Legal scholars

"The structure of a fully articulated profession is such that those who enter its precincts will find that the basic decisions, about where to look, what to do, and how to do it, have already been made."

"Literary interpretation, like virtue, is its own reward. I do it because I like the way I feel when I'm doing it."

"Before the words slide into their slots, they are just discrete items, pointing everywhere and nowhere."

"We marvel at them; we read them aloud to our friends and spouses, even, occasionally, to passersby; we analyze them; we lament our inability to match them."

"No word floats without an anchoring connection within an overall structure."

"It may sound paradoxical, but verbal fluency is the product of many hours spent writing about nothing, just as musical fluency is the product of hours spent repeating scales."

"Know what makes a sentence more than a random list, practice constructing sentences and explaining what you have done, and you will know how to make sentences forever and you will know too when what you are writing doesn't make the grade because it has degenerated into a mere pile of discrete items."

"People write or speak sentences in order to produce an effect, and the success of a sentence is measured by the degree to which the desired effect has been achieved."

"Sentence writers are not copyists; they are selectors."

"What we know of the world comes to us through words, or, to look at it from the other direction, when we write a sentence, we create a world, which is not the world, but the world as is appears within a dimension of assessment."

"Language is not a handmaiden to perception; it is perception; it gives shape to what would otherwise be inert and dead. The shaping power of language cannot be avoided. We cannot choose to distance ourselves from it. We can only choose to employ it in one way rather than another."

"Just as you can practice three - word sentences or sentences that travel across time zones, so can you practice writing sentences that breathe unshakable conviction."

"The word "essay" means to try out, test, probe. In the essay style, successive clauses and sentences are not produced by an overarching logic, but by association; the impression that prose gives is that it can go anywhere in a manner wholly unpredictable."

"The category of first sentence makes sense only if it is looking forward to the development of thematic concerns it perhaps only dimly foreshadows."

"They are their own monuments, as is this quietly thrilling sentence."

"The idea — the core idea of humanism — is that the act of reading about great deeds will lead you to imitate them,.."

"Sentences can save us. Who could ask for anything more?"

"Fish has raised careerism to a worldview. In this way, he is a man for our time."

"If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don't need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she's not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalio/Thomas wing of the Court."

"Now the country is faced with a president whose conduct strongly suggests that he poses a danger to our system of government. ...[I]mpeachable offenses could theoretically have been charged from the outset of this presidency. ...One important example is Trump’s brazen defiance of the ...The question of Russian interference in the presidential election and possible collusion with the Trump campaign go to the heart of our system and ability to conduct free and fair elections. ...[R]eporting suggests... the... sinister, with Trump insisting that Comey pledge "loyalty" to him in order to retain his job... the president turned to Twitter with a none-too-subtle threat that Comey would regret any decision to disseminate his... conversations... Nixon’s... list of actions... deemed... impeachable obstruction reads like a forecast of... Trump... misleading statements to, or withholding material evidence from, federal investigators or... employees; trying to interfere with FBI or congressional investigations; trying to break through the FBI’s shield surrounding ongoing criminal investigations... [T]he crucial thing is that the prospect now be taken seriously, that the machinery of removal be reactivated, and that the need to use it become the focus of political discourse..."

"[T]hat speech... was political genius but jurisprudential danger, because he created an impression that Robert Bork really liked the idea of coat-hanger abortions, that he liked the idea of racial separation of neighborhoods, whereas the fact is that Bork’s philosophy might have led to many of those consequences, but to demonize him the way my friend Ted Kennedy did I thought was going to work politically, but something that people would come to regret later. And, of course, I think that’s what happened, because it rallied a lot of academics and scholars and moderates to Bork’s side, thinking that he had been improperly caricatured..."

"[T]he courts that held slaves to be non-persons, separate to be equal, and pregnancy to be non sex-related can hardly be deemed either final or infallible."

"[T]he Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and government practices."

"Judicial neutrality necessarily involves taking sides. ...[J]udicial restraint is but another form of judicial activism."

"The inescapable boundaries of societal context and consciousness argue... that [judges] must raise distinctive voices of principle."

"[T]he highest mission of the Supreme Court... is not to conserve judicial credibility, but in the Constitution's own phrase, "to form a more perfect Union" between right and rights within the charter's necessarily evolutionary design."

"[T]he morality of responsible scholarship points not at all to the classic formula of supposedly value-free detachment and allegedly unbiased description. Instead such morality points to an avowal of the substantive beliefs and commitments that necessarily inform any account of constitutional arguments and conclusions."

"[A]ttempts to treat constitutional doctrine neutrally elide important questions and obscure available answers."

"Given its remarkable activism in constraining the President vis-à-vis Congress and the courts and in limiting Congress vis-à-vis the States, the current Supreme Court cannot be understood as pursuing a modest institutional role. ...I prefer postulates honestly expressed to analyses whose underlying assumptions are obscured by the jargon of neutral principles and the language of "objective" legal description."

"[T]he conventional ways even of stating the choices between greater freedom or equality, on the one hand, and greater governmental power, on the other... and particularly the conventional emphasis on "balancing interests"... are remarkably unilluminating as well as misleadingly ahistorical."

"[T]he Constitution is an historically discontinuous composition... the product... of a series of not altogether coherent compromises; it mirrors no single vision or philosophy but reflects instead a set of sometimes reinforcing and sometimes conflicting ideals and notions."

"I... organize the constitutional principles, rules, and theories... in terms of the seven basic models that... have represented the major alternatives for constitutional argument and decision in American law from the early 1800s to the present."

"The models... (I) separated and divided powers; (II) implied limitations of government; (III) settled expectations; (IV) governmental regularity (V) preferred rights; (VI) equal protection; and (VII) structural justice."

"[T]hese models are not... mutually exclusive... discourse in any given period can... draw on... more than one model. ...Their main function is . ...[T]he models ...grow out of immersion in judicial decisions and lawyers' arguments ...[T]hey should be ...familiar themes ..."

"That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and central tenet of American constitutionalism. ...[I]t was believed that personal freedom could be secured more effectively by decentralization than by express command."

"[T]he framers had derived the conviction that human rights could best be preserved by inaction and indirection—shielded behind... deliberately fragmented centers of countervailing power, in a vision almost Newtonian..."

"In the first model, the centralized accumulation of power in any man or single group... meant tyranny; the division and separation of powers, both vertically (...federal, state and local...) and horizontally (...legislative, executive, and judicial...) meant liberty."

"If the legislature would punish, it must enlist... the other branches—the executive to prosecute, the judicial to try and convict."

"[A] Bill of Rights directed against federal abuses was thought necessary in addition to the separation and division of powers..."

"[A]lthough the effort was finally rejected by the Senate, the House was sufficiently persuaded by James Madison's fear of state and local oppression... to approve a constitutional amendment... that "no State shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases." ...[H]e came close to succeeding in 1789, and... it took a Civil War to make the difference."

"[J]ust as I am not writing for those who feel confident that canons of appropriate constitutional construction may be convincingly derived from some neutral source, so I am also not writing for those who have convinced themselves that "anything goes" as long as it helps end what they see as injustice; that constitutional law is only a legitimating mask for what those in power can get away with; or that it is only a tame language in which those that would otherwise foment violent revolution can couch their demands in forms the regime might accept without losing face."

"No one... persuaded that the categories of constitutional discourse, or of law generally, are readily rendered determinate and certain—and no one who believes that those categories are inherently empty, infinitely malleable, and ultimately corrupt—need read any further."

"I am... moved... by a sense of the ultimate futility of the quest for an Archimedean point outside ourselves from which the legitimacy of some form of judicial review or constitutional exegesis may be affirmed."

"[I]t is largely because I find all exercises of power by some over others—even with what passes for the latter's consent—are and must remain deeply problematic, that I find all legitimating theories not simply amusing in their pretensions but... as dangerous as they are convincing."

"[W]hy do thoughtful judges and scholars continue to put forth the process-perfecting theories as though such theories could banish divisive controversies over substantive values from the realm of constitutional discourse by relegating those controversies to the unruly world of power?"

"[M]ost of us would readily concede that the framers of the 1787 Constitution adopted a federal system of government organization in order to, among other goals, help secure the institution of private property. When Madison, in his theory of faction, suggested that shifting the legislative responsibility for certain problems from the state to the national level could help assure that majorities would not trample on minority rights, the problems he had in mind were largely economic; the minority rights... were, for the most part, rights of property and contract."

"The question whether individuals may insist on being heard by rulemakers, for whom they already (directly or indirectly) voted, has bedeviled administrative law since the turn of the century."

"[G]overnmental action that burdens groups effectively excluded from the process is constitutionally suspect. In its most sophisticated form, the resulting judicial scrutiny is seen as a way of invalidating governmental classifications and distributions that turn out to be motivated either by prejudiced hostility or by self-serving stereotypes."

"One cannot speak of "groups" as though society were objectively subdivided... Instead, people draw lines, attribute differences, as a way of ordering social justice—of deciding who may occupy what place, play what role, engage in what activity. Thus, in order to justify the role of chattel that blacks initially played in our society, we may have differentiated that role by describing it in terms of the most obvious distinguishing feature... equating race and role. This equation and thus "group" survived the Civil War and the Thirteenth Amendment... simply by reason of confusion or inertia, but because the role that society allowed remained partially unchanged; thus, the need to justify the role by differentiating it, by seeing not the role but the group—"inferior" blacks capable of nothing better...—persisted."

"The crux of any determination that a law unjustly discriminates against a group... is... that the law is part of a pattern that denies those subject to it a meaningful opportunity to realize their humanity. ...[S]uch an approach must look beyond process to identity and proclaim fundamental substantive rights—including substantive rights to participate on equal terms in the evolution of law and policy. ...[I]mportant aspects of constitutional law, including the determination of which groups deserve special protection, can be given content in no other way."

"[I]t is puzzling that purely process-based approaches—designed to deny the need for, and legitimacy of... substantive theory—should... continue to find... articulate proponents and persist in attracting... adherents."

"The state shapes the society as much as the society shapes the state..."

"Governmental subsidies to "major" political parties... or failure of state governments to provide funds to compensate school districts lacking "rich" property tax bases, are government actions that affirm some aspects of the status quo as inevitable. Such... are at present constitutional... Unable to support a challenge to such... power, a truly procedural... theory seems doomed... for without such challenge government may well be able to shape the "will" of the governed in the image of those who govern, reducing consent and representation to all but empty ideals."

"This book is about a clash of absolutes, life against liberty. No right is more basic than the right to live. ...If infanticide is wrong, is the destruction of a fetus at eight months of , or at five, any different?"

"Nothing is more devastating than a life without liberty. A life in which one can be forced into parenthood is just such a life. Rape is among the most profound denials of liberty, and compelling a woman to bear a rapist's child is an assault on her humanity. How different is it to force her to remain pregnant... because efforts at birth control accidentally failed?"

"If forcing a woman to continue a pregnancy that will almost certainly kill her is impermissible, how different... to compel... a pregnancy that will probably shorten her life? Or... that will leave her life in shambles?"

"Who knows the names of the countless women who have died from painful and illegal abortions? What of the names of the countless babies who would have been born..."

"[T]he woman's right to decide for herself... is now subject to regulation, and possibly even prohibition, by our elected representatives. ...Even as the public agenda is stretched to address... questions as the , no issue threatens to divide us politically in... as powerful a way as the abortion issue..."

"The political stage is... dominated by... well-rehearsed and deeply felt arguments, on either side... The debate is unending. ...[S]ingle-issue campaigning has ...distorted ...national elections. The losers will be the democratic process and the American people."

"Since it was judges who had read abortion rights into the Constitution, abortion opponents believed, we needed judges who would read abortion back out... [S]ome urged a that would... have prohibited abortion or... at least have returned the question to each state's legislature, but... consensus and effort... proved elusive."

"This book challenges the inevitability of permanent conflict... and tries to lay the groundwork for moving on."

"Since it first came before the Supreme Court... abortion... has been about the Constitution. Whom does it protect? How do we decide..?"

"This is... a book about morality. By offering several perspectives... some rooted in philosophy, some... in science and technology, we may come to see new ways to understand..."

"This book must... touch... deep and difficult questions about birth and death... life and its inception... sexuality and gender, about distribution of power."

"[W]e may... find more common ground than we currently imagine."

"For those whose minds are made up, this book offers a window into the way the "other side" sees... of why you have not been able to persuade opponents... insights into what they believe and... why."

"So the written Constitution, the one we can see, fails to tell us just what's in it and what's not."

"[T]he question of whethor a particular amendment has... been lawfully ratified... would matter mightily with amendments as the three passed in the wake of the Civil War—the Thirteenth (abolishing slavery), the Fourteenth (defining citizenship and guaranteeing certain basic human rights to all persons in their dealings even with their own states), and the Fifteenth (abolishing racial qualifications for voting)—whose ratification by the legislatures of the former Confederate states was not exactly voluntary. Their acquiescence was secured by force, having been made a condition for their reentry into the Union from which they had attempted to secede."

"The visible Constitution... certainly doesn't answer very many of the persistent questions about what it means in any particular case and at any particular time. Indeed, the Constitution even tells us that it doesn't tell us: The Ninth Amemdment... expressly says, "The enumeration in the Constitution of certain rights shall not be construed to deny of disparage others retained by the people." In plain English there's more than meets the eye."

"[M]any constitutional scholars, political and moral philosophers, and social and political historians have described over the generations... the "unwritten Constitution," the subject of a classic study by William Bennett Munro published in 1930... "The Makers of the Unwritten Constitution,"... built on a still earlier and highly influential 1890 work by Professor Christopher G. Tiedeman... "The Unwritten Constitution of the United States." ...[S]cholarly work ...lay largely forgotten until ...resurrected in the writing of ...scholars in the 1970s. The focus... responses to the supposedly problematic legitimacy of having unelected and politically unaccountable judges resort to unenacted norms of this "unwritten Constitution" when holding duly promulgated laws and executive actions "unconstitutional.""

"My interest is less in what's invisible "around" the Constitution than in what is invisible within it."

"I mean to set aside... the complex superstructure of rules, doctrines, standards, legal tests, judicial precedents, legislative and executive practices, and the cultural and social traditions that together constitute what people call "constitutional law.""

"That body of materials, unlike the Constitution itself, is massive and continuously growing... and changing... Many capable scholars have argued that this elaborate edifice is entitled to great respect as the "law" of our Constitution, "law" whose legitimacy ironically is in many ways easier to defend than is the legitimacy of the underlying text itself, and whose role in enabling the Constitution to carry out the important functions in our history is not difficult to demonstrate."

"[M]y reference to an "invisible" Constitution should not be confused with the way some... are prepared to disregard all or part of the Constitution in times of crisis, real or manufactured. My interest... is in what... the Constitution's words cannot hope to reveal. I'll leave for another day the views of some that—because the Constitution is not... a "suicide pact"—we should sometimes act as though parts of what it says have conveniently become invisible."

"I think it very important that you view the vacancy created by Justice Souter's resignation as an opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction. Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty."

"When Justice Stephens leaves, you might consider... about whom... I know less than I'd like... or someone like Kathleen Sullivan, who might well be worth fighting for in that crucial seat."

"For the Souter seat, I can't think of anyone nearly as strong as Elena Kagan, whose combination of intellectual brilliance and political skill would make her a ten-strike... I've known and worked for her... since she was my student and research assistant in the 1980s, have watched her become a scholar of the first rank and a star... teacher, and have marveled at how skillfully she transformed a school that had long been considerably less than the sum of its parts into a vibrant and wonderful place for students to learn and for faculty to teach, write, and collaborate. Her techniques for mastering the substance of the many fields in which we have made important new faculty appointments during her tenure as dean and for gently but firmly persuading a bunch of prima donnas to see things her way in case after case—techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time—are precisely the techniques I can readily envision her employing not just with Justices like Kennedy but even with a justice like Alito or, on... rare occasions, with a justice like Scalia or Roberts."

"It's easy to underestimate how much difference David Souter's analytical prowess and historical command have made within the Court over the past 19 years in shaping both the language of other justice's opinions and on occasion their votes in important lines of cases. Elena Kagan seems to be uniquely suited to perform that task, and to perform it for the next thirty years or longer. Dianne Wood—who is more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects... with the sole exception of Kagan, who is even smarter—would be likely to serve nearly a decade less than Elena and doesn't appear... to have the dynamic personality or the extraordinary diplomatic gifts for inspiring confidence and for moving others that have made Elena Kagan the best dean of any major law school in memory and certainly the best Harvard dean in the forty years I have spent on the faculty here."

"[I]t's easy to forget how much difference the public face of the Supreme Court can make in advancing a humane and yet suitably cautious conception of the rule of law and the role of courts in the pursuit of justice. That's a facet of the Court's role to which few justices over our history have made much of a contribution, given the significant limits on what a sitting justice can suitably say in a public forum. Louis Brandeis, Earl Warren, and Robert Jackson might be cited as exceptions. David Souter certainly couldn't be credited with success in that role, although the conspicuous modesty of his personal style was a plus... Elena Kagan would, however, combine that personal modesty with an appealing public persona and would project a well-grounded image of justice as fairness and of law as codified common sense. In that regard... a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been—and certainly than a Justice Sotomayor or a Justice Wood could be—in the kinds of public settings in which it has been all too easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison. It is important... for the simultaneously progressive and yet principled, pragmatic and yet constrained, approach to law and justice that you have espoused... since becoming president, to be embodied in the person and voice of your first Supreme Court nominee. Elena Kagan would personify that approach and would ultimately be seen by the American public to exemplify it."

"For all these reasons, I hope you will reach the conclusion that Elena Kagan should be your first nominee to the Court. ...I can hardly contain my enthusiasm at your first hundred days. I don't underestimate the magnitude of the challenges that remain, and I... hope that I can before too long come to play a more direct role in helping you meet those challenges, perhaps in a newly created DOJ position dealing with the rule of law, but my main sentiment... is one of enormous pride and pleasure in being an American at this extraordinary moment in our history."

"American Constitutional Law... final chapter... "The Problem of State Action," grappled with one of the most perplexing aspects in the law of the U.S. Constitution: its character as a body of law addressing not ordinary private conduct but only government conduct. ...[T]he law of the Constitution is a kind of meta-law. ...many instances of what might be regarded as government inaction pose troubling constitutional questions. ...[T]he Supreme Court has generally interpreted constitutional provisions as having nothing at all to say about non-governmental choices. ...One might ...say that the constitutional principle limiting the Constitution’s reach to "state action" is an unwritten command ...essentially "heard" in the sounds of constitutional silence. ...I closed the book with the question: "[I]s it not fitting that a book about the Constitution should close by studying what the Constitution is not about?""

"[T]here are plenty of things besides private action that the Constitution is "not about.""

"[M]any of the most important Supreme Court decisions take the form of holding that a particular limit either has not been exceeded or, more fundamentally, that the asserted limit is not in fact part of the Constitution at all."

""[C]onstitutional silence"... pervades all of constitutional law."

"[M]uch of what our Supreme Court does involves filling in the "great silences of the Constitution"..."

"[T]he "dormant Commerce Clause" [is] a set of unwritten constitutional principles limiting state commercial regulation in the face of congressional silence coupled with the Constitution’s delegation to Congress of the power to regulate interstate commerce."

"[C]onstitutional silences, like silences of other kinds, aren’t just occasional gaps or omissions in an otherwise-seamless design. They’re everywhere and come in as many flavors and varieties as sounds. Ambiguity and multiplicity of meanings are in a sense manifestations of silence."

"There are as many reasons to be silent as there are to speak, and as many ways to hear meaning in the sounds of silence."

"Every sentence, every phrase, is in part silent with respect to how a reader or listener is to go about attributing meaning to it..."

"[W]e should beware of "hearing" silences where nearly all readers, setting aside how they would like a particular controversy to end, identify determinative text... "The heart has its reasons," as Pascal famously said, "that reason does not know." Good enough. And those heartfelt reasons deserve a hearing. But when they defy reason, the meaning of living by the rule of law is that reason should prevail."

"[A]ttempting to organize and give structure to the study of legal silence has been a primary purpose of much of what I have written and taught over the past half-century."

"Impeachment haunts Trumpland... Never before has an American leader so quickly faced such credible, widespread calls for his removal..."

"[I]mpeachment does not require proof of a crime... The argument that only criminal offenses are impeachable is deeply and profoundly wrong. It misunderstands the Constitution, U.S. history, and the nature of criminal law in important ways."

"Impeachment requires good judgment amid uncertainty, not a preprinted checklist of relevant considerations..."

"[W]e’re skeptical that so-called "impeachment precedent" commands deference apart from its power to persuade future generations. Congress isn’t bound by its own prior decisions."

"While "high Crimes and Misdemeanors" was a term of art dating to 1386, and had thus accumulated centuries of intellectual baggage, there's no reason to think the Framers had all that in mind."

"[H]igh Crimes and Misdemeanors... involve corruption, betrayal, or an abuse of power that subverts core tenets of the U.S. governmental system. They require proof of intentional, evil deeds that risk grave injury to the nation. Finally, they are so plainly wrong by current standards that no reasonable official could honestly profess surprise at being impeached."

"[I]t would be strange to pretend we can discuss "high Crimes and Misdemeanors" today without any reference to Donald Trump..."

"Warring partisan tribes now define a dysfunctional system..."

"Americans have moved into ideological echo chambers... everything they read or hear reinforces their predispositions and makes them more intolerant of opposing views..."

"We would hope that this book would be a point of reference for people, as well as a enjoyable read, twenty... twenty-five years from now, we wrote it... for the ages. I've been teaching for almost fifty years, and I didn't want to write a book about just one president, especially a president who is so far off the charts as this one. We may have more like him, though, and we need to be able to reason together, as Lyndon Johnson... used to like to say... about what it should take to bring a president down. ...[T]here are other ways of trying to reign him in, and we have by no means exhausted them. I'm involved, as is my coauthor [Joshua Matz], with a number of lawsuits against this president for violating the anti-corruption or s of the constitution, and for violating the constitution in a lot of ways."

"If we eventually win in the Supreme Court, and Trump thumbs his nose at the court and defies it, ...and there is some reason to think he might just do that, because he seems to believe he's above the law, then the whole system will collapse unless he is impeached and removed. But I am... more confident... that even people on his side of the political aisle, who seem completely spineless when it comes to reigning him in now, might get religion at some point, and might conclude, enough is enough. We just can't hitch our wagon to this guy's falling star any longer."

"There have been impeachment talk... about Truman, Jackson... even about Jefferson, but the really serious efforts in our history have been efforts after the Civil War, beginning with Andrew Johnson and then continuing with Nixon and Clinton and now perhaps... Trump."

"[T]he framers were deliberately vague. They didn't want to limit it to treason and bribery because they knew that there were other things that could so violate the basic structure of our constitution, of checks and balances, that they couldn't even predict in advance. So they wanted a general term that would refer to profound abuses of power that threaten the rule of law. Those needn't be crimes. For example, if the president promises to pardon anybody who beats up one of his opponents, or beats up a non-white immigrant, and basically says, "All of you guys have a get out of jail free card." That would be a manifestly impeachable offense, but it wouldn't be a crime. At the same time there are some crimes that are not high crimes and misdemeanors in the sense that the framers used that language, like tax evasion. ...[I]f this president is evading his taxes, that's not an abuse of his official powers. But they resisted going even further and making it a complete free-for-all. That is, at one point they debated making maladministration... impeachable... Well, that could mean any disagreement with the president. There are some countries that say that misconduct is... impeachable... There are some states that, in application to their governor say that misbehavior is... impeachable... Well that would mean that any time the Congress disagrees profoundly with the president on policy... Suppose it passes a law, he vetoes it, they can't override the veto, but if they basically say... we were right and you were wrong, they could just impeach him. ...An effort of that kind was made with President John Tyler. They thought he vetoed too many bills, and that was the impeachable offense. So the framers of the constitution struck a balance and left the judgement to us. They didn't try to create a formula for what was an impeachable offense, but they didn't just say any time you disagree with president, the thing to do is impeach him and try to remove him. They struck a balance in between, and a pretty good one, although it's one that leaves a huge amount of judgement to... we the people."

"[T]he lesson from the Clinton impeachment is that purely partisan impeachments for offenses like lying under oath about a sexual affair, that don't really shake the Republic and threaten our ability to abide by the rule of law in general; that those kinds of impeachments are going to fail in the Senate and only embolden and empower the acquitted president. So Clinton's popularity just soared after the impeachment was rejected by the Senate. The Andrew Johnson impeachment is rather different. In that one, where he came within one vote of being convicted, most historians have concluded that the impeachment was terribly partisan, that it wasn't based on any real abuse. The basic charge on which he was impeached was his decision to fire the , , without the consent of the Senate, in violation of... the Tenure of Office Act. Now that was a technical basis that was cooked up, and it wasn't a very good one, because the... Act, not long afterward was struck down as unconstitutional. The president should not have to consult the Senate for firing a cabinet member. But there was a good reason that could have been used in his case. He was fundamentally trying to undo the Union victory in the Civil War. He was unwilling to pursue Lincoln's program of Reconstruction and he was going to be essentially open to all but re-enslaving African-Americans. His programs.. policies... practices showed that he was ripping the country apart, rather than helping to cement the Union that Lincoln had successfully preserved. That wasn't a crime, but it was what the constitution elegantly calls a high crime or misdemeanor and if he had been charged with that... a conviction in the Senate would have been more likely, and more appropriate. So the lesson... is that we should revisit our history, and not simply take the standard views of it as automatically right, and that we should be careful when we use the impeachment power to frame the right reasons for going after a president who has fundamentally broken his compact with the American people and his oath under the constitution."

"We... devote... Chapter five to the proposition that there is too much loose impeachment talk, and we think that impeachment... needs to be cautiously and carefully approached."

"Impeachment is a political process, but it has a legal frame of reference... [O]ne of the things we try [very hard] to do in our book... is explain how law and politics interact in this process, and... if you forget the political side, you're going to make a terrible set of blunders. But if you ignore the legal side, you're going to risk destroying the Constitution and the country. I agree, from a strictly partisan, political point of view... that letting Trump basically do himself in and make all kinds of terrible blunders, (and there seems to be a new one every day with this crazy pardon or a completely weird imposition of a tariff that will lose American jobs) that he will make things worse and worse... for himself. But the Constitution we have is a fragile device and if in the course of doing that, he defies judicial orders... He says he might defy an order to submit to a , which would be a first in American history... basically presidents are subject to subpoena, but if he is subpoenaed and as his lawyers said in a memo... he says "No, the president is above the law, above the subpoena power." Then, even though it might be politically wise to just do nothing, we would be breaking faith with the constitution to essentially go back to a system where someone is king. ...Tyrants don't easily give up power, and if we simply let this guy get away with anything, and say, "Let's wait til 2020." It may be too late by 2020 to restore a constitutional democracy under the rule of law."

"A subpoena was issued to Richard Nixon to turn over his tapes. He made the argument that you can't subpoena a sitting president... He lost... in the U.S. Supreme Court in the famous... Nixon tapes case. In ', Bill Clinton made the argument that you can't make me testify, and it looked like that was going to go nowhere, so he finally relented and testified "voluntarily." ...[T]he argument that is made in... a memo [to Robert Mueller]... It's basically written to a kind of gullible, nonlegal public. It doesn't make any genuine legal arguments. In fact, there's a rather frightening statement... that it doesn't matter how corrupt the president's motives are. He can do anything with the Department of Justice, as though it's his own private law firm. It says, "I can even use the pardon power." Well, of course he can use the pardon power as a way of showing mercy to people, but he's begun using it as what I have called a giant and loud elephant whistle, basically telling people, "If you have my back and don't cooperate with the investigations into what Russia did, and what I did, and what I knew and when I knew it, I'll have your back." ...[I]t almost sounds like he's saying that he can pardon himself, and thereby evade impeachment. Well, first of all, the impeachment clause itself says that the pardon power does not extend to cases of impeachment. But if all he means is that he can pardon himself so that when he is out of office he can't be convicted, I think he's confusing himself with vice president Pence. Pence can pardon him if he leaves office, the way Ford pardoned Nixon, but as I show in an article with and others, the self-pardon is ruled out by the structure of the Constitution. The President can say, "Pardon me" if he steps on your toes, but he can't say "Pardon me" as an exercise of official power. That would be the height of regal arrogance, and we don't have a king, we don't have an emperor. In fact, one of our complaints in the Declaration of Independence against King was that he was using his royal prerogative to obstruct justice. Well, if this president thinks that obstructing justice in order to corruptly avoid discovering the truth is within his absolute authority, I think he's got a lesson to learn, and I think the American people will teach it."

"[Social media companies] are private platforms. They have... as much right as Bloomberg or as The New York Times... to decide whom they will allow to use their platform. There is no first amendment right to use private property or a private platform to get your views out, and if your views are causing violence and death, the private platform itself ought to be held responsible for not taking you off."

"I'm not comfortable with there being no restrictions. I'm a member with and and others of... the Real Facebook Oversight Board. I think the government should put some limits on them partly because they're so powerful. That does not mean that anybody who wants to has the right to use the platform. The limits are limits that have to be consistent with the first amendment restrictions on the government, but we can't simply transform these platforms into... places that anybody can use, when they are... privately owned, however powerful, however large."

"[A] governmental regime of guidelines which have to be followed, which do not involve private restraints because they would not enjoin any speech in advance. Those guidelines need to be in place so that we don't unfairly surprise the owners of Facebook, or other platforms, or Twitter, but... avoiding the ex-post facto effect of imposing rules after the fact is not the same as violating the doctrine, which basically says you can't muzzle people in advance."

"The Environmental Protection Agency’s proposal to limit carbon pollution from the electricity sector is the centerpiece of the President’s plan to address climate change, and the foundation for U.S. leadership on an international climate agreement. In an effort to kill the rule, the industry has shrewdly hired Larry Tribe, our Harvard Law School faculty colleague and perhaps the nation’s most famous constitutional law professor, who is arguing on their behalf that the rule is unconstitutional. Like most proposed rules, the Administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless. Were Professor Tribe’s name not attached to them, no one would take them seriously."

"To many Democrats and professors at Harvard, Mr. Tribe is a traitor. "The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless," ... and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website."

"Tribe has a history of plowing into high-profile environmental cases, typically on behalf of major industry clients like Co. He has fought other Clean Air Act regulations, and for about a decade tried to undermine a key provision of the cleanup law as unconstitutional. In nearly all of those instances, Tribe has been unsuccessful in court."

"He helped argue that being ordered to clean up hazardous waste sites on the Hudson River was a violation of its constitutional rights. He aided Pacific Gas and Electric in complex bankruptcy proceedings, and defended Nike in a suit that claimed the company was lying about its sweatshop practices. Tribe also helped and the fight common-law claims related to global warming. More recently, he assisted a hedge fund named Bulldog Investors in trying to block the enforcement of certain securities laws; his argument was based, in part, on the idea that such laws violated the fund’s First Amendment rights. In the nineteen-nineties, he worked on multiple cases helping the Bell companies companies try to avoid or nullify telecommunications regulation, and in the 2009 he helped fight net-neutrality rules, based on a theory of corporate First Amendment rights. In short, Tribe's representation of Peabody Energy is nothing new. It is rather representative of his work over the past two decades."

"Tribe has taken a strong view of individual rights; his view of corporate rights is similar... It seems much harder to swallow the idea that Tribe’s paid work... is properly viewed as work in the public interest..."

"for work to be considered in the public interest, it ought to be, at least in part, on behalf of clients who are in some way underrepresented, or present views that would not be heard. This is true of some of Tribe's work; but in much of it he is empowering the powerful."

"[About unfair methods of competition:] What are the dimentions on which firms are or are not permitted to compete? Should we be having firms competing on who can surveil users the best or who can undercut their workers the most, or do we want to be having companies compete on dimentions or privacy that are actually better serving consumers or workers?"

"...we are going to ensure that there is peace before, during, after the election, because when there is no peace, it’s not the elitists who will suffer, it’s the ordinary people who have elected us into office."

"Let us all work together as one people with a common destiny to build a better Ghana"

"My doors are always open, we’ll make sure to provide the resources and make the necessary contacts. As a Government, we’ll give you the fullest support."

"A nation that does not honor its heroes is not worth dying for."

"I have always said that I will be President for all Ghanaian whether they voted for me or not and without consideration for which part of the country they come from."I"

"I would not spare any government official be it .past or present, who would be found guilty of embezzling state funds."

"My government was elected to serve the nation and would therefore ensure that the nation's wealth, which is not for me or members of my administration is well distributed."

"It is my prayer and hope that we shall continue to preserve and maintain the peace, remain united and focused as people with one destiny"

"It will be my duty as president to heal wonds and unite our dear nation"

"This is the saddest day in our nation's history. Tears have engulfed our nation and we are deeply saddened and distraught. I never imagined that one day that it would place our nation in such a difficult circumstance. I'm personally devastated, I've lost a father, I've lost a friend, I've lost a mentor and a senior comrade. Ghana is united in grief at this time for our departed president."

"President Mills will be remembered for his statesmanship and years of dedicated service to his country."

"I salute the guardian of institutions and the defender of Ghanaian democracy...committed to protecting national unity and profoundly attached to African unity and to the place of Africa within the international community."

"On a personal level his moderation and integrity stood out."

"Strong advocate for human rights and for the fair treatment of all Ghanaians."

"President Mills was a tireless defender of democracy in West Africa and across the continent, and he will be greatly missed."

"His exemplary leadership which endeared him to the hearts of many and his contribution to strengthening the relationship between Ghana and Japan."

"Ghana has lost a great football supporter and a supporter of the development of the game in the country."

"President Atta Mills was an inspiring leader of Ghana and a true Commonwealth champion, who will be sorely missed at home and internationally. He was a strong advocate and supporter of the Commonwealth, and our membership benefited enormously from his active participation in Commonwealth life and his wisdom."

"The late President Professor John Evans Atta Mills was without an iota of doubt a unique African leader."

"‘I will use my last ounce of energy to serve Ghana."

"I nominate you, Rex as the fifth Director, especially as you have been in charge and organising the whole exercise."

"Why have you stayed away from me after the support you had extended to my election?"

"The United States has the of the richest nations. It has the by far. It has among the highest child mortality rates. It has the highest . It has one of the lowest levels of voter registration in the rich countries. In essence, it scores extremely poorly on almost all of the comparative measures when compared with other developed states. I visited China on one of these missions about a year ago and what I found was a country that has , but in terms of extreme poverty, has made an absolutely concerted and genuine attempt to eliminate poverty and has succeeded to an important extent. By 2020, they will in fact have no one living in extreme poverty, unlike the United States. While I don’t for a minute want to suggest that the political system [in China] is desirable or even compatible with democratic standards, I would very much welcome an American government that shows a determination to lift everyone out of extreme poverty. I think that’s what politics should be all about, and it’s not happening in the United States."

"From an early time, again, we have had a central and powerful legislature which, as it represents the estates of the whole realm, has made statutes binding on the whole, and knows no legal bounds to its competence. Thus our laws have been eminently national and positive, and our particular legal habit of mind is perhaps the most insular of our many insular traits. Our long standing apart from the general movement of European thought has had its drawbacks; but I think it the better opinion that both in jurisprudence and in the not wholly dissimilar case of philosophy the gain has outweighed them."

"The doctrine of evolution is nothing else than the historical method applied to the facts of nature; the historical method is nothing else than the doctrine of evolution applied to human societies and institutions."

"When Charles Darwin created the philosophy of natural history (for no less title is due to the idea which transformed the knowledge of organic nature from a multitude of particulars into a continuous whole), he was working in the same spirit and towards the same ends as the great publicists who, heeding his field of labour as little as he heeded theirs, had laid in the patient study of historical fact the bases of a solid and rational philosophy of politics and law. Savigny, whom we do not yet know or honour enough, and our own Burke, whom we know and honour, but cannot honour too much, were Darwinians before Darwin. In some measure the same may be said of the great Frenchman Montesquieu, whose unequal but illuminating genius was lost in a generation of formalists."

"Since the classical period of Roman law there has never been a constitution of affairs more apt to foster the free and intelligent criticism of legal authorities, the untrammelled play of legal speculation and analysis, than now exists in the States of the American Union, where law is developed under many technically independent jurisdictions, but in deference and conformity to a common ideal."

"So venerable, so majestic, is this living temple of justice, this immemorial and yet freshly growing fabric of the Common Law, that the least of us is happy who hereafter may point to so much as one stone thereof and say, The work of my hands is there."

"Our Constitution is popular in that the life of the English people, from the greatest to the least, has gone to make it what it is; and it has at almost all times combined the tenacity of tradition with a great power of assimilating fresh elements, and of adapting existing organs to new purposes. For some considerable time our national institutions and our national character have been confirming one another in this habit."

"Our lady the Common Law will note other people's fashions and take a hint from them in season, but she will have no thanks for judges or legislators who steal incongruous tags and patches and offer to bedizen her raiment with them. Assimilation of foreign elements, we have already seen, may be a very good thing. Crude and hasty borrowing of foreign details is unbecoming at best, and almost always mischievous. When you are tempted to make play with foreign ideas or terms, either for imitation or for criticism, the first thing is to be sure that you understand them."

"Equally at home in the Inns of Court and in the Universities, he was for sixty years at the heart of the law. A brooding presence near the Bench, he might have supplied the answer to the question, Quis custodiet ipsos custodes? Rooted in the virtues that have come, with whatever truth, to be called Victorian, the fruits of his scholarship were harvested by men who were themselves the products of a new legal education."

"Pollock was not only a scholar versed in the lore of the ages, but also a constant and eager observer of the modern world, sensitive to its trends of thought and conversant with its larger movements. To the solution of some of its most difficult legal and political problems he devoted his remarkable abilities as a lawyer-statesman. In these and many other ways Pollock proved himself to be one of the leaders of thought in the national and international life of his times. In the breadth of his knowledge, however, which was not confined to any one branch of learning, he stood out from our over-specialized age, and was far more like a man of the Renaissance than a modern. It is this humanistic outlook and culture which give character to all his writings on the subject-matters that chiefly engaged his attention."

"All his books, essays, notes, and reviews upon matters legal are marked by a clarity and a felicity of expression which is the touchstone of a master of his craft; and there are one or two passages in some of his essays which reach a high level of eloquence and beauty. The literary quality of his work is due to the extent and variety of his learning in many other subjects besides law. He was an accomplished linguist who could write verses in Latin, Greek, French and German; he knew something of Eastern languages; and he was a philosopher, an historian, and something of a mathematician. He bore his great learning lightly, and, having a subtle sense of humour, he used his literary gifts to produce the witty parodies and other humorous verses which are published in Leading Cases done into English, and in the volume entitled Outside the Law."

"A short time after my father's death I was surprised, indeed a little staggered, to hear an accomplished Oxford professor call him "the most learned man since Bacon.""

"He had read almost every important book on these subjects and, although he had not Acton's miraculous visual memory for books, he never forgot what he read and always had the facts ready in his mind. His Introduction to Political Science has remained what it was on publication, the best book on the subject. Though not a professed Shakespearean scholar, he had the bulk of Shakespeare's plays so incrusted in his memory that he hardly ever had need to refer to the text and was the originator of more than one illuminating emendation. His knowledge of mediæval and of classical history was complete: it was superior to Acton's in that to him they were always living subjects... On balance, and saving alone modern history in its fullest sweep, I am driven to the conclusion that my father's learning was barely, if it all, less than that of so renowned a man as Acton and in some respects greater."

"Pollock was perhaps the last representative of the "old broad culture." To take only his literary recreations, he easily and habitually wrote verse in Latin, Greek, French, German, and Italian, he was a brilliant parodist of the English poets from Chaucer down to his friend Swinburne (as in his well-known Leading Cases), and he had quite a fair acquaintance with Persian and Sanskrit. He was an active and prominent member of the Rabelais Club. In addition he was well read in philosophy, and was a respectable mathematician. He was more of a celebrity in Europe and in the United States than here."

"the New England natives used neither silver nor gold. Instead, they used the most appropriate money to be found in their environment – durable skeleton parts of their prey. Specifically, they used wampum, shells of the clam Venus mercenaria and its relatives, strung onto pendants."

"Only a handful of tribes, such as the Narragansetts, specialized in manufacturing wampum, while hundreds of other tribes, many of them hunter-gatherers, used it. Wampum pendants came in a variety of lengths, with the number of beads proportional to the length. Pendants could be cut or joined to form a pendant of length equal to the price paid. Once they got over their hangup about what constitutes real money, the colonists went wild trading for and with wampum. Clams entered the American vernacular as another way to say “money”. The Dutch governor of New Amsterdam (now New York) took out a large loan from an English-American bank – in wampum. After a while the British authorities were forced to go along. So between 1637 and 1661, wampum became legal tender in New England. Colonists now had a liquid medium of exchange, and trade in the colonies flourished. The beginning of the end of wampum came when the British started shipping more coin to the Americas, and Europeans started applying their mass-manufacturing techniques."

"Barter works well at small volumes but becomes increasingly costly at large volumes, until it becomes too costly to be worth the effort. If there are n goods and services to be traded, a barter market requires n^2 prices."

"On a larger scale, the Laffer curve may be the most important economic law of political history. Charles Adams uses it to explain the rise and fall of empires."

"Clock time is a fungible measure of sacrifice. Of all measurement instruments, the clock is the most valuable because so many of the things we sacrifice to create are not fungible. The massive clock towers of Europe, with their enormous loud and resonant bells, broadcasting time fairly across the town and even the countryside, rather than the last relics of the medieval, were the first building block of the wealthy modern world. The Europeans evolved their institutions and deployed two very different but complementary timekeeping devices, the sandglass and the mechanical clock, to partition the day into frequently rung and equal hours. Europe progressed in a virtuous circle where bells and clocks improved the productivity of relationships; the resulting wealthy institutions in turn funded more advances in timekeeping... The massive change on the farm, the dominant form of industry, in the 14th and successive centuries from serfdom and slavery to markets and wage labor, was caused not only by the temporary labor shortages of the Black Plague, but more fundamentally and permanently by the time-rate contract and the new ability to accurately and fairly verify its crucial measurement of sacrifice, time. Time rates also became the most common relationship for the mines, mills, factories, and other industries that rapidly grew after the advent of the clock."

"Nevertheless, this nice fiction allowed the United States to avoid creating a real locus of sovereignty by creating a fictional sovereignty to satisfy the Romanists. Sovereignty, under this doctrine, is vested in "We The People." Some of this political power is granted, charter-like, to the United States federal government. The rest is granted (per the 10th Amendment) "to the States, or to the people, respectively" -- that is to each State and to individuals. In reality, political power is distributed amongst the federal government, states, counties, and munipalities, with a variety of enumerated and unenumerated rights that these governments may not infringe being retained by private persons."

"Rug the spammers."

"All banks go bankrupt"

"It's very unusual for the framers' predictions to come true that precisely, and when they do we have to ask ourselves. Some day, we will no longer be alive, and we will go wherever it is we go, the good place or the other place, and we may meet there Madison and Hamilton. And they will ask us, 'When the president of the United States acted to corrupt the structure of the republic, what did you do?' And our answer to that question must be that we followed the guidance of the framers, and it must be that if the evidence supports that conclusion, that the House of Representatives moves to impeach him."

"Terry Gross: "Are you playing any official or unofficial role on Harvard's legal strategy or decision-making?" Noah Feldman: "No. The university follows a good policy of creating a wall between its lawyers who represent it and its law faculty who have lots of ideas about how it should be represented. So my primary role is as a constitutional scholar, analyzing the issues, writing about them, speaking about them. And that's the right job for me in this moment.""

"A year ago, Harvard's commencement, our graduation, was really, in a significant way, disrupted by students protesting, including some faculty protesting, marching out of the graduation, speakers denouncing the president and the corporation of Harvard, which is what we call our board of directors. This year, commencement was pretty much the polar opposite. There was literally a standing ovation for our president, Alan Garber, when all he had done was come up to the podium. And speaker after speaker hinted at the importance of supporting the university. So what's happened is that Donald Trump's assault on the university has led to a deep unification of the campus. And that's an important transformation from a year ago. I would say it's a fundamental transformation."

"Terry Gross: "The attacks on Harvard started with the task force commissioned by Trump to address antisemitism on campus. And, you know, this has led to cancellation of billions of dollars in grants and contracts to Harvard. But didn't Harvard reach a settlement with Trump over antisemitism?" Noah Feldman: "No. Let me tell the story a little bit differently. I think, really, what we're facing now started with the testimony in Congress of Harvard's president and a couple of other university presidents in which they were pushed very hard on a series of hypothetical questions about how the campus manages free speech in the context of protests. That put a target on Harvard's back, and the Trump administration has been pushing very, very hard since they came into office to exploit the perception - in my view, the incorrect perception - that Harvard is some sort of hotbed of bias, antisemitism and Islamophobia in order to bring about a fundamental attack on higher education with the stated goal - this is their stated goal - of making the university align itself with the administration's beliefs and priorities, which is a clear violation of the First Amendment. What's more, Harvard hasn't reached any settlement of any kind with the Trump administration. There was a lawsuit brought by a small number of students alleging that Harvard had not sufficiently protected the environment against antisemitism. And that was settled by the university before the Trump administration even came into office.""

"Terry Gross: One of Trump's justifications for canceling government contracts is that he accused Harvard as being a breeding ground - I'm quoting here - "breeding ground for virtue signaling and discrimination." How do you interpret that?" Noah Feldman: "Well, first thing I would say is that it's wrong. You know, it's always hard to understand exactly what is meant when you're being maligned, but, you know, you know the feeling. You know the idea that even a dog knows the difference between being tripped over and being kicked? Well, that's someone kicking us. One piece of relevant background here is that Harvard was one of the parties in the Supreme Court case - the SFFA case - in which the Supreme Court, for the first time in nearly 50 years, overturned the idea that racial diversity was a permissible rationale to use in college admissions. And the Trump administration, in all of its rhetoric, has been referring, subsequently, to the perfectly lawful use of diversity as it existed from 1978 and really before then, until just, you know, a year or so ago as, quote-unquote, "discrimination." I think that's the rhetorical move there. And Harvard is no more a breeding ground for that point of view than all of the other universities in the country, essentially all, which used exactly the same admissions procedures. It's just that it's easier for Trump to make headlines by attacking Harvard over that." Terry Gross: "That's probably part of the reason why many other universities are worried right now." Noah Feldman: "There are a lot of reasons for universities to be concerned. If Trump can go after the oldest university in the United States, one of the most significant in terms of its endowment and its academic legacy and its prestige, then he can really go after any similar university. And so all universities, I think, have very, very good reason to be concerned because going after a university is one of the things in the playbook of someone who's trying to erode democratic values and who wants to be at least dictatorial, if not a dictator. Universities are a place for the preservation of free expression, free ideas and free beliefs. They've always been that. And so in any country where someone is trying to break that norm of freedom, the universities are a very important target, and that's been true historically.""

"Terry Gross: "So what do you think Trump's attacks on Harvard are really about?" Noah Feldman: "Donald Trump usually has a kind of short-term self-interest objective and then a broader-term aggrandizement objective. In the short term, his self-interest is to make a headline, to make a populist headline that says, Donald Trump is going after those liberals at Harvard University, which might please some of his supporters and, probably more important to Donald Trump, is intended to shed fear or to cast fear on everyone in higher education and, more broadly, everyone who doesn't agree with his policies. You know, it's part of the idea that every day we should wake up and listen to the radio or look at the newspaper and discover that the Trump administration has gone after some opponent in some way that makes it really hard to stand up to Donald Trump. So I think that's the short-term objective. The longer-term objective, though, is part of Trump's overall assault on our democratic values and institutions. And you can see that the institutions that he likes to go after are places like universities, institutions like the press and the courts, which are institutions that are all devoted to independent judgment and independent thinking. We need independent universities. We need an independent press. And, of course, we need independent courts. And Trump doesn't like independence because independent institutions can say no to him. And the more he can weaken the independence of those institutions, the more he can make his agenda the dominant agenda. And ultimately, this is about Trump trying to impose his view of the world on everybody else.""

"Harvard Law Prof. Noah Feldman's testimony during Wednesday's impeachment hearing took a turn for the mystical Wednesday afternoon, when he seemed to claim that impeaching President Trump was necessary so that lawmakers would be able to answer to Alexander Hamilton and James Madison when they bump into them in the afterlife. Feldman was fielding questions from attorney Norm Eisen, who questioned witnesses at the behest of House Judiciary Committee Chairman Rep. Jerrold Nadler, D-N.Y., when he claimed that Trump's actions were exactly what the framers of the Constitution forewarned. Immediately prior to the morbid warning, Feldman claimed he had been an "impeachment skeptic" when Robert Mueller's Russia report came out. But he said that changed after President Trump's July 25 phone call with Ukrainian President Volodymyr Zelensky that resulted in the impeachment inquiry due to suspicion that the president sought help in investigating political rivals."

"Individual rights have been recognized by our jurisprudence only after long and costly struggles. They should not be struck down by anything less than the gravest necessity. We assent to their temporary suspension only to the extent that they constitute a clear and present danger to the effective prosecution of the war and only as a means of preserving those rights undiminished for ourselves and future generations. Before giving such an assent, therefore, we should be convinced of the existence of a reasonable necessity and be satisfied that the suspension is in accordance with the legislative intention."

"Common sense and justice dictate that a citizen accused of a crime should have the fullest hearing possible, plus the opportunity to present every reasonable defense. Only an unenlightened jurisprudence condemns an individual without according him those rights. Such a denial is especially oppressive where a full hearing might disclose that the administrative action underlying the prosecution is the product of excess wartime emotions."

"Experience demonstrates that in time of war individual liberties cannot always be entrusted safely to uncontrolled administrative discretion. Illustrative of this proposition is the remark attributed to one of the members of petitioner's local board to the effect that "I do not have any damned use for Jehovah's Witnesses." The presumption against foreclosing the defense of illegal and arbitrary administrative action is therefore strong."

"Criminal punishment for disobedience of an arbitrary and invalid order is objectionable regardless of whether the order be interlocutory or final."

"That an individual should languish in prison for five years without being accorded the opportunity of proving that the prosecution was based upon arbitrary and illegal administrative action is not in keeping with the high standards of our judicial system. Especially is this so where neither public necessity nor rule of law or statute leads inexorably to such a harsh result. The law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution. I can perceive no other course for the law to take in this case."

"This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over "the very brink of constitutional power" and falls into the ugly abyss of racism."

"The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so "imme diate, imminent, and impending" as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast "all persons of Japanese ancestry, both alien and non-alien," clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an "immediate, imminent, and impending" public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law."

"It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption."

"The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices-the same people who have been among the foremost advocates of the evacuation.'"

"No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow."

"No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was is sued; and the last of these "subversive" persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be."

"Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals."

"I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution."

"Murphy fought against discrimination in many forms. He was the first justice to include the word "racism" in an opinion, in his vehement dissent in Korematsu v. United States (1944). In Falbo v. United States (1944), he wrote, "The law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution.""