The Radical Fund – An Historian’s Brief For Social Democracy

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Willy Forbath

John Witt’s The Radical Fund is a feast.   Brimming with narrative energy, the book is a brilliantly detailed chronicle of the life and times of the Garland Fund’s directors and counselors along with the individuals and organizations whose work it sustained.  Dozens of famous and forgotten figures of the broad left of the early 20^th century – activists and organizers, journalists, attorneys, economists and other policy mavens; liberals and progressives, socialists and social democrats, syndicalists, anarchists and communists – inhabit the book’s 600-plus pages, as directors and beneficiaries of the Fund alongside the organizations many of them founded and led, including three that turned out to be pillars of modern American liberalism in the decades ahead: the ACLU, the CIO (and the industrial unions it came to house), and the NAACP. 

Witt is equally masterful crafting shrewd and revealing biographical sketches, recounting dramatic strikes and protests, and conveying the stakes of intricate organizational conflicts and the genealogy of complex ideas – all in pithy and often sparkling prose.  

Still, one could fill a small library with books about these people and organizations.  What is to be gained from a new one that attends to the outfit that funded them?  A great deal is the answer.   

New Draft Essay on Birthright Citizenship

Gerard N. Magliocca

This will be part of an issue of the Harvard Journal of Law and Public Policy starring articles by Ilan Wurman and Keith Whittington. My essay is the (much shorter) third wheel, but here's the Abstract:

Putting labor, civil rights, and civil liberties at the center of the American story

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Risa Goluboff

I first encountered the Garland Fund more than 20 years ago, when Mark Tushnet described the key role the Fund’s “Margold Report” played in developing the NAACP’s litigation strategy in the 1930s. Drawing on Tushnet’s work in my own book on pre-Brown attacks on racial and economic inequality, I used the Margold Report largely as evidence of the NAACP’s relative disinterest in Black labor and the issues Black workers faced under Jim Crow. My approach to the Garland Fund was thus fleeting and piecemeal. To the extent that I noticed the many famous figures involved in the Fund, or that I was surprised that the Fund had approved the NAACP’s proposal despite the apparent divergence between the Fund’s focus on labor and the NAACP’s lack thereof, I did not pursue such leads. Like Tushnet before me, I came at the Garland Fund from one particular angle: as a small but important part of the NAACP’s developing legal strategy.

How lucky for me, and for us all, that John Witt has now put the Garland Fund squarely at the center not only of his own story but, in many ways, of the entire history of the United States in the first half of the twentieth century. What makes the breadth and ambition of Witt’s book possible is the breadth and ambition that he has uncovered in the Fund itself: It was capacious enough to welcome the likes of Roger Baldwin and James Weldon Johnson and Elizabeth Gurley Flynn and many more. It simultaneously promoted “labor fairness and racial equality and basic human freedoms” like free speech (541). The Fund drew on federal Indian law and decades-old anti-Chinese American discrimination cases to produce the NAACP’s litigation blueprint, and it funded lawyers in causes as disparate as Ossian Sweet and Scottsboro. Its work ranged from the United Mine Workers to the Brotherhood of Sleeping Car Porters to the Amalgamated Clothing Workers of America and ultimately to the origins of the CIO. It defended everyone from Scopes to Sacco and Vanzetti.  Witt shows how the Fund laid the groundwork for so much of mid-century America’s activism, litigation, political culture, and reform. In Witt’s telling, the Fund’s impact was a feat of great proportions for such a small band of activists and intellectuals. And his telling of their story is its own feat of prodigious historical research, narrative elegance, and no small contemporary impact.

Three Views of the Carnival

David Pozen

Jedediah Britton-Purdy and I have just published an essay in the Boston Review that might be of interest to some readers of this blog. The essay tries to identify and make sense of the three main competing accounts of the second Trump administration and the current political moment, which we describe as “authoritarian crisis,” “more of the same,” and “constitutional regime change.” Along the way, we touch on some familiar Balkinization themes, including constitutional crisis, constitutional rot, and constitutional moments. There is no paywall.

The Radical Fund Behind Brown

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Michelle Adams

John Fabian Witt’s terrific new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, explores critical and urgent moral terrain—the “distinctly modern struggle for democratic power.” Witt tells a powerful and underappreciated story of the extraordinary experiment of the American Fund for Public Service—the so-called Garland Fund—and its wager that radical philanthropy might become a lever for social transformation.

The story opens with Charles Garland’s decision in 1920 to give away the inheritance he deemed morally tainted. Roger Baldwin, soon to be the founder of the ACLU, convinced Garland that his money could seed “a gamble in human nature,” an experiment in the uses of wealth for democracy. Baldwin envisioned the Fund not as a conventional foundation but as an engine for “fundamental transformations”—a tool to challenge “the present means of producing and distributing wealth.” Baldwin thought the central question of the time was “how to build democracy for an immense, racial divided country in the age of inequality, mass production, and mass communications.” Sound familiar?

Balkinization Symposium on John Witt, The Radical Fund

JB

This week at Balkinization we are hosting a symposium on John Witt's new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

We have assembled a terrific group of commentators, including Michelle Adams (Michigan), David Bernstein (George Mason), Mary Dudziak (Emory), William Forbath (Texas), Brian Galle (Berkeley), Risa Goluboff (Virginia), Jamal Greene (Columbia), Larry Kramer (LSE), David Pozen (Columbia), Aziz Rana (B.C.), Ben Sachs (Harvard), David Schizer (Columbia), and Laura Weinrib (Harvard).

At the conclusion, John will respond to the commentators.

What’s Louisiana v. Callais About? Not Louisiana.

Stephen Griffin

Today the Supreme Court will hear argument in Louisiana v. Callais, a congressional redistricting case brought under section 2 of the Voting Rights Act.  The litigation started as Robinson v. Ardoin, a garden-variety case in which plaintiffs argued and the district court in Baton Rouge found that the state legislature should be required to create a second “opportunity district” in order to facilitate a racial minority (in this case African Americans) electing a representative of their choice.  Many commentators have speculated that the Court will use the case to undermine section 2 or even rule it unconstitutional.

As I live in Louisiana, I wish I had some spicy local knowledge to add to the news coverage.  But in truth Callais is not so much about anything that anyone in Louisiana did wrong.  That the case exists at all should be put down to multiple ill-advised interventions by the Court.  Louisiana v. Callais should thus be retitled Roberts and Rehnquist Courts v. Voting Rights Act.  It is very much the Court’s story.  The story is about how the Court created unnecessary complications for a reasonably straightforward intervention by Congress in 1982 into an untenable situation created by white southerners in defense of their slipping political power.  It’s quite a story and one that is not easily told – which has led to multiple articles by journalists saying somewhat weakly that the case is “complicated.”  It’s not just journalists.  The Court’s insistence on another round of oral argument has confused everyone.  The briefs are all over the map, guessing what might have drawn the Court’s interest.  I advance my own guess at the end of this post.  For now, some exposition.

It is useful to see the VRA as a product of three historical moments (prior to Shelby County, that is).  The first was the original adoption of the law in 1965 under the auspices of the Fifteenth Amendment, aimed largely at removing obstructions to registration and voting by African Americans in the South.  The second was the rise of the “preclearance” mechanism – to be sure, this was in the original law, but its reach was vastly extended by the Court’s 1969 decision in Allen v. Board of Elections.  Henceforth, even redistricting decisions were subject to review by what was, in effect, an administrative agency inside the DOJ devoted to maintaining a voting rights equilibrium with respect to race.  And the third was the rewriting of section 2 in 1982 to, among other things, order courts to focus on the results of what state and local governments were doing to alter electoral laws to frustrate advancing minority political power.  This third moment requires further explanation.

Why a President Might Decline to Appeal

Andrew Coan

Historically, the federal government has enjoyed extraordinary success when it appeals adverse district court decisions, with a win rate often exceeding seventy percent. Yet for a President pursuing an aggressive and legally contested policy agenda, refusing to appeal while resisting compliance—what I have called “the appellate void” strategy—can offer distinct strategic benefits. Recent calls by influential MAGA personalities to ignore federal court orders have given this possibility renewed salience.

The most significant benefit of the strategy is political rather than legal. By refusing to appeal, the executive branch would strand a dispute in district court, denying higher courts any practical vehicle to intervene. Confronting a single, unknown district judge, rather than the Supreme Court, fundamentally changes the optics of interbranch conflict. The American public knows the Supreme Court as the final arbiter of constitutional meaning. When a President defies the Supreme Court, he challenges the public embodiment of constitutional law itself. To a large and bipartisan majority of the public, such confrontation is likely to be profoundly unsettling.

Beyond political optics, the appellate void strategy avoids the risk of creating adverse nationwide precedent. A single district court decision binds no other court. By contrast, a district court decision affirmed by the Supreme Court becomes the supreme law of the land. For an administration advancing legally dubious policies, the risk of transforming one district judge's opinion into nationwide precedent may exceed the benefit of possible reversal on appeal.

Ultimately, the strategy serves a broader purpose: normalizing executive refusal to accept judicially enforced legal constraints. Each instance of successful defiance or circumvention of a district court order is likely to make the next act of defiance easier, especially if the administration pays little or no political price.

For a fuller explanation, you can read my new paper on the appellate void here. 

The Legality of the Friday Night Massacre

David Super

      Late Friday, the Trump Administration reportedly fired four thousand federal employees.  Details remain sparse at this writing, which is a problem in its own right.  Nonetheless, it appears that, among other things, the Administration gutted the Centers for Disease Prevention and Control (CDC) and eliminated the Office of Special Education.  It also reportedly devastated the Community Development Financial Institutions (CDFI) Fund.  The CDFI Fund is notable as one of the few programs for which congressional Republicans have been willing to publicly advocate with the Administration, presumably because it serves economically disadvantaged areas in both red and blue states. 

      Friday’s firings, of course, come on top of the large personnel reductions made at the behest of Elon Musk’s “Department of Government Efficiency”, the large number of departures resulting from federal employees opting to leave in response to the “fork in the road” message this Spring, and the on-going, lower-profile staff reductions being made across the federal government. 

      Examining the legality of these moves is important in its own right.  It also provides a useful window on what is happening with the Administration’s on-going war on the Rule of Law.  These actions are legally dubious on four different grounds.  Not every action is problematic under all four bases, but some might well be. 

      First, the very action of firing federal employees during a lapse in appropriations likely violates the Anti-Deficiency Act.  The Act prohibits the federal government from incurring obligations or accepting voluntary services without an appropriation for the funds involved.  It provides a narrow exception “for emergencies involving the safety of human life or the protection of property” but makes clear that this exception “does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.”  Firing federal employees does not remotely fall within that exception; through numerous past lapses in appropriations, temporarily unpaid furloughs have fully met the Act’s requirements. 

      The Administration appears to be arguing that these actions are implicitly exempt from the Anti-Deficiency Act, and from the Appropriations Clause that the Act enforces, because they are activities of the President.  Leaving aside the complicated questions that this theory raises even in more plausible applications, these layoffs are hardly actions of the President.  He did not sign or send any layoff notices.  They are actions of the Executive Branch, and the Unified Executive Theory may maintain that all actions of the Executive Branch are actions of the President.  But this theory would prove far too much:  the vast majority of what the federal government does is conducted by the Executive Branch (and much of the rest is done by Congress or the courts, both of which also have constitutional status).  This theory essentially dissolves the Appropriations Clause. 

      Nonetheless, under this Administration, the fact that undertaking these layoffs is likely unlawful during a lapse in appropriations is far less significant than one might hope.  Violations of the Anti-Deficiency Act are felonies, but nobody paying the least bit of attention believes that this Justice Department would care in the slightest.  Indeed, the Department may well have violated the Act in doing the work necessary to indict Letitia James during a lapse in appropriations.  Violations also subject federal officials to adverse personnel actions, but President Trump has brought the Office of Personnel Management so thoroughly to heel that surely none will be taken.  We may debate whether the Supreme Court’s convoluted standing and private right of action jurisprudence would allow federal workers to challenge their firings on this basis. 

      Second, some of these firings might be illegal impoundments of appropriated funds where unexpired appropriations remain available to pay the terminated employees.  In many other instances, these firings likely are preparatory to illegally impounding funds Congress is likely to appropriate in the future – indeed, funds that would be appropriated under the House-passed continuing resolution that Republicans keep demanding Democrats accept.  Many affected agencies spend a large share of their appropriations on staff salaries, and with much of the staff gone, the Administration will have little productive way to spend the appropriated funds. 

      Here again, however, illegality does not equal remediability.  The Supreme Court has rejected the standing of a union and non-profit organizations to challenge the legality of layoffs.  The Court’s cryptic opinion leaves it unclear whether other intended beneficiaries of government employees’ work might have standing.  The Court also has repeatedly found that requiring the federal government to make expenditures during the pendency of an action, even after having lost in a lower court, would harm the Government more than making the intended beneficiaries of those funds wait months or years to be paid.  A Trump-appointed district judge has held that government employees challenging the legality of their firings must first present their cases to the Merit Systems Protection Board, even though that agency has lacked the quorum necessary to act since President Trump illegally fired its only Democratic member.  Finally, because the same appropriations accounts commonly include both salaries and travel expenses, the Administration might try to burn off appropriations for salaries through opulent, unnecessary junkets. 

      Third, this action likely violates numerous permanent laws creating, and assigning duties to. the agencies affected.  For example, Congress has found “that the Centers for Disease Control and Prevention has an essential role in defending against and combatting public health threats domestically and abroad”.  CDC obviously cannot do so if its staff has been gutted.  Similarly, Congress established the Office of Special Education Programs and required that it “shall be the principal agency in the Department for administering and carrying out [the Individuals with Disabilities Education Act] and other programs and activities concerning the education of children with disabilities.”  That cannot happen if the office has lost its crucial staff.  Here again, however, the Supreme Court’s restrictive view of standing and its unwillingness to allow preliminary relief that could require the Government to spend money, even money Congress has required it to spend, may render this illegality practically irrelevant. 

      Finally, this action likely violates several Civil Service laws.  Most obviously, the Administration does not appear even to have tried to comply with the statutory requirement of 60 days’ notice.  (Some reports suggest that the Administration is making some of these firings effective in sixty days.  If so, they would comply with one statute but strain even further the argument that these firings are emergencies qualifying for the Anti-Deficiency Act’s exception.  And they raise further questions about the legality of the Administration committing to the costs of severance when no appropriation is available to pay those costs.)  Given how chaotic this Administration’s past firings have been, one could reasonably ask whether they have complied with laws establishing criteria for determining which individual employees should be fired, setting out the contents of the required notice, procedures for considering employees’ performance in making these decisions, requirements to consult with federal employees’ unions, and prohibitions on the politicization of the Civil Service, among others.  Here again, however, if the Supreme Court insists that these violations be pursued through the quorum-less MSPB, the law is again practically meaningless. 

      Several other actions the Administration has taken recently, such as suggesting that it will continue to pay members of the Armed Forces during the lapse in appropriations but refuse to follow the clear law requiring prompt retroactive payments to furloughed federal workers, may find similarly little legal support.  But, again, with the Supreme Court having largely closed the door to the courts, and with the Justice Department having abandoned its traditional role promoting compliance with law, few effective legal constraints remain on this Administration. 

      For many decades, laws such as those referenced above were enforced by career staff at the Justice Department and in agencies’ general counsels’ offices.  Political appointees theoretically could overrule these attorneys, but doing so was thought to be so scandalous that few dared.  This led to considerable complacency by courts, members of Congress, and the electorate as a whole. 

      It now appears that both the U.S. Code and the U.S. Reports contain significant volumes of quasi-law, principles established by the enactment of laws or the rendering of judicial decisions but that a sufficiently willful administration is practically free to ignore.  Numerous presumptions of administrative regularity are, in fact, de facto delegations to career civil servants, particularly those in general counsels’ offices whom courts have long assumed would be consulted on important matters.  These officials were crucial force-multipliers for the courts, allowing the latter to speak in more muted tones. 

      Now that many such officials have been removed, those that remain are being held to standards of political loyalty, and many of the most important decisions do not appear to be getting vetted at all, the courts’ delegation has collapsed.  An Originalist Supreme Court likely should not have accepted those delegations of responsibility in the first place. It certainly has little justification continuing to apply these ad hoc rules of deference after their entire rationale has disappeared. 

      Most immediately, the more the Administration blatantly violates existing law, the less plausible its arguments that Democrats should end the appropriations lapse (“partial government shutdown”) on the Administration’s terms.  As the Administration demonstrates that neither its words nor those in statutes will effectively constrain its actions, Democrats are increasingly forced to insist on the bluntest possible legislative language in any continuing appropriation. 

      @DavidASuper.bsky.social @DavidASuper1