Some institutions, like universities, promise their members they won’t be punished for free expression. But for-profit employers rarely promise to protect employees’ speech, for market-oriented reasons. Because companies care about what customers and clients think, they typically reserve the authority to make workers comply with their preferred speech policies.

So-called “cancel culture” offers a clear example of how what you say can have consequences. Those canceled in recent years mostly found they had little recourse other than abjectly apologizing and hoping the cancellation would have a sell-by date. Consequences ranged from getting fired to losing work to simply being criticized — albeit brutally.

As it happened, most canceling initially came from the left. As a consequence, most leftists either thought there was nothing wrong with the practice or pointed out that “cancellation” was nothing more than the exercise of free speech by critics. The right, for its part, complained bitterly but offered little in the way of a principled objection to the idea that people are free to criticize, even boycott, opinions they don’t like. In the end, cancellation emerged as a phenomenon enabled by the combination of free speech and free market forces.

Since Hamas’ terrorist attack on Israeli civilians on Oct. 7, the political winds of intense public criticism have shifted. Left-leaning critics of Israel are now finding themselves the targets of calls for cancellation.
Paddy Cosgrave, the CEO of Web Summit, had to step down after a tweet that called out Israeli war crimes but never mentioned Hamas, let alone its intentional killing of noncombatants. Cosgrave tried to retract and contextualize, but his efforts were not sufficient to save his job. He’s only the most prominent example — others whose tweets have cost them employment include journalists and actors.

Meanwhile, at law schools including NYU, Columbia and Harvard (where I teach), several students have had job offers rescinded by corporate law firms on the theory that they — or organizations they led — excused or endorsed violence committed by Hamas. In some cases, this happened even after the students made it clear that they condemned Hamas and their organizations retracted their earlier statements.

Under principles of academic freedom, a university may forcefully disagree with its students’ views but must not not punish students for expression of political opinions. Academic freedom isn’t exactly the same as First Amendment free speech. Its purpose is to foster an atmosphere of open intellectual discussion in pursuit of truth under conditions of civility, not to impose the strict neutrality that bars government from picking winners in the realm of ideas.

That means universities may exercise professional judgment about the quality of ideas when making decisions about hiring, tenure or grades. It would be impossible for the university to be entirely neutral about the content of ideas when fulfilling these functions. (Public universities pose their own complex problems. They are both state actors for First Amendment purposes and also academic institutions.)

Private employers don’t adhere to the principles of academic freedom nor are they bound by the First Amendment. Their calculus is different: They have to weigh the reputational costs of hiring people associated with controversial political positions against the reputational costs of being seen as having a political litmus test for employees.

Our polarized politics mean that companies must tread carefully when they make expressly political decisions. They owe it to their employees, their customers and their shareholders to exercise good judgment after real thought. Companies do better when they have clearly stated values and transparent processes in place for sound decision making.

As for individuals, we no longer have sharp dividing lines between our social media lives, our work lives, and our expression of political ideas. It follows that we had better realize that that the difference between contexts determines the consequences of our speech. The First Amendment remains a bedrock of democratic values, but it protects us from the state, not from each other.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”/Tribune News Service

We need a better system.

To be sure, the prosecutors seem to be doing everything by the book. Yet the fact remains that, in a democracy, one candidate shouldn’t be able to prosecute another. And no one should ever be in the chain of command for the prosecution of their own child.

There is a cure, one adopted by Congress after Richard Nixon ordered the firing of special prosecutor Archibald Cox during Watergate: Congress can pass a law creating a genuinely independent counsel, one who cannot be fired by the president. This would create a legitimate distance between the president and the prosecutions and approximate the norm that exists in most countries.

Such a law existed from 1978-1999. The reason it’s not in place today is that the independent counsel law, which needed to be renewed, was allowed to sunset in 1999 in the wake of Bill Clinton’s impeachment when the independent counsel, Kenneth Starr, was seen by some to have overreached.

There’s no legal reason the law couldn’t be revived. In 1988, the Supreme Court upheld the old independent counsel statute as constitutional by a 7-1 vote, over a dissent by Justice Antonin Scalia.

Although the current court might conceivably reverse that precedent and follow Scalia’s dissent, the case, Morrison v. Olson, is still good law.

Let me be extremely clear: Acknowledging the need for a renewed independent counsel law is not a criticism of how the Biden administration has been acting under the existing special counsel rules. To the contrary, the system as it presently exists is working as well as it possibly can.

Joe Biden appointed an attorney general of unquestioned probity and has left Merrick Garland alone to do his job as he sees fit. In turn, Garland appointed Special Counsel Jack Smith and has allowed him to operate independently in bringing charges against Trump. And Garland has also granted autonomy to David Weiss, the Delaware U.S. Attorney appointed by the Trump administration to investigate Hunter Biden, and recently appointed him as special counsel after Hunter’s plea deal collapsed in confusion.

Garland, Smith and Weiss are making the best of a bad situation. But it isn’t enough. The special counsel regulation is not a statute passed by Congress. And while it protects a special counsel from being fired by the attorney general (except for misconduct or other good cause) the special counsel isn’t formally independent. The president could order the attorney general to retract the statute and fire the special counsel – a latter-day Saturday Night Massacre of the type that was narrowly averted during Robert Mueller’s investigation of Trump, when Trump was talked out of firing Mueller.

One of the classic short-hand definitions of an electoral democracy is that, when the elections are over, the losing candidates don’t go to prison. Yet if Trump retakes the presidency, he could dismiss the federal charges against himself (provided they are still pending). If he loses the election, he will go to trial; if he’s convicted, he could go to prison. What’s more, if Trump wins, he could direct a more aggressive prosecution of Hunter Biden — including expanding the investigation to include Joe Biden.

The independent counsel law was allowed to lapse because many Democrats thought that Starr’s investigation of Clinton had strayed too far from its original remit of the Whitewater scandal, leading ultimately to Clinton’s impeachment for lying about his relationship with White House intern Monica Lewinsky. And some Republicans, influenced by Scalia’s point of view, thought the independent counsel statute was unconstitutional.

Some hoped that impeachment by Congress would remain an independent check on the president’s power.

But we now know — after one impeachment of Clinton and two of Trump — that it is mostly a symbolic undertaking. As long as the president’s party holds at least a third of the Senate, the president is unlikely to be removed from office.

So it’s time for a rethink, on both sides of the aisle. The worry of overreach is real, but it must be weighed against the threat to democracy and the rule of law. We need a true independent prosecutor shielded from presidential authority.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”/Tribune News Service

Trump despisers may be tempted to take some heart from the news of the investigation, which will proceed alongside the until-now separate criminal investigation being conducted by the district attorney of New York County, Cyrus Vance Jr. But this is a high-risk move by James. Trump’s opponents would do well to remember the sizable risk that would come with prosecuting the one-term president: He could be acquitted. And if that happened, Trump could use the bounce-back as a highly effective tool to support a presidential bid in 2024.

At a minimum, the announcement implies that Trump personally has not (yet) been made a direct, formal target of the criminal investigation, or at least has not been so informed. It’s possible for prosecutors to go after the corporation for criminal liability even without prosecuting all of its principals. So in theory, at least, the Trump organization could be criminally charged with filing false state tax returns even if prosecutors didn’t think they could prove beyond a reasonable doubt that Trump himself knew about the false filings.

Trump’s reaction, however, suggests that he is worried about becoming a criminal target in his personal capacity. A conviction of the Trump organization is something he could explain away by describing it as merely a kind of a fine.

Most ordinary people threatened with the possibility of criminal prosecution would be well advised not to attack their potential prosecutors.

Trump, however, is in a different situation. For him, the best way to attempt to hold off a prosecution is to try to create conditions that would make any trial into even more of a political circus than it would in any case become. The more prosecutors worry that criminal prosecution would be perceived nationally as a political show trial, the more concerned they will be with bringing the prosecution.

That’s because, from the prosecutors’ perspective, the worst thing that could happen would be to bring Trump to trial and fail to get a conviction. Their own credibility would be shot. To Trump opponents, the prosecutors would look incompetent. To Trump supporters, they would look like partisans trying to politicize the criminal justice system. What’s more, Trump could ride the failed prosecution back to the White House — and the prosecution’s failure would no doubt be blamed for that outcome by many observers.

It follows that, for the prosecutors, the only plausible decision to prosecute Trump would be when conviction by a New York jury would be essentially certain. And that explains, at least in part, why Trump is putting such an effort into insisting that the investigation is illegitimate.

Remember that it only takes a single dissenting juror to hang a jury and keep a defendant out of prison. It’s hard to imagine a New York City jury acquitting Trump unanimously. Yet it is totally possible that Trump’s depiction of the investigation as political might sway one out of 12 potential New York City jury members.

The truth is that, from a national Democratic perspective, even James’s public announcement that her investigation is going criminal should be a bit worrisome. As Ralph Waldo Emerson had it, “When you strike at a king, you must kill him.” Unless Trump ultimately is charged and convicted, the announcement that he is under increasing criminal scrutiny will only embolden him. What doesn’t kill Trump will make him stronger.

Noah Feldman is a syndicated columnist.

It’s never been tried. The Constitution gives Congress power over its own rules, which would seem to let the two houses adopt remote voting if they wanted. Traditionally, the courts defer to Congress’ judgment when Congress is exercising a power that is textually allocated to it by the Constitution.

Yet the Constitution does specify that “a majority of each (house) shall constitute a quorum to do business.” This so-called quorum clause could be interpreted to require most senators and representatives to be present in Washington, D.C. — and maybe even in or near the Capitol — for Congress to operate. If that’s how the Supreme Court sees it, the quorum clause could block Congress from dispersing home and operating on a fully remote basis.

Back in May, both the Senate and House saw proposals for some form of remote voting. Neither has been adopted — so far.

The reality is that remote voting would almost certainly weaken the power of leadership in either house. Coordination is much easier if people are all in the same place, and centralized coordination is essential to party discipline. And party discipline is the wellspring from which the power of leadership flows.

There are some stopgap measures that could be used if just a few members of the House or Senate are sick and can’t come to the floor. One is the old practice of pairing, which used to be common in the Senate. The idea is that the senator planning to vote one way but who could not be present would find a senator voting the other way who would agree to vote “present” rather than casting an opposing vote. The result is that the total votes on each side remains stable.

Pairing relies on mutual respect, friendship and trust, which are in decreasingly short supply in Washington. The practice has become rare.

If individual senators were unable to vote on Barrett’s nomination because of COVID-19, and they could find pairs on the other side (a big if, to be sure), then more fundamental reform could be avoided.

As for committee work, it arguably isn’t formally covered by the Constitution. So a committee hearing or vote could more easily take place remotely, provided the House or Senate adopted a rule allowing remote committee meetings.

The major question remains whether, if the pandemic spread more broadly, or if became more virulent, it would be wise for Congress to try and adopt rules for systematic remote voting.

On the surface, this may seem like a no-brainer. The business of Congress is the people’s business. It shouldn’t come to a halt because of this disease.

Yet there are reasons to be cautious about allowing Congress to work from home. No matter how limited an exception Congress might create for pandemic circumstances, it would be extremely tempting for lawmakers to institutionalize working from their own districts. It’s always an advantage for a member of Congress to be near their voters. Members of Congress spend a lot of time traveling back and forth to their constituencies for exactly this reason. It’s therefore possible to imagine that, if remote voting were allowed, members of Congress would begin to reduce the time they spend in Washington, D.C.

And that would be bad. A functioning legislative body depends on compromise. Compromise, in turn, is based not only on cold, hard calculations but on human interaction and the formation of interpersonal bonds.

If left at home in their own partisan bunkers, members of Congress would be even more tempted to serve purely local and hyperpartisan interests than they already are. The ideal of the common national interest may sound naive when Americans are so deeply divided over so many issues. But without the aspirational ideal, it would be almost impossible to get anything done in Congress.

Noah Feldman is a syndicated columnist.

Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has nominated. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.

I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out.

Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.

Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.

Martinez had the special skill of connecting the tangle of complex strands to a sensible statutory purpose.

In a world where merit counts, Barrett and Martinez would both be recognized as worthy of serving on the Supreme Court. If a Democratic president with the support of a Democratic Senate asked me to recommend a current law professor for the bench, Martinez would be on my short list.

But a Republican is president, and the Senate is Republican. Elections have consequences, and so do justices’ decisions about when or whether to retire. Trump is almost certainly going to get his pick confirmed.

Given that reality, it is better for the republic to have a principled, brilliant lawyer on the bench than a weaker candidate. That’s Barrett.

To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague.

This combination of smart and nice will be scary for liberals. Her old boss, Scalia, did not have the ideal judicial temperament (too much personality, a wicked sense of humor) and managed over the years to alienate Justice Sandra Day O’Connor, which may conceivably have helped produce more liberal outcomes as she moved to the left.

Barrett is also a profoundly conservative thinker and a deeply committed Catholic. What of it? Constitutional interpretation draws on the full resources of the human mind. These beliefs should not be treated as disqualifying.

Some might argue that you should want your probable intellectual opponent on the court to be the weakest possible, to help you win. But the Supreme Court is not and should not be a battlefield of winner-take-all political or ideological division.

It would be naive to deny that there is plenty of politics in constitutional interpretation. There are winners and losers every time the justices take a stance on an important issue of law. Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics.

Noah Feldman is a syndicated columnist.

On its own, the overflight is a signal that the Saudi kingdom is prepared to give some more-than-passive validation to the Israel-United Arab Emirates peace deal that is close to being inked. On a deeper level, the subtle Saudi signal raises two all-important questions about the peace deal: Will other Arab states sign on? And will the Gulf States’ willingness to consider peace with Israel without movement toward an Israel-Palestine peace agreement lead to changes in the Palestinian strategy for trying to get a functioning state?

To be clear, the Israel-UAE deal is a meaningful foreign policy achievement even if no other Arab state follows the lead of the Gulf confederation. This is the first peace deal between Israel and any Arab state in a diplomatic generation. Achieving it took skill and persistence, especially against the backdrop of the constant drumbeat of criticism that Kushner’s initiative in the region would never bear fruit.

Yet it is also true that the UAE is uniquely positioned to make a deal with Israel. Roughly 10 million people live spread out across the seven members of the confederated monarchy, and of these perhaps as few 1.4 million are citizens. That means that Emirati citizens aren’t a cohesive popular force capable of exerting significant influence on the rulership. Put more simply, the rulers can do pretty much what they want regarding Israel without worrying about it making them too unpopular. The conditions in other Arab states, even Saudi Arabia, require rulers to be more attuned to public opinion, which tends to favor the Palestinian cause.

For this reason, it is far from clear that any other Arab states will join the UAE.

Whether any other states sign on to the deal necessarily influences the second major question, which is whether any of this will change the Palestinian strategy in a way that might increase the odds of an eventual peace deal with Israel. Since President Trump took office and announced his plans to try and solve Middle East peace, the Palestinian approach has been basically to reject any potential plan as fundamentally unfair — and to insist that no Arab state would make peace with Israel in the absence of significant progress toward a two-state solution.

Given the weakness of the Palestinians’ negotiating position while Trump is president of the U.S. and Benjamin Netanyahu prime minister of Israel, the rejectionist/blocking approach was certainly understandable. The problem is, it failed, at least with respect to the UAE. Arguably, the old rules are being rewritten: An Arab state is making peace with Israel over Palestinian objections, and Saudi Arabia is signaling approval.

The takeaway for future Palestinian leadership is to find a new strategy. It will never be easy for Palestinian leaders to convince their public to acquiesce to a peace deal that provides something less than a genuinely functioning state. But the leadership ultimately may have no other choice but to try. The Israel-UAE deal represents a disaster from the standpoint of the Palestinians, who could have gained billions and perhaps trillions of dollars of aid by getting on-board, and who are now measurably worse off than they were before the deal was struck.

Of course, it remains possible that the Palestinians will stay the course. Desperation can beget more desperation rather than pragmatism. But if there is a slow generational movement among Palestinian leaders toward a different approach, the Israel-UAE deal will likely turn out to have been one of its contributing causes.

Noah Feldman is a syndicated columnist.
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Yet even liberals who oppose the NRA’s mission should take a deep breath and ask: Do we really want an elected attorney general to try to destroy a prominent nongovernmental organization that is arrayed on the other side of the political spectrum from her? What if this were Alabama and the organization were the NAACP? Or Tennessee and the ACLU?

If an organization has really fallen into a condition of fundamental corruption, a state attorney general can demand that it get new leaders, or replace its board of directors and its management in their entirety. Maybe New York Attorney General Letitia James is prepared to settle the case against the NRA with that sort of an organizational overhaul.

But asking the court not to order the reform of the organization, but to dismantle and dissolve it altogether, creates the impression that the attorney general is trying to use the legal system to intervene in the very political dispute in which the NRA is such an important player: the fight over Second Amendment rights and gun control.

It should go without saying that it would be entirely improper for a state official — or a federal official, for that matter — to use the awesome enforcement power of the government to target advocacy organizations with whose policies the official strongly disagrees.

It is no answer to this set of concerns to say that the NRA can just leave New York and incorporate itself somewhere else (like Texas, as Trump suggests). And it’s not primarily that there would be real-world costs in shifting the organization’s location.

The very fact of the lawsuit sends — and is presumably at least in part intended to send — a message that conservative political organizations are not welcome in progressive New York. You can see where that leads. Progressive organizations then will not be welcome in conservative states. In both environments, partisan, elected attorneys general, who often aspire to become governors, will develop the practice of targeting nonprofit groups that are politically unpopular in their states.

The consequences go beyond the use of the legal system for political aims. They reach all the way to the fundamental right to free association. Indeed, the U.S. Supreme Court case that established the modern free association right involved similar issues. NAACP v. Alabama was a 1958 case that arose when Alabama Attorney General John Patterson tried to force the NAACP to reveal the names of all its members in the state. Although the NAACP was chartered in New York, it still needed state approval to operate in Alabama, and the attorney general claimed the NAACP hadn’t qualified for that approval and couldn’t without providing the names.

The Supreme Court held in a landmark decision that the NAACP and its members had a right to freely associate in order to engage in expressive activities. That right to associate included a right not to disclose the names, the court concluded.

The point of the comparison is only to observe that an attorney general has tremendous power to harass a disfavored organization using purportedly neutral state laws and legal processes to get there.

To be clear, I am not taking a view on whether the NRA leadership has in fact engaged in conduct so egregious that the ordinarily appropriate remedy would be dissolution. A court would have to engage in extensive fact-finding to determine the right answer.

But by seeking to dissolve the NRA, the New York attorney general is knowingly creating a narrative that is potentially costly to the rule of law, that may create terrible precedents for other states and that potentially implicates the First Amendment.

Noah Feldman is a syndicated columnist.

The short answer is that the court’s future direction is in flux like no other time in recent memory. And what happens next will be determined by the 2020 election and the justices’ health.

The first crucial point here is that, had Roberts and Gorsuch not crossed the court’s ideological lines in the most high-profile cases of the term, we would be looking at an extremely conservative court for the foreseeable future, regardless of the outcome of the November vote.

The court has five conservative justices who — until this term — seemed capable of acting as an unassailable voting bloc for the indefinite future. (The oldest, Justice Clarence Thomas, is only 72.) This bloc was formed after Senate Majority Leader Mitch McConnell and the Republican Senate blocked a confirmation vote on Judge Merrick Garland during the Obama administration, allowing a newly elected President Trump to appoint Gorsuch. The retirement of Justice Anthony Kennedy, a swing voter who repeatedly delivered liberal-friendly results on issues like gay rights, abortion and Guantanamo, then allowed Trump to appoint Justice Brett Kavanaugh, who is (so far) a much more reliable conservative.

This conservative majority was the first on the court in nearly a century, and conservative activists anticipated that it would overturn Roe v. Wade and hold the line on cultural issues like transgender rights.

Instead, the opposite happened. Without Kennedy on his left, Roberts chose to become the swing voter himself — and saved Planned Parenthood v. Casey, the 1992 decision co-authored by Kennedy, Justice Sandra Day O’Connor and Justice David Souter that itself declined to overturn Roe. The blow to pro-life conservatives is utterly devastating. This was their best shot, and they missed it.

Then Gorsuch, with Roberts and the four liberals joining him, held that employment anti-discrimination law applies not only to gays and lesbians but also to transgender people. This, too, was a body blow to movement conservatives, who had invested considerably in opposing transgender rights even after losing the gay marriage issue because of Kennedy.

For conservatives, the only way out of their newly weakened position is to re-elect Trump and keep the Senate Republican. Then they would have to hope for retirements from Justices Ruth Bader Ginsburg (87) and Stephen Breyer (81). If Trump picked even one strong conservative, they would probably have the votes to overwhelm Roberts on abortion. If Trump got two, they could roll back Gorsuch’s Title VII ruling, too.

If Joe Biden is elected, the question then becomes whether the Senate goes Democratic at any time during his presidency. Under McConnell’s rules, it seems basically certain that if the Senate remains Republican, Biden would not be able to get even one justice onto the court.
However, if Biden is elected and gets a Democratic Senate, it’s widely expected that Ginsburg and Breyer will retire and be replaced by like-minded liberals. That would maintain essentially the current configuration on the court. The power of the swing vote would lie with Roberts and occasionally Gorsuch. The liberals would not be able to count on any major new wins, but they also wouldn’t have to panic about major rollbacks or the overturning of settled precedent.

But while it’s tough to know in advance how a new justice will vote, one thing is clear: The consequences of the 2020 vote on the Supreme Court, and the country, could not be greater.

Noah Feldman is a syndicated columnist.

The decision is important because it will help avoid an election disaster in which a few electors try to thwart the will of the people. More fundamentally, the decision shows that the Supreme Court is recognizing that presidential elections really are supposed to be about majoritarian democracy, notwithstanding the quirky and creaky features inherited from the men who wrote the Constitution over 230 years ago.

When an outcome garners the support of all the justices, it can be easy to forget why the issue is important enough to make it to the court the first place. In the faithless elector case, the reason the justices had to weigh in is an ambiguity in the Electoral College system.

When designing a system for presidential elections, the framers could have told state legislatures to send the states’ preferences to Washington, D.C., to be counted. Instead, however, the framers devised the idea of an Electoral College made up of actual human beings, each with one vote, all of whom meet in their respective states and send their votes to Washington. (The name “Electoral College” makes it sound like all the electors get together in one place, but they don’t, and never have.)

Because the electors are selected individually, a few of them over the years have entertained the idea that they, not the voters who chose them, should be allowed to decide for whom they will cast their ballots. After all, they say, they are “electors” — so they should be free to do the electing.

In practical terms, this would make a mockery of the idea that presidential elections are democratic at all. It’s bad enough that the Electoral College system isn’t purely majoritarian as it currently functions. Allowing electors to ignore their promises and follow their own agendas would introduce a huge element of randomness into a presidential election system that already occasionally thwarts the will of the majority.

Justice Elena Kagan, joined by six of her colleagues, held that Article II of the Constitution resolves the issue by stating that each state may select electors “in such manner as the Legislature thereof may direct.” That language, she held, gives broad authority to the state legislature to figure out how it will choose electors, and that authority logically allows states to direct the electors to vote according to their promise; to sanction them if they do not; and to replace them with different electors who will do the job right. There are 15 states that already have such laws in place. It would be good for the other 35 to follow suit.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, agreed with the result. But he quirkily said the issue cannot be resolved by the language of Article II, but rather by the Tenth Amendment, which says that powers not delegated to the federal government are reserved to the people — or to the states. Thomas, who loves states’ rights, essentially concludes that sanctioning electors is an inherent sovereign right of the states.

But this view is a little worrisome. The presidential election is a federal undertaking governed by the Constitution. Logically, there could be no pre-existing sovereign right of states to choose electors in a process that did not come into existence until the Constitution created it.
For now, however, the good news is that Thomas and Gorsuch were not feeling so radical as to invite distortion of the presidential election by random electors who might hope to hijack the process.

The Electoral College system is wildly outdated. It needs repairs. But when you have an old Constitution like ours, sometimes the best thing isn’t to buy a new one but to bring the old one into the shop and have expert mechanics do their best to help it run safely.

This week the justices acted like good, skilled mechanics. Here’s hoping the old jalopy can get us through the November 2020 election — and the presidential transition that one can only hope will follow in January.

Noah Feldman is a syndicated columnist.

Roberts has devoted his whole career to trying to keep the Supreme Court from being seen as a partisan body. That started with the famous baseball analogy he offered at his Senate confirmation, according to which the justices are like umpires who call balls and strikes. The comparison is pretty dubious: Balls and strikes aren’t infused with controversial moral questions like when life begins and who can marry whom. But Roberts was trying to illustrate his ideal of a justice who stays out of the partisan fray of team spirit.

Since then, Roberts has made a number of important rulings perhaps intended to keep the court from appearing too partisan. For example, he broke with his conservative colleagues to save the individual mandate in the landmark Affordable Care Act case (even though, in the same judgment, he gutted the act’s Medicare expansion) and also sided with the liberals in a 5-4 decision that kept a citizenship question off the 2020 census questionnaire.

Trump’s impeachment trial is a nightmare for Roberts because it will be very challenging to avoid an appearance of partisanship while he presides. There’s no ducking the job, though. The Constitution specifically requires the chief justice to preside over presidential impeachment, presumably because the framers realized that it would be awkward for the vice president to be in that chair as the senators decided whether to oust the president and thus elevate the vice president.

When Chief Justice William Rehnquist presided over President Clinton’s impeachment trial, he managed to stay out of the politics almost entirely. As Rehnquist later said, quoting his beloved Gilbert and Sullivan, he “did nothing in particular and he did it very well.”

Roberts was a law clerk for Rehnquist and would doubtless love to emulate this aspect of his experience. The trouble is that times have changed in ways that will make things much tougher for Roberts than they were for his old boss.

When Clinton was impeached, the Senate unanimously adopted rules of procedure that were, in the main, fair and balanced. That meant Rehnquist was rarely asked to decide any substantive matters.

That sort of Senate bipartisanship would be terrific this time around. But it seems highly unlikely that, in the current atmosphere of extreme partisanship, the senators will manage to reach consensus, much less unanimity, on rules of procedure or evidence for the trial. That means Roberts could be asked regularly to rule on tough procedural issues, such as which witnesses may be called by whom or whether certain evidence (for example, hearsay) can be admitted.

Deciding these questions would put Roberts in a difficult spot. Democrats will criticize him as partisan if he issues rulings favorable to Trump. Republicans will excoriate him as a traitor if he rules against the president.

The best strategy available to Roberts may be to rely on a quirk of Senate impeachment rules. Under Senate precedent, a majority of the Senate can overrule any procedural or evidentiary decision made by the chief justice.

Rather than ruling and subjecting himself to the indignity of being overruled, Roberts could say to the senators that he would like to them to vote on any close question, skipping the step of issuing a decision himself. This approach would shift any partisanship to the senators and away from Roberts.

If Roberts is forced to make controversial rulings, he will have little choice but to try to be objective: to call balls and strikes, and hope for the best. It’s not an attractive role. But Roberts is up to it, if anyone is.

Noah Feldman is a syndicated columnist.

The basis for his frustration is a serious mismatch between the U.S. Constitution as it’s written and the unwritten constitutional norms that Trump is blamed for breaking. The written Constitution puts the Justice Department and the FBI squarely under the president’s control. The unwritten, lower case “c” constitution says that the president may not politicize criminal investigations and prosecutions.

As special counsel Robert Mueller’s investigation focuses more on Trump’s handling of the Russia investigation than on the 2016 campaign itself, the mismatch between what the written Constitution says and what the unwritten rules demand might be the basis on which Trump’s presidency stands or falls.

The written Constitution presents itself as, among other things, the basic organization chart of the U.S. government.

Although the Justice Department was not among the original set of executive departments created, George Washington’s first Cabinet did include an attorney general, Edmund Randolph of Virginia, whose office was established by the Judiciary Act of 1789. Like the rest of the Cabinet, the attorney general could be fired by the president. (In fact, Washington did effectively fire Randolph by accusing him of leaking inside information to the French ambassador, though by then Randolph had become secretary of state.)

On the org chart, then, the executive is in charge of the prosecution and investigation of federal crimes. All the other Cabinet-level executive branch officials can be fired by the president for any reason. Technically, the same is true of the attorney general and the director of the FBI.

The mismatch arises because over the centuries, it became clear that an org chart dating to 1789 wouldn’t work in the modern world. In particular, as other democracies created independent entities for criminal investigation and prosecution, it emerged that the rule of law would not be well served by allowing the president to make political judgments about those key functions.

A compromise developed that the post of attorney general remained political, but presidents accepted the de facto rule that they would not politicize investigations or prosecutions, and would not fire the attorney general over such decisions. The office of FBI director was also effectively depoliticized.

This compromise didn’t come without cost. Its most spectacular moment was the Saturday Night Massacre, when President Richard Nixon ordered Attorney General Elliot Richardson to fire special counsel Archibald Cox, who was investigating the Watergate scandal. Richardson refused and resigned, as did Deputy Attorney General William Ruckelshaus. Cox was then fired by Robert Bork, who as solicitor general was then next in line at Justice.

We sometimes think of the Saturday Night Massacre as though it were entirely about the firing of Cox. But it was also about Richardson and Ruckelshaus. Their political martyrdom had an important effect on practice.

Fast-forward to Trump. As Trump has acknowledged, when he took office, he expected that the Department of Justice would answer to him. When he asked FBI Director James Comey for loyalty and questioned then-Acting FBI Director Andrew McCabe about how he voted in 2016, Trump was expressing the belief that the FBI was no different from any other executive bureau. And on the official org chart, he was right.

Yet the political effect of the unwritten constitution can outweigh the text of the written one, as Trump has been learning. The consequences of firing Comey are not yet fully known. Trump’s attempt to fire Mueller — an act within his official constitutional authority — was rebuffed by his own White House counsel. It would be hard to imagine a clearer example of norms trumping official authority.

So what is the solution to this mismatch problem? Unfortunately, when the written and unwritten constitutions collide, neither can resolve the conflict.

What that leaves is politics. Trump will keep pushing. The rest of the system will keep pushing back. Should Trump fire Mueller or take other acts that clearly break the unwritten rules, the truth about what the Constitution ultimately requires will emerge from what happens — not from what is written or the norms as they exist.

It’s a funny way to do business. But it has worked for 229 years. Short of changing the org chart by amending the Constitution, it will have to keep on working now.

Noah Feldman is a Bloomberg View columnist and a professor of constitutional and international law at Harvard University. Talk back at letterstoeditor@bostonherald.com.

But in the real world, the U.S. Supreme Court may take the opportunity to de-escalate the ongoing conflict between the Trump administration and the judiciary. If that is so, a majority of the justices could simply defer to Trump’s assertion that the countries on the list were chosen because they don’t provide information to facilitate screening of visitors. Such deference would provide an easy route to upholding the ban, and might establish a kind of detente between Trump and the courts. The idea would be that the courts have taught Trump a lesson about the rule of law, and can now afford to let him have a ban that might well have been upheld if Trump had promulgated it to begin with — rather than so blatantly targeting Muslims.

The new ban, explicated in a “proclamation” issued by the White House on Sunday, articulates for the first time a superficially plausible justification for blocking visitors from the targeted countries. It’s not a coincidence that this ban comes in the form of a proclamation rather than an executive order like its two predecessors. The genre of the proclamation allows for factual findings and reasoning to explain the decision.

The proclamation breaks down the relevant analysis into three categories: “identity management information” — essentially, whether passports are legitimate; “national security and public safety information” — whether the foreign government helps identify potential terrorists; and “national security and public safety risk assessment” — whether the country poses a security risk to the U.S.

This all sounds superficially plausible. Iran, Libya, Syria and Somalia — four majority Muslim countries that have been included in the previous travel bans — could all be reasonably said to fall short on one or more of these criteria. Iraq, another majority Muslim country that was included in earlier iterations of the ban, has its problems on these fronts too. (The current ban doesn’t fully apply to Iraqi nationals, who will instead get special vetting.) Chad, a majority Muslim country that did not appear in the earlier bans but now does, also broadly fits this list.

North Korea, included in the new ban, doesn’t cooperate with the U.S. at all. Venezuela is probably the worst fit, but not all Venezuelans are banned, only government officials and their families.

The problem with the new ban is that it has clearly been gerrymandered to save face by incorporating most of the original majority Muslim countries that were presumptively chosen for reasons of bias according to several courts. The substitution of Chad for Sudan seems like a particularly banal effort to suggest rationality without changing the total number of Muslim countries. There is no real danger of visitors from North Korea, because almost no North Koreans are ever allowed to visit the U.S. The Venezuelan ban really makes little sense in terms of national security. It’s more of a symbolic retaliatory strike against the government of Nicolas Maduro.

A court that bothered to look closely at Trump’s rationale would be hard-pressed to conclude that this is anything more than a rewarmed Muslim ban, dressed with a North Korean-Venezuelan sauce to try and mask its original flavor.

Yet it’s entirely possible that the Supreme Court, at least, might choose to defer to the Trump administration’s national security assessment. That is what the courts normally do when the president invokes power granted to him by Congress, in this instance the power to exclude citizens of some countries in the interest of national security.

Politically, deference might also seem appealing not only to the conservative justices but also to swing voter Justice Anthony Kennedy. The judiciary has by now signaled to Trump that he can’t just declare his will by executive order and expect the courts to enforce it. The naked anti-Muslim bias of the original executive orders is now gone, at least at the overt level.

In its place is the homage that vice pays to virtue — namely the hypocrisy of the existing order’s claim to be about information sharing and identity management. From the standpoint of the judiciary, that homage is very important. It stands for the basic recognition of judicial supremacy when it comes to constitutional principles like nondiscrimination.

If Trump had issued something like the text of travel ban 3.0 when he first took office, the courts would probably have let it stand. Whether they allow this version depends on how closely they’re willing to look at the proclamation’s logic. Nondiscrimination would be better served by striking it down. Detente between the executive and judicial branch may call for letting it stand.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University. Talk back at letterstoeditor@bostonherald.com.

Trump’s most blatantly unconstitutional actions, like the travel ban on immigrants from a number of majority Muslim nations, have been blocked by the courts. Steve Bannon, Mike Flynn and Sebastian Gorka are out of power. The reasonable generals (John Kelly, H.R. McMaster, James Mattis) are in. The repeal of the Affordable Care Act has failed (so far). A deal with Democrats on DACA, the policy allowing undocumented immigrants brought to the U.S. as children to stay, is in the offing. There will be no new wall, paid for by Mexico or otherwise, on the southern border. Dangerously extreme tax reform seems unlikely to pass.

The point is not to play down the worrisome and downright bad events of 2017 thus far, including the fruits of mistaken Trump administration policy and (in my view) even some potentially impeachable offenses. Nor is it to ignore future risks.

Rather, this is a moment to appreciate that the U.S. Constitution is undergoing a stress test — and it’s doing pretty well.

The independent judiciary is withstanding a series of unprecedented assaults from the executive branch, both symbolic and actual.

The separation of powers, which requires Trump to work with Congress, is forcing the president to tack toward the center if he wants to get legislation passed.

And public opinion, which guides constitutional government against the backdrop of future elections, is pushing Trump to remove the most radical visible members of his administration and enhance the power of more moderate, responsible adults.

Put another way, Trump broke the recent norm of Republican presidential candidates by running to the right, not to the center. And he’s still pandering to a right-wing base in his rhetoric. But when it comes to government, he’s slowly but surely starting to act more like a centrist.

Trump has had some normal interactions with the judicial branch when it comes to appointments. He has added a highly conservative justice, Neil Gorsuch, to the U.S. Supreme Court, which may be his most lasting contribution to conservativism.

Similarly, Trump’s lower court judicial nominees have for the most part been sober and qualified. They’re conservative, to be sure, but that’s perfectly normal for a Republican president blessed with a Republican Senate.

The existing judiciary has given Trump no ground at all when it comes to his attempts to expand executive power illegitimately or in the exercise of racial bias. This despite — or maybe because of — Trump’s dangerous Twitter attacks on judges and the very notion of judicial authority. The pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz., is the most extreme instance of contempt for the rule of law, but it hasn’t cowed the judiciary.

Then there’s Congress, which for different reasons hasn’t given Trump much of what he has wanted thus far. It’s important to remember that this is the most crucial element of the separation of powers.

That a Republican Congress hasn’t given Trump a major legislative victory in eight months is a kind of miracle of constitutional design.

Trump’s failure to get the Affordable Care Act repealed is therefore partly caused by the constitutional structure itself. Ditto for his need to go to the Democrats to pass legislation to keep the government funded and provide hurricane aid.

Trump himself is protean, able to sympathize with radical populism even while entrusting economic policy to investment bankers. He won’t give up the goal of preserving his far-right base by symbolic means. There will be more events like his dog-whistling after the Virginia white supremacist rally in the future.

Yet when push comes to shove, Trump has to accomplish things to get re-elected. And the nationalist policies pursued by Bannon aren’t realistic or advisable.

That explains the rise of the disciplined, more moderate, even technocratic generals in the administration.

This, too, is the effect of our constitutional system’s embrace of first-past-the-post elections. Trump found a way to activate the far right in the election. But they can’t re-elect him on their own.

So don’t celebrate Trump. But do celebrate the Constitution. It’s being challenged. And it’s doing all right.

Noah Feldman is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. He is a Bloomberg view columnist.

Only one director has ever been removed from office involuntarily: President Bill Clinton fired Director William Sessions in 1993 after an internal report found that he had committed significant ethics violations.

There is, therefore, reason to be deeply concerned about Comey’s firing, which has the effect of politicizing law enforcement — a risky precedent in a rule-of-law democracy. And the fact that the FBI is investigating the Trump administration makes that politicization look like pure presidential self-interest.

Practice regarding FBI directors doesn’t go back all that far, because J. Edgar Hoover ran the department from 1924 to 1972, ultimately dying in office. Hoover was too powerful and knew too much to be fired.

In reaction, Congress adopted a law in 1976 that limited the director to a 10-year term. The law doesn’t place any limits on presidential power to fire the director. Arguably, law enforcement is so central to the core constitutional power of the executive that it would violate the separation of powers if Congress tried to take away the president’s authority to remove the chief federal law enforcement officer.

At the same time, however, it’s anomalous in a rule-of-law system for law enforcement to be too responsive to the political whims of the elected executive. It’s just very risky to allow a country’s most powerful elected official to control the appointment of key law enforcement officers — in part because of conflicts of interest like the one raised by the Comey firing. As a result, the vast majority of well-functioning democracies professionalize the investigative role, rather than politicizing it.

That’s been the unwritten norm in the U.S. — one might almost say, a part of our unwritten, small-c constitution, though not of the written, big-C Constitution. Of the four Senate-confirmed directors before Comey, all served under presidents of both parties. Three served until their terms ended or they voluntarily retired. One, Robert Mueller, got a special two-year extension.

The exception was William Sessions. Sessions, initially appointed by President Ronald Reagan, was fired by Clinton after an investigation by the Office of Professional Responsibility of the Department of Justice found that he’d used FBI planes to visit friends and relatives. Clinton tried to get Sessions to resign in order not to have to break precedent and fire him. But Sessions refused, and Clinton pulled the trigger and fired him anyway.

Trump alluded indirectly to the Sessions firing in his message to Comey when he said “you are not able to effectively lead the bureau.” This echoed Clinton’s language when he said that Sessions could “no longer effectively lead the bureau.”

By implication, Trump was saying that he has as much right to fire Comey as Clinton did to fire Sessions. In practice, there’s a big difference between Sessions’ ethics violations, which were documented by George H.W. Bush’s Department of Justice, and Comey’s admittedly highly problematic management of the investigation of Hillary Clinton.

Comey may arguably have acted unethically by announcing the reopening of the Clinton email investigation shortly before November’s election — but Trump didn’t say so, and surely he’s the last person in the world who would make that claim. The firing of Comey is blatantly political. The bottom line is presumably that the Trump administration knows it can’t control Comey, and so it doesn’t trust him.

It seems to me, for what it’s worth, that Comey should have resigned after Trump’s election to avoid the appearance that he had politicized his position to the benefit of the candidate who won. I’m not writing to mourn his tenure.

Yet Comey’s act of politicization doesn’t justify Trump’s decision to make the firing of the FBI director into a political act. It’s a classic case of two wrongs not making a right.

And it’s profoundly troubling that a president whose administration is already under investigation on multiple fronts would take such an action. Whoever is appointed to run the FBI permanently will be seen as beholden to the president who appointed him or her. That will make any decision not to pursue investigations into the president look politically motivated and illegitimate.

The erosion of the independence of law enforcement is thus a blow to the unwritten constitutional norm of political neutrality. It doesn’t violate the separation of powers. But it violates a norm that in its own way is almost as important.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.

There was nothing very deep about my prediction. Having promised to leave the decision to the Federalist Society, Trump did exactly that. He gave them an intellectual who went to Harvard Law School like Justice Antonin Scalia (and five other members of the current court); studied in Oxford as a Marshall scholar like Justice Stephen Breyer; clerked on the Supreme Court like three other sitting justices; and has been reliably conservative for years. He even looks like the TV version of a Supreme Court justice, complete with silver hair and a firm jaw.

Now comes the Democrats’ challenge: Should they filibuster Gorsuch, who is conservative but not necessarily an ideologue? If they do so, and try to depict him as “out of the mainstream” — and fail to block him if Senate Republicans use the nuclear option to end the filibuster — they run the risk of alienating him and driving him further to the right.

That could be a great mistake. Over time Gorsuch has the capacity to be more a John Roberts than a Samuel Alito — more committed to judicial restraint than to consistently toeing the conservative party line. He might even move in the direction of Anthony Kennedy, for whom he once clerked, and become (dare we say it?) more liberal with time.

It’s well worth noting that when it came down to it, Trump utterly spurned picking an “ordinary man” jurist, such as Judges Thomas Hardiman or William Pryor, in favor of a member of the super-elite.

Hardiman, the first person in his family to attend college, went to the University of Notre Dame on scholarship, and drove a cab to put himself through Georgetown Law School. Pryor went to the University of Louisiana at Monroe.

Gorsuch is the son of a Reagan administration Cabinet official who went to a Washington prep school, Columbia University and Harvard Law. He excelled academically, winning a Truman scholarship and Marshall scholarship. At Oxford, where Bill Clinton never finished a degree, Gorsuch earned a doctorate. Then he earned clerkships on the D.C. Circuit Court of Appeals and the Supreme Court, signs of tremendous success in law school.

I went through each and every one of these same competitions for scholarships and clerkships myself, and I’m here to tell you that this isn’t nothing. Not one of these brass rings is easy.

It no doubt helped Gorsuch, as it helped me, to be white and male and at ease in academic circles. But plenty of privileged white men tried for all these prizes and jobs and got none or one of them. Gorsuch essentially hit the jackpot. Legally speaking, it doesn’t get more elite.

And precisely this pedigree raises the possibility that Gorsuch isn’t an extremist, but is capable of evolving in a more moderate direction. At every stage, he’s shown he can work within the existing system and value structure — not to break the system down, but to build it up while taking a conservative stance.

Take Gorsuch’s book on assisted suicide and euthanasia, for example, which grew out of his doctoral dissertation. It isn’t a work of ideological extremism but a nuanced and even fairly balanced treatment of hard moral and legal questions.

Or consider Gorsuch’s clerkship for Justice Byron White, a John F. Kennedy appointee who was essentially a centrist pragmatist. After White retired, Gorsuch went to work for Anthony Kennedy, who was more conservative at the time but has since evolved into a liberal hero.

Kennedy and Gorsuch are, I’m reliably told, still on warm terms. That says something. Some conservatives have spurned Kennedy in recent years.

If confirmed, Gorsuch will become the first justice ever to serve alongside another justice for whom he once clerked. Trump has reportedly said he wants a pick who will make Kennedy willing to retire. That’s a fool’s errand, because Kennedy is deeply independent in spirit. But it would be hard for Gorsuch to call for, say, overturning Roe v. Wade while sitting with his old boss, who rejected that path in the Casey v. Planned Parenthood case.

Democrats should think hard before trying to depict Gorsuch as a radical conservative. He may not be one — and a bruising confirmation fight could push him in the wrong direction.

Noah Feldman is a professor of constitutional law at Harvard Law School and clerked for Supreme Court Justice David Souter. He is a columnist for Bloomberg View.

But when, over the holiday weekend, The Washington Post published his op-ed making the same argument, it made me think serious people might take his argument seriously, which would be dangerous for democracy and bad for the republic. So with great respect for Larry’s ideals and values, here’s why faithless electors would subvert, not sustain, the democratic values that underlie the U.S. presidential election system.

Start with a thought experiment: What if Donald Trump had won the popular vote and lost in the Electoral College? How would Democrats respond if prominent scholars and public figures argued that Clinton’s electors should break their pledges and elect Trump?

I’ll tell you how: Democrats would see it as an attempted coup d’etat. And they’d be right. The vote in the Electoral College has always been a formality. Its purpose is simply to effectuate the results of the electoral system we have, with all its imperfections.

Faithless electors have never determined the outcome of a presidential election, and for good reason. To do so would be to change the rules of the game in the game’s closing minutes. It would distort fairness and the rule of law. And it would send the extremely worrisome message that electoral results aren’t to be taken seriously as the outcome of a legally constrained process.

Lessig makes one constitutional argument and one democratic argument in favor of faithless electors subverting the system, and they’re both unconvincing.

Constitutionally, Lessig makes the highly idiosyncratic, original and mistaken claim that the Electoral College was intended as a “safety valve” or “circuit breaker” to allow the electors to ignore the public’s vote. He attributes this idea to Alexander Hamilton.

But in Federalist 68, which Lessig cites, Hamilton said nothing of the kind. The point of the essay was that the Electoral College was better than a pre-existing legislative body, which could be subverted by outside influences. (That’s you, Larry.) Hamilton called the Electoral College “an immediate act of the people of America.” That’s not a safety valve. It’s a faucet.

If the Electoral College had been intended to make a decision of any kind, the Constitution could have given its electors the power to choose the president in case no candidate got a majority. It wasn’t. Instead, the Constitution threw such situations to the House of Representatives. As Hamilton noted, the Electoral College was a one-shot deal: appear, vote, disappear from existence.

That leaves Lessig’s argument from democratic theory — namely, because the Electoral College gives some mildly disproportionate power to small states, which have a minimum of three votes, it violates the principle of one person, one vote. That’s true, but irrelevant to subverting the system. The Constitution creates that vote structure. And there’s a way to change that: by democratic means, not by the arbitrary act of obscure electors engaging in revolutionary change.

What’s dangerous about the appeal to faithless electors isn’t that they’re going to listen. It’s the willingness to propose breaking the basic constitutional structures of democracy at perhaps the most delicate moment for those structures in my lifetime.

Now is not the time for experts in constitutional law to be cavalier about following the procedures, including the unwritten procedures, that shape our constitutional norms. The president-elect broke many of the unwritten norms of electoral politics to win the election. The overarching goal must now be to make sure he doesn’t break the Constitution.

The rules of the game may be problematic; I would certainly love to see the Constitution amended to abolish the Electoral College. But the solution isn’t to break the game. The election would have been fought differently under different rules, and it’s impossible to say with any confidence what the result would have been.

When someone loses the popular vote and wins the Electoral College, it’s a genuine challenge to the democratic legitimacy of the constitutional system. But it isn’t a challenge to the constitutional legitimacy of the electoral outcome.

Those who put the abstraction of “democracy” ahead of the Constitution had better be ready for Donald Trump to do the same. If he does, they’d better have a stronger argument than Hillary Clinton got more votes.

As for me, I’m going with the Constitution, constitutional tradition and the rule of law. And I would urge my brilliant, contrarian colleague to do the same.

Hamilton was something very like a monarchist. Notwithstanding the current perception that he was some sort of patriot radical, he in fact asserted at the Philadelphia convention that “the British Government was the best in the world: and that he doubted much whether any thing short of it would do in America.”

Somehow his paean to monarchy didn’t make it into the musical.

Noah Feldman is a columnist for Bloomberg View.

That’s wrong as a matter of constitutional law. But it’s not crazy. In fact, the U.S. Supreme Court has recently accorded a high degree of protection to falsehoods. And the kinds of justices that the Republican presidential nominee might appoint could well reverse it.

The landmark case for the constitutional protection of lies and the lying liars who tell them was decided in 2012. It involved a prosecution under the Stolen Valor Act, a federal statute that made it a crime to say you have military medals you never earned — and a bigger crime to claim falsely to have received the Medal of Honor.

The protagonist of the colorful case was Xavier Alvarez, who among other things falsely claimed to have played hockey for the Detroit Red Wings and to have married a Mexican starlet. Alvarez got in trouble after being elected to the Three Valleys Water District Board in Claremont, Calif. At his first meeting, Alvarez introduced himself by saying, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the congressional Medal of Honor. I got wounded many times by the same guy.”

Alvarez hadn’t received the medal. He hadn’t even been a Marine. The federal government prosecuted him under the Stolen Valor Act, seeking the enhanced penalty of one year in prison that the law provides for his Medal of Honor claim.

In a 6-3 decision, the Supreme Court reversed Alvarez’s conviction and struck down the Stolen Valor Act as unconstitutional.

The plurality opinion was written by Justice Anthony Kennedy, who was joined by Chief Justice John Roberts and liberal justices Ruth Bader Ginsburg and Sonia Sotomayor.

In it, Kennedy asserted straightforwardly that the First Amendment requires the highest degree of scrutiny for laws that punish speech based on its content — no matter whether that content is true or false. That means such laws can only be upheld if the government has a compelling interest in them and they are narrowly tailored to achieving that interest — a standard that almost no law can meet.

The only exceptions to this general ban on content-based regulation, Kennedy said, were the traditional areas of obscenity, fighting words, true threats and defamation. And even in those areas, falsehood can sometimes be constitutionally protected. The most famous example is defamation of a public figure: false, defamatory statements are protected unless they’re made maliciously, with knowledge of their falsity or reckless disregard of it. This is why the National Enquirer can say what it will about Trump’s personal life.

Kennedy went on to explain that if the government could punish lies, it could extend its reach to “whispered conversations within a home.”

And he recited the mantra of the free-speech diehards: “The remedy for speech that is false is speech that is true.”

In a separate concurrence, Justice Stephen Breyer, joined by Justice Elena Kagan, took a more moderate position. He said that prohibitions of factually false speech deserved only intermediate scrutiny, meaning that such laws need only serve an important government interest and be proportionate to the purpose in question. But Breyer agreed with the plurality that the Stolen Valor Act was unconstitutional. He also gave a long list of situations where he considered lies to be useful, ranging from privacy to preserving a child’s innocence to Socratic examination.

That left it to Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, to voice the Trump position. Alito stated, with more or less accuracy, that according to traditional Supreme Court doctrine, “false factual statements possess no intrinsic First Amendment value.” It’s a crime to lie to government officials and a crime to pretend to speak on behalf of the government, he noted. The Stolen Valor Act was necessary, he said — and the court’s holding was “radical.”

Alito was right — there’s something radical about protecting falsehood as closely as truth. But that radicalism lies at the heart of the First Amendment: enabling truth to emerge through the free exchange of ideas. Falsehoods are part of the process whereby the truth comes to be defined and understood.

Free speech has been very good to Donald Trump, enabling him to appeal to Russian hackers and “Second Amendment people” and generally to say whatever is on his mind. It would be nice if he reciprocated the favors the First Amendment has done for him.

But even if he doesn’t, First Amendment truthers have no choice but to disagree with him — in speech. They think that truth is great and will prevail. This election is a good test of whether that Jeffersonian adage is factually accurate.

Noah Feldman is a Bloomberg View columnist. Talk back at letterstoeditor@bostonherald.com.

If Obama does nominate a justice quickly, should he pick a liberal whose rejection will galvanize Democratic voters to turn out for the party’s nominee in November, in hopes of a second chance? Or should he pick a moderate who has an outside chance of actually being confirmed, creating the possibility of a liberal balance on the court even if a Republican wins in November?

These questions are essentially unprecedented. The modern era of highly political confirmation fights began in 1987 when President Ronald Reagan nominated Judge Robert Bork and the Democratic Senate blocked him. In the almost 30 years since, we haven’t had a situation in which a justice suddenly died or resigned in the middle of a term at the end of the presidency when the Senate was controlled by the opposing party.

If Obama can’t nominate a successor to Scalia and get the justice confirmed, it will be almost a year until a new president can be inaugurated and nominate a replacement. So not only will the current Supreme Court term result in cases being decided by only eight justices, but also the term that begins in October 2016 and ends in June 2017.

Two years of the court operating at less than full strength represents a genuine challenge to the institution and to the legitimacy and precedential weight of its decisions in that time.

For Obama, choosing not to nominate a new justice seems like a mistake. True, the nominee may be blocked in the Senate. The filibuster option still exists for opposing Supreme Court justices, even after Senate Democrats used the “nuclear option” to change the rules governing other judicial nominations in 2013.

What’s more, by refusing to nominate someone, Obama could alienate the liberal base that the Democratic Party needs to win in 2016. It’s easy to imagine the scenario: Obama says he won’t make a nomination; Bernie Sanders announces he’d nominate a strong liberal; Hillary Clinton finds herself with no choice but to agree with Sanders. Both Democratic presidential candidates would be criticizing the president.

It seems probable, then, that Obama will make a nomination — but that the nominee will be a sacrificial lamb to be blocked by Senate Republicans. Who should the lamb be? What features should the lamb have?

One option would be to pick a strongly liberal candidate who probably wouldn’t be confirmed by a Republican Senate anyway, no matter the timing of election cycle — like California Supreme Court Justices Goodwin Liu and Leondra Kruger. If the nominee will never be a justice, then the choice is a kind of free shot for the president to express his liberal values.

In a perfect political world, such a judicial nominee would also be someone whose rejection by the Republican Senate would galvanize the Democratic base without jeopardizing the eventual Democratic presidential nominee with moderate voters. The point of the sacrifice would be to energize liberals.

One drawback of this approach is that Obama could be criticized for politicizing the confirmation process still more than it’s already been politicized — and with some reason.

A big brouhaha over the nomination of a liberal might bind a future Democratic president like Clinton to renominate the same person if she were elected. If the candidate were too liberal to be confirmed by the Senate even in a new presidential term, then the sacrificial lamb would be a poison pill, promising a defeat for Clinton in the early months of her own presidency.

That leaves Obama with the strategic option of nominating someone very moderate and in theory eminently conformable — like Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit. There’s a small chance the Republicans might confirm such a candidate, although it seems unlikely. If the Senate refuses to consider the candidate, the Democratic presidential candidates can use this as evidence of the Republican Senate acting in bad faith. And a Democratic president could renominate such a candidate and get him or her through.

This isn’t an exciting strategy — but it’s probably the right one, for the court and the country.

Noah Feldman is a Bloomberg View columnist.