Noah Feldman

An op-ed by Noah Feldman. Spain’s Prime Minister Mariano Rajoy is playing with fire. Over the weekend, he announced he would invoke a never-used provision of the Spanish constitution to remove the elected leaders of Catalonia from office because of their support for Catalan independence. The provision, with antecedents going back to the Holy Roman Empire, is designed to avoid fundamental conflict between federal states and a central government. Had the U.S. Constitution included a similar rule, it might have helped avert the Civil War. But historically, invoking the right to put down a rogue state also poses a grave danger to federalism and even democracy itself, as it did when Germany last took a similar step, in 1932.

An op-ed by Noah Feldman. It was Richard Spencer’s party, and he can cry if he wants to. But the hecklers who shouted down the white supremacist Thursday at his University of Florida speech were invited guests, not government crashers. They held tickets distributed by Spencer’s own National Policy Institute. So they didn’t violate Spencer’s free speech rights by drowning him out with chants telling him to go home. Only the government is obligated to respect free speech rights -- and the university and law enforcement did everything by the book, to protect Spencer’s safety and preserve law and order outside the venue.

An op-ed by Noah Feldman. The fall of Raqqa won’t be the last time you hear the words “Islamic State.” The name remains capable of inspiring acts of terrorism, and various groups fighting for territory in failed states around the world may continue to borrow the brand. But the collapse of the caliphate’s capital -- the last remaining symbol of Islamic State’s claim to control sovereign territory -- marks the end of what made the entity unique. Future historians will study how the capture of territory enabled what had been a ragtag group of Iraqi and a few Syrian jihadis to gain the attention and the imagination of supporters and opponents worldwide.

An op-ed by Noah Feldman. The growing military confrontation between Kurdish and Iraqi forces around Kirkuk has been a long time coming -- since 2004, in fact, when Iraq’s Transitional Administrative Law, its interim constitution, flagged the city’s status as disputed territory and deferred resolution into the indefinite future. The conflict combines nationalism, politics and the magic ingredient that makes so many of the region’s problems so hard to fix: oil. The consequences of an escalating conflict are huge. Kirkuk has the potential to spark a full-on civil war between the central government in Baghdad and the regional government of Kurdistan.

An op-ed by Noah Feldman. There’s a fight brewing on Capitol Hill over whether to put to rest the “blue slip” custom that allows senators to block judicial nominees who would have jurisdiction over their states. The intraparty fight, between Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley, poses a serious question that should be decided independent of party: Are the blue slips a good idea? Do they promote moderation in the federal courts, or are they an undemocratic relic of senatorial privilege that should go the way of the dodo?

An op-ed by Noah Feldman. President Donald Trump can’t carry out his threat to take away the National Football League’s tax-exempt status aimed at making the league force players to stand for the national anthem. That would be a clear violation of the First Amendment. It’s true that the NFL had voluntarily given up its tax break two years ago, which means that Trump’s threat wouldn’t have practical effect even if he could make it stick. But as the Supreme Court recently held, even an effort to violate free speech based on a factual mistake is illegal.

An op-ed by Noah Feldman. Several state attorneys general have announced they will sue to block the Environmental Protection Agency’s rollback of President Barack Obama’s signature Clean Power Plan. Can they win? And should they? The answer to both questions is no, but not because of anything inherently wrong with the plan to cut greenhouse-gas emissions from power plants. Although administrative decisions must be rational, they are permitted to reflect the president’s political priorities and beliefs. Donald Trump won the election, and now he gets to impose his pro-coal environmental vision. That may be terrible for the earth, but it’s good for democracy.

Donald Trump's Twitter account now has 40 million followers. It ranks 21st worldwide among 281.3 million or so accounts. It’s no secret that Trump is proud of his ability to use the account to communicate directly with his constituents...It raises the question: Are social media platforms like Twitter subject to the First Amendment? Is there a right to free speech on social media owned by private corporations?...Harvard Law School’s Noah Feldman added his voice to the dissenters.

An op-ed by Noah Feldman. Justice Anthony Kennedy’s comments during oral arguments in the partisan gerrymander case, Gill v. Whitford, are fueling speculation that he might provide the decisive fifth vote for a historic decision that could reshape electoral politics. If he does, however, that could spell trouble for gay-rights advocates who also need Kennedy’s vote in the wedding cake case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. As the U.S. Supreme Court’s swing voter, Kennedy has a habit of issuing major liberal decisions alongside outcomes that read as conservative -- all the while considering himself internally consistent.

An op-ed by Noah Feldman. The secession of a region without constitutional authority is a big deal, as referendums in Catalonia and Kurdistan have shown in the last week. To get a sense of the possible consequences, think of the U.S. Civil War, which started precisely because Southern states insisted they could secede while Northern states pointed out that such a right was nowhere in the U.S. Constitution.

An op-ed by Noah Feldman. President Donald Trump managed to head off the drama of a Supreme Court confrontation, for now, by issuing a new travel ban last week. But the justices begin a new term Monday with other exciting, high-profile cases planned, tackling issues such as religious liberty and equality, privacy, unions and employees’ rights, and international human rights. One of the cases, a challenge to partisan gerrymandering, could turn out to be the most game-changing decision by the court in the realm of politics since one person, one vote.

An op-ed by Noah Feldman. There’s something profoundly morbid about watching the U.S. Supreme Court and worrying about the health of your favorite aging justices. (They’re 84, 81 and 79, by the way.) A mandatory retirement age would take away the uncertainty. Such a rule was part of an elaborate court-packing plan proposed Monday by the president of Poland -- before he withdrew it under intense international pressure. In principle, age limits for life-tenured judicial appointees make a lot of sense.

An op-ed by Noah Feldman. Roy Moore is more extreme than you think -- and his candidacy for a U.S. Senate seat is not a joke, but a serious threat to the Constitution and the rule of law. The shenanigans that got Moore thrown out of office as the chief justice of the Alabama Supreme Court -- twice! -- were more than just acts of civil disobedience on behalf of evangelical religion. Both times, Moore intentionally defied and denied the authority of the U.S. courts to have the final say on the Constitution. That’s the core principle on which our legal system rests.

An op-ed by Noah Feldman. It’s good news that women will soon be able to drive in Saudi Arabia. But as a milestone, it isn’t primarily a marker of sex equality, which remains a distant objective in the kingdom. Rather, it’s an important indication that the monarchy now thinks it doesn’t have to defer to the country’s religious establishment. That’s a remarkable development that may allow some modernization -- but also heralds a move away from the separation of powers and toward consolidation of absolute authority in a totalitarian king.

An op-ed by Noah Feldman. Can the addition of North Korea and Venezuela save President Donald Trump’s third travel ban from the constitutional flaws of his first two? By rights, the answer should be no -- and the new ban would be unlikely to survive careful judicial scrutiny of its shaky logic. But in the real world, the U.S. Supreme Court may take the opportunity to de-escalate the ongoing conflict between the Trump administration and the judiciary. If that is so, a majority of the justices could simply defer to Trump’s assertion that the countries on the list were chosen because they don’t provide information to facilitate screening of visitors.

An op-ed by Noah Feldman. As Donald Trump’s administration enters its ninth month, it’s worth considering a surprising possibility: Things have never been better in the turbulent period since the president took office. Trump’s most blatantly unconstitutional actions, like the travel ban on immigrants from a number of majority Muslim nations, have been blocked by the courts. Steve Bannon, Mike Flynn and Sebastian Gorka are out of power. The reasonable generals (John Kelly, H.R. McMaster, James Mattis) are in. The repeal of the Affordable Care Act has failed (so far). A deal with Democrats on DACA, the policy allowing undocumented immigrants brought to the U.S. as children to stay, is in the offing. There will be no wall, paid for by Mexico or otherwise, on the southern border. Dangerously extreme tax reform seems unlikely to pass.

An interview with Noah Feldman. An Intelligence Squared debate about the most pressing global challenges facing the Trump administration. Prominent foreign policy experts debate what to do about North Korea, and our strategic relationships with China and other countries.

An op-ed by Noah Feldman. President Donald Trump has to decide what to do with an American who was fighting for Islamic State, captured by Kurdish forces in Syria and handed over this week to the U.S. military. The best solution is also the simplest: Charge him with material support for terrorism, convict him and lock him up in an appropriate U.S. prison for many, many years. In any sane, nonpartisan world, this decision would be a no-brainer. The other options are all flawed -- practically, or legally, or both.

Today is "Constitution Day," marking the anniversary of the adoption of the US Constitution on September 17th, 1787. James Madison is considered the "father of the Constitution," and Harvard Law professor Noah Feldman is coming out with a new book about him in October titled, "The Three Lives of James Madison: Genius, Partisan, President." Feldman says James Madison was a politician with a long-term view. He wanted a government of the people, a republic, but not an empire. Madison left office more popular than any of his predecessor presidents. Feldman spoke at the Aspen Ideas Festival in Aspen, Colorado on June 26, 2017.

An op-ed by Noah Feldman. Cake baking is an art. Or, so says a group of professional wedding cake bakers who have filed a friend of the court brief with the U.S. Supreme Court in what promises to be the blockbuster case of the upcoming term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The brief is obviously intended to support the claim of a baker to be exempt from anti-discrimination laws that say he must serve gay customers. It’s all together reasonable to think that a professional baker is an artist. The thing is, that shouldn’t matter. Artists are just like anyone else who has a business open to the public: They have to comply with anti-discrimination laws.