a well-designed nudge, in the form of a reminder letter, can improve tax compliance. It then uses the insights from these studies to describe how a quarterly 1099 could be best designed to improve tax compliance by platform workers.

1. Reminders to Pay Taxes Are Effective and Timing Matters

Several recent empirical studies show that sending letters reminding people to pay their taxes results in a higher likelihood of payment.¹⁰⁴ For example, one field study examined the effect of mailing reminder letters to property owners who had obligations to pay quarterly property taxes.¹⁰⁵ While one group in the study received brief reminder letters every quarter for a year, a second group in the study received a one-time mailing with a guide to develop a financial plan, as well as a follow up phone call from a financial counselor.¹⁰⁶ The one-time financial planning packet and offer of free counseling had no effect on timely property tax payments.¹⁰⁷ But the quarterly reminders reduced the rate of default on property taxes by one third.¹⁰⁸ The study’s authors concluded that “repeated, generic reminders” were more effective at prompting timely payment than “customized information about their obligations” that was sent to taxpayers only one time.¹⁰⁹

Another field study conducted with the Ministry of Finance in Ontario examined the effect of sending letters to business organizations who were late in meeting their payroll tax obligations.¹¹⁰ The experimental letter, which gave step-by-step instructions for how and when to make payment, increased the likelihood of payment in the year the letter was sent.¹¹¹ However, the study showed no evidence that receiving the experimental letter improved compliance in the following year.¹¹² On the other hand, when some businesses were sent another letter in the subsequent year, compliance increased, suggesting that such letters are “most effective when they proximately precede a decision point.”¹¹³

These studies indicate that nudging tax compliance through reminders is effective and, importantly, the timing of those communications matters. But for platform workers and other independent contractors, there is currently no system of reminders for when payment is due. While the annual Form 1099 does communicate vital information to taxpayers about their total earnings from a particular payer, it is only received after the tax year has ended, long after the taxpayer’s four estimated tax payment deadlines have come on and gone.¹¹⁴

The studies discussed above suggest that communications that do not immediately precede payment deadlines are unlikely to prompt payment and, concededly, the current Form 1099 was not designed to serve as a nudge. However, there is no reason that third-party information reporting can’t continue in its current role (mainly as a deterrent) while also serving as a reminder for the taxpayer. It is both intuitive and supported by empirical research that, if the government wants to encourage timely tax payments, it should prompt taxpayers to do so immediately preceding the deadlines for such payments. Thus, taxpayers should receive third-party tax information each quarter, leading up to the deadline for their quarterly estimated tax payments.

2. Planning Prompts Are Effective

Not only does the timing of information matter, but the content of reminder notices also impacts compliance. Specifically, the aforementioned experiment with the Ministry of Finance in Ontario showed that experimental late notices that contained “planning prompts” were more effective at improving compliance than a standard late notice.¹¹⁵ Planning prompts—nudges designed to help people make specific plans for how and when they will take an action—have been shown to help people overcome inertia and procrastination in a variety of settings.¹¹⁶ For example, planning prompts that ask voters to indicate where and what day they will vote have been shown to improve voter turnout.¹¹⁷ Similarly, text message reminders that included a link to make an appointment were found to increase uptake of COVID-19 vaccinations.¹¹⁸

In the Ontario tax study, the experimental letter gave taxpayers instructions about how and where to file their payroll tax return, along with a specific deadline of when to file it.¹¹⁹ By way of contrast, the standard letter (serving as a control) simply told taxpayers to pay “immediately.”¹²⁰ In summarizing the success of the experimental letter in improving compliance, the study authors observed:

Drawing on the insight that people often fail to act on their motivations, we argue that overdue tax payments might not only result from the lack of sufficient motivation or ability to pay, but also from the absence of a concrete plan of how to act on those motivations. Importantly, providing a plan with an explicit deadline and specific instructions for its implementation appears to encourage organizational taxpayers to act and aids in overcoming barriers of procrastination or forgetfulness . . . .¹²¹

The Ontario tax study, and other research on the effectiveness of planning prompts, indicates that a well-designed nudge may help people follow through on intended behavior by providing them with concrete steps for how to act. This indicates that quarterly tax information provided to independent contractors would be most effective if the content of the reminder provided specific details about how and when to pay estimated taxes. This idea is developed more in Part IV below.

3. Formality Matters

Finally, research shows that formal communications from the government may be more effective at nudging behavior than informal communications.¹²² A recent set of field studies documents this so-called “formality effect,” in which people responded more to communications that looked official, as opposed to communications that looked less official because they were in colorful font, accompanied by graphics, pictures, or informal language.¹²³ In the study, subjects were more likely to report taking a requested action, such as self-certifying a business or claiming a tax credit, if they received the more formal communication.¹²⁴ The study’s authors hypothesized that people see formality as an indicator of credibility, and that the formal letters conformed with their “expectations about how government communications should look, . . . signaling trustworthiness and competence.”¹²⁵

This recent research observing a formality effect suggests taxpayers may pay more attention to and take more seriously formal communications as opposed to other types of reminders. For this reason, nudging taxpayers to pay quarterly taxes through a Form 1099 is likely more effective than less formal reminders, such as email communications from platform companies.

Consider an Uber driver, for example. Presumably Uber could send the taxpayer an earnings statement each quarter with an explicit reminder to pay estimated taxes. But a Form 1099 is a well-known government form which undoubtedly holds an association in most taxpayers’ minds with reporting and paying taxes. A quarterly 1099 would be salient, formal, and likely received less frequently than other communications from Uber. All of these factors suggest a taxpayer would be more likely to pay attention to and respond to the 1099 than a less formal reminder.

IV. THE PROPOSAL: QUARTERLY INFORMATION RETURNS

Drawing on the lessons from the social science literature discussed in Part III, this Part offers a novel proposal for a quarterly Form 1099. Specifically, it proposes a new Form 1099-ES to be sent to certain taxpayers each quarter, in addition to the annual Form 1099-K. The 1099-ES would be issued to online platform workers ahead of each estimated tax payment deadline. However, unlike the annual Form 1099-K, the 1099-ES would go only to the taxpayer and not the IRS. Nothing would change with respect to the process of year-end reporting on Form 1099-K to both the IRS and the taxpayer.

A. Form 1099-ES: The Basics

This Section discusses the fundamental elements of a Form 1099-ES: when it would be issued and what the form would contain. As the social science research indicates, timing the delivery of Form 1099-ES to immediately precede estimated tax deadlines would help taxpayers comply with these deadlines.¹²⁶ This Section also draws upon the research about planning prompts to propose simple and clear instructions for paying estimated taxes.¹²⁷

1. Timing

Recall that estimated tax payments are due four times per year, fifteen days after each payment period ends.¹²⁸ Confusingly, the payment periods are not broken up into equal three-month quarters. Rather, the four payment periods and corresponding deadlines are as follows (with a two-month period in the spring and a four-month period in the fall)¹²⁹:

Table 1.
Payment Period	Estimated Tax Payment Due Date
January 1 – March 31	April 15
April 1 – May 31	June 15
June 1 – August 31	September 15
September 1 – December 31	January 15

Note that the uneven nature of the payment periods adds complexity and likely makes it even more difficult for taxpayers to remember when to make estimated tax payments.

To assist platform workers in meeting their tax payment obligations in a timely manner, platform companies could be required to send a Form 1099-ES to the worker during the window between the end of the payment period and the estimated payment deadline. Since this period is currently only fifteen days, the best approach to implementing quarterly 1099s would be for Congress to extend the estimated payment deadlines to thirty days after the payment period ends. This would allow for the payer to have fifteen days to issue the 1099-ES and the taxpayer to have fifteen days from receipt of the 1099-ES to make the payment. The proposed schedule would be as follows¹³⁰:

Table 2.
Payment Period	1099-ES Due Date	Estimated Tax Payment Due Date
January 1 – March 31	April 15	April 30
April 1 – May 31	June 15	June 30
June 1 – August 31	September 15	September 30
September 1 – December 31	January 15	January 30

If there were compelling reasons not to change the payment deadlines beyond fifteen days from the end of the pay period, the timeline for sending the Form 1099-ES would have to be shorter. There would be fifteen total days to split between the payer/sender of the 1099-ES and the taxpayer/recipient of the 1099-ES. Each of the two parties has their own obligation. The payer/sender must calculate how much the taxpayer/recipient has been paid that quarter and fill out and deliver the form. The taxpayer/recipient must determine how much estimated tax to pay by the deadline, using the information from the form.

As between the two parties, more time should be allotted to the recipient/taxpayer. Parties sending a 1099-ES will generally be large and sophisticated (for example, a company like Uber), and thus are likely to have the resources to handle their side of the obligations efficiently. On the other hand, as discussed above, individual recipients of a Form 1099 often lack knowledge about how to properly manage their tax obligations and are less likely to have automated processes in place to meet these obligations. Accordingly, the fifteen day period should be split in the taxpayer’s favor. For example, for the pay period ending March 31, the 1099-ES might be due within five days (April 5 in this example), which would leave the taxpayer ten days from receipt of the 1099-ES to meet the deadline. Such a schedule could be as follows:

Table 3.
Payment Period	1099-ES Due Date	Estimated Tax Payment Due Date
January 1 – March 31	April 5	April 15
April 1 – May 31	June 5	June 15
June 1 – August 31	September 5	September 15
September 1 – December 31	January 5	January 15

The key to this timing of delivery of Form 1099-ES would be proximity to the taxpayer’s estimated tax payment deadline. In this way, the 1099-ES would not only provide vital information to the taxpayer about how to meet their obligations (discussed more below), but the receipt of the 1099-ES itself would provide a reminder that estimated taxes must be paid, and that they are due shortly.

It is logical and intuitive that payment reminders would come in close proximity to payment deadlines, and that they come with the same frequency as payment deadlines. Indeed, people are accustomed to this schedule in virtually every other aspect of life in which regular payment deadlines occur. A monthly electricity payment deadline is almost certainly accompanied by the receipt of an electricity bill in the days leading up to the deadline. The receipt of a 1099-ES somewhere between five and fifteen days before estimated tax payments are due would serve the same function as a bill; it would not only help taxpayers determine what they owe, but it would also remind taxpayers that they must make payment.

Given the desirability of timing the Form 1099-ES to be close to the payment deadline, the most efficient means of delivery would be to send it to taxpayers electronically. Current IRS rules allow the annual Form 1099 to be sent electronically (as long as the taxpayer consents), and this method of delivery of tax forms is likely familiar to most platform workers.¹³¹

2. Content of Form

The goal of Form 1099-ES is twofold. First, the form provides a reminder of the taxpayer’s obligation to make a quarterly estimated tax payment. Even for taxpayers who might know exactly how much to pay (because, for example, they are basing their estimated tax payments on the prior year’s tax liability), the form will still serve as a reminder of when to pay. A second and equally important goal of the Form 1099-ES is to help taxpayers calculate and make their estimated tax payments.

Recall that, in the studies discussed above in Part III, individuals were more likely to complete tasks when they were given specific, simple instructions, and completion was made as easy as possible. For example, vaccine uptake increased when individuals were asked to pick a date and given a link to make an appointment.¹³² Similarly, parties were less likely to miss a court date when they received reminders and a simplified summons form with clear instructions about where to go and when.¹³³ In light of this research, the goal of the Form 1099-ES should be to make it as clear and easy as possible for the taxpayer to make estimated tax payments. To that end, the Form 1099-ES should be based on a simplified version of Form 1099-K, with brief instructions about how to calculate and pay estimated taxes.

The current Form 1099-K contains basic identifying information about both the payer and the recipient/taxpayer, along with eight boxes providing gross payments and certain tax information.¹³⁴ Boxes 1 and 5 are most relevant for this purpose: Box 1 shows gross earnings for the entire year, and Box 5, which is broken up into Box 5a-January, Box 5b-February, and so forth, shows earnings for each of the twelve months of the year.¹³⁵ Form 1099-K does not contain any instructions to taxpayers about how to report and pay taxes on their gross earnings reported in Box 1.¹³⁶

The Form 1099-ES would use the template for Form 1099-K as a starting point. In lieu of the current title, “Form 1099-K, Payment Card and Third Party Network Transactions,” the form would simply say “Form 1099-ES, Statement of Quarterly Payments.” The identifying information, such as the taxpayer/recipient’s name, address, and taxpayer identification number, along with the payer’s name and address, would be the same. The only substantive change would be to Box 1. Rather than saying “Gross Amount of Payment” as Form 1099-K does, Box 1 would be broken up into two parts: Box 1a and Box1b.

Box 1a of Form 1099-ES would say “Gross Payments for the Payment Period January 1–March 31” (or adjusted accordingly for the relevant payment period). Box 1a would then contain payments for that pay period only. This would be the key information for determining the taxpayer’s estimated tax payment.

Box 1b would show “Gross Payments Year to Date.”¹³⁷ Box 5 would fill in the payments for each of the relevant months (for example, January, February, and March) as on the regular Form 1099-K.

The top half of the Form 1099-ES would look much like the Form 1099-K, with the exception of the modifications described in the preceding paragraphs. However, the bottom half of Form 1099-ES would contain several short pieces of important information for taxpayers. (Currently, the bottom half of Form 1099-K is blank). The bottom half of Form 1099-ES should communicate the following information: (1) the exact deadline for making an estimated tax payment; (2) the link to make the payment online; and (3) specific, simple information for how to calculate the estimated tax payment based on the gross payments reported. Note, this tracks the social science research indicating that people are most likely to follow through with tasks when they are provided with step-by-step instructions about how to act.¹³⁸ A specific example of these instructions is discussed later in Section IV.B.

3. Simplified Safe Harbor Payment

Implementing an effective quarterly 1099 form would require one substantive law change, which would be a simplified method of calculating estimated taxes. Recall that currently, estimated tax penalties apply unless the taxpayer pays 100% of the prior year’s tax liability or 90% of the current year’s liability (or owes less than $1,000).¹³⁹ None of these lend themselves to a quick and easy calculation that can be communicated in one step on a Form 1099-ES.

The most effective way to encourage platform workers to make an estimated tax payment is to provide a new safe harbor rule that allows them to pay a fixed percentage of the quarterly gross payment that is reflected on the 1099-ES. Importantly, this does not require the taxpayer to have any other information at their disposal (such as last year’s tax liability) other than what is printed on the Form 1099-ES. For example, the Form 1099-ES might tell taxpayers that they can avoid an estimated tax penalty if they pay 5% of their gross payments in estimated tax. For taxpayers that want to do a more detailed calculation of their estimated tax liability, the form could also refer to the longer instructions (and worksheet) for how to do so.¹⁴⁰ The next Section further discusses how such a safe harbor could be calculated.

Although the 90%/100% rules for avoiding an estimated tax penalty are statutory, the Treasury and the IRS could likely implement an administrative safe harbor rule without congressional action.¹⁴¹ In other contexts, the IRS has enacted administrative safe harbor rules which taxpayers can choose to rely on to avoid penalties but are not obligated to follow.¹⁴² One example is the simplified home office deduction. Section 280A of the Internal Revenue Code (“Code”) provides statutory limitations on the deductibility of home office expenses.¹⁴³ However, in Revenue Procedure 2013-13, the IRS provides “an optional safe harbor method that individual taxpayers may use to determine the amount of deductible expenses attributable” to their home office for the year.¹⁴⁴ Under the optional safe harbor, rather than tracking and allocating actual expenses attributable to the home office (such as rent, depreciation, or utilities), taxpayers may instead elect to deduct $5 per square foot of home office space, up to a maximum of 300 square feet ($1,500 total).¹⁴⁵

In the case of this home office safe harbor, the government has made a decision to sacrifice accuracy in the name of tax administration. The Revenue Procedure states:

The Internal Revenue Service (Service) and the Treasury Department recognize that the calculation, allocation, and substantiation of allowable deductions attributable to the use of a portion of the taxpayer’s residence for business purposes can be complex and burdensome for small business owners. Accordingly, the Service and the Treasury Department are providing this optional safe harbor method to reduce the administrative, recordkeeping, and compliance burdens of determining the allowable deduction for certain business use of a residence under § 280A.¹⁴⁶

Taxpayers are not obligated to use the simplified home office deduction; if they think they can claim a higher deduction, they can simply apply the statutory rules for deducting home office expenses.

In the same way, a safe harbor estimated tax payment would offer platform workers an option for calculating estimated tax payments that would allow them to avoid an estimated tax penalty; they would multiply a fixed percentage amount (for instance, 5%) by the gross payment shown on their 1099-ES. For taxpayers who wanted to make a more precise calculation of their estimated tax liability, they would be free to use the statutory rules for avoiding penalties. Like the simplified home office deduction, the simplified safe harbor payment for estimated taxes would provide taxpayers with an easy-to-use formula that could be applied quickly with virtually no administrative hassle.

It is also worth noting that providing taxpayers with a simplified safe harbor payment in the form of a fixed percentage of gross receipts would have no bearing on the taxpayer’s ultimate tax liability. The key to the safe harbor would be to make paying estimated taxes as easy as possible to encourage better compliance with making estimated tax payments. This higher compliance would benefit both the government in its revenue collection efforts, and it would also benefit taxpayers by reducing the amount they must pay at the end of the year. However, a taxpayer’s year-end tax liability would still be calculated under the already existing tax rules.

If the taxpayer owed additional tax at the end of the year because the simplified safe harbor payments did not fully satisfy their tax obligations, the taxpayer would still be obligated to pay that tax with their return. However, they would not face an estimated tax penalty for paying it late. On the other hand, if the simplified safe harbor payments resulted in paying more tax than they owe at the end of the year, the taxpayer would claim a refund with their tax return. In this respect, they would be in the same position as many employees, who often claim refunds because they have more tax withheld than they ultimately owe.¹⁴⁷ This is also true for independent contractors who overpay or underpay their estimated taxes under the statutory rules for avoiding estimated tax penalties.

B. Scope and Implementation of the Form 1099-ES Requirement

A quarterly Form 1099-ES may not be cost effective in all cases, and it is still untested. Accordingly, this Article suggests gradual implementation of the form, starting with online platform companies that facilitate the performance of services (such as driving, errands, or household tasks). Within that group of platform companies, this Article proposes that the rollout of a quarterly 1099 requirement start with ridesharing platforms only, extending to other service-based platforms later after evaluating the initial rollout. Additionally, only platforms of a certain size (measured by gross receipts) should be required to send quarterly 1099-ES Forms to workers; the requirement is not intended to burden small businesses who work with independent contractors.

This Section discusses who would be required to send a Form 1099-ES, which payees (taxpayers) would receive the form, how to calculate a simplified safe harbor payment, and then offers an example of implementation for ridesharing service platform workers.

1. Who Would Be Required to Send Form 1099-ES?

At the highest level, a Form 1099-ES would only be required of payers who already have an obligation to send an annual Form 1099 to one or more independent contractors. As discussed in Part I, independent contractors generally receive either Form 1099-K or Form 1099-MISC if they receive over $600 during the tax year from a payer.¹⁴⁸ A Form 1099-MISC would apply to an independent contractor payment not made through an online application—for example, if a business hired a painter and paid them by check.¹⁴⁹ However, this Article focuses exclusively on payers who qualify as TPSOs (such as online platform companies),¹⁵⁰ and thus focuses only on payers required to send a Form 1099-K. In excluding Form 1099-MISC, the Article’s focus is intentionally limited to payers who are already transacting with payees electronically and thus likely have the technological capacity to efficiently process and issue electronic quarterly information returns. Such focus also recognizes the reality that online platform work is a growing and significant segment of the economy that presents unique tax compliance challenges.¹⁵¹

Within the realm of Form 1099-K issuers, the proposal does not include credit card companies, which also have obligations to issue 1099-Ks.¹⁵² This is, again, because the quarterly 1099 proposal is intended to help online platform workers and similar individual taxpayers. The 1099-K requirements for credit card companies require the form to be issued to a broader range of businesses, for example, a large brick and mortar retail business that accepts credit cards, which are not the taxpayers targeted by the proposal.

Excluding Form 1099-MISC issuers and credit card companies, the Form 1099-K rules apply to payers who qualify as TPSOs, which include online platforms like Uber and Etsy, payment applications like Venmo and PayPal, as well as some cryptocurrency processors.¹⁵³ Within this group, only online platforms that pay independent contractors for services (like Uber or TaskRabbit) should initially be subject to a Form 1099-ES requirement.

While many independent contractors earn income online that is not service related, such as by selling goods using Venmo or Etsy, gross income from these transactions is less likely to be taxable. This is because only net earnings after deducting the cost of the goods sold are subject to income and self-employment tax,¹⁵⁴ and many online sales are likely made at little to no profit. Consider, for example, someone who sells their used furniture using eBay. Even though they will receive a Form 1099-K if the gross payments for the furniture exceed $600, the seller would not have any taxable income to report unless they sold the furniture for more than they purchased it for (an unlikely result for used furniture). Without any tax liability, they would have no obligation to make estimated tax payments with respect to the sales. On the other hand, taxpayers who are paid for services are more likely to have reportable net income, even if they are able to claim some business deductions.¹⁵⁵

To be sure, many sellers of goods earn a taxable profit. A seller who knits blankets and sells them on Etsy is likely to earn more than they spent on supplies. However, it is harder to distinguish between casual sellers (who may be selling used goods at a loss) and professional sellers by looking at the platform alone. A payment platform like Venmo might be used to make casual sales and professional sales; it also is often used for transactions that are not taxable at all, such as gifts. Thus, for administrative ease, this Article proposes initially excluding these platforms altogether from the quarterly Form 1099-ES requirement.

If implementing the requirement for service platforms is successful, the quarterly 1099-ES could be implemented down the road for platform workers who sell goods. To target professional sellers who are likely to be making a profit (and thus have taxable sales to report), the government could consider raising the payment threshold substantially beyond the current $600 for a Form 1099-K. Thus, for example, it might only require quarterly 1099s for sellers on these platforms who earn at least $10,000 of gross receipts in the year or $5,000 in a single quarter.¹⁵⁶

In limiting its focus to service-based platforms, the proposal would also initially exclude platforms that allow individuals to rent residential spaces online, such as Airbnb and VRBO. The reason for this exclusion is that the primary goal of the proposal is to ease compliance burdens on non-employee service providers, which is the group that has been singled out by the GAO and commentators as in particular need of assistance in meeting tax compliance obligations.¹⁵⁷ Further, many property owners earn rental income through platforms like Airbnb passively and are therefore not treated as independent contractors subject to self-employment tax.¹⁵⁸ Like online sales platforms, Congress could decide to gradually extend the 1099-ES requirement in the future to cover property rentals, but the proposal herein is more modest in scope to start. Accordingly, the remainder of the Article will focus only on service-based platforms.

To implement the proposal, Congress could enact a statutory requirement that any TPSO that pays an individual in connection with the performance of services by that individual be required to send a quarterly 1099-ES if a certain dollar threshold of payment is met.¹⁵⁹ TPSOs that pay individuals for performing services could include ridesharing platforms like Uber and Lyft, delivery platforms like Instacart and DoorDash, and other service-based platforms like Handy and TaskRabbit.¹⁶⁰ However, as discussed further below, this Article suggests that quarterly 1099s first apply only to ridesharing platforms like Uber and Lyft, with later extension to other types of services.¹⁶¹

While the proposal is targeted at large platform companies (such as those mentioned in the preceding paragraph), it is possible a much smaller business could technically meet the definition in the statute and be swept into the Form 1099-ES requirements. On one hand, a quarterly information return benefits an independent contractor regardless of who the payer is. However, whether a quarterly 1099 is cost-effective depends, in part, on whether the administrative cost imposed on the third party who must send the form is justified.

Imagine, for example, that an individual began operating their own ridesharing business through a new online platform, and that they worked locally with just a few drivers and generated only modest revenue. For such an individual operating at a small scale, the relative cost of sending a quarterly Form 1099-ES might be high compared to the tax compliance benefit on the payee’s side of the transaction (both in terms of time saved by the payee and revenue collected by the government). On the other hand, larger platform companies are more likely to already have the infrastructure in place to quickly compute and produce an electronic form with quarterly earnings and, due to economies of scale, can likely do so at relatively low cost.

To account for the potential of burdening smaller payers where the administrative cost would not be justified, Congress should consider requiring quarterly 1099s to be issued only by payers that exceed a minimum amount of revenue.¹⁶² For example, the rule might only require quarterly 1099s to be issued by payers who earn at least $500,000 in gross revenue during the year. This would surely capture larger platforms that can handle the obligation at little administrative cost while excluding truly “small” businesses that might be unduly burdened by the extra administrative requirement.

2. Setting the Payment Threshold

In terms of setting the dollar threshold for quarterly 1099s, the starting point should be the current threshold for Form 1099-K. Since TPSOs must send a Form 1099-K to any payee who is paid more than $600 during the year, at a minimum, the Form 1099-ES requirement should be triggered if a payee receives $600 in payments in a single quarter.

What if the payee receives less than $600 in a quarter but appears on track to receive $600 by the end of the year? One quarter of the $600 threshold is only $150, and it is questionable whether this amount justifies the administrative cost of an additional tax form (particularly given the criticism that the $600 threshold has never been adjusted for inflation).¹⁶³ Thus, as long as the 1099-K threshold remains at $600, the Form 1099-ES threshold should not be set any lower. This would mean that a payer has an obligation to send a quarterly 1099-ES to a payee in any quarter where the total cumulative payments for the year thus far exceed $600.

For example, suppose Driver A drives for Uber and is paid $300 between January 1 and March 31 and then is paid $400 between April 1 and May 31. Uber would not have an obligation to send Driver A a Form 1099-ES for the first payment period because Driver A would not have exceeded the $600 threshold. But Uber would have an obligation to send a Form 1099-ES for the second payment period, because Driver A would have been paid over $600 ($700, in this example) by that point. The 1099-ES would be for the second payment period, but it would reflect both the payments for that payment period ($400 in this example) and the year-to-date gross payments ($700 in this example). Uber would also have an obligation to send a Form 1099-ES for any remaining payment period in which Driver A was paid any amount.

In the likely event that Congress eventually raises the $600 threshold for 1099-K reporting, the Form 1099-ES threshold should also be revisited and might not track the 1099-K threshold as precisely. For example, a current bipartisan proposal would raise the 1099-K reporting threshold to $10,000.¹⁶⁴ In that case, the quarterly 1099-ES threshold might start at something lower and might be tied to the amount of quarterly payment in addition to cumulative payments. For example, Congress could impose a requirement that a Form 1099-ES be sent to any taxpayer who earns at least $5,000 in any single payment period or has earned $10,000 cumulatively by that payment period. If the taxpayer ultimately did not earn enough to meet the Form 1099-K threshold by the end of the year, the payer would not have to issue the Form 1099-K, but the payee would still have the benefit of the reminder and assistance in paying estimated taxes. (Note, the payee would still have an obligation to report and pay tax on any taxable income even if the annual 1099-K threshold was not met.)

Finally, it bears repeating that the obligation to send a Form 1099-ES for a payment period would only be an obligation to send the form to the payee, not the IRS. This could be done electronically at little cost to the payer. At the same time, the IRS would not be overburdened with more forms to process.

3. Calculating the Simplified Safe Harbor Payment

Form 1099-ES would not only report a worker’s gross payments for the quarter but should also contain clear and simple instructions for how to calculate and pay estimated taxes. As discussed in Section III.A, this means providing the taxpayer with: (1) the exact deadline for making the payment; (2) a link to make online payments (and an address to mail physical payments); and (3) a simplified safe harbor method of calculating the estimated tax due.¹⁶⁵ This Section considers how to calculate that safe harbor payment and proposes using a formula of 5% of the gross payments for that payment period.

Recall that the goal of the simplified safe harbor payment is to provide taxpayers the ability to easily calculate estimated tax payments without having to track down any other information beyond what is reflected on the Form 1099-ES. To achieve this, the safe harbor estimated tax payment would have to be based on the taxpayer’s current year tax liability, rather than the previous year’s liability (which would require consulting last year’s tax return). Thus, the goal of the safe harbor payment would be to determine an estimate of how much income and self-employment tax would be due on the gross payment reflected on the current Form 1099-ES.

Determining a precise amount of tax due on a gross payment for an independent contractor is difficult to do without more information. First, only taxable income, not gross income, is subject to income tax, meaning that a worker would have to reduce their gross income by any available business deductions as well as so-called “below the line deductions” (either the standard deduction or itemized personal deductions) to arrive at taxable income.¹⁶⁶ Second, only net business income, after factoring in business expenses, is subject to self-employment tax.¹⁶⁷ Third, many independent contractors can also claim a deduction under Code § 199A of up to 20% of their business income.¹⁶⁸ Finally, although self-employment tax is generally calculated at a fixed percentage (15.3%), a taxpayer’s income tax rate depends on how much taxable income they have for the year.¹⁶⁹

More simply, 1099 Forms reflect gross payments, but federal taxes are generally only due on net earnings from self-employment. Thus, to provide a simplified calculation of how much tax is due on a gross payment, a formula would need to make several simplifying assumptions to arrive at estimated net income and an estimated tax rate.

First, net business income must be derived from gross payments. In other words, the formula must make an assumption about what portion of a gross payment will be left over after business expenses are deducted. To do this, policymakers could look to public IRS data showing the average ratio of net income to gross receipts for particular industries. For example, IRS data on sole proprietors shows that the average profit ratio for workers engaged in driving services, including ridesharing services, is approximately 30%.¹⁷⁰ In other words, net income after deducting business expenses was about 30% of gross income, on average. Similarly, a study conducted by the Office of Tax Analysis at the Department of Treasury examined profit ratios for gig economy workers and found that, on average, gross profit ratios were approximately 30%.¹⁷¹

Accordingly, to calculate a simplified safe harbor payment for the purpose of implementing Form 1099-ES, policymakers could assume a profit ratio of 30%. Note, in certain service industries, profit ratios are likely much higher. Ideally, a different safe harbor calculation could be offered to different workers according to industry. Further research might yield better data on average profit ratios in various sectors of the gig economy. For now, this Article suggests limiting the quarterly 1099 proposal initially to ridesharing platforms, where the profit ratio is more well established by IRS data.¹⁷²

Presuming a profit ratio of 30% means the safe harbor formula would assume 30% of the gross payment reflected on a Form 1099-ES represents taxable income. The next step would be deciding upon a tax rate. Taxpayers are responsible for both income tax and self-employment tax when they make estimated tax payments.¹⁷³ Self-employment tax is fixed at approximately 15% of net earnings.¹⁷⁴ Individual income tax rates range from 10% to 37%, depending on taxable income.¹⁷⁵ But since average platform earnings tend not to exceed the income levels associated with higher brackets, this proposal focuses on income tax rates of 10, 12, and 22%,¹⁷⁶ and does not consider higher marginal rates.¹⁷⁷

Combining income tax rates with self-employment tax would result in a total federal tax rate ranging from 15% to 37%, as reflected in Table 4 below¹⁷⁸:

Table 4.
Taxable Incomea	Income Tax Rate	Self-Employment Tax Rate	Total Federal Tax Rate
$0	0	15%	15%
Up to $11,000	10%	15%	25%
Up to $44,725	12%	15%	27%
Up to $95,375	22%	15%	37%
Note: aIt should be noted that these are marginal tax rates, so for a taxpayer who is taxed in a higher bracket, the first dollars of their income are taxed at lower brackets, and only the amount over the dollar threshold is taxed at the highest bracket. Because the purpose of this discussion is to arrive at a rough estimate of how much to pay in quarterly taxes for purposes of the simplified safe harbor, the marginal nature of the tax brackets can be disregarded.

Recall that the proposal assumes a 30% profit ratio for platform workers earning income from ridesharing services—in other words, that net income equals 30% of gross receipts. Setting aside any other deductions (other than business deductions), this would mean that the total tax due on a gross payment could be calculated as approximately:

30% x (the gross payment) x (the total tax rate)¹⁷⁹

Using this formula, the tax due on gross receipts can be derived as a single percentage of the gross receipts, as reflected in the Table 5 below:

Table 5.
Taxable Income	Total Federal Tax Rate	Presumed Profit Percentage	Tax Due as a Percent of Gross Receiptsa
$0	15%	30%	4.5%
Up to $11,000	25%	30%	7.5%
Up to $44,725	27%	30%	8.1%
Up to $95,375	37%	30%	11.1%
Note: aCalculated as 30% times the total tax rate.

As shown above, the tax due on a gross payment would range from about 4% to about 11% of the payment, depending on the taxpayer’s overall taxable income. However, a number of factors which are difficult to generalize are relevant in determining which rate in the range is appropriate for a particular taxpayer. First, taxpayers may earn income from other sources beyond platform work, putting them in a higher income tax bracket than their Form 1099 suggests. Second, although the table above accounts for business expenses by assuming a 30% profit ratio, it does not account for any other deductions and thus likely overestimates tax liability for many taxpayers. Recall that taxpayers can claim the standard deduction or itemized deductions, and independent contractors can generally claim an additional below-the-line deduction under § 199A.¹⁸⁰ Other above-the-line deductions (such as retirement account contributions or student loan interest) also reduce taxable income for taxpayers.¹⁸¹ Finally, workers may be entitled to other tax credits (for example, a child tax credit) that further reduce their tax liability.¹⁸²

These factors, on balance, point towards erring on the lower side of the range of possible percentages of gross receipts. For this reason, this Article proposes 5%, which is a flat and easy-to-remember percentage at the low end of the range reflected in Table 5 above.¹⁸³ Although this Article proposes only one rate to start, policymakers could implement different rates for different industries or groups of platform workers. For example, workers in industries that are purely service based (for example, childcare) likely have far fewer business expenses than ridesharing service drivers, which means 5% of gross payments as an estimated tax payment would probably be too low.¹⁸⁴ For such workers, 10% of gross payments might make more sense as a safe harbor.

4. Examples: Ridesharing Service Platform Workers

This Section illustrates the estimated tax safe harbor proposal with concrete examples involving four rideshare drivers. For the sake of simplicity, all four drivers are assumed to be single, childless, and have no other income.¹⁸⁵ Additionally, the examples assume each driver claims business expenses, a § 199A deduction, and the standard deduction, and no additional deductions or credits.

Assume that the first driver, Driver A, receives gross payments from a ridesharing platform of $25,000 for the year. The distribution of those payments across the four payment periods is shown in Table 6.A below. After business expenses (including fees to the platform and the standard mileage deduction), assume that Driver A’s net income from platform work is $7,500.¹⁸⁶ Driver A’s actual tax liability would be $1,060.¹⁸⁷ Driver A’s estimated tax payments using the 5% safe harbor calculation would total $1,250. Thus, Driver A would overpay their taxes slightly and be entitled to a $190 refund, as illustrated in the table below.¹⁸⁸

Table 6.A. Driver A
	Gross Payment from Platform	Safe Harbor Estimated Tax Payment (5%)	Actual Year-End Tax Liabilitya	Amount Owed (Refund)
Period 1	$6,000	$300	. . .	. . .
Period 2	$5,000	$250	. . .	. . .
Period 3	$8,000	$400	. . .	. . .
Period 4	$6,000	$300	. . .	. . .
Total	$25,000	$1,250	$1,060	($190)
Note: aSee supra note 187.

Assume Driver B receives gross payments of $50,000 from the platform and nets $15,000 after expenses.¹⁸⁹ Driver B would pay $2,500 in taxes under the estimated tax safe harbor and have $2,126 of actual tax liability, resulting in a refund of $374, as illustrated in the table below.¹⁹⁰

Table 6.B. Driver B
	Gross Payment from Platform	Safe Harbor Estimated Tax Payment (5%)	Actual Year-End Tax Liabilitya	Amount Owed (Refund)
Period 1	$12,000	$600	. . .	. . .
Period 2	$13,000	$650	. . .	. . .
Period 3	$10,000	$500	. . .	. . .
Period 4	$15,000	$750	. . .	. . .
Total	$50,000	$2,500	$2,126	($374)
Note: aSee supra note 190.

Assume that Driver C receives gross payments of $75,000 from the platform and nets $22,500 after expenses.¹⁹¹ Driver C would pay $3,750 in taxes under the estimated tax safe harbor and have $3,744 of actual tax liability, resulting in a $6 refund.¹⁹²

Table 6.C. Driver C
	Gross Payment from Platform	Safe Harbor Estimated Tax Payment (5%)	Actual Year-End Tax Liabilitya	Amount Owed (Refund)
Period 1	$20,000	$1,000	. . .	. . .
Period 2	$15,000	$750	. . .	. . .
Period 3	$25,000	$1,250	. . .	. . .
Period 4	$15,000	$750	. . .	. . .
Total	$75,000	$3,750	$3,744	($6)
Note: aSee supra note 192.

Finally, assume Driver D receives gross payments of $100,000 from the platform and nets $30,000 after expenses.¹⁹³ Driver D would pay $5,000 in taxes under the estimated tax safe harbor and have $5,366 of actual tax liability, resulting an additional $366 of tax being due with their return.¹⁹⁴

Table 6.D. Driver D
	Gross Payment from Platform	Safe Harbor Estimated Tax Payment (5%)	Actual Year-End Tax Liabilitya	Amount Owed (Refund)
Period 1	$20,000	$1,000	. . .	. . .
Period 2	$35,000	$1,750	. . .	. . .
Period 3	$12,000	$600	. . .	. . .
Period 4	$33,000	$1,650	. . .	. . .
Total	$100,000	$5,000	$5,366	$366
Note: aSee supra note 194.

Several observations follow from these examples. Generally, workers with lower income will owe less in taxes than those with more income, so lower income workers are more likely to receive a refund if they use the safe harbor, while higher income workers are more likely to owe additional taxes. In the examples above, Drivers A and B (who have the lowest income) made overpayments through estimated taxes resulting in modest refunds. Driver C’s estimated tax payments matched their tax liability almost exactly, while Driver D (the highest earner) owed a modest amount in additional taxes.

Since Drivers A and B are more likely to face liquidity constraints (due to earning less income overall), it is ideal that, as between owing money and receiving a refund, they do not owe money with their tax return. In other words, Drivers A and B are less likely to be able to come up with additional cash for taxes owed when they file their return, so it is ideal they would slightly overpay, rather than underpay. Driver D, on the other hand, is in a better financial position to owe money with their return since they made significantly more money during the year.

In sum, while estimated tax payments are almost never going to match up exactly with a taxpayer’s year-end liability, the goal here is to minimize how much overpayment or underpayment the taxpayer will experience. If taxpayers are paying too much in estimated taxes during the year, even though they can claim a refund, they might be depriving themselves of much needed liquidity during the year. For taxpayers who do not pay enough in estimated taxes, even though the safe harbor formula would protect them from penalties, they may not budget properly for a significant payment due with their tax return. The 5% safe harbor proposed here aims to result in most low-income rideshare drivers receiving a modest refund, while higher earners may owe some additional taxes but would not pay estimated tax penalties.

C. Addressing Potential Objections

This Section addresses three potential objections to the proposal for quarterly 1099s. First, critics might argue that requiring certain businesses to send a Form 1099 every quarter would create too much cost or complexity for the business, for the IRS, or both. Second, critics might argue that there is too much heterogeneity among taxpayers to come up with a fixed formula for a safe harbor estimated tax payment. Third, critics might claim requiring platform workers to receive more frequent tax statements would impose unfair burdens on these workers.

1. Quarterly 1099s Would Impose Undue Complexity and Cost

History has shown that, when Congress expands tax reporting obligations of third parties (such as through expanded 1099 requirements), those third parties generally oppose the change.¹⁹⁵ This is to be expected because it is the third parties who bear the administrative cost of obligations like issuing 1099s. Third parties may also be concerned that tax reporting obligations will make their customers reluctant to do business with them.¹⁹⁶ Thus, if Congress were to implement a new requirement for quarterly 1099s for platform workers, it is possible (if not likely) that the platforms would oppose the rule and claim it is unduly burdensome.

There are several responses to this claim that quarterly 1099s would pose undue burdens on the platform companies. First, the quarterly 1099 requirement would only apply to platforms already required to issue a Form 1099-K to the worker. This means that the IRS is already receiving information about the worker’s earnings. Thus, quarterly 1099s should not discourage workers from doing business with the platform because the IRS is not receiving any new or additional information. Rather, the quarterly 1099 is only for the worker’s benefit. In essence, the quarterly 1099 is a form of free tax assistance from the platform to the worker.

Second, while sending quarterly 1099s to workers will impose additional administrative costs on the platform, that cost will be minor. Particularly, the marginal cost of tracking earnings each quarter is relatively low since the platform already has an obligation to engage in year-end information reporting under the 1099-K rules. This means that additional administrative steps required for 1099-Ks, such as asking taxpayers to provide taxpayer identification numbers, will already be in place.¹⁹⁷ The platform companies also likely already have the necessary technology in place to send tax forms electronically to their workers. Since the quarterly forms only go to the workers, the platforms companies will have no additional filing obligations with the IRS.

Further, it should be noted that imposing some administrative costs on third parties is both efficient and foundational to our tax system. For example, withholding imposes administrative costs on employers, but it is more efficient to have taxes collected and paid by the employer than to impose payment obligations on each employee.¹⁹⁸ Withholding also results in higher tax compliance and more revenue collected.¹⁹⁹ Similarly, third-party information reporting in all areas, from investment income to broker transactions to independent contractor payments, is justified by the higher compliance it brings.²⁰⁰

The same reasoning applies to quarterly 1099s. The tradeoff for the minor cost it would impose on third parties (who can afford to bear it) is reduced administrative cost and higher compliance for the platform workers. In other words, the modest cost to the platform of additional communications to the taxpayer throughout the year should be outweighed by the benefit to the taxpayer of receiving a report of earnings with a reminder and instructions for how to pay estimated taxes.

Another related argument against the proposal might be that the IRS would also be unduly burdened by more 1099 forms, but this argument is misguided. Recall that the quarterly 1099-ES would be an obligation of the platform company to send to the worker, but not to the IRS. The IRS would receive a copy of the taxpayer’s Form 1099-K at the end of the year as under the current system, but the IRS would not receive quarterly information. Thus, there would be no additional returns for the IRS to process as a result of a quarterly 1099 requirement.

Quarterly 1099s would pose a minor administrative burden on the IRS in that the requirement would have to be policed in some way. Presumably, Congress could impose a penalty on businesses that fail to issue required 1099-ES forms to taxpayers in the same way that it imposes penalties for failure to file year-end information returns.²⁰¹ To enforce these rules, the IRS would need to monitor compliance through audits. However, this is already the case for enforcing the expanded 1099-K rules, so verifying compliance with quarterly reporting should not impose significant additional enforcement costs on the IRS.

Finally, it is worth noting that advances in technology have justified expansions to information reporting rules in recent years. As tax information is digitized and easily shared online, it is less costly to require third parties to issue 1099s, which means less political resistance and a greater net benefit to increasing 1099 reporting. These same technological advancements that have justified expanding the pool of 1099 recipients justify providing taxpayers with more frequent, and therefore more helpful, tax information.

2. The Safe Harbor Calculation Would Be Inaccurate

Critics of the 1099-ES proposal might also argue that it is too difficult to provide workers with a simple method of calculating their estimated taxes because each taxpayer’s situation is different. Those critics might further argue that the formulaic safe harbor proposed in this Article (5% of gross receipts) will result in underpayments or overpayments in too many cases.

It is certainly true that the simplified safe harbor formula for estimated tax payments—5% of the gross payment—relies on assumptions that will turn out not to be true for all taxpayers. For example, it assumes very few non-business deductions, and it assumes a 30% profit ratio that may be too high or too low for some workers.

But it is important to keep in mind that the 5% safe harbor is not intended to substitute for calculation of taxpayers’ actual tax liability. That is the function of Form 1040, the annual Individual Income Tax Return. The safe harbor is merely meant to be a simple way to give taxpayers some basis for making estimated tax payments. In this respect, it is not unlike the statutory rule that allows taxpayers to avoid estimated tax penalties by paying at least 100% of their prior year’s tax liability in estimated taxes.²⁰² In many cases, basing estimated tax payments on last year’s tax liability will result in significant underpayment or overpayment of estimated taxes; this will be true whenever the taxpayer’s current income is significantly different than the prior year’s income. (It will also be true if the taxpayer has a different tax situation from the prior year due to a change in marital status, dependents, deductions, or credits.) However, Congress has a made a rational decision to allow taxpayers to use last year’s tax liability as a reasonable basis to estimate taxes for the purpose of avoiding penalties. The 5% formula would have the same function.

Furthermore, the simplified safe harbor adds an alternative that is meant to better estimate the current year’s tax liability based on current earnings. This not only allows taxpayers to make payments without having to find last year’s tax return, but it also is more likely to help taxpayers avoid owing significant tax with their year-end tax return that they might not have budgeted for.

Further, using a fixed percentage of gross payments as a starting point, such as the 5% proposed in this Article, makes it much easier for taxpayers to make individualized adjustments to reflect their tax situation. For example, if a platform worker makes estimated payments based on 5% of their gross payments but ends up owing $1,000 with their tax return, they might decide to adjust the payments to 6% the following year. If they still owe money and prefer a refund, they might upward adjust to 7% the next year, and so on, until they are happy with their year-end tax situation. Relating estimated tax payments to a fixed percentage of gross payments gives taxpayers a better understanding of how their taxes relate to their earnings and more agency over the process of paying estimated taxes.

3. Quarterly 1099s Would Be Unfair to Low Income Workers

Finally, in the wake of the recent expansion of the 1099-K rules to cover more online transactions, some politicians and interest groups have claimed the rules imposed an unfair tax on low-income workers. For example, Senator Rick Scott released the following statement:

President Biden claims he won’t raise taxes on anyone making less than $400,000, but that’s a lie – he’s already done it. Along with trillions in unnecessary and unrelated in spending in the American Rescue Plan, Biden inserted a tax increase on gig workers, like hardworking Americans that work as drivers for Uber, Lyft or DoorDash.²⁰³

Similarly, the Coalition for 1099-K Fairness warned the new requirements would create “new IRS paperwork burdens” for small businesses.²⁰⁴ These same politicians and interest groups would likely repeat these arguments in response to the proposal for quarterly 1099s.

On one hand, the critique that more tax information is unfair to taxpayers themselves, particularly that it imposes a tax increase on them, is the easiest of all to address because it is based on a fallacious premise. However, because the argument is largely rhetorical, it may be the most pernicious.

Importantly, changes to information reporting rules are not changes to substantive tax law, so they cannot be correctly described as imposing a new tax or a tax increase. It has always been the case that platform income is subject to tax.²⁰⁵ The previous $20,000 threshold for receiving a 1099-K was not a rule that exempted transactions under $20,000 from income and self-employment tax. The rule simply triggered an obligation on the payer to send a Form 1099-K. It has always been the case that taxpayers are supposed to track and report earnings under the 1099 threshold.²⁰⁶ (Whether they do so is another story, but willfully failing to do so is tax evasion.²⁰⁷)

Although it might be politically persuasive to advocate leaving platform workers alone when it comes to their taxes, there is no valid reason that providing them with more information and with simplified instructions on how to pay their taxes is harmful. The only reason to withhold such information would be to give taxpayers a plausible basis for not paying their taxes.

There has been one line of critique about taxpayer burden that has merit, which is that the new 1099-K rules may be overbroad and cause confusion and anxiety for taxpayers (like sellers of used goods) who do not owe any tax.²⁰⁸ It is for this reason that the proposal in this Article does not cover sellers of goods but instead is aimed only at industries (like ridesharing services) that have an established history of earning taxable income. If, in the future, Congress decides to more narrowly tailor the 1099-K reporting rules to certain industries or income thresholds, Form 1099-ES could track these changes. In other words, the goal of quarterly 1099 reporting would always be to provide regular information to taxpayers that owe taxes and not to send needless forms to taxpayers who do not have estimated tax payment obligations.

CONCLUSION

Paying one’s taxes correctly and on time is exceptionally hard, especially for independent contractors. With the exception of employee withholding, our current tax system does very little to make paying federal taxes easy for people. Yet, the threat of punishment for getting it wrong looms large in many taxpayers’ minds. Perhaps nowhere is this sentiment better captured than in a 2020 viral TikTok video about paying taxes, which has earned over 2.2 million likes to date.²⁰⁹ The video is a parody of an interaction between a young taxpayer and an IRS agent, with the following dialogue:

Taxpayer: Hi, I’m 18 years old. This is my first time paying taxes. I really don’t know what I’m doing. Can you tell me how much I owe and I’ll just pay it?

IRS: No, we can’t do that. You have to figure out that amount for yourself.

Taxpayer: Oh, ok. If I’m just a little bit off in the amount that I owe, it’ll be ok because it’s my first time, right?

IRS: Oh no, we already know how much you owe, exactly, I mean, down to the penny, but you still have to figure that out for yourself.

Taxpayer: Well, what if I get that amount wrong?

IRS: You go to federal prison.

The post is humorous because of the truth that underlies it.²¹⁰ It portrays a system that borders on absurd: we expect compliance and accuracy from taxpayers, with the threat of punishment for noncompliance, with virtually no help from the government with getting it right.

This Article focuses on one of the most confusing yet important obligations for platform workers and other independent contractors: figuring out how and when to pay their estimated taxes. The proposal for quarterly 1099s is not a panacea, but it could go a long way towards helping taxpayers budget for taxes, calculate an estimated payment, and make their payments on time.

More importantly, although the proposal is modest in scope, it is also a call to policymakers to rethink the role of third-party tax information more broadly. While deterrence and monitoring taxpayers will always be crucial aspects of tax enforcement, tax information can also empower taxpayers. In this respect, third-party information returns should be thought of as sending an informational nudge to the taxpayer, rather than just reporting information to the IRS. Just as monthly bills help customers pay for services, quarterly 1099s would help taxpayers calculate and stay on top of quarterly tax payment obligations. This reform would not only raise revenue, but it would also be a much-needed step towards simplifying and demystifying the tax system for individual taxpayers.

97 S. Cal. L. Rev. 1527

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Kathleen DeLaney Thomas*

* Aubrey L. Brooks Distinguished Professor of Law, University of North Carolina School of Law. I am grateful to Leigh Osofsky and Courtney Thomas for helpful feedback on this Article.

Common Heritage as Public Trust: A Property Law Approach to Managing Resources Beyond National Jurisdiction

October 2024October 2024Christopher Mirasola*

The search for rare minerals is taking us well beyond the bounds of national jurisdiction, and international law is struggling to keep up. In the 1970s states agreed that the deep seabed beyond national jurisdiction was the “common heritage of mankind,” a doctrine that was ultimately codified in the United Nations Convention on the Law of the Sea. The common heritage doctrine has, from the outset, been something of a chimera. And fears over its association with redistributive economic policies led to the failure of an agreement regulating activities on the moon. Yet the doctrine exists as a going concern in international law. Deep seabed mining is on track to begin in 2024. The United Nations is presently considering international rules for asteroid and lunar mining. And efforts to protect marine biodiversity continue to rely on the idea that certain resources are our common heritage. If states are to deal productively with any of these issues, we need a revitalized approach to the common heritage doctrine.

Instead of embodying a static set of legal precepts, I argue for a flexible understanding of the common heritage doctrine rooted in theories of commons property that is sensitive to the peculiarities of specific natural resources. A fruitful exemplar of such an approach is the public trust doctrine of U.S. property law. Sharing with the common heritage doctrine a common foundation in Roman principles of common property, the public trust doctrine recognizes that governments hold certain natural resources in trust for the beneficial use of their citizens. By imposing this duty, and by limiting the purposes for which governments can use these resources, the public trust doctrine is a prototypical example of property as a set of governance rules. Drawing on the public trust doctrine’s rich common law and scholarly history, I propose a four-part framework for a public trust approach to the common heritage doctrine.

To demonstrate the opportunities made available by this approach, I take outer space mining as a case study and I propose steps that states can take to incrementally govern resource extraction in a manner more likely to attract international consensus.

INTRODUCTION

There is an inconvenient truth to our push towards a renewable energy future—it requires a stupendous amount of hard-to-find minerals. The growing fleet of electric vehicles, for example, all need high-capacity batteries that rely on lithium, nickel, cobalt, manganese, and graphite.¹ To be sure, we already mine for these minerals—the Energizer Bunny has been going for quite some time.² But future demand for them is unprecedented. The International Energy Agency has found that, since 2010, the average amount of rare earth minerals required for a unit of generated power increased fifty percent.³ Based on current energy policies, demand for rare earth minerals will double by 2040.⁴ And if we are to meet the goals of the Paris Climate Agreement to stabilize warming below a two-degree Celsius increase, demand will quadruple over the same timeframe.⁵

There are significant geopolitical ramifications to this shift in energy production. Mining for and refining rare earth minerals is, at present, highly concentrated. Sixty-nine percent of cobalt, for example, is produced in the Democratic Republic of Congo.⁶ Fifty-eight percent of the world’s lithium reserves are in Bolivia, Argentina, and Chile, and just over half of all current production is in Australia.⁷ Other rare earth minerals are disproportionately concentrated within China.⁸ All of which has led U.S. policymakers to prioritize diversifying this supply chain by providing substantial financial incentives to locate and develop domestic mineral production.⁹

This race to secure minerals is leading states and private industry to remote locales—areas “beyond national jurisdiction”—and particularly the deep seabed and celestial bodies. Under the law of the sea, areas of the seabed that are, at a minimum, 350 nautical miles from the coast are beyond national jurisdiction.¹⁰ And in outer space law, all celestial bodies, including asteroids and the moon, are not susceptible to sovereign claims.¹¹ In July 2023, the international organization charged with regulating deep seabed mining¹² began accepting applications that may, by 2024, pave the way for the first commercial mining operation beyond national jurisdiction.¹³ In April 2023, the most recent in a string of outer space mining startups launched a satellite to test equipment designed to refine metals mined from asteroids.¹⁴ Another test, into deep space, is scheduled for late 2024.¹⁵ Many states and private entities have near-term plans for human settlements on the moon.¹⁶ Such settlements will necessarily rely on extracting lunar resources.¹⁷ States take these developments seriously. The United Nations Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”) is in the midst of a five-year program to develop more detailed international rules for exploiting outer space resources.¹⁸

These first steps toward mining in areas beyond national jurisdiction are controversial. A coalition of states and non-profits are calling for a moratorium on deep seabed mining to forestall the attendant probable, and likely irreversible, environmental damage.¹⁹ Similarly, there was significant international condemnation when the United States, in 2015, enacted domestic legislation recognizing the property rights of U.S. entities that extract resources from celestial objects.²⁰

All of this supercharges a decades-old debate in international law—who owns the resources available in areas beyond national jurisdiction? One of the key legal innovations of the 1970s was to characterize such resources as the common heritage of mankind (now often referred to as the common heritage of humankind). Part XI of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) provides that resources of the seabed beyond national jurisdiction are the common heritage of mankind.²¹ Similarly, the Outer Space Treaty provides that “[t]he exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries . . . and shall be the province of all mankind.”²² More controversially, as no spacefaring nations have acceded to it, the Moon Agreement explicitly provides that “the moon and its natural resources are the common heritage of mankind.”²³

What does it mean for a territory or resource to be the common heritage of humankind? Attempts to pin down the concept as a matter of black letter international law are unsatisfying. At a minimum, it appears to mean that the territory is not susceptible to claims of sovereignty or jurisdiction and that the territory may only be used for peaceful purposes. Yet on myriad other fronts—whether the mining must be undertaken in a manner that particularly benefits developing economies, whether an international organization is required to administer access to resources, the terms on which access may be provided, and so forth—states and scholars have fundamentally disagreed for decades.

I propose rethinking the common heritage of humankind by analogizing to the public trust doctrine, a longstanding principle of U.S. property law. I am not the first to draw international resource management lessons from the public trust doctrine. Hope Babcock, for example, has argued that it is a helpful model for establishing an international legal regime for outer space mining.²⁴ I take this proposal one step further, to flesh out a four-part framework that states can use to adopt property rules sensitive to the particularities of disparate natural resources in areas beyond national jurisdiction.

The public trust doctrine is itself a controversial principle of U.S. property law. As I discuss in Part II, it has also been the subject of significant scholarly criticism and debate. In a nutshell, the doctrine provides that there are certain natural resources that, by sovereign right, State governments hold in a kind of public trust for general use and enjoyment. The doctrine was made famous by Illinois Central Railroad Company v. State of Illinois, wherein the Supreme Court found that the Illinois legislature’s decision to completely alienate a portion of Chicago’s waterfront for private development by the Illinois Central Railroad violated the public trust doctrine.²⁵ Although Illinois Central is often the first case discussed when explaining the public trust doctrine, it was not the first U.S. public trust doctrine case. The New Jersey Supreme Court first noted the State’s trust duties with respect to navigable rivers, the coastline, and riverbeds in the early 1800s, drawing on English common law and principles of Roman property law.²⁶ The scope of the doctrine, however, expanded radically over time, impelled importantly by an intervention from Joseph Sax in 1970.²⁷Although slightly different in each State,²⁸ in its most robust form the public trust doctrine provides citizens standing to object to State governments’ decisions about water use and conservation and use of public lands.

Notwithstanding its variation across State lines, the public trust doctrine is a productive foundation from which to reimagine the common heritage of humankind. First, over the past forty years State supreme courts have productively used the doctrine to manage water consumption, particularly in Hawaii and California.²⁹ Second, and more generally, the public trust doctrine orients us to the range of substantive ends that a legal regime concerned with access to commons resources can achieve. Third, it attunes us to the relationships to which we must attend in creating these property law rules. And fourth, it moves us away from the entrenched debates over process and redistribution that have so stymied broader application of the common heritage doctrine.

My argument proceeds in four parts. Part I explains the problem: What is the common heritage of humankind, and why has it failed to meet the aspirations of its original proponents? Part II justifies using a public trust approach to the common heritage doctrine. I begin by setting out the contours of the public trust doctrine and arguing why a commons approach to managing resources in areas beyond national jurisdiction is appropriate. I go on to explain the shared historical roots of the two doctrines in Roman law, as well as what these shared roots should mean for our understanding of a public trust approach to the common heritage of humankind. I demonstrate the striking similarity in how these doctrines revolutionized their respective areas of law in the middle of the twentieth century. I argue that these similarities speak to a deep theoretical continuity between the doctrines and that a significant body of scholarship concerning commons property justifies using the public trust as a model for a modern common heritage doctrine.

Part III sets out the four-part framework for a public trust approach to the common heritage of humankind. This is a framework for institutional design, and accounts for: (1) the tangible objects to which the trust applies (that is, the res); (2) the beneficiary for whom the res is in trust; (3) the means by which the res is conserved and the entity committed to conserving it (that is, the trustee); and (4) the process by which the beneficiary may vindicate the trust if the trustee fails in its duties. Taken together, this framework moves away from particular normative visions for the common heritage of humankind to show the paths that can be taken to manage resources in areas beyond national jurisdiction. In Part IV, I use outer space mining as a case study to demonstrate how a public trust approach to the common heritage doctrine opens up fresh avenues for resource management. I then offer some brief thoughts for future work in conclusion.

I. DEFINING THE COMMON HERITAGE OF HUMANKIND

The common heritage doctrine, in many ways, persists in spite of itself. Notwithstanding its codification in UNCLOS and the Moon Agreement, the only real consensus on its parameters has been that there is no consensus.³⁰ Indeed, prior to widespread adoption of UNCLOS, many disputed that it was a legal, as opposed to a political, proposition.³¹ In this Section I identify three core commitments we can reasonably ascribe to the common heritage doctrine: (1) common heritage territory is not subject to claims of sovereignty; (2) even in some de minimis way, exploitation of common heritage resources should benefit humanity writ large; and (3) common heritage territories may only be used for peaceful purposes. I show why UNCLOS’s tortured ratification history and the failure of the Moon Agreement prevent us from imputing much else to the doctrine. Finally, I identify three areas of confusion, essential for operationalizing the doctrine, that remain: (1) the territories or things to which the common heritage doctrine should apply; (2) the international mechanism, if any, required to implement it; and (3) the beneficiary of the doctrine and the benefit accruing to them.

The Vienna Convention on the Law of Treaties directs that treaty provisions be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”³² The Convention provides for an expansive search for a treaty’s context, taking into account all treaty text and any agreements made between all parties regarding the treaty.³³ Further, the Convention directs that treaty interpretation should account for subsequent agreements and state practice in applying the treaty.³⁴

A. Purpose of the Common Heritage Doctrine

There is a strong case that the original object and purpose of the common heritage doctrine was to concretely advance the redistributive economic agenda of the new international economic order. This is evident in what is often credited as the birth of the doctrine, a 1967 speech by Maltese Ambassador Arvid Pardo.³⁵ But even Ambassador Pardo would have admitted that the roots are, in fact, much older. Earlier in 1967, Ambassador Aldo Armando Cocca, in the context of the emerging field of outer space law, argued that “the international community had endowed that new subject of international law—mankind—with the vastest common property (res communis humanitatis) which the human mind could at present conceive of, namely outer space itself, including the Moon and the other celestial bodies.”³⁶ Comments by U.S. officials during the 1960s endorsed a similar view.³⁷ Indeed, in the text of his 1967 speech Pardo noted the work of the 1967 World Peace Through Law Conference,³⁸ which resolved that the General Assembly should issue “[a] proclamation declaring that the non-fishery resources of the high seas, outside the territorial waters of any State, and the bed of the sea beyond the continental shelf, appertain to the United Nations and are subject to its jurisdiction and control.”³⁹

What differentiated these earlier statements from Pardo’s speech, more than anything, was his concern that international law, as it existed, was not sufficient to meet the challenges of decolonization. His speech began by noting in exacting detail the deep seabed’s unrealized commercial potential⁴⁰ and the strategic instability that would result from the unfettered militarization of the seabed.⁴¹ Ambassador Pardo argued that existing international law doctrines concerning territorial acquisition were insufficient to protect newly liberated states.⁴² Specifically, Pardo called for using the “financial benefits . . . derived from the exploitation of the sea-bed and ocean floor for commercial purposes” to assist “poor countries, representing that part of mankind which is most in need of assistance.”⁴³

These concerns were highly resonant of his political environment. The pace of decolonization quickened rapidly in the 1960s, and with it a widespread urgency to restructure basic premises of international politics.⁴⁴ This urgency partly manifested in the “new international economic order,” an important goal of which was to reorient the law of the sea to benefit developing states more directly.⁴⁵ Indeed, a central tenet of the “new international economic order” was to reorient the law of the sea to benefit developing states through the common heritage doctrine.⁴⁶

These overarching objectives continued to inform the doctrine’s earliest textual articulations. General Assembly Resolution 2749, for example, declared that “the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction . . . as well as the resources of the area, are the common heritage of mankind.”⁴⁷ It went on to provide that this area is not “subject to appropriation by any means” and that “no State shall claim or exercise sovereignty or sovereign rights over any part thereof.”⁴⁸ The resolution also reserved the area “exclusively for peaceful purposes” and noted that resource extraction in the area “be carried out for the benefit of mankind as a whole . . . taking into particular consideration the interests and needs of the developing countries.”⁴⁹

B. Textual Articulations of the Common Heritage Doctrine

We can most vividly see how the common heritage doctrine failed to achieve these redistributive aims in the only two areas of international law in which the doctrine is incorporated into treaty text—the law of the sea and outer space law.

Efforts to codify the law of the sea in treaty form date to the mid-1950s.⁵⁰ We are concerned with the third conference on the law of the sea, which began in 1973 and ended in 1982 with the adoption of UNCLOS.⁵¹ The common heritage doctrine is codified in part XI of UNCLOS, which concerns “the Area”—a region of the seabed beyond a state’s exclusive economic zone and continental shelf.⁵² UNCLOS provides that the “Area and its resources” are the common heritage of mankind.⁵³ It proceeds to track the three commitments noted above. First, activities in the Area must “be carried out for the benefit of mankind as a whole.”⁵⁴ More specifically, hewing closer to the Pardian vision, these benefits must “tak[e] into particular consideration the interests and needs of developing States and of peoples who have not attained full independence.”⁵⁵ Second, part XI prohibits any state from exercising “sovereignty or sovereign rights” over the Area or its resources.⁵⁶ Finally, it provides that the Area may only be used for peaceful purposes.⁵⁷

The treaty then provides, in truly astonishing detail, an international bureaucracy designed to administer the Area for the benefit of humanity, with a particular emphasis on realizing the treaty’s redistributive aims. I will sketch them only in brief. UNCLOS establishes two organizations to realize deep seabed mining—the International Seabed Authority (“the Authority”)⁵⁸ and “the Enterprise.”⁵⁹ While the Authority is charged with generally administering and setting mining regulations, the Enterprise is arranged to operate as an independent mining concern. UNCLOS provides that proceeds from mining approved by the Authority, or undertaken by the Enterprise, be provided to adversely affected land-based mineral producers, geographically disadvantaged states, and developing countries.⁶⁰ To maximize these proceeds, UNCLOS also provides myriad ways in which states must support the Enterprise particularly. Its operating budget comes from fees collected by the Authority,⁶¹ voluntary payments from states parties, and loans.⁶² States and private mining companies are also required to provide any technical support requested by the Enterprise.⁶³ To help the Enterprise identify areas for potential mining operations, UNCLOS establishes a banking system. Each time a state or private entity wants to apply to prospect or mine in the Area, they must provide two locations, one of which is reserved for the Enterprise.⁶⁴ On top of these institutional arrangements are a number of limitations on extraction and required financial distributions to underdeveloped economies. For example, UNCLOS prescribes a detailed mathematical formula for setting production limitations on seabed mining to protect the interests of states that rely on land-based mining.⁶⁵

Developed economies strongly objected to this institutional apparatus.⁶⁶ Although the Nixon Administration had supported characterizing the Area as the common heritage of mankind, prohibiting sovereign claims, and establishing some mechanism for distributing profits “for international community purposes including economic advancement of developing countries,” by the Carter Administration opposition to the regime was solidifying.⁶⁷ By 1983, with President Reagan in office, the United States registered its dissatisfaction with the Authority’s governance structure, perceived preference for developing countries’ interests, production limits, and financial burdens by voting against the convention.⁶⁸ Most other developed economies followed suit.⁶⁹

Recognizing that a deep seabed regime without participation from developed countries would amount to little, and in a moment of renewed interest in neoliberal economics after the fall of the Soviet Union, in 1990 the United Nations began to craft an agreement concerning part XI.⁷⁰ This process culminated in the 1994 Implementation Agreement—in actual fact a rewriting of part XI to convince developed states to join UNCLOS. The changes were significant. They struck out provisions requiring the transfer of technology to the Enterprise.⁷¹ The Enterprise was directed to operate on “sound commercial principles,” deprived of required contributions from states parties, and put in an indefinite “interim” status.⁷² Complex models prescribing the rates that could be charged for mining contracts were replaced with general guidelines requiring “fair” rates comparable to those prevailing in land-based mining.⁷³ Representation on the Authority’s Council was revised to ensure that the United States and other developed countries could stymie any proposed distribution of Authority or Enterprise funds to developing countries.⁷⁴ And the banking system was revised such that the entity applying for a mining permit now had the right of first refusal to enter into a joint venture with the Enterprise.⁷⁵ These changes were effective in getting developed states to adopt UNCLOS. The Convention has been ratified by 165 of 193 UN member states. Yet these changes eviscerated the redistributive aims actualized by the original text of part XI.

The common heritage doctrine’s failure to launch in outer space law draws from these acrimonious UNCLOS debates. There are five international agreements regarding outer space activities: the Outer Space Treaty,⁷⁶ the Rescue and Return Agreement,⁷⁷ the Liability Convention,⁷⁸ the Registration Convention,⁷⁹ and the Moon Agreement.⁸⁰ Of these, the first four have been widely adopted by all spacefaring, and many non-spacefaring, states.⁸¹ The Moon Agreement—the only one with an explicit reference to the common heritage doctrine—has been ratified by eighteen states, none of which have a significant, independent space program.

The Outer Space Treaty provides that the “exploration and use of outer space . . . shall be the province of all mankind.”⁸² There has been much debate as to whether the “province of all mankind” is substantively different from the “common heritage of mankind.”⁸³ But looking to the remaining text of the Outer Space Treaty shows how, regardless of any difference in titles, the “province of all mankind” is strikingly similar to what remains of the common heritage doctrine after the 1994 Implementation Agreement. For example, article I provides that “[o]uter space . . . shall be free for exploration and use by all States without discrimination of any kind.”⁸⁴ Article II similarly establishes that outer space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”⁸⁵ And article IV directs that “[t]he Moon and other celestial bodies shall be used by all States Parties . . . exclusively for peaceful purposes.”⁸⁶

At the same time that debates about the common heritage of mankind were dividing states during UNCLOS negotiations, states similarly turned to debate more detailed questions about the permissible uses of celestial objects. How may states use resources located on celestial bodies? What benefits must accrue to humanity through their use? What duties are incumbent on states when using them? With striking similarity to law of the sea debates, some called for the United Nations (or another, specially designed international agency) to be vested with authority over celestial objects, and granted the ability to provide leases or licenses for resource extraction.⁸⁷ But ultimately, just as in UNCLOS negotiations, intense disagreements over the common heritage doctrine⁸⁸ yielded contradictory text unacceptable to states concerned that they were signing up for an incoherent doctrine likely to develop in directions over which they would have little control.⁸⁹

C. Unanswered Questions

This analysis of treaty text leaves three key doctrinal questions unanswered, each the subject of considerable scholarly debate. First, there is a vast volume of writing on the territories or objects to which the common heritage doctrine should apply (that is, the res of the doctrine). Some have identified a “broad” vision, one that applies to “atmospheric air, biodiversity, forests, drinking water margin[s], [and] cultural and natural heritage.”⁹⁰ Efforts to use the common heritage doctrine to protect the environment⁹¹ and the atmosphere (as a tool to combat climate change) date back at least to the 1980s.⁹² Others have called for using the common heritage doctrine to protect rain forests and food systems,⁹³ fauna and flora of the deep seabed,⁹⁴ biodiversity,⁹⁵ and marine genetic resources.⁹⁶ Nearly all of these attempts have been opposed by, at a minimum, developed states in a variety of international contexts.⁹⁷

Many states and scholars proposing a wider definition of the resources to which the common heritage doctrine applies also envision some formal, international enforcement mechanism (that is, the means by which the international community’s interests may be vindicated). This is particularly true for those states animated by a version of the common heritage doctrine born of the new international economic order movement.⁹⁸ The details of this proposed mechanism vary. One of the more inventive, proposed by Malta and endorsed by Kofi Annan during his time as UN Secretary General, is to repurpose the UN Trusteeship Council to be a forum for protecting common heritage resources.⁹⁹ An independent international body, like the Authority, is another option, though a variety of states, across ideological fault lines, have resisted such an approach. In the early days of the law of the sea conferences, for example, communist bloc states opposed the creation of an international organization like the Authority out of concern that it would not be truly democratic and only exacerbate the gaps between developed and developing economies.¹⁰⁰ Other states and scholars have similarly argued that creating a new international organization would be too unwieldy, instead endorsing a model whereby enforcement is left to individual states.¹⁰¹ Certainly neither approach is fool-proof. The issues with international bureaucracy are evident in the fact that it has taken nearly forty years for the Authority to develop rules for deep seabed mining. And the potential for backsliding without a mechanism for international enforcement is readily apparent in many states’ continued inability to meet emissions targets developed during UN climate change negotiations.¹⁰²

How the benefits of the common heritage should, or must, be distributed is perhaps the most controversial aspect of the doctrine. Stepping back, this is part and parcel of a broader question concerning what duties pertain to states as trustees of humanity’s interests. We saw this in the negotiating history of both UNCLOS and the Moon Agreement. The idea that benefits accruing to common heritage resources be distributed through direct payments that favor developing states¹⁰³ and requirements for technology transfer¹⁰⁴ have been particularly contentious. There has been equally vociferous debate about whether the common heritage doctrine creates a duty to conserve heritage resources.¹⁰⁵ At a more fundamental, if slightly metaphysical, level, scholars have also debated what, in fact, constitutes “humankind”—whether it refers to states, states on behalf of all people, or all people without interposition from any state.¹⁰⁶ Practically, it is difficult to imagine in the current international system any practical version of “humankind” that does not include, at least in a representative fashion, states.

The vision of the common heritage of humankind that first animated its inclusion in international treaty law greatly exceeded what remains of the doctrine in treaty text and actual practice today. We have seen the doctrine’s contentious codification in the law of the sea, and we have witnessed how it foundered in outer space law. Taken together, we are left with a vision of the common heritage doctrine that is at once freighted by historical association with redistributive policies, and yet which, in practice, has few concrete hooks to advance these goals. This contradictory status quo does little to foster doctrinal clarity or productive negotiations about methods for managing resources in areas beyond national jurisdiction. In the remaining sections, I set out to sketch a new path.

II. JUSTIFYING A PUBLIC TRUST APPROACH TO THE COMMON HERITAGE DOCTRINE

If the common heritage doctrine is to become a meaningful proposition in international law, we need a new approach. In this Section, I argue why looking to the public trust doctrine is instructive. First, the doctrines share similar normative impulses, evinced over a long history, that make this analogy particularly apt. Proponents of the public trust and common heritage doctrines, for example, both trace their legal arguments back to the same provisions of Roman law. Moreover, the primary innovators of both doctrines in the 1960s and 1970s had a similarly instrumental vision for the legal framework they set out to establish—a vision more fully realized by the public trust doctrine. Second, the public trust doctrine provides a coherent approach to managing common pool resources in a manner that, at a practical and theoretical level, coheres with general principles of property law. And finally, although the public trust doctrine gained prominence primarily in domestic U.S. property law, it has gained international traction. As I propose to use it, the public trust doctrine provides a generalizable heuristic for devising rules to manage international resources.

This argument builds on a 2019 article by Hope Babcock, which discussed briefly the virtues of the public trust doctrine within a broader discussion of the many domestic property law doctrines that might be used to regulate outer space mining.¹⁰⁷ In particular, Babcock noted the practical benefits to adopting a duty to preserve resources, assure public access, and prevent alienation in the absence of a robust international ruleset for outer space mining.¹⁰⁸ I expand on this argument in three ways. First, I show that the public trust doctrine can inform our approach to the common heritage doctrine writ large, in contexts far beyond outer space. Second, I develop the historical and theoretical reasons why this analogy should be attractive to states looking for a more comprehensive approach to international resource management. Third, I explain in detail what a public trust approach to the common heritage means through a four-part framework, detailed in Part III.

A. Why a Commons Approach to International Resource Management

Anyone advocating that we reinvigorate the common heritage doctrine must first justify why resources beyond the bounds of national jurisdiction should be treated as a commons. Why not, instead, simply divvy them up? This, after all, is the compelling insight proffered by Garrett Hardin in his work on the tragedy of the commons.¹⁰⁹ Hardin posits that, in a world of rational herdsmen, each with equal and unfettered access to a pasture, the “only sensible course for him to pursue is to add another animal to his herd. And another; and another.”¹¹⁰ Inexorably, Hardin tells us, “[r]uin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.”¹¹¹ He was not the first to make this point. Aristotle also observed that “what is common to the greatest number has the least care bestowed upon it. Everyone thinks chiefly of his own, hardly at all of the common interest.”¹¹²

But we know that this simple picture of a tragic commons and complete allocation of rights (whether through allocation of private property rights or government management) is incomplete. Michael Heller, for example, warns of the dangers of too much allocation of private rights in resources. In what he terms a tragedy of the anticommons, real property may be underutilized when too many users are granted the right to exclude others from a scarce resource if no hierarchy of privilege exists between these users.¹¹³ Economic modeling has borne out this analysis,¹¹⁴ though some have argued for a more precise articulation of the game theoretic problem appropriately denominated an anticommons.¹¹⁵ But even this represents an overly narrow view of the practical ways in which resources are managed. Elinor Ostrom, for example, has empirically demonstrated how communities have developed private agreements to manage common pool resources, enforced by a variety of institutional mechanisms that go beyond simple division of property rights or government management.¹¹⁶ Specifically, she notes that achieving Pareto-optimal equilibrium in the market for a particular resource through centralized resource management rests on assumptions that the government has completely accurate information about the resource, sophisticated capability to monitor and sanction compliance, and zero administration costs.¹¹⁷ This does not mean that Ostrom denies any role for the government or an external monitor in managing common pool resources. For example, speaking to those who advocate for privatized rights, Ostrom notes that it can be practically infeasible with respect to nonstationary resources, like water and fisheries.¹¹⁸ Instead, she argues that there is no single solution to resource management.¹¹⁹ Institutional design is difficult, time-consuming, and context dependent. More often than not, some mixture of private and public institutions is needed “to achieve productive outcomes in situations where temptations to free-ride and shirk are ever present.”¹²⁰

A commons approach to international resource management in areas beyond national jurisdiction is particularly appropriate for a number of the reasons outlined above. Although the mineral resources of the deep seabed are certainly stationary, the marine life of the high seas that these operations would disturb do not respect jurisdictional boundaries. On any reasonable assessment of the International Seabed Authority’s track record, its role as a centralized arbiter of resource rights is far from cost free. In outer space, given how little we know about the productive uses of asteroids and other celestial objects, there is a real risk of dividing property rights so finely as to create an anticommons. Moreover, at least at present, there is no centralized authority empowered to penalize free riding, and the likelihood of establishing such an authority seems dim in our current geopolitical environment. Before adopting an entirely new system of property rights, it therefore seems reasonable to find a way to make a commons approach to managing resources beyond national jurisdiction work.

B. Defining the Public Trust Doctrine

Perhaps more than many common law principles in U.S. law, the public trust doctrine varies significantly from State to State. Put most simply, it provides that the State holds title to land under tidal waters in a form of trust for the people of that State, who “have the right to use the land and water for navigation, fishing, and recreational uses.”¹²¹ Two of the most far-reaching applications of the public trust doctrine were rendered by the California and Hawaii Supreme Courts. I will treat them both in turn, as demonstrations of the kind of work that the public trust doctrine does in modern U.S. property law.

In National Audubon Society v. Superior Court, the California Supreme Court addressed whether, and how, the public trust doctrine affected the State’s system for prioritizing access to fresh water, with a particular focus on use of water from Mono Lake, a particularly distressed reservoir for fresh water in the Los Angeles County area.¹²² It found that the public trust doctrine did apply to these water resource decisions, and is an articulation of:

[T]he state’s authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars [the City of Los Angeles Department of Water and Power (“DWP”)] or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust.¹²³

This application of the public trust doctrine to California’s system of water rights had significant effects on life in California, where, as the court acknowledged, “[t]he prosperity and habitability of much of the state required the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use relating to the source stream.”¹²⁴ Nevertheless, the court held that “before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.”¹²⁵ Just as significantly, the supreme court also held that California courts and the DWP have “concurrent jurisdiction” in adjudicating these public trust disputes.¹²⁶

This decision had a significant practical effect on Mono Lake, which had experienced rapidly decreasing water levels since the State authorized DWP to divert flows from source streams in the 1940s.¹²⁷ By 2010, implementation of interim measures adopted in 1994 for lake and stream restoration and a final plan published in 1998 raised the lake’s water level by ten feet.¹²⁸ And these regulatory changes established a system of water rights that ensured consideration of public trust interests when adjudicating private water rights in the State.¹²⁹

The Hawaii Supreme Court in In re Water Use Permit Applications faced a similar dispute about allocation of water rights, here between agricultural producers in the central plains of Oahu, down-stream users on the windward side of the island, and the stream’s ecosystems.¹³⁰ The court held that the public trust doctrine, though having independent roots in common law, was a constitutional doctrine and applied to “all water resources without exception or distinction.”¹³¹ It further found that Hawaiian public trust purposes included resource protection,¹³² domestic use (including drinking),¹³³ and “the exercise of Native Hawaiian and traditional and customary rights.”¹³⁴ The court specifically found that the public trust should not consider interests in “private use for ‘economic development.’ ”¹³⁵ Unsurprisingly, the court found that Hawaii had a continuing obligation to “preserve the rights of present and future generations in the waters of the state,” though the courts did not require a one-size-fits-all prioritization of interests.¹³⁶

Although the public trust doctrine is, in many jurisdictions, of rather limited application, the California and Hawaii examples show how it currently serves as a doctrine for resource management.

C. Shared Roots of the Common Heritage and Public Trust Doctrines

In this Section, indebted to the work of J.B. Ruhl and Thomas McGinn, I unpack what the res communis meant.¹³⁷ I trace in brief how the public trust and common heritage doctrines developed this concept of the res communis. And I show how debates over the contours of the res communis demonstrate the necessary role of state action to preserve access to common resources. I do not, however, want to burden this connection with too much normative force. Particularly in the context of the public trust doctrine, some have relied on this Roman pedigree to justify the doctrine’s place in modern property law.¹³⁸ But as we will see below, the modern common heritage and public trust doctrines advertently moved beyond the idea of common property enshrined in Roman law. So, while the Roman origins of both doctrines does not make a public trust approach to the common heritage doctrine legally or normatively required, it is nonetheless useful to show how the doctrines are united by a higher-level conviction that there are certain resources that should be held in some form of trust for common use in a way that is not readily accommodated by private or government ownership.

1. Origins in Roman Property Law

Before we trace the public trust and common heritage doctrines to their Roman roots, a bit of background on the res communis—the Roman concept of common property to which both doctrines refer. The res communis stood for the proposition that certain things (at a minimum, the sea, seashore, and air) should remain accessible to all, primarily for resource extraction, and this access could be vindicated at law.

To understand the res communis we must begin with the restatement of Roman law provided in the Corpus Juris Civilis, promulgated by Emperor Justinian from 529 to 534 CE.¹³⁹ The Corpus has three main parts: the Institutes (an introductory guide to Roman law),¹⁴⁰ the Digest (a detailed guide for more advanced study),¹⁴¹ and the Codex (a compilation of imperial legislative, judicial, and administrative enactments stretching from the reign of Emperor Hadrian to the Codex’s publication).¹⁴² Of the many ways in which the Roman jurists categorized types of property, the Second Book of the Institutes provides, for our purposes, the most important:

Let us now speak of things, which either are in our patrimony, or not in our patrimony. For some things by the law of nature are common to all [i.e., res communis]; some are public [i.e., res publicae]; some belong to corporate bodies [i.e., res universitatis], and some belong to no one [i.e., res nullius]. Most things are the property of individuals, who acquire them in different ways, as will appear hereafter.¹⁴³

Res communis is property outside our patrimony (i.e., extra patrimonium) and therefore incapable of private ownership.¹⁴⁴ The Institutes provides that the res communis includes, by natural law, “the air, running water, the sea, and consequently the shores of the sea.”¹⁴⁵ The Digest attributes this rule to Marcian, a noted Roman jurist from the third century,¹⁴⁶ though Ruhl and McGinn have identified earlier articulations of the same or similar rule as early as the late republic.¹⁴⁷

It is this definition of the res communis in the Institutes which most courts and scholars identify as the roots of the public trust and common heritage doctrines. Take, for example, Arnold v. Mundy,¹⁴⁸ one of the earliest cases in the United States on the public trust doctrine. Here, the New Jersey Supreme Court of Judicature found against a plaintiff’s claim of trespass concerning oyster beds planted below the low-water line in a navigable river.¹⁴⁹ The Chief Justice reproduced this provision of the Institutes nearly verbatim—both in English and Latin.¹⁵⁰ The Supreme Court, over two decades later confronting nearly the same issue in New Jersey, adopted this reference to the Institutes.¹⁵¹

Closer to the present day, Justice Kennedy in Idaho v. Coeur d’Alene Tribe of Idaho and PPL Montana, LLC v. Montana also attributed the public trust doctrine to this portion of the Institutes, as incorporated into English common law.¹⁵² Scholars of the public trust doctrine make similar, even more frequent reference to the same.¹⁵³

In international law, this Roman inheritance was used most famously by Hugo Grotius to argue that the seas, by their nature, were incapable of appropriation and therefore open to all for trade and fishing.¹⁵⁴ This greater emphasis on the freedom enjoyed at sea, rather than the guarantee of land access to the seas, is reflected in the relatively greater ambivalence taken toward the text by proponents of the common heritage doctrine. For example, as early as the 1830s, noted South American lawyer Andres Bello argued that a distinct legal regime was needed for objects that cannot be owned by any nation without harming others, what he called an “indivisible common patrimony” that was susceptible only to limited, non-exclusive use.¹⁵⁵ French jurist A.L. Pradelle came to a similar conclusion in 1898, arguing that the seas were the “patrimoine commun de l’humanité.”¹⁵⁶ These innovations were noteworthy primarily because they rebutted Grotius’s use of the res communis. Nevertheless, Ambassador Pardo, for example, cites this provision of the Institutes specifically in his proposal to establish the common heritage doctrine.¹⁵⁷ And other seminal works on the law of the sea make similar references to these provisions of Roman property law.¹⁵⁸

But what did it mean to designate the air, flowing water, sea, and shores of the sea as res communis, and how are these rights vindicated? There has been considerable debate on the topic; I will begin by discussing relevant provisions of the Digest and Institutes before turning to their interpretation by scholars.

First, various provisions of the Digest and Institutes note how designating territory as res communis guaranteed access to other resources that could be appropriated. So, for example, Florentinius characterizes the seashore as res communis and notes that “pebbles, gems, and so on which we find on the shore forthwith become ours by natural law.”¹⁵⁹ Similarly, the Institutes provides that “[w]ild beasts, birds, fish, and all animals, which live either in the sea, the air, or on the earth, so soon as they are taken by any one, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner.”¹⁶⁰ The Digest supports this proposition with a number of citations to even earlier legal opinion.¹⁶¹

Yet, as Ruhl and McGinn argue, the res communis appears to be about more than just providing unfettered access to the air, sea, and flowing rivers so that individuals can extract resources.¹⁶² To understand why, we must appreciate longstanding doctrinal confusion about the difference between the res communis and res publicae.

Ulpian describes as res publicae “those things . . . that belong to the Roman people.”¹⁶³ Similarly, Ulpian is quoted as providing that “[w]e do not regard as being ‘public’ those things which are sacred or hallowed or designed for public use but those things which are, as it were, the property of communities.”¹⁶⁴ In this way, it seems we might make a rough distinction between property to which all are guaranteed access regardless of their political community (that is, res communis) and property owned and preserved for the benefit of a particular group of peoples (that is, res publicae).

But this easy distinction is complicated by the many parts of the Digest that characterize flowing waters and the seashore (things considered res communis) as res publicae. First, with respect to flowing waters, the Digest in a number of places notes that rivers are public property.¹⁶⁵ And although the right to use riverbanks is said to be public,¹⁶⁶ there is also an admitted private right to privately own and construct private buildings on them.¹⁶⁷ A similar story can be told about the sea and the seashore. For although the sea is common to all, the Digest recounts that “just as a building erected in the sea becomes private property, so too one which has been overrun by the sea becomes public.”¹⁶⁸ Muddying the waters even more, we are told that

What a man erects on the seashore belongs to him; for shores are public, not in the sense that they belong to the community as such but that they are initially provided by nature and have hitherto become no one’s property. Their state is not dissimilar to that of fish and wild animals which, once caught, undoubtedly become the property of those into whose power they have come.¹⁶⁹

As Ruhl and McGinn demonstrate in detail, this overlap has bedeviled scholars since the middle ages.¹⁷⁰ From the eleventh through fifteenth centuries, for example, scholars reconciled these passages by holding that res communis resources were used, and not owned, by humans and animals, while res publicae resources were used only by humans.¹⁷¹ Scholars in the nineteenth century adopted other methods to make this area of law coherent, again mostly aimed at creating more nuanced distinctions between what should truly be considered res communis.¹⁷² Yet others in the twentieth century attribute the incoherence to revisions made by those compiling ancient sources of law.¹⁷³ And many more recent scholars, focusing on the less rigorously legal aspects of Marcian’s work, have discounted the existence of the res communis entirely.¹⁷⁴ In fact, these critiques of the underlying Roman law sources, and their inconsistent application in English and early American case law, is the basis for many academic critiques of the public trust doctrine.¹⁷⁵

Ruhl and McGinn instead reconcile this tension by focusing on Ulpian’s earlier writings on the res communis. They find textual evidence that, as a practical matter, access to res communis property was protected in the same manner as that provided for the res publicae.¹⁷⁶ For this reason, they argue, the rules applicable to res publicae should be seen as equally applicable to res communis.¹⁷⁷

There are important consequences that stem from this practical connection. As Ruhl and McGinn note, there are rules concerning uses of res publicae resonant of the idea of a public trust.¹⁷⁸ For example, the Digest reports that Scaevola opined that although one could build on the seashore, such construction could not impede public use.¹⁷⁹ Likewise, Ulpian wrote at length about the actions that could be taken against individuals who impede public access to res publicae.¹⁸⁰ In an indirect way, these areas of overlap suggest an early recognition of the necessary role that government must play if any property is to be considered common to all, and not just open to access by a particular political community (that is, res communis). It is unsurprising, then, that UNCLOS established an international organization through which states would preserve the deep seabed under the common heritage doctrine. And it suggests that future applications of the common heritage doctrine will be difficult to enforce without a similar international mechanism, or state duty, for vindicating humanity’s interests.

2. Common Twentieth Century Doctrinal Innovation

The middle of the twentieth century was critical to the modern incarnations of the common heritage and public trust doctrines. In this Section, I show how two protagonists—Ambassador Arvid Pardo and Professor Joseph Sax—expanded upon existing conceptions of common heritage and public trust to achieve their normative ends. They were both unabashedly instrumental—both saw these doctrines as convenient procedural vehicles to curing what they saw as deficiencies in their respective political environments. What emerges is a common appreciation of the flexibility that Elinor Ostrom noted as one of the signal characteristics of commons governance.¹⁸¹

We have already canvassed Ambassador Pardo’s revolutionary vision for the common heritage doctrine in Part I. Joseph Sax laid out a similar vision for the public trust doctrine, at around the same time, from the pages of the Michigan Law Review.¹⁸²

To understand the power of this vision, we must understand the public trust doctrine as it developed prior to Sax’s intervention. Up until Illinois Central, the public trust doctrine was a relatively constrained proposition, used chiefly to manage access to navigable rivers and the stationary resources (for example, oysters) on the riverbed. Chief Justice Taney in Martin v. Waddell’s Lessee may have been among the earliest to use the term “public trust” when, in denying a patent to an oyster fishery bed, he found that the kings of England held navigable waters “as a public trust.”¹⁸³ Importantly, he held that derogating from this right required “clear[] indicat[ion] by appropriate terms; and would not have been left for inference from ambiguous language.”¹⁸⁴ Just over a decade later the Supreme Court reaffirmed this approach in The Volant, finding that soil below the low-water mark “is held by the State, not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish.”¹⁸⁵ Again, for this reason, the Court held that states “may forbid all such acts as would render the public right less valuable, or destroy it altogether.”¹⁸⁶

Justice Field, in Illinois Central, expanded the doctrine by articulating a more robust role for the courts to limit the legislature’s discretion to alienate public trust resources. Specifically, Justice Field found that “[t]he control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.”¹⁸⁷ This standard was controversial, and did not flow naturally from at least some States’ approaches to the public trust doctrine. In the dissent’s words, “if the State of Illinois has the power, by her legislature, to grant private rights and interests in parcels of soil under her navigable waters, the extent of such a grant and its effect upon the public interests in the lands and waters remaining are matters of legislative discretion.”¹⁸⁸

The extent of this shift is most vividly displayed in Morris v. United States.¹⁸⁹ Here, the Supreme Court rejected a claim to land added to the riverbank by a rapid shifting of the course of the Potomac River.¹⁹⁰ In doing so, the Court applied a straightforward understanding of the Illinois Central test that the public trust could not be entirely alienated for private use.¹⁹¹ Yet, as the Court acknowledged, this flatly contradicted the approach taken by Maryland courts dating back to 1821. For example, in Browne v. Kennedy,¹⁹² Chief Justice of the Maryland Court of Appeals Jeremiah Chase held that the Maryland legislature could sell land “covered by a navigable river” so long as the private use did not “interfer[e] with or affect[] the public or common right[s to] . . . navigation and fishing.”¹⁹³ The Supreme Court’s rather startling response to this contradiction was to note the myriad ways in which the Kennedy Court had misinterpreted prior Maryland case law.

Thereafter, the Court was inconsistent in how aggressively it hewed to Justice Field’s approach in Illinois Central. To name just a few, the Court later affirmed an Alabama statute granting tidewater rights to the city of Mobile,¹⁹⁴ upheld a Chicago ordinance requiring that a railroad dismantle a tunnel built pursuant to an earlier ordinance so that the riverbed could be dredged,¹⁹⁵ and upheld a New York Court of Appeals decision to strike down a statute incorporating a development company that did not provide a mechanism for the State to vindicate public trust rights.¹⁹⁶ Indeed, it was only in 1926 that this inconsistent approach to legislative treatment of trust resources was resolved by the Supreme Court determining that, though “the general principle” of Illinois Central had been “recognized the country over,” in its particulars, the holding was “necessarily a statement of Illinois law.”¹⁹⁷

It was into this commercial understanding of the public trust doctrine, rooted in Roman concerns for open access, that Joseph Sax launched his now famous article on the public trust doctrine. It is beyond dispute that Sax’s article sparked a sea change in the way State courts approached the public trust doctrine. From 1970 to 1985 alone there were nearly one hundred cases concerning the public trust doctrine, many of which cited Sax’s article.¹⁹⁸ And States have taken up Sax’s invitation to unshackle the doctrine from its historical roots in concerns over navigability and fisheries.¹⁹⁹ By the mid-1980s, courts had extended the public trust to include marine law, sand and gravel in water beds, dry sand areas of the beach, rural parklands, battlefields, wildlife generally, archaeological remains, and (in Louisiana) all natural resources, including air and water.²⁰⁰ Sax was similarly influential in identifying the mechanisms that State courts have adopted to enforce this expanded public trust. These include requiring that government action satisfy the public trust’s purpose, mandating that government action be preceded by an assessment of any adverse impact on trust resources, and searching for specific legislative authorization for agency actions that affect trust resources.²⁰¹ While some of these had hooks in early public trust case law, many were relatively novel applications of judicial power.

Sax’s role here is substantially similar to that of Ambassador Pardo and his contemporaries, acting only a few years earlier. Like Ambassador Pardo, Professor Sax makes an unabashedly normative argument, and I do not mean this as a critique. This undermines arguments made by later scholars who criticize Sax’s public trust doctrine as disconnected from English and Roman law sources. Sax states that he is in “search for some broad legal approach which would make the opportunity to obtain effective judicial intervention [for environmental protection] more likely.”²⁰² In particular, he is looking for a doctrine that satisfies three criteria: (1) “some concept of a legal right in the general public” that is (2) “enforceable against the government” and (3) “capable of an interpretation consistent with contemporary concerns for environmental quality.”²⁰³ Indeed, Sax owns up to the state of the law as he found it:

[O]nly the most manipulative of historical readers could extract much binding precedent from what happened a few centuries ago in England. But that the doctrine contains the seeds of ideas whose importance is only beginning to be perceived, and that the doctrine might usefully promote needed legal development, can hardly be doubted.²⁰⁴

Like Ambassador Pardo and his contemporaries, Professor Sax treats with, but advertently moves beyond, the res communis²⁰⁵ to achieve his environmental ends.

The bulk of Sax’s article is a detailed review of the public trust doctrine in the States, noting how particular cases might provide a hook for expanding judicial appetite for protecting environmental interests. So he praises Massachusetts courts for requiring that administrative agencies identify a “specific, overt approval of efforts to invade the public trust”²⁰⁶ and lauds Wisconsin courts for asserting the independent authority to assess whether State actions are consistent with public trust interests.²⁰⁷ These various strategies are united by a common desire to root the public trust doctrine in the protection of majority interests (which are asserted to be consistent with environmental protection) from regulatory capture by a powerful minority.²⁰⁸ And here again there is striking similarly between Ambassador Pardo’s call for using the wealth of the common heritage to advance the interests of newly decolonized states and Sax’s argument that “[p]ublic trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals.”²⁰⁹

Taken together, what emerges from this history is a tale of two doctrines that have much in common, both in their history and their aims. They both emerged from an understanding, rooted in antiquity, that there are certain resources not amenable to private or government ownership that nevertheless are of communal interest. As such, in their deepest past, both doctrines can trace to a common concern about access to resources. Both doctrines were similarly revolutionized by prominent intellectuals of the twentieth century, who themselves built on a growing wave of change that can be traced to the nineteenth century. Each seeking to address inequities in power, Professor Sax and Ambassador Pardo sketched out an instrumental vision for the public trust and common heritage doctrines that gained widespread popularity on an incredibly short timeline. More than sharing a common history, this Section shows that these doctrines are united by a common concern—managing resources seen as necessary for the public in a manner more accountable and more equitable than had thus far been achieved.

D. The Public Trust Doctrine as a Useful Framework for Resource Management

In this Section, I address the most common critiques of the public trust doctrine to show why it provides an approach to managing common pool resources that coheres with general principles of property law. Namely, I show how its substantive flexibility is consistent with scholarly work arguing that the nature (and indeed changing nature) of property rights can be profitably explained through the social values they produce and reproduce.

1. Criticism of the Public Trust Doctrine

Sax’s redefinition of the public trust doctrine has spawned a seemingly endless academic debate. Distilled to the most salient points, scholars contest three issues: (1) whether the public trust doctrine is a necessary, or constructive, tool for environmental protection;²¹⁰ (2) whether the public trust doctrine is sufficiently well-defined, by reference to its historical roots or modern case law;²¹¹ and (3) whether the public trust doctrine comports with democratic and rule of law principles. I will address the last of these debates, as it is most important for our purposes.

Huffman sees the public trust doctrine as an unprincipled property right that, by relying on shifting judicial notions of the res, confounds public expectations and thereby undermines democratic principles.²¹² He is similarly concerned by the fact that the public trust doctrine, by asserting a right incident to State sovereignty that predates any possible private rights, eviscerates protections afforded by the Takings Clause.²¹³

There have been at least three responses to this critique. One flows from what Sax identified as the role of courts in combating agency and legislative capture by minority interests—in effect, an argument that seemingly democratic processes are, in fact, anything but.²¹⁴ A second argues that changes in the scope of the public trust doctrine is quite normal in a common law system.²¹⁵ And a third points to the fact that courts, even when exercising a form of continuing review of State action, rarely impose a substantive outcome. Instead, they use the power afforded by judicial review to require that State instrumentalities meaningfully take into account public trust interests²¹⁶ (though, of course, there may be significant overlap between requiring a substantive outcome and insisting on a method of agency decision-making).

2. The Public Trust Doctrine as a Coherent Approach to Managing Common Pool Resources

These concerns about the changing scope of the public trust doctrine and its use by courts to invalidate State actions point to broader debates about the role of common property doctrines in U.S. property law. Carol Rose addressed this tension most succinctly when she observed that the public trust doctrine and other common property regimes are radical because of “their seeming defiance of classic economic thinking and the common law doctrines so markedly mirroring that theory.”²¹⁷ She points to a few of the most telling tensions—the prioritization of public access over a right to exclude,²¹⁸ and the wholesale withdrawal of some objects from the possibility of private appropriation.²¹⁹ These moves are not easily reconciled by Demsetz’s economic theory for the emergence of property rights (i.e., a process of privatizing the commons made possible when the benefits of internalizing the externalities of using land exceed the costs).²²⁰

But Rose and others show how the public trust and related doctrines are, in fact, consistent with the greater corpus of property law. Henry Smith, for example, has identified two dimensions of property rights: the “compositional” (i.e., the physical resource that is the object of the rights) and the “organizational” (i.e., the range of activities allowed with respect to the resource).²²¹ Conceived along a spectrum, Smith identifies two methods for communicating this information—(1) straightforward rules of exclusion and (2) more informationally-intensive rules of governance.²²² Seen in this light, one defense of the public trust doctrine is that it represents a form of property that just relies more on governance rules than exclusion.²²³

Even this account, however, does little to defend the changing res as a feature of the public trust doctrine. Here, we can look to work arguing that the nature (and indeed changing nature) of property rights can be profitably explained through the social values they produce and reproduce. Rose again provides a useful starting point. She finds that “service to commerce was a central factor in defining as ‘public’ such properties as roads and waterways” and argues that public use of such properties produced significant (even “akin to infinite”) returns to scale.²²⁴ Expanding the categories of resources subject to a common access property rule, therefore, can be consistent with a benefit-maximizing approach to property law. Indeed, Rose notes how private ownership of resources traditionally considered “inherently public,” such as roadways, create holdout and monopoly if privatization is allowed to run free.²²⁵

But Rose also notes how these common access regimes are consistent with an understanding of property law that goes beyond pure economics. She notes, for example, how eighteenth and nineteenth-century scholars viewed the commercial functions enabled by inherently public property as also serving important socializing functions.²²⁶ Taking this as a starting point, Rose argues that substantive visions for what constitutes a socializing function can, and almost certainly will, change. Therefore, it would be quite natural for the nature of “inherently public property” to also change with time.²²⁷ As Rose notes, this account fits quite well with the changing res of the public trust doctrine, particularly if recreational and environmental interests are understood as serving, in modern times, a socializing function similar to that once seen as inherent to commerce.²²⁸

Rose’s socializing account is consistent with the work of Joseph Singer, who argues that property forms (which, particularly in the domain of real property, are notably few)²²⁹ embody “a set of norms and values that defines the legitimate social relationships that can be recognized in a free and democratic society.”²³⁰ As Singer goes on to argue, “the structure, shape, and definition of . . . bundled rights in the property law system must reflect our considered judgments about the legitimate contours of the social order.”²³¹ This work in turn builds on that of Alexander, who has argued that multiple-owner property (which he calls “governance property”²³²) develops virtues (like community, cooperation, trust, and honesty), which in turn promote human flourishing.²³³

The fact, then, that the public trust res has shifted over time is perfectly consistent with a change in the social values that underpin our system of property rights. Of course, questions of institutional competence remain. But in the international system, this challenge to U.S. courts’ roles in shaping the scope of the public trust doctrine just is not germane. There is no world court of common law jurisdiction capable of unilaterally deciding the scope of what comprehends the common heritage doctrine.

There is much that unites the public trust and common heritage doctrines: common roots in Roman property law, doctrinal innovation in the middle of the twentieth century, and heated disagreements about their scope and wisdom as legal doctrines. By understanding how the public trust doctrine coheres with a broader category of inherently public property and an understanding of property rules as conduits for reinforcing social values, we can begin to build a renewed framework for the common heritage doctrine.

E. Realpolitik and a Public Trust Approach to the Common Heritage Doctrine

Finally, I am not advocating for the international community to adopt a substantive vision of U.S. property law. As will be clear by the end of Part III, a public trust approach to the common heritage doctrine provides a framework for devising property rules by focusing on the values that states wish to foster. It does not itself determine what those values should be. We can see the benefits of this approach in the degree to which non–U.S. jurisdictions have adapted Sax’s vision of the public trust doctrine.²³⁴ These effects have been most direct, and most striking, in India.

The Supreme Court of India, in MC Mehta v. Kamal Nath, struck down a ninety-nine year government lease of protected forest to build a motel and declared as incompatible with the public trust a proposal to redirect an adjoining river to prevent the proposed resort from flooding.²³⁵ In its decision, the Court cited Illinois Central, California’s Mono Lake decision, and Sax’s article to establish the common and natural law roots of the public trust doctrine.²³⁶ Indian courts have reaffirmed and, in interesting ways, expanded the public trust doctrine in the years since this decision.²³⁷ For example, they have extended the public trust to include “ensuring a fair distribution of the revenues produced from publicly owned resources, such as natural gas leases,” and a distribution that “includes concerns for intergenerational equity.”²³⁸ The similarities with Pardo’s redistributive vision for the common heritage doctrine are inescapable. But more to the point, we can see how the public trust doctrine suggests a way of thinking about and a process for protecting the public values we want to achieve by preserving certain resources for public use. This approach need not reflect the particular values of any given U.S. State.

III. A PUBLIC TRUST PERSPECTIVE FOR THE COMMON HERITAGE OF HUMANKIND

I propose a four-part framework for this public trust approach to the common heritage of humankind, informed by the structure of common law trusts.²³⁹ The four lines of inquiry consider: (1) the property held in trust (i.e., the res), (2) the beneficiary of the trust, (3) the trustee and the means by which the trustee may treat the trust, and (4) mechanisms by which the beneficiary may vindicate their interests against the trustee.

A. The Res

The rapid pace with which the res considered subject to the public trust has changed suggests that an approach to the common heritage of humankind that takes as a starting point specific resources largely misses the point. Instead, as Rose and others have demonstrated, we should focus on the theory of the res—that is, the social objectives we are trying to achieve by incorporating specific resources into a legal regime of common access. Put another way, the resource matters less than the reason why we think it should be incorporated into a common access regime, and the purposes for which we think such a regime should exist.

We have already seen how these higher-level concerns dominate debates about the common heritage doctrine. Take, for example, opposition to the Moon Agreement. One of the central concerns of the United States and other space powers was how exactly the doctrine would be meted out under the contradictory principles provided in the Moon Agreement.²⁴⁰ The same can be seen in the law of the sea. Industrialized states only acceded to UNCLOS after extracting concessions in the 1994 Implementation Agreement to concentrate power in the International Seabed Authority’s Council through an allocation of seats that ensured their ability to block regulations that implemented a redistributive vision for the common heritage doctrine.²⁴¹ Securing a consensus at this theoretical level can be incredibly difficult in large-scale international negotiations. But, as a matter of negotiation strategy, sticking with such difficult issues can itself be profitable.²⁴² And as I will show in Part IV, in particular negotiation contexts there can be practical ways to refine the scope of this debate to increase the likelihood of success.

There are four theories of the res that we can most immediately discern from our discussion thus far: (1) an access theory; (2) a socializing theory; (3) an ecological theory; and (4) an intergenerational equity theory. I will address each in turn. Of course, these categories represent ideal types—there certainly may be profitable areas of overlap between them.

1. Access Theory

This theory of the res would incorporate those resources for which we expect the economic benefits of general use to be greater than those gained through individual appropriation.

This is the approach most evident in the underlying Roman sources and early U.S. case law. Here, property is characterized as a common heritage to prevent any one entity from monopolizing access to it. So, as was provided in Morris v. United States, land under tide waters is a “public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, and not as private property, to be parceled out and sold for . . . individual emolument.”²⁴³ Another example of this approach is evident in the Supreme Court’s decision in Shively v. Bowlby, where it found that land under tide waters “are of great value to the public for the purposes of commerce, navigation and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right.”²⁴⁴

A similar policy sentiment bears forth in the Roman sources. For example, Ulpian finds that a claim may be brought against the owner of a seaside villa where the villa’s owner, in any way, obstructs the public’s right to fish in the seas.²⁴⁵ This is consistent with Rose’s observation that the common law designated properties as “public” where their use by all-comers yields commercial benefits that could not accrue if their use were restricted to a single owner.²⁴⁶

2. Socializing Theory

We might alternatively call this the Rose theory of the res. Here, we characterize as common those properties the use of which advances interactive, social virtues.²⁴⁷ So, for example, Rose identifies free speech, alongside commerce, “as a socializing practice for our society—a practice with infinite returns to scale, whose necessary locations might be subject to a public trust.”²⁴⁸ She likewise argues that the same is true of recreation.²⁴⁹ So, under this theory, resources considered public (or, in our lexicon, common) might be utility poles on which political fliers are posted,²⁵⁰ or beaches on which the public may learn to get along by coming together for recreation.²⁵¹

As Rose admits, notions of what constitutes a socializing activity are nearly infinitely contestable.²⁵² And particularly in an international and multi-cultural setting, developing a consensus about beneficial social interaction may be even more difficult. Yet this kind of inquiry is not unprecedented in international lawmaking. Take, for example, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.²⁵³ This treaty, ratified by 143 states, identifies eleven categories of cultural property for protection through various export and import controls.²⁵⁴ Notable among the policy purposes for the Convention is the belief that “the interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations.”²⁵⁵

3. Ecological Theory

An ecological approach to the common heritage doctrine would prioritize protection of the environment to identify resources that should be incorporated into the res. We see this approach most clearly in the work of Sax, who, as we have discussed, focused in a rather utilitarian fashion on the public trust doctrine because of its promise as a procedural means for environmental protection.²⁵⁶ A similar animating principle emerges from scholarship²⁵⁷ and litigation urging courts to identify the atmosphere as another subject of the public trust.²⁵⁸ And so, for example, youth plaintiffs have urged courts to consider the federal government’s failure to curb air pollution as a violation of a public trust that inheres in the atmosphere.²⁵⁹

In some ways, the vociferous disagreement at the International Seabed Authority concerning regulations for extractive mining is a conflict between two theories of the res—the access theory and the ecological theory.²⁶⁰ Both, in a way, have a hook in UNCLOS. Article 140 provides that the financial proceeds of seabed mining will be provided to developing and other disadvantaged states,²⁶¹ which assumes commercialization of seabed resources. Article 145, on the other hand, provides that measures will be taken to “ensure effective protection for the marine environment from harmful effects which may arise from such activities.”²⁶² Yet even these measures presuppose the existence of extractive activities, which may account for the fact that mining operations are set to begin in 2024 notwithstanding significant environmental concern.

4. Intergenerational Equity Theory

The new international economic order movement represents one example of how to conceive of common heritage res in a way that prioritizes equity concerns. We can see this in the words of Ambassador Pardo, who argued that the deep seabed should be characterized as a common heritage primarily as a means for redressing disparities between newly decolonized states and developed economies.²⁶³ And it remains alive in the work of scholars like Egede, who identifies the redistributive potential of the Enterprise’s as a necessary component of the common heritage doctrine in the law of the sea.²⁶⁴ As noted previously, this is also the theory of the res that likely faces the most resistance from developed economies, and which was significantly undermined by the 1994 Implementing Agreement.²⁶⁵

B. The Beneficiary Class

There are at least two primary parts to any inquiry into the common heritage doctrine’s beneficiary population. First is whether the population should be defined as that of a specific political community or humanity writ large. The second is whether the population should be defined as only those persons currently alive or also as including future generations. I will address each in turn.

We have already seen how debate over the first dimension can be traced all the way to the Roman law antecedents of the public trust and common heritage doctrines.²⁶⁶ As Ruhl and McGinn posited, as a practical matter, it may be impossible to enforce a res communis regime without acknowledging some role for the government (i.e., in a manner quite similar to the government’s responsibilities regarding res publicae).²⁶⁷ This approach is implicit in nearly every public trust doctrine case. For example, the Supreme Court in McCready v. Virginia found that “the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty.”²⁶⁸ Justice Washington made this connection equally clear in what appears to be the earliest public trust case to have reached the bench of a Supreme Court justice.²⁶⁹

Contemporary public trust cases have been most direct in identifying that the beneficiary class should be understood to include future generations. For example, the Supreme Court of India in MC Mehta was clear in identifying the public trust doctrine as one that protected natural heritage in the interest of future generations.²⁷⁰ The Supreme Court of Hawaii has been similarly forthright in its attention to future generations, holding that “the public trust relating to water resources [is] the authority and duty ‘to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses.’ ”²⁷¹ This does not mean, however, that any conception of the common heritage must include consideration of future generations. There appears to be no such stipulation in any of the federal public trust cases in the years before Illinois Central, for example. And the Roman sources are equally silent on the question of future interests.

C. The Trustee and Means of Protection

1. Trustee

There are three distinct considerations to keep in mind here. First, there is deciding whether the beneficiaries should be identified as members of a political community or humans as an aggregated whole. Second, there is identifying a trustee. Finally, there is deciding whether an institutional actor outside the beneficiary class is empowered to ensure that the trustee is acting in the beneficiary class’s interests. In the domestic public trust cases, this has largely centered around debates over the proper role of the courts in reviewing legislative action. We have seen a wide range of models. On one end are some of the earliest cases from Maryland, wherein the courts entirely deferred to the legislature’s decision to alienate trust property.²⁷² On the other end of the spectrum is the California Supreme Court’s assertion of continuous, coequal jurisdiction to impose something akin to a hard-look review of agency action.²⁷³ As we have discussed, it was this potential for a strong judicial role that most attracted Sax to the public trust doctrine as a means for protecting the interests of a silent, disperse majority.²⁷⁴ These are, of course, ideal types, as the Supreme Court’s inconsistent approach to deferring to legislative actions in the wake of Illinois Central makes abundantly clear.²⁷⁵

2. Means of Protection

One could imagine an almost infinitely long list of the ways by which a trustee might protect the res in the interest of the beneficiary. These means would be in significant degree contingent on answers to the questions posited above. So, for example, the theory of active stewardship required by the California Supreme Court can be seen as a necessary product of an ecological theory of the res where the beneficiary class includes future generations. Looking across the case law we have surveyed, three broad categories emerge. Again, these exist along a spectrum from least to most permissive and should only be seen as ideal types.

First, there is the absolute prohibition on alienation or use. This has the least precedent in American public trust case law, as courts almost always recognize some ability for a legislature to divest of, or allow limited use of, trust resources.²⁷⁶ Expanding our notion of the public trust somewhat, this model would be akin to the protection afforded under the Endangered Species Act.²⁷⁷ A second, less robust, means of protection would be a requirement that the trustee be an active steward of the trust resource. The California Supreme Court adopted something analogous to this approach when it held that the public trust “imposes a duty of continuing supervision over the taking and use of [] appropriated water.”²⁷⁸ A third, and by far most common approach in U.S. case law, is to require that use or alienation of the res be consistent with trust principles. As noted previously, this too exists along a spectrum. In this way, the Supreme Court’s more skeptical approach in Illinois Central and the early approach of Maryland courts are all variations of this same model.²⁷⁹

D. Vindicating the Beneficiary’s Interests

Finally, a public trust framework for the common heritage of humankind considers the means by which the beneficiary class can vindicate its interests if the trustee fails in its duties. This is by far the most difficult to analogize across the domestic and international contexts. In U.S. case law, one of the signal virtues of the public trust doctrine, as told by its proponents, is the fact that it provides standing to sue the government for failure to protect trust resources.²⁸⁰ Yet there currently exists no international tribunal by which any citizen might vindicate rights under UNCLOS, for example. UNCLOS provides something of a proxy in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea.²⁸¹ Yet even here, the chamber’s jurisdiction is limited to disputes between states parties, entities created by UNCLOS concerning seabed mining, and private parties who have entered into mining contracts with the Authority.²⁸² This is, in actuality, quite a robust mechanism for enforcing the duties imposed by UNCLOS. On the other end of the spectrum would be the norm-based enforcement of climate change goals arrived at under the UN Framework Convention on Climate Change.²⁸³

There are a number of benefits to applying the public trust framework to the common heritage of humankind. First, and perhaps most importantly, it provides a more detailed lexicon for articulating what we mean when we debate the common heritage doctrine. Second, it recognizes that social values are at the core of debates about the common heritage of humankind, and it demonstrates the wide range of values that we might seek to advance. And third, it connects this higher-level debate about values to a more practical discussion of particular governance rules.

IV. CASE STUDY: OUTER SPACE MINING

It is particularly appropriate to assess how a public trust approach to the common heritage doctrine might help the international community develop rules for managing outer space mining. There are many existing proposals, often developed after the United States enacted domestic legislation concerning asteroid mining in 2015. Although promising, these proposals are largely a grab-bag of analogies to existing domestic and international legal regimes. Applying a public trust approach to the common heritage doctrine can help us build on these proposals in a way that is incremental and sensitive to geography and changing technology.

A. Existing Proposals

Member states of the UN Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”) have addressed outer space resource extraction every year since 2015.²⁸⁴ Beginning in 2022, UNCOPUOS has embarked on a more rigorous, five-year process for developing international rules for outer space mining. In significant part, this five-year endeavor was born of the plethora of states enacting domestic laws recognizing the property rights of private parties that extract abiotic resources from celestial objects. This list now includes the United States, Luxembourg, Japan, and the United Arab Emirates.²⁸⁵ A 2022 call for views uncovered a few areas of broad agreement. First, most states agreed to exclude discussion of access to orbits and radio frequencies from these debates, since both issues were already addressed in forums like the International Telecommunications Union.²⁸⁶ Many states likewise looked to develop a framework that would ensure predictability, safety, sustainability, and the peaceful uses of outer space.²⁸⁷

The United States has taken the lead in cultivating a group of like-minded states in favor of outer space mining. Executive Order 13914 propelled this initiative by directing that NASA foster international support for outer space resource extraction.²⁸⁸ NASA has primarily executed on this task through a series of identical bilateral agreements with other states called the Artemis Accords—a set of principles established to encourage cooperation in future lunar activities.²⁸⁹ In relevant part for our purposes, the Artemis Accords provide that “the extraction of space resources does not inherently constitute national appropriation under article II of the Outer Space Treaty.”²⁹⁰

The most-cited proposals for managing such resource extraction are provided by the so-called Hague “Building Blocks.” Developed by a group of leading scholars from 2016 through 2020,²⁹¹ these Building Blocks address a wide range of outer space activities. In pertinent part, they recommend establishing a registry-based system for resource extraction “priority rights.”²⁹² Upon registering the geographic scope and period of time for any given prospecting operation, a safety zone around the activity would also be established commensurate with the type of activity that is proposed.²⁹³ The Hague Building Blocks adopt many of the uncontested elements of the common heritage doctrine—resource extraction would be carried out only for peaceful purposes “for the benefit and in the interests of all countries and humankind irrespective of their degree of economic and scientific development.”²⁹⁴ Although the precise contours of this benefit are left largely undefined, the Building Blocks do provide that states should share benefits by promoting “participation in space resource activities by all countries, in particular developing countries.”²⁹⁵ Such promotion might include, for example, assisting in developing space science and technological capacity, cooperation on training and education, providing open access to scientific information, incentivizing joint ventures, exchanging expertise and technology on a mutually agreeable basis, or establishing an international development fund with the proceeds of mining activities. The Building Blocks also advocate ensuring that rights over extracted resources “can lawfully be acquired through domestic legislation, bilateral agreements and/or multilateral agreements.”²⁹⁶

This approach is typical of a wider range of commentary urging states to adopt an outer space mining regime modeled off the International Telecommunication Union’s first-in-time, first-in-right registration system.²⁹⁷ More libertarian versions of this proposal call for the international community to do nothing—relying instead on a rule of first possession and ad hoc recognition of an entity’s on-the-ground mining operations as they develop.²⁹⁸

Another set of proposals suggests establishing some common baseline of resource entitlements. In this vein, some have recommended partitioning the moon geographically between states and allowing each to develop its own system for prioritizing extraction activities within their respective zones.²⁹⁹ A similar variant would adopt the concept of the exclusive economic zone from the law of the sea to achieve a similar end, while also being in less apparent tension with the Outer Space Treaty’s prohibition on sovereign claims.³⁰⁰ Yet others would establish a system of tradable credits, where each state received some baseline allocation of resource rights that could be sold to other states.³⁰¹

A final group of proposals seek to adapt various doctrines of domestic property law. In this way, some have advocated entrusting an international body with all extraterrestrial property rights and granting to private entities a defeasible fee interest for mining operations.³⁰² Similarly, others propose adopting a condominium model, with each state being granted fee simple to particular territories that are subject to a more general management scheme.³⁰³

This is only a flavor of the wide range of schemes proposed by states, scholars, and activists. All have their benefits and drawbacks, depending on your normative views. But, with the possible exception of the Hague Building Blocks, none provide a holistic framework for thinking about outer space mining.

B. The Public Trust Approach

A public trust approach to the common heritage doctrine does not prescribe a particular vision for outer space mining. Instead, it provides a more structured framework for thinking about the values that we seek to advance in using resources on celestial objects. By employing the public trust framework to outer space mining, two key distinctions emerge—the locations on which mining operations will occur and their probable timelines.

1. Defining the Res

To understand why these distinctions matter, we can begin by considering how states might apply a theory of the res to outer space mining. Take, for example, Rose’s socializing theory. This, again, is the idea that we should treat as common those resources the use of which produces some interactive, social virtues.³⁰⁴ Let us imagine that mining operations were to start tomorrow—there are a few categories of objects that, under this theory, should be characterized as a common heritage. The first might be objects of cultural heritage—the first Apollo landing site, for example, or Neil Armstrong and Buzz Aldrin’s footsteps at Tranquility Base. Even with a relatively minimal presence on the moon, preserving such sites would be a reminder of humanity’s shared journey of exploration and our years of shared, peaceful cooperation in civilian space programs. This is by no means a novel idea—the U.S. government has already expressed an interest in preserving these historical artifacts.³⁰⁵ Another might be locations and communication equipment, whether on the moon or in the moon’s orbit, necessary to relay communications from the far side of the moon to Earth.³⁰⁶ These resources are fundamental to communication in the same way that Rose posited utility poles are a cornerstone of political speech.³⁰⁷

These examples just do not apply to asteroid mining. There are no such cultural heritage sites, and if the asteroid is small enough, they are unlikely to ever exist. Asteroids are also unlikely to be so large as to frustrate ready communication with Earth. All of which is to say that location matters. And an approach to outer space mining that is sensitive to these differences in location may more readily lead to consensus on practical rules of the road.

Returning to our thought experiment about mining on the moon, we could imagine significantly different socializing interests at different time horizons. Let us again take the socializing theory as a heuristic. Aside from the cultural objects and communications sites noted above, if mining were to start tomorrow, there are relatively few other resources the use of which might lead to any kind of interaction—there are likely to just be too few people on the moon. But if we cast our minds some decades down the line, when state and private industry plans to have permanent lunar settlements might be realized, the situation is quite different. Like Rose’s public roadways,³⁰⁸ we could imagine there being commonly used routes connecting settlements the private appropriation of which would frustrate socializing settlements to each other. We could also imagine use of the moon’s limited water resources as another locus of important socialization. NASA has found there to be 1/100th of the amount of water in the lunar soil on the sunlit side of the moon as exists in the Sahara.³⁰⁹ To the extent that permanent human settlements need to rely on these water sources, their private use without some general use scheme could well lead to resource conflicts—certainly not a socializing use of water resources. For those who adopt a socializing theory of the res, therefore, it would be useful to adopt now a precautionary approach to using these resources which, in a foreseeable future, are important to incorporate into the commons. Such a precautionary approach might, for example, limit present use of water resources only to what is necessary to sustain human life for research stations, and not stations established just for mining activities.

Once again, these future concerns are less likely to exist on a relatively small asteroid where there is no practical ability to have a human settlement, even in a future where there are more humans who live or operate in outer space. In this case, there may be fewer practical reasons to adopt a precautionary approach to any water resources that might exist on the asteroid—paving the way to more extensive private use.

Finally, choosing between different theories of the res is largely a normative decision. But as this discussion shows, there is a geographic component that is at play. Over any time horizon, the socializing interests implicated in mining an asteroid are significantly fewer than might pertain on the moon. The same would not be true if we adopt an access theory of the res, which prioritizes opening access to outer space resources. While this does not help us choose between theories, it does help us identify those locations on which there is likely to be less disagreement among states. If we imagine a bilateral negotiation between one state that supports an access theory and another that adopts a socializing theory, they should begin their negotiations by developing a legal regime for mining asteroids. There are likely to be fewer areas of disagreement simply because the possible uses of asteroids, now or in the future, are more limited than the possible uses of different parts of the moon.

Distinctions based on location and timeframe are important to considering each of the remaining lines of inquiry for a public trust approach to outer space mining. In the remaining sections, I will briefly demonstrate why.

2. Defining the Beneficiary

As a general matter we can imagine three possible beneficiary classes. The first are those who live near the mining operation (this necessarily requires imagining a future with a permanent human presence, for example, on the moon). Second are those who live on Earth (the only class we could imagine today, for example). And the third would be to combine these two groups. An approach to the common heritage that benefits only those who live near the mining operation would be fundamentally different from one that also considers the interests of those on Earth. For example, if we adopt an ecological theory of the res, there might be significant environmental effects to mining that are purely local. So, operations that eliminate access to lunar groundwater or destroy a particularly attractive landscape simply wouldn’t matter to an earth-bound beneficiary class. Instead, maximizing the benefits that accrue to the mining (so that the proceeds could be redistributed, for example) would be far more important to this class of beneficiaries.

The question of determining the beneficiary class is largely theoretical for the time being. Presently, it is difficult to imagine any beneficiary class other than all of humanity, politically represented by states as the primary subjects of international law. But this thought experiment does suggest that there will be a difficult future task in determining the degree of preference, if any, that these beneficiary groups should enjoy from extracting resources. Difficult, but not unprecedented. Fundamentally, it is no different than the task faced by the Supreme Court in its early public trust cases: Can we impose regulations on oyster fishing in a manner that benefits the citizens of one state over those of another?³¹⁰ And for those who believe in the virtue of including non-Earth-bound beneficiaries into the common heritage of certain extraterrestrial resources, these distinctions would again counsel in favor of adopting a precautionary approach to mining now.

Together with the theory of the res, defining the beneficiary class will also raise questions about what benefits should accrue to the beneficiaries. Much of the debate about sharing technology, information, and financial proceeds from outer space mining has focused on this question. Fundamentally, like all these inquiries, it is normative and defies any necessary legal answer. Taking this public trust approach as a starting point, those advocating for preferences that would accrue to less developed countries should emphasize theories of the res that prioritize an intergenerational, equity-based approach and an understanding of the beneficiary class that extends beyond the political community of the state that engages in mining activities.

3. Trustee and the Means of Protection

As was the case in negotiations concerning the law of the sea, much of the current debate in outer space law concerns whether, and how, to create an international organization to manage mining operations. A public trust approach to the common heritage doctrine, however, suggests that this debate necessarily depends on decisions made about the theory of the res and the beneficiary class. States would do well to think critically about the history of the International Seabed Authority—the mere existence of a detailed international bureaucracy has guaranteed neither redistributive benefits for less-developed countries nor guaranteed swift access to the ocean floor.

We have already canvassed many of the institutional arrangements that states can develop to constitute a trustee and the associated means by which the trust is protected. Again, differences in location and timeframe are important. For locations where future human habitation is possible, some standing adjudicatory body may one day be necessary. But in the interim, proposals for a registry operated by some entity like the International Telecommunications Union³¹¹ appear to be sufficient. The members of such a body can use the forum to develop regulations that ensure non-interference, prioritize resource rights, and develop safety standards. So long as states can agree on the theory of the res before such a model is adopted, the risks of significant future changes in the scope of the common heritage doctrine would also be meaningfully minimized.

To the extent that states are interested in adopting a precautionary approach to mining for any of the reasons discussed above, a few options exist. One would be to limit prospecting for resources indefinitely or for some period of years. These limits could be tailored to specific locations (for example, applying to particular areas of the moon or the moon writ large), types of resources (for example, water), or the purposes for which the resources are used (for example, to sustain life). States could determine these limits in a variety of consultative fora, whether that be UNCOPUOS or some smaller body of concerned states, much like the Arctic Council.

4. Vindicating the Beneficiary’s Interests

The design choices made in Section IV.B.3 significantly determine the ways in which a beneficiary class might vindicate their rights. In the immediate future, there are two choices for how beneficiaries might vindicate their rights.³¹²

At one end, states might create an international tribunal along the lines of the Seabed Disputes Chamber of the International Tribunal of the Law of the Sea. Much like under UNCLOS, such a tribunal could have jurisdiction over states parties and private entities with mining operations and be empowered to enforce agreed-upon regulations. As a practical matter, I am pessimistic about the likelihood of any major spacefaring state acceding to this kind of jurisdiction. There has been enough action to unilaterally assert mining rights, by the United States and Luxembourg particularly, that establishing such a tribunal would likely be seen as a concession with little apparent benefit.

It seems more likely that states would continue using informal conciliation and negotiation to enforce compliance with mining regulations. This would operate in much the same way as states “enforce” the nationally determined emissions targets agreed upon under the UN Framework Convention on Climate Change.³¹³ Such an approach necessarily entails significant potential for backsliding. Some of this risk, however, could be mitigated if states are able to agree on some of the more fundamental questions discussed earlier in this section, and particularly on the theory of the res pertinent to a particular location. By more narrowly defining the problem set and establishing more detailed consensus, there may be less of an incentive for states to backslide on their commitments.

V. CONCLUSION

The common heritage of humankind contains great promise as a framework for understanding and managing resource challenges in areas beyond national jurisdiction. Its potential, however, has been stymied by its close association with the politics and economic disputes of the Cold War. Taking lessons from the development of the public trust doctrine in domestic U.S. law, the common heritage can be liberated from these political battles and applied to a wide range of contemporary problems. Future work, for example, might use this four-part framework to develop a more detailed mechanism to protect and use marine genetic resources or protect marine biodiversity.³¹⁴ Contemporary international politics has, in many ways, returned to a pattern of Cold War alliances and territorial conflict. Our approach to the international law for managing resources in areas beyond national jurisdiction can remain practical and resist a similar turn to the past.

97 S. Cal. L. Rev. 1469

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Christopher Mirasola*

* Assistant Professor, University of Houston Law Center. I am particularly grateful to Molly Brady, who pointed me in the direction of the public trust doctrine in the early stages of this project. I am also very grateful for helpful feedback from William Alford, Haley Anderson, Stephen Cody, Asaf Lubin, Thomas McGinn, Brian Richardson, Melissa Stewart, Andrea Olson, Carol Rose, and Paul Stephan. All errors are, of course, my own.