Ran Hirschl’s continuing scholarship: In an as yet unpublished (I think) essay Ran suggests de-coupling constitutionalism from geography without re-attaching it to the international legal regime—I suspect this will be foundational for a great deal of productive scholarship.

A short reflection on my and Robert Post’s volumes in the Holmes Devise, and Post’s response: HTTPS://DOI.ORG/10.59015/JACH.FGYD2485 HTTPS://DOI.ORG/10.59015/JACH.TSFX3077

Yet another interview about constitutionalism with an Indian interlocutor: www.youtube.com/watch?v=mYXJ... open.spotify.com/episode/3OvQ...

New Supreme BetrayalbEpisode: Do political scientists’ descriptions of SCOTUS behavior have normative implications? Mark--maybe, Mike--no: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con... open.spotify.com/episode/77vG... podcasts.apple.com/us/podcast/c...

Another hardball play if Ds win House: Invoke s. 2 of 14th Amend and reduce seats for Callais-redistricted states (“in any way abridged” not = “abridged on account of race”). Specialist in census & statistics needed here.

Picking up on someone else’s invocation of the “republican form of government” clause (with no capital-R): Real const’l hardball--If Ds win even a narrow majority in Nov, in Jan refuse to seat representatives from states that “Callais-redistricted.” (Specialist in cong’l procedure needed here.)

FWIW, an interview I did for an audience in India: thewire.in/law/intervie...

Constituent power & constitutional hardball: conduct Va elections using voter approved map & let House of Reps decide on seating. (Lots of details to work out but maybe worth it.)

What I’ve been reading--Elizabeth Strout, The Things We Never Say (2026): beautifully written, seemingly slight (read it at one sitting) with resonances to A Man Called Ove and in the end quite moving and deep psychologically.

New Supreme Betrayal episode: do all constitutional theories dismally fail? Will we see pragmatic compromise if we deconstitutionalize con law? supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/rea... open.spotify.com/show/2aoi66k... podcasts.apple.com/us/podcast/r...

In 1968 Elizabeth appeared in a Calvin Trillin essay in the New Yorker as a graduate student interviewing with a recruiter for Dow Chemical. Today I, or at least my “Essay on Rights,” appeared in a review of Kim Crenshaw’s memoir. Elizabeth’s appearance was more interesting.

1/ Been away from the computer for a few hours so others may have made this point: Rucho’s holding that there’s no federal judicial remedy for partisan gerrymandering doesn’t have to imply, though everyone on the Court seems to think it does, ...

1/ I confess to thinking (at least at this point) that, considered in purely legal terms, it’s hard to see how Comey could get the indictment dismissed before trial (unless there’s some problem with the process of indictment). The relevant cases seem to require a court to assess “the record” ...

I don’t think I posted this yet—describing and linking to a video of a book launch event about Constitutionalism and Its Discontents, pub date 7/28 available for preorder now: www.ucl.ac.uk/laws/news/20...

1/ Supreme Betrayal’s next episode continues the conversation about Mike Seidman’s forthcoming book The Constitution Cannot Save Us.We talk about bottom-up & popular constitutionalism & some semi-practical suggestions for doctrinal change and institutional reform: open.spotify.com/episode/3ZNK...

1/ Leaks re SCt are said to raise the risk of impairing deliberation w/in the Ct (more than leaks, etc, impair deliberation in Congress). The evidence that there’s anything resembling deliberation w/in the Ct is, to put it mildly, quite thin. Correspondence b/t justices is mostly position-staking...

1/ More on pearl-clutching re leaks: What happens in the Conference room itself is just about the only thing that law clerks don’t have direct access to. So, who’s the source for Monica Herrington’s account of Justice Kagan shouting at Justice Breyer apparently in the Conference room?

1/ Re the defense of Sup Ct “secrecy” b/c “they show their work" (actually, a lot of times their law clerks’ work, a relevant datum here): How is that different from Congress (hearings, reports, public debates, statutes) and the presidency (executive orders, signing statements)?...

Re pearl-clutching on the right about Sup Ct “leaks”: are there any other important institutions of governance where release of 10 year old information about a decisional process would be called a ‘leak”?

New episode of Supreme Betrayal: About Mike’s forthcoming book The Constitution Cannot Save Us—and about law clerks and constitutional theory: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/law... open.spotify.com/episode/4I7O... podcasts.apple.com/us/podcast/l...

1/ My Sovietology on who leaked the Clean Power Plan file, a historical observation: I clerked in 1972-3 & had no compunctions abt post-service observations (after abt 5 yrs) but I don’t recall keeping any files from the chambers (in fact I’m pretty sure I didn’t take any Ct work to my apartment,,,

A discussion of the state of the art in comparative constitutional law, including questions about democratic backsliding and recovery (pre-Hungarian election): hls.harvard.edu/today/we-tho... (with a video of the full discussion embedded)

Informed only by reading NYT and Bluesky: There are 15 “principal officers” of executive departments. I count 5 sure votes against triggering 25th Amendment if Vance makes the first move: Hegseth, Blanche (if as Acting he counts), Kennedy, McMahon, Mullin. Are there others? (not “likely” but “sure”)

A genuine question, maybe for Anne Joseph O’Connell: For purposes of the 25th Amendment, is an Acting Attorney General a “principal officer” of an executive department?

Is it a good or a bad thing that no one appears to be talking about (openly) about the displacement of Donald Trump by a civilian-military junta, along the lines discussed by Ozan Varol in The Pro-Democratic Coup d’Etat?

From this week’s New Yorker: “2 stunningly petite brunettes.” Their petiteness was stunning (compare “2 stunning petite brunettes”). How, exactly? (adverb modifies adjective not noun; adjectives in sequence all modify ensuing noun)

Having been out doing errands I’m almost certainly not the first person to observe that “It’s a new world but it’s the same Constitution” is almost literally devoid of meaning because it could justify directly contradictory holdings.

More on mainstream media anti-progressive bias: (1) There will be a leading progressive candidate in Dem presidential primaries. (2) It's not going to be JB Pritzker or AOC. (3) MSM have no interest in explaining pt 2 or identifying other potential progressive candidates.

1/ Definitely not deep into the birthright citizenship flap but my fairly strong impression is that there are quite a few different "revisionist" takes on "subject to the jurisdiction" with some but not complete overlap, that none maps well on to the administration's position, ...

Starting dinner at the Library Room at Sketch in London. One of the most beautiful dining rooms I’ve been in. Food could mediocre (unlikely) & the experience would be worth it

A heterodox view here? The principled case for birthright citizenship is complicated. Have to take into account ease/difficulty of naturalization + length of time before parental removal/deportation/voluntary departure (e.g. student visa folks) occurs--& maybe other stuff.

1/ In a "Moyn mechanism" anti-Trump legal mobilization reduces anti-Trump political mobilization. its strength depends on # of people affected. Ballpark guess: actual number of people subject to the Moyn mechanism is low enough that they could--and probably did--fit into the Yale Law faculty lounge.

A book launch discussion of Mark Tushnet & Bojan Bugaric, Constitutionalism and Its Discontents (pub date 7/28, U Chicago Press): www.youtube.com/watch?v=zJw6...

My first post on Substack, about AI and legal studies, prompted by a thread about AI being used to write law review articles: substack.com/profile/6335...

New episode of Supreme Betrayal: Tariffs! (with what I think are some interesting disagreements between Seidman and me): podcasts.apple.com/us/podcast/s... open.spotify.com/show/2aoi66k... supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/tar...

I posted a very short but I think sort of interesting paper on the idea of transformative constitutionalism, including reactionary tc: papers.ssrn.com/sol3/papers....

A very short primer on thinking about the tariff-refund “mess”: balkin.blogspot.com/2026/02/the-.... Short version: easy to solve if anyone really wanted to.

Is SSRN limbo worse than law review submission limbo? (Feb 5 submission, approval pending)

New episode of Supreme Betrayal, on legal limits on US military intervention abroad: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/us-... podcasts.apple.com/us/podcast/u... open.spotify.com/episode/2kUV... Next an experiment with and about AI and the Constitution.

On culture dominating politics (my view is that the 2 most important figures in late 20th century Irish political history were Sinead O’Connor and Shane MacGowan, not any politician): www.yahoo.com/entertainmen...

Grab any chance you have to see Bill Irwin in On Beckett, now at the Shakepeare Theatre in DC. One of the greatest acting performances I’ve ever seen. The material is funny (it’s Beckett [& Irwin] after all) & thought-provoking too.

Received page proofs of my next (& last?—3 co-edited books in process) book, w/ Bojan Bugaric, Constitutionalism & Its Discontents (U Chicago Press, publishing in the fall). Bojan came up w/ the title & I said, “Sure, what are they?” & then we were off to the races.

B/c administration officials routinely lie and congressional Rs (and maybe Ds) aren’t interested in the truth, the most interesting thing about AG Bondi’s appearance today (literally, in the literal sense) is that she appears to have told her makeup person to tone things down.

New episode of Supreme Betrayal available: ICE & the Constitution begins w/ attempted murder of Stephen Field & ends w/ conversation on “the Constitution” & popular protests: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/ice... podcasts.apple.com/podcast/id17...

And who—aside from the Harvard Corporation, apparently—would have predicted that the nebbish-y Alan Garber would turn out to be the best, or at least most important, Harvard President since James Conant?

Re Trump’s Harvard TACO: I restate my observation early in the series of events, “Don’t f— with the ruling class."

I may be old-fashioned but I don’t think that judicial opinions should include phrases like “perfidious lust for human power” even when they reach results I like—for prudential reasons (more likely to be reversed) and more important because being a judge means cultivating a habit of being judicious.

Don’t think I’ve seen this in my feed: Apparently the deadline for nominations for the Nobel Peace Prize is Feb 1. Who’s up for nominating Tim Walz & Jacob Frey as representatives of the people of Minneapolis? Cf Carl von Ossietzky 1936.

I just participated in a press briefing on aspects of ICE and Minneapolis. My comments come near the end (don’t count on the courts, go to the streets and maybe the courts will follow): www.youtube.com/live/yVhFIvy...