Nikolas Bowie

Assistant Professor of Law

Griswold 406

617-496-0888

Assistant: Rachel Keeler / 617-495-8304

Biography

Nikolas Bowie is an assistant professor of law at Harvard Law School. He is a historian who teaches and writes about federal and state constitutional law and local government law. He is currently researching how the federal and state constitutions have been interpreted to protect cities from being subordinated by larger governments. He is also researching why the federal and state constitutions were written down in the first place.

In addition to teaching and writing, Professor Bowie litigates appeals with the Committee for Public Counsel Services, the public defender agency of Massachusetts. He sits on the City of Cambridge’s planning board, which applies and recommends changes to the city’s zoning ordinance. He is on the board of the Lawyers’ Committee for Civil Rights and Economic Justice, which advocates on behalf of immigrants and people of color. He is also an avid marathoner.

Professor Bowie received a BA in history from Yale and a JD and PhD in history from Harvard. He wrote his dissertation on the history of American corporations since 1629, emphasizing how people have thought of corporations as forms of government that require the same checks and balances as states. Between law school and graduate school, Professor Bowie clerked for Judge Jeffrey Sutton of the US Court of Appeals for the Sixth Circuit and Justice Sonia Sotomayor of the US Supreme Court.

Areas of Interest

Nikolas Bowie, The Government Could Not Work Doctrine, 105 Va. L. Rev. 1 (forthcoming 2019).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Abstract
For over two thousand years, conscientious people from Plato to Gandhi have grappled with the dilemma of how to respond when a government orders you to do something you disagree with — say, pay a tax that will fund a war. Perhaps the most famous answer comes from the book of Matthew, when Jesus of Nazareth declared, "Render . . . unto Caesar the things that are Caesar's, and unto God the things that are God's." One way to interpret this declaration contends that you should always comply with fairly imposed civil obligations — at least until you can persuade others to accommodate your views. A second argues that if conscience so dictates, you should disobey the government and accept whatever punishment it doles in return. Recently, a group of constitutional lawyers have offered a third option: Sue the government. Adopting a libertarian interpretation of the First Amendment's protection of free speech and religious exercise, these lawyers argue that it is presumptively unconstitutional for the government ever to put one's moral obligations in conflict with one's civil obligations. As evidence, they draw on cases such as West Virginia v. Barnette, in which the Supreme Court struck down a regulation that compelled objecting school children to recite the pledge of allegiance. In the past few years these lawyers have asked the Court to extend Barnette's logic to petitioners who object to birth control, labor unions, vaccinations, same-sex marriage, and all kinds of politically charged topics. The Supreme Court has been sympathetic to these lawyers, in one case declaring that the First Amendment generally "prevent[s] the government from compelling individuals to express certain views or pay subsidies for speech to which they object." The Court has even acted on this declaration to invalidate laws that tax public-sector employees and donate the revenue to politically active labor unions. But this declaration is wrong. Treating compulsory laws as presumptively invalid not only contradicts historical practice, it's also at odds with the Court's precedent in nearly every other constitutional context. The First Amendment, along with the rest of the Constitution, was adopted to create a functional government out of the embers of a failing state. For any government to function — especially in a politically and religiously pluralistic society like the United States — it must be able to compel residents to do all sorts of things a minority might disagree with, from paying taxes and obeying generally applicable laws to accepting conditions on public benefits. Accordingly, the Supreme Court has rejected claims brought under every clause of the First Amendment (and many other articles of the Constitution) whenever it has realized that "government would not work" were it constitutionally prohibited from compelling citizens to do or pay for things they might not like. Even the author of Barnette recognized the danger of converting the First Amendment into a suicide pact. This Article molds these Supreme Court moments of clarity into a coherent doctrine, which I call the "government could not work" doctrine. Analyzing a wide variety of cases, I conclude that objectionable compulsion, in and of itself, should not make a law presumptively unconstitutional, triggering the so-called strict scrutiny that the Court currently applies when a person objects to subsidizing the political activity of a labor union. As the Court has declared throughout its history — with a brief exception between about 1940 and 1980 — applying such strict scrutiny every time a person challenges a compulsory law would "cripple" the government. In other words, the First Amendment doesn't render American citizens uniquely exempt from the universal dilemma of having to decide whether to abide by a disagreeable law. The authors of the First Amendment wanted a government that tolerated dissent, not a government that would be incapacitated by it.
Nicholas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. (forthcoming 2019).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Abstract
A funny thing about the U.S. Constitution is that it’s written down. Words might seem like an obvious feature of a constitution, but they're notably missing from much of the constitution of the United Kingdom, the country from which the United States seceded. Historians have often assumed that the quirky American practice of putting constitutions into single documents has its origins in the corporate charters of the seventeenth-century trading companies that founded more than half of the thirteen original states. But, as historian Mary Bilder has written, it is surprisingly difficult to explain the change from corporate charter to modern constitution with precision and persuasive power. This Article attempts to do just that, telling the story of an eighty-year lawsuit that forced the Massachusetts Bay Company to treat its charter's terms as Gospel. Relying on original research of thousands of primary sources from the United States and United Kingdom spanning from 1607 through 1793, the Article presents an account of how a corporate charter evolved into a “Charter Constitution” in America while the British Constitution remained intangible. The Article demonstrates that written words became a defining feature of American constitutionalism a century before the American Revolution, and that this distinction between the American and British understanding of constitutions contributed to American independence. It also demonstrates that charter constitutionalism emphasized text but also included methods of interpretation that today might be described as purposivist or living constitutionalist.
Nikolas Bowie, Corporate Democracy: How Corporations Justified Their Right to Speak in 1970s Boston, 36 L. & Hist. Rev. ___ (forthcoming 2018).
Categories:
Constitutional Law
,
Corporate Law & Securities
Sub-Categories:
First Amendment
,
Nonprofit Organizations
,
Business Organizations
,
Shareholders
Type: Article
Abstract
In 1976, the First National Bank of Boston, Gillette, and three other Massachusetts companies announced their plan to oppose a referendum authorizing a graduated income tax. State officials responded that Massachusetts law prohibited this type of corporate political expenditure. The U.S. Supreme Court intervened, declaring that Massachusetts could not prohibit speech based solely on the “corporate identity of the speaker.” The Court reasoned that shareholders through “corporate democracy” were better positioned than states to regulate companies’ political engagement. In the wake of this decision, the Boston City Council—a municipal corporation—announced its plan to spend its corporate dollars in support of a 1978 tax referendum. That same election, Massachusetts Citizens for Life—a nonprofit corporation—financed newsletters promoting anti-abortion candidates. State and federal officials again blocked these corporate political expenditures. This time, however, the Supreme Court protected only the nonprofit, observing that a “voluntary political association” did not “suddenly present the danger of corruption merely by assuming the corporate form.” These Supreme Court decisions armed business and nonprofit corporations with a powerful new weapon—the First Amendment—that future lawyers wielded against advertising bans, labor contracts, healthcare requirements, and, of course, campaign finance laws. At the same time, the decisions left the City of Boston unable to support referenda that the Bank of Boston was free to oppose. This paper will situate this “First Amendment libertarianism” in the political, legal, and social context of 1970s Boston, a city gripped by racial crisis and dependent on business corporations, especially the Bank of Boston, for financial survival. This context helps explain why courts, lawyers, and executives expected that shareholders could responsibly oversee governments better than governments could oversee shareholders—or themselves.
Nikolas Bowie, Corporate Democracy: The Origins of First Amendment Libertarianism in 1970s Boston, Am. Hist. Soc’y Ann. Meeting (Jan. 8, 2017).
Categories:
Constitutional Law
,
Corporate Law & Securities
Sub-Categories:
First Amendment
,
Nonprofit Organizations
,
Business Organizations
,
Shareholders
Type: Presentation
Abstract
In 1976, the First National Bank of Boston, Gillette, and three other Massachusetts companies announced their plan to oppose a referendum authorizing a graduated income tax. State officials responded that Massachusetts law prohibited this type of corporate political expenditure. The U.S. Supreme Court intervened, declaring that Massachusetts could not prohibit speech based solely on the “corporate identity of the speaker.” The Court reasoned that shareholders through “corporate democracy” were better positioned than states to regulate companies’ political engagement. In the wake of this decision, the Boston City Council—a municipal corporation—announced its plan to spend its corporate dollars in support of a 1978 tax referendum. That same election, Massachusetts Citizens for Life—a nonprofit corporation—financed newsletters promoting anti-abortion candidates. State and federal officials again blocked these corporate political expenditures. This time, however, the Supreme Court protected only the nonprofit, observing that a “voluntary political association” did not “suddenly present the danger of corruption merely by assuming the corporate form.” These Supreme Court decisions armed business and nonprofit corporations with a powerful new weapon—the First Amendment—that future lawyers wielded against advertising bans, labor contracts, healthcare requirements, and, of course, campaign finance laws. At the same time, the decisions left the City of Boston unable to support referenda that the Bank of Boston was free to oppose. This paper will situate this “First Amendment libertarianism” in the political, legal, and social context of 1970s Boston, a city gripped by racial crisis and dependent on business corporations, especially the Bank of Boston, for financial survival. This context helps explain why courts, lawyers, and executives expected that shareholders could responsibly oversee governments better than governments could oversee shareholders—or themselves.
Nikolas Bowie, Note, Congress’s Power to Define the Privileges & Immunities of Citizenship, 128 Harv. L. Rev. 1206 (2015).
Categories:
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Fourteenth Amendment
,
Civil Rights
,
Congress & Legislation
,
Courts
,
State & Local Government
,
Separation of Powers
Type: Article
Nikolas Bowie, Case Comment, Massachusetts v. United States Department of Health & Human Services, 126 Harv. L. Rev. 611 (2012).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Fifth Amendment
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Statutory Interpretation
Type: Article
Nikolas Bowie, Poison Ivy: The Problem of Tax Exemption in a Deindustrializing City; Yale and New Haven, 1967–1973, 3 Found. 61 (2009).
Categories:
Taxation
,
Government & Politics
Sub-Categories:
State & Local Government
,
Taxation - Exemptions
Type: Article
Abstract
This paper addresses the question of what the role of a tax-­exempt university has been in a deindustrializing city, and how the university has conceived of its responsibilities as an “institutional/corporate citizen” when confronting the need to expand. In 1973, Yale University attempted to build two new residential colleges, but the New Haven city council vetoed construction on the grounds that such expansion would deprive the city of needed tax revenue. This fight was well recorded in Yale president Kingman Brewster’s archives, which also reveal how Yale saw its conflicting responsibilities towards the nation and towards the city.

Education History

Current Courses

Course Catalog View

Griswold 406

617-496-0888

Assistant: Rachel Keeler / 617-495-8304