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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.

Meme Corporate Governance

October 2024October 2024Dhruv Aggarwal,* Albert H. Choi† & Yoon-Ho Alex Lee‡

Can retail investors revolutionize corporate governance and make public companies more responsive to social concerns? Beginning in 2021, there was a dramatic influx of retail investors into the shareholder base of “meme” stock companies such as GameStop, AMC, and Bed Bath & Beyond. Observing the unprecedented, coordinated trading among retail investors, scholars and practitioners predicted that the influx of retail investors would reduce the power of large institutional investors and democratize corporate governance. These predictions were driven by three factors: generational, with assumptions that millennial and Gen Z investors would challenge corporate management; societal, reflecting growing discontent with slow progress on issues such as sustainability and boardroom diversity; and technological, with the advent of easily accessible and user-friendly mobile apps allowing investors to directly intervene in corporate governance. While plausible, these predictions have so far not been tested. This Article empirically analyzes the impact of retail investors on corporate governance, particularly at meme stock companies. We provide new quantitative evidence regarding the origins of meme investing and conclude that—despite their coordinated trading behavior in the market—meme investors have not democratized corporate governance or advanced social issues. The Article presents three principal findings. First, we show how the “meme stock” frenzy was affected by the abolition of trading commissions by major brokerages in 2019. Meme stock companies experienced positive abnormal stock returns when commission-free trading was widely introduced and saw elevated trading volumes afterward. Second, we find that despite the promise of a more active retail shareholder base, meme stock companies experienced a significant decrease in shareholder voting. Shareholder proposals have also been very limited, with most meme stock companies seeing no proposals after the rapid rise in retail ownership. Third, we do not find any improvement in meme stock companies’ corporate governance, financial performance, and social responsibility, as represented by director independence, board gender diversity, ESG scores, and capital and R&D expenditures. Collectively, our findings suggest that the influx of retail shareholders has not translated into more “democratic” governance regimes or encouraged shareholder participation in corporate governance at companies most affected by the meme investor storm.

INTRODUCTION

Buoyed by pandemic checks and the advent of commission-free mobile apps such as Robinhood, retail investors took Wall Street by storm in early 2021.¹ Coordinating through social media sites such as Reddit and using catchy “memes,”² retail investors engaged in an active “buy” campaign to dramatically push up the GameStop stock price from $4 a share to a stratospheric level of over $485 per share. GameStop, a gaming merchandise retailer, had been losing money and seemed headed toward bankruptcy.³ A number of hedge funds had taken large short positions against the stock, betting that the price would drop even further.⁴ Meme investors seem to have been motivated to “punish” the hedge funds by driving up the stock price and creating a “short squeeze” against them.⁵ The end result was a severe loss and a subsequent retreat for the hedge funds.⁶ Taking advantage of the elevated stock price, GameStop raised large amounts of capital through stock sales,⁷ alleviating its dire liquidity condition. Retail shareholders, who have long played second-fiddle to institutional asset managers and pension funds, thus seemed to have vanquished Wall Street hedge funds and resurrected an ailing company destined for bankruptcy.

Over the ensuing months, it became clear that the GameStop saga was but one instance of more widespread meme stock surges. A number of other companies (hereinafter “meme stock companies” or “meme companies”) would experience surges in their stock prices, which, like GameStop, could not be explained by their financial fundamentals. Investing has become a social phenomenon. Furthermore, meme investing has remained a persistent phenomenon: long after the GameStop saga, meme investors continue to target regional bank stocks,⁸ special purpose acquisition companies (“SPACs”),⁹ and even firms that have filed for bankruptcy.¹⁰ What this persistence implies is that GameStop’s meme surge was not a one-time event: meme investing and meme surges are here to stay. Furthermore, the meme surges tell us a broader and more generalizable story about the behavior of retail investors and the impact of the change in shareholder base. The potentially transformative effect of retail investors—driven by demographic, societal, and technological factors—has emerged as one of the central debates in corporate finance and corporate governance.

These experiences have motivated scholars, practitioners, and policymakers to ask several important questions. What impact did the influx of retail shareholders have on meme stock companies? More specifically, how did the new retail shareholders affect their governance and performance? Do the meme surges signify broader and more general implications for corporate and financial law and policy?

This Article’s key contribution is to focus on meme stock companies—the firms where retail investors are most likely to have become more powerful—and empirically test how corporate governance and performance has been affected by the dramatic influx of retail investors in their shareholder base. We start by analyzing the background of meme trading. The existing scholarship has almost exclusively associated meme stocks with the surge in social media interest (such as Reddit forums) in these companies starting in 2021.¹¹ While social media surely played an important role in popularizing these stocks, we trace the origins of meme trading further back, to the pre-pandemic era. Using an event study methodology, we find that meme stocks exhibited abnormal returns (and an abnormal increase in trading volume) in October 2019, when major brokerages abolished commissions for trading.¹² This suggests that meme stock companies were well positioned to benefit from the subsequent surge in retail investor interest: zero-commission trading laid the groundwork for the subsequent surge. The emergence and the significance of zero-commission trading for the meme stock phenomenon implies more fundamental changes that can happen at other public companies and across the financial markets.

After documenting the impact of zero-commission trading on meme stocks, we proceed to examine the consequences of meme trading for corporate governance and performance at meme stock companies. Specifically, we ask: Did the influx of retail investors create a more engaged shareholder base at meme stock companies and change corporate governance or environmental, social, and governance (“ESG”) activity at these companies? To answer these questions, we begin with corporate law’s paradigmatic framework for shareholder influence in public corporations: voting and shareholder proposals.¹³ Somewhat surprisingly, we find that non-voting—that is, the share of votes that were not cast for or against, or marked as abstentions—significantly increased in the year of the meme surge for meme stock companies, as compared with other, non-meme stock companies.¹⁴ Even more surprisingly, we find that the fraction of non-votes began to increase in 2019 and continued to increase in 2022, long before and after the meme surge of 2021. By late 2021 and early 2022 the retail investors who remain loyal to the company would presumably care more about the company’s (long-term) performance and governance.¹⁵ The fact that the level of shareholder engagement seems to be getting worse in 2019 and 2022 indicates that the increase in non-vote shares is not driven just by short-term speculators.

Turning to shareholder proposals, we find no evidence that shareholders at meme stock companies are more likely to participate in governance activities by submitting shareholder proposals, either before or after the meme surge.¹⁶ Between 2015 and 2022, only one meme stock company—Bed Bath & Beyond—had any shareholder proposals included in the company’s definitive proxy statements at all (three proposals, all in 2016), but these proposals predate the introduction of zero-commission trading and the influx of retail investors. Within the sample companies, there was also no record of any shareholder proposal being excluded via the Securities and Exchange Commission’s (“SEC”) no-action letter process during the sample period—apart from GameStop, which successfully excluded three shareholder proposals submitted in 2022. The evidence is consistent with retail investors brought in by the meme phenomenon being either uninterested in voting or making proposals, or unable to do so effectively.

Third, we examine whether retail investors might have had an indirect effect on meme stock companies. One of the most visible ways contemporary insurgent shareholders can affect company policy is to alter its orientation toward ESG goals. For example, in 2021, a small hedge fund (named Engine No. 1) waged a stunningly successful campaign to install three of its directors on the Exxon Mobil board to pressure the energy company to reduce its carbon footprint.¹⁷ Utilizing the data from the standard MSCI ESG Indexes, we find that meme stock companies actually deteriorated in terms of prosocial performance after the meme surge of 2021.¹⁸ We also look at whether meme stock companies performed better in terms of director independence or board gender diversity—other salient issues in corporate governance—and find no evidence that meme stock companies performed better (or worse) on these metrics after the surge of retail investor interest.¹⁹ Thus, meme retail investors do not seem to have made their companies’ policies more prosocial or improved the quality of corporate governance. If anything, the ESG result suggests that these firms’ orientation toward social causes may have worsened in recent years.

As a final measure of indirect impact, we look at how the affected companies changed their operations and performance after both the abolition of commissions in 2019 and the meme surge of early 2021. Meme stock companies’ average return on assets (“ROA”), an important metric for profitability, has substantially worsened over the period compared with non-meme stock companies. If meme investors were engaged and pushing management to make value-increasing investments, one might have expected a rise in expenditures on research and development (“R&D”) or capital investments. These expenses could potentially help meme stock companies adjust their business model and business operations so that they can improve their long-term profitability. We instead find that meme stock companies significantly reduced R&D expenses after the influx of retail investors.²⁰ This result suggests that retail shareholders may not be effective in (directly or indirectly) pressuring management to make productive investments. This contrasts with the findings that an increase in institutional investor ownership is correlated with more innovative activities at firms.²¹

Viewing these results collectively, we find that there is, so far, little evidence to suggest that corporate governance is being “democratized” in the way that the investing public has been. The organized movement among retail investors seems to be limited to their trading behavior and has not otherwise affected retail shareholders’ engagement with corporations in a noticeable way.²² If anything, the evidence points in the opposite direction. As a large block of retail investors remain passive, paradoxically, this can give institutional shareholders, who are active shareholders,²³ even more influence. We do not take issue with the three trends identified as potentially presaging a larger role for retail investors: generational shifts in investor attitudes, societal concerns over social and environmental issues, and technological changes making it easier for retail investors to participate in financial markets. Nevertheless, our empirical findings show that corporate governance has not significantly been democratized or changed yet, even at the companies most dramatically affected by the influx of retail shareholders.²⁴

The remainder of this Article is organized as follows: Part I surveys the demographic, societal, and technological changes that have led some commentators and scholars to express high hopes for the impact of meme and other retail investors on corporate governance. Part II explains our data sources and presents summary statistics. Part III examines the origins of meme trading and explains the importance of the 2019 abolition of commissions by online brokerages. Part IV shows that, despite the surge of retail investor interest in meme stock companies, shareholder nonvoting at meme stock companies increased in recent years, and retail investors failed to make much of an impact using the shareholder proposal process. Part V looks at potential indirect effects of shareholder engagements, such as firm ESG performance, board independence, gender diversity, R&D, and capital expenditures. We find that these companies have not become more prosocial recently, and meme firms’ ESG scores have decreased. We also find that these companies decreased both R&D as well as capital expenditures. In Part VI, we explore potential reasons as to why corporate governance has not been democratized notwithstanding the prevailing scholarly predictions. In doing so, we highlight important differences between the activities involved in meme investing versus those involved in meme shareholding. We then conclude and offer some possible directions for a future meme stock research agenda.

I. RETAIL INVESTORS, RETAIL SHAREHOLDERS, AND MEME TRADERS

When GameStop was experiencing a dramatic meme surge in January 2021, it was easy to dismiss the phenomenon as a transient anomaly that could be explained away by pandemic boredom and stimulus checks.²⁵ However, the pandemic has long ended and meme surges continue, albeit sporadically. Experts now believe meme trading is here to stay.²⁶ If meme trading has become a fact of life, it begs the question of what we should expect from retail investors participating in meme trading or trading more generally. Given that (coordinated) retail investing is here to stay, what impact will the shifting of the shareholder and investor base away from institutional shareholders and toward retail shareholders have on financial markets and corporations?

There are three principal drivers scholars and commentators have proposed as to how retail investors have become poised to transform financial markets and corporate governance. The first relates to perceived generational shifts in investor preferences. In this story, millennials and Gen Z entering the market as retail investors will seek to create a footprint, based on their social, cultural, and distributional preferences, on corporate policies.²⁷ Some analyses of these market participants have concluded that this generation cares deeply about issues beyond profit maximization, and are willing to forsake returns to pursue these interests through the corporation. For instance, Professors Michal Barzuza, Quinn Curtis, and David Webber argue that in order to attract investment from millennials, index funds should push more for various governance and social changes at companies—such as board diversity—which are issues that millennials care about.²⁸ Similarly, Professors Sergio Alberto Gramitto Ricci and Christina Sautter observe that millennials have a generationally defined and distinct set of values, and are more likely to prioritize ESG goals over profit.²⁹ In their telling, meme investors will seamlessly transform into engaged shareholders and usher in a new paradigm for corporate governance.³⁰

Secondly, meme investors could be highly motivated to affect corporate policies because of the societal time period in which the meme surge occurred. Some have argued that decades of profit-centric corporate governance have led to workers, residents of surrounding communities, and the environment all suffering from profit-centric corporate policies.³¹ The shareholders best positioned to change corporate policies—large asset managers such as BlackRock and Vanguard, who own more than a fifth of the average S&P 500 firm³²—are constrained in their ability to pressure management to change policies because any such change would hurt the interests of at least some of the hundreds of investment funds they operate.³³ In this vein, Professor Jill Fisch has argued that retail investors are a useful antidote to the concentration of market power in large institutional investors, and can help enlist ordinary citizens in the larger project of national economic development.³⁴ Free from the structural constraints faced by institutional investors, who owe a fiduciary duty to their clients and are likely to be obligated to pursue profit maximization,³⁵ retail shareholders are theoretically able to demand that firms adopt prosocial policies even at the expense of profit. Citizen involvement via retail investing could also have the advantage of tempering corporate power, with retail investors able to sway management through their ability to influence close votes.³⁶ An example of this from the meme surge came from meme investors who wanted to keep AMC theaters open despite the COVID-19 pandemic severely disrupting the firm’s business model.³⁷ By putting their money into the company (through additional capital raising) and keeping the movie theaters running, meme investors arguably offered a lifeline to the thousands of workers employed by the chain.

Finally, there is a technological element to the promise of meme and other retail investing. Since the mid-2010s, Robinhood has offered a game-like and easily accessible mobile app allowing retail investors to participate in the market. Financial economics literature has shown that retail investors overreact to market signals and allow overconfidence to distort portfolio allocation, reducing their financial returns.³⁸ Given this research, it is unsurprising that many retail investors decided to engage in stock-picking after gaining uninterrupted access to a flashy mobile investing app. Beyond investing apps, the GameStop saga and the meme stock frenzy of 2021 demonstrated the power of social media technology to coalesce dispersed individuals who can unite to bring about an impact and put checks on the forces of institutional players. Today, social media platforms such as Facebook, Reddit, and X (formerly known as Twitter), provide a space where individuals form communities, share information, and engage in collective action. These platforms have also made it easier for people to spread information quickly, allowing them to mobilize and respond to events in real time. From these perspectives, the meme surges of early 2021 could be seen as foreshadowing a future in which technology can further enable and empower dispersed individuals to overcome the cost of collective action and promote a collectively cobbled together agenda.

Collectively, the demographic, societal, and technological trends could be seen as ushering in an amplified role for retail investors. Consistent with this intuition, a study by Professors Alon Brav, Matthew Cain, and Jonathon Zytnick empirically assesses the collective voting heft of retail investors using a large proprietary sample of shareholder ownership and voting records.³⁹ They conclude that retail investor voting can have as much of an impact on corporate outcomes as the voting preferences of the three largest institutional investors.⁴⁰ This suggests that, to the extent meme stock surges can motivate greater retail shareholder participation, there is a realistic possibility of significant changes in corporate governance. For these reasons, more than three years after the GameStop saga, this Article seeks to empirically examine what changes, if any, have taken place in the governance of the companies subject to meme surges.

II. DATA AND SUMMARY STATISTICS

We use a variety of sources to collect information about both meme and non-meme stocks. Our first step is to identify which companies qualify as meme stock companies in the relevant period. We use Factiva⁴¹ searches and Internet queries with appropriate keywords (“meme,” “retail investors,” and “Reddit” in conjunction with “stock” and so on), modeling our approach on the nascent financial economics literature studying the meme trading phenomenon.⁴² We identify the following eight companies as meme stock companies: GameStop,⁴³ AMC Entertainment, Inc.,⁴⁴ Bed Bath & Beyond,⁴⁵ Blackberry,⁴⁶ Express, Inc.,⁴⁷ Koss,⁴⁸ Robinhood,⁴⁹ and Vinco.⁵⁰ For meme and non-meme stocks (i.e., other public companies), we collect an array of financial and non-financial information for the time period of 2015 to 2022. First, stock price information comes from the Center for Research in Stock Prices (“CRSP”). Firm financial data (size as proxied by assets in millions of dollars, performance (return on assets), debt ratio, cash ratio, closing stock price at the end of the fiscal year, and market value in millions), R&D, and capital expenditures are collected from Compustat. Finally, we get data on shareholder voting from Institutional Shareholder Services (“ISS”) (formerly known as Riskmetrics).

Table 1 presents the summary statistics for our dataset. Vote figures are organized at the shareholder proposal level and are matched to the firm-year level observations for financials from Compustat.⁵¹ Panel A displays the overall descriptive statistics (in millions for financial measures), while Panel B compares the relevant statistics between meme and non-meme companies, along with t-test results. The first statistic in Panel B, Percent Non-Votes, measures the extent of shareholder non-participation in direct governance. Following the accounting literature, we define shareholder non-participation as the percentage of outstanding shares that were not voted “for,” “against,” or “abstention” with respect to proposals at a meeting. Between 2015 and 2022, the average yearly non-participation rate for meme stocks was 28.75%. This is higher than the 25.04% average for non-meme firms and the difference is significant at the 1% level.

The next four statistics in Panel B, Return on Assets, Cash Ratio, Debt Ratio, and the natural logarithm of assets, present a picture of their respective financial status and performance. When we compare the respective returns on assets, we see that the mean return on assets for meme stocks over the entire period is –0.098, which is statistically significantly (at the 1% level) lower than –0.05 for the non-meme companies. In addition, while Cash Ratio and Ln(Assets) are not statistically significantly different, the meme companies have a statistically significantly higher debt ratio (at 32%) compared with non-meme companies (at 28%).

Table 1. Summary Statistics
Panel A
	N	Mean	SD
Percent Votes for Proposal	289422	70.53	19.16
Percent Votes Against Proposal	289422	4.34	8.6
Percent Non-Votes	289422	24.84	17.26
Ln(Assets)	282189	7.8	2.31
Cash Ratio	276587	0.12	0.18
Debt Ratio	224586	0.28	0.24
Return on Assets	282061	–0.04	0.25
R&D Expense	180296	294.56	2123.57
Capital Expenditures	228832	449.6	2117.09
Closing Price	288369	56.14	141.04
Market Value	259924	15314.18	74007.27

Panel B
	Non-Meme Firms (1)	Meme Firms (2)	t-statistic (1)–(2)
Percent Non-Votes	25.04	28.75	–3.94***
Return on Assets	–0.05	–0.098	3.17***
Cash Ratio	0.14	0.13	1.3
Debt Ratio	0.28	0.32	–3.05***
Ln(Assets)	7.56	7.37	1.54
Closing Price	56.18	28.54	3.72***
Market Value	15331.22	3023.8	3.15**
Note: Panel A presents information on the shareholder voting results and financial variables for the meme stocks identified in Part II, for the period of 2015–22. All financial variables are winsorized at the 1% level. Panel B presents t-tests for some of these variables between meme and non-meme stocks. The *, , and * denote significance at the 1%, 5%, and 10% levels.

Finally, the last two statistics in Panel B, Closing Price and Market Value (in millions), show some of the characteristics of the respective stock. Perhaps not surprisingly, meme companies, on average, had lower stock prices and lower market capitalization than non-meme companies: the average stock price of meme companies is about half of non-meme companies and the average market capitalization of meme companies (a little over $3 billion), one-fifth of that of non-meme companies. In sum, the descriptive statistics indicate that meme companies are on average less profitable (or unprofitable), more heavily leveraged, and have lower stock prices and market capitalizations, consistent with media reports.⁵²

III. THE TWIN SHOCKS TO MEME STOCKS

In the popular imagination, social media usage during the coronavirus pandemic has been singled out as the main driver of the emergence of meme stocks. The New York Times has characterized meme stock investments as being “propelled by a social media frenzy and a bit of boredom” during the pandemic.⁵³ The Wikipedia entry for “meme stock” defines it as “a stock that gains popularity among retail investors through social media.”⁵⁴ However, for our set of meme stocks, we identify an association with retail investors that (1) predates the pandemic and (2) does not relate to social media platforms, such as Reddit or X (formerly known as Twitter). More specifically, we look at the meme stocks’ response to the abolition of commissions by major brokerage platforms in late 2019.

On October 1, 2019, the major online brokerages Charles Schwab and TD Ameritrade eliminated commissions for all their customers. These platforms, which had dominated the online brokerage business, were responding to stiff competition from a new rival, Robinhood, which had heavily utilized the zero-commission trading model.⁵⁵ The advent of zero-commission trading has been widely acknowledged as a root cause of the explosion in retail investing activity. One of the leading explanations for why individuals do not participate in the stock market is that there is a fixed cost of investing that proves potentially insurmountable for the less wealthy.⁵⁶ It is unsurprising that, by reducing the entry cost of trading (i.e., commissions), the 2019 decision by major brokerages increased retail investor activity.⁵⁷

How did the abolition of trading commissions affect meme stocks? The relatively unexpected and sudden decision of the major brokerage platforms to introduce commission-free trading allows us to use the event study methodology to assess its impact. Given that this was prior to the meme stock surge of 2021, to the extent that the market was informationally “efficient,” the stock prices around October 1, 2019, would reasonably reflect the impact of the abolition of commissions on meme stocks.⁵⁸ First, we identify what the expected return for each stock would have been during the event period if the event had not occurred (that is, if the commissions had not been dropped). Using the standard Fama-French three-factor model,⁵⁹ this may be written as:

Here, Rit is the return on stock i on date t minus the risk free rate; Rmt is the market return on date t minus the risk free rate; RSMB is the return on a portfolio of small companies; and RHML is the book to market factor that is the portfolio of firms with a high book value to market value ratio. The abnormal return that can be traced to the event (that is, the associated stock price movement) is the actual return minus the expected return:

We calculate the abnormal returns on October 1, 2019, for all companies in the Compustat database, and regress them against an indicator for whether the company is one of our eight meme stocks. Table 2 presents the results from the event study. Column (1) shows that meme stocks had abnormal returns that were 2.25 percentage points higher than the market, and the coefficient on the indicator variable is highly statistically significant.⁶⁰ Column (2) reruns the regression in model (1) adding controls for firm financials (size as proxied by the natural logarithm of assets, cash ratio, debt ratio, and return on assets) and the results remain largely unchanged. One concern with our results could be that meme stocks are categorically different from non-meme companies. As a final robustness check, we control for the possibility that the financials of meme and non-meme companies may be different. Using the entropy-balancing technique invented in the social science literature,⁶¹ we balance the means of the covariates for meme and non-meme companies. As shown in column (3), our result for meme stocks remains robust to the entropy-balancing method.

Table 2. Event Study Results
	(1)	(2)	(3)
	Baseline	With Financials	Entropy Balanced
Meme Stock	2.252***	2.238***	2.230***
	(0.645)	(0.655)	(0.614)
Constant	–0.127***	–0.269	0.300
	(0.0269)	(0.246)	(0.768)
Observations	7,110	3,531	3,531
R-squared	0.001	0.010	0.208
Firm Financials	No	Yes	Yes
Note: This table presents results from an event study using the Fama-French three-factor model. The dependent variable in this linear regression model is the abnormal stock return on October 1, 2019. Columns (1) and (2) use ordinary least squares regression and column (3) balances covariates for meme and non-meme companies using the entropy-balancing technique. Columns (2) and (3) add controls for firm size (proxied by the natural logarithm of assets), cash ratio, debt ratio, and return on assets. All financial variables are winsorized at the 1% level. The *, , and * denote significance at the 1%, 5%, and 10% levels.

Figure 1 graphs the mean cumulative abnormal returns of meme stocks. The mean abnormal returns are represented by the solid line in the middle, while the dotted lines enclose the 95% confidence interval. Day “0” in this figure refers to October 1, 2019. The figure shows an economically and statistically significant gain for meme stocks around the time the major brokerages dropped trading commissions. In unreported results, we find that meme stocks had significant abnormal returns on October 1, 2019, when we use alternative asset pricing models such as the capital asset pricing model (“CAPM”) or Carhart four-factor model.⁶²

Figure 1. Cumulative Abnormal Returns for Meme Stocks

Note: This figure graphs the mean cumulative abnormal returns for meme stocks around October 1, 2019, when major brokerages abolished trading commissions (denoted as day 0). The dotted lines represent the 95% confidence interval for cumulative abnormal returns.

In addition to the abnormal returns, we also examine the magnitude of share turnover. Figure 2 presents data on the share turnover for meme stocks and other companies between 2015 and 2022. We define turnover as the daily average of the number of stocks of the firm traded as a percentage of total outstanding common stock, using data from CRSP. Since meme stocks are, on average, smaller firms, we subdivide non-meme companies into those belonging to the smallest quartile in terms of market capitalization and other bigger firms. Meme stocks saw both an increase in trading volume after the abolition of commissions on October 1, 2019, and a further increase in 2021–22 after the explosion of social media interest in these firms. There was a significant increase compared to both smallest-quartile and larger non-meme firms. Three points are notable. First, meme stocks had a higher turnover compared with non-meme stocks even in the first period, that is, before the abolition of commissions. Second, both meme and non-meme stocks saw an increase in trading volumes after the abolition of commissions, although the increase was markedly greater for meme companies. Third, during the time of meme surge, while the meme stock trading volume exploded, there seems to be no noticeable increase in trading volume for non-meme stocks.

Figure 2. Average Turnover for Meme Stocks and Other Firms

Note: This figure graphs the mean share turnover (shares traded each day as a percentage of total outstanding common stock) according to CRSP data. The data is presented separately for meme and non-meme stocks. Non-meme stocks are further subdivided into those that belong to the smallest quartile by market capitalization and larger firms. “Pre-Zero Commission” refers to the period from 2015 to September 2019, “Post-Zero Commission” to October 1, 2019, to December 31, 2020, and “Post-Meme Surge” to 2021–22.

We estimate a regression model in which we analyze the factors affecting the average daily turnover for CRSP companies in all three periods. We include as explanatory variables an indicator for meme stock, two dummies for Post-Zero Commission and Post-Meme Surge, and the interaction of the meme indicator with each time dummy. We include firm fixed effects to make sure the results are not driven by idiosyncratic factors unique to any given company. Both interaction terms are positive and statistically significant. The results are presented in Table 3. Note that, even controlling for firm fixed effects and time trends, meme companies seem to have especially gained with respect to this measure of liquidity in the latter time periods. The results remain qualitatively unchanged when we additionally control for firm market value. The event study results presented in this Section show that meme stock companies gained value around the time major brokerages abolished commissions. The influx of retail investors precipitated by zero commissions could therefore have been particularly impactful for the meme stocks. Moreover, the results on turnover indicate that meme firms saw greater trading volumes after the major brokerages eliminated commissions.

Table 3. Meme Stocks and Trading Volume
Post-Zero Commission	0.664***
	(0.0714)
Post-Zero Commission x Meme	3.252*
	(1.874)
Post-Meme Surge	0.517***
	(0.0822)
Post-Meme Surge x Meme	12.23***
	(3.634)
Constant	1.080***
	(0.0402)

Observations	20,764
R-squared	0.875
Firm Fixed Effects	Yes
Note: This table presents the results of a linear regression model in which the dependent variable is the daily percentage of outstanding shares that are traded. “Post-Zero Commission” refers to the time period of October 1, 2019, through December 31, 2020, and “Post-Meme Surge” to 2021–22. The regression model includes firm fixed effects, and all standard errors are clustered at the firm level. The *, , and * denote significance at the 1%, 5%, and 10% levels.

IV. DIRECT SHAREHOLDER ENGAGEMENT AT MEME STOCK COMPANIES

In this Part, we explore the effect of meme stock investing on the direct mechanisms for shareholder engagement: voting and submitting shareholder proposals. This can help us empirically assess claims that the influx of retail investors would affect corporate governance and possibly empower shareholders to engage with management more actively. To briefly summarize the findings, our empirical results show that predictions of retail investor-driven changes in corporate governance may be overstated. First, the level of shareholder voting at meme companies decreased after the abolition of commissions by online brokerages and decreased still further in the aftermath of 2021 meme surge. Second, we find no evidence of active shareholder engagement by way of submitting shareholder proposals at the companies in our sample, except in limited circumstances unrelated to corporate governance.

A. Non-Voting at Meme Stock Companies

An important claim in the literature is that the retail shareholders brought in after the meme phenomenon may be more likely to be assertive and more vigorously engage with management.⁶³ This is a plausible claim: if retail investors could coordinate their trades to attack institutional investors—a feat previously unimaginable—so, too, can they coordinate votes to have their voices heard. Accordingly, one could expect more retail shareholders to vote on governance proposals, including director elections and other consequential decisions (such as mergers and acquisitions and charter amendments), at these firms after 2021. Ideally, if we can observe each shareholder’s characteristics (for example, institutional versus retail), how many shares are owned by each shareholder, and how many of those shares are voted on, we will be able to tell exactly what the rate of participation among retail shareholders is. Nevertheless, due largely to the limitations on data, we do not have access to any information on whether certain votes came from a retail versus an institutional shareholder.⁶⁴

Instead, we rely on an indirect measure in estimating shareholder participation that is commonly used in the accounting literature. One way of such an indirect estimation is by measuring aggregate non-votes at shareholder meetings. The accounting scholarship attributes non-votes in shareholder meetings (that is, votes that were not cast for or against a proposal and were not abstentions) to retail investors.⁶⁵ Corporate insiders and institutional investors, on the other hand, are much more diligent in registering their votes. Under this standard assumption, if retail investors became more engaged after 2021, we could expect the overall share of non-votes to fall.⁶⁶

In analyzing the rate of non-votes, it is also important to account for the type of proposal. Shareholder proposals at U.S. public companies are generally of two types: routine and non-routine. Routine proposals are those that pertain to the company’s day-to-day operations but are not expected to significantly affect the company’s overall operation and performance. Examples of this type are proposals for the ratification of auditors or approving stock splits. By contrast, non-routine proposals typically relate to the company’s long-term strategy or are expected to have a significant impact on the company’s financial performance. Examples include the issuance of new stock, election of directors, a merger with another company, divesting a business unit, or any other proposal stockholders could have concerns with and would affect their ownership. For our purposes, there is an important distinction between these two types: brokers can vote shares on behalf of the beneficial owners for routine matters, but not for non-routine matters. Therefore, only shareholders can vote their own shares for non-routine proposals.⁶⁷

Figure 3 graphically presents the yearly average of non-vote rates on proposals at both meme and non-meme companies between 2015 and 2022. We hand-coded each proposal listed in the Institutional Shareholder Services (“ISS”) data as either “routine” or “non-routine” based on Rule 452 of the New York Stock Exchange (“NYSE”).⁶⁸ As expected, we find that non-routine proposals (in which brokers cannot vote on behalf of shareholders) have consistently higher levels of non-participation for both meme and non-meme firms.

More importantly, we find an increase in shareholder non-voting rate after 2018, concentrated in meme companies (for both routine and non-routine proposals). In fact, before 2019, meme companies had lower non-vote rates compared with non-meme companies, but by 2022, non-vote rates are at above 50% and 30% on non-routine and routine matters, respectively, at meme companies. At the same time, at non-meme companies, as Figure 3 shows, there seems to have been only marginal changes in non-vote shares over the same period. This is the opposite trend from what one would expect if the retail shareholders were more engaged with respect to corporate governance at meme firms, such as AMC and GameStop. Instead of seeing a burst of shareholder engagement, meme companies have seen increasing retail shareholder apathy in recent years.

Figure 3. Average Share of Non-Votes for Meme and Non-Meme Stocks over Time, by Proposal Type

Note: This figure presents information on the yearly average percentage of votes that were not voted in shareholder meetings. We define the number of non-votes as Total Outstanding Shares minus (Votes For + Votes Against + Abstentions). We split the data by meme/non-meme stock as well as proposal type (that is, whether it qualifies as “routine” as defined in NYSE Rule 452).

If we were to expect that retail shareholders are less likely to participate in direct governance, this finding, on the one hand, may not be too surprising. Recall, however, that many of these retail investors were the drivers of coordinated meme surges in early 2021, collectively taking a stance against institutional investors. There is also reason to believe that many of them have remained loyal to the firm.⁶⁹ If the fraction of retail investors at meme stock companies remains relatively high through 2021 and 2022, and many of them care more about the companies’ survival and performance, one would expect them to be more active in firm governance. From this perspective, the fact that the share of no-votes keeps increasing through 2021 and 2022, long after the initial “meme surge” was over, is surprising.

Table 4 presents a more formal regression analysis (using linear regression models), in which the dependent variable is the percentage of non-votes at a shareholder proposal level. We collected this data for all companies from the ISS database (from 2015 through 2022) to make sure we captured any secular time trends in shareholder voting across the market. Column (1) presents the baseline model, while column (2) adds financial variables as controls. We included firm fixed effects to account for any idiosyncratic factors unique to each company. Note, foremost, that the coefficient estimates (except for the estimate on the variable “Meme x 2019–20”), along with their statistical significance, are fairly consistent across the two models, indicating that the specifications are fairly robust. In terms of the results, at the top of the table, the dummy for non-routine proposals is positive (with the point estimates of 14.04 and 13.98, respectively) and highly statistically significant (at the 1% level), indicating that these types of matters generally have greater non-participation than routine proposals (per stock exchange regulations): non-vote shares on non-routine matters are about 14 percentage points higher compared with those on routine matters.

The coefficient estimates on 2019–20 and 2021–22 indicator variables are also positive and statistically significant, indicating that there is a general trend toward non-votes across all companies. When we interact both time period dummies with the Meme indicator, the coefficient for these terms is positive and highly statistically significant, at least in the baseline model, indicating that there seems to be more non-voting at meme companies after both the abolition of commissions and the surge in social media interest in these companies.⁷⁰ The rise in non-voting for meme stocks seems concentrated in non-routine proposals, as one would expect since brokers cannot vote on behalf of the shareholders on these issues. Most tellingly, the triple interaction of Meme, each time period dummy, and Non-Routine is also positive (with coefficient estimates ranging from about 7.5 to 8.1) and highly statistically significant (at the 1% level) in both the baseline model and with financial controls.

Table 4. Meme Stocks and Non-Voting
	(1)	(2)
	Baseline	With Financials
Non-Routine	14.04***	13.98***
	(0.198)	(0.223)
Meme x Non-Routine	–5.607***	–5.585***
	(1.495)	(1.534)
2019–20	0.681***	0.830***
	(0.140)	(0.170)
Meme x 2019–20	5.204***	2.650
	(1.780)	(1.760)
Non-Routine x 2019–20	–0.630***	–0.688***
	(0.149)	(0.162)
Meme x Non-Routine x 2019–20	7.910***	8.125***
	(1.406)	(1.425)
2021–22	3.899***	4.622***
	(0.195)	(0.232)
Meme x 2021–22	13.91***	11.59**
	(4.841)	(4.672)
Non-Routine x 2021–22	–3.297***	–3.531***
	(0.178)	(0.195)
Meme x Non-Routine x 2021–22	7.503***	7.901***
	(1.725)	(1.942)
Constant	12.29***	23.68***
	(0.179)	(2.087)

Observations	238,506	194,929
R-squared	0.699	0.735
Firm Fixed Effects	Yes	Yes
Firm Financials	No	Yes
Note: This table presents the results of a linear regression model in which the dependent variable is the percentage of shares that were not voted for a proposal at shareholder meetings. We define the number of non-votes as Total Outstanding Shares – (Votes For + Votes Against + Abstentions). 2019–20 equals 1 for years 2019 and 2020, while 2021–22 equals 1 for 2021 and 2022. We split the data by proposal type (that is, whether or not it qualifies as “routine” as defined in NYSE Rule 452). Column (2) adds controls for firm assets, cash ratio, debt ratio, and return on assets. Columns (1) and (2) include year and firm fixed effects, and all standard errors are clustered at the firm level. The *, , and * denote significance at the 1%, 5%, and 10% levels.

The estimates tell us that, compared with routine matters at meme companies at these two time periods, the share of non-votes on non-routine matters are about 7.5 to 8 percentage points higher. The results indicate that, for 2019–22, meme companies saw a greater rise in non-voting among shareholders as compared with non-meme companies, and this effect was especially pronounced for non-routine proposals for which brokers could not vote on behalf of shareholders.

B. Shareholder Proposals at Meme Stock Companies

As another measure of shareholder engagement, we looked at the number (and the content) of shareholder proposals that were submitted by retail shareholders at meme stock companies. For example, it is possible that even if the level of retail shareholder voting at meme companies has remained low (or decreased), the meme surge may have emboldened a minority of retail shareholders to take more active steps in submitting shareholder proposals to affect corporate governance and corporate policies. While there are other channels of influencing corporate governance—such as running a proxy contest or nominating a director candidate through proxy access (if the company allows it)—these other channels require significant economic resources (in the case of proxy contests) or more substantial ownership thresholds and holding periods (in the case of accessing proxy ballots directly). As such, these are less salient means for meme traders. For this reason, the more promising route for meme traders is likely through submission of a shareholder proposal.

First, we discuss some institutional background and a potential complication for our empirical analysis. The eligibility requirement for a shareholder to submit a shareholder proposal is governed by Rule 14a-8,⁷¹ which imposes an ownership threshold and a holding period requirement. Once a proposal is submitted by an eligible shareholder, the SEC rule requires the company to add the proposal to the agenda for voting at the next annual shareholders’ meeting, unless the SEC provides special permission to exclude it from consideration.⁷² Since 1998, Rule 14a-8 has maintained a relatively low share ownership threshold: it required only that a shareholder had held at least $2,000 or 1% of a company’s securities for at least one year.⁷³ The SEC, however, in 2020 replaced the $2,000 threshold with three alternative thresholds and adjusted the corresponding holding periods. Specifically, (1) if a shareholder owns more than or equal to $25,000, then he may submit a proposal if he has held the shares for at least one year; (2) if a shareholder owns less than $25,000 but more than or equal to $15,000, he must have owned company shares for at least two years; and (3) if a shareholder owns less than $15,000 but more than or equal to $2,000, he must have been a stockholder for at least three years.⁷⁴ The rule was proposed on November 5, 2019,⁷⁵ adopted on September 23, 2020, and went into effect on January 4, 2021.⁷⁶ However, the SEC noted that the changed thresholds would only affect proposals submitted for annual meetings that take place after January 1, 2022.⁷⁷

The SEC’s revised thresholds are more difficult to meet, and this was indeed the Agency’s intention. The previous requirement of $2,000 and a one-year holding period is arguably a more achievable threshold for meme traders. The revised thresholds and the corresponding holding periods are much less likely to be met by meme traders—especially the segment of retail investors that began participating in the stock market only after the introduction of commission-free trading platforms. For this reason, we can reasonably expect little activity from meme traders by way of shareholder proposals for annual meetings taking place after January 1, 2022.

As a threshold inquiry, we first examined whether investors reacted to the SEC’s decision to change the Rule 14a-8 thresholds. There were no changes in the thresholds between the SEC’s rule proposal (November 5, 2019) and rule adoption (September 23, 2020). We examined both event dates—the rule proposal date as setting the market’s expectation and the rule adoption date as finalizing the proposal through adoption. If meme traders were particularly committed to influencing corporate governance, these events may correlate with negative stock market reactions. In unreported results, we found no significant market reactions for meme stock companies for either event. We interpreted this finding to be consistent with the idea that meme traders were never particularly interested in participating in corporate governance.

We followed through by reviewing the meme stock companies’ definitive proxy statements filed with the SEC’s EDGAR system from 2015 through 2022 to see whether they included shareholder proposals. These proxy statements typically indicate whether a particular proposal is submitted by a shareholder. Even in the absence of any such specification, the proxy statements will invariably indicate whether the board approves each proposal, which is a good indication that the proposal is internally proposed. Note, however, that the lack of shareholder proposals in definitive proxy statements does not necessarily indicate that no shareholder submitted a proposal to be included in the proxy. First, under Rule 14a-8, management is permitted to exclude a shareholder proposal under a few specific circumstances.⁷⁸ However, exclusion is permitted only after management submits its reasons to the SEC. For this reason, we also searched through the SEC’s no-action letter archives to see whether any of these companies sought to exclude shareholder proposals, and if so, on what grounds. Second, it is also possible for management to persuade a shareholder to withdraw a proposal through negotiation.⁷⁹ These are done through private agreements, and we are unaware of any public data set that would capture withdrawn proposals.⁸⁰ For this reason, for data analysis purposes, we will assume that all properly submitted shareholder proposals are reflected under our search. Nevertheless, given the possibility of negotiations that may occur as a result of submitted-but-withdrawn shareholder proposals, we will look to other measures of shareholder engagement in Part V.

For all meme companies in the sample, with respect to observable shareholder proposals, we verified our numbers and analysis for this Section using the SharkWatch dataset, which is a standard resource for studying shareholder proposals.⁸¹ Table 5 describes, for each meme stock company, the number of shareholder proposals (1) included in the company’s proxy statements, (2) approved each year, and (3) properly excluded via the SEC’s no-action letter. Some benchmark figures may be helpful to set proper expectations. In terms of raw numbers of shareholder proposals among the S&P 1500 companies, Professors Kobi Kastiel and Yaron Nili document “a relatively steady and significant number of shareholder proposals submitted to the S&P 1500 [between 2005 and 2018] (an average of 517 proposals per year).”⁸² The pattern, however, is not uniform across all 1500 companies. In 2015, for example, “over 450 proposals were submitted to companies in the S&P 500, which is comprised of large-cap companies,” while “fewer than 150 shareholder proposals [combined] were submitted to the small- and mid-cap companies that comprise the S&P Mid-Cap 400 (S&P 400) and S&P 600, respectively.”⁸³ Given that meme stock companies are small-cap to mid-cap companies, there would be no expectation that any of these companies would be inundated with shareholder proposals.

Nevertheless, the results shown in Table 5 are revealing. For AMC Entertainment, Inc., Blackberry, Express, Inc., Koss, and Vinco Ventures, there were no shareholder proposals submitted between 2015 and 2022.⁸⁴ The same is true with Robinhood, but the company went public recently, and thus has had only one definitive proxy statement issued (in 2022). Thus, for these companies, no proposal was ever included in any definitive proxy statement (which the board did not recommend), and none of these companies have had to request no-action letters from the SEC (to exclude a shareholder proposal) during the time frame.

Table 5. Shareholder Proposals at Meme Stock Companies, 2015–2022
Company\Year	Shareholder Proposals Included/Approved/Excluded
Company\Year	2015	2016	2017	2018	2019	2020	2021	2022
AMC Entertainment, Inc.	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0
Bed Bath & Beyond	0/0/0	3/2/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0
Blackberry	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0
Express, Inc.	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0
GameStop Corp.	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/3
Koss	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0
Robinhood	N/A	N/A	N/A	N/A	N/A	N/A	N/A	0/0/0
Vinco Ventures	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0	0/0/0
Note: This table presents the number of shareholder proposals at meme companies between 2015 and 2022. For each company-year observation, we provide the total number of shareholder proposals included in the proxy statements, approved by shareholder vote, and excluded via SEC no-action letters.

Bed Bath & Beyond received three shareholder proposals in 2016, all of which the board recommended against. These included (i) a proposal for the board to implement proxy access, (ii) a proposal to have shareholders approve future severance packages, and (iii) a proposal for equity-based compensation for senior executives. Of these three, only the last one failed to pass.⁸⁵ Note also that these proposals significantly predate the meme surge, and as such, cannot be attributed to the influx of retail investors.

Finally, GameStop sought and received three no-action letters from the SEC for excluding shareholder proposals, all dating to April 22, 2022.⁸⁶ These involved proposals by three different shareholders, and management could permissibly exclude all of them for failing to meet the deadline for submission. Note, however, that given that these proposals were for the 2022 annual meeting, which requires the raised thresholds, these shareholders are unlikely to be meme traders. Meanwhile, the content of these proposals is also worth examining.

In one proposal, a self-described registered GameStop shareholder (who didn’t specify how many shares he held) proposed that the company offer a non-fungible token (“NFT”) dividend to its stockholders.⁸⁷ In another proposal, a shareholder who claims to own 191 Class A shares proposed that the board “immediately engage the services of the Company’s Transfer Agent, Computershare Limited (“Computershare”) to enable both investment and Direct Registration of Class A shares in both Roth and Traditional Individual Requirement Account (“IRA”) Shareholder Investment Programs at Computershare.”⁸⁸ Finally, a third shareholder who beneficially owns 540 Class A shares of GME submitted an identical proposal as the second shareholder.⁸⁹

What can we learn from the shareholder proposals we examined? The 2016 proposals by Bed Bath & Beyond shareholders do reflect a genuine attempt at participating in corporate governance matters, but as mentioned already, these efforts predate the influx of retail investors. The GameStop shareholder proposals, however, tell a different story. On the one hand, they do indicate retail investor participation: it is possible that they were encouraged by the meme surge of 2021 to organize some activist effort. On the other hand, these proposals also do not relate to corporate governance matters: one is a dividend payment suggestion, while the other is a proposal to help certain retail shareholders obtain tax advantages. As of yet, there is no indication that GameStop investors—meme traders or not—are particularly likely to bring about governance reforms through shareholder proposals.

V. BEYOND VOTING: ESG, DIRECTOR INDEPENDENCE, BOARD GENDER DIVERSITY, AND R&D

Voting and shareholder proposals are not the only ways shareholders can influence corporate governance at public companies. Boards, institutional investors, and policymakers are increasingly paying attention to a firm’s prosocial performance as captured by ESG metrics.⁹⁰ Even if retail investors do not directly participate in governance (through voting or submitting proposals), it is possible that their presence and preferences could indirectly influence how firms are governed. For example, the meme surge could have left a considerable imprint on public companies if retail investors managed to make their firms’ preferences more prosocial. For one thing, because management may be able to raise extra cash through at-the-market offerings at inflated stock prices,⁹¹ managers have reason to cater to the preferences of meme traders—that is, to make sure that meme surges persist (especially in times of trouble) and that these investors do not go away. In addition, it is also possible that a meme trader may have submitted a shareholder proposal but decided to withdraw it in return for some concession from the board or management, such as instituting some prosocial changes. Another possible indirect effect of meme surges could have been an increase in R&D spending. For example, those companies that engaged in at-the-market offerings could have invested the new funds in transformative innovative activity. Below, we also explain other mechanisms that were highlighted in the finance literature.⁹² To estimate these possible indirect influences, in this Part, we first assess the impact of the meme phenomenon on firm ESG scores, board independence, and gender diversity. We then investigate whether meme companies spent more on R&D and capital expenditures after the influx of retail investors.

A. ESG Scores at Meme Stock Companies

An important claim in the legal scholarship on retail investors is that these new entrants to the financial markets have different goals and expectations from management (as compared with more established institutional players or to retail investors from the previous generation). Gramitto Ricci and Sauter, for example, envisage meme trading as “a social movement able to bring business corporations to serve their original partly-private-partly-public purpose.”⁹³ In other words, scholars envisioned meme companies as potentially deviating from the shareholder wealth-maximization norm and instead advancing social and environmental causes with pressure from retail investors. There is a demographic aspect to this argument. As Fisch observes, many of the retail investors who invested in meme stocks were younger people. Since some argue that the millennial generation has different preferences and is in favor of socially responsible investing even at the cost of wealth-maximization, Fisch expected the young cohort of retail investors to potentially pressure management to improve ESG metrics.⁹⁴ However, Fisch also notes that “the extent to which citizens will pursue stakeholder or societal goals in their role as investors remains unclear.”⁹⁵

To shed some light on the extent to which meme traders affected socially responsible investing and management, we obtained data on ESG scores for each firm in the Compustat dataset between 2015 and 2021. The ESG scores are taken from the MSCI ESG Score Indexes. This index measures ESG in several different ways, but we chose the most comprehensive measure—industry-adjusted total ESG score—as our outcome of interest.⁹⁶ MSCI measures the ESG score for each firm at different points in the year. Therefore, we counted an ESG score to “belong” to a given year if it was assessed after June 30 of the previous calendar year or before June 30 of that year. For example, any ESG score assessed between June 30, 2015, and June 30, 2016, is counted as that firm’s 2016 ESG score. We estimated a difference-in-difference regression model assessing whether ESG scores changed differently for meme stocks after the abolition of commissions and the meme surge of 2021. Table 6 presents the results of this regression.

Table 6. Meme Stocks and ESG Scores
	(1)	(2)
	Baseline	With Financials
2019–20	0.326***	0.295***
	(0.0305)	(0.0348)
2019–20 x Meme	–0.0817	–0.0115
	(0.127)	(0.125)
2021	0.644***	0.604***
	(0.0434)	(0.0493)
2021 x Meme	–1.818**	–1.727*
	(0.918)	(0.909)
Constant	4.219***	4.244***
	(0.0515)	(0.0792)

Observations	13,739	12,039
R-squared	0.804	0.805
Firm Fixed Effects	Yes	Yes
Firm Financials	No	Yes
Note: This table presents the results of a linear regression model in which the dependent variable is the yearly industry adjusted ESG score reported for each firm by MSCI ESG Indexes. 2019–20 equals 1 for years 2019 and 2020, while 2021 equals 1 for 2021. Column (2) adds controls for firm assets, cash ratio, debt ratio, and return on assets. Columns (1) and (2) include firm fixed effects, and all standard errors are clustered at the firm level. Continuous variables are winsorized at the 1% level. The *, , and * denote significance at the 1%, 5%, and 10% levels.

As shown in Table 6, there is no observable positive effect of meme trading on our treated companies with respect to ESG scores, either after the abolition of commissions in 2019 or the rise in social media interest in 2021. In fact, not only are all the coefficient estimates on (2019–20 x Meme) and (2021 x Meme) variables negative, but the coefficient estimates on (2021 x Meme) variable are also statistically significantly negative, with or without financial controls, at 10% and 5% levels, respectively. While not conclusive, these results are consistent with the earlier results on shareholder voting and proposals, and perhaps not too surprising. If we expect that the new retail investors are more passive, it would not be surprising to expect that the companies would face less pressure from the retail investors and be less inclined to improve upon ESG issues, even if retail investors may care more about these topics in their personal lives. Furthermore, as discussed briefly in Parts II and III, meme firms had higher debt than other firms, and many of them had faltering business models. With an influx of new passive shareholders, management at these firms may have been tempted to reduce expenditure in compliance or ESG initiatives, especially when they know that they will face little pressure from their retail shareholder base.

B. Board Independence and Diversity at Meme Stock Companies

Next, we looked at the relationship between meme trading and board characteristics. We used data on director independence and board gender diversity from BoardEx, with the dependent variable equaling the percentage of a company’s board that is independent or female, depending on the empirical test.⁹⁷ Table 7 presents regression analyses in which the percentage of independent directors is the dependent variable. Leading academic commentators, regulators, and institutional investors usually take a higher share of independent directors to be a sign of better corporate governance,⁹⁸ even though the empirical evidence on the correlation between board independence and firm performance is mixed.⁹⁹ Regardless of whether director independence boosts firm value, the results in Table 7 indicate that meme firms did not experience a significant increase in the share of independent directors either after the abolition of commissions or during the meme surges on social media. Nevertheless, unlike the ESG results in Table 6, we do not see meme companies performing “worse” than other companies. Our results simply suggest that there is no significant relationship between the meme phenomenon and director independence.

Table 7. Meme Stocks and Board Independence
	(1)	(2)
	Baseline	With Financials
2019–20	1.489***	1.437***
	(0.143)	(0.165)
2019–20 x Meme	4.573	4.753
	(2.920)	(2.932)
2021–22	2.729***	2.545***
	(0.184)	(0.219)
2021–22 x Meme	5.251	5.596
	(3.771)	(3.782)
Constant	75.99***	71.91***
	(0.0641)	(1.404)

Observations	21,581	19,538
R-squared	0.805	0.805
Firm Fixed Effects	Yes	Yes
Firm Financials	No	Yes
Note: This table presents the results of a linear regression model in which the dependent variable is the percentage of directors that are independent, per BoardEx. 2019–20 equals 1 for years 2019 and 2020, while 2021–22 equals 1 for 2021 and 2022. Column (2) adds controls for firm assets, cash ratio, debt ratio, and return on assets. Columns (1) and (2) include firm fixed effects, and all standard errors are clustered at the firm level. Continuous variables are winsorized at the 1% level. The *, , and * denote significance at the 1%, 5%, and 10% levels.

Board gender diversity is another area in which major corporations have focused in recent years, seeking to improve the representation of women. For example, California recently passed legislation mandating that firms headquartered in the state ensure that they had at least a minimum number of women directors on the board.¹⁰⁰ As with director independence, the empirical evidence for board gender diversity improving firm performance is mixed.¹⁰¹ Given, however, the concerted recent efforts to improve board gender diversity, we examine whether meme firms saw any changes with respect to this corporate governance measure. The regression analyses presented in Table 8 do not show meme companies granting women greater representation on boards after either the abolition of commissions or the advent of the social media-driven meme surges. Therefore, like director independence, we do not observe any significant recent changes for meme firms when analyzing board gender diversity.

Table 8. Meme Stocks and Board Gender Diversity
	(1)	(2)
	Baseline	With Financials
2019–20	6.012***	5.689***
	(0.167)	(0.191)
2019–20 x Meme	3.033	3.314
	(3.842)	(3.850)
2021–22	10.50***	9.986***
	(0.226)	(0.262)
2021–22 x Meme	–3.707	–2.981
	(6.055)	(6.128)
Constant	14.09***	2.532
	(0.0767)	(1.617)

Observations	21,581	19,538
R-squared	0.763	0.759
Firm Fixed Effects	Yes	Yes
Firm Financials	No	Yes
Note: This table presents the results of a linear regression model in which the dependent variable is the percentage of directors that are female, per BoardEx. 2019–20 equals 1 for years 2019 and 2020, while 2021–22 equals 1 for 2021 and 2022. Column (2) adds controls for firm assets, cash ratio, debt ratio, and return on assets. Columns (1) and (2) include firm fixed effects, and all standard errors are clustered at the firm level. Continuous variables are winsorized at the 1% level. The *, , and * denote significance at the 1%, 5%, and 10% levels.

We note that the results from this Part are not necessarily inconsistent with the observations made in the literature about retail investors primarily belonging to the millennial generation¹⁰² or this age cohort of investors having pro-ESG preferences. Instead, taken together with the earlier results about low levels of voting by retail investors, they suggest that retail investor apathy renders them unlikely to be able to change management policies toward the environment or social causes. Therefore, while the earlier scholarship on retail investors understandably thought millennial and Gen Z retail investors would move firms away from the wealth-maximization norm once they got a seat at the table, they underestimated the possibility that these investors would neglect to actually take their seat by voting or otherwise engaging with management.

C. Profitability, R&D, and Capital Expenditure

As the final set of empirical exercises, we explore whether the influx of retail investors at the meme stock companies may have (indirectly) affected the financial performance or operations at the companies. To set the stage, Figure 4 presents three graphs on the average ROA, average R&D expenses, and average capital expenditures (“CapEx”), for meme and non-meme companies between 2015 and 2021. With respect to the ROA (a profitability measure) shown in the upper panel, there is a clear downward trend at meme companies while the non-meme companies’ average profitability seems much more stable over the same period. At the beginning of the sample period, in fact, meme stock companies were on average more profitable than other, non-meme companies, but the meme companies have experienced a sustained slide in their ROA, and by the end of the sample period, meme companies are performing significantly worse than non-meme companies. Despite some meme companies raising large sums of money by conducting at-the-market offerings at elevated prices,¹⁰³ notably Game Stop and AMC, these firms saw a decrease in profitability.

The substantial decrease in profitability of meme companies could be because their business models may have been fundamentally untenable in a changing world. It is also possible that the agency costs within these firms have gotten worse due, for instance, to less monitoring and less activism by their new retail shareholders.¹⁰⁴ The average R&D expenses and capital expenditure trends (as shown in the middle panel and lower panel, respectively) seem to suggest that, at the operational level, meme companies are spending less on innovation and structural improvements. Before we proceed, we should note that the small number of meme stocks is bound to introduce more variability in numerical averages. As such, there may generally be more noise in the time-trends in Figure 4 for meme (as compared with non-meme) stocks. However, the consistent downward trend for meme companies does indicate a real trend in profitability and innovative expenditures for these firms.¹⁰⁵

Figure 4. Average Return on Assets, R&D Expenses, and Capital Expenditures for Meme and Non-Meme Stocks

Note: This figure presents three separate graphs: mean return on assets, R&D expenses, and capital expenditures, between 2015 and 2021, separately for meme and non-meme companies.

To get a better understanding of meme companies’ performance, we took a closer look at the two operational measures: R&D and capital expenditures. Two theories of R&D spending are potentially relevant to meme companies. First, financial economists have explored the link between an increase in firms’ market valuation and innovation activity. Specifically, a study by a group of financial economists, using mutual fund flows as a measure of market’s optimistic valuation, found a “very strong and robust association” between firm overvaluation and R&D spending.¹⁰⁶ They found that R&D spending is more sensitive to firm overvaluation than to growth in company sales and cash flow.¹⁰⁷ The underlying reasoning seems to be that corporate managers respond to higher market valuations by becoming more optimistic and engaging in more creative (and higher-risk) forms of innovation. If this theory applies to meme companies, one might expect that meme surges would have emboldened executives at these companies to increase R&D spending.

On the other hand, others have documented increase in R&D spending (and other innovative activities) associated with a larger fraction of institutional ownership.¹⁰⁸ As institutional ownership increases, one can argue that this will increase shareholder monitoring (and lower agency costs) and induce the firm managers to engage in more innovative activities (and not shirk), which, in turn, should correlate with various measures of innovation and long-term investment, such as R&D spending and capital expenditures. Moreover, institutional investors have a long-term orientation, which allows managers to make risky expenditures on innovative projects without fear of being fired for failing to deliver short-term profits.¹⁰⁹ To the extent that this theory applies to meme stock companies, one might expect that the influx of retail investors and the resulting transformation of the stockholder base at these companies¹¹⁰ would lead to these companies to decrease their R&D spending, since these firms saw ownership change hands from institutional investors to retail participants. Accordingly, examining how R&D spending has changed at meme stock companies could shed light on which of the two theories is more likely at play. We explored this question by conducting the standard difference-in-difference regression as in the rest of this Article and using R&D and capital expenditures as alternate dependent variables.¹¹¹

Table 9. Meme Stocks and Expenditures on Innovation
	(1)	(2)
	R&D Expenses	Capital Expenditures
2019–20	14.38***	2.485
	(1.574)	(3.943)
2019–20 x Meme	–28.59**	–62.43***
	(12.85)	(20.67)
2021–22	30.10***	18.58***
	(2.801)	(5.872)
2021–22 x Meme	–46.20***	–91.18*
	(15.10)	(48.18)
Constant	95.81***	273.9***
	(0.896)	(1.967)

Observations	28,247	34,519
R-squared	0.969	0.957
Firm Fixed Effects	Yes	Yes
Note: This table presents the results of a linear regression model in which the dependent variable is annual corporate R&D spending in column (1) and capital expenditures in column (2). 2019–20 equals 1 for years 2019 and 2020, while 2021–22 equals 1 for 2021 and 2022. Columns (1) and (2) include firm fixed effects, and all standard errors are clustered at the firm level. The *, , and * denote significance at the 1%, 5%, and 10% levels.

Table 9 presents the results of these regressions. As seen by the negative coefficient estimates on two interaction dummy variables, “2019–20 x Meme” and “2021–22 x Meme,” the regression results show that there was a significant decrease in both R&D and capital expenditures at the meme companies both after the 2019 abolition of commissions and the meme surge of 2021.¹¹² Except for the coefficient estimate on the “2021–22 x Meme” in capital expenditures regression, which is significantly negative at the 10% level, the other estimates are significant at the 5% level. These results indicate that, unlike the case for more traditional measures of cash inflows, such as mutual fund flows, meme surges are not associated with increases in either R&D spending or capital expenditure. Rather, the results support the existing findings in the literature that an increase in institutional ownership is correlated with more R&D and capital expenditure spending. Therefore, when meme companies swapped institutional investors for meme traders in recent years, managerial incentives to spend on innovation may have decreased.

VI. DISENTANGLING MEME INVESTING AND MEME SHAREHOLDING

The central inquiry of this Article has been how a dramatic change in shareholder base can affect corporate governance and whether retail investors can bring about meaningful changes as retail shareholders. While the time trends surveyed in Part I are consistent with more meme investing, meme investing is not, in turn, synonymous with meme shareholding. Indeed, the results discussed in Part II to Part V suggest that these new market entrants have not shaken up the way corporations are governed on an ongoing basis. The main question is why. In this Part, we explore several reasons as to why meme investing has not translated into meme shareholding.

A starting point is recognizing that despite the natural connection between retail investors and retail shareholders, their actual activities are quite different. As an investor, an individual is concerned about profitable short or long run transactions. Her activities include studying market information and diversifying portfolios. As a shareholder, an individual is concerned about capital gains, dividend payments, and her control rights (what may collectively be called “corporate governance”). She has the right to participate in shareholder voting, nominate director candidates, submit proposals, or even run proxy contests.¹¹³ An individual faces different challenges depending on whether she is acting as an investor or as a shareholder. A trader is vulnerable at the moment she is transacting because she may be purchasing or selling stocks at an unfair price due to undisclosed information.¹¹⁴ By contrast, a shareholder is vulnerable as long as she owns the stock because corporate misconduct and breaches of fiduciary duties can reduce the share price.¹¹⁵

More to the point, there is a significant difference between the payoffs of these activities. Retail traders participating in a meme surge will trade with a certain expectation and the payoff from their trades may be realized (relatively) quickly. There is a sense of instant gratification as well as an immediate opportunity to participate in a social activity. By contrast, retail shareholders may cast their votes only to find out that their votes have made no difference to the outcomes—for example, because the median voter is not among them—or that the proposals approved do not bring about any immediate changes in the way their corporations are run. In addition, if meme stock traders are driven by quick payoffs, they may not even be shareholders as of their company’s record date—in other words, they may not be eligible to vote by the record date for the annual meetings.

Another factor that may be driving the result is that technological developments may have reduced participation costs for shareholder engagement but not information costs. Participation costs refer to the resources the ordinary individual would need to learn about a firm and invest in it, while information costs are the costs she must incur to conduct research into the firm’s business operations and corporate governance. The digital innovations that sparked meme trading, such as the abolition of trading commissions, may not have reduced the information costs of shareholder participation in the same manner that they reduced participation costs of trading. Because meme trading is not an information-intensive activity, mobile apps like Robinhood and the abolition of trading commissions paved the way for retail traders. By contrast, shareholder voting is an inherently information-intensive activity, and thus, even with technologies that are designed to reduce participation costs, information costs that come with voting cannot be fully eradicated. This may account for why a sudden burst of enthusiasm for one type of activity may not instantly translate to a groundswell for another form of market participation.¹¹⁶

It is also not insignificant that meme surges to date have been limited to a small set of companies that are not randomly selected. In discussing some common denominators among meme stock companies, one analysis catalogues factors such as low stock prices and enduring cultural relevance.¹¹⁷ Indeed, our analysis of meme stocks reveals that these firms are mid- to small-cap companies, valued under $10 billion in market capitalization (some, in fact, have a much smaller market capitalization), with low stock prices.¹¹⁸ Their modest sizes imply that even trades by a subset of retail investors can affect their stock prices—as such, they can be targets of short squeezes. At the same time, small companies are also more likely to suffer from a lack of significant corporate governance activities. As Kastiel and Nili documented, firms with smaller market capitalizations are less likely to adopt “best practices” in corporate governance and are less organized in doing so.¹¹⁹ This could in part be because they are less likely to be targets of engagements by institutional shareholders¹²⁰ or attract shareholder proposals related to governance.¹²¹ Since meme companies have thus far been smaller firms, this suggests that they are unlikely to become overnight corporate governance exemplars.

Finally, one explanation consistent with our findings is that the segment of retail investors that entered the market as the result of the abolition of commission fees is not representative of the previously existing retail investor base.¹²² Rather, they represent a particular subset of investors—those that were highly sensitive to then-existing low transaction fees. While they may have welcomed the commission-free trading platforms and have actively participated in such activities, those investors may also be presumptively unlikely to bear other types of transaction costs, such as submitting shareholder proposals or voting at annual meetings.

We believe the disjuncture between investing and share ownership may explain why meme surges and their impacts have been confined to the trading markets and presently remain divorced from meaningful shareholder activities in corporate America. These differences, of course, are not set in stone. As companies innovate and technological innovations lower the cost of shareholder engagement, it remains possible that future retail shareholders can make a meaningful difference at companies. This can also shift the balance of power away from institutional shareholders and toward retail shareholders. The jury is out on how such changes will come about in the future.

CONCLUSION

This Article has examined the impact of the dramatic influx of retail shareholders (from the “meme surge” of 2021) on various corporate governance and financial metrics at meme stock companies. Our analysis suggests that retail shareholders could be the leopards that failed to change their spots. For one, during the period when retail investor ownership of meme stocks has increased, the rates of non-voting have significantly risen at meme companies. This is in contrast to the rate of non-voting at non-meme companies, which has remained fairly stable over the same period. Although we cannot directly measure that the non-votes were coming more from retail investors—given that non-participation is generally attributed to retail investors and other non-meme companies were not experiencing anything similar in shareholder participation¹²³—the result supports the hypothesis that the surge of retail investor interest in these companies is linked to the rise in non-voting.

Importantly, we observe that the increase in non-votes began in 2019, the same year that major brokerages abolished trading commissions, and the rate of non-votes went even higher in 2022, long after the meme surge was over. This indicates that the non-votes were not being driven by short-term speculators who may have participated in the meme surge of 2021 purely for financial gain and without any interest in democratic participation. The result is also consistent with the event-study evidence that the 2019 advent of zero-commission trading could have stirred retail investor interest in meme stocks (along with others). Retail investors have also failed to affect corporate governance at meme companies through the shareholder proposal process.

The Article also explored possible indirect avenues through which retail investors could have influenced meme companies. We find that the retail investors have been unable to translate their preferences into concrete improvements in the firms’ ESG scores or board independence and gender diversity. Furthermore, meme surges have not had an indirect effect on corporate innovation through R&D spending and capital expenditure. This finding contrasts with the earlier scholarship that showed positive correlation between increased valuation (for example, from mutual fund flows) and R&D spending, but it is consistent with the findings that showed a positive correlation between an increase in institutional ownership and innovative activities. In sum, all evidence to date suggests that meme trading may be a social phenomenon that remains largely orthogonal to retail shareholders’ aspirations to transform corporate governance. The demographic, societal, and technological changes surveyed in Part I could surely presage an increased role for retail investors at some time in the future. However, our empirical analysis suggests that this notion of democratized governance is yet to arrive at the firms targeted by the recent meme surges.

The Article’s primary focus has been on a handful of meme stock companies, such as GameStop, AMC, and Bed Bath & Beyond, with the principal finding that the new retail shareholders at these companies do not seem to be active in engaging with the management or in influencing the companies’ governance outcomes. Given that the Article’s focus is on a small number of companies that went through an unusual experience of facing a sudden surge of retail investors’ interest, one needs to be cautious about generalizing the results to other companies or making overarching conclusions. At the same time, these companies were chosen precisely because they were the primary targets of meme trading. Thus, to the extent we should have observed a new paradigm of corporate governance associated with meme surges, these companies would have been the most promising ones. Furthermore, particularly with respect to retail investors who remained loyal to the meme companies long after the “meme surge” was over, one would have expected them to be much more active in corporate governance and improving firm performance.

In sum, we believe that the Article’s findings are informative in getting a better understanding of retail shareholders’ engagement and potential democratizing benefits of allowing more retail investor participation. To get a better understanding of the importance of retail investor base on corporate governance, a future research project may take a closer look at how technological changes, including the introduction of zero-commission trading, may have had a broader effect on the capital markets and the more general impact of retail investors on corporate governance across a larger segment of the market. As the meme phenomenon spreads to banking stocks, SPACs, and bankrupt firms, research into meme investing and shareholder activity will become more important¹²⁴ and shed new light on the issue of shareholder base and corporate governance.

97 S. Cal. L. Rev. 1419

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Dhruv Aggarwal*

* Assistant Professor of Law, Northwestern Pritzker School of Law.

Albert H. Choi†

† Paul G. Kauper Professor of Law, University of Michigan Law School; Research Member, European Corporate Governance Institute (“ECGI”).

Yoon-Ho Alex Lee‡

‡ Professor of Law, Northwestern Pritzker School of Law; Director, Northwestern University Center on Law, Business, and Economics. The authors thank Quinn Curtis, Jill Fisch, Sue Guan, Dorothy Shapiro Lund, Frank Partnoy, Alex Platt, Roberta Romano, Kathy Spier, George Triantis, and Jonathon Zytnick; conference participants at the 2023 Corporate and Securities Litigation Workshop, the 2023 Korean Commercial Law Association Annual Meeting, the 2023 American Law and Economics Association Annual Meeting, the 2023 Winter Deals Conference, the 2023 Conference on Empirical Legal Studies, and the Law and Technology Conference at the University of Southern California; and workshop participants at Vanderbilt University Law School, Northwestern Pritzker School of Law, University of Michigan Law School, Bocconi University, Corporate Law Academic Webinar Series (CLAWS), Council of Institutional Investors (CII) Webinar Series and 2023 NYU Corporate Roundtable for many helpful comments and suggestions. The authors thank Irving A. Birkner (Kellogg School of Management at Northwestern University), Shay Elbaum (University of Michigan Law Library), and Clare Gaynor Willis (Northwestern Pritzker School of Law Library) for help with data collection, and Danny Damitio, Andrea Lofquist, Michael Palmer, and Nanzhu Wang for their excellent research assistance. Comments are welcome to dhruv.aggarwal@law.northwestern.edu, alchoi@umich.edu, and alex.lee@law.northwestern.edu.

The Failed Promise of Treasuries in Financial Regulation

September 2024September 2024Pradeep K. Yadav* & Yesha Yadav†

U.S. government Treasury bonds (“Treasuries”) anchor financial stability. Public regulation mandates that financial firms maintain deep buffers of Treasuries that can be sold for cash in a crisis. In private lending between financial firms—running into trillions of dollars daily—Treasuries are the preferred form of collateral, designed to make debt fully resistant to default.

But this unquestioned reliance on Treasuries in public and private self-regulation has created a financial system that rests on fragile foundations. The first fundamental problem—thus far unnoticed in existing literature—lies in the system-wide tension that is present when both public and private self-regulation depend on the same scarce Treasuries/cash for survival.

This tension plays out in the common system of intermediation that supports both public and private self-regulation. Crucially, financial regulation places its trust in the competencies of twenty-four large financial firms—primary dealers—that uphold both the buying and selling of Treasuries as well as the supply of Treasuries to lending markets for use as collateral. This system of intermediation, however, is far from perfect. As we show, primary dealers confront incurable information gaps when allocating cash and Treasuries between private lending and public trading markets. Further, facing scarcity, primary dealers must choose whether to devote resources to one space over the other. Finally, as for-profit actors, primary dealers have no reason to continue intermediating if the cost-benefit trade-off turns sour. As it stands, for financial regulation to remain resilient, its mechanisms for intermediating Treasuries must also be lucrative.

The second problem lies in the fragmented system of supervision that governs an interconnected public trading and private lending market for Treasuries. Multiple regulators are in charge, but they lack coordination mechanisms, complementary regulatory approaches, and institutional mandates to facilitate cooperation. It follows that regulators have failed to spot shared risks to Treasuries intermediation and to develop mechanisms to correct them.

This Article sets out a three-part solution to better realize the promise of Treasuries for financial regulation: (1) enhancing transparency across trading and lending markets, (2) developing consolidated oversight, and (3) mandating that primary dealers maintain intermediation during crises. With Treasuries anchoring public regulation and trillions in private contracting, their fragility represents a danger that policymakers can ill afford to ignore.

INTRODUCTION

When COVID-19 shocked the financial system in March 2020, the (then) $17 trillion market for Treasuries became one of its most unexpected casualties.¹ As equity and corporate bond markets reeled, investors rushed to sell Treasuries and raise cash to remain solvent.² Their reaction was exactly as expected. Viewed as failure-proof, Treasuries provide the world with its most dependable safe haven. When other markets run into distress, Treasuries are supposed to buffer the fall by ensuring a constant supply of default-free assets and cash for those that sell them.³ Recognizing this fortress-like quality, public regulation and private industry rely systematically on Treasuries as the shield to protect financial markets against panic, collapse, and uncertainty.⁴

Public financial regulation mandates that Treasuries constitute a sizable part of the rainy day safety buffers of any number of regulated financial firms.⁵ The assumption here is that Treasuries can, by dint of quick sales, release cash in a crisis, allowing a firm to pay off its creditors and, in turn, prevent creditors from also going bust themselves.⁶ Using similar logic, the private market for lending between financial firms—running at trillions of dollars daily—also depends on Treasuries as the preferred form of collateral.⁷ By securing debt using Treasuries, lenders can be sure that they will be repaid, either by the borrower as promised, or by selling the Treasuries collateral.⁸ This unquestioned confidence in Treasuries as collateral means that parties do not even need to conduct due diligence on one another, so long as sufficient Treasuries can secure the debt.⁹ Indeed, it is taken for granted that the price of Treasuries will not fall when that of assets, like corporate bonds or equities, crashes. In other words, investors rush to safety during crises by putting capital into Treasuries and maintaining (or increasing) their price.¹⁰

March 2020, however, upended these assumptions. Rather than Treasuries providing reliable trading (or liquidity)—allowing sellers to cash out without distorting prices—investors found themselves unable to transact on reasonable terms.¹¹ Execution costs increased by 50%–500%, and market depth—or the quantity of offers (quotes) available to trade—plunged to 10%–38% of earlier values.¹² Testifying before the Senate Banking Committee in February 2021, the Chair of the Federal Reserve (“the Fed”), Jerome Powell, remarked that the Treasury market did not have “the capacity to handle” the pressure.¹³ Treasuries’ prices became chaotic and fell out of sync with those in related markets.¹⁴ As detailed by Annette Vissing-Jorgensen, this price instability had nothing to do with changes to the country’s economic fundamentals (for example, inflation).¹⁵ Instead, its cause was the rapid deterioration of trading conditions in the Treasury market with large investors rushing in to sell.¹⁶ As such, with equity markets plunging almost 3,000 points daily, the price of Treasuries also dropped precipitously, instead of increasing or staying stable as should have been the case for the world’s premier safe haven.¹⁷

Worryingly, the disruptions in March 2020 were not a one-off event. Rather, as shown by Matthias Fleckenstein and Francis A. Longstaff, market confidence in the capacity of Treasuries to steadfastly provide a safe haven has diminished significantly in recent years. Fleckenstein and Longstaff observe that Treasuries have traded much more cheaply to their fair value at key moments in modern financial history, with sizable price discounting observed during the 1997 Asian Financial Crisis, the 2000s, and frequently between 2015–2020.¹⁸ Taken together, these repeated performance failures call into question the core assumption made by public and private financial regulation in relying so fundamentally on Treasuries as safe assets: that their default-free nature means that Treasuries are also always perfectly tradable at fair prices.¹⁹ We close this gap in the literature to show that this assumption is simply wrong. Rather, while Treasuries can be regarded as risk-free, the market that trades them is not, diminishing their capacity to act as an anchor for public as well as private industry self-regulation. In this Article, we make two claims to detail: (1) the fragile system of intermediation that underpins Treasuries’ distribution, and (2) the deeply flawed model of market supervision that is ill-matched to contend with the risks created by faulty intermediation.

In our first contribution, we show that there is a fundamental, internal tension within a system in which both public and private financial regulation rely on scarce Treasuries to support economic survival. This tension and interconnection crystallize in a shared system of intermediation that must, at once, manage the buying and selling of Treasuries with the public as well as ensure the constant supply of Treasuries collateral to the private lending market.

For a start, this system of intermediation is remarkably fragile. Opacity, conflict, and complexity are pervasive. Crucially, regulation places trust in the capacity of (currently) twenty-four large banks and investment firms—known as primary dealers—to intermediate Treasuries. Primary dealers are uniquely authorized to purchase Treasuries from the government at auction and then to distribute them widely.²⁰ This role puts primary dealers center stage in the secondary market for buying and selling Treasuries with investors, in which they sell to those that want to buy and buy from those that want to sell. In this way, primary dealers help operationalize the assumption made in public financial regulation that Treasuries can always be liquidated by those needing cash or bought by firms wanting a reliable safe asset—all at fair and stable prices.

Primary dealers also act as critical intermediaries for the approximately five trillion dollars in exposure in the private market for short-term lending²¹—known as the repurchase or repo market—in which Treasuries constitute the preferred form of collateral.²² The repo market allows financial firms with cash to lend it to others that need it.²³ To eliminate default risk, lending is short-term and secured (mostly using Treasuries).²⁴ By ensuring firms can borrow cash whenever they need, the repo market provides a lifeline to financial firms to address everyday funding demands.²⁵ Within the repo market, primary dealers match borrowers with lenders.²⁶ They also act as lenders by using their own cash to serve those looking to borrow.²⁷ Finally, dealers borrow for themselves in the repo market as a way of funding their firm’s everyday operations.²⁸ In intermediating the supply of Treasuries to the repo market, primary dealers help insulate financial firms against default and systemic fallout.

Primary dealers confront steep and pervasive costs when intermediating across both the secondary market for Treasuries as well as the repo market. Information gaps are endemic. This opacity is structurally unavoidable in the repo market. Because Treasuries represent the preferred form of collateral and lending is short-term, due diligence is deemed unnecessary.²⁹ By design, primary dealers lack the tools and incentives to carefully monitor the default risk posed by parties with whom they contract.³⁰ They are also unable to fully gauge, on a market-wide basis, how this risk is building—for example, whether certain counterparties might be growing more indebted, less likely to repay, and whether to continue to lend to them, and on what terms.³¹

To be sure, using Treasuries as collateral should mean that primary dealers and the financial market have nothing to fear from default. But this view glosses over the damaging effect of opacity on intermediation. A system-wide absence of real-time information means that primary dealers are justified in being overly cautious when the prospect of default does arise and in quickly cutting off credit to counterparties across the board on account of not knowing exactly where the problem lies and how widespread it may be. Dealers might demand more Treasuries collateral to match unknown but higher levels of risk—even from borrowers that appear to be safe. In the absence of detailed information, withdrawing intermediation is rational, even advisable, to ensure that primary dealers do not keep lending to any number of defunct firms. After all, there is no rule forcing primary dealers to keep trading.³² From the standpoint of the market and its regulation, however, this kind of preventative action is harmful, chaotic, and liable to amplify distress. Financial firms can end up suddenly unable to meet their daily funding needs, or to roll over past debt, having to quickly find the cash to repay if a dealer calls in a repo loan or makes an existing one more expensive.³³

Opacity also raises doubts about whether Treasuries collateral is even capable of being enforced, that is, traced and sold by a primary dealer to recover the amount owed after default. Because the market lacks real-time reporting and due diligence, a borrower may not actually own the Treasuries collateral it offers up to secure a debt. Rather, collateral can belong to another party that has agreed to let the borrower use it for a time.³⁴ Collateral reuse is commonplace in Treasury-backed repo markets. Complex collateral chains, in which the same Treasury circulates to collateralize multiple loans, has become a feature.³⁵ For example, a Lender takes Treasuries from a Borrower as collateral. The Lender can then use these same Treasuries as collateral to borrow cash for itself. According to Manmohan Singh of the International Monetary Fund, each Treasury security collateralizes around three repo loans.³⁶ Reuse affords gains in efficiency. In good times, prized Treasuries can help release credit for numerous parties. But during crisis and with opacity endemic, doubts are raised about whether the collateral is traceable and capable of being sold.³⁷ Stated bluntly, even though a particular Treasury can be reused multiple times to release credit, it can be sold only once to cover a loss. Those believing they have a right to its proceeds may find that the Treasury no longer exists precisely when they need it the most. Opacity means that dealers and others cannot know in advance how complex their collateral chain will be, and whether their collateral is as protective as regulation readily assumes.³⁸

Primary dealers also confront opacity in the secondary market for buying and selling Treasuries with investors.³⁹ Home to over $600 billion in average daily turnover in both 2020 and 2021, this market lacks real transparency.⁴⁰ Trades are not reported publicly in real time.⁴¹ The secondary market did not have a comprehensive trade reporting regime until 2017, capable of delivering insights on a trade-by-trade level.⁴² The regime that is currently in place mandates reporting to regulators only (rather than wider dissemination). Until February 2023, trading statistics were published weekly and in aggregate, after which regulators permitted once-daily reporting to the public (also in aggregate terms). The reporting regime has also had major gaps historically (for example, it has not required hedge funds to report trades).⁴³ Limited, comprehensive real-time disclosure adds to the monitoring costs faced by primary dealers, forcing them to buy and organize trading data privately. This can add delays and inaccuracies to data processing, making it harder to determine how risks are building in real time (for example, predicting large orders, predatory traders, or price dislocations).

This opacity feeds tension within a system of intermediation that must meet the needs of both public and private financial regulation at the same time. That is, actions taken by primary dealers to protect repo market operations for private firms can come at a cost to maintaining trading in the secondary market for the wider public.

Reliance on Treasuries as collateral in repo funding markets means that the availability of these securities for trading in secondary markets can become restricted. The repo market requires trillions of dollars in Treasuries (and cash) to be set apart daily to support private lending and borrowing.⁴⁴ The free-float of Treasuries—or the amount of Treasuries that are circulating freely at a given point in time—is thus reduced by what must be earmarked to support trillions in daily repo operations.⁴⁵ In a crisis, primary dealers must rapidly shore up Treasuries collateral in repo operations to protect financial stability and ensure that sufficient collateral exists to support trillions in exposure between private firms. In cases when the repo market gets securely ring-fenced, secondary markets can become strained as primary dealers have a smaller supply of assets with which to respond to investors wanting to buy and sell Treasuries in a panic.⁴⁶

Opacity contributes to the challenge primary dealers face in ensuring steady intermediation to both repo and secondary markets. A lack of full and real-time information means that primary dealers face constant difficulties in attempting to predict the needs of the repo market—like how much cash and Treasuries are needed on any given day. These demands are hard to predict in any event. As a market for funding the daily life of financial firms, pressure on the repo market can vary wildly depending on any number of factors like seasonality (for example, making payroll), time of day (for example, reduced demand during lunchtimes), and the nature of the firm’s business (for example, banks requiring large amounts of cash).⁴⁷ In March 2020, for example, weekly collateral needs varied by more than $350 billion for positions held by primary dealers.⁴⁸ While the secondary market for Treasuries tends to be more stable, crises can trigger an unexpected spike. For example, total aggregate weekly trading in the turbulent week of March 6, 2020, was around $5.7 trillion. By late July, however, activity volumes had normalized, and the secondary market saw around $3 trillion in weekly aggregate trading volume.⁴⁹

This tension between protecting repo markets and maintaining resilience in secondary trading creates the danger that intermediaries stop performing when the costs of doing so become too high. Regulation does not require dealers to remain trading.⁵⁰ If the cost-benefit trade-off of intermediation becomes overly expensive, intermediaries withdraw. Or, they choose to protect one market over the other, depending on profitability, important client relationships, and keeping a reputational halo.⁵¹ Stated differently, for public and private financial regulation to currently remain credible, Treasuries intermediation must be lucrative business for primary dealers.

When primary dealers face such a choice, they have powerful incentives to resolve the tension in favor of the repo market. The repo market is much larger than the secondary market. For example, to take a more typical week in 2020, for example, the week of July 29, 2020, the average daily trading in the secondary market by primary dealers was $518 billion and their average daily risk exposure was $271 billion.⁵² By comparison, in the repo market, primary dealers had lent out around $1.58 trillion and borrowed $1.81 trillion of Treasuries.⁵³ Taken together, their repo activity measured about six times their average daily secondary market trading volume of Treasuries, and about twelve times their daily average exposure in the Treasuries secondary market.⁵⁴ With its size and repeat client relationships, dealers can make profitable gains by focusing resources in the repo market ahead of the secondary market.⁵⁵ But this private preference comes with a collective price, in which the secondary market can become disrupted and fails to function as a safe haven for investors at large. Taken as a whole, serious pressures on dealer balance sheets can damage Treasury market function. As shown by Darrell Duffie et al., the quality of U.S. Treasury market operations deteriorates markedly when dealers are forced to delve deep into their balance sheet to intermediate trading.⁵⁶

In our second contribution, we show that regulators are poorly placed to recognize the tension between a system of public and private financial regulation that is so deeply reliant on Treasuries to function.

That regulators have failed to account for the structural interlinkages between repo and secondary markets is not surprising. From the institutional standpoint, secondary trading and repo markets are subject to a patchwork system of fragmented oversight, governed by a rule book that has failed to adapt to changing market design.⁵⁷ The market does not have a lead regulator; oversight of the secondary market is shared by five or more agencies.⁵⁸ The repo market, by contrast, looks largely to the Federal Reserve (“the Fed”) and the Federal Reserve Bank of New York (“NY Fed”) for supervision.⁵⁹ This confusing division of authority breeds gaps and blind spots. Owing to fragmentation and an absence of coordination, regulators lack a coherent picture of the risks that run between repo and secondary markets. Rulemaking is costly given the need to overcome bureaucratic walls and divergences in institutional mandates and approaches between different regulators.⁶⁰

Importantly, each market is regulated in accordance with distinctive methodological approaches. The secondary market for Treasuries trading (broadly speaking) hews to a more capital markets–based approach that focuses on generating smooth trading, price efficiency, and trade reporting to regulators.⁶¹ By contrast, repo markets fall under a more “prudential” framing that protects the systemic soundness of firms and the market. Disclosure and pricing carry far less emphasis than ensuring that firms avoid default and do not sicken one another if one of them collapses.⁶² A prudential model prioritizes collateralization and deep capital buffers, and can come with the (implied) promise of federal protection in case firm failure sets off systemic contagion.⁶³ These differences in regulatory approach complicate rulemaking, monitoring, and coordination challenges already pervasive to the task of overseeing Treasury repo and secondary markets. Regulators cannot fill information gaps because Treasuries collateralization reduces the need to gather and disclose data in real time. Data gathering in the secondary market also remains patchy. Without full information, policymakers cannot know what tools might work best to prevent sudden loss of liquidity and price distortions. Because ex post interventions to stabilize the market are available, regulators may prefer to rely on them rather than to engage in complex, ex ante, administratively costly rulemaking. When the Treasury market failed in March 2020, the Fed stepped in immediately, making around $1.5 trillion in cash and Treasuries available to primary dealers in a bid to revive intermediation.⁶⁴

A final observation on the economic significance of the Treasury market. From the standpoint of political economy, weakness in Treasury market structure is profoundly problematic for the status of U.S. debt as the global risk-free asset that is a lynchpin for financial stability. As Anna Gelpern and Erik Gerding write, the notion of a risk-free asset is one that is legally constructed rather than being intrinsically real.⁶⁵ Default arises as a matter of contractual design.⁶⁶ It is conventionally believed that the United States will pay its debts. However, in theory, it may default.⁶⁷ The most tangible manifestation of Treasuries, their power and prestige, comes from the workings of the market—by investors buying and selling Treasuries, or by using Treasuries as collateral to release economic value. Public oversight and private industry self-regulation reinforce this real-world compact. This collective practice makes failures in Treasury market structure particularly dangerous for the long-term dominance of the United States. With the Treasury’s risk-free status ultimately ephemeral, a disrupted market undermines the most fundamental article of faith about the power of the U.S. economy and its financial system.⁶⁸

In conclusion, to repair the broken promise of Treasuries in financial regulation, this Article proposes a three-part solution for reform. As a starting point, it advocates for systematically greater transparency and reporting, particularly in more opaque repo markets. A richer understanding of how this market works can help regulators and dealers manage their risks, address conflicts, and unravel complexities between the secondary and repo markets. Secondly, the Article seeks to require dealers to maintain intermediation, rather than exit the market at will. Even with information, dealers can still stop intermediating both repo and secondary trading whenever this task becomes too difficult or expensive. As noted earlier, there are no rules keeping key dealers in the market in crisis periods, and so such intermediation can disappear at any moment. To counter this risk, we propose that regulators expressly require key dealers to affirmatively maintain trading and price stability in Treasuries, even in crisis.⁶⁹ We consider this to be necessary in light of the fundamental reliance that financial regulation places on the steadfastness of the intermediation system for Treasuries. Importantly, such a mandate is familiar. For example, trading on the New York Stock Exchange (“NYSE”) was long maintained by dealers that contracted to support trading and price stability during crises.⁷⁰ In addition to being well-worn and familiar, this mandate offers realistic assurance that the Treasury market will always provide liquidity, and, in particular, do so when such liquidity is most needed and when the chances of market failure are greatest. Finally, we support thoroughgoing reform of the regulatory structure for the repo and secondary market to harness the potential for coordination offered by the Financial Stability Oversight Council (“FSOC”).⁷¹ Created in the wake of the 2008 Financial Crisis, we believe that it is well placed to coordinate a more streamlined approach to rulemaking and supervision and to holistically view the repo and secondary market for Treasuries as interconnected.⁷²

This Article proceeds as follows. Part I provides an overview of why Treasuries are risk-free and the reliance placed on their risk-free status in public regulation. It details the centrality of primary dealers to intermediation and market function. Part II analyzes the workings of the multitrillion-dollar repo market and the anchoring role of Treasuries in private contracting. Part III develops a novel account of the interconnected risks of intermediation in both repo and secondary markets to show that it is undermined by opacity, conflict, and complexity. Part IV sets out a solution to remedy fragility in Treasury market design. Part V concludes.

I. TREASURIES AND THE FINANCIAL SYSTEM

Beyond funding the affairs of state, the Treasury market represents a foundational pillar of global financial stability. A Treasury bond is perceived to be a default-free security that is capable of being traded easily at fair prices, offering investors an asset that can serve as a safe, cash-like store of value.⁷³ These attributes ensure that Treasuries occupy a central place in regulation as an asset capable of being used by financial institutions to protect themselves and the market from sudden insolvency and systemic collapse. In public regulation, financial firms must keep Treasuries as part of their firm’s rainy day reserves. By owning Treasuries, firms hold a security that has predictable cash flows and is assumed to be rapidly tradable to generate cash when it is in trouble. Similarly, Treasuries are critical to private self-regulation in anchoring everyday lending between financial firms. They constitute the preferred form of collateral in the five-trillion-dollar repurchase market, allowing firms to borrow and lend to one other safely without undertaking prior due diligence.⁷⁴

This Part explains why Treasuries have acquired this stature as the foremost safe asset and haven for global financial stability.⁷⁵ It highlights that the usefulness of Treasuries is comprised of two main attributes: (1) they are, for all intents and purposes, default-free, meaning that the United States will pay its debts, and (2) they are supposed to be highly tradable (or liquid), capable of being bought and sold in their secondary market with ease, at a fair price, and without trades causing prices to become distorted.⁷⁶ These two attributes, while linked, are distinct from one another. This Part describes the key features of this secondary market and its regulation. Like any other active market, Treasuries trade in an environment that is operationally complex and risky. These risks are amplified by a unique framework of public oversight that is fragmented and lacking in leadership, making rulemaking and supervision subject to coordination costs and delays.⁷⁷

A. Why Treasuries Are Risk-Free

The Treasury market is critical to economic life in the United States and the health of financial markets globally.⁷⁸ Public debt has proven to be a transformative force for the country.⁷⁹ It has allowed Congress to implement major policy initiatives such as public works projects, wars, and efforts to counteract economic misfortunes.⁸⁰ The Treasury market provides policymakers with power to pursue far-reaching goals.⁸¹ Policies do not have to be constrained by present-day taxpayer contributions. Rather, the Treasury can tap into global capital markets to raise money.⁸² Crucially, the economic and political heft of the United States enables investors to have confidence that whatever they lend to the Treasury will be repaid exactly as promised.⁸³ This credibility means that the United States can borrow to fund itself much more cheaply than other countries with weaker economies and political institutions.⁸⁴

Holding a default-free asset can be uniquely advantageous. Investors can be sure that the money they lend to the U.S. government is safe. Importantly, Treasuries provide a counterpoint to a portfolio containing a mix of investments with riskier options like corporate debt or equity. Whereas other assets involve varying cash flows, uncertainties in valuation, periods where they become hard to sell, or lose their value (in case of bankruptcy), Treasuries are not supposed to face any such danger.⁸⁵ Instead, investors believe Treasuries will perform in accordance with their terms, retain value, price, and currency stability. It follows that Treasuries have long been viewed as the safe haven for domestic as well as foreign investors, including other sovereigns looking to invest their reserves.⁸⁶

The key attributes of a Treasury bond—default-free, denominated in the U.S. dollar, designed to be paid out in specific maturities and simple to value—are bolstered by its tradability (for example, its ability to be bought and sold quickly and cheaply without significantly impacting prices).⁸⁷ Official government reports into the Treasury market commonly begin by observing that it constitutes the “deepest and most liquid government securities market in the world.”⁸⁸

This liquidity represents a hallmark without which Treasuries could not attract investors as easily.⁸⁹ Those holding Treasuries would not be able to turn them into cash, while those wishing to add Treasuries to their portfolios would struggle to purchase them. If investors lack liquidity, they will charge the U.S. government more to reflect the cost of keeping a less tradable investment on their books.⁹⁰

B. Making Treasuries Tradable

Through much of its history, regulators have relied on a cohort of international banks and investment banks—designated as primary dealers—to support intermediation in Treasury markets.⁹¹ After the initial issue by the U.S. Treasury (in what is called the “primary” market), the secondary market for day-to-day trading of Treasury securities is divided into two parts: (1) the segment where primary dealers and other dealers transact externally with customers (like foreign governments, or mutual funds) to buy and sell Treasuries, and (2) the interdealer segment where dealers internally transact with one another in order to even out or otherwise manage the inventories they hold of Treasuries. If some dealers want Treasuries but do not have them, while others wish to sell, the interdealer trading market offers a space for Treasury dealers to be able to transact with one another.⁹² Historically, primary dealers have played a critical role in each of these three parts of the market.⁹³

Treasuries at Auction: Primary dealers are expected to use their deep pockets to bid for new Treasury securities when they are issued at government auctions. These bids must be at competitive prices, meaning that primary dealers cannot comply with their obligations by simply making unrealistic and unrealizable bids.⁹⁴ The government places great trust in primary dealers by relying on these firms to act as counterparties at every issue of public debt. In their 2007 study, Michael Fleming et al. show that primary dealers purchased an average of 71% of new issues.⁹⁵

Given regular and heavy demands on their balance sheets, primary dealers are chosen from among those that can demonstrate the financial capacity to purchase, hold, and trade these securities. Though the NY Fed slightly relaxed eligibility conditions in 2016, the firms that perform primary dealer functions come from the ranks of well-regulated financial institutions—mostly banks.⁹⁶ As part of their agreement, primary dealers provide the NY Fed with weekly reports into the activities of the Treasury market.⁹⁷

Secondary Market – Dealer-Client: The secondary market comprises two major segments. In the dealer-client market, investors like foreign governments or mutual funds come to buy or sell Treasuries. This segment is critical for ensuring that Treasuries are widely available and capable of performing their stabilizing, protective function. Trading volume for a recent single day—July 31, 2024—in this dealer-client segment was about $735 billion.⁹⁸

Primary dealers have a major advantage in the dealer-client market. As large and internationally active financial firms, they possess an ample base of clients with which to transact. This network provides the means by which to operationalize the protective function of Treasuries by ensuring they are widely distributable.⁹⁹ Importantly, by dint of their participation in Treasury auctions, primary dealers have sizable inventories of securities that they can transmit.¹⁰⁰ Indeed, when seeking to bid for Treasuries at auction, primary dealers usually collect indications of interest from major clients beforehand, ensuring that that they are able to capture and meet demand more precisely.¹⁰¹

The structure of the dealer-client market is based on an over-the-counter design. Clients contact primary dealers (and other dealers) using telephones or computer screens to ask for bids on what they are willing to buy and sell and at what price.¹⁰² It rewards those most capable of developing repeat relationships with leading investors like foreign governments, insurance, or pension funds. By their proximity to Treasury auctions, the ability to anticipate client appetites, and experience, primary dealers generally represent an efficient and informed disseminator of Treasuries across the world.¹⁰³

Secondary Market – Interdealer: The interdealer market represents the other main segment of the secondary market.¹⁰⁴ It helps Treasuries dealers to even out their reserves by selling what they do not need to other dealers or dipping into this market to buy when they face a shortfall. On July 31, 2024, the day chosen above to illustrate recent dealer-client trading, the volume of trading in the interdealer segment was similar in magnitude to that of dealer-client trading, at around $729 billion.¹⁰⁵

The interdealer market fulfills two key functions. One, it helps reduce the risk that primary dealers and others face gluts or scarcity in their inventory of Treasuries. It provides a mechanism whereby the availability of Treasuries can be modulated between dealers to meet their external client demands. Primary dealers can sometimes face sudden, one-sided demand. With COVID-19 triggering panic in March 2020, investors sought en masse to sell Treasuries in order to get their hands on cash.¹⁰⁶ According to Vissing-Jorgensen, sales by foreign investors, mutual funds, and the household sector (including hedge funds) came to around $287 billion, $266 billion, and $194 billion, respectively, in the first quarter of 2020 alone.¹⁰⁷

A market to regulate supply and demand ensures that the dealer-client market is not disrupted because dealers are unable to obtain Treasuries or cash. For example, confronting heavy demand to buy from a sovereign, dealers can go into the interdealer market to supplement thinning reserves. By doing so, they fulfill client demand. The ability to sell excess inventory to other dealers means that dealers face fewer costs in keeping securities on their balance sheets.

Two, the ability to meet client demand smoothly means that the market becomes less vulnerable to sudden spikes or plunges in Treasury prices. When dealers can transact with one another to manage their supply of cash and Treasuries, they can lower costs to clients. The effects of scarcity or oversupply can be managed, helping markets remain more reliable and affordable for investors.¹⁰⁸

It is worth briefly noting that, from the mid-2000s, the interdealer market has undergone a structural shift to transition from an analog space to one that is now largely automated.¹⁰⁹ Its plumbing has transformed from reliance on telephones to the use of fast, artificially intelligent algorithms to drive trading.¹¹⁰ High-frequency trading (“HFT”)—in which Treasuries are being bought and sold in milliseconds or less—dominates, driving around 50–75% of trading volume.¹¹¹ One study showed that the median time between trades in ten-year Treasury notes in 2015 was around ten milliseconds.¹¹² A decade earlier in 2006, trading speed for this note stood at around one hundred times slower, with transactions occurring around one second apart.¹¹³ To be sure, this trend is a secular one. Electronic, automated trading has become the norm in equities and derivatives markets, reflecting growth in computing power, data processing, and artificial intelligence since the mid-2000s.¹¹⁴ Its extensive embrace within the historically staid Treasury market has nevertheless come as something of a surprise.¹¹⁵

High-speed trading has given rise to sources of instability.¹¹⁶ An automated interdealer market has introduced new types of traders with a different profile to primary dealers.¹¹⁷ HFT firms tend to be smaller securities firms that specialize in computerized trading across multiple types of assets, such as equities. Leading HFT firms are not household names, despite driving heavy volumes of trading. Firms like KCG, Spirex, XR Trading, or Jump Trading—while not as well-known as J.P. Morgan or Wells Fargo—have risen to become major suppliers of liquidity in the interdealer market.¹¹⁸

C. Centrality of Treasuries in Public Regulation

Owing to their default-free status and perceived liquidity, Treasuries have become the go-to protective asset in public financial regulation.¹¹⁹ Following the 2008 Financial Crisis, with top financial firms collapsing or needing bailouts, the rapid loss of solvency raised worries about how best to avoid a repeat episode.¹²⁰ The causes of the 2008 Financial Crisis are complex.¹²¹ Reform has sought to address numerous vulnerabilities.¹²² But to bluntly mitigate the catastrophic effects of firms becoming unable to pay out on short-term debts and triggering a domino of failures, buffers of rainy-day and high-quality liquid assets (“HQLA”) now represent a mainstay of financial regulatory design.¹²³

To illustrate, banks are required to maintain a cushion of highly liquid assets that can help them to cover their short-term outflows over a stressed thirty-day period. Importantly, firms should be able to convert these assets into cash within just one day, without these assets losing value. In other words, assets must be highly liquid and their fire sale in stressed circumstances ought not to cause their prices to become distorted. Overall, banks need to keep more than 100% of their expected thirty-day liquidity needs in the form of HQLA.¹²⁴ This liquidity-coverage ratio (“LCR”) represents a post-2008 reform hallmark, designed to ensure that firms do not cause contagious failures by failing to make good on their immediate commitments.¹²⁵ By preserving sufficient reserves of cash and cash-like assets, firms can feel safe in their ability to pay, while others are reassured that they will be repaid. The comfort of reliable liquidity buffers can work to limit the chances of a destructive run, when firms might try and seize cash and other assets in the worry that their counterparties cannot pay.¹²⁶

Treasuries rank in the highest tier of liquid assets for firms seeking to build their buffers of HQLA alongside pure cash and deposits with the Fed.¹²⁷ While cash and Treasuries are not exactly equivalent (for example, one has to sell a Treasury to generate cash), regulation assumes that they fall within the bandwidth of the same ultrasafe, ultra-stable, and ultra-liquid asset-type that can meet the need for immediate redemptions.¹²⁸ Further, Treasuries are supposed to do be bought and sold quickly without causing serious price distortions. Regulation encourages banks to hold unencumbered Treasuries and does not impose any discounting on the value of the Treasuries held.¹²⁹

It is widely accepted that the LCR has had a dramatic impact on how banks fund themselves and on the kinds of business that they undertake. By being mandated to keep this thick buffer of HQLA to cover outflows over a stressed 30-day period, banks confront a constant demand to maintain (and have access to) a regular supply of Treasuries and cash. In consequence, they have dramatically increased their Treasuries holdings to reflect efforts at compliance.¹³⁰ On the other side, firms have sought to also adapt their business lines to reduce or adjust the size of the liabilities to be covered within the 30-day window. Services like offering large deposit holdings to clients have incurred a cost in the form of LCR holdings.¹³¹ As banks must develop new business lines, they need to keep one eye on the Treasuries/cash market to maintain constant compliance with LCR requirements.

Beyond banks, the significance of Treasuries as a cash-like, highly liquid buffer of value has led to financial firms raising their holdings across the board. For example, as Nellie Liang and Pat Parkinson note, open-ended mutual funds hold as much as 12% of all Treasuries outstanding, while hedge funds maintain around 9%.¹³² According to Liang and Parkinson, such deep reserves of safe-haven securities in the hands of regulated firms point to a readiness on their part to sell Treasuries en masse in order to raise cash in distress.¹³³

D. Regulating the Secondary Market

This central place for Treasuries gives multiple major regulators an interest in their workings. Perhaps reflecting this quality, the oversight framework for Treasuries divides authority between several regulators, with none having lead status, but all having a stake in supervision.¹³⁴

Rather than having one lead regulator, like the Securities and Exchange Commission (“SEC”) is for equities, oversight of Treasuries is divided between at least five major agencies: the Fed, the NY Fed, the U.S. Treasury, the SEC, the Commodity Futures Trading Commission (“CFTC”) and the Financial Industry Regulatory Authority (“FINRA”).¹³⁵ The Fed supervises the banks, the SEC and FINRA oversee the securities firms, while the Treasury and NY Fed ensure surveillance over the auction process. The NY Fed also exercises designation authority for primary dealers, but it is not an official regulator for primary dealers.¹³⁶ The CFTC regulates derivatives markets that are linked to Treasuries trading—notably, Treasury futures.¹³⁷ Overlapping authority is commonplace in U.S. administrative law. As Jody Freeman and Jim Rossi outline, regulators sharing authority bring unique expertise. But they also face impediments, such as barriers to information sharing and the need for coordination in the completion of everyday oversight.¹³⁸

Likely in view of their risk-free status, the usual bevy of rules that apply to traders in major markets either do not exist for Treasuries—or do so weakly. This latitude is born out of the broad exemptions that Treasuries enjoy under the Securities Act of 1933 and the Securities Exchange Act of 1934.¹³⁹ Regulators themselves often lack a concrete picture about which rules apply to Treasuries and how they should be implemented.¹⁴⁰ Commentators observe that out of the thousands of FINRA rules for equity broker-dealers, around forty-six apply to broker-dealers in Treasury markets.¹⁴¹

Interestingly, the most visible divergence from classic securities markets regulation (for example, equity and corporate bonds) lies in the area of reporting and information dissemination. Treasuries have historically lacked a trade-by-trade reporting regime.¹⁴² Since 2017, FINRA-regulated securities firms are required to report their trades. Banks must do so as well.¹⁴³ Despite this reform, however, the 2017 regime has long left serious gaps. Those that did not traditionally fall within the category of either a broker, dealer, or bank were not required to report to FINRA. For example, a number of HFT securities firms have typically not reported directly, and neither have hedge funds.¹⁴⁴ In February 2024, the SEC passed a series of measures requiring major liquidity providers—regardless of their institutional category—to register with the SEC and to report their trades. The functional aim of such rulemaking arguably lies in broadening the regulatory perimeter to require reporting by and cast a spotlight on those undertaking major Treasuries-related business (for example, high-speed traders and hedge funds). But, the SEC’s actions were met with heavy resistance and a court challenge to their validity.¹⁴⁵ At least until the SEC’s new regulations are implemented, data in relation to non-reporting firms must be captured indirectly—for example, when a non-reporting trader transacts with one that falls under the general 2017 mandate, or data is supplied by a trading platform.¹⁴⁶ Further, public reporting of Treasuries data is fairly light and recent. The public gained access to Treasuries secondary market trading data but only since March 2020. This data has generally presented aggregate totals for weekly trading in different kinds of Treasury securities, moving only to daily aggregate reporting beginning in February 2023.¹⁴⁷

***

In summary, the Treasury market represents a critical pillar of the U.S. economy and financial system. Treasuries are viewed as risk-free. This label, however, conflates two aspects of Treasuries: (1) the likelihood of repayment and (2) their trading in secondary markets. With respect to the former, it is widely accepted that the United States will not default. However, in relation to the latter, the system of trading for Treasuries does present real risks. It reflects a design choice that places primary dealers as centerpieces in intermediation. Crucially, Treasuries fall under a system of oversight that is fragmented and without a lead authority. With reporting data only recently becoming available, and lacking comprehensive coverage, regulators face coordination and information costs when seeking to understand the riskiness of this market and its intermediation.

II. TREASURIES AND PRIVATE INDUSTRY SELF-REGULATION

In addition to playing an anchoring role in public regulation, Treasuries have become the lynchpin for safeguarding the six-trillion-dollar market for short-term credit between financial firms. Default-free and highly liquid, Treasuries are the choicest type of collateral, capable of being sold rapidly when a borrower cannot pay. In the repurchase market, any number of financial institutions borrow and lend cash/securities to one another to meet their daily funding needs—with Treasuries being the preferred type of collateral. Particularly after the 2008 Financial Crisis, firms have come to depend on Treasuries as collateral in the repo market, with around four trillion dollars dependent on Treasuries to secure debt. Because repo debt is short-term and collateralized using Treasuries, it is “informationally insensitive,” meaning, so safe that due diligence is unnecessary.¹⁴⁸

This Part describes how Treasuries have become essential to maintaining the system of financial self-regulation that drives over four trillion dollars in daily lending between financial firms. Just as in the secondary market, primary dealers are the major intermediaries in repo operations, performing a variety of functions as lenders, borrowers, and connectors that match clients. In highlighting the centrality of primary dealer intermediation, this Part describes why this task can be challenging and costly in repo markets, with the risk that primary dealers can quickly withdraw and temporarily restrict credit when their job becomes too difficult.¹⁴⁹ These challenges are not easily addressed through the regulatory framework. Unlike the secondary market for Treasuries, the repo market is regulated under a more prudential format, focused on maintaining the safety and soundness of participating firms and transactions. With a far lower emphasis on disclosure, the repo market constitutes an opaque environment by design, obscuring an understanding of its workings and its interlinkages with the Treasuries secondary market.

A. Private Credit in Financial Markets

The repo market—offering short-term, secured credit—represents a solution to the funding needs of large financial firms. A basic repo transaction works as follows. A Lender (a firm with cash) offers to loan money to a Borrower (a firm needing cash).¹⁵⁰ As with any loan, this transaction carries the risk that the Borrower might default. To limit the risk of losses arising from default, the market (1) ensures that the loan is collateralized and (2) keeps the maturity of the loan short (usually overnight, but it can sometimes extend to a month).¹⁵¹ The repo market thus represents a market for secured loans. If the Borrower cannot pay back the cash, the Lender can simply sell the securities and recover their money. The collateral that a Borrower provides is in the form of securities, like Treasuries, corporate bonds, mortgage-backed securities, or stock.¹⁵² Treasuries, unsurprisingly, constitute the most prized form of collateral. In terms of pricing, the value of the collateral exceeds the size of the loan by an amount called the “haircut.” The riskier the collateral, the larger the haircut.¹⁵³ Treasuries usually come with a haircut of around 2% for overnight borrowing.¹⁵⁴ A Borrower looking for a $100 overnight cash loan will need to provide the Lender with $102 in Treasuries.¹⁵⁵

As noted above, the maturity of loans is short, usually overnight. But loans are routinely rolled over.¹⁵⁶ This means that the loan is refreshed as it comes due: the Borrower can keep using the cash, while the Lender keeps the collateral. The short maturity structure gives Lenders the ability to control their exposure. If the Lender senses trouble, it can ask for the loan to be paid back, or it can choose to ask for more collateral to reflect any additional risk posed by the transaction. If the Borrower cannot repay, the Lender can sell the Treasuries. Danger arises for the market if the Lender feels unable to continue lending or rolling over existing loans, forcing a number of its borrowers into distress where they must pay up or find additional securities to keep borrowed cash.¹⁵⁷

The repo market is mainly divided in two: (1) the bilateral market and (2) the tri-party repo market. Further, repo transactions come in two distinct types: (1) repo trades and (2) reverse repo trades.

In the bilateral repo market, parties transact directly with one another and privately organize their own risk management. By contrast, in the tri-party repo market, the administration and settlement of trades are handled by a third-party firm that intercedes between parties to manage the risk of ensuring the trade executes.¹⁵⁸

The classification of whether a repo transaction represents a repo or reverse repo depends on whether the dealer is borrowing or lending cash in the transaction.¹⁵⁹ In a repo, the dealer is borrowing cash (and providing collateral). In a reverse repo, the dealer is lending cash (and receiving collateral).¹⁶⁰ Figure 1.A shows the size of the bilateral repo market over the period 2013–2023.¹⁶¹ There are 2 points to note: (1) the daily size of the bilateral repo market, comprising both repo and reverse repos, has varied from $3.9 trillion to $5.1 trillion over the last ten years and (2) on average, around 75% of the collateral in the bilateral repo segment comprises Treasuries, meaning that Treasury securities valued at about $3 trillion to $4 trillion remain locked up as “passive” collateral to prevent default, thereby reducing the “float” readily available with dealers for secondary market trading.¹⁶² Figure 1.B shows the size of tri-party repo market over the past decade.¹⁶³ For example, in December 2021, the daily size of the tri-party repo market stood at around $3.7 trillion, around $2.5 trillion of which was backed by Treasuries.¹⁶⁴ Given the higher risk of direct trading, the bilateral repo market uses Treasuries as collateral in a much larger proportion of its transactions.

The feature that gives the repurchase (repo) market its name describes the legal arrangements that underlie how a typical repo works. The transaction is effectively structured as a sale and repurchase of securities even though it is, for all intents and purposes, a loan. The Borrower (seeking cash) sells its securities to the Lender (for the cash) with the promise to buy them back at a pre-agreed price the next day (or whenever the deal matures). The pre-agreed repurchase price represents the amount of the loan alongside an additional slice of compensation.¹⁶⁵ Because the Lender legally owns the securities, it can sell them if the Borrower defaults. The Bankruptcy Code specifically allows repo Lenders to sell collateralized securities even if the Borrower files for bankruptcy. Ordinarily, without such protection, Lenders would be stopped from doing so by the Code’s automatic stay on enforcement actions.¹⁶⁶

Scholars observe that repo markets tend to function as a “bank-like” system for financial firms.¹⁶⁷ Those that have cash can earn money by lending it and taking collateral. In turn, those that need cash but have securities can offer their securities as collateral in return for access to cash. Repo markets reflect the reality that financial firms are unique. They cannot park millions and billions of dollars in a bank account. Those with cash want this money to generate some return, rather than having it languish unproductively. On the other side, some firms’ asset base focuses on holding securities rather than cash (for example, if they invest heavily in securities as underwriters).¹⁶⁸ The repo market unlocks value by allowing those that need cash to borrow it on a short-term and secured basis, while permitting those with cash to be able to lend it out and make money from this transaction.¹⁶⁹

Secondly and relatedly, repo markets enable financial firms to use leverage if their business model and balance sheet can support it. For example, suppose a firm has 100 Treasuries, each valued at $100. The typical haircut for Treasuries is 2%. The firm can borrow $9,800 against this collateral. It can then use these funds to buy 98 Treasuries, following which it can again use the 98 Treasuries as collateral to borrow $9,600. It can then use these funds to buy 96 Treasuries and so on, potentially achieving up to 50 times leverage.

Equally, the same Treasuries may be used in multiple transactions. Repo markets permit dealers to take Treasuries belonging to a client and to use these as collateral for their own purposes in the repo market.¹⁷⁰ A hedge fund with 100 Treasuries can entrust a Dealer with their safekeeping. Rather than simply let these assets be unproductive in an account, the Dealer and hedge fund agree that the Dealer can use the Treasuries for the Dealer’s private credit needs. In return, the Dealer can offer the hedge fund a line of credit on cheaper terms than what might otherwise have been possible. Because the Dealer can control the Treasuries, it can use them as collateral to borrow funds from a Lender. The Lender, too, can take these same Treasuries and reuse them for more borrowing.¹⁷¹ According to Infante et al., by dint of contractual agreements, primary dealers are generally permitted to reuse the vast majority of the Treasury collateral that they hold for clients. Studies suggest that as much as 85% of all Treasuries collateral may be subject to reuse.¹⁷²

Reusing collateral has a number of important benefits for both dealers and their clients. It means that dealers can provide cheaper intermediation across the board. Rather than having to buy Treasuries and spend cash to do so, a dealer can request permission from its client to borrow their securities. In turn, the client also receives cheaper services.¹⁷³ Reuse also means that the market unlocks maximum value from a Treasury. Rather than only be used once in one trade, reuse can extract economic gains when Treasuries are used across multiple transactions.¹⁷⁴ So long as parties can repay, reuse can help lower the costs of intermediation and accessing repo credit affordably.¹⁷⁵

But reusing collateral can also be dangerous.¹⁷⁶ While profitable in good times, collateral reuse can amplify distress in crisis. It undermines the assumption that repo markets provide fully secured lending. If the Hedge Fund client demands its Treasuries back, the Dealer faces a problem—as do others along the collateral chain. The Dealer must immediately source the Treasuries to return to the Hedge Fund.¹⁷⁷ If the Dealer has used Treasuries to borrow cash, it must find cash to pay its Lender back and recover the Treasuries. Where the Dealer has failed (like Lehman Brothers), the Hedge Fund can find itself caught up in long legal proceedings to recover the assets.¹⁷⁸

The fragility of collateral chains was made clear around September 16, 2019, when rates to borrow cash in the repo market spiked, climbing to almost 10% from about 2% in the week prior.¹⁷⁹ In seeking to understand why, a number of commentators pointed to concerns about the quality of the collateralization—and whether collateral chains of reused Treasuries could be counted on as watertight. Manmohan Singh of the International Monetary Fund estimated that, in the 2018 Treasury repo market, around three separate actors believed that they were entitled to the very same Treasury security.¹⁸⁰ This imputed a reuse rate of 2.2. That is, in addition to the actual owner (for example, the Hedge Fund above), 2.2 further firms considered themselves entitled to the Treasury collateral.¹⁸¹ Owing to uncertainties about whether lending was really fully collateralized, primary dealers and others became wary of parting with cash, despite the promise of an almost 10% interest rate on offer that day.¹⁸² As this episode makes clear, even though a Treasury can be reused multiple times as collateral, it can only be sold once to cover exposure. In an informationally opaque environment, in which parties do not know if they might be the one caught without viable collateral, it makes sense for primary dealers to stop intermediation and withdraw from the market.

B. Intermediation in the Repo Market

Primary dealers are the key intermediaries in the Treasuries-backed repo market. According to Copeland et al., primary dealers appear to intermediate around 80% of the bilateral repo market.¹⁸³ In addition to serving the financing needs of clients, primary dealers also use the repo markets to secure funding for themselves.¹⁸⁴

As intermediaries, primary dealers are tasked with fulfilling a number of functions in the repo market. At the most basic level, they match borrowers with lenders. When one client has cash (for example, a mutual fund), while another needs it (for example, a bank), the primary dealer connects both parties and facilitates the repo transaction (for a price). A more engaged role involves the primary dealer acting as one side of the repo trade for a client, either as borrower or as lender. When doing so, the primary dealer deploys the power of its balance sheet to take risk directly on its books.¹⁸⁵

Primary dealers have unique advantages when it comes to intermediating the Treasuries-backed repo market. Beyond access to government auctions, they also possess positional dominance. For one, as connected nodes in financial markets, with access to networks of global clients, primary dealers represent trusted repositories for client cash and securities. In return to offering services and expertise, dealers acquire access to vast amounts of client securities and cash that can be reused for repo operations. Because the repo market enables collateral reuse, dealers can subsidize the costs of intermediation.

In addition, this central position affords primary dealers some informational advantages. They are well-placed to identify, connect, and transact with counterparties. Primary dealers are likely to have knowledge about which kinds of firms tend to hold sufficient cash (for example, mutual funds) to lend, and who has enough securities to be able to borrow. Repeat relationships can help build trust, deepen knowledge about the client’s financials, and allow the primary dealer to more precisely price the terms of repo debt. Connections with multiple clients can permit primary dealers to fulfill orders for larger volumes of Treasuries/cash in which a dealer can tap and pool assets across clients. Crucially, this ability to tap into a sprawling network of resources can strengthen the financial system because its key intermediaries are positioned to supply liquidity in an elastic way.¹⁸⁶

Finally, primary dealers are active throughout financial markets and supply liquidity in a variety of assets like equities and corporate bonds.¹⁸⁷ This broad-based participation in capital markets puts primary dealers in a strong position to use their experience and expertise to better predict demand for repo funding. For example, by being active suppliers of liquidity to the corporate bond market, primary dealers are likely to have a detailed understanding of who the key buyers of bond issues are likely to be (for example, insurance firms or mutual funds). This can provide special insight into possible future pockets of demand for Treasuries/cash collateral in which investors might need short-term cash to purchase a sizable volume of bonds.

C. Regulating the Repo Market

Despite its short-term and collateralized nature, the repo market is criticized for its structural instability and the profound risk that it poses for the financial system.¹⁸⁸ Scholars argue that the repo market suffers from a similar vulnerability to banks: the chance that it suffers a run in which lenders are frightened enough to recall their short-term debt en masse. According to Gary Gorton and Andrew Metrick, a major catalyst for the 2008 Financial Crisis came from a run in one part of the repo market, making it impossible or expensive for financial firms to continue funding themselves.¹⁸⁹ In Gordon and Metrick’s study, the collateral underlying the repo loans was largely comprised of mortgage-backed securities that plunged in value.¹⁹⁰ Even where underlying securities were not as risky, the fear that they could be and that repo borrowers would be unable to repay ramped up what lenders were charging or caused them to call in their loans.¹⁹¹

Unlike banks, the repo market lacks preventative structural safeguards, like deposit insurance, that could mitigate the risk of a run.¹⁹² Instead, after 2008, it largely relies on Treasuries collateralization to assure parties that they will be repaid.¹⁹³

This focus on collateralization reflects the prudential approach that characterizes the regulation of the repo market. Broadly, a slew of capital rules for financial institutions take account of a primary dealer’s repo participation to calculate how much capital it needs.¹⁹⁴

As detailed in Part I, banks must maintain a supply of highly liquid assets that can help them to remain solvent in the event of a sudden cash drain. The mandate that major financial institutions buffer themselves up with a thick reserve of highly liquid assets reflects the lessons learned in 2008 that underscored the potential for a liquidity crunch, as exemplified by the repo market’s failure.¹⁹⁵

However, their obvious utility and importance notwithstanding, these liquidity rules have also been blamed by some commentators for amplifying the instability in repo operations. In September 2019, when cash in the repo market seemed to run dry, no bank came forward to take advantage of what would have been a lucrative opportunity to lend (with a rate of 10% on offer). According to some commentators, post-2008 liquidity rules meant that banks did not wish to lend cash because they preferred to maintain high cash reserves and meet their compliance requirements. Importantly, the Fed pays interest on the cash reserves that it holds in its accounts for banks. If these interest payments are sufficiently high, banks might hesitate before using the cash for repo lending.¹⁹⁶ As Joshua Younger et al. observe, large banks were not short of cash in mid-September 2019.¹⁹⁷ They held around $700 billion in cash reserves—far in excess of what was required of them under law.¹⁹⁸ On paper at least, they should have been able to direct some of these funds into the repo market and ease the costs of lending. This suggests that dealers preferred to prioritize keeping a thick liquidity buffer, accruing interest in their account with the Fed and waiting out the uncertainty, rather than actively deploying their balance sheet to alleviate it.¹⁹⁹

In addition to liquidity ratios, primary dealer banks can also become subject to a “capital surcharge” over and above the basic capital buffer that banks maintain—resulting in banks seeking out ways to avoid the full force of paying this extra cost. Under post-2008 rules, the surcharge kicks in when a bank is deemed to be large and systemic.²⁰⁰ The greater the size and interconnectedness of a dealer bank, the greater the likelihood that it faces a higher charge.²⁰¹ From the standpoint of policy, this systemic surcharge serves the purpose of ensuring the financial markets are better girded against the possibility that a large bank fails because this bank should have a deeper buffer from which to cover its losses. However, as an unintended consequence, it can motivate dealer banks to suddenly reduce the depth of their repo intermediation in order to avoid becoming sufficiently large and interconnected to become subject to a higher capital charge.²⁰²

Industry analysts report that large, systemically important banks routinely seek out ways to show a reduced footprint when it comes time for regulators to assign scores for the purposes of the surcharge.²⁰³ Under this regime, banks have incentives to reduce their systemic activities to just below the threshold at which a higher charge would apply. Because activities in the repo market constitute one signal of a bank’s interconnectedness, heavily limiting the depth of its involvement can help a bank to reduce the capital surcharge it faces.²⁰⁴ Further, owing to the short-term nature of repo lending, dealers can precisely time their retraction to quickly closeout repo transactions before being rated.²⁰⁵ This kind of behavior—while perhaps rational for any single dealer—clearly poses problems for the market as a whole. Repo markets can experience a broad fall in the intensity of intermediation around times when dealers are to be assessed for a surcharge.²⁰⁶ Even if the market can predict that such an eventuality will occur, episodic illiquidity can still create periods of fragility in which firms struggle to get the repo loan they need at an acceptable price. Indeed, even the fact of anticipating such liquidity-draining milestones can constitute a self-fulfilling prophecy. Firms may be less willing to come forward with their cash and Treasuries to trade assuming likely frictions in the market. Whenever dealers decide to scale down their intermediation, even if temporarily, it can introduce a broad slowdown in the flow of credit across the financial system.

In summary, private self-regulation in financial markets looks to Treasuries to protect firms and the system against default. Private lending between firms in the repo market relies on primary dealers for intermediation. Despite being collateralized using Treasuries, however, the repo market suffers from built-in risks. It is opaque by design. Reuse of Treasuries collateral creates a source of instability in crisis. Short-term financing can dry up quickly. Dealers are free to withdraw or reduce intermediation. That being said, with around four trillion dollars in daily lending backstopped by Treasuries, the financial system is entrenched in its belief that Treasuries constitute the protective safe asset to anchor private industry self-regulation.

III. THE FALSE PROMISE OF TREASURIES

This Part argues that systematic reliance on Treasuries in public and private financial regulation is internally in tension. First, we show that the secondary market and the repo market are inextricably linked and interdependent such that loss of function in one market can affect the other. Secondly, primary dealer intermediation, underpinning both markets, is subject to a slew of costs and problems. Opacity is pervasive. This prevents primary dealers from gaining a full picture of the risks. This increases the challenge facing primary dealers to navigate the internal conflict between the repo and the secondary market operations. With trillions of dollars in Treasuries and cash collateral locked-in to support the repo market, the secondary market for trading Treasuries can face a shortfall, especially during crises. In seeking to resolve this tension, primary dealers are likely to favor intermediating in the market in which they will gain the most, economically and reputationally. Alternatively, if neither market provides lucrative gains, primary dealers will rationally have every reason to withdraw intermediation altogether.

Additionally, this Part observes that the regulatory system is ill-placed to recognize the risks of an interconnected repo and secondary market for Treasuries. The Treasury market is overseen by a panoply of agencies. Their approaches to oversight diverge. Cooperation costs are built-in to a fragmentated system of oversight.²⁰⁷ Regulatory incapacity increases the dangers of risky intermediation for Treasury market fragility and casts further doubt on the ability of Treasuries to function as safe assets in public and private financial regulation.

A. Opacity, Information Costs, and Monitoring

Opacity in the repo market and the secondary market adds systematic information costs to primary dealer intermediation. A lack of full and real-time information limits monitoring and makes it harder for primary dealers to anticipate demand on their balance sheets. If the costs of opacity become too much, primary dealers may limit or withdraw intermediation to one or both markets.²⁰⁸

Primary dealers face uncertainties from a number of sources in intermediating both Treasury secondary trading and repo markets. First, both markets are home to a diverse set of users whose needs for cash and securities can vary unexpectedly. The repo market exemplifies this vulnerability.

Taking data from the periodic reports that primary dealers provide to the NY Fed, it becomes clear that Treasuries’ exposure of primary dealers is much greater in the repo markets relative to the Treasury secondary market.²⁰⁹ Figure 2 shows the average daily primary dealer exposure to outstanding repos and reverse repos over the period from 2016 to 2023.²¹⁰ Similarly, Figures 3.A and 3.B show, respectively, the average daily primary dealer inventory exposure in the secondary market, and the average daily trading volume in the secondary market.²¹¹ The data underlying the charts show that the average daily collateral exposure of primary dealers in the Treasury-backed repo market averaged $1.91 trillion in 2020 and $1.84 trillion in 2021. In contrast, the average net primary dealer exposure to the Treasuries’ secondary market totaled only around $244 billion in 2020 and $159 billion in 2021. Even the average daily trading volume of primary dealers in the Treasury secondary market—that includes both buying and selling by primary dealers—was only around $500 billion in both 2020 and 2021.

Importantly, the repo market also exerts large unpredictable demands on dealer balance sheets. By contrast, the secondary market is steadier. The data underlying Figure 2 shows that the average daily collateral exposure of primary dealers in the Treasury-backed repo market varies wildly and unpredictably from 1 week to the next. In 2020, this week-to-week difference varied from under $1 billion to $385 billion during the year and averaged around $72 billion. The average daily collateral used by primary dealers for the Treasury-backed repo market also continued to vary substantially from one week to the next in 2021, with weekly changes exceeding $100 billion about 20% of the time. Further, these position changes in the repo market are not correlated from week-to-week, reflecting constantly shifting market-wide needs.²¹²

By contrast, the secondary market is much less dramatic. Using data underlying Figure 3.A, it saw average weekly variation in primary dealer exposures of only around $17 billion in both 2020 and 2021, with maximum weekly variation of only $46 billion. These figures reflect a consistent pattern over time. Figure 4 shows the sizable extent by which changes in primary dealer exposures to the repo market dominate changes in primary dealer exposures to the Treasury secondary market between 2016–2023.²¹³

Relatedly, primary dealers are also subject to the vagaries of how other dealers use Treasuries and cash in repo intermediation. Primary dealers do not intermediate all bilateral repo transactions. Copeland et al. estimate that around 20% of transactions are not intermediated by primary dealers.²¹⁴ While primary dealers occupy an outsize and influential position, their perch only allows them a partial view. Consequently, primary dealers confront blind spots about how these other firms use collateral and cash. This can create further difficulties for primary dealers in seeking to estimate the Treasuries and cash required to sustain repo operations as well as Treasury secondary markets.²¹⁵ For example, hedge funds have emerged as active and intriguing players in repo markets. According to one 2021 study, hedge funds have doubled their exposure to Treasuries to $2.4 trillion between 2018–2020, holding around $1.4 trillion in Treasuries in mid-2019, compared to the largest banks that held only around $524 billion at that time.²¹⁶ In addition to using the repo market to borrow to fund themselves, hedge funds have also taken over some of the trading and liquidity supplying functions traditionally performed by major dealers.²¹⁷

Opacity attaching both to the repo market and to hedge funds has precluded a clear understanding of what kinds of risks hedge funds pose for dealers. For example, hedge funds are well-known for taking on debt to pursue trading strategies.²¹⁸ Hedge fund participation raises the danger that leveraged funds become a credit risk for dealers that fund them. In addition, owing to their smaller balance sheets, hedge funds may need to sell Treasuries and also pull back quickly from providing liquidity to the rest of the market.²¹⁹ The March 2020 crisis has shone a spotlight on the potentially destabilizing role of hedge funds in Treasuries.²²⁰ It also highlights the pervasive danger for dealers from corners of the market they are less familiar with yet whose activities can nevertheless dramatically impact their own.

Second, primary dealers face difficulties from their participation as intermediaries in capital markets more broadly. Crucially, primary dealers are active liquidity suppliers to risky assets.²²¹ Figure 3.A shows that about one-third of net primary dealer exposure has been in risky non-Treasury securities. Figure 3.B shows that primary dealer trading volume in non-Treasuries is comparable to that in Treasuries, such that risks arising out of trading in non-Treasury assets are similar in volume to those arising from Treasuries.

Further, Figure 2 shows that the exposure of primary dealers to non-Treasuries collateral in repos and reverse repos is about 20% to 25%. Non-Treasury collateral generally comprises mortgage and asset-backed securities.²²² As Gary Gorton and Andrew Metrick observe, these securities pose especially high risks where parties rush to liquidate their loans in fear of the collateral losing value quickly.²²³ This non-Treasury segment can heighten the risk of a repo run and force primary dealers to limit their intermediation across the board, including in Treasuries repo and secondary markets.

Third, information costs are exacerbated by difficulties in the ability of primary dealers to understand whether the Treasuries collateral they hold is actually viable. In other words, can this collateral be traced and readily sold for cash? Lengthy collateral chains, formed by reusing Treasuries multiple times, muddy understanding of whether this collateral is available in a default. Information sources are scant. Primary dealers do not have to report data on their use of client collateral in their weekly disclosures to the NY Fed.²²⁴ This means that they do not need to tell the NY Fed about how they use collateral that clients entrust to them in safekeeping. This leaves firms (and regulators) to guesstimate exposures.²²⁵

The perceived safety of the Treasuries-backed repo—and the difficulty of mapping out collateral chains—can act as a disincentive for primary dealers and others to invest in information gathering. Even if they do go to the trouble of mapping out the risk, the constantly evolving nature of repo market exposures means that this map of underlying collateral chains can change quickly.

Information and monitoring costs in the repo and secondary market for Treasuries contribute to imperfections in intermediation.²²⁶ Higher costs in understanding and pricing risk can result in intermediation becoming more selective, expensive, and governed by private interests at a cost to the public good. In response to these costs, primary dealers may temporarily cut off credit in repo, including to one another. Without the ability to fund themselves using repo operations (for example, to borrow cash), they may also withdraw from the secondary market and stop buying and selling Treasuries to investors. Critically, incomplete transparency in repo and the secondary markets can shield primary dealers that withdraw intermediation. They may be quicker to leave the market whenever they see fit owing to the impossibility of being publicly identified as the dealer that stopped supplying liquidity.

B. Conflict Between Public and Private Regulation

Primary dealers also face a conflict when intermediating cash and Treasuries between the repo and secondary markets, particularly during crisis. Supporting the health of one market (for example, maintaining systemic stability in repo) can come at the expense of the other (providing liquidity to the secondary market).

This task of accomplishing successful intermediation across both markets is complicated by a number of factors. Primary dealers must decide how they allocate the “free float” of Treasuries available to them. They must examine the volume of Treasuries that is freely available and decide how much of this float should be allocated between the secondary and repo markets.

This calculus reveals the depth of the internal conflict at play between the secondary and repo market. Critically, the free float of Treasuries is reduced by the large amounts of cash and securities that are “locked-in” in the repo market.²²⁷ This means that large volumes of this float become passively captured as collateral in the repo market.

Specifically, during 2020, the daily average Treasuries transaction volume in the secondary market was around $603 billion. Compared to this, the dollar volume of primary dealer Treasury collateral in repos during 2020 was $1.9 trillion, and the dollar volume of such collateral in reverse repos was $1.7 trillion. Taken together, without reuse, Treasuries valued at a daily average of about $3.6 trillion were captured as passive collateral in the repo contracts of primary dealers in just the bilateral repo market. This is about twelve times the average exposure of primary dealers, and six times their daily Treasury trading volume in the secondary market. This inference is not specific to 2020. Rather as seen in Figures 2, 3.A, and 3.B, these trends are persistent. High amounts of captured Treasuries float—necessary to repo operations—drastically reduce the volume of Treasuries that are available for trades in the secondary market.²²⁸

These restrictions create difficulties for intermediation by primary dealers. Captured repo collateral imposes rigidity on primary dealers that reduces how fully they can supply liquidity to the secondary market during crisis. The secondary market can experience sudden and unexpected pressure from investors to perform. For example, total aggregate trading in the Treasury secondary market in the weeks of March 6, 2020, and March 13, 2020, came to around $5.7 and $4.9 trillion, respectively—an especially turbulent 2 weeks during which the Treasury market essentially stalled.²²⁹ By contrast, as secondary trading activity normalized, it started seeing approximately half the volume by summer 2020.²³⁰

Trillions in passive repo collateral create a source of fragility for the secondary market, generating logistical and financial difficulties for primary dealers: (1) dealers might have to constantly warehouse a reserve of Treasuries to support Treasury secondary trading during periods of high demand or (2) they can risk having to buy Treasuries during a crisis in order to meet demand. The first option creates costs because dealers have to allocate capital for buying and maintaining Treasuries supply, limiting profits from intermediation. In the second case, they run the risk that Treasuries become costlier to source, potentially resulting in reduced margins for their business. A third option always remains on the table: to reduce intermediation and avoid the need to source expensive Treasuries during difficult periods. This trade-off requires primary dealers to balance their private interests with public ones. When Treasuries’ float is limited and demand in secondary trading exceeds existing reserves, the incentives of dealers to remain committed to Treasuries trading diminishes.

The coexistence of the secondary and repo markets—both intermediated by primary dealers—thus reveals real structural tensions. The growth of repo lending, demanding higher volumes of Treasuries float, can result in a corresponding decrease in securities available to lubricate the secondary market. This trade-off creates a complex problem for policy. If repo lending represents a desirable and efficient form of funding for financial institutions, ensuring it is done safely is of paramount concern. At the same time, a growing reliance on repo operations for financial institutions results in fragilities for the secondary market and the regulation that depends on it.

Moreover, as intermediaries for both markets, primary dealers have incentives to prioritize the needs of one market over another depending on private preferences. This favoring of one market over another can be motivated by a number of reasons. For example, primary dealers may see larger profits, lower risk, and reputational gains from ensuring the continuity of repo lending than from supplying expensive liquidity to the secondary market. Repo markets are far larger and primary dealers earn fees for matching counterparties.²³¹ It is one in which primary dealers dominate and have repeat relationships with major clients. Moreover, dealers are themselves beholden to the repo market for their own financing needs. For dealers, then, there is a lot to gain from seeing a growth in the size of the repo financing market—even if this means periodic retreats from the more competitive secondary market for Treasuries in which primary dealers have lost ground to high-speed electronic traders.²³²

The consequences of how primary dealers navigate this trade-off is a critical matter for public policy. If primary dealers are motivated to step away from intermediating in secondary markets, their actions call into question the view that Treasuries trade in a market that is deeply and constantly liquid. Rather, it points to one that is chronically vulnerable to the private preferences of its key intermediaries who are unlikely to continue offering resilient tradability at a cost to themselves. More broadly, for public and private financial regulation to remain credible, its intermediation must be able to deliver continued lucrative profit to its major dealers.

C. A Unique Configuration of Unknown Unknowns

As detailed above, primary dealers navigate a tricky and costly task in intermediating across both the repo and secondary market for Treasuries. Opacity limits the ability of a dealer to build a real-time understanding of the activity in the repo market external to that dealer—most importantly, where Treasuries collateral is located, and whether it can be captured and sold in an emergency. Motivation to monitor is low. The secondary market’s limited historic reporting also reduces sight of pockets of disruptive trading—and the arrival of greater competition between primary dealers and newer high-speed automated traders lowers the attractiveness of the secondary market as a place to do vibrant business. Importantly, intermediation represents a source of conflict. Dealers are caught between preserving trillions in passive collateral in the repo market to maintain its safety and soundness—and using cash and Treasuries to supply liquidity to the secondary market. Especially if collateral reuse results in uncertainty about the quality of collateral, primary dealers have every incentive to ring-fence the Treasuries and cash they have for repo operations, even if demand in secondary markets is spiking. Critically, despite dependence on the services of primary dealers to preserve intermediation, they can withdraw from both spaces whenever costs and uncertainties become too high.²³³

This combination of risks represents an unprecedented set of problems for intermediation in the repo and secondary markets. It leaves dealers and policymakers facing many unknowns.

First, as shown in Part I, the repo market has grown its reliance on Treasuries collateral sharply following the 2008 Financial Crisis as a way to privately regulate short-term credit between firms. Whereas an earlier era looked to a variety of riskier assets like mortgage-backed securities, the last decade has observed a marked shift in the direction of Treasuries as favored collateral.²³⁴ With Treasuries now collateralizing around $4 trillion of repo debt, concerns about locking-in and ring-fencing collateral carry special salience given the potential for catastrophic damage to financial stability if this collateral reserve becomes unstable.

Second, post-Crisis regulation also puts special weight on Treasuries as a mandatory asset for capital buffers. As discussed in Part I, Treasuries are particularly important for post-Crisis public regulation, with financial institutions required to maintain deep buffers of high-quality liquid assets. This signal reliance by public regulation raises the stakes for primary dealers to ensure the secondary market is supplied with trading opportunities for those firms that need to liquidate their Treasuries in a financial crunch or to buy Treasuries when a safe asset is needed. As detailed by Vissing-Jorgensen, mutual funds sold more Treasuries in 2020 than they did after the 2008 Financial Crisis, owing to the thicker reserves of Treasuries they held coming into 2020.²³⁵

On the other side, detailed in Part II, post-Crisis reforms also impose these liquidity requirements and capital surcharges on primary dealers themselves and necessitate compliance with regulations that protect these firms from becoming too big to fail. According to some commentators and scholars, these rules can also make primary dealers more hesitant to supply liquidity to the repo and the secondary market, depleting reserves of cash and Treasuries, and falling out of compliance. Importantly, scholars also note that a stricter compliance environment following post-Crisis reforms has reduced primary dealer motivation to support intermediation—and opened the door for other firms to enter the fray. While a broader trend across debt markets, commentators note that non–primary dealers (for example, hedge funds) have stepped into the breach to supply liquidity more actively.²³⁶ If this trend continues, primary dealers could face more information gaps arising from the activities of those that are new to the market as well as greater competition that diminishes their profits from intermediation.

Third, as outlined in Part II, the secondary market for Treasuries has experienced radical shifts, as primary dealers have lost ground to high-speed traders in the interdealer segment. According to one study of the major interdealer trading platform, BrokerTec, eight out of the top ten traders on the venue came from the ranks of HFT firms, rather than primary dealers. Primary dealers have continued to dominate the dealer-client segment. But this rapid waning of their professional power shows that that the secondary market has become more crowded with new entrants, and the incentives of primary dealers to take on costs to keep trading are quickly becoming weaker in the face of competition.²³⁷

Putting these factors together, Treasuries intermediation has newly evolved into an especially complex, contradictory, and costly prospect for primary dealers, policymakers, and regulation. It is also foundational to financial markets and their stability post-2008. This coming together of regulatory need and operational complexity in managing intermediation requires that regulators be equipped to spot and address the risks at the heart of a straining Treasury market structure. As argued below, this is far from the case given the highly fragmented state of current regulatory design.

D. A Breakdown in Regulation

The regulatory framework to oversee the repo and secondary market for Treasuries is ill-equipped to respond to the vulnerabilities underlying their market structure. Supervisory approaches for repo and Treasuries markets are divided between a “securities” model on the one hand (for secondary trading) and a prudential one on the other (for repo). This leaves regulators unable to develop a consolidated approach to oversight that recognizes the interdependence between the repo financing market that relies on Treasuries collateral and secondary trading that needs Treasuries to be capable of being bought and sold to realize their value quickly, cheaply, and at fair prices.

The regulatory framework for secondary trading in Treasuries is institutionally fragmented without any overarching coordination mechanism to guide rulemaking and supervision.²³⁸ As detailed in Part I, unlike equities markets that, for example, fall primarily within the jurisdiction of a single regulator (the SEC), Treasuries lack a single lead overseer. Oversight is shared between at least five major bodies: the U.S. Treasury, NY Fed, the Fed, the SEC, and CFTC. FINRA also oversees securities broker-dealers and is instrumental in data collection from reporting firms after 2017.²³⁹

Fragmentation raises serious concerns in the context of an interconnected, internally conflicted repo and secondary trading market.²⁴⁰ First, information sharing becomes hobbled by institutional barriers and bureaucratic divergences in how information is collected and analyzed.²⁴¹ Consider the so-called “Flash Rally” in the Treasury secondary market. On October 15, 2014, the Treasury secondary market experienced around thirty minutes of aberrant, anomalous trading at the start of the trading day, characterized by prices surging to some of their highest historic levels for inexplicable reasons.²⁴² Eventually, prices reverted to normal but not without first sending capital markets into chaos and confusion.²⁴³ Regulators undertook a thoroughgoing, yearlong joint investigation into the event’s possible causes and implications.²⁴⁴ While the final report did not unearth any smoking gun, the investigation itself was illuminating. During the inquest, commentators singled out the legal and logistical difficulties experienced by different agencies in collecting and sharing information with one another.²⁴⁵ The CFTC, for example, required time to conclude an information-sharing agreement in order to forward its data to other regulators.²⁴⁶ The report further revealed that regulators lacked information to such a degree that they were shockingly unaware of major transformations underway in the Treasury market, specifically, the shift to high-speed, automated trading from a primary-dealer dominated, more analog interdealer market.²⁴⁷

In other words, fragmentation points to serious institutional challenges for regulators seeking to understand the interconnected machinations of the repo and secondary markets.²⁴⁸ Agencies may not feel comfortable or be permitted to share information on those they supervise.²⁴⁹ The 2017 trade reporting regime, instituted in the wake of the Flash Rally, requires that covered securities firms report their data to FINRA.²⁵⁰ Banks, on the other hand, have to provide reports of their trading to banking regulators, suggestive of the especially sensitive nature of bank exposures.²⁵¹ To harmonize the process, FINRA and the Fed have engaged in a yearslong dialogue on coordination of data collection, under which FINRA could acquire bank-reported data as an agent of the Fed.²⁵²

Different regulatory regimes mean that regulators each have varying amounts of information on those they supervise.²⁵³ Whereas primary dealers banks and broker-dealers are overseen by various dedicated banking and securities regulators, like the Fed, the SEC, and FINRA, other major participants like hedge funds are regulated on a much looser basis.²⁵⁴ By design, hedge funds fall under a lighter touch, more opaque regulatory regime with fewer disclosures.²⁵⁵ To be sure, post-2008 rulemaking does extend the regulatory perimeter to cover their activities more fully than before. Notably, bigger hedge funds must provide disclosures on various types of exposures in financial markets in a bid to help regulators map out their systemic footprint.²⁵⁶ But the intensity of their overall regulatory scrutiny is generally far less intense than that faced by banks, broker-dealers, or mutual funds.²⁵⁷ Importantly, within the Treasuries market, hedge funds have generally fallen outside of the reporting obligation for their secondary market trades because they do not fall under the category of broker-dealers or banks.²⁵⁸ This is expected to change, at least for the most active hedge fund Treasuries traders, as the SEC’s new registration and reporting rules take effect. Given the enormity of their exposure to Treasuries and the potential scale and impact of their activities, their historic exclusion from reporting has left regulators without a valuable and essential repository of data. In addition to hedge funds, many high-speed automated traders also do not qualify as FINRA broker-dealers—though again, this may change for more active players as the SEC rulemaking takes effect.²⁵⁹ The erstwhile regulatory regime has nevertheless allowed many such firms to avoid direct reporting of trades in the interdealer market. It is worth highlighting that even though the SEC has taken steps to bridge these gaps by passing new rules to encompass hedge funds and HFT firms within a registration and reporting regime, their chances of future success appear uncertain in view of industry resistance to reforms and potentially drawn-out court challenges.²⁶⁰ A 2019 supplement to the reporting regime requires Treasuries trading platforms to identify traders in records.²⁶¹ As such, regulators can get information on particular securities firms should they need it.²⁶² However, reporting to regulators is not direct—and they must absorb costs to get data on an ex post basis.²⁶³

Gaps in information and roadblocks to cooperation have limited the ability of regulators to share insights on the major risks to Treasury secondary and repo markets. And fragmentation in regulatory design and pockets of opacity are essentially fatal to the enterprise of constructing a picture of the vulnerabilities affecting intermediation and developing ex ante constraints to control the risks.²⁶⁴

In addition to fragmentation, Treasury repo and secondary markets also operate under systems of oversight that diverge in their methodological approaches. As detailed in Part II, the Fed and the NY Fed represent the prudential end of the regulatory spectrum. Focusing on safety and soundness, a prudential approach ensures preservation of systemic safety and soundness as its critical mission. This can mean less emphasis on disclosure and transparency, for example, and more on ensuring that markets remain insulated from the risk of sudden runs and default on credit.²⁶⁵ By contrast, the SEC and FINRA represent quintessential securities markets regulators, offering deft expertise in building efficient and transparent trading markets and protecting investors.²⁶⁶ Instead of financial stability as the core guiding mission, securities market regulators nurture trading markets, underpinned by the dissemination of information, efficient price formation, and capital allocation.²⁶⁷ To be clear, these are generalizations. The SEC, for example, also focuses on financial stability (e.g., by regulating the stability of money market funds that constitute an essential part of the repo market).²⁶⁸ The Fed regularly engages with securities markets to ensure that the infrastructure, such as exchanges, is protected against collapse.²⁶⁹ These generalizations, however, aide in understanding key differences between the purposes and approaches of regulators tasked with overseeing secondary and repo markets for Treasuries.

This divergence can explain why regulators have failed to connect the shared risks facing Treasury repo and secondary markets, and to oversee both in a more consolidated way. Neither the prudential nor the securities-based model neatly fits the secondary or the repo market. For a start, the interdealer secondary market—a fairly classic securities market with heavy and liquid daily turnover—holds enormous systemic implications for the economy. If this market stops working, like in March 2020, a swath of economic actors cannot meet critical prudential needs. Concretely, reliance by public regulation on Treasuries’ liquidity (e.g., HQLA) ties the proper functioning of the interdealer market to the prudential survival of any number of financial firms and the larger system.

Yet the regulatory methods used to oversee interdealer Treasuries trading fit neither a prudential nor a capital markets paradigm and leave risks exposed. Trade-by-trade reporting is of recent vintage (2017)—and only for regulators. Public reporting is limited—with data released only in aggregate form. This reticence to widely disclose potentially sensitive Treasuries trades recognizes the systemic quality of the market. However, other regulatory aspects undermine this focus on curbing systemic risks. Perhaps most importantly, lightly regulated actors are afforded ample latitude to trade in secondary markets without having to report their activities. Hedge funds, especially, are a case in point. But high-speed securities trading firms are another. Now firmly dominant in the interdealer market, such high-speed trading firms have not fallen within the regulatory regime for broker-dealers. Therefore, they have not been subject to reporting rules (but see above for anticipated changes in response to new regulatory measures).²⁷⁰ Crucially, they have typically also been able to skirt other measures designed to address prudential risks—notably, capital requirements on broker-dealer firms that require safekeeping of rainy-day assets.²⁷¹ This leads to a possibility that highly influential traders have been transacting with only a thin base of capital, making them sensitive to losses and liable to exit rather than continue supplying liquidity especially during crisis.²⁷²

Similarly, the regulatory strategy for overseeing repos fails to account for the complex dynamic between Treasuries repo and the secondary market. As detailed in Part II, repo markets are overseen through a decidedly prudential lens. Capital buffers help safeguard against runs and collapse.²⁷³ Collateral plays a pivotal role in reducing default risk.²⁷⁴ Because of this collateral and the fear of runs, real-time detailed disclosure is limited.²⁷⁵ Yet despite this focus on safety and soundness, the workings of the repo market fail to account for the role of the secondary market in maintaining the repo market’s smooth workings.²⁷⁶ This interconnection exists for a number of reasons: (1) if secondary markets experience illiquidity, Treasuries’ prices can become unstable and distorted, impacting the viability of Treasuries as collateral; (2) repo lenders that wish to liquidate Treasuries will find themselves unable to do so in an illiquid secondary market; and (3) if primary dealers cannot buy and sell Treasuries in secondary markets, they may lack the ability to source cash and securities to fulfill repo lending. As seen in March 2020, for example, firms selling Treasuries en masse caused secondary trading to stall and badly disrupted securities prices.²⁷⁷ With the value of Treasuries directly tied to the viability of firm liquidity buffers, a lack of attention to the securities market undermines the functioning of the prudential one.

In summary, this Part shows that public and private regulation’s reliance on Treasuries is subject to a number of failures arising from a flawed system of intermediation. We show that the Treasury-backed repo and secondary trading markets are connected by a common intermediary: the primary dealer. In entrusting maintenance of the trading and repo markets to primary dealers, public and private regulation has failed to account for a number of costs that mean liquidity in both markets becomes tenuous. Primary dealers incur information and monitoring costs, navigate conflict between the needs of the repo versus the secondary market, and attend to their own private business preferences. These challenges are particularly dangerous owing to the needs of a financial regulatory system that puts Treasuries at the center both in public oversight and private self-regulation. In its second contribution, this Part argues that the regulatory framework for the repo and secondary markets is fragmented, inadequate, and insufficiently adaptive to provide consolidated supervision of a connected set of markets. The result is a Treasury market that is relied on for its resilience, but one whose foundations are poorly understood and subject to rapid erosion.

IV. PATHWAYS TO STABILITY

This Article shows that the Treasury market suffers from fragilities in intermediation that makes it unstable and unreliable, casting doubt on the assumption used by regulation to place Treasuries at the center of financial stability. To begin remedying the structural deficiencies identified in this Article, we outline three proposals. Our focus lies in enabling public and private actors to strengthen the quality of liquidity and improve their understanding of the market’s risks ex ante.²⁷⁸ We recognize that if the Treasury market fails—like it did in March 2020 and in September 2019—it will be a near certain recipient of ex post federal emergency assistance. Indeed, in January 2022, regulators announced the creation of a permanent standing facility to lend securities and cash to repo market participants when the need arises.²⁷⁹ Our focus is on taking first steps to develop strong ex ante mechanisms to improve information flows, enhance liquidity, and ensure that primary dealers are well supervised even within a highly fragmented regulatory framework. We suggest (1) developing greater transparency and information sharing in repo and Treasuries trading markets, (2) encouraging major liquidity suppliers—both primary dealers and key HFT traders—to invest in maintaining the liquidity of the market, even in times of distress, and (3) bringing greater consolidation and coordination to the regulatory framework, and requiring regulators to link supervision of the Treasury secondary markets and the Treasuries-backed repo markets more systematically.²⁸⁰

A. Transparency and Prudential Safety

As detailed in Part III, information gaps are endemic within the repo and secondary markets for participants as well as regulators. These gaps obscure an understanding of how repo and secondary trading intersect and what risks are created by dint of this connection. Reform must begin by developing reliable mechanisms for improving transparency and information flows as a first step toward empowering regulators and market participants.

Information gaps are deeply embedded throughout the Treasury market, in both the secondary trading and repo market. Reforms in 2017 and 2019 have brought reporting to secondary markets. But it is limited by significant gaps in coverage (for example, excluding hedge funds and high-speed securities firms). Public, real-time transparency is restricted. Repo markets, opaque by nature, lack systematic, up-to-date reporting.²⁸¹ This allows private parties to avoid thorough due diligence. But it is far from obvious that it is protective in all cases. Collateral reuse creates opaque chains that instill a potentially false sense of confidence in which multiple parties all count on owning a single security. Further, opacity has costs even if transparency also comes with downsides. Market participants may overreact during crises, lacking information, and not knowing with which firms the problems lie.²⁸² Opacity also constrains how flexibly primary dealers manage inventories, respond to the behavior of a variety of clients as well as unknown dealers that are also active in supplying liquidity.

As a first matter, we propose increasing the information and scope of reporting available to regulators and its participants.²⁸³ This applies to both the repo as well as the secondary market. For the repo market, this represents a paradigm shift in approach. However, we believe that it offers a much-needed lever for those in the market to take steps to assess supply and demand of Treasuries/cash more precisely. It also lowers the cost of public surveillance. Regulators remain stymied in their ability to capture real-time data on repo exposures, particularly for bilateral exposures. As Victoria Baklanova writes, supervisors are left to the grind of painstaking and patchy data collection practices that require them to piece together information from weekly or quarterly mandatory disclosures, on-the-ground examinations, or informal reporting by financial firms.²⁸⁴ Such data collection is costly, quickly out-of-date, and imposes analytical costs on account of its lack of standardization and comprehensive coverage.²⁸⁵ To be sure, since late 2019, this situation is improving. Regulators have ramped-up data collection in cleared segments of the repo market. In May 2024, the Office of Financial Research approved a new rule to enhance reporting and data collection in the bilateral repo market.²⁸⁶ But market-wide, real-time data gathering remains elusive for now, and the outcome of future efforts remains uncertain.²⁸⁷

Reporting in this market has a number of benefits. It requires dealers to develop mechanisms to record their repo trades on a real-time, granular basis ex ante, to track the collateral that attaches to a particular repo, and to determine whether collateral attaching to it might be subject to reuse. Reporting can help create systematization in relation to capturing exposures and discipline about understanding the robustness of the collateral. In addition, it can create incentives for primary dealers to be more diligent with respect to understanding how collateral is sourced, whether it might be subject to reuse, how many times, and what the risks of such reuse might be during a period of distress. Importantly, we believe that such information ought to be shared regularly between regulators and the primary dealers (at least) as a group. Key intermediaries ought to develop mechanisms whereby they circulate insights about their repo exposures to one another on a regular basis with the goal of understanding collective exposures, the robustness of collateralization, and the potential market availability of cash and securities in case of need. This allows market participants to share emerging concerns, prepare for problems, and for regulators to also be ready to deal with the consequences of fallout.

Invariably, there will be pushback on a proposal to create transparency in prudential spaces. It goes against the grain of conventional wisdom in regulating prudential risks.²⁸⁸ But, despite attachment to the status quo, regulators have begun to soften their stance on keeping utmost secrecy in banking and prudential areas. For example, in banking, regulators are now increasingly revealing some of the results of bank stress tests.²⁸⁹ Even in the repo market, some public reporting has emerged for its cleared segments.²⁹⁰ While far from full transparency, this easing of traditional fetters against disclosure in banking can hint at potential openness to real-time reporting and information sharing. In addition, regulators and market participants might also balk at the cost of enabling Treasury market transparency given the interconnected complexities of the repo market and its daily size. There is also the ever-present concern that too much disclosure could result in triggering the exact externalities that everyone seeks to avoid—a run that results in a catastrophic drain on the market’s liquidity and forces regulators to have to step in and stop the bleed.

Nevertheless, such concerns are not insurmountable, and while downsides exist, the costs embedded in the status quo are also high. Importantly, the repo market is not hermetically sealed. It does allow for some pockets of reporting (albeit not to the public). In particular, the tri-party repo market—that relies on a formal system of clearing and settlement—allows for greater reporting, collateral tracking, and unraveling of the complexity inherent in trades.²⁹¹ Stated differently, the market is amenable to systematization if parties so choose. In addition, the costs of recording trades, and tracking and reporting collateral, should not be prohibitively daunting. Primary dealers and others already do risk management as individual firms, though not on a standardized basis.²⁹² Notably, regulators routinely look to dealers self-reporting their activities as a means of gaining insights about the market. Surveys are commonplace as part of public efforts to study the ins-and-outs of the bilateral marketplace from those that inhabit it most closely.²⁹³ Moreover, a real-time data repository for the bilateral repo market would save both market participants and regulators from having to perform expensive data collection, analysis, and extrapolation of the possible state of the market on a given day. Rather than guesstimates, parties could rely on a more standard and reliable reserve of information from which to understand an already complex market.

Perhaps most importantly, the centrality of Treasuries to stability means that opacity presents an incalculably high cost in which the market suffers on account of being poorly understood and inadequately protected. As made clear in March 2020, the dislocation in the market cast a pall of doubt among market participants about the resilience of Treasuries during a global crisis.²⁹⁴ Seen from this perspective, failure to understand the market and its dynamics carries not just financial costs, but also implies larger damage from the standpoint of political economy. Finally, to avoid the potential for sudden runs (transparency, it should be noted, may also avoid runs if dealers and others better understand their exposures), data circulation around the market may be staggered and delayed.²⁹⁵ For example, the repository would provide data to a closed loop of recipients (potentially the major dealers) and do so with a delay (perhaps circulating information at intervals during the day, or perhaps at the end of each day). In other words, while transparency and reporting may appear daunting at first glance, there are ways of structuring it that can allow for some aggregation and promote a careful, calibrated approach to information consumption, collation, and analysis.

B. Increasing Resilience in Intermediation

A lack of information can fuel a race to the exit by intermediaries, resulting in liquidity draining quickly and causing distress for investors as well as firms needing to fund themselves. More reporting can provide clarity to dealers when it comes to pricing their risks. But it leaves open the possibility that they exit the market at even small signs of trouble. To ensure dealer engagement in maintaining Treasury market resilience, we suggest exploring tools to incentivize market makers to assume an affirmatively active role during periods of crisis—especially in the secondary market. As highlighted by the events of March 2020, the secondary market can face enormous strain during crisis as investors rush in to transact in Treasuries. Resilience here—when the market does not buckle under stress—helps ensure that Treasuries can perform their regulatory role as safety buffers. For the secondary market, such a duty would cover both primary dealers as well as high-speed security firms. Both types of dealers are vulnerable to exiting the market rapidly, causing a decline in available liquidity and distortion in prices.²⁹⁶

An affirmative duty on key dealers to remain trading can help to build more certainty around liquidity provision in the Treasury market. To be sure, regulators face a trade-off in introducing such affirmative duties. Imposing higher transaction costs on traders can discourage them from entering the market or encourage them to pass the costs of liquidity onto investors that use the Treasury market. On the other hand, affirmative duties can be beneficial, especially given the importance of securing liquidity for Treasuries. If dealers can simply leave depending on their own preferences, they will be likely to exit exactly when the Treasury market is most necessary—during a crisis. Investors may come to regard the perception of its fail-safe liquidity as illusory, primed to dry up whenever danger strikes.

Historically, regulators have not required primary dealers to keep the market going in a crisis—perhaps assuming that they would do so anyway. Given their long-assumed dominance, perhaps this assumption could be justified. But it cannot hold now. As detailed in this Article, the Treasury market as a whole is facing new pressures, created by heavy dependence by public and private regulation on its services. In addition, the arrival of high-speed trading firms as well as nontraditional types of repo intermediary (for example, hedge funds) add to the pressures facing primary dealers and can contribute to how they navigate private decisions about continuing to provide liquidity.

An affirmative duty to maintain market liquidity can offer greater certainty that dealers make a real effort to stay, rather than simply exiting the market. Such a duty would require an affirmative obligation on traders to remain, particularly during crises.²⁹⁷

A duty to remain trading—applied to the most active dealers (primary dealers and high-speed securities firms alike)—can help to preserve price continuity and assure investors of resilient liquidity. Most importantly, it can motivate those charged with staying to play a role in monitoring and safeguarding operations through ex ante private oversight. Those that must trade, under a new duty, in all conditions ultimately bear the costs of any fallout from disruptive trading strategies or other traders that are creating outsize risks for others. This duty ought to prompt dealers to pay attention to the quality, sophistication, and reliability of their trading behavior. In this way, a duty to remain changes the trade-off governing the behavior of large Treasuries traders. Faced with the prospect of bearing potentially heavy losses if the market goes awry, taking risks starts to look more costly. Currently, easy exit and light-touch regulation have made taking careless or deliberate risks a low-cost option.²⁹⁸

To be clear, an affirmative duty to remain is not an unlimited one, forcing firms to comply to the point of making themselves insolvent, fighting enormous fires in Treasuries at a cost of their own existence. For example, some nontraditional dealers like HFT traders tend to be smaller and less capitalized.²⁹⁹ They cannot be expected to deplete their entire balance sheet to remain trading. Bigger bank dealers will have a more intensive obligation owing to their capacity to remain trading longer. That being said, a duty to remain is also likely to result in otherwise thinly capitalized firms to have to develop deeper capital buffers in readiness. Those subject to a duty will be the most active traders. Ensuring that they are better buffered provides assurance that those charged with maintaining Treasuries intermediation have the capacity to do so.

Practically, firms are likely to resist such a duty. If they have to pay large sums to selflessly protect the market, they will rationally demand a large ex ante price from the U.S. Treasury for their commitment. And regulators might consider how they ought to compensate traders that become subject to this duty. For example, one option might be to afford them special access to information on Treasuries trading order flow and repo operations as a way to help them to calibrate their risk. As above, this can lower the costs of monitoring and also help dealers to modulate their supplies of Treasuries and cash for secondary trading.

Importantly, this idea is not new to markets—earlier eras had once demanded that a designated group of traders withstand losses to protect markets in times of stress. Those that earned the designation also enjoyed certain privileges and status as a result.³⁰⁰ While such a duty may not be critical in other markets in which liquidity provision is voluntary, introducing it for Treasuries is more than justified given the crucial importance of ensuring trading continuity in Treasuries in crises. During a crisis, affirmative liquidity provisions would clearly provide greater assurance of resilience. It also forces dealers to more fully confront the responsibility that comes with the fact of transacting in securities whose workings possess near existential significance for the global economy, further helping to strengthen market integrity.

C. Fixing the Breaks in Regulation

Developing better information flows and ensuring the market’s resilience must also be accompanied by reform at the level of public oversight.³⁰¹ This Article points to the need to develop a coordinated and hybrid approach to oversight for the Treasury market that is capable of overcoming tension between different regulatory philosophies (prudential versus market based). Remedying the ill effects of institutional fragmentation is necessary as a condition precedent to more fully understanding how the market works, identifying the risks and producing a set of rules that can mitigate structural vulnerabilities at the intersection of the repo and secondary markets.

As argued in this Article, the need for coordination between regulators takes on urgency in light of the interlinkages connecting Treasury repo and secondary markets. With a common set of intermediaries—the primary dealers—Treasuries-backed repo and the secondary markets depend on one another for each to be able to fulfill its respective mission. A patchwork system of oversight makes little sense within an ecosystem in which the trading of high-speed securities firms impacts the liquidity of collateral propping up the four-trillion-dollar Treasuries-backed repo market; or where the enormous collateral and cash needs of the repo market put the resiliency of the Treasury trading markets in jeopardy. Rules to simply govern one or the other market by itself are not enough. Rather, this Article makes clear that the Treasury market exists as a whole, underpinned by the trading and funding mechanisms working together to deliver what is universally recognized as the lynchpin of the world’s financial order.

A near-term fix to the problem of regulatory fragmentation and ad hocism lies in making FSOC expressly into a coordinating supervisory agency for Treasury and repo markets.³⁰² Created by post-2008 rulemaking, the FSOC is designed to create a layer of consolidation over the patchwork of U.S. financial regulators. With the 2008 Financial Crisis showcasing systemic interconnections in financial markets, the FSOC’s creation offers an administrative response to the risks of agencies working just on single parts of an otherwise entangled system.³⁰³ By requiring the FSOC to bring multiple regulators together, it provides a way to ensure that regulators share information, develop a plan for reform, scrutinize and debate their own supervisory methodologies, and arrive at a mode of overseeing Treasuries that recognizes the linkages between trading and repo markets. As shown in this Article, this means developing a more hybrid regulatory strategy that is capable of moving beyond blunt prudential versus securities market approaches.

Introduction of the FSOC as a coordinating regulator for Treasuries is only a first step toward creating a governance model for public oversight. Even with the FSOC, agencies may struggle to work together. They may fail to share data or coordinate. Opacity may hamper attempts to understand how risks move between repo and Treasuries trading. In the absence of a strong system of supervision, the Treasury market may well just be left to depend on the Fed’s ex post interventions in a crisis. But disruptions to U.S. Treasury secondary and Treasury-backed repo markets (for example, in March 2020) show that the current fragmentation and disorganization between regulators is untenable and harmful. Coordination through FSOC begins a process of deeper institutional reform.³⁰⁴ Further, systematized transparency (for example, through disclosure and reporting) offers a way to help bridge the difficulties faced in developing a hybrid approach to overseeing the interlinkages between Treasuries-backed repo and Treasuries trading markets. With all regulators able to share in data from both repo markets and Treasuries, understanding interdependencies should become practicable. Information—in addition to saving collection costs and bridging institutional hurdles to communication—can foster collective focus on a connected marketplace. This approach of co-opting banking and securities regulators and ensuring greater coordination through the FSOC offers a way out of the bifurcated approaches that treat repo and trading markets as basically distinct and subject to separate modes of scrutiny.

This Part proposes a three-part solution to place Treasury markets on a stronger footing to better withstand the weight this market carries for the financial system and the economy. It proposes first developing stronger information flows to increase reporting and transparency, affording primary dealers greater ease in monitoring exposures as well as giving regulators a clearer idea about the market’s structural weaknesses in real time. In addition, an affirmative obligation on major dealers to remain trading creates confidence in the resiliency of liquidity across the marketplace, especially during crises. Finally, we advocate for regulatory oversight that can bridge fragmentation and offer a more consolidated, coordinated system of supervision. The FSOC provides a convening authority. But, looking forward, fixing the fractures in regulation would help to ensure that the Treasury market’s overseers are well positioned to match the realities of its critical importance to financial market stability.

CONCLUSION

Financial stability rests on a central idea that Treasuries represent a bulwark against distress, representing the foremost risk-free asset anywhere on the globe. Free of default risk and trading in a market with supposed plentiful liquidity, public and private regulation are anchored to Treasuries for their function and assume that Treasuries will protect firms and markets from collapse. In this Article, we show why this assumption is incorrect. While Treasuries themselves are viewed as risk-free, the market that distributes them is not. It is pervasively subject to flawed intermediation. Importantly, the demands of public and private industry regulation are internally in conflict, crystallizing the harms of faulty intermediation. Despite their importance, these risks in the secondary and repo markets remain undertheorized and poorly understood, leaving Treasuries perpetually at risk of failing to perform their protective role. Without real reform, the first steps to which we outline here, we worry that Treasuries cannot live up to their reputation, undermining their promise for regulation as the anchor in financial system stability.

APPENDIX: FIGURES

Figure 1.A. Bilateral Repo Market Collateral Outstanding ($ Trillions)

Sources: SIFMA Rsch., supra note 26 (providing figures for the bilateral repo and reverse repo markets through 2021); Sec. Indus. & Fin. Mkts. Assoc., supra note 21 (providing data through July 2024).

Figure 1.B. Tri-Party Repo Market Collateral Outstanding ($ Billions)

Source: Fed. Rsrv. Bank of N.Y., supra note 26 (select “Total” and “US Treasuries excluding Strips”).

Figure 2. Primary Dealer Repos and Reverse Repos Outstanding ($ Billions)

Source: Fed. Rsrv. Bank of N.Y., supra note 209 (providing raw data on trades and positions of primary dealers).

Figure 3.A. Secondary Market Trading of Primary Dealers: Daily Inventory Risk Exposure ($ Billions)

Source: Fed. Rsrv. Bank of N.Y., supra note 209 (providing raw data on trades and positions of primary dealers).

Figure 3.B. Secondary Market Trading of Primary Dealers: Daily Trading Volume ($ Billions)

Source: Fed. Rsrv. Bank of N.Y., supra note 209 (providing raw data on trades and positions of primary dealers).

Figure 4. Daily Changes in Primary Dealer Treasury Holdings: Repo Market vs. Treasury Secondary Market ($ Billions)

Source: Fed. Rsrv. Bank of N.Y., supra note 209 (providing raw data on trades and positions of primary dealers).

97 S. Cal. L. Rev. 1349

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Pradeep K. Yadav*

* W. Ross Johnston Chair and Professor of Finance, University of Oklahoma.

Yesha Yadav†

† Professor of Law and Milton R. Underwood Chair, Associate Dean & Robert Belton Director of Diversity, Equity and Community, Vanderbilt Law School. We are deeply grateful for thoughtful comments, insights, and conversations. We thank Dan Awrey, Jonathan Brogaard, Peter Conti-Brown, Chris Brummer, Nakita Cuttino, Anna Gelpern, Evan Gerhard, Patricia McCoy, Mitu Gulati, Rory van Loo, Michael Kang, Lev Menand, Robert Rasmussen, Morgan Ricks, Paolo Saguato, Nadav Shoked, Danny Sokol, Kumar Venkataraman, Jialan Wang, Mark Weidemeier and participants at the Wharton School of Business Conference on Financial Regulation, the Vanderbilt Law School Annual Conference on Central Banking and Financial Regulation and faculty workshops at the University of Illinois Business School, Northwestern Law School, and USC Gould School of Law. Runzu Wang and Doris Zhou at the University of Oklahoma provided excellent research assistance.

War and Coercion

September 2024September 2024Marcela Prieto Rudolphy*

Compelled service in hostile forces is prohibited by International Humanitarian Law. In the context of an international armed conflict, it is a war crime to compel prisoners of war (“POWs”) or other protected persons to serve in the forces of a hostile power and to compel participation in military operations against the person’s own country or forces. However, conscription—or compelled service in military forces—of a state’s own citizens is not prohibited under international law. In fact, conscription, some aspects of which are regulated by International Human Rights Law, is generally legitimate.

This asymmetry—whereby compelling protected persons to fight or serve in the forces of a hostile power is a war crime, but compelling one’s own citizens is not—has puzzling implications. Take the example of Russia’s invasion of Ukraine. It is a war crime for Ukraine to compel Russian POWs to fight on behalf of Ukraine, even though Ukraine is fighting a lawful war of self-defense. Yet, it is not a war crime for Russia to compel its own citizens to fight, even though Russia is fighting an unlawful war of aggression.

Can we make moral sense of this asymmetric regime regarding compelled service in armed forces? Is the regime morally coherent? In order to make moral sense of the regime, two arguments must succeed. First, we must argue that it matters greatly whether individuals are compelled to fight in hostile forces or in the armed forces of their own state. Second, we must argue that the nature of the war they are compelled to serve in—whether the war is legal or illegal—does not matter at all.

This Article argues that the second argument cannot but fail, but it is possible to argue that compelled service in hostile forces is morally wrong and often morally worse than compelled service in the armed forces of one’s own state. It is morally worse because it is morally worse to harm those who are vulnerable and defenseless, like those who have fallen into the hands of a party to the conflict. And it is morally wrong because noncitizens lack duties to fight on behalf of other states. However, what makes compelled service in hostile forces morally wrong also makes conscription morally wrong. That is, what is wrong about compelled service in hostile forces is also present in the state’s conscription of its own citizens.

This Article thus argues that the current regime concerning compelled service in armed forces is, in fact, morally incoherent. To render the regime morally coherent, international law should (1) appropriately distinguish between conscription to serve in legal wars and conscription to serve in illegal wars, and (2) generally prohibit compelled service in armed forces.

INTRODUCTION

Russia has been conscripting men from occupied Crimea to serve in Russian armed forces for several years. During the ninth conscription campaign, which ended in June 2012, at least 3,300 men from Crimea had been enlisted, bringing the total of forced conscripted men to at least 18,000.¹

Conscription in occupied Crimea was still ongoing in 2019.² By 2022, The Guardian reported that men in the Donbas region were being forcibly conscripted to serve in the armed forces of the self-declared Donetsk Peoples Republic and Luhansk Peoples Republic.³ At the same time, Russia has been conscripting its own citizens to fight in Ukraine.⁴

In times of war, conscription of individuals in occupied territory and the state’s conscription of its own citizens share an important feature. They both involve a severe restriction on individuals who are called on to fight, and possibly to kill and die, on behalf of the state. However, although they share this important feature, international law treats them differently. In fact, one might say that there is an asymmetry in how international law treats compelled service (or conscription) to serve in armed forces. Conscription of protected persons to serve in hostile forces, when done by an occupying or detaining power, is a war crime under International Humanitarian Law (“IHL”).⁵ Conscription of the state’s own citizens to fight a war is, however, not only not a war crime, but is also recognized by international law as the state’s prerogative.⁶

Perhaps surprisingly, this asymmetry has received almost no attention in international legal scholarship. Perhaps even more surprisingly, the crime of compelled service in hostile forces and the ethics of conscription have also received very little attention, both in international legal scholarship and political theory. Yet the asymmetry regarding compelled service in armed forces (or the asymmetry regarding conscription) present in international law has some puzzling implications.

Take the example of Russia’s invasion of Ukraine. Russia’s conscription of its own citizens to fight its unlawful war of aggression is permitted by international law.⁷ By contrast, it is a war crime for Ukraine to compel Russian prisoners of war (“POWs”) to fight on behalf of Ukraine, even though Ukraine is fighting a lawful war of self-defense. Even more so, if Russian citizens voluntarily decided to join Ukrainian armed forces to fight against Russian aggression—and some of them have⁸—they are not protected by international law and could be prosecuted by Russia. In fact, in September 2022, Russia toughened up penalties for voluntary surrender to enemy forces, desertion, and refusal to fight by up to ten years in prison.⁹

International law thus distinguishes between compelled service in hostile forces and compelled service in the armed forces of one’s own state—prohibiting the first but allowing the latter—but fails to distinguish between compelled service in legal wars and compelled service in illegal wars. The distinction drawn by international law suggests that there is a normatively relevant difference between compelled service in hostile forces and compelled service by one’s own country—a difference significant enough to permit the latter and make the first a war crime. And it also suggests that there is no normatively relevant difference based on whether the wars one is forced to fight are legal or illegal.

This asymmetry demands a justification. We ought to try to make sense—moral sense—of the international legal regime on compelled service in armed forces. This is not the same as attempting to explain why the regime is the way it is. That explanation might be historical in character if, for example, states could agree regarding the prohibition on compelled service in hostile forces but could not agree—or did not want to agree—regarding the state’s conscription of its own citizens or regarding the relevance of whether the wars individuals are compelled to serve in are legal or illegal. And that historical explanation might provide a moral justification for the adoption of the prohibition on compelled service in hostile forces.¹⁰ For example, if we think compelled service in armed forces is always wrong and should be prohibited, but states could only agree to prohibit compelled service in hostile forces, we might argue that it is better to prohibit one morally wrong behavior than to prohibit nothing at all.

However, the question this Article is concerned with is not a question about the historical explanation of the current international regime on conscription, nor a question about whether we can justify its adoption. It is a question about its content. Can we make moral sense of this asymmetric regime regarding compelled service in armed forces during times of war? Is the regime morally coherent?

This Article thus brings moral and political philosophy to bear on international law.¹¹ It is concerned with the relationship between international law and morality and, in particular, with the question of how law ought to be if it wishes to be morally coherent. By moral coherence, I am referring to the idea that a legal regime (like the regime on conscription) should be complete; that is, it should equally prohibit behaviors that are similarly wrongful instead of failing to prohibit things that are as, or more, wrongful than the behaviors it already prohibits.¹² And a legal regime should also “make moral sense,” that is, it should be morally intelligible, in the sense that it does not fail to take into account important moral reasons in favor of and against prohibiting certain behaviors.

In order to make moral sense of the international legal regime on conscription, two arguments must succeed. First, we must argue that it matters greatly whether individuals are compelled to fight in hostile forces or in the armed forces of their own state. Second, we must argue that the nature of the war that individuals are compelled to serve in—whether the war is legal or illegal—does not matter at all.

These are difficult arguments to make. This Article will argue that the second argument is impossible to make; it cannot but fail. Whether individuals are forced to fight legal or illegal wars is morally significant and should be accounted for. The first argument is more plausible: it is possible to show that compelled service in hostile forces is often morally worse than compelled service in the armed forces of one’s own state and that compelled service in hostile forces itself is morally wrong. It is morally worse because it is morally worse to harm those who are vulnerable and defenseless, like those who have fallen into the hands of a party to the conflict, and because it is morally worse to be coerced to fight against those we care about. And it is morally wrong because noncitizens lack duties to fight on behalf of other states.

However, these arguments fail to support the current regime. This is so because the fact that compelled service in hostile forces is morally worse than the state’s conscription of its own citizens cannot show, on its own, that the latter is morally permissible. The fact that something is morally worse than something else says nothing about whether what is morally better is permitted. Thus, showing that compelled service in hostile forces is often morally worse than the state’s conscription of its own citizens cannot explain why compelled service in hostile forces is prohibited, but the state’s conscription of its own citizens is allowed. And the second argument, which shows that compelled service in hostile forces is morally wrong, also fails to explain why conscription of a state’s own citizens is morally permissible. This is so because citizens often lack duties toward their own states to kill and die on its behalf. That is, what is wrong about compelled service in hostile forces is also present in the state’s conscription of its own citizens.

This Article makes then three claims, which are related but logically independent from each other. First, it is morally wrong to conscript individuals to fight wars of aggression, regardless of whether the citizen’s state or hostile forces do so. Second, compelled service in hostile forces is often morally worse than the state’s conscription of its own citizens and is also morally wrong. Third, conscription by the state, even to fight legal wars, is also often morally wrong. This Article thus concludes that the current regime concerning compelled service in armed forces is, in fact, morally incoherent.¹³ It is morally incoherent because it is incomplete and cannot be made sense of.¹⁴ It is incomplete because it fails to criminalize or prohibit conduct (the state’s conscription of its own citizens) that is similarly wrong when compared to what it already criminalizes (compelled service in hostile forces). And it cannot be made sense of because it fails to distinguish between legal and illegal wars, so that states are allowed to compel their own citizens to fight illegal wars.

The fact that the regime on compelled service is morally incoherent does not mean that the compelled service in hostile forces prohibition (“CSHF prohibition”) lacks value or is morally misguided. The CSHF prohibition, this Article will argue, protects fundamental rights and interests. However, it is incomplete. It is that incompleteness that makes the current regime incoherent. To render the regime morally coherent, international law should (1) appropriately distinguish between conscription to serve in legal wars and conscription to serve in illegal wars, and (2) generally prohibit compelled service in war. The latter might seem entirely utopian. It might also make it harder for states to fight wars—possibly even lawful ones. But lawful (and just) wars are the exception, and conscription to fight in war imposes a severe restriction on individuals’ freedom. Even if international law never comes to prohibit the state’s conscription of its own citizens, there are powerful moral reasons for doing so. The fact that such a prohibition is utopian is not a (moral) reason against it.¹⁵

The remainder of this Article proceeds as follows. Part I gives a brief overview of the international regime on compelled service in armed forces, distinguishing between compelled service in hostile forces and the state’s conscription of its own citizens. Part II argues that the regime’s failure to distinguish between conscription to serve in legal wars and conscription to serve in illegal wars cannot be defended. At the very least, international law should prohibit states from conscripting their own citizens to fight wars of aggression, and the illegal nature of the war should be an additional aspect of the crime of compelled service in hostile forces. Part III tries to make sense of the fact that international law considers compelled service in hostile forces to be significantly worse than the state’s conscription of its own citizens. It argues that although there is a plausible case for why compelled service in hostile forces is more wrongful, or morally worse, than the state’s conscription of its own citizens, this argument cannot support the latter’s permissibility. And some of the arguments that show why compelled service in hostile forces is morally wrong put into question the permissibility of conscription generally. Part IV discusses what it would take for the international legal regime on conscription to be morally coherent. It argues that (1) international law should make it a war crime for states to conscript their own citizens to fight in illegal wars; (2) the unlawfulness of the war in compelled service in hostile forces should be an additional aspect of the crime; and (3) there is a pro tanto reason for international law to generally prohibit conscription to fight in war.

I. THE INTERNATIONAL LEGAL REGIME ON CONSCRIPTION

A. Compelled Service in Hostile Forces

Compelled service in hostile forces was not always prohibited and was, in fact, a common practice across different cultures.¹⁶ POWs—that is, those combatants who had been captured, due to surrender or injury, by enemy powers—were thought to have forfeited their lives by surrender or capture, and, in practice, they were often required to join the forces of their captors.¹⁷

The CSHF prohibition was introduced into treaty law with the Hague Regulations of 1899. Article 44 of the Hague Convention of 1899 prohibits the compulsion of the population of occupied territory to take part in military operations against their own country.¹⁸ The Hague Convention of 1907, Article 23(h), prohibits compelling the nationals of the hostile party to “take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of war.”¹⁹ This provision is limited to nationals of the hostile party.²⁰

Later, the Geneva Conventions also included the CSHF prohibition. Under the Fourth Geneva Convention, it is a grave breach for an occupying power to compel protected persons to serve in its armed or auxiliary forces.²¹ Protected persons are “those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”²² And Article 147 states that it is a grave breach to compel “a protected person to serve in the forces of a hostile Power,”²³ which is not limited to situations of occupation, but applies generally in the context of international armed conflicts (“IACs”).²⁴ The Third Geneva Convention, relative to the “Treatment of Prisoners of War,” provides that compelling a POW or a protected person to serve in the forces of a hostile power is a grave breach of the conventions.²⁵ Note, however, that while compelled service in hostile forces is a war crime, enlistment that is the result of pressure or propaganda is a violation of the Fourth Geneva Convention, but not a war crime.²⁶

The CSHF prohibition is also contained in the statutes of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Court (“ICC”).

The statute of the ICTY expressly included “compelling a prisoner of war or a civilian to serve in the forces of a hostile power” as part of the grave breaches of the 1949 Geneva Conventions under its jurisdiction.²⁷ However, there were no convictions that relied exclusively on a violation of this provision, and no indictments for compelling POWs or civilians to serve in the forces of a hostile power.²⁸

The Rome Statute for the ICC also includes the prohibition in question. It distinguishes four categories of war crimes²⁹: (1) grave breaches of the Geneva Conventions in the context of IACs;³⁰ (2) other serious violations of IHL contained in the Hague Conventions, Additional Protocol I to the Geneva Conventions, and the 1925 Geneva Gas protocol;³¹ (3) serious violations of Article 3 common to the Geneva Conventions in the context of non-international armed conflicts (“NIACs”);³² and (4) other violations of IHL in the context of NIACs.³³

The selection of war crimes to be ultimately included in the Rome Statute was based on two considerations: first, the norm should be part of customary international law (“CIL”); and second, the violation of the norm should give rise to individual criminal responsibility under CIL.³⁴

The crime of forced service in hostile forces is enshrined in Articles 8(2)(a)(v) and 8(2)(b)(xv) of the Rome Statute. The former states that it is a war crime to compel a POW or other protected persons to serve in the forces of a hostile power in the context of an IAC.³⁵ The latter makes it a war crime to compel participation in military operations against a person’s own country or forces in the context of an IAC.³⁶ The expression “forces” should be given a broad interpretation, and forced service is prohibited not only regarding forces hostile to the individual’s own country, but also regarding allied countries and forces.³⁷

The first provision—Article 8(2)(a)(v)—effectively combined the language of the Geneva Conventions with Article 23 of the 1907 Hague Regulations.³⁸ The second one is based solely on Article 23 of the 1907 Hague Regulations.³⁹

Finally, the CSHF prohibition has now crystallized into CIL, at least in the context of IACs. The International Committee of the Red Cross’s (“ICRC”) statement on the latter includes, in Rule 95, the prohibition on uncompensated or abusive forced labor, and it specifies that compelling persons to serve in the forces of a hostile power is a specific type of forced labor that is prohibited in IACs.⁴⁰

Many countries incorporate similar prohibitions in their military manuals and criminal codes.⁴¹ And, in 2005, the Israeli Supreme Court found that the IDF’s “Early Warning” procedure was at odds with international law, in part because it ran afoul of “a basic principle, which passes as a common thread running through all of the law of belligerent occupation,” consisting of “the prohibition of use of protected residents as part of the war effort of the occupying army.”⁴² The “Early Warning” procedure stipulated that IDF soldiers who wished to arrest a Palestinian suspected of terrorist activity may be assisted by a local Palestinian resident, who would warn the arrestee of possible harm to themselves or those present when the arrest took place.⁴³ The procedure could only be used when it posed no risk to the Palestinian resident, and the latter consented to it,⁴⁴ but the Court found that, given the inequality between the occupying force and the local resident, consent was unlikely to be real.⁴⁵

B. Conscription of the State’s Own Citizens

Although forced labor is prohibited under International Human Rights Law, conscription is not treated as an instance of it.⁴⁶ Conscription—or compelled service in military forces—of a state’s own citizens is not prohibited under international law, except in the case of children, in which case it is a war crime.⁴⁷

Conscription is well accepted in international law regarding a state’s own citizens. Voluntary enlistment and service in foreign forces is also not a violation of international law.⁴⁸ At the Hague Conference in 1907, the German delegation wanted to incorporate an article stating that belligerent parties could not ask neutral persons to render them war services, even if it was voluntary, which was supported by the United States.⁴⁹ The proposal did not succeed. More recently, in 2022, Russia issued a law that facilitates the attainment of Russian citizenship for foreigners who voluntarily enlist in the Russian army for at least a year.⁵⁰

Regarding the conscription of noncitizens with permanent residence, the law is less settled. In fact, the United States drafted permanent residents at least during the Korean and Vietnam Wars. In both, the United States required military service of every non-U.S. male citizen admitted to permanent residency and actually residing in the United States for more than a year.⁵¹ Often, the United States conscripted resident foreigners unless they agreed to forfeit future claims to citizenship.⁵²

During the course of the two World Wars, the main Allied belligerents also conscripted nationals of other states, much to the protest of the states in question.⁵³ Opposition was based on the general principles of international law, but more often, it was based on treaties that ensured states would not conscript each other’s foreign nationals.⁵⁴ Sometimes, treaties were signed with the opposite purpose: in the course of World War II, the Allies entered into treaties with the United States to secure that nationals of the Allies residing in the United States would serve in either the forces of the United States or of their own countries.⁵⁵

Thus, it is fairly clear that conscription of resident noncitizens is not a war crime under international law, even though it might be prohibited on account of bilateral international treaties. But it is unclear whether a prohibition on conscripting resident noncitizens has crystallized in CIL or whether it remains a rule of comity, as suggested in the 1970s by Frank Upham and Charles E. Roh, Jr.⁵⁶

Regarding a state’s own citizens, excepting children, conscription is well accepted by international law, both as a general practice in times of peace and as a practice in times of war. The practice of conscription itself has an old history, and after the two World Wars, it remained the norm in many countries.⁵⁷ With the end of the Cold War, the debate about universal military conscription regained force again, and at the beginning of the 1990s, France, the Netherlands, and Belgium abandoned the system of conscription, the universal draft, or both.⁵⁸ In the process of European reintegration, military conscription largely disappeared.⁵⁹ Belfer suggests that this has to do with the fact that security identities in post-Cold War Europe are increasingly forged by cosmopolitan values.⁶⁰

Nonetheless, debates around conscription still occur in the public space, and, in the United States, resurfaced during the wars in Afghanistan and Iraq.⁶¹ Indeed, some commentators worried that reliance on all-volunteer forces (“AVF”) would be insufficient to satisfy the demands of war in those countries.⁶²

The decreasing practice of conscription in many countries has led some to speak of a “crisis of conscription.”⁶³ There have also been increases in figures for conscientious objection in some countries like Italy, Spain, and Germany.⁶⁴ But protest and resistance to the draft or to conscription have been common in different contexts and cultures,⁶⁵ and the discourse of crisis is disputed. Leander and Joenniemi, for example, argue that the landscape of conscription is not homogenous, and the so-called crisis of conscription can take different forms, not all of which involve abolishing conscription.⁶⁶ Further, Leander is skeptical that conscription as a practice is coming to an end.⁶⁷

At least legally, conscription, understood as service in military forces during times of peace or during times of war (in the latter case, the practice might be called “the draft”), is still recognized as the state’s prerogative, following from the state’s right to self-defense and sovereignty.⁶⁸ Conscription by non-state groups is, by contrast, prohibited.⁶⁹

Nonetheless, in recent years, a right to conscientious objection has started to crystallize.⁷⁰ Both the Human Rights Committee and the UN Human Rights Council have recognized a right to conscientious objection to military service, based on the right to freedom of thought, conscience, and religion enshrined in Article 18 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.⁷¹Human Rights Council reiterated the view that there is a right to conscientious objection to military service, even though a number of states still do not recognize it.⁷² And the European Court of Human Rights, which, previous to 2000, did not recognize the right to conscientious objection to military service, has also adopted the view that conscientious objection is an aspect of the right to freedom of thought, conscience, and religion.⁷³

By contrast, selective conscientious objection, which accepts the legitimacy of some military action but objects to particular instances of it, is not recognized as a right under international law.⁷⁴ Still, Amnesty International has adopted cases of selective conscientious objection, which have arisen in places like South Africa and Israel.⁷⁵

Finally, in some cases, the consequences following from objecting or evading conscription can amount to persecution for the purposes of being recognized as a refugee. In its 2014 guidelines on the issue, the Office of the United Nations High Commissioner for Refugees (“UNHCR”), consistent with international law, recognized the rights of states to require citizens to perform military service for military purposes, as well as the rights of states to impose penalties on those who avoid or desert military service, provided that “their desertion or avoidance is not based on valid reasons of conscience” and that the penalties and associated procedures in question comply with international standards.⁷⁶ In the context of refugee status, the UNHCR guideline states that persecution against draft evaders, deserters, or conscientious objectors might occur in certain circumstances, such as if there is a risk of threat to life or freedom or other serious human rights violations.⁷⁷ In those cases, those who selectively object to participating in military service in a conflict contrary to the basic rules of human conduct or in an unlawful conflict and those who object to the means and methods of warfare would be covered, provided that certain circumstances obtain.⁷⁸ And the Court of Justice of the European Union held in 2020 that conscription in a conflict characterized by the repeated and systematic commission of war crimes and crimes against humanity can be assumed to involve the commission of such crimes.⁷⁹ The Court also concluded that there is a strong presumption that the prospect of punishment for refusal to fight in such circumstances would amount to persecution for the purposes of refugee status.⁸⁰

In sum, while compelled service in hostile forces is a war crime, states have the right to demand of their own citizens that they serve in their military forces during times of war and peace. The only exceptions to the scope of that right are the conscription of children and the right to conscientious objection.

In other words, international law draws a significant distinction between compelled service in hostile forces and compelled service in the armed forces of one’s state. And it also fails to distinguish between legal and illegal wars. As a result, the current regime makes it a war crime to compel protected persons to fight in hostile forces, even if the latter are engaged in lawful wars. And it makes it a state’s prerogative to conscript its own citizens to serve in its armed forces, regardless of whether the wars they are forced to fight are legal or illegal.

There is thus a question of whether the international legal regime on conscription can be rendered morally coherent. In order to do so, we would need to successfully claim that (1) the nature of the wars that people are forced to fight is irrelevant and (2) that it is much worse to be forced to fight by hostile forces than it is to be forced to fight by one’s own state. Let us take each of these arguments in turn.

II. LEGAL AND ILLEGAL WARS

The international law on conscription fails to distinguish between illegal and legal wars. This suggests that this distinction is normatively irrelevant—that for the purposes of conscription, whether in hostile forces or the armed forces of one’s state, the fact that the war is legal or illegal does not matter at all—and does not alter our moral evaluation of the facts. This claim, however, is highly implausible. Consider the following implications of the regime.

First, under the current regime, compelled service in hostile forces is a war crime. This will be the case regardless of whether those hostile forces are engaged in lawful or unlawful uses of force. That is, under the present regime, it would be equally wrong for Ukraine to compel Russian POWs to fight against Russia as for Russia to compel Ukrainian POWs to fight against Ukraine.

Second, because the state’s prerogative to conscript its own citizens also fails to distinguish between legal and illegal wars, under the present regime, a state that conscripts its own citizens to fight an unlawful war of aggression commits no international crime. In fact, the state’s behavior is arguably not even prohibited by international law. As a result, under the present regime, Russia acts permissibly when it conscripts its own citizens to fight against Ukraine.

Third, because the prerogative to conscript individuals belongs only to the state, conscription by non-state armed groups is prohibited by international law. This implies that if non-state armed groups were operating in Ukraine or Russia and forcing individuals to fight against Russia, they would be acting as wrongfully as non-state armed groups conscripting individuals to fight for Russia.

Finally, the regime also has implications for the treatment of individuals who voluntarily join foreign forces. Under international law, service in foreign forces is not prohibited, but it is also not protected. As a result, individuals who join foreign forces to fight a legal war—as some Russians are doing right now⁸¹—do not violate international law. Yet, international law does not protect them from the sanctions that their states might impose on them, including criminal punishment.

The current regime suggests that the nature of the wars one is forced to fight does not matter at all or does not matter enough to make a significant normative difference. It suggests that what matters is solely the identity of those who coerce individuals to fight: one’s state or hostile states. But this is highly implausible. Suppose the CSHF prohibition is justified, in the sense that it is true that compelling service in hostile forces is wrong. That is, suppose the CSHF prohibition is a mala in se offense in international criminal law.

The present regime suggests that compelled service in hostile forces that are fighting a legal war is as bad or equally wrong as compelled service in hostile forces fighting a war of aggression. But this cannot be true. Even if we agree that coercion from a third-party is wrongful or that a third-party lacks the authority to coerce us to do something, it matters what one is coerced to do.

Suppose B, A’s neighbor, is upset that A severely mistreats his dog. B has observed that A often hits his dog, fails to feed him for several days at a time, leaves him outside chained to a wall when it is extremely cold or hot, and so on. Although B has spoken to A multiple times about the issue and has volunteered to adopt the dog, A refuses to alter his behavior or give the dog away. Eventually, B decides to take matters into her own hands. She goes to A’s house brandishing a gun and tells A that if he does not immediately release the dog to her care, she will shoot him. A, afraid for his life, relinquishes the dog.

Now suppose D, C’s neighbor, has a dog-fighting ring. D has observed that C owns a small dog that would be the perfect bait in dog fights. D has spoken to C repeatedly and has offered increasingly higher amounts of money to C so that she sells him the dog. But C does not wish to sell her dog, no matter how much money she is offered. Eventually, D, upset by C’s multiple rejections and her love for the dog, decides to proceed anyway. He shows up at C’s house brandishing a gun and tells her that she must release the dog to his care or give him $6,000 so he can get a similar dog for his fighting ring. C does not want to relinquish her dog and knows that sustaining or contributing to dog-fighting is morally wrong. However, afraid for her life, she gives D the money.

In both examples, B and D have violently coerced their neighbors to do something they did not wish to do, and for that reason, we might say that they have acted wrongly.⁸² But it would be absurd to say that B’s and D’s behavior is, all things considered, equally wrong. B has forced A to do what was morally right, that is, what he should have done anyway: give the dog away. By contrast, D has forced C to commit a wrongful act: give money to a dog-fighting ring. Even if we think that both have acted wrongly in coercing their neighbors to do something, we would say that D’s behavior is, all things considered, worse, morally speaking, than B’s behavior. From the viewpoint of the coerced neighbors, we would also say that C’s situation is worse than B’s: unlike B, who was forced to do what he had a duty to do, C was forced to do something that she not only lacked a duty to do, but was also in fact prohibited from doing (or had a weighty reason not to do).

The same applies to the CSHF prohibition. One could perhaps respond that once protected persons are being compelled into service in hostile forces, the wrongfulness of the act is so high that it is irrelevant whether individuals are compelled to fight legal or illegal wars—that there is no sense in which either of the two is significantly or relevantly morally worse than the other. However, this position is too quick. It might be that there is no point in legally regulating them differently, but, in the example above, it seems that the fact that C has been forced to do something morally wrong is an additional aspect of the crime. It is not normatively insignificant.

It is thus not true that being coerced to fight in an illegal war is equally bad as being coerced to fight in a legal war. This is so because international law itself draws a clear and normatively significant distinction between legal and illegal wars. A legal war is a war fought to uphold the international order. By contrast, an unlawful war or a war of aggression is precisely the opposite.

In fact, aggression is considered by some to be the “crime of all crimes.” It is not only prohibited by the UN Charter, but also constitutes an international crime that entails the individual responsibility of those who plan it and conduct it.⁸³ Accordingly, several international legal scholars have developed a view that explains why we have criminalized aggression and why aggressive war is wrong. Mégret, and later, Mégret and Redaelli, have defended a human rights characterization of the crime: aggressive war constitutes a massive violation of the human rights of citizens of both the victim state and the aggressor state, including combatants.⁸⁴ Dannenbaum has argued something similar. He contends that international law’s “criminalization of aggression is not just a formal prohibition, but also an expression of aggression’s wrongfulness from the international legal point of view.”⁸⁵ The core criminal wrong of the crime of aggression is, according to Dannenbaum, the unjustified killing and human violence it entails⁸⁶: an aggressive war results in unjustified displacement, killing, and harming of thousands of individuals. Finally, more recently, Saira Mohamed has pointed out that international law has no language to name the wrong that is committed by a state such as Russia, which fights an aggressive war by relying on conscription.⁸⁷ She argues that in such circumstance, individuals do not have a duty to fight for their state and, in fact, should be protected against doing so.⁸⁸

Given what makes aggression wrong—unjustified violence against countless individuals—it is impossible to argue that the distinction between legal and illegal wars lacks relevance in the context of conscription.

Perhaps one could make the following argument in defense of the international regime’s failure to consider the nature of the wars that individuals are coerced to fight: whether a war is legal or illegal is not what matters. What matters is whether a war is morally justified—whether a war is just.

Just war theory has long distinguished between just and unjust wars, arguing that the first kind are justified, while the second kind are not.⁸⁹ Generally speaking, a just war is one that has a just cause and meets certain requirements concerning proportionality and necessity and is fought in a just manner (for example, by distinguishing between civilians and combatants).⁹⁰ Self-defense and defense of others (that is, humanitarian interventions) are widely accepted amongst contemporary just war theorists as just causes for war.⁹¹ By contrast, an unjust war is a war that is morally prohibited. It involves inflicting morally unjustified harm and death on countless innocent individuals.

In just war theory, then, the distinction between just and unjust wars is the distinction that matters. Unjust wars are morally prohibited and involve the commission of grievous moral wrongs. By contrast, just wars are morally justified. Thus, one could argue that the distinction between legal and illegal wars is normatively irrelevant; that we should concern ourselves with the distinction, at the level of morality, between just and unjust wars. But, of course, even if this argument is correct, it cannot work as a defense of the international regime on conscription. The latter fails to distinguish at all on the basis of the character or nature of the wars that individuals are conscripted to fight. It fails to distinguish between legal and illegal wars, and it also fails to distinguish between just and unjust wars.

Further, there is some overlap between what makes a war just and what makes a war legal. This overlap is, however, not perfect.⁹² Self-defense is recognized both as a just cause for war and a legal instance of the use of force in international law.⁹³ However, humanitarian interventions, which are widely recognized as a just cause for war, are not clearly legal uses of force under international law, unless they are authorized by the United Nations Security Council (“UNSC”).⁹⁴ Additionally, under the U.N. Charter, the UNSC can authorize the use of force, and it could potentially do so in circumstances in which just cause, necessity, or proportionality are lacking. That is, a legally authorized use of force by the UNSC could be an instance of an unjust war.⁹⁵

The fact that the overlap between the two is imperfect cannot, of course, support the conscription regime’s lack of concern for whether the wars are legal or illegal, just or unjust. It does, however, provide reasons to modify the jus ad bellum—that is, the legal rules on resort to force—to make it more coherent with the distinction between just and unjust wars.⁹⁶ And because the overlap between legal and just wars is not perfect, the implications of the regime on conscription as it pertains to just and unjust wars merits attention as a separate set of implications. The current regime entails that states are free, under international law, to conscript their own citizens to fight unjust wars, while compelled service in hostile forces remains a war crime, even when the war individuals are conscripted to fight is a just one.

Nonetheless, in the remainder of this Article, I will speak indistinctly of legal/just wars and illegal/unjust wars. Because this Article and the arguments focus on wars of self-defense and wars of aggression, which are examples of legal and just wars and illegal and unjust wars, respectively, it is unnecessary to keep making the distinction. All the arguments I make are applicable to both. But in those areas in which there is no overlap, and we cannot assume that a war is just merely because it is legal, the arguments I make are applicable only to the distinction between just and unjust wars.

In sum, if wars of aggression are deeply morally wrongful, the failure of the international legal regime on conscription to incorporate that distinction renders some aspects of the regime morally incoherent: they cannot be “rendered intelligible” in a moral sense.⁹⁷ This is so because, in at least three instances, the regime fails to criminalize or prohibit conduct that is worse than, or as bad as, compelled service in hostile forces.⁹⁸

First, the regime makes it so compelled service in hostile forces is equally bad regardless of whether the war one is compelled to fight is legal or illegal. Given that a war of aggression is a grave violation of the international order and a clear instance of an unjust war, it should be a worse crime to compel protected persons to fight in hostile forces in pursuit of a war of aggression than to compel them to fight in hostile forces in pursuit of a war of self-defense. It seems, as Ryan suggests, that it would be “an additional aspect of the crime” to compel service in hostile forces in a war of aggression.⁹⁹

Second, the same problem arises with the state’s prerogative to conscript its own citizens. If aggression is the crime of all crimes, how can it be that conscription of a state’s own citizens to fight an illegal war is allowed just as a state’s conscription of its own citizens to fight a legal war? Given that conscription is already a grave intrusion into one’s personal freedom, nearly equivalent to an obligation to kill and die for the state,¹⁰⁰ it seems that the kind of war citizens are conscripted to fight should be relevant. At the very least, conscription to fight legal wars and conscription to fight illegal wars should not be equally allowed.

This issue has been addressed by some scholars. Tom Dannenbaum and James Pattinson have argued that there should be a right to object to deployment in illegal wars.¹⁰¹ Dannenbaum has also argued that international law should grant refugee status to those who refuse to fight in illegal wars.¹⁰² More recently, he has argued that states have a legal obligation to recognize the refugee status of Russian troops who flee to avoid participating in a war of aggression, including those facing conscription.¹⁰³ He claims that the unlawful nature of the war should be enough to ground refugee status for Russian citizens who desert or flee Russia in order to avoid conscription.¹⁰⁴ Although the crime of aggression does not entail the international criminal responsibility of mid- and low-level soldiers, aggression’s wrongfulness lies in the fact that it causes widespread death and destruction without legal justification.¹⁰⁵ And I have argued in previous work that individuals should have a right to object to deployment in unjust wars, that international law should grant refugee status to those who refuse to fight in unjust wars, and that we should modify the jus ad bellum, too, so that it better conforms to the morally relevant distinction between just and unjust wars.¹⁰⁶

However, even if one might be able to defend these conclusions through a progressive interpretation of international law, as Dannenbaum does,¹⁰⁷ at the moment, a right not to fight in illegal wars is not recognized by international law, states remain free to conscript their own citizens to fight in wars of aggression, and refugee status has not been extended to those who refuse to fight in illegal wars. In fact, Russian citizens who have fled Russia to avoid conscription have been met with varying responses. While Canada recently granted refugee status to a Russian man who had fled his country,¹⁰⁸ Norway has hesitated to do so;¹⁰⁹ Latvia, Lithuania, and Estonia have said they will not offer refuge to fleeing Russians;¹¹⁰ and Poland has begun to turn away Russian citizens at the border.¹¹¹

Third, compare compelled service in hostile forces to fight a legal war—a war crime under IHL—with the state’s conscription of its own citizens to fight an illegal war—permitted under IHL. The current regime suggests that it is significantly worse to be compelled by hostile forces to fight a legal war than it is for the state to conscript its own citizens to fight an illegal war. But this should be, at the very least, controversial. Outside of this context, we do not think that the moral and legal status of actions people are forced to do is irrelevant, and, further, we certainly do not think that being forced to do something illegal and immoral is less bad than being forced to do something legal and morally justified, purely based on the identity of who is coercing us into doing so.

Perhaps the identity of who is coercing individuals is relevant in this context; perhaps the state is specially positioned to demand certain things from its citizens, and I will return to this in Part III. But to defend this aspect of the regime, the claim that must be defended is not only that the identity of who is coercing individuals matters, but also that it matters much more than whether individuals are being coerced to fight legal or illegal wars.

Finally, the fact that the international legal regime on conscription fails to distinguish between legal and illegal wars not only fails to capture something that is normatively significant. It is also self-defeating; that is, it is bad at achieving what international law presumably aims to achieve. If one of the goals of international law, or the jus ad bellum, is to achieve or sustain peace,¹¹² a regime that allows states to “generate soldiers for war-making”¹¹³ independent of whether they are doing so to uphold the international regime or to breach it, seems likely to generate more and longer wars than a regime that prohibited states from conscripting its citizens to fight in illegal wars.

In sum, the fact that the international regime on conscription does not pay attention to the nature of the wars that individuals are coerced to fight cannot be made sense of, morally speaking. The current regime treats equally things that are morally dissimilar in a relevant way.

International law should thus distinguish between legal and illegal wars. In the context of the state’s conscription of its own citizens, this implies that states should be prohibited from conscripting individuals to fight illegal wars or wars of aggression. In the context of compelled service in hostile forces, this implies that the illegal nature of the war one is compelled to fight should be an additional aspect of the crime.

But there is still a remaining dimension of the regime that demands justification and has not been entirely undermined by the arguments so far. Recall that justifying the present regime on conscription requires the success of two arguments. First, that the distinction between legal and illegal wars does not matter at all. This argument has failed. And second, that compelled service in hostile forces is significantly worse than compelled service by one’s state. This argument is necessary to justify the fact that compelled service in hostile forces, even to fight a legal war, is a war crime while the state’s conscription of its own citizens to fight a legal war remains the state’s prerogative. Engaging with this argument will be the task of Part III.

III. HOSTILE FORCES AND THE STATE

In Part II, I argued that the international legal regime on conscription is morally incoherent in a particular way: it treats equally, either by permitting both or criminalizing both, things that are morally dissimilar. It matters whether the wars that individuals are coerced to fight are just or unjust, legal or illegal.

If we accept the arguments made in Part II and their implications, we should accept that there is a powerful pro tanto reason for international law to prohibit the state’s conscription of its own citizens to fight illegal wars and to make the illegal nature of the war an additional aspect of the crime of compelled service in hostile forces.

However, having accepted these implications, there is a second aspect of the regime whose moral coherence remains to be proved: whether compelled service in hostile forces is both wrong and significantly worse than compelled service in the armed forces of one’s state. This argument is necessary to render morally intelligible the fact that compelled service in hostile forces to fight legal wars is a war crime, while compelled service in the armed forces of one’s state to fight legal wars is the state’s right.

Some of the arguments I will explore will also have implications for compelled service in illegal wars. As I just noted, Part II provides a pro tanto reason for international law to prohibit compelled service in illegal wars. Although I think that Part II provides a conclusive, and not just a pro tanto, reason for international law to prohibit the state’s conscription of its own citizens to fight illegal wars, the case in favor of prohibition does not rest solely on that argument. It can also rely on some of the arguments that follow.

Nonetheless, most of the arguments in this Part attempt to explain why international law treats compelled service in hostile forces to fight legal wars differently from a state’s conscription of its own citizens to fight legal wars. Perhaps there is something particularly wrong about compelling persons who are in custody or in occupied territory to serve in hostile military forces—something wrong that is present in these circumstances but is not present when states conscript their own citizens to fight wars. If this argument exists, then we can explain at least this aspect of the international legal regime on conscription.

The complexity of making moral sense of this aspect of the regime is increased by the fact that compelled service in hostile forces is not merely prohibited by IHL, but is a war crime, that is, a crime that entails individual, and not just state, responsibility. Whatever justification is provided, it must be able to account not only for the CSHF prohibition itself, but also for its criminalization as part of international criminal law. However, there is no unitary theory of war crimes nor a satisfactory definition of them.

War crimes belong to the general category of international crimes. International crimes are one of the few areas of international law in which duties are imposed directly on individuals who might be personally responsible for their conduct. Not every human rights violation is an international crime. Louise Arbour, former UN High Commissioner of Human Rights, explains the distinction in this way: “Human rights law violations are actions and omissions that interfere with the birthright of all human beings—their fundamental freedoms, entitlements and human dignity. Humanitarian crimes are, in essence, crimes that are so heinous that they shock the human conscience.”¹¹⁴

The idea that international crimes are a particular category of very heinous acts, one that shocks the conscience of humankind, is quite common. Some authors, however, have offered a different theoretical account of international crimes.

David Luban, for example, has provided a theory of crimes against humanity, understanding them as an assault on a particular aspect of human beings, namely, our character as political animals.¹¹⁵ Larry May, as we will see below,¹¹⁶ has developed a theory about war crimes that relies on notions of honor and the vulnerability of certain individuals during war.¹¹⁷ As I will argue in Section III.D, May’s theory can explain why compelled service in hostile forces is often worse than the state’s conscription of its own citizens, but it cannot explain the permissibility of conscription.

There is, however, significant uncertainty and confusion about the definition of “war crimes,” and the term is often used in various and sometimes contradictory ways.¹¹⁸ This is probably partly explained by the fact that the concept of grave breaches, and the idea of a war crime itself, is a body of law “whose normative provisions were drawn from different, and somewhat inconsistent, treaty provisions.”¹¹⁹

The most common definition of war crimes is “violations of the laws of war that incur individual criminal responsibility.”¹²⁰ The international criminal tribunals, as well as the ICC, have coalesced around three basic elements of war crimes: (1) an armed conflict; (2) a nexus between the acts of the accused and the armed conflict; and (3) knowledge of the armed conflict.¹²¹

Other accounts of war crimes, like that of Hathaway, Strauch, Walton, and Weinberg, require that the violation of the laws of war is also serious.¹²² It is generally assumed that all grave breaches of the Geneva Conventions are serious, but the seriousness of other violations might depend on the nature of the infraction itself and, perhaps, the manner in which the prohibition is broken.¹²³ This is somewhat ambiguous, both in the statute of the ICTY and in the Rome Statute, in which the Elements of Crimes introduce elements to Article 8 that require the act to be sufficiently serious to justify international condemnation.¹²⁴ There might also be breaches of the laws of armed conflict that do not qualify as serious and meriting international condemnation, but that should be the subject of domestic proceedings.¹²⁵

The most accepted definition of war crimes (violations of IHL that entail individual criminal responsibility) fails to offer a theory of criminalization. That is, it fails to guide criminal tribunals and other organs in determining what a war crime is and lacks a deep underlying justification.¹²⁶ It is not clear at all that this is what the definition is trying to do—perhaps it aims simply to give a positivist account of war crimes. But the truth is that we do not agree on a theory of criminalization, both at the domestic level¹²⁷ and at the international one. The purpose of International Criminal Law itself is also deeply contested.¹²⁸ This poses some difficulties in terms of the arguments I will offer. It might be plausible to conclude that some things should be forbidden by international law, but something else is presumably required in order for a behavior to constitute a war crime. I will come back to this at the end, but I cannot do anything but leave the issue somewhat open. To do otherwise would require developing a theory of criminalization in the context of IHL.

For now, the main challenge is to explain why compelled service in hostile forces might be morally worse than the state’s conscription of its own citizens. I will address several different but somewhat related arguments: (a) compelled service in hostile forces is irrational; (b) the CSHF prohibition aims to incentivize surrender and disincentivize longer wars; (c) citizens feel loyalty toward their own states and that loyalty should be respected; (d) protected persons are in a particularly vulnerable situation vis-à-vis their captors, which makes it morally worse to compel them into service; and (e) unlike foreigners, citizens have duties toward their own states to fight legal wars.

A. Compelled Service in Hostile Forces Is Irrational

One possible argument why compelled service in hostile forces is significantly different from the state’s conscription of its own citizens is that individuals forced to fight for hostile or enemy forces would likely defect or surrender as soon as possible and, generally speaking, would make for bad fighters.

This might be true in certain circumstances. Some individuals feel strong loyalty toward their states and armies and if compelled to fight might in fact decide to do so badly. However, this difference between compelled service in hostile forces and the state’s conscription of its own citizens cannot explain why compelled service in hostile forces is a war crime. It only shows why it is a bad idea for any given state to compel protected individuals to fight in hostile forces—that is, it shows why it is likely irrational to do so. But mere irrationality does not provide a conclusive argument in favor of the international criminalization of compelled service in hostile forces. There are plenty of things that states do that might be a bad idea, but bad ideas are not enough to “shock the conscience”¹²⁹ of humankind.

Further, conscripted soldiers fighting for their own state might also be bad fighters, particularly in comparison to professional armies. They might be reluctant to kill or engage in combat or lack relevant training. Thus, if the CSHF prohibition was justified because protected persons are likely to make bad fighters, conscription would be put into question for similar reasons. But the fact that individuals might make bad fighters is, in any case, not enough to explain why compelling individuals to fight is wrong or should be prohibited. Again, it only shows why it is a bad idea.

One might object at this stage that whether compelled protected persons make good fighters is irrelevant. What the CSHF prohibition aims to achieve is to provide incentives to surrender. Let us examine this argument.

B. POWs and Incentives to Surrender

Privileged combatants can become POWs and are consequently entitled to certain rights and protections.¹³⁰ POWs are those who have fallen into the power of the enemy and belong to one of the categories specified in Article 4 of Geneva Convention III.¹³¹ Hors de combat, that is, persons who are in the power of an adverse party, express a clear intention to surrender, and have been rendered unconscious or otherwise incapacitated by wounds or sickness,¹³² are also entitled to certain protections against mistreatment.¹³³ Among those protections is the prohibition against compelled service in hostile forces.¹³⁴

One might thus argue that, if combatants knew that after surrendering or becoming wounded or incapacitated they might be compelled by the adverse party to serve in its armed forces, they would be less likely to surrender and more likely to fight until the very end. If everyone did that, this might, in turn, make wars longer.

The CSHF prohibition then is concerned with providing individuals with incentives to surrender. In doing so, it aims to make wars shorter, and perhaps in making wars shorter, it reduces suffering. Of course, this rationale would not explain why the CSHF prohibition also applies to those in occupied territory; it is limited to POWs.

The idea that the goal of IHL is to reduce suffering (to make wars more humane) is familiar and is often referred to as “the humanitarian view.”¹³⁵ If this is right, and the incentives work in this way, then we might be able to explain why it makes sense to provide individuals with certain protections when they surrender, such as the prohibition on compelled service in hostile forces.

The humanitarian view has been the object of a variety of objections, both as a justification of the legal equality of combatants¹³⁶ and as a justification of the law on co-belligerency.¹³⁷ In the context of the international legal regime on conscription, the humanitarian view can explain why the CSHF prohibition is a reasonable rule to have, but it cannot explain why compelled service in hostile forces is worse than the state’s conscription of its own citizens. In fact, if the state’s conscription of its own citizens is likely to make wars longer or to increase suffering, there would be at least a pro tanto reason to prohibit the practice.

Note, as well, that the humanitarian account is also likely to provide an additional reason for prohibiting states’ conscription in illegal wars. If we rely on accounts of what people have incentives to do, we should, presumably, reduce incentives to wage and participate in illegal wars.

C. Loyalty

A third argument that might explain why there is something different between compelled service in hostile forces and the state’s conscription of its own citizens is that the former violates the ties of loyalty that bind individuals to their own states, while conscription by one’s own state does not. Compelled service in hostile forces entails fighting against one’s own state and betraying one’s loyalty to it.

The importance of loyalty to one’s state is not unheard of in the context of war. Levinson, for example, discusses the case of Ernst von Weizsaecker, State Secretary of the German Foreign Ministry.¹³⁸ Von Weizsaecker had internally opposed the war, but the issue of why he did not inform the Russian ambassador of Hitler’s plans against Russia in 1941 came up during the Nuremberg trials.¹³⁹ If he had done so, he would have put himself in great danger, would not have changed Hitler’s policy, and would have led to greater German losses:

The prosecution insists, however, that there is criminality in his assertion that he did not desire the defeat of his own country. The answer is: Who does? One may quarrel with, and oppose to the point of violence and assassination, a tyrant whose programs mean the ruin of one’s country. But the time has not yet arrived when any man would view with satisfaction the ruin of his own people and the loss of its young manhood. To apply any other standard of conduct is to set up a test that has never yet been suggested as proper, and which, assuredly, we are not prepared to accept as either wise or good.¹⁴⁰

This argument about loyalty was not just an idiosyncratic belief of the Nuremberg judges. The ICRC database on customary IHL states that the reasoning behind the CSHF rule is “the distressing and dishonourable nature of making persons participate in military operations against their own country—whether or not they are remunerated.”¹⁴¹ Bothe also finds the rationale of the rule in avoiding “bringing a detained person or a person in occupied territory into an unbearable loyalty conflict.”¹⁴² And the ICTY, in interpreting the concept of “civilians” for the purposes of the Fourth Geneva Convention, relied on the idea of “genuine bonds of loyalty and allegiance,” dismissing, however, the requirement of nationality.¹⁴³ In the ICTY, the issue as to who counted as civilians for the purposes of the Fourth Geneva Convention arose because the latter refers to those who find themselves “in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”¹⁴⁴ This was pressing in the case of Bosnian Muslims, who could not be considered protected persons under the Convention because their persecutors were also of Bosnian nationality.¹⁴⁵

In the philosophical literature, arguments from loyalty have been discussed in the context of the crimes of treason and espionage.¹⁴⁶

Arguments that rely on loyalty have, however, limited purchase. Loyalty can be understood as the “practical disposition to persist in an intrinsically valued (though not necessarily valuable) associational attachment, where that involves a potentially costly commitment to secure or at least not to jeopardize the interests or well-being of the object of loyalty.”¹⁴⁷ In institutional settings, “loyalty can simply take the form of commitment and willingness not to undermine institutions which do well by us and, thereby, not to harm our fellow community members.”¹⁴⁸

One of the issues with a loyalty-based argument is that loyalty can often be morally problematic. This is so because individuals might experience loyalty toward all sorts of projects and associations, some of which will have no value at all, or even negative value. This would be the case with individuals who experience loyalty toward, say, racist associations, criminal organizations, and so on.

Perhaps loyalty-based arguments can succeed if we can argue that loyalty toward one’s own state (or nation) is valuable to the point of requiring protection from international law. Yet, although some states perform valuable functions, it might be better if individuals felt stronger loyalty toward other fellow human beings, rather than to their own state. This kind of loyalty also seems more consistent with some of international law’s cosmopolitan aspirations.¹⁴⁹ And relying on this account of loyalty might provide an additional argument as to why compelled service in hostile forces to fight illegal wars should be a war crime. When states do compel such service, they are asking individuals to engage in conduct that is disloyal to states that are engaged in legal wars and to the international legal system.

In any case, even if we concede that betraying one’s loyalty to one’s state is presumptively wrongful, that presumption can be overridden by other considerations—mainly, whether one’s state is engaged in violating the fundamental rights of others.¹⁵⁰ Yet, this is precisely what states engaged in aggressive wars are doing. Recall that we are trying to answer why compelled service in hostile forces to fight a legal war is both wrong and significantly worse than the state’s conscription of its own citizens to fight a legal war. This would require arguing that an individual’s loyalty toward a state fighting a war of aggression should be protected by making compelled service in hostile forces a war crime. However, that individual’s loyalty is surely misguided from the viewpoint of the international legal system itself, and it is, effectively, loyalty toward an actor engaged in serious legal (and moral) wrongdoing.

Perhaps we can argue that the objective value of an individual’s loyalty is irrelevant. It only matters whether the individual in fact experiences ties of loyalty to their own state. If they do, that loyalty should be protected. But this argument is both over and underinclusive. It is overinclusive because it would require international law to protect individuals’ loyalty toward their own state in a wider range of circumstances, extending far beyond service in hostile forces. And it is underinclusive because it would require international law not to concern itself with instances in which that loyalty is not present. That is, if particular individuals felt no special ties of loyalty toward their own state, or if they had no state, the CSHF prohibition could not be justified in their case; states would do nothing morally wrong if they chose to compel those foreigners to serve in their armed forces. This seems to miss something important.¹⁵¹

It might be the case that many individuals do feel strong ties of loyalty to their own states, even if they are misguided in doing so. This might counsel for excusing their behavior in certain circumstances. But it is difficult to argue that international law should encourage that loyalty when it is misguided by making compelled service in hostile forces a war crime.

This is not to say that loyalty is completely irrelevant in all circumstances. Individuals, for example, might be loyal to members of their own family or their loved ones, or they might have special duties to protect them from harm.¹⁵² It is understandable, from that perspective, why forcing someone to harm their own loved ones would be worse than forcing them to harm a stranger. Since fighting against one’s own country might involve harming one’s loved ones, it is plausible to argue that, in those cases, compelled service in hostile forces is worse than compelled service in the armed forces of one’s state; thus, it might be wrongful, under certain circumstances, for states to compel individuals to harm their loved ones.

However, ties of loyalty and duties of protection in close interpersonal relationships are insufficient to fully account for the CSHF prohibition due to two reasons.

First, this is not the kind of relationship that exists between states and their own citizens, nor is it the kind of relationship that exists between citizens themselves.¹⁵³ Further, interpersonal relationships and ties of loyalty do not necessarily overlap with citizenship in a given state—individuals might have family and loved ones in other countries, and, in the context of civil conflict, in which states can coerce their own citizens to fight, ties of loyalty to the state will be conflicted and, sometimes, nonexistent. Finally, even if we grant that individuals can draw deep personal meaning from their association to their state, their nation, their community, and so on, the strength of those ties pales in comparison to those in close interpersonal relationships.

At this point, one might object that it is unclear why interpersonal relationships should be so different from the kind of relationships that exists between individuals and their communities (however expansively we define the latter). After all, people draw profound meaning from their membership in those communities and often feel bound to act in certain ways on account of that membership. I find this kind of argument unpersuasive, partly because I am committed to a more cosmopolitan view of our moral obligations and the sources that give meaning to our lives. Nonetheless, even those who reject strong versions of cosmopolitanism should be persuaded by the second reason why ties of loyalty and associative duties are insufficient to account for the CSHF prohibition.

This is so because even the ties of loyalty and duties of protection that arise in interpersonal relationships are not impervious to the impartial demands of morality. That is, individuals are not morally allowed to do anything they can to protect their loved ones (or the members of their communities) from harm nor are they allowed to be partial to the interests of their loved ones in all possible circumstances. In the context of the CSHF prohibition, it can hardly be the case that associative duties and ties of loyalty toward one’s own state and its institutions—which seem categorically different or, at the very least, weaker, from those present in interpersonal relationships—could override moral obligations not to wrongfully harm others. Or, put differently, it cannot be the case that it is morally wrong for individuals to fight a war of self-defense against their own states. If hostile forces are prohibited from coercing individuals into doing so—as I think they are—it cannot be merely because doing so involves making them breach duties of loyalty or protection toward their own states. Those duties will most often be inexistent or overridden by duties not to wrongfully harm others (as individuals often do when fighting in an illegal war).

In sum, while we can acknowledge that individuals often feel loyalty toward their own states and they also have duties of protection toward their loved ones, this argument only explains why fighting against one’s own state can be worse, from an agent-relative perspective, than fighting against other states. But alone, outside of limited circumstances in which fighting for hostile forces might involve breaching duties of protection toward one’s loved ones, it cannot explain why compelled service in hostile forces is morally prohibited.

D. Mistreatment and Vulnerability

A different way in which we can argue that there is a significant difference between the state’s conscription of its own citizens and compelled service in hostile forces relies on the idea that POWs and persons in occupied territory are in a particularly vulnerable position. This argument is, of course, underinclusive—it can only explain what is wrong with compelled service in the case of POWs and those in occupied territories, but it cannot explain what is wrong with compelling “the nationals of the hostile party to take part in the operations of war directed against their own country.”¹⁵⁴

A vulnerability-based argument has two dimensions. One is more obviously concerned with the incentives at play that explain why POWs or individuals in occupied territory are more likely to be treated in objectionable ways. The second one focuses on what is particularly wrong with harming or coercing vulnerable individuals. Both dimensions of the argument are related. The first one aims to explain why the CSHF prohibition is required to protect certain individuals who are likely to be the victims of objectionable treatment. The second one aims to explain why certain forms of treatment are objectionable.

The first part of the argument worries, then, about the CSHF prohibition’s role in protecting individuals in contexts in which states might have incentives to treat them in objectionable ways. We might say, for example, that if states were allowed to conscript protected persons to fight, they would likely use them in cruel ways, as cannon fodder or diversions, in missions that have little chance of succeeding, and so forth.

Incentives are likely to operate in this way. In fact, a study by Valentino, Huth, and Croco shows that highly democratic states face great pressure to reduce the human costs of war and are thus more likely than other states to employ strategies that minimize military casualties.¹⁵⁵ States—namely, democratic states—might thus have incentives to protect their own citizens and avoid high casualties, but they are less likely to have similar incentives regarding foreigners, to whom they are not politically accountable. And we have powerful reasons to impede states from employing individuals in these objectionable ways.

However, this argument alone, although plausible, cannot meaningfully distinguish between the state’s conscription of its own citizens and compelled service in hostile forces. Simply as a matter of history, the CSHF prohibition was prior to any human rights standards that might have governed how states treated their own soldiers and conscripts, which only developed after World War II.¹⁵⁶

Going beyond this historical point, the argument about incentives cannot explain why compelled service in hostile forces is meaningfully different from the state’s conscription of its own citizens. It might be true that states often have fewer incentives to use their own citizens as cannon fodder, send them into missions certain to fail, and so on. But there are a range of circumstances in which states will, in fact, have few incentives to protect their own citizens. For example, authoritarian states are less responsive to public opinion, and as a result might be more willing to employ their own citizens in these ways. States might also employ their own citizens as cannon fodder as a war tactic in a desperate attempt to avoid defeat, particularly in the case of citizens from oppressed minority groups.

Thus, although this argument can provide a good reason for having the CSHF prohibition, it also provides good reasons for having a prohibition on conscription of the state’s own citizens. If the CSHF prohibition is justified because incentives are likely to make states use individuals in objectionable ways during combat, there would be a reason to enact a similar prohibition in all contexts in which the incentives to use individuals in those objectionable ways exist or to directly prohibit those objectionable ways themselves. Yet, no such prohibitions exist.

Although some standards of treatment have been imposed regarding soldiers and conscripts,¹⁵⁷ there is no restriction on states sending out their own citizens into difficult or impossible missions, nor any restrictions on using them as cannon fodder.¹⁵⁸ The standard of treatment recognized by the European Court of Human Rights, for example, demands that military service is performed in “conditions compatible with respect for human dignity” and that do “not impose distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline” and service,¹⁵⁹ thus leaving wide discretion to states in terms of military strategies and planning. In the context of IHL, the debate concerning states’ obligations to their own soldiers seems also currently limited to the state’s obligation to tend to the wounded, which extends to the state’s own soldiers.¹⁶⁰

The argument so far, although insufficient to render the regime coherent, does give a reason in favor of the CSHF prohibition: compelled service in hostile forces might be one instance in which incentives to treat individuals in certain objectionable ways are very often present. Here is where the second dimension of the argument enters the picture. I have just pointed out that states are likely to have incentives to treat foreigners in objectionable ways when they send them into combat. The second dimension of the argument explains, precisely, why it is worse to treat POWs and persons in occupied territory in certain ways, and it relies on the notion of vulnerability, as understood by Larry May and Seth Lazar.

Larry May has developed an account of war crimes that relies on duties of humane treatment, in which war crimes are understood as “crimes against humaneness.”¹⁶¹ They are a violation of the principle that requires soldiers to act humanely, with mercy and compassion.¹⁶² This is a difficult task, May acknowledges, because while soldiers might be required to act humanely toward some, they are still allowed to—or are not prohibited from—killing enemy combatants.¹⁶³ Ultimately, for May, the rules of war are grounded in notions of honor and mercy, as well as the protection of the vulnerable.¹⁶⁴

Regarding confined soldiers (POWs and hors de combat) and prohibitions on their mistreatment, May argues that humane treatment becomes paramount: POWs are confined by one party, and that party has “every reason to want to exert vengeance or retribution on those who have been killing members of one’s armed forces.”¹⁶⁵

It is the asymmetry in power between confined prisoners and the party confining them that partly motivates May’s account. The laws of war, he argues, should counteract the strong possibility of abuse perpetrated by those who have weapons against those who do not.¹⁶⁶ POWs are in a “special moral situation because they are utterly dependent on their captors and are vulnerable in ways that soldiers on the battlefield are not.”¹⁶⁷ Walzer makes a similar point: “Just beyond the state there is a kind of limbo, a strange world this side of the hell of war, whose members are deprived of the relative security of political or social membership.”¹⁶⁸

This concern about vulnerability, understood as defenselessness or the inability to diminish one’s vulnerability to a threat, is echoed by Seth Lazar in defending the prohibition against deliberately targeting civilians.¹⁶⁹ Lazar argues that harming those who are vulnerable or defenseless is particularly bad or worse than harming the nonvulnerable because doing so is exploitative, risky, breaches a duty to protect the especially vulnerable, dominates and disempowers them, and generates unfair distributions of risk on the innocent.¹⁷⁰

Vulnerability is also the object of special protection in domestic criminal codes, in which it can operate as an aggravating circumstance in certain crimes such as homicide, or as giving rise to certain duties of protection toward, say, children.¹⁷¹

Following this line of argument, one might then reason that the vulnerability of POWs and those in occupied territories is what explains the CSHF prohibition. It does so because prisoners and persons in occupied territories are in vulnerable positions such that states have incentives to treat them in objectionable ways, and harming those who are vulnerable is morally wrong and morally worse than harming the nonvulnerable.

It is certainly true that both occupation and custody create a situation of vulnerability. In that sense, it is understandable why states might have duties to provide and care for individuals in custody and under occupation. And it is quite plausible that it is morally worse to harm the vulnerable than the nonvulnerable. If so, then we can explain why compelled service in hostile forces is morally worse than the state’s conscription of its own citizens: to the extent that POWs, hors de combat, and those in occupied territories are vulnerable and defenseless relative to citizens of the state, and to the extent that compelling them into service will entail treating them in objectionable ways, it is worse to compel the former into service than to compel citizens.

This argument, however, faces some difficulties. Recall that we are trying to answer why compelled service in hostile forces to fight a legal war is morally worse than compelled service by one’s own state to do the same. So far, the argument has established that harming those who are vulnerable is worse than harming those who are not, and that states might have incentives to treat POWs and those in occupied territories in objectionable ways (that is, states might have incentives to harm them). There are several problems with this.

First, as mentioned before, states can have similar incentives regarding their own citizens, and yet they are not prohibited from treating their own citizens in such ways. The argument is, in that sense, overinclusive.

Second, the argument on its own says very little about whether conscription is morally prohibited or permissible. This is so because the argument explains why compelled service in hostile forces is worse than the state’s conscription of its own citizens. Whether compelled service in hostile forces is morally wrong depends on whether it harms those compelled to fight. I have suggested that it does so when they are used in certain objectionable ways, or that it might do so when it forces them to breach associative duties toward their loved ones (under certain circumstances), but I have not argued that it does so in every instance. That is, I have not yet provided an argument as to whether coercion to fight legal wars on behalf of hostile forces always harms those forced to fight.

Put simply, the fact that harming someone who is vulnerable is worse than harming someone who is not does not say anything about whether the latter is morally prohibited or permitted. It only implies that one is worse than the other. That is, the fact that harming a defenseless child is worse than harming an adult does not prove, on its own, that harming the adult is morally permissible. That depends on whether the harm itself is justified.

Applied to the CSHF prohibition, one can argue that it is worse to compel protected persons into service than it is to compel one’s own citizens. That might be the case. But alone, this cannot answer whether compelled service in military forces is allowed in the first place.

Third, the argument that relies on vulnerability also requires that vulnerability is applied in a particular way, so that only those who have fallen under the power of an adverse party to the conflict and those that are in occupied territory are understood as vulnerable. However, not all POWs remain in physical custody during war, and citizens in their own states are also quite vulnerable to coercion on the state’s part (think, for example, of those who are serving criminal sentences). Further, refusing conscription might lead to criminal punishment, and the state has a wide arsenal of enforcement mechanisms at its disposal. If it is vulnerability that is driving the CSHF prohibition, then one might also find vulnerability in the state’s context when compelling individuals to serve in its own forces.

Still, we can argue that it will often be the case that POWs and those in occupied territories will be in a highly vulnerable position, and that states are likely to have incentives to use them in objectionable ways during combat, and so the CSHF prohibition is predicated on that likelihood. In those cases, we can explain why compelled service in hostile forces is wrong, and why it might be morally worse than the state’s conscription of its own citizens. But vulnerability itself might be present in the state’s own citizens. More importantly, this vulnerability-based argument does not say why compulsion to fight a legal war is always equivalent to unjustifiably harming individuals.

E. Citizens and Duties Toward the State

Is coercion to fight a legal war equivalent to unjustified harm? Or is it coercion to do what one already has a moral duty to do? Does it matter whether it is one’s state who coerces one to fight?

What is wrong (or right) about compelled service in legal wars cannot be coercion itself. It would prove too much: it would immediately make the state’s conscription of its own citizens morally suspect. It also makes coercion—which is a key feature of the state—generally morally wrong. This argument should thus be discarded. Coercion might always require justification, but what makes coercion justified responds to other facts, such as what one is coerced to do, or who has authority to coerce other individuals.

Perhaps the difference between compelled service in hostile forces and the state’s conscription of its own citizens is that citizens, unlike noncitizens, owe certain duties to their own states, and among those duties, there is the duty to fight on behalf of one’s state. If successful, this argument can explain why international law permits states to conscript their own citizens and why compelled service in hostile forces is a war crime. The first is permitted because citizens already have enforceable duties to fight that are owed to the state. The second is prohibited because noncitizens do not owe such duties to other states, and it is wrong for those states (or hostile forces) to coerce individuals to fight when those individuals lack any relevant duties to do so. Forcing them to fight would constitute unjustified harm, in a sense, and it is even worse to harm those who are vulnerable or defenseless.

At this stage, one might argue that, in the case of compelled service in hostile forces, the issue of citizens’ duties toward their own states arises twice. First, because those who are compelled to serve in hostile forces have a duty toward their own states that compelled service in hostile forces causes them to breach. And second, because those who are compelled to serve in hostile forces lack duties toward hostile forces, and compelling them to fight as if they had such duties is morally wrong. However, recall that we are now concerned with the question of why compelled service in hostile forces to fight legal wars is worse than the state’s conscription of its own citizens to fight legal wars. In this case, when states breach the CSHF prohibition, they are doing so in relation to individuals who, if fighting for their own states, would be fighting a war of aggression, which is also an unjust war. When states are engaged in unjust wars, the question of whether their citizens still retain a duty to fight on behalf of their states is highly controversial, and the most plausible answer is that they almost always lack such duties toward the state, at least in cases of egregiously unjust wars.¹⁷² Thus, I will not address whether compelled service in hostile forces also involves making individuals breach duties toward their own states.

The argument based on duties owed to the state thus requires showing that citizens have certain duties toward their own states (or their political communities) that noncitizens lack, and, in particular, that they have duties to fight on behalf of their state that noncitizens lack.¹⁷³ This argument is obviously related to the question of political obligation, that is, the question of whether individuals have a prima facie, context- and content-independent moral duty to obey the law of the jurisdiction they are in.¹⁷⁴ Because conscription is often implemented through the legal regime, refusal to accept conscription will often involve disobeying the relevantly applicable laws.

However, the question of political obligation is somewhat different in character to the question of whether citizens have a duty to fight—to die and kill—for their states. The first difference is that conscription in times of war, unlike other instances of duties imposed by law, is extremely demanding: individuals are likely to face mortal and moral peril when they are called to kill and die on behalf of the state.¹⁷⁵ Fighting in war, unlike complying with most legal rules, is a significant burden. War is risky, both in physical and moral terms,¹⁷⁶ and individuals only have one life to live—their own.

As a result, general arguments as to why individuals have moral duties to obey the law of their own states might not be sufficiently powerful or weighty to explain why individuals might have moral duties to die and kill for their states. This is not implausible: no account of political obligation defends an absolute duty to obey the law, independent of its content, and most accounts are qualified in several respects.¹⁷⁷ Further, some political theorists, like Hobbes and Rousseau, have treated the question of an obligation to kill and die for the state as a separate, distinct issue.¹⁷⁸ Rousseau, for example, held the view that to bear arms on behalf of the state was the ultimate public duty because every individual shares in the moral goods of the community.¹⁷⁹ Hobbes contended that individuals do not have a duty to fight on behalf of the state because once the state demands citizens to die on its behalf, the social contract breaks down: the state and the citizen are at war with each other and they are hence returned to the state of nature.¹⁸⁰ This is so because the end of the state, for Hobbes, is individual life.¹⁸¹ An individual who dies for the state defeats the very purpose of forming that state: the preservation of life.¹⁸² Others interpret this aspect of Hobbes’s theory as a matter of prudence, in the context of which self-preservation was paramount.¹⁸³

The second reason why the question of political obligation is different from the question of conscription is that the first one is a question about whether there is a content- and context-independent duty to obey the law. By contrast, the question regarding conscription is not content-independent: it is a question of whether individuals have duties, owed to their state, to fight in legal wars.

Despite these differences, conscription has received little theoretical attention from political and moral philosophers¹⁸⁴ besides focused attention on the legitimacy of the draft in the 1960s and early 70s.¹⁸⁵ In fact, in the contemporary ethics of war, the question about conscription has been posed as a question of whether conscription might have an impact on one’s liability to defensive force. In other words, questions about conscription have been reduced so far to the question of whether coercion would make conscripted unjust combatants morally impermissible targets.¹⁸⁶ But the legitimacy of conscription itself has been hardly discussed.¹⁸⁷

This omission is quite puzzling. As things are, states have the capacity of generating “unlimited numbers of soldiers by their coercive practices.”¹⁸⁸ Indeed, during the 19th century, pacifism about war included an argument against conscription, which was considered to be a “type of enslavement at the heart of war” that led to a system of inhumanity; that is, a system where war was seen as taking a life of its own.¹⁸⁹ Although liberal thinkers like Hobbes, Locke, and others during the 18th and 19th centuries have remarked on the incompatibility of the rights of individuals with the power that the military possesses over its soldiers, very few thinkers have seriously questioned the permissibility of the state’s conscription practices.¹⁹⁰

Because the philosophical treatment of conscription is sparse, the literature on political obligation is a good starting point for assessing arguments in favor of a duty to fight for one’s state, even if there are relevant differences between the two.

Insofar as we can establish that a duty to accept conscription in times of war exists and is owed to one’s state or to one’s political community, we can explain the distinction that exists in international law between compelled service in hostile forces and the state’s conscription of its own citizens. This thought—that the justification of conscription relies on the existence of a duty toward one’s community or one’s state—is familiar. Conscription, as Ryan notes, is often experienced both as naked coercion and as embodying a legitimate social obligation.¹⁹¹

Let us start by discussing how different theories of political obligation have justified the existence of a duty to obey the law.

1. Theories of Political Obligation

In the literature on political obligation, context- and content-independent duties to obey the law have been grounded on consent,¹⁹² fairness,¹⁹³ natural duties of justice,¹⁹⁴ associative duties,¹⁹⁵ on the basis of democratic authority,¹⁹⁶ and a commitment to law.¹⁹⁷ However, some authors remain skeptical that any such duties exist.¹⁹⁸

Theories based on consent¹⁹⁹ or commitment²⁰⁰ regard political obligations as obligations of commitment.²⁰¹ The idea is that the community has granted authority to the government and chose to undertake political obligations,²⁰² or that individuals have adopted a commitment to law.²⁰³ These theories tend to be voluntaristic (what matters for establishing a duty to obey the law is whether individuals have, in fact, consented), in which case the arguments discussed pertaining to loyalty will apply. When they are less voluntaristic (what matters is whether people should consent, or whether people in certain idealized circumstances would have consented), the arguments that apply to fairness, associative duties, and natural duties–based theories will often apply to them as well.

Fairness-based theories argue that states provide their citizens with significant benefits that they would otherwise not obtain. In a Hobbesian account of the state, for example, we would argue that citizens benefit from membership in their state because the latter’s existence allows them to exit the state of nature.²⁰⁴ In broader accounts, we might posit that the state allows individuals to access a number of goods that they could not obtain otherwise, such as security, the existence of a legal system, the solution of coordinative problems, and so on. Plausibly, noncitizens do not benefit as much as citizens from these arrangements. A fairness-based account of political obligation, then, holds that when a number of individuals “engage in a just, mutually advantageous, cooperative venture according to rules and thus restrain their liberty in ways necessary to yield advantages for all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission.”²⁰⁵ Acceptance of the relevant benefits, even in the absence of express or tacit consent to cooperate, are enough to bind individuals to do their fair share in the group.²⁰⁶ Fairness-based accounts of political obligation explain the existence of the latter on the idea that individuals benefit from certain arrangements, and those benefits make it the case that they are obligated to participate in their production by following the rules of the scheme of cooperation.

In the context of conscription, Rawls, for example, suggested that the draft could be defended as a fair way of sharing in the burdens of national defense.²⁰⁷ Given that even just and well-ordered societies cannot entirely eliminate the possibility of aggression by another state, they should make sure that the burden to defend one’s country should be evenly shared by all members of society over the course of their lives and that there is no avoidable class bias in selection.²⁰⁸ Further, given that conscription is “a drastic interference with basic liberties,” Rawls argued that conscription would be justified only if it is demanded for the defense of liberty itself.²⁰⁹ Rawls did not think this duty was content-independent: he suggested there might be a right or a duty to disobey if the war is unjust or is being fought in an unjust manner.²¹⁰

An alternative way to ground duties of obedience is to argue that citizens have associative duties or membership-dependent reasons to do their share, “as defined by the norms and ideals of the group itself, to help sustain it and contribute to its purposes,” provided that the norms are neither gravely unjust nor irrational, and the group is not corrupt.²¹¹ Scheffler argues that this might, on certain assumptions, provide the basis of an argument in favor of the existence of a duty to obey the law.²¹² Those assumptions are, first, that membership in a political society can be noninstrumentally valuable; second, that the laws of a society are among its norms of individual conduct; and third, that these reasons amount to duties.²¹³ Note that whether membership in the state (or any group) is noninstrumentally valuable depends on the justice (or injustice) of the group in question: at a certain point, the injustice of any given society will erode the value of membership in that society for, as Scheffler observes, part of the value of membership in a political society such as the state is that “it makes it possible to live on just terms with others.”²¹⁴

Accounts based on natural duties provide a different alternative.²¹⁵ They contend that there is a natural duty of justice which requires individuals to support and to comply with just institutions that exist and apply to them, as well as to further just arrangements not yet established (at least when it is not too costly for individuals).²¹⁶

Finally, duties to obey the law might also be based on the law’s democratic provenance.²¹⁷ The democratic authority account obviously has a problem regarding scope: it can only justify conscription in democratic states. Thus, it could not explain why compelled service in hostile forces is worse than the state’s conscription of its own citizens. If successful, it can only explain why compelled service in hostile forces is worse than democratic states’ conscription of their own citizens and why conscription by democratic states is permissible.

All the arguments just discussed aim to explain why individuals might have content- and context-independent duties to obey the law, within certain limits. But duties of obedience can also be grounded instrumentally, that is, on the basis of the ability of the state, the legal system, or the practice of widespread obedience to the law of securing certain good outcomes.²¹⁸ Of course, instrumentalist accounts of duties to obey the law fail to support a context- and content-independent duty to obey the law—that is not what instrumentalist accounts are trying to do.²¹⁹ At most, an instrumentalist account will be able to support duties to obey certain laws, insofar as obeying those laws is a way of securing the outcomes we want to secure.²²⁰ In the case of conscription, the argument would be able to support the duty to accept conscription if doing so was the kind of thing that helped secure certain outcomes or if not doing so would risk the collapse of, say, one’s state (provided that the state is a valuable institution).

Historically, conscription, both in times of peace and in times of war, has been justified instrumentally on the basis of different outcomes or goals,²²¹ some of which Leander refers to as “myths” regarding conscription.²²² Some of these myths have been empirically debunked, but they tend to fail on their own terms anyway.

One argument in favor of conscription, and against all-volunteer armed forces (“AVF”), is that the latter pose a danger to democracy, while conscription is central for controlling the use of force in society.²²³ There is thus a supposed link between the preservation of democracy and conscription, or, alternatively, all-volunteer armed forces can pose a threat to the political community, democracy, and freedom which conscription-based armies are less likely to pose.

However, historical examples do not support the notion that conscription-based armies are particularly effective in controlling or constraining the use of force by their own state leaders. The general draft allowed Hitler to form a powerful army and conscripts did not stop his plans from within, and both Stalin’s and Mussolini’s armies were composed of conscripts, who also posed no considerable internal resistance.²²⁴ Conscript-based militaries in Chile, Argentina, and Turkey also offered no resistance to military takeovers.²²⁵ It is thus not true that conscription can be a cure to the threat that all voluntary armies pose, and as Keil notes, the “equation ‘conscription equals democracy’ is badly flawed.”²²⁶ Interestingly, a study conducted in thirty-four European states in 1997–2017 found that in countries with conscription-based recruitment, there are higher levels of support for the military.²²⁷

Further, even if it were true that AVFs pose graver threats to democracy than conscript-based forces, this would not, on its own, provide an argument in favor of the permissibility of conscription. It only highlights an aspect that makes conscription better than AVFs. Pattison, for example, has argued that the AVF is the most legitimate way of organizing the military, partly because it does not severely infringe on individuals’ liberty.²²⁸

A second myth is that conscription works to construct a more tightly knit society, both as a source of social mobility and as a source of social integration.²²⁹ This logic does not resist analysis: in most places, women are not subject to conscription, so whatever social integration or mobility is created clearly excludes roughly half the population.²³⁰ It is also unclear why social integration should stop at the border of one’s own country.²³¹ Further, this argument might work for conscription as a state’s general practice during times of peace, but it does not really support conscription or the draft in times of war. There is no social integration when people are dead.

A third argument usually employed to support conscription is that it helps to form loyal and virtuous citizens because conscription itself works as the “school of the nation.”²³² However, as Leander points out, the idea that the military could and should play a role in forming virtuous citizens is in tension with democratic understandings of what makes a virtuous citizen in most contemporary political thinking.²³³ Even if that were the case²³⁴—that is, even if conscription was an effective tool in creating “virtuous citizens”—it cannot be plausibly sustained that as a result the state can demand people to kill and die on its behalf. The intrusion on personal freedom and the sacrifice demanded of individuals is far too great in comparison to the pursued goal, which is relatively insignificant. It is also far from clear that the state, at least one committed to some version of political liberalism, can coercively make individuals believe and endorse its own conception of virtuousness.

Thus, an instrumentally justified duty to accept conscription must go beyond these arguments. It must rely on the benefits that the state provides for its citizens, which might be diminished if the war is lost or eliminated entirely if losing the war entails the destruction of the state. In the latter case, one might be facing something like a “supreme emergency.”²³⁵ I will come back to this point later.²³⁶ In the first case, the argument relies on the notion that states fulfill valuable ends and thus have a right to their own survival. Citizens, then, must contribute to the survival of their own state by fighting.

2. The Shortcomings of Theories of Political Obligation

Whichever way one grounds these duties, if successful, individuals might have duties to fight on behalf of their state. If so, then we will have an additional reason why compelled service in hostile forces is worse than conscription, and why conscription to fight legal wars is permitted by international law. However, these theories struggle to support this notion.

First, the theories tend to be overinclusive. If we accept that individuals can owe certain duties to groups or that there are instrumentally justified duties to fight legal wars, then there is no reason to think that those duties would be owed exclusively, or even primarily, to one’s state. Any community, political or otherwise, would be able to generate such duties, provided that individuals have consented to them, the community is reasonably just, individuals benefit from the existence of the community, and so on. There is, thus, a difficult question of demarcation: why is the state the right entity to which individuals owe duties to fight legal wars?

We live in an increasingly interconnected society in which noncitizens can, in fact, benefit considerably from the functioning and existence of other states—and sometimes to a greater extent than the state’s own citizens. Further, individuals might also benefit from the existence of the international legal system, in which case they would be obliged to that system or to all states, not just to their own. In the context of war, if pacifism is false,²³⁷ there is a plausible argument that legal wars, when they are just and aim to uphold the prohibition on aggression, concern and benefit not just citizens of the states involved, but also the international community as a whole. This has implications for the theories of political obligation just discussed.

Take the fairness and natural duty-based accounts. If legal wars generate benefits to everyone, then everyone would have a duty to fight, and that duty would not be owed to one’s state but to the relevant group (those who benefit from legal wars). If everyone has duties to uphold and further just institutions, then everyone would have a duty to fight a legal war, which would not be owed to one’s state, but to all states or the international community.²³⁸ If we take an instrumental account of political obligation, then one would be required to fight anytime it would help uphold the legal regime or the existence of sufficiently valuable states. And, again, it is unclear why that duty would be owed to any particular state or to one’s own.

The problem, then, is to draw a significant line between citizens and noncitizens. If this is right, accounts of political obligation can explain why the state’s conscription of its own citizens is permitted. However, they will struggle to explain why compelled service in hostile forces to fight legal wars is a war crime, or why non-state groups are prohibited from conscripting individuals to fight legal wars. They provide a reason to the contrary. That is, they provide a reason in favor of everyone having duties to fight legal wars: duties that are owed not to one’s own state, but to the international community as a whole or to other relevant groups. If so, compelled service in hostile forces of the kind that does not involve objectionable forms of treatment or the breach of duties toward others would not be morally unjustified. Even though it would be worse than the state’s conscription of its own citizens, it would be permissible. And although prisoners and those in occupied territories would remain vulnerable, coercing them to fight would not, in at least some circumstances, constitute an instance of harming them, given that it would, in fact, constitute the enforcement of a moral duty to fight.

The second problem with theories of political obligation is that they cannot support the notion that many, or even most, individuals have duties to fight legal wars that are owed to all states, their own states, or the international community. This is so because theories of political obligation have been developed under certain ideal assumptions, mainly that institutions and states are reasonably just. In these ideal circumstances—that is, when states are just and treat members equally—these accounts might be able to take off, to a greater or lesser extent.²³⁹ But they struggle greatly in nonideal conditions, which are the present conditions of all states (and of the international community).

Take the fairness-based theory. In most states, individuals do not equally benefit from the state’s existence and the prevailing social arrangements. In fact, many states not only fail to benefit certain sectors of the population, but also actively contribute to their oppression and marginalization. That is, some individuals are not only not benefitted by the state but also are harmed by it. For example, Raff Donelson has argued that Black people and police in the United States are locked in a Hobbesian state of nature; that is, in this respect, the state fails to secure even the most basic conditions of personal security.²⁴⁰

A fairness-based account already struggles in ideal circumstances. It is hard to accept that the mere fact of benefiting from a social practice or institution provides a good argument as to why those who benefit—and who might not have accepted nor wanted the practice, the institution, or the benefit—can be burdened to obey.²⁴¹ This is particularly the case when the benefits are not equally distributed among members or the costs of complying with the obligations are higher than the benefits the person obtains from the social practice.²⁴² The latter is especially relevant in the context of conscription, in which the costs of compliance are very high (risking severe injury and death in addition to putting oneself at risk of committing morally wrongful acts), but the benefits any given person obtains from the state are likely to be significantly smaller in comparison. In nonideal circumstances this is an even more pressing issue, and the argument simply cannot take off: some individuals (often those who are most likely to be conscripted or drafted) do not benefit from the existence of the state, or benefit very little, and thus cannot be obliged to take on the higher burden of fighting to defend it.²⁴³

The same is true in an associative duties-based account: some individuals simply lack any reason to place noninstrumental value on the existence of their state. The state actively makes their lives worse or prevents them from living justly with others. And in a consequentialist or instrumentalist account, there is no reason for individuals to fight to defend a state (or an international legal order) that they might be better off without, or from which they might benefit little, when the burden of fighting is so high. Further, a consequentialist account could not establish that individuals have general duties to fight; it can only establish that, depending on the circumstances, sometimes some individuals will have duties to fight.²⁴⁴ These might seem, as Murphy writes, “banal empirical observation[s],” but “it is through ignoring such banalities that philosophers generate theories which allow them to spread iniquity in the ignorant belief that they are spreading righteousness.”²⁴⁵

Theories of political obligation then struggle in two dimensions. First, in their idealized versions, they might actually ground duties to fight legal wars that are owed to the community of states. If this is true, then there is a pro tanto reason against the CSHF prohibition when protected individuals are compelled to fight in hostile forces engaged in legal wars. This, of course, cannot provide a complete argument against the CSHF prohibition. Compelled service in hostile forces would remain both morally worse than the state’s conscription of its own citizens and morally wrong when involving objectionable treatment. Further, incentives to treat foreigners poorly would still exist and provide a reason in favor of the prohibition.

Second, in nonideal circumstances (which are the circumstances of all present states), theories of political obligation struggle to ground duties to obey the law. If they struggle to even do this, it is even harder to argue that they could support a duty to fight and kill on behalf of the state (or the community of states), given how demanding the duty is. Theories of political obligation are not unresponsive to the demandingness of the burdens associated with compliance with the law. In the case of conscription, the obligation to fight is extremely demanding, which makes it harder to defend. It is also a grave imposition on individuals’ freedom, which also makes it harder to justify.

If this is true, then both compelled service in hostile forces and the state’s conscription of its own citizens are unjust practices. Although the first is often worse than the second, both are morally wrong. This is so because, in nonideal circumstances, individuals often do not have duties toward the international community nor to their own state to fight and kill on its behalf. And because many individuals lack those duties, it is wrong for states to force them to fight, even in legal wars.

3. The Authority of the State to Enforce Duties to Fight Legal Wars

Note that the argument so far does not establish that no one has duties to fight legal wars that are owed to the state or the international community. The argument only establishes that in nonideal circumstances, many individuals lack such duties. However, at least some individuals might have duties to fight legal wars because, for example, they benefit considerably from the existence of their own state, or they have consented to have such duties by, say, joining the army. Others might have duties to fight a legal war based on instrumental reasons, and some individuals might have moral duties to fight that are owed to their own community or group.

Of course, it can be hard for the state to identify who these people are. But if it could do so, and these individuals refused to fight, can the state enforce their duties to fight?

This is a question about the political legitimacy or authority of the state.²⁴⁶ Although related to the question of political obligation, it is not the same. The question of political obligation pertains to whether individuals have a prima facie moral duty to obey the law. The question about political authority pertains to whether the state is justified to issue and enforce binding directives, sometimes referred to as the question of political legitimacy.²⁴⁷ Some think that the two questions can come apart: it is possible that states are justified in issuing and enforcing directives while, at the same time, individuals lack a moral duty to obey them.²⁴⁸

In the context of conscription, this would mean that states might be justified in demanding conscription of citizens, even in cases in which citizens might lack any duties to accept conscription that are owed to the state. If so, one could argue that compelled service in hostile forces is wrong because hostile forces lack authority over individuals to coerce them to fight on their behalf; that is, they lack political authority regarding foreigners, but they do have authority over their own citizens. Coercion over their own citizens is thus legitimate, whether it involves coercion to pay taxes or to fight wars.

The first problem with relying on the legitimacy of the state is that although most political philosophers agree that legitimacy does not require that the state is perfectly just, it does require that the state is reasonably just.²⁴⁹ However, a significant number of states are not even reasonably just. Only 57% of states in 2017 were “democracies of some kind,”²⁵⁰ and there is disagreement about whether certain states that are “democracies of some kind” are sufficiently just to be legitimate.²⁵¹ Thus, this reliance on political legitimacy cannot explain why conscription is allowed under international law. If anything, it should be severely restricted.

Second, political legitimacy aims to justify state coercion generally. But it cannot justify every instance of coercion: in fact, all theories of political legitimacy recognize limits. Conscription to fight in war is exceedingly burdensome. If, as I have argued, some citizens lack duties to accept conscription precisely due to the state’s failure to protect them, benefit them, or make them better off, then surely the state lacks any sort of prerogative, for the same reasons, to enforce directives to kill and die on its behalf. The state’s authority would only be plausible in the case of those very few citizens who have duties toward the state and, perhaps, in the case of those who have duties to fight owed to other members of the community (but not to the state). For example, in other work I have argued that when burdens are imposed unfairly, the group to which the individual belongs to is corrupt or unjust, and refusal to fight is costly, individuals can have a pro tanto reason to accept conscription because refusing it would entail deflecting harm on other, innocent individuals.²⁵² In this case, however, it is obvious that the state cannot enforce that obligation: that obligation is not, in fact, owed to the state, and the state is acting wrongfully when demanding conscription.²⁵³

In the first case, when duties to fight are owed to the state, we might still put into question the state’s legitimacy to enforce those duties, particularly in severely unequal and individualistic (i.e., capitalist) societies. Such societies, Murphy argues, incentivize individualism. In that context, there is something perverse about the state’s enforcement of obligations to fight and die on its behalf when doing so “presuppose[s] a sense of community in a society which is structured to destroy genuine community.”²⁵⁴

Finally, wars, even legal wars, involve causing harm against many innocent people, including civilians. Legal wars are also often fought unjustly, and war is a particularly morally risky enterprise. If, as Parry and Easton have argued, individuals have a presumptive claim against exposure to moral risk—which grounds duties in others (such as the state) not to expose them to moral risk—then states can hardly demand individuals to fight on their behalf.²⁵⁵ And if, as I have argued, the moral nature of what one is coerced to do matters, individuals facing conscription in conflicts that are fought in breach of jus in bello norms could also not be coerced to fight.

Ultimately, even if some citizens have duties to fight, it will often be the case that citizens are similarly placed to noncitizens: both will lack duties to fight that are owed to the state, and the state will lack authority to enforce duties to fight on its behalf. If that is true, then the state’s conscription of its own citizens is not generally permissible. Conscription to fight in wars cannot be justified as a legitimate practice deserving of international protection—at least not until states become more just.

IV. A MORALLY COHERENT INTERNATIONAL REGIME ON CONSCRIPTION

I have argued that the international legal regime on conscription is morally incoherent. In order to justify the regime, two arguments needed to succeed, yet both have failed.

First, the regime’s failure to distinguish between legal and illegal wars cannot be justified. There is no argument why compelled service in hostile forces to fight a legal war is equally bad or equally wrong as compelled service in hostiles forces to fight a war of aggression. The latter seems significantly worse. Although both cases involve coercion, the latter involves coercion to contribute to an international crime. As a result, the nature of the war one is coerced to fight should be an additional aspect of the crime.

Further, the distinction between legal and illegal wars is also relevant pertaining to the state’s conscription of its own citizens. States should be prohibited from conscripting their own citizens to fight wars of aggression. There are also powerful reasons for thinking it should be a war crime; severely infringing individuals’ liberty to coerce them to participate in deeply wrongful acts does seem to “shock the conscience” of humankind. And it certainly seems sufficiently serious for international law to be concerned with it.

Second, although, all else equal, compelled service in hostile forces of protected persons is often morally worse than the state’s conscription of its own citizens, the argument that supports this claim—that it is worse to harm those who are vulnerable and to be forced to fight against those we care about—cannot render the state’s conscription of its own citizens permissible. It can only show that the state’s conscription of its own citizens might be morally better (or less bad) than compelled service in hostile forces. But the fact that the state’s conscription of its own citizens is morally better (or less bad) than compelled service in hostile forces cannot show, in and of itself, that conscription by the state is permissible or justified. In fact, in current, nonideal conditions, citizens will often lack duties to fight that are owed to their own states, and the state will also lack authority to compel its own citizens to fight, even in legal wars. This is what makes both compelled service in hostile forces and conscription to fight wars morally wrong.

There are thus powerful pro tanto reasons for international law to prohibit states from conscripting or drafting individuals to fight wars. There might also be reasons why it should be an international crime, for the same reasons why conscription in the context of illegal wars should be one. Conscription has been described as “tyranny,” and the peculiar horror of modern warfare as a social practice is that states can exercise “ ‘tyrannical power’ ” against their own loyal people as well as their enemies.²⁵⁶ I will not argue in favor of this, but, if that were the case, the war’s illegality should be an additional aspect of the crime of conscription.

In sum, to render the regime morally coherent, the state’s conscription of its own citizens to fight an aggressive war should be a war crime; the illegality of the war should be an additional aspect of the crime of compelled service in hostile forces; and the state’s conscription of its own citizens should be generally prohibited.

However, I have not made an all-things-considered case in favor of the prohibition of conscription at the international level. I have said that the regime is morally incoherent and there are powerful reasons to render it coherent. But perhaps there are other, more powerful reasons why the state’s conscription of its own citizens to fight legal wars should be permitted by international law.

First, one might argue that prohibiting conscription would make it harder to fight both legal and illegal wars. If anything, it would make the former harder than the latter. This is so because if international law prohibited conscription, the states more inclined to comply with that prohibition would be precisely those states more likely to be engaged in legal wars. On the contrary, states likely to be engaged in illegal wars would be more likely to breach that prohibition. If that were the case, then international law would create a perverse system in which rogue states would breach the prohibition on conscription while law-abiding states would not, thus allowing the first to gain a significant military advantage over the latter.

I think this worry is overblown. It might be that legal wars would become more expensive to fight than illegal wars if the first relied on professional armies and the latter relied on conscription. However, I do not think the costs of war are reasons weighty enough to permit conscription, which severely infringes on individuals’ liberty. States would remain free to have AVFs, and they would also remain free to ask individuals to volunteer to fight in legal wars in certain circumstances.

Second, some might argue that conscription would be justified in the case of what Walzer calls a “supreme emergency,”²⁵⁷ in which the very existence of the state (or the international community) is at stake. Friedman, who was generally opposed to conscription, suggested that for a major war or “in times of the greatest national emergency,” a strong case in favor of compulsory service can be made.²⁵⁸ This would be the case if winning the war required conscription because, say, not enough individuals would volunteer to fight otherwise. But whatever one thinks about this case, it is not enough, on its own, to show that conscription should thus be generally permitted by international law. It only shows that there might be an exception regarding the (moral) prohibition on conscription. But laws should not be made thinking solely about the exception, especially when they are likely to be abused to commit wrongdoing.

Third, suppose that international law is committed to peace, as discussed before. And suppose, further, that lack of conscription in times of war makes it more likely for state leaders to go to war. This is known as the “chickenhawk syndrome.”²⁵⁹ Basically, the existence of an all-volunteer army, as opposed to one based on the draft or conscription, severs the connection between citizens and the wars that are fought on their behalf.²⁶⁰ Doing so makes war much easier: political leaders are more likely to go to war when war requires no personal sacrifice of their own or of their loved ones.²⁶¹

One might then posit that the prohibition on conscription would be self-defeating: instead of resulting in fewer wars, it would result in more wars, thus making peace more difficult to achieve. It is hard to know what to make of this objection. Conscription of citizens who lack duties to fight involves the violation of individuals’ most important rights at the hands of the state. It is at the very least controversial that we can make trade-offs regarding such rights in order to achieve certain desired outcomes (in this case, fewer wars).²⁶² If anything, the solution to this problem is to introduce other modifications, at the domestic or international level, to make wars harder to fight and that do not involve the violation of individuals’ rights.

Further, it is not clear at all that the inability of states to conscript their own citizens to fight would result in more wars. States are much more likely to fight illegal (and unjust) wars than to fight just ones, and allowing them to conscript individuals only facilitates their wrongdoing.

Finally, one might argue that although it is true that many individuals do not have duties to fight on behalf of the state, at least some individuals do. Thus, because at least some of the time conscription involves forcing people to do what they already have a duty to do, it should not be prohibited by international law. However, it would be impossible for states to determine who has moral duties to fight on their behalf (and in some cases, the state would still lack legitimacy to enforce such duties). As a result, a regime of conscription that could distinguish between those who have duties to fight and those who do not is not only unfeasible, but also very likely to get it wrong and thus violate individuals’ freedom by forcing them to fight. This seems to me a sufficient reason to generally forbid conscription to fight wars: if when states conscript individuals, they are likely to violate their freedom, then we should generally forbid conscription.

Again, the argument so far does not establish that all individuals in all circumstances lack duties to fight legal wars. Some individuals will have such duties in certain circumstances—for example, due to instrumental reasons, or because the state or the international community has benefitted them considerably. The point is only that the state should not be generally allowed to conscript individuals because, in present circumstances, many individuals lack those duties and conscripting them constitutes a grievous violation of their freedom. There are powerful reasons to generally prohibit state practices that are likely to violate the rights of many individuals, particularly when we cannot ensure that the practice is conducted in a way that can appropriately distinguish between individuals who have duties to fight and individuals who do not.

It is also important to note that the fact that there might be a legal prohibition on the state’s conscription of its own citizens does not present an insurmountable obstacle in enforcing moral duties to fight regarding those individuals who have them. In those cases, social pressure to comply with duties to fight might be justified, and states might be able to avail themselves of other mechanisms, short of coercion, to persuade individuals to fight on their behalf.

Thus, I think that the reasons in favor of rendering the international legal regime morally coherent are not just pro tanto reasons, but also conclusive ones, at least if one thinks that individuals’ rights should operate as a constraint on state action. International law should prohibit conscription to fight in war. The state’s conscription of its own citizens to fight aggressive wars should be a war crime. And the illegality of the wars individuals are compelled to fight should be an additional aspect of the crime of conscription.

There are different ways in which these changes could be achieved. For example, they might involve making conscription generally prohibited under international human rights law, with conscription to fight aggressive wars qualifying as a war crime under the jurisdiction of the ICC. It would also be necessary to grant extensive rights to individuals to engage in conscientious objection against military service in war and expand refugee protections to those who are forced to fight wars of aggression. The latter mechanism has the advantage of leaving the assessment of the war’s legality to domestic tribunals, thus bypassing the usual deadlock in the UNSC regarding these matters. I leave somewhat open the details of what a coherent regime would look like in practice, how it should be effectively enforced, and so on.

The idea that international law should generally prohibit conscription in times of war is, perhaps, completely utopian. It is also likely to destabilize other areas of international and domestic law, given how pervasive the idea that we owe special duties to our states is.²⁶³ We might thus think that it is very unlikely that states would ever agree to any such norm prohibiting conscription during times of war, and that we should focus on making it a crime for states to conscript individuals to fight in wars of aggression. This might be true as a matter of what is presently feasible to achieve and how we should set our priorities.

However, the fact that something is utopian does not alter the moral demands.²⁶⁴ If conscription to fight legal wars is often wrong, then it remains wrong—even if we are unable to prohibit it—at least until states or the international community are more successful in achieving justice.

CONCLUSION

This Article started by pointing out an asymmetry in the international legal regime on conscription: while compelled service in hostile armed forces is a war crime, a state’s conscription of its own citizens is the state’s prerogative. In order to defend the content of this regime, two arguments needed to succeed: first, that the distinction between legal and illegal wars is normatively insignificant; second, that compelled service in hostile forces is significantly different from conscription.

Both arguments have failed. The distinction between legal and illegal wars is morally significant. And although compelled service in hostile forces is wrong and is often morally worse than the state’s conscription of its own citizens, the latter is often not morally permissible.

As a result, the international legal regime on conscription is morally incoherent. It is morally incoherent because it is incomplete and cannot be made sense of.²⁶⁵ It is incomplete because it fails to criminalize or prohibit conduct (the state’s conscription of its own citizens) that is similarly wrong than what it already criminalizes (compelled service in hostile forces). Furthermore, it cannot be rendered morally intelligible in two ways. First, what makes compelled service in hostile forces wrong also makes the state’s conscription of its own citizens wrong, yet the latter is permitted. Second, international law fails to distinguish between legal and illegal wars.

None of these implications mean that the CSHF prohibition lacks value or is morally misguided. On the contrary, the CSHF rule prohibits something that is morally wrong in a context in which states are likely to have perverse incentives to use individuals in objectionable ways, and as such, it is a valuable rule. Nonetheless, the international legal regime on conscription allows states to use the lives and bodies of millions of people to fight wars, both lawful and unlawful. Furthermore, it allows them to do so through coercive means. In order to render this regime morally coherent, conscription should be prohibited, and the unlawfulness of the war individuals are coerced to fight should be an additional aspect of the crime of conscription.

After all, individuals have only one life to live, and wars sow destruction, death, and suffering on a massive scale. As Walzer notes, “there has never been a more successful claimant of human life than the state.”²⁶⁶

97 S. Cal. L. Rev. 1289

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Marcela Prieto Rudolphy*

* Associate Professor of Law and Philosophy, University of Southern California Gould School of Law, Los Angeles, California, United States of America, mprieto@law.usc.edu. Profesora adjunta extraordinaria, Universidad Adolfo Ibáñez, Escuela de Derecho, Santiago, Chile. I am indebted to Scott Altman, Ángel Díaz, Felipe Jiménez, Mugambi Jouet, Erin Miller, Jeesoo Nam, Jessica Peake, and the attendees of the Southern California International Law Scholars Workshop; the attendees of the Diálogos of Derecho Internacional Conference; Norrinda Brown, Benjamin Zipursky, and the attendees of the Fordham Legal Theory Faculty Workshop; Jaya Ramji-Nogales and the attendees of the ASIL Mid-year Research Forum Meeting; Seana Shiffrin, Lawrence Sager, and the attendees of the UCLA Legal Theory Workshop; and the attendees of the USC Faculty Workshop for their generous feedback. A special thanks to Jessica Murphy for her assistance with research and the editors of the Southern California Law Review for their excellent work.

AUTHORS’ NOTE

INTRODUCTION

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

A. Summary of the Blackman-Tillman Interpretation

B. Reliance by Lower Colorado Court

C. Rejection by Colorado Supreme Court

D. The Colorado GOP’s Petition for Certiorari

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

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

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

1. Text of the Constitution

2. Early State Constitutions

3. Articles of Confederation

4. Addresses to and from George Washington

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

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

1. Appointments Clause

2. Impeachment Clause

3. The Presidential Oath and the Article VI Oath

4. Commission Clause

III. A PRIMER ON LINGUISTIC DRIFT

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

A. Evidence from the Text of the Fourteenth Amendment

B. Evidence from the Legislative History of the Fourteenth Amendment

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

D. Evidence from the Legislative History of the Fifteenth Amendment

E. Evidence from Popular Sources that Officers Are Elected

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

A. Evidence from the Legislative History of the Fourteenth Amendment

B. Evidence from the Impeachment Trial of Andrew Johnson

C. Evidence from President Andrew Johnson’s Appointment Proclamations

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

E. Evidence from Other Contemporary Sources

V. HARTWELL AND MOUAT REVISITED

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

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

CONCLUSION

APPENDIX A. SELECTION MECHANISM FOR GOVERNORS IN THE EARLY STATES

APPENDIX B. SELECTION MECHANISM FOR JUDGES IN THE EARLY STATES

APPENDIX C. OATHS THAT STATE EXECUTIVE OFFICERS TOOK IN SOUTHERN/FUTURE REBEL STATES IN THE ANTEBELLUM ERA

98 S. Cal. L. Rev. 65

INTRODUCTION

I. SOCIAL MOVEMENT POLITICS

A. The Pre-History (and Tradition)

1. Holmes and Moody

2. Ozie Powell and Frank Palka (not Palko)

B. Post-War Family Planning

1. “Tradition is a living thing.”

2. Constitutional Updating

3. Privacy and Penumbras

C. Sex, Abortion, and Cohabitation

1. Catholics, Protestants, and Jews

2. From Poe to Roe

3. City of East Cleveland

II. FORGING A CONSERVATIVE LEGAL MOVEMENT

A. Coalition and Constitution-Making

1. The Federalist Society

2. The Rutherford Institute

B. From Michael H. to Casey

1. Integrating the New Christian Right

2. Alliance Defending Freedom

C. Evolving and Entrenched Traditionalism

1. The Battle in Glucksberg

2. From Lawrence to Obergefell

III. REMAKING TRADITIONALISM

A. Doctrinal Puzzles

1. Activism and Calcification

2. Levels of Generality

3. Gloss and Liquidation

B. Common Ground

1. Shared Vocabulary

2. Constitutional Trimming

C. Remaking Rights

1. Abortion, Guns, and God

2. Medical Refusal and Aid-in-Dying

3. Birth Control, Sexual Intimacy, and Marriage

4. Fetal Rights and Assisted Reproduction

5. Gender-Affirming Care and Conversion Therapy

CONCLUSION

98 S. Cal. L. Rev. 1