Things to Read This Week (8/3/26)

Fact Avoidance. Why didn’t the Court want to grapple with the dubious factual predicates in Learning Resources or Illinois v. Trump? (Or, could one, add, Youngstown?) A very interesting one from Shalev Roisman.

The Constitutionality of Inter-Branch of Appointments, by Chad Squitieri. An originalist defense.

And my Hall Lecture, Beyond Tit-for-Tat, is finally up in draft written form. From the setup:

Constitutional law is about setting rules of the game – rules that bind or empower one faction or party just as much as they will empower the next one, and ideally rules that help ensure that our society is a democratic and free and prosperous one.

These rules exist across all kinds of constitutional law. Legislative power: if it takes 51 or 60 votes to pass legislation when one party has the majority, it should take that many votes to pass legislation when another party has the majority. Executive power: the powers that one party’s president has to act in the absence of legislation are the same powers the other party’s should have as well. Judicial power: if one administration’s initiatives can all be enjoined as unlawful by the district judges in a single courthouse in one part of the country, the same should be able to happen to the next administration’s. Free speech: if enemies of the regime are constitutionally protected from retribution, so too should be the enemies of the next regime. And so on.

Now of course, the reality is that our government does not always live up to those ideals. Sometimes people break the rules. But this is a particular challenge in constitutional law, because unlike in other kinds of law, there are no “separation of powers police” to enforce the separation of powers. Constitutional law is supposed to constrain the police themselves. And yes, there are courts, but they are part of the separation of powers too, and many of the same questions go to what the courts can do and who must listen to them, and what happens when they don’t.

What is more, we have political parties, and often the members of our government care more about their political party than they do about the separation of powers. This leads to the challenge: sometimes one “side” violates a constitutional rule, or a constitutional norm, and has enough power to get away with it, at least for a while.

But only for a while. One day, the other “side” regains some power, and has to decide what to do about the norm. Give up and declare the norm abolished? This approach rapidly reduces constitutional law to the lowest common denominator.^[8] Few constitutions could survive it. Forgive and forget, giving the devil the benefit of law even if he would never do so for you? This approach famously lets “activists vote twice,” and if repeated – with one side unbound by any norms while the other side unilaterally respects them – might be one of the few things lower than the lowest common denominator.

My topic here is a strategy that tries to respond to these problems. Although, as you’ll see, I worry it may create problems of its own. This strategy is a common refrain that I hear more and more when I talk to scholars, lawyers, and government officials on both sides of the aisle about the current state of things, and that refrain is, “tit-for-tat.” Limited retaliation, even in violation of a norm, might be the way to vindicate the norms we wish to see in the long run.

The potential examples for this logic are as wide-ranging as our constitutional norms. Perhaps you believe, for instance, that all Supreme Court nominees ought to receive an up-or-down vote from the U.S. Senate or at least ought not to be denied one solely because of the President who appointed them. Perhaps you believe that should be the norm. But if Republicans violated that norm to defeat the nomination of Merrick Garland, what should happen to them the next time a Republican nominee faces a Democratic senate? Tit-for-tat. An eye for an eye.

Or perhaps you believe that the government should not tell private platforms what speech they should carry, even when the government hides the threat of retaliation behind a veil. But if Democrats violated that norm to push conservative claims off of social media, what should happen to them when Republicans hold power over the FCC and have the power to push a liberal comedian off the airwaves? Tit-for-tat? An eye for an eye?

Perhaps you believe that judges should follow stare decisis – letting previous decisions stand even if they believe the cases were wrongly decided. But what if you are a judge, and watch your colleagues overturn a decision you thought was profoundly right, and are then confronted with a decision you think is equally wrong. Tit-for-tat? An eye for an eye?

In each of these cases – and the many others you can imagine – I must emphasize that the retaliator is not necessarily being cynical. The promise of tit-for-tat, as we will see, is that it might be the best hope of restoring long-term cooperation.

I have encountered these tit-for-tat arguments increasingly in recent years, made by people I know believe strongly in constitutional norms. I heard them from principled colleagues on President Biden’s Commission on the Supreme Court. I hear them again from principled friends serving in the Second Trump Administration. It is because they believe strongly in principles that they are upset by the violations of them, and willing to temporarily violate their own principles in the hopes of one day restoring them.

Now you might be tempted to disregard this kind of argument as a form of hypocrisy. “Give me chastity and celibacy,” Augustine supposedly said, “but not just yet!” But I don’t think that’s entirely fair. Peace is better than war, but George Washington told us that “to be prepared for war is one of the most effectual means of preserving peace.” The appeal of tit-for-tat is that it promises both retaliation and cooperation. A punishment, and then a restoration. War, for peace’s sake.

You might also think this kind of argument simply doesn’t apply to constitutional law. Aren’t you a textualist originalist, Professor Baude? What has game theory to do with the supreme law of the land? But as many scholars have observed, what we might call “norms” or “conventions” are an important part of our constitutional law, and practice, strategy, and equilibria tells us about when such conventions survive or die. Moreover, even beyond norms, some rules of constitutional doctrine are premised in part on the promise of consistency or fairness over time. That’s true of content and viewpoint neutrality, of equal protection, and so on.

And even more fundamentally, even to a textualist, even to an originalist, the efficacy and legality of our constitution itself comes from practice. If the Constitution doesn’t coordinate our behavior in some way, it isn’t really the supreme law of the land after all. Just ask the Articles of Confederation or the British Empire in the American colonies. At bottom, compliance with the law is just another norm. So if we don’t have a good understanding of when our other constitutional norms survive, die, or change, we won’t have a good understanding of the fate of the constitutional order itself.