Thank you for this sharp and necessary piece. It’s astonishing how quickly these firms surrendered; not just their principles, but their leverage.
I write about this kind of institutional capitulation often — how power reshapes speech, how legal and financial systems quietly enable authoritarian drift. What’s happening here isn’t just about lawyers. It’s about the machinery of compliance dressed up as professionalism.
There’s a reason I don’t place much faith in legal institutions. Too often, they follow power, not justice, especially when the incentives are financial.
This moment demands clarity, not cleverness. And your reporting helps cut through the fog.
Johan, no one should place too much faith in any person with power. We all should always bear in mind James Madison's wise warning about what it means to be blessed with the burdens of our constitutional democracy/republican government:
"A popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both. Knowlege will for ever govern ignorance: and a people who mean to be their own Governours, must arm themselves with the power which knowledge gives."
The actions of Trump here and elsewhere (including Trump's retaliation against cirtics with lawsuits and the FCC retaliating against Kimmel) is very much like the Federalist frenzy to retaliate against critics under the Alien and Sedition Act of 1798, regarding which Madison emphasized:
Retaliation by public servants for criticism of their purported public service exercises "a power not delegated by the constitution, but [even] expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which [always was] deemed the only effectual guardian of every [American] right."
Thank you for this rich and historically grounded response. Madison’s warnings still resonate, but we’re at a point where inherited wisdom alone isn’t enough.
As a professor with a background in behavioral economics and applied cognitive theory, I don’t place faith in institutions, individuals, or even ideals. I study incentives.
Power doesn’t corrupt in theory, it corrupts in practice, when the surrounding structures reward compliance and punish dissent.
The question isn’t whether we trust those in power. It’s how we build systems that make abuse less rewarding, and truth more resilient. That’s the real work.
I explore this in my recent article on speech; not as abstraction, but as action. If we want to preserve democratic discourse, we need more than reverence for the past. We need frameworks that reflect how people actually behave, how power actually operates, and how speech is weaponized in real time.
So here’s the sharper question I’d pose back:
What kinds of incentives and institutional designs actually protect truth…not just in theory, but in the messy, motivated, cognitively biased world we live in?
Johan, rest assured the point of highlighting warnings, admonitions and explanations of the people who wrote and ratified our Constitution most certainly is not advocating merely resting on "inherited wisdom" or merely resting on anything.
By emphasizing our "burden," above, which Madison had emphasized, I was emphasizing that, from the outset, our constitutional democracy/republican government was expected (even designed) to require "real work," as you say, by the people themselves. That is, as Madison emphasized in my second quotation, the precise principle behind the First Amendment. We the People (in every generation) must actually work for our own liberty, even fight for our own liberty.
SCOTUS, itself, expressly acknowledged that particular constitutional duty which was imposed on the people by our own Constitution. The First Amendment does not merely secure a "right" and a "privilege," it imposes a "duty" on the people. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (https://www.oyez.org/cases/1963/39) a unanimous SCOTUS emphasized (often quoting Madison) the following.
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
One reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” individual “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
“Criticism of" any "official conduct does not lose its constitutional protection merely because it is effective criticism” and “diminishes [officials'] official reputations.” All “public men” are essentially “public property,” so “discussion cannot be denied and the right” and “duty” of “criticism must not be stifled.”
Public servants usurping the power to punish people for speech/petitions exposing or opposing official conduct “reflect[s] the obsolete [seditious libel] doctrine that the governed must not criticize their governors.” “The interest of the public” in the truth about purported public servants “outweighs the interest” of “any [offended] individual. [Clearly,] protection of the public requires” both “discussion” and “information” about the purported public service of our purported public servants.
“(I)t is a prized American privilege to speak one’s mind” on “all public institutions.” “[T]his opportunity” must “be afforded” for “vigorous advocacy” in litigation. (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963) (“the First Amendment” necessarily “protects vigorous advocacy” in litigation “against governmental intrusion”)).
All public servants must protect all Americans’ “privilege for criticism of official conduct.” All public servants must “support” the “privilege for the citizen-critic of government.” Such “privilege is required by the First and Fourteenth Amendments.” In fact:
"freedom of expression upon public questions is secured [as a] constitutional safeguard to assure unfettered interchange of ideas [to bring about] political and social changes desired by the people. [ F]ree political discussion [so] that government may be responsive to the will of the people and that changes may be obtained by lawful means[ is] essential to the security of the Republic [and] is a fundamental principle of our constitutional system."
Thank you for this deeply informed and principled response. I agree with your framing: Madison’s emphasis on the burden of self-governance is foundational, and the First Amendment was never meant to be passive. It’s a duty, not just a right.
But here’s where I push further. As a researcher of behavior and cognition, I study how people actually behave—not how we wish they would. And the truth is, our constitutional ideals often collide with the messy realities of cognition, motivation, and power.
Kahneman, Tversky, and generations of cognitive scientists have shown that humans are not rational actors in a marketplace of ideas. We’re biased, tribal, and easily manipulated, especially when incentives reward distortion and platforms amplify outrage.
So while I respect the constitutional scaffolding, I’m focused on the lived experience:
What systems actually protect truth? What incentive structures make integrity more rewarding than compliance?
That’s the heart of my recent article on speech—not as abstraction, but as action. If we want to preserve democratic discourse, we need frameworks that reflect how speech is weaponized, how power operates, and how people process information in real time.
What institutional designs and incentive structures actually protect truth…not just in theory, but in the cognitively biased, politically volatile world we live in (and admitting this is a different world than the one from centuries ago)?
Johan, your concerns and interests reminded me of the words of Justice Jackson (writing for the SCOTUS majority) when he addressed similar issues in West Virginia State Board of Education v. Barnette in 1943.
SCOTUS emphasized that it is actually "our duty" (at least, of lawyers and judges, but actually all Americans) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century." "These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to" the "soil" of our country in our time.
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
[Clearly,] the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
Thank you for this powerful reminder…Jackson’s words still cut through the noise with astonishing clarity. His insistence on translating the Bill of Rights into concrete restraints is exactly the kind of behavioral accountability I’ve been writing about. Rights aren’t just ideals; they’re tools to limit power, especially when that power is cloaked in legitimacy.
And yet, we’ve seen how easily these are bypassed when institutions prioritize loyalty over law. The machinery of compliance, dressed up as professionalism, has made it easier to coerce consent than to earn it. Jackson warned us: the elimination of dissent doesn’t begin with violence, it begins with normalization.
I appreciate you bringing this into the conversation.
It’s a reminder that the Constitution was meant to be a living restraint, not a ceremonial relic.
— Johan
Professor of Behavioral Economics & Applied Cognitive Theory
Johan, in other words, I agree with you that "real work" is required by each of us now. Part of that real work that is required is learning to really understand what our Constitution was designed to do. It takes real work to learn how to support and defend our Constitution and to learn how our Constitution supports and defends our liberty and safety.
Johan, your expressions cause me concern. You seem to be dismissing our Constitution and the phenomenal actual work and outstanding thoughts of the people who made it what it is. For example, you say "constitutional ideals often collide with the messy realities of cognition, motivation, and power" and "while I respect the constitutional scaffolding, I’m focused on the lived experience."
The people who wrote and ratified our Constitution and our Bill of Rights did not merely presume or pretend that having "parchment barriers" would suffice. In Federalist No. 48, Madison emphasized, "What [our] security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?" Even asking his final question suggested his answer.
I'd recommend that you read at least some of the most relevant parts of The Federalist Papers. They were written mostly by James Madison (famed as the Father of the Constitution and even the Father of the Bill of Rights) and Alexander Hamilton with some early assistance by John Jay (who became SCOTUS Chief Justice). The Papers are available on-line https://guides.loc.gov/federalist-papers/full-text, so they can be searched fairly easily by each group of 10.
You might be impressed to learn just how often and deeply the people who wrote and ratified our Constitution thought about the issues you think about. Search for terms like nature (as in human nature), motive, ambition/ambitious, party, faction, power (esp. abuse or usurp), demagogue, tyranny/tyrant. They studied and thought a lot about human nature, and they very carefully and very thoroughly designed our Constitution to actually work for us every day for hundreds of years to prevent one of the problems they worried about and worked to prevent the most.
In The Federalist No. 47, Madison said the following and much more:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many [is] the very definition of tyranny. . . . [T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. . . . Montesquieu [was famous for] saying ‘There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.”
In The Federalist No. 51, Madison explained how our Constitution was designed to oppose such tyranny (the very accumulation of powers we're witnessing today under Trump):
"the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people [who have the power to vote for or against and criticize public servants] is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."
Johan, I was intrigued by this portion of your comment:
“we’re at a point where inherited wisdom alone isn’t enough”
I agree.
I say inherited wisdom is irrelevant and people’s loyalty to it is doing more damage than benefit because the philosophy of a small group of elite white men 250 years ago is not at all relevant or useful to our current set of circumstances. And I say that continued loyalty to a document that was written with the idea that the neither the common people nor the government could be trusted is a recipe for the disaster that we now find ourselves in.
When a veteran who is buried on Madeline Island, Wisconsin has etched in his tombstone the quote “That government is best which governs least”, which the tombstone attributes to Thomas Jefferson, but Google attributes to Henry David Thoreau, this is an example of a firmly held position that the deceased wanted to make sure anyone who passed by his tombstone knew he held. That this quote is etched into the tombstone on a semi-remote island reminds us just how loyal a significant portion of the population has been to a philosophy of limited government.
It is that loyalty to the philosophy of limited government that the constitution is built on. Our constitution and thus our country is built on a foundation of distrust, exclusion and elitism.
The most destructive aspects of the original constitution are of course the 3/5 rule and the exclusion of women and blacks to vote, the structure of the Senate and the electoral college. Of course the Constitution was amended to address some of these issues. But the philosophy of distrust, exclusion and elitism has nearly always been the foundation of one of our political parties and that political party was able to appeal to voters who were more prone to distrust government and the role of government, distrust their neighbors and anyone they perceive as ‘other’, and see the world hierarchically instead of equitably.
And yet famous politicians insist we must remain loyal to the constitution, that loyalty to an outdated piece of paper is necessary to avoid chaos and lawlessness. How has that worked out for us?
When a nation of people returns a man who is a criminal, corrupt liar, and conman to the White House instead of a prison cell, all so he can crack down on immigration and lower taxes for billionaires and corporations, that’s a nation of people that is at war with itself. Only when we as a nation begin to understand that what we need to be most loyal to is our common humanity instead of a constitution that emphasizes laws and hierarchy over humanity, will we be able to declare the new civil war is over.
Matthew, thank you for highlighting these facts and for drawing attention to these deals on the heels of the filing of Trump's absurd lawsuit against more members of the press. My legal analysis of that the complaint in that lawsuit is that it wasn't even intended--by Trump or his lawyers--to prevail in a court of law under the governing law. As far as I could ascertain, Trump and his lawyers used that lawsuit for outright open and notorious extortion--much like Trump and his lawyers used other lawsuits previously.
The lack of details of the deals with law firms is more evidence that Trump is abusing his position as a purported public servant to shake down businesses. Trump has essentially turned the US government into the O in RICO. It seems that even was his point in laying off or firing all the people who lost their jobs because of Trump.
I for one am not surprised that "the very best lawyers in the country" are among the most corruptible. Our system of jurisprudence has been careening downward for a very long time. The path to big money and a big name for law firms has been increasingly paved with revolving door politics that has only served to undermine morality as a basis for the practice of law. And so, here we are.
Perhaps the managing partners didn't cave, so much as they're OK with giving Trump's admin free service? Maybe it isn't so much 'coercion' as it is 'cover'.
One of my doctoral students went to law school for a year before leaving to pursue an English PhD. Her decision came into sharp focus in a class where the professor presented a case of a couple who did not speak English very well whose landlord was trying to evict them for no clear reason. The professor asked where the students would start, and she considered checking how well they understood the lease and examining what was in it. Then, another student raised a hand and proclaimed, "I would ask if they had the money to pay me." The professor congratulated the student on getting the "right" answer.
Another friend, retired military, went to law school, and he and his wife had to move to do it. At the end of a week, he came home and told her, "I don't want to do this." He was turned off by the focus on winning as opposed to getting to the truth, which was unsurprising as he had worked in military policing, and the military system is geared for getting to the truth.
Clearly, there are some people who get law degrees who uphold the rule of law and believe in doing what is right. However, elite law schools turn out people like Marco Rubio, Ted Cruz, and J.D. Vance as well. And now we have seen elite law firms turn their backs on basic law. The system needs examination.
I've seen members of "the press" (and even lawyers representing members of the press) assert the peculiar argument (including in court documents) that "the press" is the only profession expressly identified in our Constitution because "the press" is identified in the First Amendment. Of course, the press is not the only profession expressly identified in our Constitution.
The first 10 amendments, which we call our Bill of Rights, expressly secures "the right" to have the Assistance of Counsel" (Sixth Amendment) in criminal cases. Moreover, as the dissenting opinion of Justices Sotomayor, Kagan and Jackson emphasized in 303 Creative v. Elenis in 2023, a "law partnership" necessarily is an act of association [protected by the First Amendment's security of freedom of association]. Its services (legal advocacy) were expressive; indeed, they consisted of speech." All litigation necessarily consists primarily of exercises of "the freedom of speech" and "the press" (the freedom of expression and communication secured by the First Amendment) by means of court filings and appearances in court.
Vastly more important, our Constitution expressly identifies attorneys in their crucial constitutional role as "judicial officers," and it imposes on them a crucial constitutional duty. Article VI expressly requires absolutely "all" the many "judicial Officers, both of the United States and of [all the] States" to be "bound by Oath or Affirmation, to support [our] Constitution" in all professional conduct. Of course, every attorney admitted to practice before any court is a judicial officer, and, of course, every such attorney is bound "to support [our] Constitution" in all professional conduct.
My point here is that deal or no deal, every attorney and every law firm is bound by their constitutional duty "to support [our] Constitution" in all professional conduct. In Cohen v. Hurley in 1961, Justices Black and Douglas and Chief Justice Warren issued a dissenting opinion to accentuate a similar principle:
The “important role” of “lawyers” in “our society” makes it “imperative that [lawyers] not be discriminated against” regarding “freedoms that are designed to protect” Americans “against the tyrannical exertion of governmental power. [Indeed,] the great purposes underlying [such] freedoms [include affording] independence to those who must discharge important public responsibilities. [Lawyers], with responsibilities as great as those placed upon any group in our society, must have that independence.”
I'm seriously starting to think that Trump hired Guiliani (a former US Attorney who prosecuted organized crime in NYC) at least in part to advise Trump on how to do "business" like a mob boss.
Funnily that is the exact quote that Judge Howard also used in her opinion declaring the order targeting the law firm Perkins Coie to be unconstitutional
The quotation is from the leader of an angry populist mob. The common people saw lawyers representing the rich and using words to cheat them. A similar anti-intellectual stance occurs in other mob scenes as well. In the U.S., we had a tradition of the heroic attorney taking on power. Some are still doing so. It is painful that so many others want to be of the powerful elite and do not care about their fellow citizens suffering.
Marc Elias is a hero for democracy. We need more such heroes. That is why I support Democracy Docket, which fights for free and fair elections. I support Democracy Forward, which takes on cases to defend democracy. I'm also a member of The Contrarians, where all profits go into Norm Eisen's work to defend democracy. There are actions that those of us who escaped law school can take to support the attorneys fighting for American democracy.
It's an interesting point! There are definitely a bunch of ethical rules that lawyers sign onto as part of joining the bar...though the extent to which those rules have real enforcement power in this context is another question
Just goes to show you the character -- or lack thereof -- of the Big Bucks lawyers in this country. It would have been a HELL of a lot nicer if they had VOLUNTEERED those 1,000,000 hours, pro bono, to people who needed them most but can't afford to pay. But we'll never see that. "Serves them right", one might say.
I wonder which will be the lucky firm who gets to defend him after he is impeached and then held accountable for treason and malfeasance?? Hope they choke on it.
Emil Bove and Todd Blanche tell me all I need to know about the ethics of the legal profession. That these firms caved, groveled and scraped is profoundly depressing but utterly unsurprising. Money uber alles.
Thank you for this sharp and necessary piece. It’s astonishing how quickly these firms surrendered; not just their principles, but their leverage.
I write about this kind of institutional capitulation often — how power reshapes speech, how legal and financial systems quietly enable authoritarian drift. What’s happening here isn’t just about lawyers. It’s about the machinery of compliance dressed up as professionalism.
There’s a reason I don’t place much faith in legal institutions. Too often, they follow power, not justice, especially when the incentives are financial.
This moment demands clarity, not cleverness. And your reporting helps cut through the fog.
Thank you.
— Johan
Professor of Behavioral Science
Johan, no one should place too much faith in any person with power. We all should always bear in mind James Madison's wise warning about what it means to be blessed with the burdens of our constitutional democracy/republican government:
"A popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both. Knowlege will for ever govern ignorance: and a people who mean to be their own Governours, must arm themselves with the power which knowledge gives."
https://founders.archives.gov/documents/Madison/04-02-02-0480
The actions of Trump here and elsewhere (including Trump's retaliation against cirtics with lawsuits and the FCC retaliating against Kimmel) is very much like the Federalist frenzy to retaliate against critics under the Alien and Sedition Act of 1798, regarding which Madison emphasized:
Retaliation by public servants for criticism of their purported public service exercises "a power not delegated by the constitution, but [even] expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which [always was] deemed the only effectual guardian of every [American] right."
https://founders.archives.gov/documents/Madison/01-17-02-0202
Thank you for this rich and historically grounded response. Madison’s warnings still resonate, but we’re at a point where inherited wisdom alone isn’t enough.
As a professor with a background in behavioral economics and applied cognitive theory, I don’t place faith in institutions, individuals, or even ideals. I study incentives.
Power doesn’t corrupt in theory, it corrupts in practice, when the surrounding structures reward compliance and punish dissent.
The question isn’t whether we trust those in power. It’s how we build systems that make abuse less rewarding, and truth more resilient. That’s the real work.
I explore this in my recent article on speech; not as abstraction, but as action. If we want to preserve democratic discourse, we need more than reverence for the past. We need frameworks that reflect how people actually behave, how power actually operates, and how speech is weaponized in real time.
So here’s the sharper question I’d pose back:
What kinds of incentives and institutional designs actually protect truth…not just in theory, but in the messy, motivated, cognitively biased world we live in?
— Johan
Johan, rest assured the point of highlighting warnings, admonitions and explanations of the people who wrote and ratified our Constitution most certainly is not advocating merely resting on "inherited wisdom" or merely resting on anything.
By emphasizing our "burden," above, which Madison had emphasized, I was emphasizing that, from the outset, our constitutional democracy/republican government was expected (even designed) to require "real work," as you say, by the people themselves. That is, as Madison emphasized in my second quotation, the precise principle behind the First Amendment. We the People (in every generation) must actually work for our own liberty, even fight for our own liberty.
SCOTUS, itself, expressly acknowledged that particular constitutional duty which was imposed on the people by our own Constitution. The First Amendment does not merely secure a "right" and a "privilege," it imposes a "duty" on the people. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (https://www.oyez.org/cases/1963/39) a unanimous SCOTUS emphasized (often quoting Madison) the following.
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
One reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” individual “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
“Criticism of" any "official conduct does not lose its constitutional protection merely because it is effective criticism” and “diminishes [officials'] official reputations.” All “public men” are essentially “public property,” so “discussion cannot be denied and the right” and “duty” of “criticism must not be stifled.”
Public servants usurping the power to punish people for speech/petitions exposing or opposing official conduct “reflect[s] the obsolete [seditious libel] doctrine that the governed must not criticize their governors.” “The interest of the public” in the truth about purported public servants “outweighs the interest” of “any [offended] individual. [Clearly,] protection of the public requires” both “discussion” and “information” about the purported public service of our purported public servants.
“(I)t is a prized American privilege to speak one’s mind” on “all public institutions.” “[T]his opportunity” must “be afforded” for “vigorous advocacy” in litigation. (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963) (“the First Amendment” necessarily “protects vigorous advocacy” in litigation “against governmental intrusion”)).
All public servants must protect all Americans’ “privilege for criticism of official conduct.” All public servants must “support” the “privilege for the citizen-critic of government.” Such “privilege is required by the First and Fourteenth Amendments.” In fact:
"freedom of expression upon public questions is secured [as a] constitutional safeguard to assure unfettered interchange of ideas [to bring about] political and social changes desired by the people. [ F]ree political discussion [so] that government may be responsive to the will of the people and that changes may be obtained by lawful means[ is] essential to the security of the Republic [and] is a fundamental principle of our constitutional system."
Thank you for this deeply informed and principled response. I agree with your framing: Madison’s emphasis on the burden of self-governance is foundational, and the First Amendment was never meant to be passive. It’s a duty, not just a right.
But here’s where I push further. As a researcher of behavior and cognition, I study how people actually behave—not how we wish they would. And the truth is, our constitutional ideals often collide with the messy realities of cognition, motivation, and power.
Kahneman, Tversky, and generations of cognitive scientists have shown that humans are not rational actors in a marketplace of ideas. We’re biased, tribal, and easily manipulated, especially when incentives reward distortion and platforms amplify outrage.
So while I respect the constitutional scaffolding, I’m focused on the lived experience:
What systems actually protect truth? What incentive structures make integrity more rewarding than compliance?
That’s the heart of my recent article on speech—not as abstraction, but as action. If we want to preserve democratic discourse, we need frameworks that reflect how speech is weaponized, how power operates, and how people process information in real time.
What institutional designs and incentive structures actually protect truth…not just in theory, but in the cognitively biased, politically volatile world we live in (and admitting this is a different world than the one from centuries ago)?
Johan, your concerns and interests reminded me of the words of Justice Jackson (writing for the SCOTUS majority) when he addressed similar issues in West Virginia State Board of Education v. Barnette in 1943.
SCOTUS emphasized that it is actually "our duty" (at least, of lawyers and judges, but actually all Americans) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century." "These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to" the "soil" of our country in our time.
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
[Clearly,] the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
Thank you for this powerful reminder…Jackson’s words still cut through the noise with astonishing clarity. His insistence on translating the Bill of Rights into concrete restraints is exactly the kind of behavioral accountability I’ve been writing about. Rights aren’t just ideals; they’re tools to limit power, especially when that power is cloaked in legitimacy.
And yet, we’ve seen how easily these are bypassed when institutions prioritize loyalty over law. The machinery of compliance, dressed up as professionalism, has made it easier to coerce consent than to earn it. Jackson warned us: the elimination of dissent doesn’t begin with violence, it begins with normalization.
I appreciate you bringing this into the conversation.
It’s a reminder that the Constitution was meant to be a living restraint, not a ceremonial relic.
— Johan
Professor of Behavioral Economics & Applied Cognitive Theory
Johan, in other words, I agree with you that "real work" is required by each of us now. Part of that real work that is required is learning to really understand what our Constitution was designed to do. It takes real work to learn how to support and defend our Constitution and to learn how our Constitution supports and defends our liberty and safety.
Johan, your expressions cause me concern. You seem to be dismissing our Constitution and the phenomenal actual work and outstanding thoughts of the people who made it what it is. For example, you say "constitutional ideals often collide with the messy realities of cognition, motivation, and power" and "while I respect the constitutional scaffolding, I’m focused on the lived experience."
The people who wrote and ratified our Constitution and our Bill of Rights did not merely presume or pretend that having "parchment barriers" would suffice. In Federalist No. 48, Madison emphasized, "What [our] security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?" Even asking his final question suggested his answer.
I'd recommend that you read at least some of the most relevant parts of The Federalist Papers. They were written mostly by James Madison (famed as the Father of the Constitution and even the Father of the Bill of Rights) and Alexander Hamilton with some early assistance by John Jay (who became SCOTUS Chief Justice). The Papers are available on-line https://guides.loc.gov/federalist-papers/full-text, so they can be searched fairly easily by each group of 10.
You might be impressed to learn just how often and deeply the people who wrote and ratified our Constitution thought about the issues you think about. Search for terms like nature (as in human nature), motive, ambition/ambitious, party, faction, power (esp. abuse or usurp), demagogue, tyranny/tyrant. They studied and thought a lot about human nature, and they very carefully and very thoroughly designed our Constitution to actually work for us every day for hundreds of years to prevent one of the problems they worried about and worked to prevent the most.
In The Federalist No. 47, Madison said the following and much more:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many [is] the very definition of tyranny. . . . [T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. . . . Montesquieu [was famous for] saying ‘There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.”
In The Federalist No. 51, Madison explained how our Constitution was designed to oppose such tyranny (the very accumulation of powers we're witnessing today under Trump):
"the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people [who have the power to vote for or against and criticize public servants] is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."
"they follow power, not justice" Beautifully said.
Johan, I was intrigued by this portion of your comment:
“we’re at a point where inherited wisdom alone isn’t enough”
I agree.
I say inherited wisdom is irrelevant and people’s loyalty to it is doing more damage than benefit because the philosophy of a small group of elite white men 250 years ago is not at all relevant or useful to our current set of circumstances. And I say that continued loyalty to a document that was written with the idea that the neither the common people nor the government could be trusted is a recipe for the disaster that we now find ourselves in.
When a veteran who is buried on Madeline Island, Wisconsin has etched in his tombstone the quote “That government is best which governs least”, which the tombstone attributes to Thomas Jefferson, but Google attributes to Henry David Thoreau, this is an example of a firmly held position that the deceased wanted to make sure anyone who passed by his tombstone knew he held. That this quote is etched into the tombstone on a semi-remote island reminds us just how loyal a significant portion of the population has been to a philosophy of limited government.
It is that loyalty to the philosophy of limited government that the constitution is built on. Our constitution and thus our country is built on a foundation of distrust, exclusion and elitism.
The most destructive aspects of the original constitution are of course the 3/5 rule and the exclusion of women and blacks to vote, the structure of the Senate and the electoral college. Of course the Constitution was amended to address some of these issues. But the philosophy of distrust, exclusion and elitism has nearly always been the foundation of one of our political parties and that political party was able to appeal to voters who were more prone to distrust government and the role of government, distrust their neighbors and anyone they perceive as ‘other’, and see the world hierarchically instead of equitably.
And yet famous politicians insist we must remain loyal to the constitution, that loyalty to an outdated piece of paper is necessary to avoid chaos and lawlessness. How has that worked out for us?
When a nation of people returns a man who is a criminal, corrupt liar, and conman to the White House instead of a prison cell, all so he can crack down on immigration and lower taxes for billionaires and corporations, that’s a nation of people that is at war with itself. Only when we as a nation begin to understand that what we need to be most loyal to is our common humanity instead of a constitution that emphasizes laws and hierarchy over humanity, will we be able to declare the new civil war is over.
Matthew, thank you for highlighting these facts and for drawing attention to these deals on the heels of the filing of Trump's absurd lawsuit against more members of the press. My legal analysis of that the complaint in that lawsuit is that it wasn't even intended--by Trump or his lawyers--to prevail in a court of law under the governing law. As far as I could ascertain, Trump and his lawyers used that lawsuit for outright open and notorious extortion--much like Trump and his lawyers used other lawsuits previously.
The lack of details of the deals with law firms is more evidence that Trump is abusing his position as a purported public servant to shake down businesses. Trump has essentially turned the US government into the O in RICO. It seems that even was his point in laying off or firing all the people who lost their jobs because of Trump.
Bottom line is they put profits before the law. May they all burn in hell.
I for one am not surprised that "the very best lawyers in the country" are among the most corruptible. Our system of jurisprudence has been careening downward for a very long time. The path to big money and a big name for law firms has been increasingly paved with revolving door politics that has only served to undermine morality as a basis for the practice of law. And so, here we are.
Perhaps the managing partners didn't cave, so much as they're OK with giving Trump's admin free service? Maybe it isn't so much 'coercion' as it is 'cover'.
Nice one!
One of my doctoral students went to law school for a year before leaving to pursue an English PhD. Her decision came into sharp focus in a class where the professor presented a case of a couple who did not speak English very well whose landlord was trying to evict them for no clear reason. The professor asked where the students would start, and she considered checking how well they understood the lease and examining what was in it. Then, another student raised a hand and proclaimed, "I would ask if they had the money to pay me." The professor congratulated the student on getting the "right" answer.
Another friend, retired military, went to law school, and he and his wife had to move to do it. At the end of a week, he came home and told her, "I don't want to do this." He was turned off by the focus on winning as opposed to getting to the truth, which was unsurprising as he had worked in military policing, and the military system is geared for getting to the truth.
Clearly, there are some people who get law degrees who uphold the rule of law and believe in doing what is right. However, elite law schools turn out people like Marco Rubio, Ted Cruz, and J.D. Vance as well. And now we have seen elite law firms turn their backs on basic law. The system needs examination.
I've seen members of "the press" (and even lawyers representing members of the press) assert the peculiar argument (including in court documents) that "the press" is the only profession expressly identified in our Constitution because "the press" is identified in the First Amendment. Of course, the press is not the only profession expressly identified in our Constitution.
The first 10 amendments, which we call our Bill of Rights, expressly secures "the right" to have the Assistance of Counsel" (Sixth Amendment) in criminal cases. Moreover, as the dissenting opinion of Justices Sotomayor, Kagan and Jackson emphasized in 303 Creative v. Elenis in 2023, a "law partnership" necessarily is an act of association [protected by the First Amendment's security of freedom of association]. Its services (legal advocacy) were expressive; indeed, they consisted of speech." All litigation necessarily consists primarily of exercises of "the freedom of speech" and "the press" (the freedom of expression and communication secured by the First Amendment) by means of court filings and appearances in court.
Vastly more important, our Constitution expressly identifies attorneys in their crucial constitutional role as "judicial officers," and it imposes on them a crucial constitutional duty. Article VI expressly requires absolutely "all" the many "judicial Officers, both of the United States and of [all the] States" to be "bound by Oath or Affirmation, to support [our] Constitution" in all professional conduct. Of course, every attorney admitted to practice before any court is a judicial officer, and, of course, every such attorney is bound "to support [our] Constitution" in all professional conduct.
My point here is that deal or no deal, every attorney and every law firm is bound by their constitutional duty "to support [our] Constitution" in all professional conduct. In Cohen v. Hurley in 1961, Justices Black and Douglas and Chief Justice Warren issued a dissenting opinion to accentuate a similar principle:
The “important role” of “lawyers” in “our society” makes it “imperative that [lawyers] not be discriminated against” regarding “freedoms that are designed to protect” Americans “against the tyrannical exertion of governmental power. [Indeed,] the great purposes underlying [such] freedoms [include affording] independence to those who must discharge important public responsibilities. [Lawyers], with responsibilities as great as those placed upon any group in our society, must have that independence.”
Rest assured, the Trump Protection Racket protects Trump only; there are no rules but childish whim.
I'm seriously starting to think that Trump hired Guiliani (a former US Attorney who prosecuted organized crime in NYC) at least in part to advise Trump on how to do "business" like a mob boss.
Roy Cohn replaced by a bottle of single malt scotch?
I saw a funny video about Trump ("Sayin' a Lie") set to "Stayin' Alive."
I couldn't help but think there ought to be one to Shakedown Cruise: https://youtu.be/i_4OITN0rkU
Hmm, wrong URL … but I just searched “sayin a lie.” Funny stuff—fatso falsetto flayed.
David, thank you for letting me know that I wasn't clear. The link was for Shakedown Cruise (I revised my comment to say so).
If my son were not an attorney, I’d be tempted to quote Shakespeare, “The first thing we do is, let’s kill all the lawyers”.
Funnily that is the exact quote that Judge Howard also used in her opinion declaring the order targeting the law firm Perkins Coie to be unconstitutional
The quotation is from the leader of an angry populist mob. The common people saw lawyers representing the rich and using words to cheat them. A similar anti-intellectual stance occurs in other mob scenes as well. In the U.S., we had a tradition of the heroic attorney taking on power. Some are still doing so. It is painful that so many others want to be of the powerful elite and do not care about their fellow citizens suffering.
Where is Atticus Finch when we need him? Actually, Marc Elias plays the role really well.
Marc Elias is a hero for democracy. We need more such heroes. That is why I support Democracy Docket, which fights for free and fair elections. I support Democracy Forward, which takes on cases to defend democracy. I'm also a member of The Contrarians, where all profits go into Norm Eisen's work to defend democracy. There are actions that those of us who escaped law school can take to support the attorneys fighting for American democracy.
Don’t lawyers have a licensing body that has rules about following the US Constitution??
Maybe you all should be submitting complaints to those bodies who have some power to reign in lawyers who break the laws.
It's an interesting point! There are definitely a bunch of ethical rules that lawyers sign onto as part of joining the bar...though the extent to which those rules have real enforcement power in this context is another question
It’s probably worth enquiring with a local bar association or the ABA.
IANAL (and I’m in Canada) but most professional associations and licensing bodies have ethics codes.
I’d be surprised if lawyers can just break laws without any consequence.
“arguably best lawyers” 🤣 Just because someone attended a fine law school and is paid a lot does not make them a good lawyer.
Just goes to show you the character -- or lack thereof -- of the Big Bucks lawyers in this country. It would have been a HELL of a lot nicer if they had VOLUNTEERED those 1,000,000 hours, pro bono, to people who needed them most but can't afford to pay. But we'll never see that. "Serves them right", one might say.
I wonder which will be the lucky firm who gets to defend him after he is impeached and then held accountable for treason and malfeasance?? Hope they choke on it.
Emil Bove and Todd Blanche tell me all I need to know about the ethics of the legal profession. That these firms caved, groveled and scraped is profoundly depressing but utterly unsurprising. Money uber alles.