Online Features

Constitutional Good Faith

Andrew McCanse Wright

In this essay, I argue that a constitutional scheme grounded in the Rule of Law cannot rely primarily on a self-executing, mechanistic vision of Madison’s ambitious branches checking one another. Rather, “We the People” depend on self-regulation—in the form of constitutional good faith—by the vast majority of our constitutional actors. I then offer a meditation on the nature of good faith required for healthy American constitutionalism.

Has Trump Trumped the Courts?

Michael J. Nelson, James L. Gibson

President Trump’s repeated and unsparing criticisms of the federal judiciary provide an opportunity to examine how public critique of the U.S. Supreme Court affects Americans’ willingness to support the institution. We report the results of an experiment embedded in a nationally-representative survey of Americans that varied in both the source (President Trump or distinguished law professors) and content (legal or political) of the criticism aimed at the Court. Our results—perhaps surprising to many—demonstrate that the greatest decline in support for the Court came among those respondents who learned of criticism by law professors that the Court’s decisions are politicized. The results have important implications for our understanding of the Court’s legitimacy under President Trump.

Democratic Erosion and the Courts: Comparative Perspectives

Aziz Z. Huq

Can national judiciaries play a role in resisting democratic backsliding? This essay explores the role of courts in the context of democratic erosion by examining case studies from South Africa and Colombia that showcase positive models of judicial intervention. Such positive results are not pervasive—Hungary’s and Poland’s experiences, for example, cut in the other direction. But by examining the institutional and political conditions under which national judiciaries have impeded, if not prevented, backsliding, it is possible to gain some insight into how courts can play a role in supporting democratic practice.

The Legacy of Loving

David A.J. Richards

Loving v. Virginia held unconstitutional laws that forbid interracial marriages. This article argues that the legacy of Loving, in light of later constitutional developments (including the constitutional recognition of gay marriage), should be understood in terms of the larger political and psychological evil of state enforcement of Love Laws, the patriarchal laws that “lay down who should be loved, and how. And how much.” Arundhati Roy. Loving and later constitutional developments express the freeing of ethical voice that arises not only from breaking, but resisting the Love Laws. The article contrasts breaking and resisting the Love Laws through a comparison of the life of the great black gay novelist, James Baldwin, and the life of the young black boy and man in the 2016 movie, Moonlight. The freeing of ethical voice by resisting the Love Laws is also investigated in the interracial marriage of the parents of Barack Obama and its impact on their son. Such resistance—as in the civil rights and anti-war movements as well as second-wave feminism and gay rights—is often met with a reaction patriachal politics, illustrated by the recent election of a patriarchal man, Donald Trump, to the American presidency. Resistance to patriarchy is now, for this reason, more needed than ever.

Sources of Law (Part Two): The First Amendment and Free Speech

NYU Law Review Online

The Sources of Law project is an examination of the origins and hidden ways that important legal authorities impact our lives without us fully understanding why or how. This project will focus on three areas: Executive Orders, the First Amendment, and insurance.  

The First Amendment protects an incredible amount of speech—and it’s often cited as a huge part of why the United States has such open and honest discourse. “Free speech” is a right that many Americans are familiar with and, usually, proud of. But the neo-Nazi protest and its aftermath in Charlottesville left many wondering: Should we have such intensely powerful protections of hateful speech?[1]

In many ways, the neo-Nazi protest typifies what many see as the vitally broad coverage of the First Amendment. That’s why the A.C.L.U. chose to defend the group’s right to march, despite the obvious rift between the two organizations’ ideologies.[2] As Chief Justice Roberts put it in upholding the Westboro Baptist Church’s First Amendment protections, “As a Nation we have chosen…to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”[3]

But what is actually protected? The First Amendment itself reads in relevant part: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Note that it’s a restraint on Congress. That means the government[4] is limited in making speech regulations, but private universities can prohibit or allow whoever they want from speaking on campus grounds.

So what speech can the government limit? “No law” is a little deceptive; there are plenty of constitutional laws that restrict our speech rights. Imagine our free speech rights like a cookie. Of course we’d like the whole cookie, but bites are taken out for appropriate limitations. This is why companies or individuals can’t lie to you to make you buy their product – that would be fraud and courts have found government may restrict and punish that type of speech.

Unsurprisingly, most of what we might normally think of as hate speech is in the protected part of the cookie. Over the years the Supreme Court has heard a variety of cases on things that we might think of as hate speech. And usually, the Supreme Court has protected the speech under the First Amendment. The Westboro Baptist Church protesting a soldier’s funeral with repugnant signs is protected.[5] Ku Klux Klan leaders giving speeches about white suppression and possible “revengeance” are protected.[6] Public displays of flag burning are protected.[7] The use of derogatory terms in trademarks is protected.[8]

But the First Amendment is not a golden shield protecting all hurtful or hateful speech from state action.

Parallels to Hate Speech: Incitement, Fighting Words, and True Threats

To begin, there are several areas that might overlap with hate speech and are not protected. For instance, there isn’t a First Amendment right to speech to incite violence. The Supreme Court in Brandenburg v. Ohio explained that there is no right when the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[9] But this is a rather high bar; Brandenburg itself involved Ku Klux Klan members at rallies, making speeches with loose promises to take “revengeance” against the government if it continued to oppress whites—speech found to be protected. Outside the reprehensible context, it makes sense to distinguish speech that teaches a moral duty to resort to violence from speech that prepares a group for violent action that it is about to take.

Similarly, “fighting words” aren’t protected under the First Amendment. In Chaplinsky v. New Hampshire, the Court upheld a law that prohibited face-to-face words that were “plainly likely to cause a breach of the peace.”[10] Like profane or libelous speech, “fighting” words are intended to lead to injury as soon as they’re spoken.[11] Any social value of such words “is clearly outweighed” by their contribution to disorder and it is unquestionable that the government can regulate them.[12]

But it’s unlikely that the carve out for “fighting words” would allow a state to ban demonstrations, especially not because of the message conveyed in the demonstration. In R.A.V. v. St. Paul the Court struck down a law that criminalized placing a symbol, object, or graffiti which one knows is likely to lead to alarm, anger, or resentment on the basis of race or religion, such as burning crosses or swastikas.[13] While this type of conduct might seem to fit under unprotected fighting words, the Court explained that “fighting words” as a category is unprpotected because it represents a “particularly intolerable (and socially unnecessary) mode of expressing” a particular idea—not the idea itself.[14] In contrast, because the statute at issue in R.A.V. targeted a specific type of language, it did not withstand First Amendment scrutiny.

On the other hand, 11 years later in Virginia v. Black,  the Supreme Court suggested that a state could criminalize cross burning carried out with the intent to intimidate as a form of threat (true threats being another area of speech without protection).[15] Given its history of use by Ku Klux Klan members, the court explained that “burning a cross is a particularly virulent form of intimidation” and states should be able to prohibit intimidation “that [is] mostly likely to inspire fear of bodily harm.”[16]

The Court was quick to note: Not all forms of cross burning are unprotected, and not all cross burnings can be banned.[17] In fact, Court struck down the Virginia law because it included a jury instruction that the very act of cross burning should be taken as prima facie evidence of intent to intimidate, unconstitutionally prohibiting “statement[s] of ideology, [or] a symbol of group solidarity.[18]” When cross burning is done to threaten, it loses its protection, but otherwise the Court suggests that it would fall under protected speech.

R.A.V. and Black demonstrate the uncomfortable fit between two different approaches to first amendment jurisprudence. The first approach tries to determine the appropriate level of protection for speech based on the content or form of that speech. This is the approach we have described above with our cookie metaphor. The second approach tries to determine the level of scrutiny to give a law that regulates speech based on how the law is written. Under this latter approach, when the government places so-called “content neutral” restrictions on the time, place, or manner of speech, it will face low or intermediate judicial scrutiny, while when the restriction of speech is triggered by the speech’s content, it will face “strict” scrutiny.[19] The higher the level of scrutiny, the more narrowly the law needs to be drawn and the more compelling the reason for regulating the speech in question needs to be. [20]

In R.A.V., the majority held that even within a generally “proscribable” area of speech, content-based restrictions would receive strict scrutiny, unless one of three conditions were met, the most prominent being that the content being targeted was a particularly virulent type of the proscribable speech.[21]

This is, in part, why the R.A.V. court found the St. Paul law unconstitutional: the law targeted pro-Nazi and pro-Klan speech based on its content, when (supposedly) there were plenty of content-neutral ways to prevent people from burning crosses on another person’s private property.[22] If all this is a bit confusing, don’t worry—how to reconcile these two approaches divided the justices in R.A.V.,[23] and, to a lesser extent, in Black.[24]

Time for More Regulation?

Leaving aside the legal implications, what are the arguments for and against tighter restrictions on “hate speech?” First, it should be noted “hate speech” means different things to different people. It could be traditional speech (oral or published) or expressive conduct. It could consist of: words or phrases that disparage particular groups; symbols with historical associations with violence against particular groups; and any or all of the above combined with marching, rallying, and other use of public space. Arguments for tighter regulation of hate speech often have only one of these specific categories in mind.

For example, Jeremy Waldron would regulate speech that conveys a message about a particular group’s inferiority. According to Waldron, such speech reduces the status of members of the maligned group as equal citizens.[25] Waldron argues that this motivation for regulation can be distinguished from protecting people from the feelings of offense that might accompany hate speech, which would be an insufficient reason to regulate.[26] Herbert Marcuse wrote a half century ago that to move from an oppressive to a free and equal society, the government needed to discriminate against certain speech that perpetrated inequalities—not just speech that voiced racial hatred but also speech against expanding social security or health care.[27] Finally, Elie Mystal, arguing on More Perfect’s excellent recent debate on this topic, argued that the government should be able to restrict false and dangerous speech, with Charlottesville as his prime example.

The arguments against regulating hateful speech also fall into several broad camps. There are what one might call pure “line-drawing” concerns—i.e. that no line can be drawn, using objective criteria, between hate speech and valuable political speech, for example, on issues like immigration (Justice Stevens makes this point in a review of Waldron’s work). There are “line-drawer” concerns that focus less on whether there’s an objective line but on the effects of giving government the power to draw such lines—see Glenn Greenwald’s review of the applications of hate-speech laws to minority groups around the world. Finally, there is the “argument from effectiveness” that ACLU’s National Legal Director David Coles, echoing Justice Brandeis, made in defending his organization’s decision to represent white supremacists seeking permits—that counter-speech will be more likely to defeat the aims of hate speech than regulation in the long run.

Tighter regulations on hateful speech exist in other countries. Canada criminalizes hate speech and denying the Holocaust can lead to jailtime in various European nations. While Americans often say that our open free speech protections are essential to our democracy, some wonder whether greater restrictions on speech would help reverse the worrying decline in the functioning of our democratic institutions and quality of our civil discourse. As discussed in the first part of this piece, such limits on hateful speech do not entirely lack precedent in the United States, but they would still represent a departure from our existing body of law. We are not the first generation to confront the tension between the harmful effects of some speech and the dangers of greater speech restrictions, and previous thinkers offer some guidance through this thorny problem.

[1] For discussions, see Joseph Goldstein, After Backing Alt-Right in Charlottesville, A.C.L.U. Wrestle With Its Role (Aug. 17, 2017),; Radiolab Presents More Perfect Live: The First Amendment in the Digital Age (Sept. 5, 2017)

[2] ACLU Statement on Charlottesville Violence and Demonstrations, ACLU (Aug. 12, 2017)

[3] Snyder v. Phelps, 562 U.S. 443, 461 (2011).

[4] Including state governments, via the 14th amendment, and public universities.

[5] Snyder, 562 U.S. at 461.

[6] Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).

[7] Texas v. Johnson, 491 U.S. 397, 420 (1989).

[8] Matal v. Tam, 137 S. Ct. 1744, 1765 (2017).

[9] 395 U.S. 444 (1969) (emphasis added).

[10] 315 U.S. 568, 573 (1942).

[11] Id. at 572.

[12] Id.

[13] 505 U.S. 377, 392 (1992).

[14] Id. at 393.

[15] Virginia v. Black, 538 U.S. 343, 363 (2003).

[16] Id.

[17] Id. at 364.

[18] Id. at 366.

[19] E.g. McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014)

[20] See Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665 (2015).

[21] R.A.V. v. St. Paul, 505 U.S. 377, 388-90 (1992).

[22] Id. at 396.

[23] See id. at 400-02 (White, J., concurring).

[24] 538 U.S. 343, 367 (2003) (Stevens, J., concurring)

[25] Jeremy Waldron, The Harm in Hate Speech 105-06 (2012). Waldron also wants to focus on more permanent expressions such as the written word or at least recorded speech, because of their ability to remain in the public record. See id. at 38.

[26] Id. at 105-09.

[27] Herbert Marcuse, Repressive Tolerance, in A Critique of Pure Tolerance 100 (Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse, eds., Beacon Press 1969).

Sources of Law (Part One): Executive Orders, Unilateral Executive Action, and Faithful Execution of the Laws

NYU Law Review Online

The Sources of Law project is an examination of the origins and hidden ways that important legal authorities impact our lives without us fully understanding why or how. This project will focus on three areas: Executive Orders, the First Amendment, and insurance.

Before January 27, 2017, you may not have been a regular executive-order watcher—the folks here at N.Y.U. Law Review’s Online Department certainly weren’t. Now, however, many of us are on a “first-number” basis with EO 13769, President Trump’s notorious travel ban, and have grown accustomed to tracking his rollouts of new EOs. (Click here for the current list. You can track presidential actions yourself using the “Presidential Actions” app, available for free on your preferred platform.) Executive orders, however, are nothing new—Franklin Roosevelt’s 1942 authorization of Japanese-American internment came via EO 9066, Harry Truman temporarily seized American steel plants under the auspices of EO 10340, and George W. Bush established the Office of Homeland Security through EO 13228.[1] Nevertheless, the ubiquity of these documents belies their rather obscure legal foundations and the contestable contours of their legal authority. What gives EOs legal legitimacy? Here’s Online’s fast take:

Origins and Legal Authority of EOs

Although no provision of the Constitution or early federal statute explicitly authorizes the use of executive orders, the practice took hold during George Washington’s presidency: Various commentators credit Washington with issuing the first “executive order” when, in 1789, he sent duplicate letters to the heads of several executive departments requesting that they report back to him “a full, precise, and distinct general idea of the affairs of the United States.”[2] While these letters hardly resemble the public, formally published declarations we recognize as executive orders today, they are regarded as a sort of ur-EO because their essential function was the same as that of the modern EO¾that is, affording Presidents seeking to fulfill their Article II duties a mechanism for directing subordinate executive officials to do certain things.

The basic legal authority for EOs thus stems from Article II of the Constitution—a given EO is legitimate if the President is using it in furtherance and within the confines of his or her Article II duties. The difficulty with this story of EO legality, however, is that the scope of presidential power is often hotly contested and, frankly, unclear. As an illustration, consider the controversy surrounding George Washington’s first presidential proclamation. As the French Revolutionary War took on a global dimension in 1793, the Washington administration sought to pursue a position of U.S. neutrality. While a broad reading (advocated by Alexander Hamilton) of the President’s Article II “executive power” suggested that Washington could make this policy decision unilaterally, Washington in fact considered calling Congress back into session so that the position could be declared by the legislative, rather than executive, branch. This evidenced Washington’s appreciation for a narrower reading of executive power that James Madison notably supported. Madison believed that the President’s core duty was to faithfully execute laws passed by Congress. They thus viewed presidential actions not explicitly authorized by the Constitution or federal statute with skepticism. A unilateral declaration of neutrality by the President was sure to raise eyebrows, for not only did it push the outer limits of constitutionally enumerated presidential power, it looked an awful lot like the sort of presidential lawmaking the Constitution’s separation of powers was meant to foreclose.[3]

In the end, Washington left Congress’s recess untouched and issued a presidential proclamation of neutrality on April 22, 1793. The proclamation declared the country’s intention to maintain “friendly and impartial” conduct toward the belligerent parties, enjoined Americans from acting in ways that would undermine U.S. neutrality, and directed federal law enforcement to prosecute individuals who did so. Madison, writing under a pseudonym, defended the proclamation’s constitutionality, arguing that the President’s declaration of neutrality merely stated a diplomatic position Congress had already adopted, and its directions to American citizens and law-enforcement officials were necessary to ensure that this law of Congress would be faithfully executed.

Nonetheless, as Washington began to implement the policy of neutrality, his administration engaged in activity that looked awfully legislative. In July 1793, for example, Washington’s cabinet produced a set of “Rules Governing Belligerents” that told U.S. residents how they must interact with foreign naval vessels in U.S. ports.[4] Although these rules were driven by the desire to enforce the United States’ neutrality policy, they evidenced how “faithful execution of the law” can open the door to a certain amount of executive “lawmaking” in the form of discretionary determinations about how the law will be enforced. Washington thus became subject to the criticism that he was exceeding his Article II authority and stepping on Congress’s legislative toes. Congress’s 1794 passage of the Neutrality Act, which authorized the administration to prosecute those who violated the neutrality proclamation, however, provided a congressional seal of approval that covered Washington’s legal bases.

The controversy over Washington’s neutrality proclamation illustrates why the legal authority for executive orders is often hazy: The proper distribution of power between the President and Congress is something the Constitution leaves open to interpretation. Justice Jackson discussed this issue in his concurrence to the Supreme Court’s opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown, the Court struck down President Truman’s seizure of American steel mills (carried out under the auspices of Truman’s own executive order outlining the action) as unconstitutional. Justice Jackson conceded that when the President acts pursuant to an express or implied grant of power from Congress s/he is acting at the full height of presidential power. However, when the President acts contrary to the express or implied will of Congress (as Truman had with his steel-mill seizure), s/he acts in a manner clearly outside the President’s constitutional authority. In the middle lies a “zone of twilight” where Congress has neither granted nor denied presidential authority (as, for example, when Congress implicitly endorses a diplomatic position but has not passed laws stating how that policy ought to be enforced). In the “zone of twilight”, the proper distribution of power between Congress and the President remains uncertain. “In this area,” Jackson cautioned, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”[5]

The history of EOs, from Washington’s neutrality proclamation to President Trump’s travel bans, appears to bear out Jackson’s prediction. Sometimes, presidential action in the “zone of twilight” goes unchallenged or eventually receives congressional authorization; other times, legal challenges or political backlash check this exercise of presidential power. Just as the scope of executive power remains subject to debate, so too does the validity of EOs issued in the “zone of twilight”.

Executive Orders, Presidential Proclamations, and Executive Action: What’s the Difference?

EOs do not trigger every “zone of twilight” presidential action. For example, Abraham Lincoln announced the emancipation of slaves in Confederate states via the Emancipation Proclamation (not the Emancipation Executive Order), and the Obama administration enacted the DACA and DAPA programs through a series of agency memoranda which were announced to the public via press conference. It seems that the decision to announce executive action as an EO rather than through a free-form inter-executive missive (a 1974 Senate Report alleges that early executive action “sometimes took the form of hastily scribbled Presidential endorsements on legal briefs or upon the margins of maps”[6]) turned simply on the earliest Presidents’ determinations as to whether the action in question was the sort that merited formal announcement.

The first effort to delineate and publicly track EOs as a specific category of executive action came in 1907, when the Department of State numbered and published the executive orders and proclamations it had on file, starting with an order of President Lincoln’s from October 20, 1862, that had established military courts in Louisiana.[7] The numbering system was thenceforward used to catalog new EOs and Proclamations as they were issued.[8] In 1935, Congress passed the Federal Register Act, which requires that all EOs and proclamations be published in the Federal Register.[9] The Act was motivated, at least in part, by the flood of executive orders the Roosevelt administration had issued in the course of rolling out New Deal programs.[10]  While the publishing requirement established a congressionally-mandated method for publicly cataloging EOs, nothing requires the President to issue any of his directives as EOs. If this is the case, what motivates a president to initiate executive action through EO rather than another medium? Why did President Trump enact his travel ban via EO, rather than some other executive mechanism?

The answer to this question appears to turn largely on where the President locates the source of legal authority for his or her contemplated executive action. The Obama administration’s decision to roll out DACA and DAPA via agency-wide memoranda, rather than via EO, signaled that these programs represented nothing more than an agency’s enforcement plan for current immigration law. While Obama came under fire for engaging in presidential lawmaking that went beyond any authority he held under the Constitution or federal immigration law,[11] many were willing to accept that these programs simply codified agency policy on the exercise of prosecutorial discretion. Had Obama declared this policy of prosecutorial discretion via EO, the EO’s legal grounds and inter-executive effect would be no different than the agency memos which initiated DAPA and DACA, but the President might have found himself subject to even stronger charges of executive lawlessness.

In comparison, President Trump’s travel ban was issued under authority of section 212(f) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(f), which states that the President “may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (emphasis added). Under the Trump administration’s theory of travel-ban legality, EO 13769 (and its follow-up, EO 13780) fulfilled the INA’s proclamation requirement and constituted a valid exercise of immigration authority delegated to the President by the INA.[12] But imagine the alternate universe where the INA doesn’t contain the proclamation requirement. In this alternate universe, President Trump could rely on a similar theory of statutory authority for the travel ban, but he would be free to enact the program through any mechanism of his choice—EO, inter-executive memo, perhaps even a presidentially-authorized tweet . . . While the EO often serves as a target to those critical of excessive presidential powers, the travel ban example highlights how it can be used by Congress as a tool for presidential accountability, a publicity requirement that prevents presidents from evading public scrutiny when enacting controversial policy.

More to Chew On

A lot more can be said about EOs, but including all that here would result in the Moby-Dick of blog posts. If you still find yourself puzzling over the ins and outs of EOs, we recommend reading “Executive Orders in Court,” a Yale Law Journal Note by Erica Newland that surveys executive order jurisprudence and analyzes the federal judicary’s inconsistent approach to EO interpretation. You might also want to check out “The President’s Enforcement Power,” a 2013 N.Y.U. Law Review article by Professor Kate Andrias, who served as special assistant and associate counsel to the president of the United States, and as chief of staff of the White House Counsel’s Office during the Obama administration. Professor Andrias discusses the various ways presidents of the modern era have influenced agency enforcement activity, including through the use of EOs. She acknowledges the constitutional issues embedded in such efforts and argues for greater enforcement coordination and disclosure to enhance the efficiency and accountability of the administrative state.

[1] Lily Rothman, 9 Executive Orders That Changed American History, Time (Feb. 6, 2017),

[2] See, e.g., Thomas V. DiBacco, George Washington Had a Pen, but No Phone, for Executive Orders, Wash. Times (Aug. 14, 2014),…

[3] For further historical background and a helpful discussion of the political and legal issues surrounding Washington’s neutrality proclamation, see Gary J. Schmitt, Washington’s Proclamation of Neutrality: Executive Energy and the Paradox of Executive Power, 29 Pol. Sci. Reviewer 121 (2000).

[4] Id.

[5] Youngstown, 343 U.S. at 637 (Jackson, J. concurring).

[6] S. Rep. No. 93-1280, at 2 (1974).

[7] Id.

[8] Id.

[9] See 44 U.S.C. § 1505.

[10] Id. at 2-3.

[11] See, e.g., Good Riddance to DAPA—but DACA Should Be Next, National Rev. (June 16, 2017, 7:00 PM), (referencing the Obama administration’s “lawlessness” in enacting the DAPA and DACA programs).

[12] The Ninth Circuit disagreed. See Hawai’i v. Trump, 859 F.3d 741, 782 (9th Cir. 2017) (concluding that President Trump’s second travel ban was properly subject to a TRO, as plaintiffs had established, inter alia, a likelihood of success on the merits that the travel ban was outside the President’s authority under the INA and, citing Justice Jackson’s Youngstown concurrence, classifying the travel-ban action as being at the “lowest ebb” of the President’s executive power).