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A Look Back at Washington State’s Senate Bill (SB) 5843: Constitutional or Not?

Alexandra Orbuch ‘25

Introduced by the Washington State legislature in January 2022, Senate Bill (SB) 5843 attempted to criminalize statements made by elected officials or candidates that:

(a) Are intended to incite or produce imminent lawless action and do incite or produce such action resulting in harm to a person or to property; (b) Are made for the purpose of undermining the election process or the election results; (c) Falsely claim entitlement to an office that an elected official or candidate did not win after any lawful challenge made pursuant to this title is completed and the election results are certified.

The bill failed to gain sufficient support in the house, so it failed. But the politicians opposed simply struck it down with no discussion as to why. Because they stayed silent, I am here to discuss the serious constitutional issues with the latter two types of speech banned by the bill (sections b and c), as they shunt aside the “imminent lawless action” test and a host of other legal precedents.

Washington Governor Jay Inslee put out a statement in support of SB 5843, alluding to President Trump’s message preceding the January 6 Capital riots. “The defeated president and his allies…are perpetuating the belief that this election was stolen from them,” he said. The language of the bill itself echoes this fear, highlighting “false statements and claims regarding the validity of the 2020 election” as the cause of “January 6.”

Inslee declared that Trump “yell[ed]” fire in the crowded theater of democracy,” harkening back to Schenck v. United States, in which the Supreme Court said that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.” Schenck created the “clear and present danger” test, which protected speech unless there is a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Inslee seems to have missed the memo that the “clear and present danger” test is no longer the free speech barometer. Brandenburg v. Ohio replaced it with the “imminent lawless action” test, which forbids curbing speech unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court made an important distinction in its ruling, writing that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” (emphasis added).

While SB5843 does include speech likely to incite imminent lawless action as one of its offenses (section a), it also lays out two other types of speech that would qualify: speech “made for the purpose of undermining the election process or the election results” and speech “falsely claim[ing] entitlement to an office” after losing an election.

Banning the latter two types of speech is unconstitutional. In order to fall outside of protected speech as set forth in Brandenburg, it would not be enough for a statement to attempt to “undermin[e]” elections or “falsely claim entitlement” to a political office. The burden of proof is much higher than that. The statement would need to call for lawless action in such a way that the speech mobilized action on the part of the parties on the receiving end of the speech. Moreover, the bill forgoes any mention of a timeframe at all for the latter two types of speech, completely shunting aside the “imminent” portion of Shenk’s free speech metric (emphasis added).

The bill’s attempt to purge false claims of entitlements to political office is one that swims against the tides of precedent even beyond Schenck. In Bond v. Floyd, the court unequivocally declared that “erroneous statements must be protected to give freedom of expression the breathing space it needs to survive.” 3. Further, in U.S. v. Alvarez, the court asserted that banning lies “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”

In Alvarez, Justice Kennedy wrote that “when the Government seeks to regulate protected speech, under the First Amendment the restriction must be the least restrictive means among available, effective alternatives.” There is almost always “an available, effective alternative” to censoring false narratives, one more in line with the value of freedom so integral to the American ethos: “counterspeech.” The court had faith in the intelligence and judgment of the American people, and rightfully so. Alvarez was “perceived as a phony” and “ridiculed” even before his FBI investigation. “There is good reason to believe that a similar fate would befall other false claimants,” said the court.

The court aptly reminded the public that “the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” Calling “speech we do not like” illegal is contrary to established law and legal precedent.

When the “government seeks to orchestrate public discussion through content-based mandates,” we wade into dangerous territory. Governor Inslee and the Washington legislature would do well to remember that American society “has the right and civic duty to engage in open, dynamic, rational discourse.” As the court so trenchantly wrote, “truth needs neither handcuffs nor a badge for its vindication.” It is not–and ought not be–the government’s place to police electoral discourse. America’s distinctiveness lies in the freedoms enshrined in its Bill of Rights. We live in a constitutional Republic, not a fascist censorial regime dedicated to protecting the government from even the most indistinct whiff of ‘untruth’ or critique.

In U.S. v. Alvarez, the court proclaimed that “[a]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” It stated that content-based speech restrictions are relegated to limited “historic and traditional categories [of expression] long familiar to the bar.”

These “categories” include incitement, obscenity, defamation, child pornography, fraud, fighting words, true threats, and speech integral to criminal conduct. Obscenity and pornography are clearly not at issue here, so I’ll table discussion of them. As for the fraud exception, it applies solely to false commercial advertisements and considering Inslee’s legislation has nothing to do with commerce and advertising, the fraud exception to the first amendment is inapplicable here.

In U.S. v. Williams, the court declared that the speech integral to criminal conduct, “offers to engage in illegal transactions,” do not fall under “First Amendment protection.” Solicitation of crime is illegal, but abstract advocacy of illegality is not. The scope of the speech integral to criminal conduct is limited to the “imminent lawless action” test set forth in Brandenburg. And, as already discussed, two-thirds of the criminalized actions set forth in the bill would not pass the test.

Also subject to the “imminent lawless action” are fighting words, “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The court has made it very clear that words are protected unless they “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Cohen v. California further narrowed the definition, ruling that speech that does not directly aim its message at an individual or group is in fact protected by the first amendment. Thus, making a statement challenging or lying about election results would not apply. In the court’s words, “an ‘undifferentiated fear or apprehension of disturbance’…is not enough to overcome the right to freedom of expression.”

The last exception to protection under the first amendment are true threats, which “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The court, in Virginia v. Black, limited true threats to speech “with the intent of placing the victim in fear of bodily harm or death.” SB 5843 targets political speech, not speech threatening physical violence, therefore the true threat exception is neither relevant nor applicable. Clearly, neither speech “undermining the election process or the election results” nor speech “falsely claim[ing] entitlement to an office” fall under the categories of speech that the Supreme Court has said the First Amendment does not protect.

Both the spirit of the proposed legislation and the language itself, taking issue with subjective ‘lies’ that may be otherwise deemed as opinion, conjecture, or assessments differing from the ‘conventional wisdom’ or infringing upon the comforts of elected officials, are ultimately dangerous attempts to legislate contrary to the intent of the Founding Fathers and the subsequent clarifications by the Courts defining protected rights under the Constitution.

The Problems with Legislative Overrides of Judicial Rulings

by Beck Reiferson and Benjamin Edelson

In April 2021, President Joe Biden signed an executive order establishing the ‘Presidential Commission on the Supreme Court of the United States,’ a commission of legal scholars formed to discuss potential reforms to the Supreme Court. In October of that same year, the Commission released discussion materials prepared in advance of its fourth meeting. These materials outline a variety of proposed reforms to modify “the Court’s role in the constitutional system.”¹ One reform that the Commission considers is the establishment of “legislative overrides of Supreme Court decisions.”² The purpose of such overrides would be “to minimize judicial supremacy—i.e., the system under which the Court is the final and authoritative arbiter of the constitutionality of statutes or executive action.”³ These concerns about the Court wielding quasi-legislative power are valid. We believe, however, that legislative overrides are a poor solution for two important reasons: (1) they would undermine the principle of checks and balances, which is central to the functioning of our constitutional system, and (2) they would be contrary to one of the key purposes of the Court—to keep some fundamental issues (e.g. the right to vote, the free exercise of religion, etc.) out of the democratic sphere and safe from the influence of political majorities.

The system of checks and balances is one of the most important features of the United States’ constitutional system. In the words of James Madison, the purpose of checks and balances is to keep the branches of government “in their proper places.”⁴ Congress’s gaining the power to override judicial decisions would threaten the proper functioning of this system. For one, the Court would lose its ability to prevent the legislature from passing unconstitutional laws, since the legislature could simply overrule any judicial ruling that invalidated a recently passed law. There would be no reason to expect Congress to ever invalidate a law it had just passed: if a congressperson who voted in favor of a law were to then vote to uphold the Court’s decision that the law did not pass constitutional muster, it would amount to an admission that they voted for an unconstitutional law. The vote to overrule the Court, then, would most likely be simply a rehash of the vote to pass the bill. With a simple majority, Congress could exceed any constitutional limits put in place to restrain it, thereby defeating the purpose of imposing any restrictions upon Congressional authority at all. In an effort to combat judicial supremacy, a system of legislative overrides would result in judicial impotence: a judiciary incapable of checking a legislative branch that would instead be left to check itself.

The severity of these problems would be reduced if legislative overrides required a supermajority, rather than a simple majority of half of each legislative chamber. (The Commission’s document does not specify what the necessary voting threshold would be.) This, however, would then become redundant with the amendment process, which requires a two-thirds majority of both chambers of Congress. So if legislative overrides were to be meaningfully distinct from the existing amendment process, they would have to require something less than a supermajority—and we would run into the same issues described above.

One could argue that legislative overrides would actually reinforce the system of checks and balances by imposing a check upon the judicial branch. We do not find this very plausible. It is not the purpose of a check or balance to render the checked or balanced branch too weak to properly function. The purpose of checks and balances is to ensure that no branch exceeds its constitutional limits, not to prevent one branch from fulfilling its role in the constitutional system while letting another branch enjoy carte blanche.

Another of the Commission’s worries is that in interpreting the Constitution, the Court wields too much power. Giving a democratically elected branch the final say on issues of constitutionality, it thinks, would be more in line with the ideals underlying our system of government. The “chief aim” of legislative overrides, the Commission writes, “is to allocate power away from the Supreme Court and toward the elected branches…the Supreme Court exercises excessive power over the resolution of major social, political, and cultural decisions – decisions that would be better resolved through the democratic process” (p. 25). As expressed earlier, we are very sympathetic to these concerns. But we think questions of hermeneutics – and the controversies that arise for the Court boil down to debates about interpretation, not normativity – are not ones that are best resolved democratically. Leave normativity to the people; let them decide what things they value as a society. But let a separate, highly qualified panel deal with the issue of how to interpret complicated, often vague texts. Conflating these two distinct tasks into a common enterprise will only lead to each being performed less effectively and correctly.

The Court is a check on democracy, an (ideally) independent body that reviews the legislature’s acts and determines whether or not it meets the acceptable standards of law as previously set out by the people themselves. This seems to us to be the point of a Bill of Rights in the first place. Deciding which rights are so basic and valuable as to merit their removal from the democratic sphere is up to the people’s delegates. The legislature has expanded and shrunk the list from time to time via constitutional amendment. There is definitely value in designating some rights as ‘off-limits’ like this: it prevents the government from acting poorly towards groups that are underrepresented in the legislature. Who should determine whether or not Congress has violated these ‘rules of the legislative game’? An extra-legislative body, one intimately familiar with the rules. As argued above, it would be pointless at best and dangerous at worst for this body to be the legislature itself, since the legislature obviously has a vested interest in a given law’s passage.

We are not sure how best to prevent a supposedly independent Court from abusing its considerable power, though. The best fix, we think, would be for Justices to interpret the Constitution and statutes as tightly as they can, with as little room for ambiguity or creativity as possible. This, however, gets us into other hermeneutical controversies that we do not have the space to address. In any event, for the above reasons, it seems to us that granting the legislative branch itself the power to override judicial decisions would be one of the worst solutions to this problem—a solution that is fundamentally contrary to the purpose of the Court itself.

¹ https://www.whitehouse.gov/wp-content/uploads/2021/10/COURTS-ROLE.pdf, pg. 1.

² See footnote 1, pg. 25.

³ Ibid.

⁴ James Madison, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments” in The Federalist Papers.

National Popular Vote: Circumventing the United States Constitution

by Alexandra Orbuch

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1 Prin.L.J.F. 35

In 2016, Donald Trump became President of the United States after winning a majority of electors (he won 304 electoral votes, surpassing the necessary 270 votes) but losing the popular vote to Hillary Clinton. For reference, the national popular vote is the direct vote of individual citizens. The electoral vote, on the other hand, is cast by electors chosen as the result of the popular vote in each state.

As a result of this electoral outcome, the vociferous objections of many with strong sentiments against the electoral college resurfaced. The issue of the electoral college, however, is not a new one.

Founded in 2006, National Popular Vote (NPV) was created to lobby for The National Popular Vote Interstate Compact (NPVIC) which would allocate the electoral votes of the states in the compact to the overall winner of the U.S. popular vote. In the words of the NPV’s Agreement Among the States to Elect the President by National Popular Vote:

“The National Popular Vote Interstate Compact will go into effect when enacted by states possessing a majority of the electoral votes—that is, enough to elect a President (270 of 538). At that time, every voter in the country will acquire a direct vote for a group of at least 270 presidential electors supporting their choice for President. All of this group of 270+ presidential electors will be supporters of the candidate who received the most popular votes in all 50 states and DC—thus making that candidate President.”

While there is a separate debate to be had about the relevance or “fairness” of the electoral college system, I want to explore the legality of the NPVIC here. The National Popular Vote Interstate Compact collectively apportions votes to the winner of the overall popular vote without a constitutional amendment abolishing the electoral college or the assent of Congress. Yet, by May 2021, 15 states and Washington, D.C., had signed onto the National Popular Vote Interstate Compact.

This constitutes a violation of the Compact Clause, which states that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State.”

As I will outline below, NPV is a compact of a political nature that encroaches upon the power of non-member states, does not allow for signatories to withdraw at will, and gives its member states far more power than they would have had in its absence. All of the aforementioned contractual features, when taken together, form an unlawful interstate compact.

According to Virginia v. Tennessee, interstate compacts are defined as “all forms of stipulation, written or verbal…which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States, or interfere with their rightful management of particular subjects placed under their entire control.” The NPVIC does just that. It would have the power to change the results of federal elections and “interfere with the federalist structure of the US Constitution’s procedure for electing a president.”

According to the opinion in United States Steel Corporation v. Multistate Tax Commission, “A proper understanding of what would encroach upon federal authority…must also incorporate encroachments on the authority and power of non-Compact States.” This component of defining a compact is certainly relevant in the case of NPVIC. Should the NPV Interstate Compact go into effect, non-member states would be negatively affected and votes of individual states would be of no consequence when compared to the popular vote. The election would be determined not by all voices, but instead by the one combined deafening voice of the compact.

The National Popular Vote Manifesto promises that “The Compact ensures that every vote, in every state, will matter in every presidential election.” The key implication here is that the indirect election does not represent the will of the people, acting instead to dilute the one-man-one-vote principle which constitutes the basis of the electoral system. However, this argument misses a key consideration. We live in a republic that was founded to be a counterbalance to passing popular opinions and fads. It was intended to allow for the expression of regional and state concerns in addition to individual concerns. In the words of Baten v. McMaster: “the system reflects a considered balance between national and state power.”’ And the electoral college makes it so all states are represented in elections.

In contrast, with a popular vote, politicians would need only to campaign in areas with the largest population. They would flock to California and New York, yielding to those voter bases and tailoring agendas to fit their demands, meanwhile ignoring states like Wyoming and Montana. Ironically, this was exactly the reason the founders had for instituting the electoral college: to prevent tyranny of the majority.

The NPVIC is allowing just that. By circumventing the laborious process of amending the constitution, it is withholding the power of the rest of the states of our great nation to decide on the fate of the electoral college. It is allowing the electoral college to remain in name only. In that vein, I would like to discuss these aforementioned non-member states.

Statista put together a chart featuring the “number of times each state has consecutively voted for its most recent party in U.S. presidential elections from 1964 to 2020.” Every single state that has enacted the NPV Bill is designated as Democratic learning with significant voting streaks. California has a Democratic voting streak of 8 elections; District of Columbia: 15; Hawaii: 9; New York: 9; California: 8. The list goes on.

This brings to light a frightening reality. Not only does the NPV Bill violate the Compact Clause by harming non-signatory states, it effectively silences half of the two-party political system in this country. All states who have signed on lean left, leaving the right-wing of America out of the picture should the bill take effect. The National Popular Vote Compact Bill could change the outcome of U.S. elections in perpetuity. If that does not fall under the category of “encroachments on the authority and power of non-Compact States,” then I do not know what does.

Now that we have discussed how the NPV Interstate Compact violates the Compact Clause through its encroachment on non-signatory states, let us turn to the next component: the inability of signatory states to withdraw from the compact at will. In United States Steel Corporation v. Multistate Tax Commission, the Supreme Court opined that in a permissible compact, “each State [would] retain[] complete freedom to adopt or reject the rules and regulations of the Commission…each State [would be] free to withdraw at any time.”

Under the rules of the National Popular Vote Compact Bill, however, a member state cannot withdraw at will from the compact at any point in time. Should a state want to exit the compact within six months of the end of a president’s term; if the said state chooses to leave, they will still have to allocate their electoral votes to the winner of the popular vote in that election cycle. In the words of the NPVIC, “[a]ny member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

The prohibition of compacts in the constitution applies to “treaties of a political character,” according to Virginia v. Tennessee. A compact that impacts the outcomes of governmental elections is undeniably political in character and thus unconstitutional.

Finally, an unconstitutional compact is one that “authorize[s] member States to exercise…powers they could not exercise in its absence.” By giving its member states powers that they otherwise would not have had, the NPV Interstate Compact meets this standard of unconstitutionality. ;t allocates electoral votes to the winner of the overall popular vote rather than just to the winner of the vote in their respective states and gives the signatory states more power than those who refuse to sign the bill. As discussed earlier, the states involved would effectively be silencing the rest of the country. And as we have seen, that means that the right-wing of the country would lose its voice in elections and thereby in policy making essentially eradicating the diversity of thought and plurality that is so key to the American political character.

The NPV’s manifesto says the following: “The National Popular Vote interstate compact will go into effect when enacted by states possessing a majority of the electoral votes—that is, enough to elect a President (270 of 538).” Individual states–and even a minority of multiple states–would not possess the power that a compact with the majority of electoral votes would.

Hence, my argument stands that the NPV Bill violates the Compact Clause of the United States Constitution. The Compact’s founders and proponents need to come to terms with the very real fact that they are waging war on our Constitutional order by being unfaithful to the manifest restrictions that document imposes upon the electoral system. No matter what they may think of the merits of our current system, there is no justification for shunting aside the constitution.

The Attractive Non-Sequitur of Democracy and Distrust

by JC Martinez

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1 Prin.L.J.F. 24

When it comes to interpreting the Constitution, there is a critical and possibly irresolvable dilemma which lies at the crux of countless arguments: should justices remain rigidly faithful to the original intent of the document’s writers at the risk of being anachronistic, or should they make substantive value choices at the risk of encroaching upon the legislature’s right and duty to represent the will of the people? John Hart Ely, the late, pathbreaking scholar of constitutional law, famously rejected this stubborn question as a false dichotomy. In his pivotal work Democracy and Distrust: A Theory of Judicial Review, Ely posits a third, middle approach to judicial review oriented toward reinforcing representative democracy, advancing a thesis so original that when the sentient student of constitutional law first grasps its thrust, their heart skips a beat in response to what seems like the light of an escape route from the foregoing dichotomy between two undesirable jurisprudences: first, what Ely calls clause-bound interpretivism, the strict strand of originalism woefully unable to make neither heads nor tails of the document’s open-ended provisions, and, second, what Ely calls non-interpretivism (and what might crudely be termed ‘living constitutionalism’), unsatisfactory in its rank inability to explain why one collection of substantive values should be given preference over any other. (These terms will be further clarified shortly.)

Although Ely’s theory is initially attractive, once the impression of the ‘golden mean’ fallacy fades, reservations about his argument arise, and along multiple fronts. These include the legitimacy of his conception of the Constitution, whether his theory of judicial review validly or necessarily follows from his conception of the Constitution as he establishes, and whether the theory ultimately escapes the substantive value judgments he seeks to avoid. With respect to the power it affords justices, Ely’s approach has simultaneously been criticized as too broad and too narrow. I will end by evaluating these arguments and making a closing note on the nature of Ely’s theory.

First, an explanation of Ely’s argument and terms is needed. The most natural way to start such an account, in accordance with the ordering of the chapters in Democracy and Distrust, is to begin with Ely’s critical analysis of the two alternatives to his middle approach and the reasons for which he argues they ultimately fail. The more general dichotomy is that of interpretivism versus non-interpretivism. The former espouses the credo that “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution,” while the latter holds “the contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document” (1). The appeal of interpretivism is that it simultaneously supports judicial review but is not vulnerable to the criticism of being undemocratic. Clause-bound interpretivism, a more restrictive subset of interpretivism, contends that “the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language,” and by an unwillingness to insert significant “content from outside the provision,” only allowing for “whatever interpretive help the legislative history can provide” (12-13).

Things get trickier, however, when one considers that provisions in the Constitution run the gamut from precise to incredibly open-ended. Ely compares, for instance, the specific requirement that the President be at least thirty-five years old with the Eighth Amendment’s prohibition of cruel and unusual punishments, whose imprecise language (consider that it did not specifically ban, say, flogging) seems written with the intention of providing at least some degree of interpretive breathing room. Even more jarring would be to consider the utter generalities of the Ninth Amendment.

The problem, therefore, is that the clause-bound interpretivist is caught in a stalemate. They are unable to refer exclusively to the text, for the text’s open-ended provisions point to objects external to the document itself, and yet are unwilling, by definition, to grapple with what those objects may be. The mildly clever clause-bound interpretivist, if unsatisfied with this internal tension, might submit in defense that the tension evaporates if the open-ended text of, say, the Ninth Amendment is simply assumed to protect rights without which the enumerated Bill of Rights’ guarantees cannot accurately be said to exist. But what in the text justifies that interpretive move, which is arguably as arbitrary and substantive as any, and could not, again, find clear justification in the text (outside of question-begging arguments)?

The incompleteness of the clause-bound interpretivist’s account then provides the motivation to consider extratextual sources from which a prudent judge might draw appropriately fundamental values, consistent with the non-interpretivist’s approach. In Ely’s third chapter, he analyzes leading contenders, including the judge’s own values, Natural Law, neutral principles, reason, tradition, consensus, and predicting progress. His analysis levels a brutal attack on their legitimacy, showing all seemingly plausible sources to be so grossly insufficient that the reader feels like a sailor whose ship has been smashed on the rocks and is grasping for the wooden plank of Ely’s novel theory as a final saving grace.

Having shown both clause-bound interpretivism and non-interpretivism to be both severely lacking, Ely advances his middle theory of judicial review, which importantly, is necessarily contingent upon a conceptualization of the Constitution as a fundamentally procedural document, and not as meant to protect particular substantive values. Ely writes “that the original Constitution was principally, indeed [he] would say overwhelmingly, dedicated to concerns of process and structure and not to the identification and preservation of specific substantive values” (92). Ely encourages the skeptical reader to read a few pages of the Constitution, as it would become clear that it was fundamentally procedural.

Accordingly, Ely suggests that the judiciary adopt a role akin to that of a referee. Such a judge would leave substantive value judgments to the legislative branch and merely attend to the proper functioning of the process of representative democracy, guarding against two key threats: one, those in power blocking the channels of political change, and two, representatives denying protection to politically weak minorities that groups have it, especially for reasons of hostility. Ely thus bypasses the problem of non-interpretivism by leaving substantive value choices to the legislature, and he plausibly but perhaps not conclusively ties the open-ended clauses to the theme of reinforcing democracy, getting around the problem of the clause-bound interpretivist.

To the extent that the measure of what a document primarily concerns is to be graded by the number of words or clauses written in the document about that object, so far so good. To debate that point would simply be a linguistic distraction that focuses on what it means for a document to be “primarily concerned” with one thing. However, Ely’s argument is precisely that because the Constitution is a fundamentally procedural document, judges should, when deciding how to interpret the Constitution’s open-ended provisions, be led predominantly by procedural considerations—namely, participation-oriented, representation-reinforcing tenets core to representative democracy.

So, there is an immediate soft spot here. Though I conceded that the Constitution can be said to be primarily concerned with procedure, depending upon how one wishes to define what it means for a document to be ‘primarily concerned’ with something, an unjustified leap appears to have been made; why should judges interpret open-ended provisions predominantly looking to the procedures of representative democracy? This conclusion relies on a conception of the Constitution as primarily concerned with procedure not just in the conceded sense that more clauses were written about procedure, but in the more expansive sense that the document’s interpreters should look first and foremost to procedure. But this second, larger sense of what it means to be ‘primarily concerned’ with something has not been demonstrated or conceded, and so should be read as asserted.

To illustrate what I mean, consider a brief counterfactual. Imagine that, growing up, my brother and I sketched a paper outlining who does which chores around the house. Is the document primarily concerned with chores—about which more words are written—or with the unmentioned fairness as a substantive value which the document’s procedures seek to protect? (Or, if I had more chores around the house, the substantive value may not be fairness but the responsibility that should—‘should’ implies a value choice—come along with growing older.) That’s a semantic point, as I have said. If my brother and I had a dispute, however, and my mother stepped in, would her mediation be primarily concerned with the underlying substantive value or with chores? Clearly, it is not chores simply because more words were written about them.

Moreover, it hardly seems as though Ely’s approach eliminates substantive value judgments by counseling a judge to only concern themself with reinforcing representative democracy. How might a judge decide on voter identification laws without making substantive value choices? Why, without appealing to substantive value, is it not the case, as John Stuart Mill notoriously advocated, that highly-educated individuals receive disproportionately weighted votes? It hardly seems plausible that such a question could be answered without appealing to substantive values like fairness.

Such considerations give credence to the concern that, under Ely’s theory, judges are given too much power. The way in which justices are empowered involves giving them a mandate to strike down the products of an electorally accountable legislature, ironically, in the name of representing democracy. Also, considering that these decisions, as I have submitted, are often difficult to disentangle from substantive value judgments, the result of adopting Ely’s approach may simply be to produce a further emboldened judiciary who, under the guise of advancing democracy, would then be freed from having to justify—by way of appealing to an (at least semi-legitimate) extra-Constitutional source—the substantive value judgments they inevitably must make but have claimed to forego. It is not hard to see how this could serve as a Trojan horse for judges’ personal predilections.

Those who criticize Ely’s theory as one that renders justices unable to check the tyranny of the majority, on the other hand, miss something key to the theory, the discussion of which leads to the appropriately final remarks of an article of this scope. Tyranny of the majority occurs when the majority exclusively pursues its own goals at the expense of politically weak minority groups. Ely’s theory expressly prohibits tyranny of the majority by assigning to the judiciary the role of guarding against acts of law which make it clear that the minority’s interests are not being taken seriously, in large part by prohibiting laws motivated by prejudice, which fall disproportionately heavily on minorities or decrease their prospects for meaningful political participation. An invidious law can be passed, but it will be an invidious law passed of, for, and by the people as a whole, and not apply disproportionately to minorities. And it is telling that, for Ely, the judiciary carries out this role in the name of representative democracy. This can only be implied to mean that Ely’s conception of representative democracy, as an ideal worth striving for, is not one of rank majoritarianism or of one faction oppressing another, but of a system in which equality of political opportunity and the dignity of its citizens are endogenous to the theory.

And this is revealing. It is generally thought that the American political system is a confluence of two great forms of government: representative democracy, which prioritizes the self-rule of the people via elected representatives, and constitutionalism, which emphasizes the necessity of protecting fundamental substantive rights (even if an electoral majority votes the other way). I suspect that Ely is not, as it might ostensibly seem, rejecting this characterizing framework, but rather precisely applying it insofar as the constitutional principles are internal to his conception of representative democracy to begin with. Ely’s theory, then, is not just that of a pure representative democrat, but also that of a constitutional democrat. The presence of this duality reinforces the inevitability of substantive value choices justices must make, again demonstrating that Ely’s argument, while intuitively attractive and useful to understand, is ultimately ineffective in its main aim of resolving the crucial dilemma initially posed.

Tyranny of the Minority: The Unconstitutionality of the Filibuster

by Madeleine Polubinski

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1 Prin.L.J.F. 16

In recent years, congressional gridlock has focused national attention on the Senate’s filibuster. The filibuster is the process by which a minority of senators delay or prevent a vote on legislation by speaking as long as possible on the Senate floor, until three-fifths of the Senate invoke cloture, which moves the chamber to a vote. While the debate over the filibuster typically centers on its impact on governance, a different debate has been simmering among legal scholars for years: is the filibuster even constitutional? After all, the filibuster is not authorized in the Constitution, nor is it expressly prohibited. I argue that the filibuster in its original, purest sense is constitutional, but that is not the filibuster we have today. In its current form, the filibuster is unconstitutional because it disrupts the Senate’s legislative process as outlined in the Constitution and has feeble historical support.

The text of the Constitution and the history of Congress suggest that the filibuster as a debate-enhancing mechanism is constitutional. As legal scholar Michael Gerhardt argues, “the filibuster derives its principle authority from the Senate’s express power to design its own procedural rules to govern its internal affairs.” At its core, the filibuster regulates internal procedure, and thus the supermajority requirement for cloture is well within the Senate’s power.

Many scholars argue that cloture requirements reflect many of the principles underlying the Senate. Despite its potential for abuse, the filibuster, fundamentally a mechanism to continue debate, embodies the Senate’s deliberative nature. Although the Constitution makes no mention of a filibuster, the process has a long history dating back to 1806, which some argue proves its legitimacy. Furthermore, the filibuster may enhance protections of minority interests and promote consensus, producing more agreeable and thorough legislation.

However, the filibusters’ debate-promoting potential is inextricable from, and ultimately overshadowed by, its obstructionist implementation. For more than a century, senators have exploited cloture rules to stall Congress or block legislation altogether. Filibusters have become less about debate and more about grandstanding for media attention or simply killing time to stall a bill. After exhausting relevant topics, which are rarely genuine efforts for further deliberation, speeches often devolve into unrelated topics that range from discussions of salad dressing recipes to recitations of each states’ voting laws.

At best, today’s filibuster sees senators belaboring well-known objections to bills. At worst, it shuts down debate and stalls the Senate, delaying or blocking legislation. In an even more flagrant deviation from the filibusters’ supposed deliberative function, filibustering today usually does not even require debate. “Silent filibusters” allow senators to block legislation without debate by merely voicing their intent to filibuster. Silent filibusters are a complete perversion of the filibusters’ deliberative potential and prove that the process functions as nothing more than a three-fifths majority requirement for regular legislation.

When considering the filibuster as a supermajority requirement for regular legislation, it is clearly unconstitutional.² As a textual matter, the Constitution appoints the Vice President as the tie-breaking vote in the Senate, providing that they “shall have no Vote unless [the Senators] be equally divided.” This provision implies that the Senate must pass regular legislation by a majority vote. The Framers of the Constitution, while concerned with tyranny of the majority, generally favored majority rule except for certain cases. In fact, the specification of supermajority requirements in the Senate elsewhere in the Constitution, like for the ratification of treaties, indicates that the Framers never envisioned a supermajority rule for regular legislation.¹

The Framers, famously wary of tyranny of the majority, devised a system of governance to protect minority rights and promote deliberation without a filibuster. The Federalist Papers outline how checks and balances, federalism, and other structural mechanisms prevent abuses of power, suppression of minority interests, and rash government action. The Framers clearly feared tyrannical majorities and an overly powerful legislature. However, even they deemed a supermajority cloture requirement unnecessary, undermining the argument that the filibuster enhances the Senate’s intended function.

Furthermore, the filibuster lacks a firm historical foundation to support its constitutionality.³ A high-minded commitment to debate did not motivate the filibuster. Rather, the Senate accidentally opened the door for it in 1806 because they deemed the original debate-ending mechanism unnecessary. Even then, no Senator exploited this mistake until 1837, when rising partisanship fostered more obstructionist tactics.

Proponents of the filibuster claim that the Senate effectively affirmed the constitutionality of its cloture rules during every filibuster or cloture motion since the 1800s. However, the persistence of a practice does not legitimize it. This is especially true for a practice like the filibuster, which inherently impedes revision, violating “anti-entrenchment,” a principle that forbids a past legislature from binding a current legislature to a rule or practice it would otherwise reject.⁴ Because a supermajority is necessary to eliminate the supermajority requirement for cloture, a formal change to Senate rules is virtually impossible because minority senators have no incentive to cede their power.

While the filibuster is theoretically constitutional, its current usage violates the Constitution because its obstructionist function has overtaken its debate-enhancing potential. Rather than promoting debate, it effectively imposes an unconstitutional supermajority requirement on the Senate to pass virtually any piece of legislation. Ultimately, the filibuster’s problems have arisen out of its implementation. As political parties solidified and polarization increased, so did the incentives for politically motivated obstruction. If senators genuinely used the filibuster to continue productive debate and moved to a vote after sufficient discussion, it may pass constitutional muster. However, today’s divisive political climate and the long-standing violation of those standards make it impossible to return to old norms. Unless the Senate reforms the filibuster to curb its obstructionist implementation and restore its deliberative function, it must be abandoned on constitutional grounds.

¹ The three-fifths majority requirement only applies to regular legislation. The Senate can pass bills related to government spending and fiscal policy through the budget reconciliation process, which allows bills to pass with a simple majority. However, all legislation unrelated to the budget requires a supermajority because of the threat of a filibuster.

² More issues of constitutionality arise when the filibuster is used to prevent presidents from appointing officials and judges to certain positions. Because the Constitution grants this power of appointment to the President with “the Advice and Consent of the Senate” without specifying a supermajority requirement (as it does in other provisions), a filibuster that effectively imposes a supermajority requirement and hinders the President’s constitutionally defined power is likely unconstitutional. However, the filibuster for presidential nominees has already been eliminated, so this issue is moot.

³ While not central to the question of constitutionality, the filibuster’s history is ugly. Southern Senators repeatedly exploited the filibuster to preserve Jim Crow laws and block civil rights legislation. Far from protecting minority rights, the filibuster enabled a congressional minority to preserve a brutally racist system and prevent the mitigation of racial minorities’ oppression.

⁴ While the anti-entrenchment principle is not explicit in America’s founding documents, it impedes governance and is commonly invoked when discussing legislative procedure.

Making the Case for Trump’s January 6th Speech as Incitement

by Beck Reiferson

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1 Prin.L.J.F. 5

On January 12th, Alan Dershowitz, Professor Emeritus at Harvard Law School and one of the nation’s most prominent attorneys, published an op-ed in the publication Newsweek in which he argued against the second impeachment of President Donald Trump on constitutional grounds. He reasoned that Trump’s false statements about the legitimacy of the 2020 election, though “deeply upsetting,” did not meet the standard the Supreme Court set for “incitement” in Brandenburg v. Ohio (1969). He wrote that instead of constituting incitement, Trump’s “volatile words fell plainly on the side of political ‘advocacy,’ which is protected speech.” Dershowitz then claimed that since Trump’s statements were constitutionally protected, they could not be sufficient grounds for impeachment, since First Amendment-protected speech does not constitute “Treason, Bribery, or other high Crimes and Misdemeanors”—the grounds for impeachment enumerated in Article II, Section IV of the Constitution. I will argue that, though Dershowitz is right about constitutionally permissible speech being insufficient grounds for impeachment, Trump’s statements on the morning of January 6th do meet the standard for incitement as laid out in Brandenburg.

In Brandenburg, the Supreme Court held that “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” As the word “imminent” indicates, the only statements Trump made that could potentially constitute incitement of the insurrection at the Capitol are those he made in a speech on January 6th, just before some of his followers stormed the building. The claims he repeated for months about widespread election fraud are irrelevant to the current discussion. Reformulating the Court’s words in Brandenburg makes clear what criteria Trump’s statements in this speech must meet in order to rise to incitement: they must have advocated for people to break the law, they must have been likely to cause illegal action, and Trump’s goal in uttering them must have been to provoke this illegal action. Let us examine each of these criteria in turn.

Though it is true that Trump did not explicitly ask his followers to raid the Capitol in his January 6th speech, that does not preclude the possibility that he still advocated for the use of force; indeed, a close examination of his speech reveals several instances in which he employed coded, implicit appeals for those in the audience to take matters into their own hands to reverse the results of the election. He asserted, for example, that “We will never give up, we will never concede… You don’t concede when there’s theft involved,” implying that taking “no” for an answer was out of the question. He also thanked the audience after they broke out into the chant, “Fight for Trump!” and then immediately brought up the military and the Secret Service—two organizations closely connected with the use of force. Taken in conjunction with one another, these statements, along with many other similar ones that pervade the rest of the speech, express the sentiment that the ends of delivering the election victory to its ‘rightful’ winner justify whatever means are necessary to secure that end.

Next we turn to whether or not Trump’s rhetoric was “likely to incite or produce such [illegal] action.” A consideration of the makeup of the crowd in attendance and the contents of Trump’s speech points to a clear affirmative response to this question. Those in attendance in Washington D.C. on January 6th had traveled from all across the country in order to protest the certification of the Electoral College; just by virtue of having arrived in the capital, they had already demonstrated a profound willingness to—and even a commitment to—engage in extreme action in order to keep Trump in office for another four years. Their presence in Washington D.C. indicates that they felt deeply aggrieved by false claims of election fraud and that they strongly believed in the righteousness of their cause. They were, put simply, the individuals most likely to resort to violence to achieve their desired ends. So when Trump set out to “lay out just some of the evidence proving that we won this election,” he lit a rhetorical match before the most flammable of audiences. And when he urged those in attendance to “fight like hell, [since if you don’t] you’re not going to have a country anymore,” framing the consequences of inaction as destroying “the integrity of our glorious republic,” he further convinced an already aggrieved crowd of the necessity of taking up extreme measures in order to prevent the certification of the Electoral College. He gave those listening an ultimatum: do whatever you can to keep me in power or live in an undemocratic country with an illegitimate leader who will do profound damage to many things you hold dear. By emphasizing to those most inclined to violence the importance of fighting the certification, Trump increased the likelihood of violence occurring.

Lastly, we must determine if Trump’s words were “directed to inciting or producing imminent lawless action”—that is, if incitement to violence was his goal. Questions of intent are always difficult to answer, and that is especially the case here given the absence of explicit calls to violence. There still, however, exists evidence that Trump wanted January 6th to unfold along the lines that it did. First, in an interview with radio host Hugh Hewitt, Republican Senator Ben Sasse said multiple White House officials had told him that “as this [the storming of the Capitol] was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was… He was delighted.” If it is true that Trump was happy with the insurrection, this suggests that that was his desired outcome from the outset; it seems unlikely that he went from being opposed to violent insurrection in the morning then delighted by violent insurrection later in the afternoon. Trump hoping for violence all along would also explain his initial inaction when his followers broke into the Capitol: hours after the protests had devolved into violence, Trump still had not condemned his followers, instead doubling down and further encouraging the mob by tweeting that Mike Pence had “failed to protect our Country and our Constitution.” Such language demonstrates a lack of displeasure with the events that were transpiring.

It may thus plausibly be argued that Trump’s speech on the morning of January 6th meets the high standard for incitement that the Supreme Court set in Brandenburg. This renders moot Dershowitz’s point about constitutionally permissible speech being insufficient grounds for impeachment.