Noah Feldman

The great divergence is rapidly expanding—and President Joe Biden’s window to reverse it is narrowing. Since the 1960s, Congress and federal courts have acted mostly to strengthen the floor of basic civil rights available to citizens in all 50 states, a pattern visible on issues from the dismantling of Jim Crow racial segregation to the right to abortion to the authorization of same-sex marriage. But now, offensives by red-state governments and GOP-appointed federal judges are poised to retrench those common standards across an array of issues. The result through the 2020s could be a dramatic erosion of common national rights and a widening gulf—a “great divergence”—between the liberties of Americans in blue states and those in red states. ... The movement toward more uniform national rights has hardly proceeded in a straight line, particularly since appointments by Republican presidents have established a conservative Court majority since the 1970s. But the expansion of rights has been the general movement of federal policy since at least the height of the civil-rights era. That trajectory included the landmark civil-rights and voting-rights acts of the mid-1960s; the approval of Title IX barring sex discrimination in higher education; and the Court decisions invalidating state bans on contraception, inter-racial marriage, and abortion, as well as the Court’s rulings establishing the principle of “one person, one vote” in redistricting. “The civil-rights movement underscored the idea that there is a baseline of rights that should be available to everybody in every state,” Noah Feldman, a constitutional scholar at Harvard Law School, told me.

Watch: Harvard law professors Randall Kennedy and Noah Feldman join Fareed to examine the conversation around critical race theory in America today.

An op-ed by Noah Feldman: Are we living in 1858 or 1968? That is, are America’s divisions so profound and political institutions so crippled that we are poised for a breakdown akin to the Civil War? Or is the current polarization the product of conflicting social forces that can be gradually reconciled or redirected into more healthy electoral competition? In this more hopeful scenario, even if we undergo 1970s-style economic malaise and the odd trauma like Watergate, we re-emerge and enter a phase of comparative national health and even greatness.

A column by Noah Feldman: If you can’t beat ’em, join ’em. That’s the spirit of the law proposed by California Governor Gavin Newsom to empower private citizens to sue anyone who makes or sells assault rifles in the state. The law violates the Second Amendment as interpreted by a federal district court in California. The idea is to circumvent the constitutional ban for a time — just as the Texas legislature has circumvented Roe v. Wade by empowering private citizens to sue abortion providers. Now that the Supreme Court has limited the abortion providers’ ability to get the Texas law frozen in protection of their constitutional rights, Newsom wants to send the message that what is sauce for the conservative goose is also sauce for the liberal gander. Beyond the legal detail, which I’ll explain in a moment, is a serious, deep question: Should liberals stoop to the level of conservatives in circumventing federal courts’ authority? Is this one of those situations where when one side is playing hardball, it’s foolish to bring a whiffle bat? Or is the Constitution in this instance an arena of principle, in which meeting constitutional disrespect with more constitutional disrespect will only erode the rule of law?

A column by Noah Feldman: As Republicans develop a strategy for the 2022 and 2024 elections, expect them to borrow at least one trick from the playbook that Glenn Youngkin used to win the 2021 Virginia governor’s race: tar Democrats with the brush of “critical race theory.” Almost no one can say exactly what CRT is, but that doesn’t seem to have mattered last month in the northern Virginia suburbs, where the Republican made inroads among Democrat-leaning voters. The attack on CRT is a proxy for a vulnerability that Republicans correctly see Democrats as having. The consciousness-raising of Black Lives Matter and a new focus on the legacy of slavery has left the party flailing. Democrats — and progressives and liberals more generally — find themselves without a coherent narrative about race in American history, or one that Americans of all races can embrace.

The Supreme Court heard arguments Wednesday in a challenge to Mississippi’s law that bans abortion after the 15th week of pregnancy. It’s the most significant abortion case in years and a direct challenge to Roe v. Wade. Plus, Stacey Abrams announces a run for Georgia governor in 2022. And, putting high gas prices in perspective. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Emma Hurt and Ben Geman.

A column by Noah Feldman: Chief Justice John Roberts is searching for a compromise to preserve some basic right to abortion while moving it earlier in pregnancy, perhaps as early as 15 weeks. But based on today’s oral argument, it seems unlikely that any of the other justices is interested. Justice Brett Kavanaugh, in particular, seemed to telegraph a willingness to overturn Roe v. Wade altogether.

THE BROKEN CONSTITUTION: Lincoln, Slavery, and the Refounding of America, by Noah Feldman. (Farrar, Straus & Giroux, $30.) Abraham Lincoln, Feldman contends, embraced a new, “moral Constitution” by purging the country’s original sin of slavery and re-establishing the nation on a more noble foundation. A professor at Harvard Law School, Feldman is “a lucid, provocative stylist” as well as “a prolific scholar and commentator on current affairs … well equipped to assess Lincoln’s constitutional record,” Sean Wilentz writes in his review. “‘The Broken Constitution’ displays its author’s usual brilliance and boldness in his contrarianism, and a passionate engagement with the past.”

Two days after he issued the Emancipation Proclamation, in September 1862, Abraham Lincoln suspended the writ of habeas corpus throughout the United States, subjecting all Americans to the threat of military arrest and indefinite imprisonment without trial. These steps—one toward a “new birth of freedom,” the other toward a military dictatorship—are at the heart of Noah Feldman’s “The Broken Constitution: Lincoln, Slavery and the Refounding of America.” The Constitution itself became a casualty in the war Lincoln waged to defend it, Mr. Feldman argues. “Civil war is the very definition of a failed constitution,” he writes. As Lincoln came to terms with this fact, he transformed the war into a struggle to establish an entirely new constitution on the moral principle of liberty for all.

A book review by Noah Feldman: Linda Greenhouse’s new book on the Supreme Court opens in October 2020, with the drama of Justice Amy Coney Barrett’s appointment by Donald Trump. By rights it should have started in 2009, when Barack Obama was president, Democrats controlled the Senate and Justice Ruth Bader Ginsburg was diagnosed with pancreatic cancer — her second cancer diagnosis in a decade. Ginsburg lived another 11 years, spectacularly beating the odds even after a third diagnosis in 2018. But in retrospect, nothing is clearer than that she should have resigned expeditiously after learning she had a cancer that has an average five-year survival rate of 10 percent.

An op-ed by Noah Feldman: Who created the Constitution we have today? As a law professor, I’ve always thought the best answer was “the framers”: James Madison, Alexander Hamilton and the other delegates who attended the Philadelphia convention in the summer of 1787. The Constitution they drafted has since been amended many times, of course, sometimes in profound ways. But the document, I’ve long reasoned, has also exhibited a fundamental continuity. We’ve always had one Constitution. I no longer think this conventional understanding is correct. Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln.

An op-ed by Noah Feldman: The University of Florida struck a blow against academic freedom last week by prohibiting three professors from testifying in a lawsuit claiming the state’s new election laws are discriminatory. But that doesn’t necessarily mean that the university’s action is a violation of the professors’ free speech rights. A court should find the decision unlawful, but might not. There’s a difference between academic freedom and free speech. As explained by former Yale Law School Dean Robert Post in a classic work, these two freedoms are based on different principles, and involve freedom from different kinds of constraints.

Book Review of Noah Feldman’s The Broken Constitution: Lincoln, Slavery, and the Refounding of America: Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.” Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

An op-ed by Noah Feldman, Felix Frankfurter Professor of Law: If a conservative majority of the Supreme Court votes to overturn Roe v. Wade, it won’t only be a disaster for people who need abortions. It will be a watershed moment in the history of the court. A body that has gained public legitimacy in the post-World War II era by making Americans freer would suddenly be making them less so.

An op-ed by Noah Feldman: It should be no surprise to anyone that the Biden administration’s commission on Supreme Court reform seems poised to offer recommendations that will not endorse packing the court. After all, the commission was born of Joe Biden’s desire during the presidential campaign not to commit himself to adding new justices. It was populated with distinguished legal scholars and members of the bar, most of whom share a meaningful commitment to the preservation of our legal institutions. But it doesn’t follow that court packing is permanently off the table. That’s because of the wild card introduced by the Mississippi antiabortion law that the Supreme Court will consider this fall and decide next spring.Put bluntly, if the court overturns Roe v. Wade, all bets are off.

An op-ed by Noah Feldman:Neil Gorsuch has big ambitions. Every Supreme Court justice wants to do good work, write good opinions and influence the trajectory of American law. Justice Gorsuch wants more: intellectual leadership of the conservative legal movement. That would make him the heir to the late Justice Antonin Scalia, whom he replaced in 2017 after the Senate refused to vote on President Barack Obama’s nomination of Judge Merrick Garland. Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and opinions and seems to have formed early in his career. He might accomplish it if emerging splits within the close-knit family of conservative legal thinkers break his way.

An op-ed by Noah Feldman: Retweets are not endorsements, goes the formula. But is a tweet linking to an existing article a republication of the article, legally speaking? A federal appeals court said last week that the answer may be yes, and on that basis revived a libel lawsuit filed by U.S. Representative Devin Nunes against the journalist Ryan Lizza. The consequences are significant, opening the door to a raft of lawsuits against people who post links on social media platforms or anywhere else.

A Sept. 18 rally outside the Capitol in support of those arrested in connection with the Jan. 6 insurrection is the first major test for law enforcement authorities since that infamous date. ...The rally comes as a bitter partisan divide has emerged over Jan. 6: Republicans have sought to discredit the work of the Jan. 6 select committee and some House Republicans have gone so far as to prop up and support the accused insurrectionists. ...Conversations with constitutional experts and lawyers with whom the Jan. 6 committee staff has consulted point to several potential obstacles to the investigation — the biggest one being Trump himself. ...But even with potential stonewalling by Trump, investigators will still be much less constrained when pursuing documents compared to when Trump was in office, according to Noah Feldman, a constitutional law professor at Harvard Law School who testified in the first public impeachment inquiry into Trump. “It's a lot simpler when you have an administration in office who is not the one you are investigating,” said Feldman.

An op-ed by Noah Feldman: When people say they are motivated by conscience, even implausibly, employers and government have no morally defensible choice but to take their word for it.