Category: reason

On June 6, Peruvians will elect their next president. At the moment, the favorite to win is Pedro Castillo, a previously obscure teachers union leader who won the first round with 19 percent of the vote.

Castillo’s government program describes the “Free Peru” movement he leads as Marxist-Leninist, quotes Karl Marx and Friedrich Engels, and praises the legacies of Vladimir Lenin and Fidel Castro. It also calls for the abolition of the current constitution and the creation of a constitutional assembly, for the nationalization of “strategic sectors” of the economy, for the “regulation” of the free press, and for central economic planning under an “inverventionist…innovative, entrepreneurial, and protective state.” In recent days, Castillo has promised to expel all illegal immigrants from Peru in three days.

How did Peru, a country which the Cato Institute’s Ian Vásquez described in 2011 as “an increasingly successful market democracy,” end up on the verge of electing a Marxist-Leninist government? Much has to do with the broader context in Latin America, where 21st century socialism has survived during the last few years due to its opponents’ serial bungles, missed opportunities, and general ineptitude.

In 2018, just as there seemed to be hope for an end to the cash-strapped, hunger-inducing Chavista regime in Venezuela, which was running out of gasoline and desperately selling its gold reserves, dictator Nicolás Maduro and his Cuban puppet masters lured the hapless opposition parties into holding negotiations “to end the national crisis.”

 In May 2019, the opposition fell into the trap—and not for the first time—when National Assembly president Juan Guaidó, who had been recognized as Venezuela’s legitimate leader by more than 50 countries, agreed to hold talks with Maduro’s representatives in Norway. By September of that year, Guaidó had achieved nothing and had broken off the negotiations, but other opposition parties didn’t follow his lead and prolonged the talks with the Chavistas.

 After dividing their rivals, who couldn’t agree to a unified strategy for the 2020 parliamentary elections, Maduro and his party regained control of the National Assembly virtually unopposed. With Guaidó deprived of any official position, the European Union no longer recognized him as “interim president,” but only as a “privileged interlocutor.” Meanwhile, Maduro held on to power—without any end in sight—by relying on Russian loans, Chinese debt relief, and Iranian gasoline exports to the country with the world’s largest oil reserves.  

Likewise, in Argentina, better days seemed to have arrived in 2015, when voters narrowly rejected Kirchnerist socialism after 12 years of spectacular misrule. The era was epitomized by the arrest of a former minister of President Cristina Fernández de Kirchner, José López, who was caught hiding USD $9 million in cash in the vault of a convent. Mauricio Macri, a businessman and former mayor of Buenos Aires, won that year’s presidential election on a promise to curb inflation and reduce poverty. But Macri refused to cut the deficit, reduce the debt, or slash bureaucracy—tough measures that were necessary at the outset of his government. Instead, he opted for a “gradualist” course that relied on attracting foreign investment and borrowing money on cheap global credit. The Kirchnerists’ Leviathan, meanwhile, survived mostly intact.

As journalist Marcelo Duclos explains, investors remained skeptical of an overregulated, debt-fueled economy while interest rates rose ever so slightly, increasing a default-prone Argentina’s borrowing costs. Not only did Macri fail to bring prosperity to Argentina; he also raised taxes and presided over an inflation level of 47 percent in 2018, as voters recalled how he had assured them that he would stabilize price levels easily. When he sought reelection the following year, Macri suffered a rout in the first round of voting as the Kirchnerists returned to power.       

Also, in Bolivia, a glimmer of hope emerged in late 2019 as Evo Morales, perhaps the most colorful figurehead of 21st century socialism after Hugo Chávez—he once suggested that female hormones in chicken caused homosexuality in men—was caught red-handed in a massive exercise of voter fraud. After he contested an election against former President Carlos Mesa, both the Organization of American States and the European Union detected “overwhelming” evidence of ballot manipulation. Facing nationwide protests, Morales quickly lost the military’s support and fled to Mexico.

The entire debate about Morales’ reelection should have been spurious. In 2016, Morales, who had governed Bolivia since 2006, held a referendum in order to alter the country’s constitution so as to allow him to run for reelection for a third consecutive time, but a majority of voters rejected his proposal. Morales, however, blamed his defeat on social media platforms, accusing them of corrupting the youth, and got the Supreme Court, which he had packed with his supporters, to approve his reelection bid in 2017.

After Morales’ ouster, however, his opponents took a series of missteps. The opposition-led interim government called an election but postponed it twice. Although it blamed the COVID-19 crisis, it also fed Morales’ narrative of a well-orchestrated, U.S.-led coup against his government. The opposition also failed to unite around a single candidate and, like Macri in Argentina, offered nothing but Keynesianism.

As Bolivian commentator Mauricio Ríos writes, the consensus among opposition candidates dictated “that the way out of the economic crisis, which was worsened but not caused by the pandemic, was to increase public debt and government spending.” This was exactly what their Morales-backed opponent, former finance minister Luis Arce, had done for years in a desperate attempt to offset a collapse in the prices of commodities, which accounted for 95 percent of Bolivia’s merchandise exports in 2017. In October 2020, Arce comfortably won the presidency in the first round with 55 percent of the vote. Morales promptly ended his foreign sojourn and returned to Bolivia.  

To add to this string of regretful events, the hard left gained a major triumph in Chile when it cajoled President Sebastián Piñera, who is often described as a neoliberal, into holding a referendum to change the 1980 constitution, the most successful by far in Latin America as measured by the economic results of its protections for private property and limitations on government: per capita income, poverty reduction, social mobility, and access to higher education. In 2019, a small hike in the price of subway fees led to violent protests in which perpetrators in Santiago, Chile’s capital, methodically burnt 80 subway stations, numerous tollbooths, large department stores, and even churches. As the destruction was being wrought, Diosdado Cabello, a Venezuelan Chavista of high rank, weighed in by claiming that a “Bolivarian breeze” had reached Chile.

Instead of standing up to the thuggery, however, Piñera capitulated and announced a referendum on the constitution, which a staggering 78 percent of voters decided to replace last October. According to Axel Kaiser, a Chilean academic, the country’s far left succeeded in selling “a narrative of failure not rooted in reality,” but which much of the media, the business establishment, and the political right believed nevertheless. A majority of voters, added Cato’s Vásquez, had rejected the “Chilean miracle” and opted to become, “in the best of cases, a mediocre Latin American country.”

This series of victories made 21st century socialists confident. As presidential elections were held in Ecuador and Peru on Sunday, April 11th, a confident Evo Morales  proclaimed that “the people” were about to back the return of Chávez’s “integrationist project.” But, as it turned out, the people had other plans. In Ecuador, Guillermo Lasso, a 66-year-old former banker with strong ties to the country’s libertarian community, won the election with 52 percent of the vote.

Lasso’s victory was far from guaranteed. In March, when voters first headed to the polls, he barely qualified for the runoff election after obtaining less than 20 percent of the vote, 12 points behind the 36-year-old Andrés Arauz, a dauphin of strongman Rafael Correa, who ruled Ecuador from 2007 until 2017. Lasso, however, offered a clear, unequivocal alternative to socialism; his platform included cuts in the value-added tax (VAT) and public spending, increased oil production, and a push for free trade deals on the global stage. Crucially, Lasso promised to get rid of a tax on the withdrawal of currency from Ecuador, where the U.S. dollar has been the official currency since 2000. Arauz, on the other hand, had published plans to use currency controls as a means to dedollarize the country, a measure opposed by 88 percent of the population.

As the media were confirming Lasso’s win, Hernando de Soto, a free market economist with no previous experience as a political candidate, was poised to qualify for the runoff in Peru. In 1986, de Soto published The Other Path, an influential book that showed how the underlying problem of informality in poor countries was not the informal workers themselves, but rather the dysfunctional and usually corrupt state bureaucracies that made formal property rights a privilege of the rich and well-connected. As he wrote for Reason in 2001, “‘extralegality’ is often perceived as a ‘marginal’ issue. In fact, it is legality that is marginal; extralegality has become the norm.”

De Soto’s emphasis on the lack of property rights as a primary source of poverty in much of the world revolutionized thinking about development. It also made him a target of assassination attempts by the Shining Path communist guerrilla group.

Alas, de Soto’s electoral success was too good to be true; as the vote count proceeded on Monday, he was knocked out of second place by Keiko Fujimori, daughter of strongman and former President Alberto Fujimori, the scourge of the Shining Path who governed Peru from 1990 to 2000. Since 2005, Alberto Fujimori, whom de Soto advised, has been in jail due to human rights abuses. In the upcoming runoff, Keiko will take on Castillo, who represents such a threat to the country’s recent prosperity that Peruvian Nobel laureate Mario Vargas Llosa, a classical liberal, has endorsed his rival.

Vargas Llosa’s support is significant because he lost to Alberto Fujimori in the pivotal 1990 election, after which, he writes, he “has combatted Fujimorismo systematically.” He also recalls that Keiko not only participated directly in her father’s dictatorship, but that she benefited from it, as she did later from money from Odebrecht, the Brazilian firm that ran a bribes-for-government-contracts schemes across the region, a scandal for which she served time in jail. Nevertheless, Vargas Llosa argues that Keiko “represents the lesser evil” and at least “a possibility to save our democracy,” whereas Castillo represents its certain demise.   

Such arguments, however, have proved insufficient until now. Castillo leads Fujimori comfortably in the polls—42 to 31 percent according to one—which might not be surprising given the widespread rejection of the Fujimori family. The likelihood that a Marxist-Leninist will become Peru’s next president made me think of several former colleagues of mine who, in 2017, fled from Venezuela to Lima. Evidently, any enthusiasm about Peru’s success had to be tempered with the wisdom of an old viral meme. It read: “Migrating within Latin America is like moving from one cabin to another while inside the Titanic.”

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On November 12, 2021, I shared a draft article titled What Rights are ‘Essential’? The 1st, 2nd, and 14th Amendments in the Time of Pandemic. As the title suggested, I wrote about all facets of the COVID-19 litigation: the free exercise of religion, the right to keep and bear arms, and the abortion cases. I also wrote an extended discussion of Jacobson v. Massachusetts. I was pleased that the Harvard Journal of Law & Public Policy agreed to publish the article.

Back in November, the world was a very different place. Chief Justice Roberts’s South Bay II superprecedent was the law of the land. Justice Barrett was on the bench. And the Cuomo litigation was already rippling through the courts. Two weeks later, the Court decided Roman Catholic Diocese. And in an instant, the legal landscape changed.

At that point, I decided to trifurcate my article. One article on the Free Exercise Clause, a second article on the Second Amendment, and a third article on Jacobson and the Fourteenth Amendment.

The Harvard JLPP will be publishing the first article, now titled The “Essential” Free Exercise Clause. This article is up to date, and concludes with Tandon v. Newsom. The Texas Review of Law & Politics will be publishing the second article, titled The “Essential” Second Amendment. I will post that draft shortly. The third article, which I am still working on, will be titled The Irrepressible Myth of Jacobson v. Massachusetts. I have also preserved a PDF of my original November article.

Here is the abstract of The “Essential” Free Exercise Clause:

In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with difficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran headlong into the Constitution. Several states deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a constitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was “essential” or “non-essential.” If the activity fell into the former category, the activity could continue. If the activity fell into the latter category, it could be strictly regulated, or even halted immediately. Houses of worship challenged these measures as violations of the Free Exercise Clause of the First Amendment.

This article provides an early look at how the courts have interpreted the “essential” Free Exercise Clause during the pandemic. This ongoing story can be told in six phases. In Phase 1, during the early days of the pandemic, the courts split about how to assess these measures. And for the first three months of the pandemic, the Supreme Court stayed out of the fray.

In Phase 2, the Supreme Court provided its early imprimatur on the pandemic. In South Bay Pentecostal Church v. Newsom, the Court declined to enjoin California’s restrictions on religious gatherings. Chief Justice Roberts wrote a very influential concurring opinion that would become a superprecedent. Over the following six months, more than one hundred judges would rely on Roberts’s opinion in cases that spanned across the entire spectrum of constitutional and statutory challenges to pandemic policies.

In Phase 3, the Roberts Court doubled-down on South Bay. A new challenge from Nevada, Calvary Chapel Dayton Valley Church v. Sisolak, upheld strict limits on houses of worship. Once again, the Court split 5—4. Justice Kavanaugh wrote a separate dissent. He treated the Free Exercise of Religion as a “most-favored” right. Under Justice Kavanaugh’s approach, the free exercise of religion is presumptively “essential,” unless the state can rebut that presumption. South Bay and Calvary Chapel would remain the law of the land through November.

Phase 4 began when Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. The new Roberts Court would turn the tide on COVID-19 cases in Roman Catholic Diocese of Brooklyn v. Cuomo. Here, a new 5—4 majority enjoined New York’s “cluster initiatives,” which limited houses of worship in so-called “red” zones to ten parishioners at a time. Now, Chief Justice Roberts dissented. Roman Catholic Diocese effectively interred the South Bay superprecedent.

Phase 5 arose in the wake of Roman Catholic Diocese. Over the course of five months, the Court consistently ruled in favor of the free exercise of religion. South Bay II and Harvest Rock II enjoined California’s prohibitions on indoor worship. And Tandon v. Newsom recognized the right of people to worship privately in their homes.

We are now in the midst of Phase 6. States are beginning to recognize that absolute executive authority cannot go unchecked during ongoing health crises. Going forward, states should impose substantive limits on how long emergency orders can last, and establish the power to revoke those orders.

The COVID-19 pandemic will hopefully soon draw to a close. But the precedents set during this period will endure.

Current events always seem to detract from my planned research agenda. One year ago, I could not have fathomed writing any of these three articles. But here we are. At some point, I hope things will quiet down to allow me to work on my longer-term projects.

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Yesterday, I criticized Justice Barrett’s reported book deal with Sentinel, a conservative imprint. According to Politico, she will write about “how judges are not supposed to bring their personal feelings into how they rule.” I struggle to understand why a publisher would give Barrett a sizable advance for a book on this topic. She has been a judge for a short time, and has decided very few cases. Perhaps Sentinel predicted that Justice Barrett will generate a lot of buzz. She will go on a splashy book tour. She will speak to a wide range of groups and sell her feelings-free approach to judging, whatever that is. I fear this premature project could be problematic for Justice Barrett’s nascent tenure. Here, I will identify four principal problems.

First, what could Justice Barrett possibly have included in her book proposal about judging? I reviewed her appellate record last fall, and my tentative read was that she didn’t have many tough cases. As the junior judge on the Seventh Circuit, it was unlikely she would even have been assigned any significant majority opinions. On the Supreme Court, Justice Barrett has written two majority opinions, neither significant. Her only important writing to date was to rule that worshippers could not sing in a California church during the pandemic. (I’ll come back to this case later). Perhaps Professor Barrett had long ago worked out a complete theory of judging. If so, that’s news to me. I reviewed her law review articles last year. I didn’t see any evidence of some all-encompassing theory. And we certainly didn’t hear much about that theory during her confirmation hearing. Her testimony was lovely, but she stuck to general platitudes. How deep can this theory be that she worked out in the span of a few months?

Second, my greatest fear for this book is that Justice Barrett will set lofty standards for judging that her detractors will use to criticize, and even pressure her. Let’s say she praises the importance of stare decisis. What better way is there to keep feelings out of law than to stand by precedent? She may even cite her decision not to overrule Smith in Fulton. (She very conspicuously signaled that position during oral argument). Forevermore, if Justice Barrett wishes to overrule some precedent, her book can be used against her. Let’s say she explains why she needs to keep her Catholic thought out of her decisions. In the future, her book will be used against her in abortion and death penalty cases. Let’s say she insists that textualism is not a conservative jurisprudence, but is neutral. Hello Bostock II. (I query whether Justice Gorsuch’s devotion to textualism in his book may have greased the skids for Bostock). Justice Barrett’s job is too damn important to make unnecessary concessions in a book. Anything that can be used to exert influence over her in the future is an unforced error. Why? Why write this book now? Why give Justice Kagan ammunition to cow you into submission?

Third, I worry about the book tour. In my view, one of Justice Barrett’s greatest assets was that she was not from the Acela corridor. She hails from what Justice Scalia called the “vast expanse in-between.” This remove, I hoped, would insulate her from the demands of coastal-people-pleasing. Alas, writing a book–even with a conservative imprint–will force her to embark on a tour of coastal-people-pleasing. She will have to speak to audiences of different ideological perspectives. And she will have to custom-tailor her speech to appeal to those different audiences. Instead of giving a zealous defense of originalism, she will likely discuss some sort of watered-down jurisprudence. I know the switch, because I’ve done it before. I will give a very different accounting of originalism at, say, a Heritage Foundation talk, then I would at a Northeastern law school. Any good speaker knows his audience. Perhaps the only outlier on the Court is Justice Alito. He has an IDGAF approach to speeches. Look no further than his fiery 2020 Federalist Society address. I can’t see Justice Barrett taking this sort of message on the road–at least if she wants to sell some books. I hope she carefully reads Scalia Speaks and uses the Boss’s approach as a model.

Fourth, Sentinel, a conservative imprint, should have waited to see Justice Barrett’s conservative record before forking over two million dollars. My next point is grotesque, but I need to make it. Conservatives will not buy a book written from a disappointing Justice. If Justice Barrett follows the track of Justice Kavanaugh, then conservatives will soon write her off. Look no further than her COVID case. Can Justice Barrett go in front of a religious group, and explain why she ruled against worshipers’ right to sing? Of course, that question will be screened out. But people don’t forget.

Going forward, Justice Barrett faces perverse incentives. On the one hand, she will be marketing her book to conservative buyers. (Liberals will never forgive her for taking the Ginsburg seat). On the other hand, she will be deciding cases that could alienate conservative buyers. I don’t think the conflict of interest is inescapable, but it is obvious. After some reflection, I no longer think Supreme Court justices should write books, or go on book tours. There is a good reason why judges have limits on outside income. But, for whatever reason, multi-million dollar book advances are exempt.

I hope Justice Barrett takes this criticism in good faith. I had, and have high hopes for her. But so far, I question her judgment on and off the bench.

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In my last post, I described the general nature and theory behind the collection, “The Reconstruction Amendments: Essential Documents,” (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021).

 

In this post, I describe the theory and contents of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This volume presents the antebellum constitutional debates which ultimately inform the framing and adoption of all three Reconstruction Amendments, and the public and legislative debates accompanying the framing and ratification of the Thirteenth Amendment. The two volumes are meant to be read (yes, read) in tandem; the debates and ideas documented in Volume One play key roles in the constitutional debates presented in Volume Two. That said, Volume One stands on its own as a documentary history of the antebellum national debate over whether the original Constitution was pro-slavery or anti-slavery (the current “1619 Project” debate), and the national abolition of slavery through the Thirteenth Amendment.

Volume One begins with documents representing the various theories of constitutional federalism that arose in the period between the Founding and the Civil War. The issue is important because theories of federalism later play key roles in the debates over the shape of the three Reconstruction Amendments (references to the Federalist Papers, for example, occur over and over again during the Reconstruction debates). Documents in this opening section include the Virginia and Kentucky Resolutions and “the principles of ’98,” the nationalist theories of John Marshall and Joseph Story, the radical state rights theories of John C. Calhoun, and James Madison’s elderly efforts to oppose both John Calhoun and John Marshall.

Readers may be surprised to learn that some of the strongest supporters of constitutional federalism during this period were northern abolitionists who relied on theories of federalism in their resistance to the nationalization of slavery. This is most dramatically illustrated in the state of Wisconsin’s 1850s decision to nullify the Fugitive Slave Act and reject the decisions of the Supreme Court.

Despite the wide-spread embrace of federalism, this same period also witnessed a growing nationalist interpretation of the originally federalist Bill of Rights. For example, the abolitionist Joel Tiffany insisted that the privileges and immunities of citizens of the United States included the rights declared in the first eight amendments (Tiffany, “A Treatise on the Unconstitutionality of Slavery”).

A similar example can be found in an 1859 speech by a young Republican congressman from Ohio who declared that the Privileges and Immunities Clause of Article IV impliedly bound the states to respect the federal Bill of Rights (John Bingham, “Speech Against the Admission of Oregon”). Bingham’s speech is critically important for anyone seeking to understand the theoretical roots of Bingham’s later drafts of the Privileges or Immunities Clause of the Fourteenth Amendment.

Much of the first half of Volume One presents the antebellum debates over slavery and its relationship to the original Constitution. These materials include the debates over slavery in the Philadelphia Convention, the Missouri admission debates, the rise of northern abolitionism, slave state efforts to suppress abolitionist literature, northern resistance to the extension of slavery into the territories and the Supreme Court’s decision in Dred Scott. Although the collection includes key congressional and political debates, the materials also include a vast array of voices from outside the halls of power demanding an end to the practice of chattel slavery. These include black activist David Walker’s “Appeal,” Susan B. Anthony’s “Let’s Make the Slave’s Case Our Own,” and Frederick Douglass’s “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”

The Second Half of Volume One documents the country’s remarkable journey from proposing a pro-slavery Thirteenth Amendment in 1861 to ratifying the anti-slavery Thirteenth Amendment in 1865. In a last-ditch effort to stanch the secession movement, Congress passed the “Corwin Amendment” which declared that “no amendment shall be made to the Constitution” which would authorize Congress to “abolish or interfere” with slavery in the states. The gambit did not work and, despite being ratified by a number of states, this first Thirteenth Amendment was forgotten with the outbreak of Civil War.

The dramatic framing and passage of the second Thirteenth Amendment takes up the remainder of Volume One. Documents include anti-slavery amendment petitions from the Women’s Loyal National League, Charles Sumner’s failed efforts to broaden the language of the Thirteenth Amendment, Democratic opposition speeches declaring that the proposed abolition amendment was an unconstitutional attempt to alter an irrevocably pro-slavery Constitution, the House of Representatives’ failed first effort to pass the amendment, Frederick Douglass’s “The Final Test of Self-Government, and the dramatic second round of debates and a second vote that turned on the decision of a handful of Democrats who might, or might not, change their original vote.

Volume One closes with the public debates over the ratification of the Thirteenth Amendment. Most of these materials, as far as I know, have never appeared in any prior collection. The proposed amendment raised a host of difficult questions that were discussed in newspapers around the country.

Were the states of the soon-to-be defeated Confederacy still in the Union and, if so, should they be allowed to vote on (and potentially defeat) the proposed amendment? (“Is the Union Destroyed?” New York Times editorial). Would ratification result in Democrats taking control of Congress since the formerly enslaved population of the southern states would now count as a full five-fifths of a person for the purposes of congressional representation (and membership in the electoral college)? (“Dr. Lieber’s Letter to Senator E.D. Morgan,” New York Tribune).

Lincoln’s tragic assassination resulted in Vice President Andrew Johnson taking the lead in securing the abolition amendment’s ratification. Johnson established provisional governments in the south and prodded their governors to ratify the abolition amendment and, perhaps, “extend the elective franchise to all persons of color who can read the Constitution” in order to quell congressional opposition to readmitting the southern states (Pres. Johnson to Provisional Mississippi Governor William Sharkey).

Meanwhile, anti-slavery societies, sensing that ratification was imminent, pivoted to calls for back suffrage, with advocates like Francis W. Harper declaring it would be unpardonable to say to black men “You are good enough for a soldier, but not for a citizen” (New York Times, “Speeches at the 1865 meeting of the American Anti-Slavery Society”). Similarly, the signatories of “An Address from the Colored Citizens of Norfolk Virginia to the People of the United States,” demanded the rights of suffrage, not only as protection from discriminatory black codes, but also because “[n]o sane person will for a moment contend that color or birth are recognized by the Constitution of the United States as a bar to the acquisition or enjoyment of citizenship.”

As the above documents illustrate, the drama of the Fifteenth Amendment began even before the ratification of the Thirteenth Amendment. In the meantime, however, ratification of the Thirteenth remained uncertain. Northern states like Delaware, Kentucky and New Jersey rejected the amendment. Provisional state legislatures feared Section Two of the proposed amendment would empower Congress to regulate local civil rights and establish black suffrage (see, e.g., Mississippi Joint Committee Report and Rejection of Proposed Amendment).

In response, Pres. Johnson’s Secretary of State William Seward wrote letters to the southern governors insisting that their concerns were “querulous and unreasonable, since that clause [Section Two] is really restraining in its effect, instead of enlarging the powers of Congress” (“Seward to S.C. Provisional Governor Perry” New York Times). A number of southern legislatures ratified the amendment along with resolutions declaring their understanding that Seward’s construction of Section Two was correct (see, South Carolina, “Ratification and Accompanying Resolutions,” Nov. 3, 1865).

When Secretary of State Seward declared the ratification of the Thirteenth Amendment in December 1865, the question of congressional power under Section Two moved to center stage. In November and December of 1865, multiple national newspapers published editorials with competing interpretations of congressional power to enforce the Thirteenth Amendment. The issue would dominate the early debates of the Thirty-Ninth Congress and ultimately influence their decision to pass a Fourteenth Amendment.

Tomorrow: Documenting the extraordinary drama of the framing and ratification of the Fourteenth and Fifteenth Amendments.

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Montana Gov. Greg Gianforte fortified First Amendment protections at public universities Thursday by signing H.B. 218. This bill designates outdoor spaces at public universities as public forums, eliminates “free speech zones” that relegate open expression to contained areas, and allows a cause of action in court to students whose First Amendment rights are violated.

State Rep. Mike Hopkins (R–Missoula) originally introduced H.B. 218 in 2018, after the University of Montana’s School of Journalism refused to sponsor a speech by the conservative sociologist Mike Adams. The bill passed with broad bipartisan backing in March, with just four votes against it in the House and unanimous support in the Senate. Gianforte praised the legislation, proclaiming, “A university should be a place where the free exchange of ideas is encouraged, without voices silenced.”

H.B. 218 is based on the Forming Open and Robust University Minds (FORUM) Act, a model bill developed by the American Legislative Exchange Council (ALEC) in 2017. The FORUM Act protects students and student organizations from disciplinary action for lawful expression. “Free speech is fundamental to American democracy, and FORUM represents a set of best practices for legislators to follow,” says Andrew Handel, director of ALEC’s Education Task Force.

The model bill affirms that the “legislature views the exercise of First Amendment rights on public university campuses in this state as critical components of the education experience for students and requires that each public university in this state ensures free, robust, and uninhibited debate and deliberation.” It urges public universities to inform students of their First Amendment protections and to educate all faculty (including administrators, campus police, residential assistants, and professors) of their responsibilities in upholding a culture of open expression through school websites, handbooks, and orientation programs.

It also eliminates so-called free speech zones, a concept popularized in the 1980s and 1990s. “Having a designated free speech zone sounds like a good idea in theory,” Handel says. “But they tell students that there’s a specific, small area of campus that they can use at a very specific time. They’ve been utilized as a way to chill freedom of expression.”

The legislation also requires institutions to produce annual reports on campus free speech incidents, which will then be submitted to legislators and made available to the public. “A significant amount of taxpayer dollars is appropriated to public institutions of higher education each year,” the model bill reads. “As such, this legislature must ensure that all public institutions…recognize freedom of speech as a fundamental right for all.”

The bill protects the rights of both speakers and students who protest speakers—and unlike other model legislation, it does not recommend particular disciplinary actions for those who obstruct speech. “If students fear their expressive activities could unnecessarily land them in a campus disciplinary hearing, they may choose to sit on the sidelines,” explains ALEC’s Shelby Emmett, “The FORUM Act protects speech. It does not punish speech.”

Upon passage, states also waive their immunity under the Eleventh Amendment, which prevents individuals from filing lawsuits against states in federal court. This enables students whose First Amendment rights were violated to bring a cause of action in court. If their suit succeeds, they are guaranteed an award of at least $5,000.

Montana is the 14th state to adopt a version of the FORUM Act. Others to pass the legislation include Alabama, Arkansas, California, Georgia, Iowa, Louisiana, Maryland, Mississippi, Ohio, Oklahoma, South Carolina, Washington, and West Virginia. Eleven additional states have banned free speech zones on public colleges and universities.

The FORUM Act has predictably drawn opposition. Some critics have objected to a provision saying public universities cannot deny a group funding because of its “actual or anticipated expressive activity,” fearing that this would protect religious organizations that discriminate against gays. “The American ideals of free speech must not be used as a sword for discrimination,” the political director of the Georgia ACLU told Project Q Atlanta last year.

Others say the legislation restates the obvious. In 2019, Montana’s then-Gov. Steve Bullock vetoed a similar bill, maintaining that free speech on campuses was already adequately protected by the Constitution. Handel concurs—to a point. “The Constitution is very clear that, regardless of your underlying beliefs, you have the right to speak and be heard,” he says. But as long as institutions have failed to uphold this promise, he feels the FORUM Act is necessary to reaffirm speakers’ First Amendment rights.

As the Supreme Court reminded us in 1957’s Sweezy v. New Hampshire, “Students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

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