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Friday, December 22, 2023

What Getting "On the Wall" is and Isn't

At the Volokh Conspiracy, Josh Blackman asserts, citing media mentions, that the arguments he and Seth Tillman have made about whether the President is an officer of the United States, especially for purposes of section 3 of the Fourteenth Amendment, have moved from "off the wall" to "on the wall," to use a formulation made popular in legal academic-ish circles by Jack Balkin. I think he's basically right. That is not to say they are completely on the wall in Balkin's sense of being adopted by the Supreme Court or by many other courts, although individual judges may sometimes turn to whatever is handy to justify a result. But they have arguably moved into the realm of contestability--into the realm of arguments that must be addressed rather than being capable of being ignored or dismissed with a couple of casual words. Their arguments are moving wallward, at least.   

It is perhaps worth noting--and Blackman does not suggest otherwise in his post--that saying an argument has moved "on the wall" is basically descriptive, not normative. It tells us whether the argument is on or off the map of acceptably plausible argument, not whether it is "right." Calling an argument "on-the-wall" may be somewhat more normative if one believes that if the courts ultimately adopt an argument--and that is not the present status of the not-an-officer argument--then we should believe the argument is sound and true and right. Although many people believe that an argument is "the law" if it meets this condition, I don't know of anyone who goes the extra fifty miles and believes an argument is good and true in some deeper sense simply because courts adopt it. Balkin has also argued in the context of these discussions that when it comes to constitutional arguments, "the meaning of the Constitution is [not] infinitely distensible." That would suggest that an argument must be non-frivolous to move "on the wall." But although the Constitution is not infinitely distensible, it is, especially when combined with various methods of interpretation and additional sources, pretty damn distensible. In less vulgar fashion, Balkin observes that "sometimes it is very hard to tell what the boundaries of frivolous legal argument and nonfrivolous legal argument are."

Nor, as Balkin argues, does the acceptance of an argument as "on-the-wall" tell us much about its fidelity to the Constitution, except in the sense of fidelity as an "activity" or "process" rather than in the sense of sticking loyally and accurately to an original source in some trans-historical way. A lawyer or academic trying to place an "off-the-wall" argument on the wall may talk in terms of fidelity, but that is "simply the way the game of constitutional interpretation is played." Again quoting Balkin, "Fidelity to our Constitution is manufactured" by "making claims in the name of the Constitution"--and doing things, inside and perhaps especially outside of court, to help them stick. That an argument has been moved in this fashion into the realm of "it might stick" doesn't tell us much about its soundness in some idealized moral, normative, or, if such a thing were to exist, non-social interpretive realm. (As Prof. Josh Blackman once wrote, that conclusion may be "quite ironic" to judicial or political conservatives, "in light of how critical [they] have been for decades about the Justices reacting to political and social movements instead of focusing solely on the Constitution." One should avoid crowing about this point, or applying it to "conservatives" with a broad brush. Not all conservatives are conservative, any more than all progressives are progressive. Some conservatives, like other political groups, are living constitutionalists at best, and perhaps more often have little interest at all in "law" in its storybook sense as a purely internal activity, seeing it instead as a fundamentally political project. Also, and more important to me, we all find ourselves in ironies and hypocrisies of our own.)  

In sum, to say an argument has been moved "on the wall" speaks to its status in legal and perhaps popular discourse, and to whether it is now a potential part of conversation in more or less acceptable circles, or whether it is still confined to asylums and Reddit boards. It does not speak to its soundness, rightness, goodness, accuracy, prudence, or wisdom.

I don't mean this as a judgment of whether any of these labels apply to Blackman and Tillman's arguments. Indeed, my point is that I can't say whether any of these labels apply to those arguments--or at least not on the basis of their metaphorical location in geometrical space. As Prof. Josh Blackman once wrote, focusing specifically on the Supreme Court (a focus that made sense in that context, but I would generally open the lens wider), "The notion of 'off-the-wall' [or 'on-the-wall'] is descriptive of the current acceptance of an argument by the Supreme Court, not its soundness or its normative appeal." When Balkin wrote of the journey of an argument "from crazy to plausible," "crazy" and "plausible" simply meant how they are viewed by "most legal professionals and academics," not how "good," in various senses, the argument is. And the corollary of this formulation is that an argument may move back from plausible to crazy if it is rejected by the relevant authorities--although this will still be a matter of its ultimate acceptance or rejection, not its ultimate rightness or wrongness. One story of this Term, I suspect, will be the Court moving a number of the arguments of Fifth Circuit judges back from "plausible" to "crazy," telling those judges who are attempting to push the Court in a particular direction at a particular speed that sometimes their "bat signal" is simply batty and they need to knock it off. Even then, it won't make those rejected arguments "wrong" in a moral or normative sense, although it may suggest that those judges have sometimes strayed into a non-judicial line of activity that might more properly be pursued elsewhere than on the bench.

I would add another observation. Although the process of moving a legal argument to "on-the-wall" status is generally treated as a product of multivarious actors and social movements, Neil Siegel has observed that "constitutional change" is "driven not just by political actors, but also by legal elites." And Balkin has written:

Arguments move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument. Moreover, it matters greatly who vouches for the argument -- whether they are well-respected, powerful and influential, and how they are situated in institutions with professional authority or in institutions like politics or the media that shape public opinion.

Without suggesting that I am being faithful to Balkin and others' arguments about how social movements drive constitutional change, one might say that some cases in which arguments are moved on the wall have a lot to do with the role of well-respected and influential individuals, while in other cases the change has less to do with such individuals and more to do political movements, parties, and media organizations, whether they are (or deserve to be) respected or not. It seems to me that an example of the former case is the set of arguments about section 3 of the Fourteenth Amendment that actually won in the Colorado Supreme Court, and which were advanced by Will Baude and Michael Stokes Paulsen. It matters greatly that others, including non-legal elites and other groups, got behind it. But the high regard in which Baude and Paulsen are held as scholars has had a major impact. The incomplete but ongoing wallward journey of the contrary set of arguments seems to me more an example of the latter case. It has moved closer to on-the-wall status in conservative media and social-movement spaces than in court. If it moves further still in legal spaces, I think its being pushed by media and movement organizations will have more to do with it than any initiating actions by "well-respected and influential individuals."

I should be clear again that my observation is descriptive, not normative. It is about the status of an argument, not its rightness in some ideal or purely intellectual sense outside of political and legal change on the ground. Baude and Paulsen are well-respected and influential, but that does not, as they would agree, make their argument "right" in that sense. (In fact, for prudential and other reasons I think their argument should be rejected, although not because the President is not an "Officer of the United States." But that is hardly a pure intellectual judgment.) Nor am I rendering a judgment about either the "rightness" of Blackman and Tillman's argument nor the status of Blackman and Tillman, let alone Kurt Lash, as scholars. Lash is clearly and deservedly well-respected. I also find Tillman an interesting scholar whose energy and monkish dedication have been evident throughout his career. ("Monkish," for me, is high praise.) And I regularly read Blackman's blog posts. But I think movements and media, respected or otherwise, have been the prime movers in the struggle for recognition of that side of the argument about section 3.       

Posted by Paul Horwitz on December 22, 2023 at 01:08 PM in Paul Horwitz | Permalink


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