America Unfinished

FREE SPEECH AND DISSENT | Sharon Block

Reinvigorating the Right to Petitıon

The First Amendment declares that “Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.” Read literally, this promise means only that the government cannot retaliate against members of the public for speaking up. But for democracy to function as it should, the right to petition must be more robust and more dynamic. It cannot merely be the right to complain into the void. It should be an open, two-way bridge between ordinary people and official power. Absent a meaningful right to petition, the bridge between the governed and the governing opens too infrequently — only on Election Day. …

How could we create a meaningful right to petition for everyone? First, we have to reform the failed campaign finance system. As long as elected officials are dependent on donors to fuel their campaigns, petitions from the general public and from big fundraisers are never going to receive equal consideration. Second, we need a system that does not just passively accept input. Instead, lawmakers and agencies should be required to reach out to solicit input from a broad range of stakeholders. One way to maximize outreach is for lawmakers and agencies to work through the kinds of organizations that most of the public engages with already on a regular basis — unions, local governments, schools, and other kinds of community-based organizations. Finally, we need a system with greater transparency so that members of the public know what happened to their grievances. There should be an obligation for lawmakers and agencies to provide feedback in a timely manner so that members of the public can hold them accountable for how they respond.

It is naïve to think that a public that engages with its government only once a year or every other year at the ballot box will feel a strong attachment to democratic institutions. But a meaningful right to petition could be the antidote to our nation’s democratic malaise. Until we reshape our political institutions to honor the value of everyone’s petitions, the public’s crisis of confidence in democracy will remain understandable and justified.

AMERICAN IDENTITY, CITIZENSHIP & RACE | Kenneth W. Mack ’91

What Is America?:
The Presumptions
That Law Makes

Thurgood Marshall — the first Black Supreme Court justice and an architect of the Brown v. Board of Education litigation — marked the American Constitution’s bicentennial by dissenting from that year’s celebrations. In a speech for the occasion, Marshall underscored the document’s original defects and noted that it took two centuries of struggle after the founding to more fully enshrine liberty and equality in our basic law. Marshall worried about the constitutional compromise over slavery, but he might also have pointed to the deeply ambivalent answers that the founding moment gave to the question of what, exactly, was America.

Since the nation’s founding, the United States has grappled with the definitional question of who can lay claim to being American. … Americans have repeatedly confronted two competing ways of reading the nation’s core principles — and two competing ways of interpreting the federal government’s power to repress disfavored groups with ties to foreign nations: one that treats such repression as presumptively valid, and another that treats it as presumptively invalid. Those presumptions have mattered, sometimes enormously, because they are answers — implicit or explicit — to the question of what kind of nation America is. It was through those presumptions that the most fundamental questions of membership were contested and, over time, partially answered.

DEMOCRACY | Sheila Heen ’93

Democracy is a Negotiation

Negotiation is an antidote to tyranny. Those who seek unchecked power must thwart negotiation — by dividing Americans, obscuring our shared interests, and preventing our collective response. Negotiation is messy and imperfect, but also fragile: vulnerable
to misinformation, mistrust, and silence. … If our democracy is to survive, we must find our way back to negotiating with one another. America’s problems
can never be solved through force. Democracy must include each side’s interests with full participation in
joint problem-solving. Understanding, hearing, and caring about each other is the only path to a stable and viable democracy.

CRIME, PUNISHMENT, AND STATE POWER | Carol S. Steiker ’86

The Future of
Capital Punishment

Given its federal structure, the U.S. itself is unlikely to achieve nationwide abolition through legislative repeal of the death penalty in all 50 state legislatures and Congress. The only realistic hope for the complete abolition of the American death penalty lies in the U.S. Supreme Court declaring it an unconstitutional practice. The prospects for such a ruling looked promising a decade ago, but the current conservative supermajority on the Supreme Court makes it highly unlikely for at least a generation. But the future of contested practices is difficult to predict.

… [M]any people — slavery abolitionists among them — believed that abolition in the U.S. was an impossible pipe dream in the decades leading up to the Civil War. Or consider marriage equality for same-sex couples. In the 1980s, when the Supreme Court upheld the criminalization of consensual gay sex, the prospects for national recognition of such a right seemed dim. Sometimes big changes happen faster than anyone might foresee.

Even if, as I predict, worldwide abolition of capital punishment does not occur in the near term, in the sense of the next generation or two, its trajectory of decline seems to portend its eventual abolition in the long term. If the practice continues to become more isolated and contested, and a global consensus about its fundamental immorality ultimately coheres — even if these things happen slowly and bumpily — the death penalty will eventually die. Christians who were put to death in the Roman Colosseum 2,000 years ago could not possibly have imagined Rome’s current practice of lighting the Colosseum to celebrate when new jurisdictions abolish the death penalty. The transformation of the meaning of that historic site over the long sweep of history is a reminder of the inevitability of massive change over time and the hopeful possibility that such change will entail the abandonment of cruel and brutal practices

LEGAL REASONING IN A DEMOCRACY | John Goldberg

Tom, Meet Max

It is not hard to detect Thomas Jefferson’s legal training in the Declaration of Independence. As Garry Wills once noted, Jefferson would later refer to it as an “appeal” — what lawyers today would call a complaint. Hence, its somewhat hyperbolic allegations of unlawful conduct and injury, as well as its demand for a form of legal relief — namely, the bestowal by other countries of the recognition that, under international law, would confer nationhood on the colonists.

Commonplace in everyday life, complaints warrant ambivalence. My mother was fond of mailing handwritten grievances to companies whose products fell short of her expectations. (This usually earned her a prefabricated apology and sometimes a coupon.)

“Admirable,” I thought at the time. It’s good to stand up for oneself. But a little cringey, too. It’s possible some mountains were being made of molehills.

Within the genus of complaints, legal complaints are a distinctive species. They are part of a system that enables individuals and entities to vindicate important rights and interests. As such, they promise to hold us accountable to each other, and government officials accountable to the persons they purport to serve. Like non-legal complaints, however, they are sometimes unfounded or better left unpursued. Also, to a much greater extent than grumpy missives, they can make life difficult for their recipients (not to mention the complainants themselves). This is why we have rules that specify appropriate grounds for complaints, and that govern how they are made and resolved.

Jefferson’s “complaint” itself garnered an ambivalent reception. It was celebrated — and still is — as a bold assertion of the rights of the individual against government. It was also dismissed by some as frivolous litigation (so to speak). And it was called out for its morally mistaken assumptions about who among us are endowed with unalienable rights.

Two hundred and fifty years later, legal complaints carry a potential significance they could not have in the Revolutionary era. For we are now well on the other side of the crucible that Max Weber sought to capture under the heading rationalisierung — “rationalization.” My basic contention is that, in our rationalized world, complaints offer a distinctively valuable mode of asserting individual voice and value.

THE SUPREME COURT | Richard Re

A Court of Two Crises

Two and a half centuries ago, the Declaration of Independence called for both expanded democracy and greater judicial power. History has followed that twin decree. Today, however, these trends are coming into conflict. Whether the Supreme Court can continue to check majoritarianism, including authoritarian populism, remains to be seen. But every time that it succeeds, the odds increase that powerful courts, and the constitutional order, will ultimately endure. As H.L.A. Hart wrote in a related context, “Here all that succeeds is success.”

THE FEDERAL GOVERNMENT | Joseph William Singer ’81

“Merciless Indian
Savages” or “Distinct, Independent Political Communities”?

Indian nations occupy two distinct places in American history and law. American Indians are mentioned only once in the Declaration of Independence. They are in a phrase complaining about King George III’s alliances with Indian nations to oppose American invasion of Indian country, and they are described, not as nations, but as “merciless Indian Savages.” Nor was this a slip of the tongue or a brief emotional outburst. The lawyer for the plaintiffs in the 1823 Supreme Court case of Johnson v. M’Intosh similarly referred to Native peoples as “savage tribes,” and even Chief Justice John Marshall described them as “fierce savages.” On the other hand, both the lawyer for the defendants and the Supreme Court itself referred to them as “tribes or nations” or “Indian nations.” And the 1832 case of Worcester v. Georgia referred to “Indian nations” as “distinct, independent political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.”

The contrast between “savages” and “nations” reflects a deep ambivalence about the relationship between the United States and the Indian nations. Over the course of U.S. history, the “savages” formulation sometimes prevailed, either to justify removal of Indians from lands east of the Mississippi River from the 1830s to the 1860s or as a reason to “civilize” the Indians by outlawing tribal religion, promoting conversion to Christianity, privatizing tribal lands, and kidnapping tribal children to be educated at harsh boarding schools. But, in other eras of U.S. history, the United States treated Indian nations as distinct political communities with inherent sovereignty and the power to enforce their own laws within their own territory.

THE FUTURE OF ECONOMIC GOVERNANCE | Mariana Pargendler

Corporate Governance and Private Power

Two and a half centuries after the Declaration of Independence, U.S. law faces a paradox the founders could scarcely have imagined: The nation built to resist concentrated power has created private institutions whose reach can rival the state itself. Corporate law is thus a constitutional problem in miniature, allocating power and structuring accountability. The checks and balances that have been a hallmark of the system’s capital markets success, and of social ordering more generally, today are under enormous strain. U.S. law is now moving toward developing-world cronyism, where controlling shareholders face few constraints and shape laws in their favor. Paradoxically, these same powerful institutions, capable of shaping their own legal environment, have largely accommodated rather than resisted new concentrations of executive power, suggesting that private and public power may be mutually reinforcing rather than countervailing. …

The 250th anniversary of American law arrives as U.S. corporate and capital markets law, often celebrated as the envy of the world, faces these daunting new challenges. Legal scholars have overwhelmingly favored a narrow, “modular” view of corporate law focused on investor protection alone, with other social concerns outsourced to other areas of law. This view is untenable:It has long had its share of critics and is incomplete in its own terms. Even standard corporate rules aimed at protecting shareholders from managers have broader social consequences. Expropriation by controlling shareholders is economically regressive and further concentrates wealth and power. Derivative suits for failure of oversight serve to strengthen the bite of sanctions imposed by other areas of law. Transparency aimed at investors produces broader positive externalities in terms of social control. Social concerns are not fully separable, and distortions created by corporate law — the field governing residual discretion — are not easily addressed elsewhere. The narrowing of the field’s scope by the law-and-economics tradition has reduced our ability to resist the ongoing backlash.

The task ahead is to preserve corporations’ vitality and capacity for innovation for the social good in the face of these societal challenges. Much remains to be done in perfecting democratic controls and legitimacy of corporations, which have long been unsatisfying. Law, including corporate law, has an important role to play. The first step is resisting the erosion of basic principles that have distinguished U.S. corporate governance and inspired jurisdictions worldwide.

THE LEGAL PROFESSION, LEGAL EDUCATION, AND RULE OF LAW | Elizabeth Papp Kamali ’07

On Cats, Codices, and the Common Law Curriculum

My hope for the next generation of Harvard lawyers is that perhaps in response to the latest technological advances, law students will opt, where they can, for the low-tech. Faced with novel challenges to the rule of law, they might foment a new revolution of sorts, one bent upon deinstrumentalizing legal history, otherwise known as engaging in history for history’s sake. As is already true for many of my students, they might, for example, take a class on English legal history not because it might make them a better originalist or a more effective anti-originalist, but because it might provide space for pondering questions like: Was the ordeal, the iudicium dei, literally understood to be the judgment of God? Why did King Edward III need a secret password to correspond with Pope John XXII in the 1330s? Why did the medieval English coroner, in compiling a Latin record, slip into the vernacular to name the types of weapons used in a homicide, and what kind of knife was a thwytel anyway? Why were medieval registers of writs and statute collections (like those found in the Harvard Law Library) bespoke codices, and who was using them for what?

Looking beyond England, modern lawyers might learn a great deal about negotiation from the story of Skarphéðinn in Njáls Saga and about the interplay between law and society from the treatment of cats in medieval Welsh law. They might begin to wonder: Why are most major religious systems undergirded by law? Why was St. Paul so conflicted about law’s value? What “laws” govern other aspects of our lives? (My own household lives by what we call the lex cati, according to which a person upon whom a cat has fallen asleep may demand of the nearest catfree person a cup of tea or retrieval of a book or the like to avoid getting up and disturbing a feline’s forty winks.) Law is, or ought to be, a profession of profound curiosity. Lawyers need, above all else, a moral and ethical compass, and committing to memory the rules that will get one past the bar and professional responsibility exam are no substitute for a lifelong commitment to humanistic learning and formation of conscience. To what extent is law fundamental to human flourishing? I suspect Jefferson had a book on his shelf and Quincy a marginal note in his commonplace book that beckon toward an answer. What’s on your shelf?

ELECTIONS | Larry Schwartzol

Rebuilding the
Architecture of
Presidential Elections

From the beginning of our democracy, the constitutional machinery for electing presidents has been combustible. Mostly it chugs along, adapting over time to evolving norms of presidential politics. But since the earliest days of the Republic, it has occa​sionally failed, sometimes spectacularly. At the center of many of these failures sits the Electoral College. Reformers have long sought (and repeatedly failed) to abolish the Electoral College. One central criticism of the Electoral College is that it sometimes results in the candidate with the most national votes losing, an outcome in tension with the democratic principle of one-person-one-vote. Yet there is another, equally pressing concern that today has become especially acute: The Electoral College is a source of profound instability in our political system. In a time of disorienting political, social, technological, and economic change, abolishing the Electoral College would fortify the structural stability of American democracy.

THE ENVIRONMENT | Emily Broad Leib ’08

Founding Ideals and the Future of American Food Policy

[Thomas] Jefferson mythologized agriculture and farmers, believing that “agriculture is the most healthful, most useful and most noble employment of man.” And though the words “food” and “farm” do not appear in the Declaration of Independence, themes of food and agriculture abound, such as concerns over blockage of trade, taxing of food products like sugar and tea, and the unwanted quartering — including housing and feeding — of British soldiers. …

Jefferson would not recognize today’s food and agriculture system. … Food is regulated by more than 15 federal agencies — many of which have conflicting authorities and missions. … This is problematic because the food system is multifaceted, and many elements interact with one another, sometimes in counterproductive ways. For example, the U.S. farm bill provides direct payments and subsidized crop insurance that primarily support, not healthy foods, but commodity crops such as soybeans, corn, and cotton. By contrast, the Dietary Guidelines for Americans have long recommended that at least half the diet be made up of fruits and vegetables, which are known as “specialty crops” and left out of most farm bill programs. Similarly, U.S. laws set standards for state and local drinking water under the Safe Drinking Water Act, yet runoff from agricultural production that contaminates drinking water is exempt from the Clean Water Act’s permitting requirements. …

Thomas Jefferson was right. Food is central to the environment, to the economy, to health, and to equality. On the 250th anniversary of our nation, it is long past time to get beyond partisan gamesmanship and short-sighted policies and recognize the “healthful, useful and noble” value of a robust, comprehensive, and aspirational national food policy.

WAR | Daniel L. Nagin

A Declaration for Those in Uniform

War, war fighting, and war fighters are central to the Declaration of Independence. By July 4, 1776, the armed conflict between the soldiers of the Continental Army and royal troops had already been ongoing for more than a year. The Declaration of Independence set forth justifications for both the armed rebellion already well underway and, implicitly, armed rebellion in other places and times. Meanwhile, as a bill of particulars, the document contained no fewer than six references to abuses of power related to the king’s armies, soldiers, and mercenaries. And, as a formal declaration, the very first power of “Free and Independent States” cited by the document was the “full Power to Levy War.” For these and other reasons, the Declaration of Independence can be understood as a document particularly concerned with the martial.

Against this backdrop, the Declaration of Independence has a distinctive salience for our modern era of endless war. (As I write this, the country is not yet 48 hours into what is being labeled as “major combat operations” against Iran.) Yet the salience I want to draw out here most pertains to a modern battle of a different sort.

That modern battle is the battle that too many military veterans must fight with their own government. I am thinking most especially about the growing number of veterans who leave service with an unjustly imposed less than honorable discharge — whether because of the effects of combat trauma or military sexual trauma or other stressors, traumatic brain injuries, de jure or de facto discrimination on the basis of race and ethnicity, sex, religion, and LGBTQ+ identities, or capricious decisionmaking at the command level.

Tragically, these discharges can relegate veterans to lives on the margins, marked by higher rates of poverty, homelessness, incarceration, and mental illness and suicide. Shamed, cast aside, and deprived of supports, veterans are denied a meaningful chance to live lives of stability and dignity. In theory, an avenue exists to obtain redress. But, in a cruel twist, the tribunals responsible for providing relief from the stigma and harm of unjust discharges suffer from some of the same defects of arbitrary government action that were cataloged in the Declaration of Independence’s bill of particulars. …

The Declaration of Independence inveighed against a sovereign that would install “an Arbitrary Government.” At alarming rates, the military review boards deny relief using boilerplate language and with little if any evidence that the facts of the case and the arguments of the veteran informed the outcome.

COMMUNITY AND CIVIC VIRTUE | Stephen Breyer ’64

A Nation of Documents

If we want practical instruction, we can still read the words of Alexis de Tocqueville, that great French scholar of the United States. He wrote in the 1830s that when he approached the United States, he heard “noise” and endless arguing. But he knew that was a virtue, not a vice. He feared a silent “aristocracy” producing inequality and suppressing liberty. That “noise,” he believed, was the noise of associations, many different associations, ranging from book groups, to civil liberties unions, to town halls. When faced with problems, their members would debate, discuss, argue, and suggest experiments. And those problems included all sorts of civic problems, from livestock grazing to elections. Perhaps today they would include how we should deal with the internet or artificial intelligence. De Tocqueville would probably stress the need for broad and inclusive association that does not turn our nation of documents into groups of individually exclusive, indeed tribal, cultures. But he would not fear experiment. After all, he said that the “greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults.”

Let me end with a remark about one of our special documentary virtues, a virtue that helps to support the others. I speak, perhaps because I am a judge, of the rule of law, and its capacity to protect us against our worst impulses. In this spirit, I always suggest to my students that they read Camus’ book “The Plague.” It is ostensibly about a lethal plague that hit the city of Oran in Algeria. But, more likely, it is about France when occupied by the Nazis. When the plague left the city, there was great joy. But Camus wrote that “such joy is always imperiled. … [T]he plague bacillus never dies or disappears for good.” It goes into remission. It can lurk for years in “furniture and linen-chests,” “in bedrooms, cellars, trunks and bookshelves.” He warned that perhaps the day would come, to the misfortune or education of mankind, when it would reawaken its rats and “send them forth to die in a [once-]happy city.” The rule of law, I believe, is a weapon that not only helps to support our constitutional values but militates against the reawakening of that “plague germ” of unchecked power.

THE INTERNATIONAL LEGAL ORDER | Kristen E. Eichensehr

Foreign Relations and the Failures of Foresight

Perspectives on government and its problems inevitably rest, at least in part, on one’s lived experience. The framers of the Constitution drew on their own experiences to address concerns about both domestic governmental overreach and international vulnerability. But two failures of foresight at the founding have led to a present with distinctly different concerns from those against which the founders tried to guard. The unchecked expansion of executive power domestically has led to presidential actions that risk destabilizing an international order that the framers would have envied.

The first failure of foresight was domestic. … The executive’s powers were stronger than the framers realized, and Congress’ incentives to counteract them were much weaker.

The second failure of foresight was international. … The framers could not foresee the world of the twentieth century in which the United States became a hegemon and the architect of an international legal order that sought to restrain states’ resort to force. That legal order has been a boon: the United States has benefited tremendously from the relative stability and order that this system has engendered.

But the framers’ first failure of foresight about the power of the executive is now undoing the benefits of the second. Congress’ structural and political weaknesses have left the executive with nearly unchecked power to use force abroad, undermining both the constitutional separation of powers and the international order that the United States previously championed.

NEW TECHNOLOGIES AND THE FUTURE OF KNOWLEDGE AND DEMOCRACY | I. Glenn Cohen ’03

Reproductive Technologies and the Federal Constitutional Vacuum

We are on the cusp of some revolutionary new reproductive technologies, and yet the Supreme Court has been silent on how to think about what the federal Constitution might have to say about the last wave of technologies dating back to the early 1980s. Questions about the propriety of destroying embryos, whether women can lawfully agree to sell their reproductive labor as surrogates, gene editing, and radically new forms of family formation, as well as questions of dignity, access, and equality, cut to the quick of what kind of country we are. To the extent that we view the federal Constitution as the ultimate repository of those values, the current silence on what the Constitution means feels deafening. So, why the silence? Is it good or bad? What would a bold constitutionalizing project look like for this space?