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Law professors Jon Michaels and David Noll use their expertise to expose how state-supported forms of vigilantism are being deployed by MAGA Republicans and Christian nationalists to roll back civil, political, and privacy rights and subvert American democracy. Beyond identifying the dangers of vigilantism, Vigilante Nation: How State-Sponsored Terror Threatens Our Democracy (Atria/One Signal, 2024) functions as a call to arms with a playbook for a democratic response.
Michaels and Noll look back in time to make sense of today's American politics. They demonstrate how Christian nationalists have previously used state-supported forms of vigilantism when their power and privilege have been challenged. The book examines the early republic, abolitionism, and Reconstruction.
Since the failed coup by supporters of Former president Donald Trump on January 6, 2021, Michaels and Noll document how overlapping networks of right-wing lawyers, politicians, plutocrats, and preachers have resurrected state-supported vigilantism – using wide ranging methods including book bans, anti-abortion bounties, and attacks on government proceedings, especially elections. Michaels and Noll see the US at a critical inflection point in which state-sponsored vigilantism is openly supported by GOP candidates for president and vice-president, Project 2025, and wider networks, Michaels and Noll move beyond analysis to action: 19 model laws to pass. The supporters of democratic equality are numerous and dexterous enough to create a plan to fight radicalism and vigilantism and secure the broad promises of the civil rights revolution.
Jon Michaels is a professor of law at UCLA Law, where he teaches and writes about constitutional law, public administration, and national security. He has written numerous articles in law reviews including Yale, University of Chicago, and Harvard and also public facing work in venues like the Washington Post, the New York Times, and Foreign Affairs.
David Noll is a law professor at Rutgers Law School. He teaches and writes on courts, administrative law, and legal movements. He publishes scholarly work in law reviews such as California, Cornell, Michigan and NYU and translates for wider audiences in places like the New York Times, Politico, and Slate.
Mentioned in the podcast:
By Hands Now Known: Jim Crow’s Legal Executioners (Norton) by Margaret A. Burnham
Let them Eat Tweets: How the Right Rules in an Age of Extreme Inequality (Liveright) by Jacob Hacker and Paul Pierson
Hannah Nathanson at the Washington Post who was part of a team of journalists awarded the 2022 Pulitzer Prize for Public Service for coverage of the Jan. 6 insurrection at the U.S. Capitol
Previous interviews with scholars addressing the breakdown of American democracy: Four Threats: The Recurring Crises of American Democracy (Suzanne Mettler and Robert C. Lieberman) Phantoms of a Beleaguered Republic (Stephen Skowronek, John A. Dearborn, and Desmond King); How Democracies Die (Steve Levitsky and Daniel Ziblatt); The Specter of Dictatorship: Judicial Enabling of Presidential Power (David M. Driesen and A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People (Kevin J. McMahon)
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The Battle for Sabarimala: Religion, Law, and Gender in Contemporary India (Oxford UP, 2024) tells the story of one of contemporary India’s most contentious disputes: a long-running struggle over women’s access to the Hindu temple at Sabarimala. In 2018, the Indian Supreme Court ruled that the temple, which had traditionally been forbidden to women aged ten to fifty because their presence offended the presiding deity, was required to open its doors to all Hindus. The decision in Indian Younger Lawyers Association rocked the nation: protests were launched around India and throughout the diaspora, a record-setting human chain called the ‘Women’s Wall’ was coordinated, and dozens of petitions were filed asking the Supreme Court to review, and potentially reverse, its landmark opinion.
Perhaps most significantly, IYLA led the Court to openly reconsider the Essential Practices Doctrine that has been a mainstay of Indian religious freedom jurisprudence since 1954. In this first monograph-length study of the dispute, legal anthropologist Deepa Das Acevedo draws on ethnographic fieldwork, legal analysis, and media archives to tell a multifaceted narrative about the ‘ban on women’. Reaching as far back as the eighteenth century, when the relationship between temple deities and the government was transformed by an ambitious precolonial ruler, and coming up to the litigation delays caused by the coronavirus pandemic, Das Acevedo reveals the complexities of the dispute and the constitutional framework that defines it. That framework, Das Acevedo argues, reflects two distinct conceptions of religion-state relations, both of which have emerged at various stages in the—still unresolved—battle for Sabarimala.
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Saknas det avsnitt?
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We commonly think of democracy as a social order governed by the people’s collective will. Given the size of the modern states, this picture is typically adjusted to say that democracy is a system of representative government, where elected officials are tasked with governing in ways that reflect the collective will of their constituents.
Although it is familiar, this way of depicting democracy invites difficulties. The concept of a collective will is notoriously difficult to nail down. And, moreover, the idea that modern elections reveal or express such a will remains dubious. Accordingly, a good deal of democratic theory aims to fill in the missing details regarding the collective will and its representation.
In The Dispersion of Power: A Critical Realist Theory of Democracy (Oxford University Press 2024), Samuel Bagg takes a different tack by proposing a vision of democracy where the central aim is to protect public power from capture.
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After China officially “decriminalized” same-sex behavior in 1997, both the visibility and public acceptance of tongzhi, an inclusive identity term that refers to nonheterosexual and gender nonconforming identities in the People’s Republic of China, has improved. However, for all the positive change, there are few opportunities for political and civil rights advocacy under Xi Jinping’s authoritarian rule.
Words Like Water: Queer Mobilization and Social Change in China (Temple UP, 2023) explores the nonconfrontational strategies the tongzhi movement uses in contemporary China. Caterina Fugazzola analyzes tongzhi organizers’ conceptualizations of, and approaches to, social change, explaining how they avoid the backlash that meets Western tactics, such as protests, confrontation, and language about individual freedoms. In contrast, the groups’ intentional use of community and family-oriented narratives, discourses, and understandings of sexual identity are more effective, especially in situations where direct political engagement is not possible.
Providing on-the-ground stories that examine the social, cultural, and political constraints and opportunities, Words like Water emphasizes the value of discursive flexibility that allows activists to adapt to changing social and political conditions.
Caterina Fugazzola is Assistant Senior Instructional Professor of Global Studies at the University of Chicago.
Qing Shen is a PhD candidate in anthropology at Uppsala University, Sweden.
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Join us as we discuss Dr. Reid Blackman’s new book: Ethical Machines: Your Concise Guide to Totally Unbiased, Transparent, and Respectful AI (Harvard Business Review Press, 2022). We dive into the intricacies of developing AI and the intersection of ethics and innovation.
Reid Blackman, Ph.D., is the author of Ethical Machines, creator and host of the podcast “Ethical Machines,” and Founder and CEO of Virtue, a digital ethical risk consultancy. He is also an advisor to the Canadian government on their federal AI regulations, was a founding member of EY’s AI Advisory Board, and a Senior Advisor to the Deloitte AI Institute. His work, which includes advising and speaking to organizations including AWS, US Bank, the FBI, NASA, and the World Economic Forum, has been profiled by The Wall Street Journal, the BBC, and Forbes. His written work appears in The Harvard Business Review and The New York Times. Prior to founding Virtue, Reid was a professor of philosophy at Colgate University and UNC-Chapel Hill. Learn
Madison’s Notes is the podcast of Princeton University’s James Madison Program in American Ideals and Institutions
Contributions to and/or sponsorship of guest does not constitute departmental or institutional endorsement of the specific program, speakers or views presented.
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At the end of the Constitutional Convention in Philadelphia, Benjamin Franklin was asked whether we have a republic or a monarchy. He replied “A Republic…if you can keep it.” In The Specter of Dictatorship: Judicial Enabling of Presidential Power (Stanford UP, 2021), David M. Driesen argues that Donald Trump's presidency challenged Americans to consider whether the Madisonian system of checks and balances could robustly respond to a president claiming extensive executive power and disregarding traditional processes such as the peaceful transition of power. Driesen notes that Benjamin Franklin and many men in the “founding” generation observed tyrannical government in Europe – and they explicitly included safeguards in the U.S. Constitution to prevent extensive executive power in the United States.
In this tradition, Driesen analyzes the chief executive's role in the democratic decline of Hungary, Poland, and Turkey. He argues that an insufficiently constrained presidency is one of the most important systemic threats to constitutional democracy. Driesen urges the U.S. to learn from the mistakes of these failing democracies. Specifically, he sees the United States Supreme Court as enabling the expansion of executive power. Specter of Dictatorship highlights how the Supreme Court’s reliance on and expansion of the legal approach called unitary executive theory threatens the separation of powers in the U.S. Driesen recommends a less deferential approach in which the judiciary checks the executive. The Supreme Court has been acting a if policing presidential power is the threat to democracy – but the real danger for constitutional democracy lies in expansion of executive power. For Driesen, judges and justices should give substantial weight to concerns about democratic erosion. Because autocracy is spreading abroad and presidential power is expanding in the US, Benjamin Franklin’s concern about maintaining democracy is relevant in 2024.
Professor Driesen is the thirteenth University Professor at Syracuse University where he teaches constitutional and environmental law. He is a graduate of the Yale Law School and has published several books and numerous articles with leading academic publishers and law reviews.
From the podcast:
David’s piece on major questions doctrine
David’s editorial on the POTUS debate, Victor Orban, and Haitian Immigrants
Correction from Susan – the two dissenters in Roe v. Wade were appointed by John F. Kennedy and Richard Nixon. The justices voting in favor of reproductive rights were 5 men appointed by Republican presidents (Dwight Eisenhower and Richard Nixon) and 2 men appointed by Democratic presidents (Franklin Roosevelt and Lyndon Johnson).
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In the city of New York from the 1930s to the 1990s, Irish attorney Paul O’Dwyer was a fierce and enduring presence in courtrooms, on picket lines, and in contests for elected office. He was forever the advocate of the downtrodden and marginalized, fighting not only for Irish Catholics in Northern Ireland but for workers, radicals, Jews, and African Americans and against the Vietnam War.
With his shock of white hair and bushy eyebrows, O’Dwyer was widely recognized in politics and in the media. His work as a reform Democrat transformed the Democratic Party and his advocacy for peace and justice in Northern Ireland bore fruit in the Good Friday Agreement of 1998 that ended decades of conflict.
Until now, however, there has been no biography of this happy warrior for social justice. Fortunately, that problem has been remedied with a new book by Robert Polner and Michael Tubridy, An Irish Passion for Justice: The Life of Rebel New York Attorney Paul O’Dwyer (Cornell UP, 2024).
Host Robert W. Snyder is Manhattan Borough Historian and professor emeritus of journalism, and American Studies at Rutgers University. His latest book, When the City Stopped: Stories from New York’s Essential Workers, is due out in March 2025 from Cornell University Press. Email: [email protected]
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In many countries, censorship, blocking of internet access and internet content for political purposes are still part of everyday life. Will filtering, blocking, and hacking replace scissors and black ink? This book argues that only a broader understanding of censorship can effectively protect freedom of expression.
For centuries, church and state controlled the content available to the public through political, moral and religious censorship. As technology evolved, the legal and political tools were refined, but the classic censorship system continued until the end of the 20th century. However, the myth of total freedom of communication and a law-free space that had been expected with the advent of the internet was soon challenged. The new rulers of the digital world, tech companies, emerged and gained enormous power over free speech and content management. All this happened alongside cautious regulation attempts on the part of various states, either by granting platforms near-totalimmunity (US) or by setting up new rules that were not fully developed (EU). China has established the Great Firewall and the Golden Shield as a third way.
In Censorship from Plato to Social Media: The Complexity of Social Media’s Content Regulation and Moderation Practices (Springer, 2023), particular attention is paid to developments since the 2010s, when Internet-related problems began to multiply. The state’s solutions have mostly pointed in one direction: towards greater control of platforms and the content they host. Similarities can be found in the US debates, the Chinese and Russian positions on internet sovereignty, and the new European digital regulations (DSA-DMA). The book addresses them all.
This book will be of interest to anyone who wants to understand the complexities of social media’s content regulation and moderation practices. It makes a valuable contribution to the field of freedom of expression and the internet, showing that, with different kinds of censorship, this essentially free form of communication has come – almost by default – under legal regulation and the original freedom may have been lost in too many countries in recent years.
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Dr. Aideen O'Shaughnessy is a Senior Lecturer in Sociology at the University of Lincoln. She has a PhD in Sociology from the University of Cambridge, an MA in Gender Studies Research from Utrecht University and a BA in Sociology and French at Trinity College Dublin. Her research focuses on gender, health, and social movements and she is particularly interested in the study of reproductive health, rights, and justice. She has published widely in journals including Body and Society, the European Journal of Women's Studies, and the BMJ Sexual and Reproductive Health.
Embodying Irish Abortion Reform: Bodies, Emotions, and Feminist Activism (Bristol UP, 2024) explores the lived, embodied and affective experiences of reproductive rights activists living under, and mobilizing against, Ireland’s constitutional abortion ban.
Through qualitative research and in-depth interviews with activists, the author exposes the subtle influence of the 8th Amendment on Irish women and their (reproductive) bodies, whether or not they have ever attempted to access a clandestine abortion.
It explains how the everyday embodied practices, bodily labours and affective experiences of women and gestating people were shaped by the 8th amendment and through the need to ‘prepare’ for crisis pregnancies. In addition, it reveals the integral role of women’s bodies and emotions in changing the political and social landscape in Ireland, through the historical transformation of the country’s abortion laws.
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In this conversation, we dive into key issues shaping the legal landscape today: the complexities of constitutional interpretation, the evolving role and power of the judiciary, and how corruption can impact government systems. We also explored the critical role that civic education plays in maintaining a healthy democracy.
Julia D. Mahoney is the John S. Battle Professor of Law and the Joseph C. Carter, Jr. Research Professor of Law at the University of Virginia School of Law, where she teaches courses in Constitutional Law and Property Law. Her recent scholarship includes articles on government takings of property, the classical legal tradition in education, and feminism and common good constitutionalism. A graduate of the Yale Law School, she is a member of the American Law Institute and serves on the Board of Advisors of the New Civil Liberties Alliance.
Show Notes:
A Common Good Constitutional Feminism, Julia Mahoney. Law and Liberty | August 2022
Madison’s Notes is the podcast of Princeton University’s James Madison Program in American Ideals and Institutions
Contributions to and/or sponsorship of any speaker does not constitute departmental or institutional endorsement of the specific program, speakers or views presented.
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Many scholars and members of the press have argued that John Roberts’ Supreme Court is exceptional. While some emphasize the approach to interpreting the Constitution or the justices conservative ideology, Dr. Kevin J. McMahon suggests that the key issue is democratic legitimacy. Historically, the Supreme Court has always had some “democracy gap” – democratically elected presidents appoint justices that serve for life. As presidents select justices, they attempt to move the Supreme Court in their desired ideological direction while “simultaneously advancing their electoral interests and managing their governing coalition.” Despite these forces, Dr. McMahon argues that past Supreme Courts were still closer to democratic principles. Today’s court is exceptional because the “democracy gap” is severe.
A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People (U Chicago Press, 2024) draws on historical and contemporary data to reveal how the long arc of court battles (from FDR to Donald Trump) created this democracy gap. McMahon highlights changes to the politics of nominating and confirming justices, the changes in who is even considered to be in the pool to be a Supreme Court justice, and the increased salience of the Court in elections.
Dr. Kevin J. McMahon (he/him) is the John R. Reitemeyer [RightMeyer]Professor of Political Science at Trinity College, and the author of two award-winning books, Reconsidering Roosevelt on Race and Nixon’s Court, both published by The University of Chicago Press. Together with A Supreme Court Unlike Any Other, the three books form a trilogy that interrogates whether 100 years of presidential efforts to shape the high court affect the supreme court’s democratic legitimacy.
Dr. McMahon also writes public facing essays in outlets such as US News & World Report and The Conversation. For example, The Presidential Immunity Case & American Democracy, President Biden & the Courage it Takes to Call it Quits, Conservative Justices Polarized on the State of American Politics, and Calls for a Supreme Court Justice to Retire.
Susan mentioned a stark New York Times graphic of how 6 senators (CA, NY, TX) represent the same number of voters as 62 senators. 2022 data (but less dramatically presented) is here.
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Jails are the principal people-processing machines of the criminal justice system. Mostly they hold persons awaiting trial who cannot afford or have been denied bail. Although jail sentences max out at a year, some spend years awaiting trial in jail-especially in counties where courts are jammed with cases. City and county jails, detention centers, police lockups, and other temporary holding facilities are regularly overcrowded, poorly funded, and the buildings are often in disrepair. American jails admit over ten million people every year, but very little is known about what happens to them while they're locked away.
Indefinite: Doing Time in Jail (Oxford UP, 2022) is an ethnographic study of a California county jail that reflects on what it means to do jail time and what it does to men. Michael L. Walker spent several extended spells in jail, having been arrested while trying to pay parking tickets in graduate school. This book is an intimate account of his experience and in it he shares the routines, rhythms, and subtle meanings that come with being incarcerated. Walker shows how punishment in jail is much more than the deprivation of liberties. It is, he argues, purposefully degrading. Jail creates a racial politics that organizes daily life, moves men from clock time to event time, normalizes trauma, and imbues residents with substantial measures of vulnerability. Deputies used self-centered management styles to address the problems associated with running a jail, some that magnified individual conflicts to potential group conflicts and others that created divisions between residents for the sake of control. And though not every deputy indulged, many gave themselves over to the pleasures of punishment.
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Mary McAuliffe is a historian and lecturer in Gender Studies at UCD. Her latest publications include (is The Diaries of Kathleen Lynn co-authored with Harriet Wheelock) and Margaret Skinnider; a biography (UCD Press,2020). Throughout the Decade of Centenaries 2012-2023 she has been conducting extensive research on the experiences of women during the War of Independence and Civil War and is currently completing her book based on that research, OUTRAGE: Gendered and Sexual Violence in the Irish War of Independence and Civil War, 1919-1923 (forthcoming 2025). Jennifer Redmond is Associate Professor in Twentieth Century Irish History in the Department of History at Maynooth University. She is the author of Moving Histories: Irish Women’s Emigration to Britain from Independence to Republic and the co-editor of Irish Women in the First World War Era. She also sits on the Editorial Board for the journal, Women's History Review and for the Documents in Irish Foreign Policy series, a joint initiative of the National Archives of Ireland and the Royal Irish Academy.
In this interview, they discuss their new edited collection The Politics of Gender and Sexuality in Modern Ireland (Four Courts Press, 2024) as well as their own intellectual backgrounds and views on Irish history-writing.
The Politics of Gender and Sexuality in Modern Ireland is an edited collection of focused, cohesive and persuasive essays, based on the newest research on gender, sexuality and sexual politics. It offers historical reflections and contemporary analyses of issues related to the contested and often hidden histories of sexual politics and gender identities in Ireland in the nineteenth and twentieth centuries. Including but going beyond the binary of male and female heterosexual experience, the book explores LGBTQI+ histories, the treatment of intersex persons, and the history of trans people and activism in Ireland. As an interdisciplinary work, this reader draws together scholars working in a range of fields on innovative, new research on this theme. The essays consider these histories as seen over two centuries and reflect on the societal shifts in modern Ireland as evidenced in two recent referenda and the responses to the scandals emerging from the state’s treatment of unmarried mothers.
Aidan Beatty is a lecturer in history at Carnegie Mellon University
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Join us for an in-depth exploration of Professor Cass Sunstein's latest work, Campus Free Speech (Harvard University Press, September 2024).
Together, we'll examine the book’s intriguing take on free speech in academic spaces and the broader implications for constitutional interpretation. Professor Sunstein also delves into the exercise of administrative power, with timely discussions on COVID-era authority and the Supreme Court's decision in Chevron v. Natural Resources Defense Council. Gain unique insights from Sunstein on how the Constitution remains a guiding force for the American public in navigating modern challenges.
Cass R. Sunstein is the Robert Walmsley University Professor at Harvard. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the President’s Review Board on Intelligence and Communications Technologies and on the Pentagon’s Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom.
Professor Sunstein is author of hundreds of articles and dozens of books, including Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Simpler: The Future of Government (2013), The Ethics of Influence (2015), #Republic (2017), Impeachment: A Citizen’s Guide (2017), The Cost-Benefit Revolution (2018), On Freedom (2019), Conformity (2019), How Change Happens (2019), and Too Much Information (2020). He is now working on a variety of projects involving the regulatory state, “sludge” (defined to include paperwork and similar burdens), fake news, and freedom of speech.
Madison’s Notes is the podcast of Princeton University’s James Madison Program in American Ideals and Institutions
Contributions to and/or sponsorship of any speaker does not constitute departmental or institutional endorsement of the specific program, speakers or views presented.
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One of the great divides in American judicial scholarship is between legal scholars who take the justices at their word and assume that those words define the law and political scientists who dismiss all judicial arguments as smokescreens for partisan bias or wider political forces. Today’s guest has written a book that bridges that divide.
In Rot and Revival: The History of Constitutional Law in American Political Development (U California Press, 2024), Dr. Anthony Michael Kreis uses methods from history, law, and political science to theorize and document how politics make American constitutional law and how the courts affect the path of partisan politics. Understanding American constitutional law means looking at the relationship among dominant political coalitions, social movements, and the evolution of constitutional law as prescribed by judges. For Kreis, constitutional doctrine does not exist in a philosophical vacuum – it is a “distillation of partisan politics.”
Rejecting the idea that the Constitution's significance and interpretation can be divorced from contemporary political realities, Kreis uses tools from law, history, and American political development to explain how American constitutional law reflects the ideological commitments of dominant political coalitions, the consequences of major public policy choices, and the influences of intervening social movements. For Kreis, constitutional law is “best understood through the diachronic lens of American Political Development (APD) and the concept of political time. Kreis concludes that the courts have never been—and cannot be—institutions lying outside the currents of national politics.
Dr. Anthony Michael Kreis is assistant professor at Georgia State University College of Law where he teaches constitutional law and works at the intersection of law and American Political Development. He earned his undergraduate and law degrees at the University of North Carolina at Chapel Hill and Washington & Lee University, respectively, and his PhD from the School of Public and International Affairs at the University of Georgia.
Mentioned:
President Lyndon B. Johnson’s March 15, 1965 speech before Congress on voting rights
Keith E. Whittington’s Political Foundations of Judicial Supremacy and other works
Gerald Rosenberg’s The Hollow Hope: Can Courts Bring About Social Change?
Correction: Justices Sotomayor and Kagan were nominated by President Obama and Justice Jackson was nominated by President Biden.
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The police officer who brutalized Abner Louima. A purveyor of child pornography. These are some of the defendants to have come before U.S. District Court Judge Frederic Block to ask for reductions in their prison sentences. All of them have been found guilty and have already served decades in prison, but under the 2018 First Step Act they are entitled to petition for reconsideration and release. In a rare glimpse behind the bench, Judge Block recounts the cases of six incarcerated people who have done heinous things but have nevertheless petitioned him for their release. He then explains the criteria the First Step Act has spelled out for his consideration. And, in a novel twist, he asks the reader, “What would you do?”
In A Second Chance: A Federal Judge Decides Who Deserves It (The New Press, 2024), Judge Block puts us out of our suspense in a third section of the book where he tells us what he did do in each case and why, as he weighs each compassionate release request, evaluating issues ranging from “the trial tax,” to sentencing disparities, to judicial incompetence. Finally, Judge Block makes the case that the First Step Act should be extended to state court judges, since state prisons house about 90 percent of those incarcerated. In a book that could be the basis for a new season of Law & Order, Judge Block challenges our ideas about punishment and justice.
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An interview with Dr. Alexandre Caeiro in which we discuss Islamic law and institutions in Qatar, secularisation and the Ottomans.
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Completed shortly before Hamas carried out its barbaric October massacre, Cary Nelson's Hate Speech and Academic Freedom: The Antisemitic Assault on Basic Principles (Academic Studies Press, 2024) takes up issues that have consequently gained new urgency in the academy worldwide.
It is the first book to ask what impact antisemitism has had on the fundamental principles the academy relies on for its identity—academic freedom, free speech rights, standards for hiring or firing faculty members and administrators, and the ethics of academic conduct and debate.
Antisemitic hatred is spreading at a fever pitch. What steps can counter it? What damage to students is done when departments embrace anti-Zionism? Should faculty members face consequences for promoting antisemitism on social media? Should universities make a new push to adopt the IHRA Definition of Antisemitism?
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The legal theory of constitutional originalism has attracted increasing attention in recent years as the US Supreme Court has tilted with the weight of justices who self-describe as originalists.
In Against Constitutional Originalism: A Historical Critique (Yale UP, 2024), Jonathan Gienapp examines the theory and describes how it falls short of achieving the interpretive authority that it claims.
Gienapp asserts that we need to reconstruct 18th century legal arguments as they were originally understood before judging them, while originalists reject historical understanding in favor of a more pliable textualist approach that allows them to impose their modern legal perspectives onto the past.
This "have your cake and eat it too" methodology allows originalists to claim the authority of the Founders while simultaneously discounting anything that those same Founders may have said, done, or understood that doesn't appear among the approximately 7500 words of the Constitution itself.
This book speaks directly to originalists with a challenge to make a fundamental choice between recognizing how our modern constitutional practices distort the original constitution and embrace them for the modern fiction that they are, or recover the original Constitution that the Founders actually knew.
Author recommended reading:
The Interbellum Consitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale UP, 2024) by Alison L. LaCroix
Related resources:
The Structure of Scientific Revolutions by Thomas S. Kuhn
Edwin Meese speech to the American Bar Association in 1985
Constitutional Faith by Sanford Levinson
New Books Network interview with Jonathan Gienapp, when Derek Litvak spoke with him in 2019 about The Second Creation: Fixing the American Constitution in the Founding Era (Harvard UP 2018).
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Scholars often narrate the legal cases confirming LGBTQ+ rights as a huge success story. While it took 100 years to confirm the rights of Black Americans, it took far less time for courts to recognize marriage and adoption rights or workplace discrimination protections for queer people.
The legal and political success of LGBTQ+ advocates often depended upon presenting sexual and gender identities as innate – or “immutable” to fit legal categories. Conservatives who oppose LGBTQ+ equality often argue that sexual and gender identity is something that can be taught. They use the offensive language of “grooming” and contagious “gender ideology” that corrupts susceptible children.
In Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement (U Chicago Press, 2023), Dr. Joanna Wuest unpacks how a biologically based understanding of gender and sexuality– based on arguments from the “natural sciences and mental health professions” – became central to American LGBTQ+ advocacy. Her book is both a “celebratory and cautionary” story about the costs of relying on science to win impressive victories for queer rights. The book interrogates the “LGBTQ+ rights movement, the scientific study of human difference, and the biopolitical character of citizenship that formed at the nexus of the two.” As LGBTQ+ advocates brought “science to bear on civil rights struggles,” they transformed American politics and the epistemology of identity politics more broadly.”
Dr. Joanna Wuest is an incoming Assistant Professor of Women's, Gender, and Sexuality Studies at Stony Brook University and a sociolegal scholar specializing in sexual and gender minority rights, health, and political economy. Her book, Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement, received an Honorable Mention for the Society for Social Studies of Science's 2024 Rachel Carson Prize and was featured on a recent episode of Radiolab.
During the podcast, we mentioned:
Joanna’s article with Dr. Briana S. Last, “Agents of scientific uncertainty: Conflicts over evidence and expertise in gender-affirming care bans for minors” in Social Science & Medicine.
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