About Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Case Against the Employee Free Choice Act.

Progressive Confusion about Human Welfare

 

The deep political polarization in the United States has spilled over to the academic realm. Today’s progressive thinkers are determined to undermine the influence of the great conservative and libertarian thinkers—most notably John Stuart Mill, Friedrich Hayek, and Milton Friedman. One prominent entry into the genre comes from Joseph Stiglitz, winner of the Nobel Prize in Economics, in his recent polemic The Road to Freedom: Economics and the Good Society. Stiglitz’s title plays off the title of Hayek’s far greater 1944 book, The Road to Serfdom. Stiglitz writes as a man possessed of strong opinions but incapable of sustained discourse. He flits from topic to topic in disorganized fashion, making it virtually impossible to extract from his multiple musings a clear account of either his rhetorical targets or his view of the “good society.” Stiglitz the economist is plainly out of depth in writing about political philosophy or law.

This harsh judgment of Stiglitz should not be misinterpreted as an uncritical celebration of the far deeper thinkers he attacks. John Stuart Mill is famous for his articulation of the harm principle in his 1859 book, On Liberty: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Unfortunately, his principle is both too broad and too narrow. Too broad, in that his thesis has no explicit libertarian base, so that Mill does not distinguish between harms caused by competition, which are generally to the good, and harms by the use of force and fraud, which are not. He makes this mistake because he wrongly isolates the particular transaction from its systematic effects on third parties, for which competition produces positive-sum gains, while force and fraud produce negative-sum games. Mill thus never mentions monopoly power, nor does he have any discussion on the optimal form of taxation: to raise taxes to supply public goods, to guard against the dissipation of common-pool assets, or to regulate the organization of network industries like railroads. Yet his conception of harm is too narrow insofar as it does not comfortably reach either antitrust or common-pool problems.

Asymmetric Justice in Gaza

 

The political situation in Gaza has taken a not-unexpected turn for the worse. Israel is conducting operations in Rafah, where, contrary to widespread expectations, it has done much to overcome the logistical nightmare of evacuating and then feeding close to a million Palestinians in Gaza, supplying some 542,570 tons of aid and 28,255 aid trucks, as reported by the Wall Street Journal. Meanwhile, Hamas does what it can to wreck that operation, and Egypt remains adamant in penning up the Palestinians in Rafah, which only increases the time, costs, and risks of military operations.

But conditions on the ground seem to have little effect on the political controversies that surround that action, coming from both the International Court of Justice (ICJ) and many Western governments, including—on and off—the Biden administration. In both cases, the basic message is the same. As to Hamas, the ICJ said in its order that it is “deeply troubling” that Hamas disregarded its call “for [the] immediate and unconditional release” of the hostages. Hamas will not do so at any time and is not under any diplomatic pressure to comply. So, it is the other half of the judgment that carries all the weight. The ICJ also ordered Israel to:

Questionable Reasoning in High Court’s CFPB Decision

 

In something of a shocker, a seven-two majority of the US Supreme Court, in an opinion written by Justice Clarence Thomas, has approved of the novel funding methods that Congress devised, largely under the guidance of Senator Elizabeth Warren, for one of her favorite agencies created by the 2010 Dodd-Frank legislation: the Consumer Financial Protection Bureau (CFPB). The CFPB’s stated mission is “to make consumer financial markets work for consumers, responsible providers, and the economy as a whole” by protecting the public from unfair, deceptive, and abusive business practices. As constituted, the CFPB has little interest in combating or limiting any potential abuses of its own administrative powers.

As the federal government candidly acknowledges in its petition for certiorari, the distinctive mission of the CFPB led Congress to endow the agency with special powers that insulate it from annual oversight by Congress. The first is that it has a sole director, not the usual set of five commissioners, who serves a term of five years, under which he is removable only “for cause,” defined as “for inefficiency, neglect of duty, or malfeasance in office,” which is operable in few if any cases. The Supreme Court invalidated the CFPB director’s “for cause” removal protections in 2020. Second, the work of the CFPB was funded solely by a partial transfer of the revenues generated by the Federal Reserve System, in the amount that the CFPB director deems “reasonably necessary to carry out” the agency’s duties, subject only to an inflation-adjusted financial cap, equal to 12 percent of the Federal Reserve’s total operating expenses. Note that, given these two combined layers of insulation, neither the Congress nor the Federal Reserve can block the appropriations, and the moneys so appropriated in one year, if not used, can be carried over to future years in perpetuity.

Why a Gaza Truce Would Settle Nothing

 

Israeli forces have moved into the city of Rafah and taken control of a key border crossing after carrying out a number of airstrikes, and the IDF continues to engage in military activities in the city in southern Gaza. Hamas announced its willingness to accept a cease-fire, but only if Israel stops hostilities, withdraws its troops, and releases prisoners in exchange for hostages. This deal, an obvious nonstarter, is the fruit of the unwise and prolonged efforts of the Biden administration to push too hard for that elusive cease-fire. Secretary of State Antony Blinken insisted that the “time is now” for a “pause” in the underlying hostilities, but he had already given up too much ground by trying to broker a hostage deal without demanding that all hostages be released unconditionally before any further negotiations took place—a release that won’t happen now. Indeed, the Biden administration had already made it much harder to reach a deal by apparently letting it be known that it had put a hold on an arms shipment to Israel.

All parties have been down this road before. At this point, I agree fully with the Wall Street Journal that taking Rafah is necessary for the Israelis to achieve, as a minimum condition for success, the elimination of Hamas as a political and military force. No cease-fire can attain that objective so long as Hamas insists the Israelis withdraw entirely from the area. That demand is now facilitated by the United States, which seems to have lost sight of the atrocities of October 7 and is extending the war by blocking any decisive Israeli response. Biden and Blinken seem blind to the simple fact that there is no stable middle ground.

Hard Truths About Speech And Assembly

 

Universities across the country are engulfed in prolonged campus demonstrations by organized Hamas and Palestinian protesters who rail against the Israeli military response in Gaza to the Hamas attack of October 7. Their message breaks into two broad categories. The first accuses Israel of genocide and lesser offenses in conducting its operations in an intense urban environment where soldiers and civilians are in constant close contact with each other. The second attacks the legitimacy of the Jewish state, insisting that “Palestine must be free from the river to the sea.”

The protesters insist that their occupation of campus facilities is protected constitutionally as part of the freedom of speech and assembly guaranteed under the First Amendment to the Constitution. These controversies are surely headed to the courts, as some students (and their sympathizers) have been arrested and may well be charged with criminal trespass, while other student groups continue to press demands for the divestment of shares of Israeli institutions and American firms that do business with Israel, while condemning in open letters universities for what they regard as an inexcusable infringement of their rights. On this matter, the students are in the main wrong on the legal issues, and the universities were mainly right in setting hardline deadlines (from which many have since retreated) to dismantle protest encampments.

A Dubious Commitment to “Saving Democracy”

 

During this election year, one insistent theme refers to the urgency of “saving American democracy.” In the abstract, no one cares to dispute that proposition: at its core, it claims that we should have free and fair elections to make sure that the people elect those candidates who represent their basic values. If the plain meaning were the true meaning, the push to “save democracy” would satisfy a strong populist impulse which is, however, in deep tension with a second dominant theme: no all-powerful state, no matter how it is chosen, should ever exert complete control over the lives of its citizens. Hence, any constitutional democracy places strong limits on the power of government to do what it wills by a combination of structural devices and protections of individual freedoms on such matters as speech, religion, contract, and property. The goal is to safeguard those freedoms from a militant majority that can invoke in the exclusive power of the state to bring criminal and civil prosecutions against its enemies.

In this election, these principles are all being tested perhaps as never before, as the Biden administration has pushed the law to the limit—in both criminal prosecutions and in civil enforcement through executive orders and administrative regulations.

The Dead Hand Of Rent Control

 

Normally, the public takes little notice when the United States Supreme Court refuses to review a decision from the lower courts. That was, however, not the case in connection with 74 Pinehurst (2023), which allowed to stand the misnamed Housing Stability and Tenant Protection Act of 2019. The act was passed by the progressive forces in the New York State legislature to tighten the squeeze on landlords throughout New York City. Its key provisions all cut in one direction, which is to entrench and expand the city’s 1969 rent stabilization law (RSL), under which landlord rents are regulated as if they were public utilities whose rent increases are in the first instance pegged to state-determined increases in cost.

More specifically, the 2019 act reduces the freedom of landlords to evict tenants at the end of a lease or to impose rent increases both to cover costs and to capture the gain in market values of their properties. At one time, high-value rent control units were subject to “vacancy decontrol” when rents reached a certain level. In addition, the permissible level of rent control increases was sharply curtailed on those apartments that were renting, as many in New York City were, below the existing RSL cap, such that the current rent became the new rent cap, even for units whose rents were reduced during COVID, and the rent increases that once allowed for capital improvements were all sharply cut. There were no offsetting adjustments made in favor of the landlords. The price crunch was so palpable that even as early as October 2022, sixty thousand RSL units were empty, close to twofold the level of a year prior.

Daniel Kahneman: An Appreciation

 

The death of Professor Daniel Kahneman last week inspired a set of tributes that surely marked him as one of the most innovative and important thinkers of the past century in the borderland between psychology and economics. Kahneman was awarded the Nobel Prize in Economic Sciences in 2002 and the Presidential Medal of Freedom in 2013. His fame stems from two sets of work, both of enormous influence. In the earlier period, Kahneman and his longtime friend, the late Amos Tversky, pioneered a revolution in thinking about how the mind works, chiefly with cognitive biases. Then in 2011, Kahneman published his runaway bestseller, Thinking, Fast and Slow, which explained how everyone uses two different sets of tools to make sensible decisions under conditions of uncertainty.

Their goal in the earlier efforts was nothing less than to dethrone in stages the dominant rational-choice models that had been developed by Ronald Coase and Gary Becker, both Nobel Prize winners and stalwarts of the then-regnant Chicago School of economics, which asserts, with some simplification, that individuals are rational actors who work hard to take efficient, i.e., cost-effective, steps to achieve whatever subjective preferences they seek to maximize.

DOJ’s Antitrust Crusade against Apple

 

With much publicity, the Department of Justice has launched a new broadside antitrust suit against Apple, an American company with a multitrillion-dollar market capitalization and an array of products that are widely used throughout the world—including by this author—to great acclaim. To read the government complaint is a dizzying experience because it is a real challenge to sort out the wheat from the chaff.

According to the DOJ, Apple stands invincible because it adopts a policy of excluding all market comers, who can gain admission only with Apple’s consent. This consent always comes with stiff fees, for Apple “demands up to 30 percent of the price of an app whose content, product, or service it did not create,” only to pile on yet another 30 percent in fees on customers at the back end of the production chain. Yet DOJ never asks why Apple does not use its supposedly inexhaustible market power to jack up prices even further. Are these customers the pawns of Apple, as the Department of Justice claims, or is the government’s general charge overinflated so long as Android is in play, highlighting both its own advances and insisting that it is easy to switch and transfer data to its open-source Linux platform?

To Sell Or Not To Sell? Hard Questions

 

About ten years ago, and quite by chance, I was invited by a noted physicist to attend a semipublic conference held at Stanford University about the intersection of national security and global trade. The subject was perplexing for me, both as a firm defender of laissez-faire economics and as a longtime believer that Pax Americana, which failed abjectly in Afghanistan, remains a key element in any successful strategy for world peace. My longstanding commitment to laissez-faire made me initially skeptical about the need for extensive trade restrictions, only to have a wake-up call as one technical speaker after another addressed the many ways in which free trade could hamper national security. The concerns were not just with the sale of military hardware, but also with many electronic and similar products that, standing alone, or after some technical fix, could be deployed to harm the United States, its allies, and innocent civilians.

So, the role of national security relentlessly expanded, as did the kinds of controls that might be instituted to minimize the risk of conflict, while still arming our allies and generating needed resources for our defense industry. Do you refuse to sell certain products to foreign governments? Do you sell them some stripped-down version? Do you sell them subject to restrictions on use or resale? If so, which ones? And whatever the correct mix of restrictions, how are they enforced, especially since our defense capabilities depend on using technologies developed by our allies and obtained by sharing arrangements?

Disclosure Rules that No Investor Needs

 

The Securities and Exchange Commission (SEC) has released its final rules on climate-related disclosures for investors. By a 3-2 vote along strict party lines, the rules introduce a new and aggressive era of financial disclosures. Many environmental groups lament that the SEC no longer requires disclosures of what are termed “indirect emissions” under Scope 3. In administrative jargon, these cover potential emissions that do not come from the company itself (Scope 1), or from energy purchases it makes (Scope 2). But both Scope 1 and Scope 2 still cover a new and vast terrain. There is uniform agreement that the narrowing of focus reduces the burdens of the final rules. But there is intense disagreement over whether the truncation of the disclosure rules is a good or bad move in the fight to deal with global climate change.

In my view there are no two ways about it. Even in its modest form, the final rules count as a vast overreach of authority, which represents a serious retrograde movement in climate policy. Information is not a free good, and here the bottom line is that the final rules will impose untold billions in costs without providing any discernible benefits. What follows is a partial account of the issues that the SEC had to address but did not, in its diktats on literally thousands of companies, most of which engage in far-flung operations across multiple countries. These firms have variable outputs as a function of the cost of inputs that are required to produce a bewildering and shifting range of finished products. In this milieu, it is imperative to ask whether the enormous burdens (in the hundreds of billions at the very least) committed to the project provide some net social benefits that justify the huge expenditures—a question that the final rules do not tackle head on.

Trump and the “Corrupt Obstruction” Charge

 

Now that the efforts to keep Donald Trump off the ballot were soundly rejected in the Supreme Court in Trump v. Anderson, the largest cloud over the former president’s re-election campaign is Jack Smith’s four-count indictment, which makes no reference to insurrection but alleges only “a conspiracy to corruptly obstruct and impede the January 6 [2021] congressional proceeding” to certify the election of the next president. Smith’s indictment cannot be read in isolation, for next month the Supreme Court will take argument in Fischer v. United States, which deals with the same section in Trump’s case, 18 U.S.C. § 1512(c), reading:

          (c) Whoever corruptly—

Trump Fraud Verdict Shows Political Overreach

 

On February 16, New York State Attorney General Letitia James boasted of her “landmark victory” over former president Donald Trump, who had been in her crosshairs since she first attained office in 2019. James struck paydirt when New York state Supreme Court judge (i.e., trial judge) Arthur Engoron ordered Trump “to pay $364 million in damages for fraud he committed by inflating his net worth to obtain favorable treatment from banks and insurers,” as described in US News & World Report. On top of the damages (and interest at 9 percent per annum), Engoron also banned Trump and his sons from doing business as officers or directors of any New York corporation for three years, and from borrowing from any bank in New York. The combined financial impact of these restraints could well exceed the amount of the fine. Engoron’s “blistering” opinion contained these startling observations: first, that Trump (and his sons) display a “complete lack of contrition and remorse borders on pathological,” and, second, these “defendants are incapable of admitting the error of their ways.”

Engoron is blind to the massive errors in his vindictive opinion, which offers grim testimony to how judges and state prosecutors can willfully and repeatedly abuse their legal powers. At no point did Engoron prove that Trump had obtained any loans upon especially favorable terms, or even that he sought do so. The whole case stalls at step one. In his final opinion of February 16, however, Engoron took a step further by lashing out at Trump’s effort to use “the common excuse that ‘everybody does it,’ ” and further insisted that the pervasive nature of the Trumpian abuse “gives all the more reason to strive for honesty and transparency,” because even if “it is undisputed that the defendants have made all required payments, the next group of lenders to receive bogus statements might not be so lucky.”

Gaza and the Elusive Cease-Fire

 

The political gap between Israeli Prime Minister Benjamin Netanyahu and US President Biden has never been wider. The Israelis have cleaned out most of the tunnels and fortifications in the north of Gaza, perhaps with less military resistance than they had expected at the beginning. One recent tally put Israeli military casualties at 574 as of February 18. In sharp contrast, the Palestinian death toll reported by the Gaza Health Ministry was just under 30,000, including some 12,300 children and 8,400 women as of that same date. Now the war moves into its final stages of the assault on Rafah at the southern end of Gaza, where more than a million Palestinian refugees are in the line of fire. Virtually all 2.3 million Gazans have been displaced since the Israeli attacks after October 7. The Israelis have now broken through at Khan Younis’s Nasser Medical Complex in a determined push to rout Hamas. Palestinian deaths and displacements have increased the political pressure on Israel.

In the short run, Biden has proposed a six-week cease-fire in order to work out, first, a release for hostages as part of a pathway to peace, with an eye toward a long-term, two-state solution. Elsewhere, the leader of the British Labor party, Keir Starmer, has called for a “lasting cease-fire” between Israel and Hamas, with no conditions attached. Both of these proposals are seriously out of line on three issues: hostage release, a cease-fire, and a two-state solution.

Federal Control over Immigration Is Limited

 

The issue of illegal immigration into the United States over the southern border, particularly in Texas hot spots, has risen to the top of the American political agenda. During the three years of the Biden administration, illegal immigration, measured by total apprehensions, ran from about 1.66 million in 2021, to 2.21 million in 2022, to 2.05 million in 2023, for a total of 5.92 million, many of whom are unaccounted for. The comparable figure for the last three years of the Trump administration totaled about 1.6 million. The immigrants often have free range of mobility within the United States, so a struggle has arisen to decide where these men, women, and children should live and who should fund their stay. Historically, that burden has fallen on the states.

Texas Governor Greg Abbott has provided many illegal immigrants free one-way transportation out of Texas, with New York City being one of the major destinations. It is very clear, however, that these defensive measures after entry are at best an incomplete solution if no government actor can stem the initial flow into the United States, which means that someone has to step up at the border. This crisis has led to a constitutional struggle between Texas and the federal government over who shall control what at the border. In the latest chapter of the ongoing border saga, Texas initiated a self-help scheme, placing concertina wire (c-wire) at the border to stave off what Abbott termed an “invasion,” when perhaps the less militaristic “influx” is a more accurate term. Either way, “Texas sued Defendants in federal court alleging common law conversion, common law trespass to chattels, and violations under the Administrative Procedure Act (APA),” according to the court record. The Fifth Circuit Court of Appeals then issued a published order that prevented the federal government from removing the c-wire. The most telling allegation in its decision was that “Border Patrol agents cut two additional holes in the c-wire fifteen feet away from an existing hole and installed ‘a climbing rope for migrants,’ ” who were then sent on in the hopes that, unsupervised, they would report to the nearest immigration center. The Fifth Circuit further found that the United States did not need to cut the c-wire in order to apprehend illegal immigrants, and, further, that it could not justify removing the c-wire by pointing to occasional medical emergencies as a reason for allowing the wholesale entry of illegal aliens. The United States Supreme Court, by a narrow 5-4 vote, overturned the Fifth Circuit in a brief unsigned order.

War Powers And Weakness

 

The military situation in the Middle East is obscured by the fog of war. Added to the Israeli attacks on Hamas after October 7 is the rising threat of further conflict from the aggressive actions in the Bab al-Mandab Strait, close to the part of Yemen controlled by the Iranian-backed Houthis, who have also extended the general attack on ships further south in the Gulf of Aden. There are also intermittent skirmishes with Hezbollah, operating out of southern Lebanon, whose constant attacks have forced Israelis to abandon their homes in the north and to attack at least fifty targets in Syria since hostilities broke out October 7. Thus far, the United States has responded on a tit-for-tat basis, taking aim at the Houthis’ direct attacks on American and other shipping in the region, coupled with direct strikes against Houthi military facilities on land. Everyone knows that Iran is behind these attacks, supplying munitions, money and advice, but thus far it has escaped being the direct target of a direct military attack on its own soil. In this volatile situation, there is a well-nigh universal fear that the conflict may be escalating into a war that seems both inevitable and unwanted.

The source of the rising tension rests, since the withdrawal from Afghanistan in August 2021, on the inability of the United States to project a consistent use of force, inducing Iran and its various proxies to become ever bolder in their actions. These threats have domestic implications as well for the question of how control over the American response to this war should be divided between the Congress and the president. The point is now in high relief after the Senate Foreign Relations Committee chairman, Ben Cardin, stated that the president should come to Congress for an update of the 2001 authorization of the use of military force (AUMF) adopted a week after the attack of 9/11, an authorization that does not seem to cover today’s very different landscape.

Keeping Free Speech Free on Social Media

 

Multiple briefs have been filed in two critical cases, here and here, involving social media platforms (SMPs) that have taken radically different positions over the appropriate level of their First Amendment protection. In Florida (NetChoice v. Att’y Gen., Fla. (2022)), the Eleventh Circuit offered a ringing defense of the freedom of speech on the grounds that as private enterprises these SMPs enjoy a sovereign right to “curate” and “moderate” the information they publish on their sites. In sharp contrast, in Texas, the Fifth Circuit in NetChoice v. Paxton (2022) insisted that these same actions amounted to “censorship” that the state must regulate to ensure that rival views can receive full public exposure.

The origins of this deep clash were two identical statutes targeted at large SMPs—the only ones that are capable of exerting market power. Thus, Section 7 of H. B. 20 reads as follows:

Taming the Administrative State

 

The Supreme Court made headlines this past week with its spirited discussions about the future shape of American administrative law, brought to the fore in two major cases—Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo.  Both cases involve administrative fees imposed upon fishing boats, not by Congress, but by the National Marine Fisheries Service. It was undisputed that Congress had required these boats to make room at their own expense for a government inspector—no small accommodation when space is tight and operations difficult. But when financial distress hit the NMFS, it added insult to injury by insisting that the boats also pay for the on-board inspectors, even though the basic legislation had sharply limited the occasions on which this could be done and the amounts to be charged. Treated as an ordinary matter of statutory interpretation, the case was a no-brainer. Congress must pass tax legislation, not the agencies, so why allow any agency to usurp that role? It is for that reason that Roman Martinez, for the plaintiff in Relentless, stressed in oral argument the common objection that the Chevron doctrine offended the separation-of-powers principle by allowing the courts to empower agencies to rewrite congressional standards.

In the day-to-day world, these risks are much reduced because courts interpret statutes without the interposition of an administrative determination, so these shenanigans would be curtly dismissed as a clear abuse of authority. The critical Chevron doctrine provides that when the text is clear, the agency is duty bound to follow the law. But when the law is not settled, the agency’s reading of an ambiguous statute receives deference in court, such that the path by which the rule gets to the court can well determine what outcome it requires. The standard argument to defend this path-dependent argument is that administrative expertise has its privileges, so that courts will follow along once the agency experts speak on an ambiguous point of law.

How Governments Abuse Their Permitting Powers

 

One of the thorniest problems faced by any state or local government is how to fund its common infrastructure for such essential services as roads. In general, two possible sources of revenue may be tapped. The first are general tax revenues imposed on real estate in proportion to its assessed value. The second source are exactions, or impact fees, imposed on landowners seeking a building permit for a new home. The hard challenge is to determine the mix of revenues from these two different sources.

This issue has puzzled and divided the US Supreme Court, which just heard oral argument in Sheetz v. County of El Dorado—a county with a population of around 200,000 near Sacramento. George Sheetz of Placerville, a recent retiree, had applied for a building permit within the town. It is well understood that these permits can be difficult to acquire but are worth tens or even hundreds of thousands of dollars once granted. In this instance, the county offered the permit with a giant catch: you must pay us over $23,000 to get that permit. The county claimed that the fee was needed to offset the increased costs of building out the highway system to accommodate the extra traffic. That fee was determined under a general legislative formula that used standard, not individualized, determinations that a new home would impose on the system. The county claimed that it would be too costly to set these fees on a retail basis.

The “Self-Executing” Red Herring

 

The controversy over the strenuous efforts to keep Donald Trump off the ballot turns largely on the complex interpretive issues found in Section 3 of the Fourteenth Amendment. One such question asks how its substantive commands are enforced. The last sentence of that section—“But Congress may by a vote of two-thirds of each House, remove such disability”—suggests that its enforcement is a task for Congress. The many supporters of Trump’s disqualification know that it makes no sense for Congress to have the last say in a presidential election, whose outcome depends on a set of elaborate procedures that at no point intersect with the activities of Congress. So either they ignore that provision, as does New York Times columnist David French in his broadside against Trump, or they claim that the Fourteenth Amendment is “self-executing,” as does Michael Luttig, a former Fourth Circuit judge who is now one of Trump’s most determined opponents. On this view, that provision can be enforced either with a state court, as in Colorado, or by the ruling of a secretary of state, such as Maine’s Shenna Bellows, at the instance of any citizen or group. The next chapter is now certain to unfold before the United States Supreme Court, which may choose to endorse the current disarray until some later time when it may (or may not) issue some authoritative opinion to end the legal dispute, but not the political uproar, once and for all.

One key question therefore is just how to interpret the term “self-executing.” That issue is not unique to Section 3 but can arise in connection with any substantive provision of the Constitution that purports to address the rights and duties of individual citizens. Right now, parallel litigation involves the takings clause of the Constitution, found in the Fifth Amendment, that says (in the passive voice, no less): “nor shall private property be taken for public use, without just compensation.” In its inception, the hidden actor under the Fifth Amendment was the United States, as decided by Chief Justice Marshall in Barron v. Baltimore (1833). But after the adoption of the Fourteenth Amendment in 1868, a key decision of Justice John Marshall Harlan, Chicago, Burlington & Quincy Railroad Company v. Chicago (1897), held that its due-process protections covered the right to receive just compensation against the imposition of confiscatory rates as specified under the Fifth Amendment.