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Keith E. Whittington

@kewhittington.bsky.social
11K followers 127 following 440 posts

David Boies Professor of Law, Yale Law School. Founding Chair, Academic Freedom Alliance; Visiting Fellow, Hoover Institution. All opinions are mine alone. Personal website at keithewhittington.com

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Keith E. Whittington @kewhittington.bsky.social · 26/07/2026
What fresh hell is this? (The “primary text” by me does not exist)
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Keith E. Whittington @kewhittington.bsky.social · 21/07/2026
New episode of the Academic Freedom Podcast. Conversation w/ lead attorney in the Stop WOKE Act case recently decided by the 11th circuit. one of the most important academic freedom cases in recent years www.podbean.com/ew/pb-icchs-...
podbean.com
On the Pernell Decision: Stopping the Stop WOKE Act
Keith Whittington is joined by Greg Greubel, a senior attorney at the Foundation for Individual Rights and Expression (FIRE) and one of the lead attorneys who argued the case against Florida’s Stop W....
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Keith E. Whittington @kewhittington.bsky.social · 18/07/2026
Big sale on both the hardback and the kindle versions of The Impeachment Power. Seems like something one might want www.amazon.com/Impeachment-...
amazon.com
The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool
The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
But hard to uphold w/o gutting any meaningful academic freedom protections. And even striking down is going to leave space for a policy response, which is often true of judicial review 16/16
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
This dissent isn’t only way to do it but does indicate that this case is on the frontier of existing law & not hard to see how courts could talk themselves into upholding. 15/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Also dissent leverages the Bob Jones case which endorsed stripping tax status from university on basis of race policies. A precedent that is getting more love these days but I doubt does any real work or provide limiting principle 14/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Dissent notes that academic freedom doctrine is very vague and never been used to strike a law like this. True though law itself is unusual. But right that this pushes courts to act where they’ve preferred not to 13/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Given that basic orientation, dissent doesn’t care that this is from politicians and involves blanket speech ban. Still the govt classroom. Good law in 1940 but dramatic claim now 12/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Dissent doesn’t quite go govt speech route but similar results. Profs are hired to convey the govt message when they are performing work duties. No space for academic freedom there 11/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Dissent argues that even under current doctrine, govt interests always trump profs regarding classroom speech. Dissent claims she’s not but effectively applies Garrcetti to profs. Speech as part of work duties gets no real protection 10/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Of particular note, dissent dismisses academic freedom doctrine as modern made-up law unknown in 19th century. Others likely to find this compelling 9/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
After a bit more time with the dissent, grim but I’m sure other judges and some justices might well agree 8/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Congrats to @aclu.org and @thefireorg.bsky.social which argued the cases
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
A lot at stake for 1st amendment academic freedom in this case. Profs win this one 6/6
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Also worth noting majority emphasizes difference between politicians and the university as such. Might well leave door open to interventions by trustees and university presidents 5/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Worth pointing out majority distinguishes higher ed from k-12, which I think doctrine requires. State has more room to control classroom speech in k-12. 4/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Majority opinion pretty much runs through same arguments I made in my book, so it is obviously correct 3/ www.amazon.com/You-Cant-Tea...
amazon.com
Amazon.com
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
Given how oral arguments played, not entirely surprised there is a dissent that would uphold the Stop WOKE Act applications to classroom speech. But dissents view very sweeping in gutting academic freedom 2/
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Keith E. Whittington @kewhittington.bsky.social · 07/07/2026
After a long wait, circuit court rejects Florida’s defense of barring profs at public universities from espousing disfavored ideas in the classroom 1/
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Keith E. Whittington @kewhittington.bsky.social · 30/06/2026
i confess to being quite wrong about how badly Trump would lose the birthright case. The administration got far more votes than I would have expected.
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
Admittedly, the paper might be a bit long but sometimes it takes some explanation & evidence to clarify things. 13/13
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
The 39th Cong GOP understood that if governing politicians could exclude native-born children from citizenship b/c their parents were regarded as unfit to be members of the political community the consequences would be grim. They rejected such a rule of citizenship. 12/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
The 39th Cong GOP did care about loyalty, but citizenship was not where they attempted to take that into account. When talking about citizenship, they were universalistic & absolute. When talking about voting & political rights, they wanted to reward the loyal & punish the disloyal. 11/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
As Sen. Trumbull, the author of the 1866 Civil Rts Act citizenship clause, admitted, the 14th Amend version was "better," less clumsy at communicating the rule that the common law embodied & that both statute and amendment were meant to declare. The rule is the same, but the new text is clearer. 10/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
The members of the 39th Congress sometimes argued about who was subject to the law, and therefore owed allegiance to it (such as members of Indian tribes), but there was no disagreement about the logic of the rule at play, just about the facts of its application. 9/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
To ask whether someone has the requisite allegiance in order to know whether that person is subject to the jurisdiction is to put the cart before the horse. Individuals do not get to decide whether they want to obey the law to which they are subject; the sovereign demands "allegiance." 8/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
Within the language of law from Coke through Reconstruction, "allegiance" was simply duty to obey the lawful sovereign. If you were subject to the law you owed allegiance to that legal authority. It was not a prerequisite to jurisdiction; it was what followed from being subject to jurisdiction 7/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
The members of the 39th Congress that drafted the 14th were very clear that they merely meant to codify & entrench the established rule so that it could not be altered in the future by courts or politicians. 6/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
The king could extend additional protections & privileges & those permissions to enemies, merchants, consults, & others supplemented the common law baseline but private aliens from countries not at war w/ England did not need any special permission to be under the law. 5/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
Being subject to the law & under the protection of the English king simply meant being amenable to judicial proceedings. Aliens who had not been declared outlaws or who were not actively at war w/ England were under the law of the land. In modern parlance, they were subject to the jurisdiction. 4/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
The English rule extending from Coke to Blackstone applied to anyone born on actually governed English land & subject to English law regardless of the alien status of the parent. By common law a natural-born subject of a Spanish king gave birth in England, the child was English (and vice versa). 3/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
The paper further examines original meaning of native-birth citizenship rule as it existed in English common law & as discussed in 39th Congress that drafted the 14th Amendment. It concludes that the constitutional rule extends citizenship to anyone born in the US while subject to American law 2/
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Keith E. Whittington @kewhittington.bsky.social · 17/06/2026
Not doing much social media these days, but will note that I have a new paper with @btkeener.bsky.social posted on SSRN on birthright citizenship. Can be found at papers.ssrn.com/sol3/papers.... 1/
papers.ssrn.com
Demystifying Birthright Citizenship
<div> Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutiona
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Keith E. Whittington @kewhittington.bsky.social · 03/06/2026
Short answer -- the Indiana statue will create an implementation mess and has serious vagueness and conceptual problems that degrade rather than improve free inquiry From the article:
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Keith E. Whittington @kewhittington.bsky.social · 03/06/2026
The second article focuses on academic freedom implications of Indiana's "intellectual diversity mandate" and associated features of the recent statute regulating public university teaching in the state. www.repository.law.indiana.edu/ilj/vol101/i...
repository.law.indiana.edu
The Addison C. Harris Lecture: Intellectual Diversity Mandates and the Freedom to Teach
This Essay provides the first examination of the Indiana Senate Bill 202, which was adopted into law in the spring of 2024. The new law imposes an “intellectual diversity” mandate on public university...
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Keith E. Whittington @kewhittington.bsky.social · 03/06/2026
From the conclusion of the "subject to the jurisdiction" article with James Heilpern. In short, within the legal community of 1868, this kind of language simply meant within the governing authority of the US. Of course, both undocumented aliens and temporary visitors are.
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Keith E. Whittington @kewhittington.bsky.social · 03/06/2026
One focuses on the meaning of the "subject to the jurisdiction" language in the 14th Amend citizenship clause at issue in the birthright case. What did this mean in the legal discourse of the mid-19th century? journals.law.harvard.edu/jlpp/subject...
journals.law.harvard.edu
“Subject to the Jurisdiction” as Legal Text – James A. Heilpern & Keith E. Whittington
The overwhelming weight of evidence indicates that “subject to the jurisdiction” was not used to refer to, or make use of, concepts of “allegiance” but rather was routinely used to describe the cir…
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Keith E. Whittington @kewhittington.bsky.social · 03/06/2026
As noted in this Volokh Conspiracy post, I have two new articles now out reason.com/volokh/2026/...
reason.com
More on Birthright Citizenship and Intellectual Diversity Mandates
Two new articles now available. One on the conventional legal meaning of "subject to the jurisdiction" in nineteenth century legal discourse. The other on Indiana's intellectual diversity mandate for ...
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Keith E. Whittington @kewhittington.bsky.social · 19/04/2026
open.substack.com/pub/bradwend.... Worth a read
open.substack.com
Some Thoughts on John Eastman’s Disbarment
After a long series of proceedings, including a trial and appeal to the California Supreme Court, John Eastman was disbarred. We don’t yet have a formal opinion affirming the recommendation of the Cal...
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Keith E. Whittington @kewhittington.bsky.social · 08/04/2026
Lost opportunity to put "falsely shouting" right there in the headline www.hollywoodreporter.com/movies/movie...
hollywoodreporter.com
Three Arrested After Yelling “Gun” in Crowded Movie Theater for Social Media Prank
The movie theater prank saw three young men cause "a false disturbance to generate a reaction they could film," according to Durham Regional Police of an incident at a Landmark Cinemas theater in Whit...
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Keith E. Whittington @kewhittington.bsky.social · 08/04/2026
Sigh. maybe I’ll add a couple of 25th slides to the impeachment power class
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Keith E. Whittington @kewhittington.bsky.social · 08/04/2026
Just a little military operation
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Keith E. Whittington @kewhittington.bsky.social · 08/04/2026
Ok, yes. I added a new slide for my con law class tomorrow on commander in chief authority over the conduct of war
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Keith E. Whittington @kewhittington.bsky.social · 06/04/2026
Available instantly on kindle, in case you’re in a hurry The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool a.co/d/0gWO8Rie
a.co
The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool
The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool - Kindle edition by Whittington, Keith E.. Download it once and read it on your Kindle device, PC, phones or tablets. Use features like bookmarks, note taking and highlighting while reading The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool.
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Keith E. Whittington @kewhittington.bsky.social · 01/04/2026
oh! so good
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Keith E. Whittington @kewhittington.bsky.social · 01/04/2026
Sure, but we knew what he meant!
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Keith E. Whittington @kewhittington.bsky.social · 01/04/2026
Though Marshall Court would have let it go on for days
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Keith E. Whittington @kewhittington.bsky.social · 01/04/2026
Sauer is often dealt a poor hand by his boss, but he's a pretty impressive advocate
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Keith E. Whittington @kewhittington.bsky.social · 01/04/2026
media.tenor.com
two knights are standing in the woods and one of them is saying i 've had worse .
ALT: two knights are standing in the woods and one of them is saying i 've had worse .
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Keith E. Whittington @kewhittington.bsky.social · 01/04/2026
If TV courtroom dramas have taught me anything, it is that people can jump up from their seats in the gallery and interject whenever they want. Which could be fun.
media.tenor.com
a cartoon of a judge sitting at a table saying " i 'll allow it "
ALT: a cartoon of a judge sitting at a table saying " i 'll allow it "
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