Make what you will of Judge Melgren’s analysis of preemption, or the hints of his constitutional stance on the federal-state balance of authority under the Elections Clause—his decision in Kobach v. The United States Election Assistance Commission is a mechanical exercise that leaves the reader without any sense of what this case is about. Kansas and Arizona have not merely made a “determination” of what they need to verify the citizenship of state residents seeking to become voters. The history behind this litigation is more complex, with more history to it, and the court knew it.  It chose, however, to follow example of the Supreme Court and to do as the High Court has done in other cases, like Purcell v. Gonzalez and Crawford v. Marion County, and leave the real world out.

In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish's position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)