Stanford Law School "Second-Order Constitutional Theory | Jan. 21" with Professor Aaron Tang
Second-Order Constitutional Theory
Wednesday, January 21, 2026
5:00 pm - 6:00 pm
Stanford Law School, Room 290
559 Nathan Abbott Way
Stanford, CA 94305 (map)
This event will be held in-person and is open to the public, but we kindly request that you register in advance. For more information on the event, please visit the event page.
In this constitutional conversation, Professor Tang will make the case for greater attention to the choice among second-order constitutional theories. He will argue that the second-order theory embraced by today’s Supreme Court—the 51-49 rule, under which each justice votes for the outcome they think is supported by more first-order evidence than any other outcome, no matter how slight the difference—is as responsible for the acrimony over today’s Court as the first-order clash between originalism and its competitors.
Aaron Tang is a law professor at the University of California, Davis and former law clerk to Justice Sonia Sotomayor. His academic writings have been published in journals such as the Stanford Law Review, Chicago Law Review, Columbia Law Review, and Pennsylvania Law Review, and his public writings have appeared in The New York Times, Washington Post, Los Angeles Times, The Atlantic, and elsewhere. He is the author of Supreme Hubris: How Overconfidence is Destroying the Court—and How We Can Fix It (Yale University Press, 2023), and he is the host and moderator of PBS’s newest, Emmy-nominated TV series, Breaking the Deadlock which Variety magazine called “more erudite than The West Wing and more intense than 24.”
Accommodations: If you require a disability-related accommodation, please contact Sheila Sanchez at disability.access@stanford.edu as soon as possible or at least 7 business days in advance of the event.
The Stanford Constitutional Law Center, led by Michael W. McConnell, grows out of the long and distinguished tradition of constitutional law scholarship at Stanford Law School. The Center carries on that tradition by directing attention to the most fundamental questions of constitutional order, especially the allocation and control of governmental power through law. It advances this mission through events and activities that foster scholarship, generate public discussion, attempt to transcend ideological divides, and provide opportunities for students to engage in analysis of the Constitution.
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Dear Professor Aaron Tang, Stanford Law Program Group, Professor Michael McConnell,
Greetings!
Thanks for your fascinating Stanford Constitutional Law "Second-Order Constitutional Theory" talk th Jan 21, 2026 - https://enews.law.stanford.
And further, as a very knowledgeable Professor of Law at UC Davis in Sacramento, California's state capital, ... and as I asked after your talk - and very great to meet you - how might MIT OCW-centric wiki World University and School (of which I'm the founder, president and CEO) both create 50 US states' WUaS Law Schools (partly as LLMs and partly to hire enormous numbers of lawyers and Stanford Law graduates and students with time) - AND become accredited by the ABA and similar in the US, AND with regards also to creating 200 online WUaS law schools, in each of all 200 countries and in their main languages (where US ABA law school accreditation or similar would likely be relevant for prospective students)? (A caveat and regarding WUaS California Law School seeking ABA accreditation "The American Bar Association (ABA) is the primary national agency for accrediting U.S. law schools, setting standards for curriculum, faculty, and bar passage rates, with most states requiring ABA approval for bar exam eligibility, though exceptions exist, notably in California, which accredits its own schools and allows graduates to take the state bar.") ... And all regarding developing LLMs for your eminently LLM-able Second-Order Constitutional Theory in some of these regards regarding teaching US Constitutional Law, in CA and around the US.
Regarding
WUaS Idea- and Academic Resources
Ideas
Ideas
I added after Sugam Sharma's May 11, 2023 Stanford Law CodeX online meeting -
"eLegalls.com is exploring adding the state of Iowa's Supreme Court documents and cases regarding generative AI and machine learning legal information technologies to Creative Commons' licensed Wikidata, as a backend structured knowledge database with querying, that you, Sugam Sharma Ph.D., (whom I, Scott GK MacLeod, communicated with at the May 11, 2023 Stanford Law CodeX online meeting) would like to work with at https://elegalls.com :
here -
Iowa Law School at WUaS: https://wiki.
... how further might we build out such LLMs of your Second-Order Constitutional Theory and WUaS Law Schools too ... in CC0 licensed Wikidata (and see PPPS) (which WUaS has been in since the mid 2010s, and is in ~342 active Wikipedia languages) as a backend structured knowledge database for further such AI and ML developments?
Thanks again,
Scott
Scott GK MacLeod
PS
Sugam Sharma, PhD
Founder
Founder
PPS
Wikidata is licensed under the Creative Commons Zero (CC0) public domain dedication, meaning all the structured data is free for anyone to use, reuse, and redistribute without attribution or licensing restrictions, making it completely open and interoperable.
PPPS
My Notes -
Breaking the Deadlock
Supreme Hubris
2nd order constitutional theory
Constitutionalism
Originalist vs competitors
McConnell
original orginatialist
prof Carlin is not an originalist
non originalists
most are pluralists
choice of what we put in 2nd bubble is key
talk about the two bubbles
originalism and the competitor
Decision theory:
1st order decisions and 2nd order decisions
In and out drive through restaurant example
none of the 2nd order strategies
relate to FACTS of the
1st order theory
what is the 49-51 rule
go with whatever side you think is relevant to your ...
legislative deference can be a 2nd order theory for 2nd order bubble to replace "Constitutional Pluralism"
In the Cruzan case ... re life support
In the Cruzan case ... re life support - Cruzan v. Missouri Dept. of Health (1990)
To have a fully developed legal decision making
a person must have 2 bubbles
Life Without Parole (LWOP) sentences example
Juvenile Life Without Parole (JLWOP) sentences involve imprisoning minors for life without parole, often for homicide, but Supreme Court rulings (like Miller v. Alabama) made mandatory JLWOP unconstitutional,
Heller 2nd amendment
pitched as case where some justices are originalism and some are not
heller - expanding the right to bear arms
51-49 rules unleashing whatever your 1st order originalism theory is ...
Maybe it's the 51-49 rule that's the problem
re the 1st bubble vs 2nd bubble
constitutional originalism vs constitutionalism
Conclusion
Walt Whitman
I contain multitudes
when it comes to constitutional theory, so do you - all of us
and we've got a 2nd bubble too
can reject the
51-49
and chose another direction
That may be just what our democracy needs
QUestions
1st question
Sometimes it's going to be stare decisis and sometimes it's going to john harvey lee
ranking of theories in the gray area
A
Why am I skeptical about critical process theory?
because you can flip the process
If a political process theory
his 2nd question
are we all 2nd order pluralism
I think you're probably right ..
Question
flexible ordering
A
I would have a third order theory
fall back on legislative deference
Q
ranked voting
Q
unilateral disarming theory
how would Jamal Green anti rights activism fit in with what you said?
mollify people who lose ?
A
do the right thing
is the same thing he would say to his 7 year old
Jamal Green
prof at columbia
argues for proportionality review
I think this is probably a recipe for
value ? reasoning
I;'m not sure proportionality is a good answer
Q
What is a close case on first order theory?
And how does 51-49 theory work ...
re stylized
A
What is a close case
just a function of the judges own judgment
Q
raj armstrong??
2L here
A
many people would describe stare decisis as 1st order
--
Society, Information Technology, and the Global University (2026, forthcoming)
Scottish Small Piping album #2 - Honey Piobaireachd (2022)
- https://twitter.com/
Scottish Small Piping album #1 Honey in the Bag ~ Out of the Air tune (2020)
Order Book #4 To the Dance or the Pools? ~ Virtually! How different it is to soak at Harbin Hot Springs, than to realize it in virtual reality (2019)
Order Book #3 Winding Road Rainbow: Harbin, Wandering & the Poetry of Loving Bliss (2018)
Order Book #2 Haiku-ish and Other Loving Hippie Harbin Poetry (2017)
Order Actual-Virtual Ethnographic Book #1: Naked Harbin Ethnography (2016)
- Scott GK MacLeod
Founder, President, CEO & Professor
at / of best STEAM CC licensed OCW, Wiki,
World University & School (WUaS)
- USPS US Post Office, General Delivery, Canyon, CA 94516
1) non-profit 501(c)(3) Public Charity
best STEAM CC licensed OCW, Wiki,
World University and School - http://
2) for profit general stock company WUaS Corporation in CA - http://
(o) 415 480 4577 - sgkmacleod@
(m) 412 478 0116 - sgkmacleod@gmail.com
World Univ & Sch Innovation Research -
* * *
Dear Nathan, & Michael,
Thanks for your fascinating Stanford Constitutional Law talk on Monday, January 12, 2026 - https://law.stanford.edu/
As I registered just now for tomorrow's Stanford Constitutional Law talk - "Second-Order Constitutional Theory" -I asked on the registration form -
"How might it be possible to add the most recent Stanford Constitutional Law Center's talk - "Due Process, Pirates, and . . . Drug Runners?" - by Professor Nathan Chapman to the America / USA WUaS Law School - https://wiki.
As an NtF unprogrammed Friend / Quaker, and conscientious objector, too, and in MIT OCW-centric wiki WUaS growing an abolition movement worldwide to abolish the wrongful buying and selling of people in the illegal sex, drugs, violence, car theft, military targeting etc industries in the US internationally, I had some questions about what role abolitionism in the US played in US constitutional law from its writing through, say, the Emancipation Proclamation, regarding who has the right to declare war, congress or the president, but will perhaps follow up on these if the I have the good fortune to attend another excellent talk of yours. I also wonder even how an iterating #RealisticVirtualEarth & #
and please see Peter Norvig's INCREDIBLE #ToolifyAIWUaS article "Revolutionizing Education with Machine Learning and AI" #WorldUniversityInSchool updated March 2, 2024 - https://www.toolify.ai/ai-
- to which we all might be able to wiki-add resources (for a new theory and method I'm calling https://scott-macleod.
Best regards,
Scott
Scott GK MacLeod
My notes -
Nathan Chapman
war clause vs criminal punishment on the other
Who gets to deceive?
Civil war law
pows or traitors
unlike
civil war
and Guantanamo bay
this strikes are short
They're not entitled to habeas corpus
or to super damages
Conclusion to part 1
strikes are probably constitutional
Part 2
What about Founder's Law?
law enforcement
constitution gives congress power to publish crimes
on high seas
tried in court
1790 act defined piracy
many cases tried as piracy
murder
failed mutiny on merchant vessel
lots of indictment and conviction for those crimes
all
integrated with teh Law of Nations - law of rason - law of nature applied to states
a legal matrix
Little against Barem
Adams administration
1798 about
only congress can lawfully authorized capture
Capt George Little
Congress indemnified him
Barbary pirates - aside
not barbary and not pirates
definitely
tripoli, algiers, tunis
north african coast
allegiance for years to sultan of Contstinople
Jefferson adiminiates debated how far they could authorized naval ships to go ...
what is teh ends of the real pirates of the caribbean
violation of us law
so the law persecuted them
hometown heroes
smuggling in prated cargo
there was a turn to attack american vessels
crime of piracy ...
1822
Congress rejected
House committee on naval affairs
expedient to execute persons making war on american ships
Authorize it was the question?
president lacked power to launch attacks on non state parties without Congress
Cuba and Puerto Rico ports ...
acts of war against Spain ...
Monroe asking for this power got Spain's attention ...
The Arericans
end of the pirates of the caribbean
US vs Spain handling pirates
the constitution ...
The president couldn't have launched attacks
Why is our US law different than it used to be?
Geopolitical changes in the last 200 years are massive
The technology of war has changed ...
The changes aren't good news for living originalists
nor good news for orginialists that pine from the 'good old days'
Congressional supremacy
Changes to constitutionalism
original law - most attractive to speaker Nathan
Boat strikes
disagrees
that drug smugglers are unlawful combatants
the past 20 years ... narco terrorists ... better understood as criminals
Most pirates are out for money
the presidents struggle to name them as ... enemy
Question:
given teh seriousness of declaration of war
political motivating by the US supreme court
historically the court has tendency to be interventionist the longer the conflict goes on
happened in covid too
Q
pretext with preference
A
Yemen narcoterrorism
Q
cases that lead to this new activity by president
everything since the early 1900s
congress not objecting and continuing to fund
strong acquiencenses by congress
Q
Founders thought there should be some division of power
between congress and president
which has become less significant
circumstances by which they might actually declare war?
A
Q
maritime examples
What about land examples ... such as re Mexico
Q
major diffs between founding and today
size of standing army
then the power to raise and apy for armies limiting constraint
A
generally you're right
didn't have a large army, and had a standing navy
Congress declined the request
then provided more resources ...
Q
am a simple intl lawyer
congress of president / executive branch....
could congress use any standard to declare war
A
I'm just a simple Georgia lawyer
unlawful enemy combatants
no set def
of unlawful enemy combatant
who gets to decide is teh important questions
--
--
Society, Information Technology, and the Global University (2026, forthcoming)
Scottish Small Piping album #2 - Honey Piobaireachd (2022)
- https://twitter.com/
Scottish Small Piping album #1 Honey in the Bag ~ Out of the Air tune (2020)
Order Book #4 To the Dance or the Pools? ~ Virtually! How different it is to soak at Harbin Hot Springs, than to realize it in virtual reality (2019)
Order Book #3 Winding Road Rainbow: Harbin, Wandering & the Poetry of Loving Bliss (2018)
Order Book #2 Haiku-ish and Other Loving Hippie Harbin Poetry (2017)
Order Actual-Virtual Ethnographic Book #1: Naked Harbin Ethnography (2016)
- Scott GK MacLeod
Founder, President, CEO & Professor
at / of best STEAM CC licensed OCW, Wiki,
World University & School (WUaS)
- USPS US Post Office, General Delivery, Canyon, CA 94516
1) non-profit 501(c)(3) Public Charity
best STEAM CC licensed OCW, Wiki,
World University and School - http://
2) for profit general stock company WUaS Corporation in CA - http://
(o) 415 480 4577 - sgkmacleod@
(m) 412 478 0116 - sgkmacleod@gmail.com
World Univ & Sch Innovation Research -
*
https://gnps.org/plant/georgia-aster-symphyotrichum-georgianum/
https://en.wikipedia.org/wiki/Symphyotrichum_georgianum
...
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