an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Emerging Law of Algorithms, Robots, and Predictive Analytics
In 1897, Holmes famously pronounced, "For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." He could scarcely envision at the time the rise of cost-benefit analysis, and comparative devaluation of legal process and non-economic values, in the administrative state. Nor could he have foreseen the surveillance-driven tools of today's predictive policing and homeland security apparatus. Nevertheless, I think Holmes's empiricism and pragmatism still animate dominant legal responses to new technologies. Three conferences this Spring show the importance of "statistics and economics" in future tools of social order, and the fundamental public values that must constrain those tools.
Tyranny of the Algorithm? Predictive Analytics & Human Rights
Advances in information and communications technology and the “datafication” of broadening fields of human endeavor are generating unparalleled quantities and kinds of data about individual and group behavior, much of which is now being deployed to assess risk by governments worldwide. For example, law enforcement personnel are expected to prevent terrorism through data-informed policing aimed at curbing extremism before it expresses itself as violence. And police are deployed to predicted “hot spots” based on data related to past crime. Judges are turning to data-driven metrics to help them assess the risk that an individual will act violently and should be detained before trial.
First, just to clear something up. I have been accused of "hating" the U.S Constitution. I do not. There are some attractive things in it, beginning, most importantly, with the Preamble, which is inspiring in setting out the point of our constitutional order. I'd also include some of the features "below the fold." Obviously, I think there is also a lot to criticize in the Constitution, which is why I continue to advocate a new constitutional convention. And, of course, I'm more than happy to wrap myself in the mantle of the Founders, especially the Publius of Federalists 1 and 14, who emphasized our ability to engage in "reflection and choice," based on the "lessons of experience," as to how we should be governed.
What has turned me into something of a crank is not my dislike of the Constitution, per se but, rather, the inexplicable wilful refusal to assess it, in any serious way, that is typical of even the elite punditry and almost all of those running for political office. A refreshing counter-example is Texas Governor Greg Abbott, who has notably called for a new constitutional convention to consider nine separate amendments that he christens the "Texas Plan." His suggestions are generally (no not completely) terrible, but that is almost beside the point. He deserves great credit for putting the adequacy of the Constitution on the table as something seriously to discuss.
As one can tell from the subject heading, though, my ire is directed at Bernie Sanders, the ostensibly "revolutionary" candidate who is making all sorts of promises that cannot possibly be carried through in our present political system, operating under the 1787 Constitution, unless one truly believes in magic.
So why does Sen. Sanders, whom I admire and have contributed to (in his campaigns for the Senate) display the obtuseness I identify with inside-the-Beltway pundits who are more than willing to denounce given individuals, but pull back from engaging in genuinely systematic analysis? It has occurred to me that one possibility is that the Senator from Vermont would have to address the embarrassing fact that one of the most indefensible features of our Constitution is the decision, made under threat of walking out by Delaware and other small states, to award equal voting power to all states in the Senate. I happen to like the Vermont senatorial delegation of Sanders and Leahy more than any other dynamic duo, and I probably like the Texas duo of Cornyn and Cruz (who would bring down any rating on his own) least of all. But there is really no justification for Vermont having the same number of votes as Texas. Vermont in 2014 had a population of of roughly 650,000 people; Texas is approaching 27 million people. This, of course, is not the most extreme disparity; that's reserved for Wyoming and California.
If one wants to talk about how the "game is rigged," one could do worse than begin with the U.S. Senate, whose equal-vote rule helps to explain why we have a terrible agricultural policy (including subsidies for the dairy industry that I am certain that Sen. Sanders has voted for) and why, in addition, we are unlikely ever to get a cogent energy policy, given the excessive voting power of senators from coal-producing states. As I've said many times before, but never tire of repeating, James Madison was absolutely right when he described the allocation of voting power in the Senate as an "evil," even if, as with the compromise over slavery, it was arguably in 1787 a "lesser evil" to having no constitution at all. We did get rid of slavery, at least as a formal institution (at the cost of 750,000 lives). Alas, we're still stuck with the Senate.
Perhaps Sen. Sanders recognizes that he could scarcely embark on a serious discussion of the Senate without challenging the legitimacy of his own excessive power in that institution. But, honestly, who knows. The only thing we can know with certainty is that he is deluding his impressionable supporters to believe that the very act of electing him would the revolutionary transformation that would make all things possible. It won't be, and the Constitution guarantees that, unless one can believe that Sanders will see, when he gets to the White House, a Senate with at least 60 Democrats, all pledged to support a democratic socialist program, and a House that has flipped to a strong Democratic majority equally committed to becoming as much like Scandanavia as possible. One might offer the same cautionary warnings to Tea Party devotees, already livid over the inconsequentiality of the 2014 elections, should, for example, Ted Cruz become president while the Democrats take back the Senate (and thus don't have to worry about a Republican Senate simply eliminating the filibuster). A Cruz presidency would be terrible beyond belief, but not because under "divided government" the Republicans would in fact be able to enact into law their perfidious agenda.
I am truly afraid that Sanders is wasting an opportunity to educate the public about important constitutional issues. To say that every American should be recognized as having a "right' to health care is lovely (even if somewhat meaningless, as a practical matter). What he should be addressing is why it has proved impossible, over the past century, to engage in genuinely radical reform of the health-care-delivery industry, which is a mixture of American ideology and the institutions foisted on us by those who mistrusted democracy in 1787. I'd like to "feel the Bern," but I feel that we are being confronted with yet another politician who believes that he (or she) by virtue of good intentions and an inchoate "movement" can turn the dinosaur that is the American constitutional order around. Posted
by Sandy Levinson [link]
Flint and the Right of Local Self-Government
[I'm posting this for Rich Schragger, who ran into technical difficulty putting it up. - NT] Rich Schragger
Over at Slate, I point out what should be obvious: that replacing elected city officials with appointed city mangers unaccountable to the local electorate is not just undemocratic, it is also bad policy. This is contrary to those who believe that these emergency mangers can be “dictators for democracy,” as Clay Gillette has recently argued. I think this is a significant mistake, though one made repeatedly by state officials and other elites dissatisfied with the exercise of city power. The history of local government law in the states shows how, after fiscal crises, reformers take power away from cities, but find that states and their agents can do no better—and often much worse. In the Progressive era, for example, reformers concerned about the manipulability of white ethnic "mobs" by urban machines shifted power to the state or to expert administrative bodies. But state legislatures were often just as corrupt as local ones—and reformers found themselves dissatisfied with the new distribution of power.
The impulse to limit local electoral democracy assumes that local political failure is at the heart of local fiscal failure. But that is mistaken. The idea that less democracy will fix what ails any city—and particularly declining post-industrial cities—is a dangerous fantasy. The tragedy in Flint is just the most recent example. The fact that mostly poor and black cities continue to struggle is a political failure—one of the most tragic and unaddressed in American history—but it is not going to be solved by putting cities into receivership, managing them in and out of bankruptcy, or appointing city managers who will make “hard” decisions about what basic services to cut next.
Informal Constitutional Change and the “Irrelevance” of Formal Amendments
posted a working paper, “Understanding Informal Constitutional Change” to
SSRN. Although it is more schematic than
I would like, the paper provides a useful statement of my own position on the
various debates concerning informal constitutional change. In brief, my view is that we must strive to
maintain the tension between relevant “small c” constitutional developments and
the “big C” Constitution without collapsing either into the other. This means I am critical of views such as
those propounded long ago by Karl Llewellyn and by Ernest Young and Adrian
Vermeule in the present that seem to do this, particularly by appealing to
British or Commonwealth traditions of the “unwritten” constitution and
constitutional “conventions.” Because
one of the most characteristic features of American constitutionalism is the
designed legal supremacy of its single-document constitution, these British
traditions can only be of limited help in understanding the process of informal
constitutional change in the US. Or so I
invite anyone who’s interested to check out the abstract. My purpose here is to further develop one relatively
minor argument in the paper concerning David Strauss’s widely influential
article on the “irrelevance” of formal amendments (114 Harv. LR 1457 2001). I should note that I am not trying to address
all aspects of Strauss’s article, some of which I agree with. Yet I do think that one of Strauss’s arguments
has had an unfortunate effect on subsequent work. Strauss discounted the importance of formal
amendments across the board, including the Reconstruction Amendments. He noted the surface implausibility of
arguing that the Thirteenth, Fourteenth, and Fifteenth Amendments were somehow “irrelevant”
to constitutional change, but nonetheless insisted that they counted as valid examples
of his specific claims that formal amendments “often do no more than ratify
changes that have already taken place in society” and “when amendments are
adopted even though society has not changed, the amendments are systematically
logic of Strauss’s argument, illustrated by the preceding quotes, was that if
amendment proponents could satisfy the stiff supermajority requirements imposed
by Article V, then it would follow that the needed change was already well
underway in “society”. However, if this
was not the case and the amendment somehow passed, it would inevitably be
undermined by societal opposition. Careful
readers might note that federalism was a missing player. So Strauss’s consensus might exist in just
enough states to pass an amendment (at least in Congress), yet also have a
significant impact in the states that opposed it. In other words, the circumstances of the Reconstruction
Amendments did pose a challenge.
Strauss took on the challenge, maintaining in particular that all the
Thirteenth Amendment did was “hasten[ed] the end of slavery in a few border
states by a few years.” I respectfully suggest this
argument did not survive the 2013 publication of James Oakes’s magisterial
history Freedom National: The Destruction
of Slavery in the United States.
Oakes establishes in incredibly rich detail that slavery could only be ended by a constitutional
amendment. Along the way, he provides a
model account of how constitutional change occurs, one which strongly supports
my contention that we must attend more closely to the relationship between the “small c” and
“big C” Constitution.
Let's suppose you think that Citizens United was a terrible decision that should be overruled. (I don't, but stay with me for a minute.) You might think that the best way to accomplish that goal is by voting for Bernie Sanders, who recently said:
"No nominee of mine, if I'm elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United."
Sounds good, right? Unfortunately, like a lot of what Senator Sanders says, this isn't well thought out. Actually, he is the only candidate who, if elected President, could not get Citizens United overruled. Why? Because any Justice he nominates who is confirmed would have to recuse from reconsidering that precedent if he or she were "loud and clear" that they would overrule that case prior to taking the bench.
Now it's fair to say that this is nothing more than a legal fiction. Presidents nominate people that they think will overrule one precedent or another all the time. But that is different from saying that saying that only an explicit guarantee will do. Excuse me if I'm not feeling the Bern.
Federalist Society Debate on Ted Cruz's Eligibility to be President
On Friday, February 5th at Harvard Law School, Larry Tribe and I debated whether Ted Cruz is a natural born citizen.
Larry argued no, at least if one is an originalist like Cruz, and that in any event, the question is unsettled.
Speaking as an originalist, I argued that the best interpretation of the Constitution is that Ted Cruz is a natural born citizen and eligible to be president. I used the question of natural born citizenship as a way to introduce some of the ideas in Living Originalism, as well as the distinction between thick and thin conceptions of original public meaning. The debate is a series of short clips, one following the next.
Last week the Texas Law Review
hosted an excellent symposium on the
“Constitution and inequality,” centered around the forthcoming Constitution of Opportunity, by Joey
Fishkin and Willy Forbath.In this
moment of heightened public anxieties over inequality, exclusion, and
oligarchy, Fishkin and Forbath and other participants at the symposium offered
different approaches to a more constructive vision of constitutional political
economy that prioritizes economic opportunity, inclusion, and democracy
instead. The conversations during the conference were extraordinarily
far-reaching and provocative, centering around two major fault lines.First, what is gained by engaging these
questions of opportunity, inclusion, and democracy through the specific
register of constitutionalism?And second, can we truly extract these values
in any meaningful way for our present moment out of the historical traditions
that Fishkin, Forbath, and others are mining?
Sen. Sanders, whom I admire a great deal though I in fact support Hillary Clinton, has in recent speeches, including that last night in Iowa, of calling for a political "revolution." Moreover, he repeatedly emphasizes, altogether accurately, that "the game is rigged" in favor of the well off and that something has to be done about that. He also proudly proclaims his identity as a democratic socialist and his esteem for Eugene V. Debs, who ran a serious campaign for the presidency in 1912 in which he received just short of 6:% of the popular vote.
I love the 1912 election, not least because both Wilson and Roosevelt explicitly attacked aspects of the 1787 Constitution and suggested constitutional reform, while Debs was arguing in behalf of serious, but non-revolutionary, socialism. The incumbent, William Howard Taft, was an able defender of a traditional view of the Constitution. There was a truly serious public debate about the future of the country and the necessity of significant reform, including constitutional change. Taft, of course, was swamped, and the teens were notable as a period of constitutional change, with the proposal and ratification of the 16th, 17th, 18th, and 19th Amendments.
Now, however, even former presidents of the Harvard Law Review seem unable to render a single interesting observation about the Constitution. It's so much easier to condemn the Republican Party (however deserved) than a constitutional system that gives the Republicans an inordinate degree of power. Sanders, a non-lawyer, seems equally unable (or unwilling) to connect the dots and to teach his audience that the rigging began, and is fundamentally enabled by, the Constitution of 1787, which has been insufficiently amended to make it more truly democratic and open to the genuine possibility of radical change (such as adopting the kind of medical care systems found in many, many countries across the world). It is not only that we are increasingly governed, at the national level, by an oligarchy or politicians funded by oligarchs. It is that even if one of the branches (i.e., House, Senate, or presidency) really were put in the hands of "the people," it wouldn't matter, because the system requires that an insurgent movement of the kind Sanders purports to be leading must capture control of all of these branches plus, of course, a majority of the Supreme Court lest it invalidate changes passed by Congress and signed by the President (see what almost happened to Obamacare). Jack Balkin refers to the "constitutional trifecta," though maybe it should really be the "quadrifecta." As in horse racing, it's really hard to pick four winners. Similarly, the Constitution was designed to make it extremely difficult for insurgent movements actually to prevail, given the institutional hurdles they must surmount. The sheer number of veto points give a huge advantage to denizens of the status quo, even if, on rare occasions, the stars have aligned to allow some fundamental change.
If one purpose of Sanders' campaign is to educate especially his young admirers about the realities of life in these United States, he might actually discuss our defective Constitution. He might even commend Texas Governor Greg Abbott for suggesting that it is time for a new constitutional convention to create a constitution adequate to the new realities of the 21st century., even if, of course, he would go on to indicate his vehement disagreement with Abbott's specific proposals. But that would serve to further the long-overdue national debate of the kind the country was capable of having in, say, 1912 and seems wholly unable to have today.
Even if he were to be elected, by some miracle, or if Clinton is elected, as I expect will be the case, neither will be able to achieve anything at all that requires legislation unless, by an equal miracle, both the Senate and the House are Democratic (and the new Democratic majority in the Senate has the backbone to eliminate the filibuster entirely). Otherwise, Republicans will continue to say no to everything, as the Constitution empowers them to do even if, for example, they control only the House (not least because of ruthless gerrymanders and voter suppression) and the Senate has reverted to Democratic control. The aftermath of a Sanders election, following the elation of his supporters, would be identical to the aftermath of the Tea Party win of 2014: Both sides would realize that the system is rigged to make elections near meaningless because of the veto gates that make campaign promises, even if sincere, near irrelevant. The youngsters who "feel the Bern" are being set up for a monumental disillusionment, especially if their candidate stumbles into the presidency because Clinton falters and the Republican Party fully implodes (perhaps helped along by a quixotic campaign by yet another billionaire, Michael Bloomberg).
Surely Sanders realizes all of this. And surely he realizes that he is extremely unlikely to become President. But he has nobly seized the opportunity to say things that have long needed saying, and he has pulled the Democratic Party and its likely candidate to the left. So why doesn't he take the opportunity truly to electrify the country by supporting a new constitutional convention? Can he really be admirer of the Constitution that structures our current polity? He now enjoys a unique platform, with the liberty that comes from being 73-years-old, secure in the knowledge that he's not really going to be the next President, and being able to say whatever he wants to audiences that are really listening to his message. I've always admired the adage that if one is going to hang for stealing a lamb, why not steal a sheep and, indeed, the whole damned flock.
For the Republicans in the audience, I'm interested in what they think that their favorite candidates should say about Abbott and his proposal. Ted Cruz, after all, is going to spend quite a bit of time in Texas prior to the March 1 primary. Surely someone will ask him about the Abbott proposal. What do they want him to say? Will young Marco really embrace the call for a new constitutional convention and make that a major aspect of his campaign? He's flirted with the idea, but, then, he's flirted with so many different ideas before dropping them when they're politically inconvenient.
Populism and Progressivism, Traditionalism and Cosmopolitanism, and the Struggle over the Republican Party
In a seriesofposts, Sean Trende has diagnosed the current split in the Republican Party as a conflict between cultural cosmpolitianism and cultural traditionalism. Back in 1995, I described a related split in terms of the opposition between populism and progressivism. In this context, "progressivism" stands for embrace of expertise, elite culture, and elite values--and not necessarily for left-wing or progressive social policies. Hence there are populist and "progressive" wings in both major political parties. Even though there are few liberal Republicans left, you have plenty of highly-educated elites and intellectuals in the Republican Party who believe in expertise and embrace elite values. They just disagree with the experts and elites on the left. The conservative counter-establishment, which includes conservative think tanks, policy organs, media organizations like National Review, and conservative academia-- is their natural home.
For the last generation or so the Republican political strategy has attempted to identify conservatism and the Republican Party with populism and cultural traditionalism, and to portray liberals and Democrats as "progressives" (in my language) or cultural cosmopolitans (in Trende's). This strategy has often been very effective, because the modern (post-Reagan) Democratic Party leadership has usually been more progressive than populist in its orientation. Nevertheless, this strategy has put many Republican elites in a bind, because their values and attitudes are often not really populist at all. They are cosmopolitan.
Nevertheless, conservative elites have been able to paper over these problems skillfully, by claiming to identify with and speak for the values and concerns of working class (usually white) Americans. For generations, very well-educated businesspeople and intellectuals have defied political gravity by arguing that their economic agenda of low taxes for the wealthy, deregulation, free trade, and immigration reform was also (or should be) the agenda of the conservative working class. Cosmopolitan conservative elites often paid lip service to culture war issues as the price of a very successful political alliance. This is conservative elites' version of the challenges that liberal elites faced in attempting to speak for the interests of working class and poor people, an association that conservative intellectuals have repeatedly and gleefully attacked. To the extent that these attacks succeeded, conservative elites were simply more successful than liberals in hiding the tensions within their own coalition.
That is, until now.
Donald Trump's candidacy has disrupted this strategy, and revealed the tension within the party clearly. He is appealing to cultural traditionalism or populism, capitalizing on resentment against elites and elite values on both the left and the right. Although he himself is a member of the elite (he loves to point out that he is very smart and went to Wharton) his style of speaking is demotic and blunt, and he comes across as someone in touch with populist concerns and populist values.
If The Donald did not exist, some other candidate would have figured out how to exploit the populist/progressive traditional/cosmopolitan divide within the Republican Party. Indeed, as Trende points out, Rick Santorum and Mike Huckabee offered earlier examples of the strategy. But Trump had the talent--and, let's admit it, the shamelessness--to pull it off powerfully and effectively. Even if he loses the Republican nomination, the damage to the Republican coalition has been done. Other politicians will figure out how they can also play on this divide to their personal advantage. Decades of clever attacks leveled against liberal elites for being out of touch and opposed to the interests of "real Americans" can pretty easily be reshaped and deployed against conservative elites. The Republican Party will be in a state of turmoil for some time to come.
More grist for the law professors' mill-- indicting a presidential candidate
Over at the New Reform Club, Seth Barrett Tillman argues that law professors and media commentators are wasting their time speculating about Ted Cruz's eligibility, when there is an even more complicated set of issues that could provide endless grist for the scholarly mill: He asks what would happen if a major party candidate (say, Hillary Clinton) were indicted and/or convicted (a) before the party convention, (b) before the November election, (c) before the electors meet, (d) before inauguration, or (e) after inauguration.
Tillman's post is designed to generate discussion of Clinton's particular case. But the legal issues are more general. Although I doubt that Hillary Clinton will be indicted, you may recall that in August of 2015, former Texas Governor Rick Perry, who had announced his candidacy, was indicted by a Texas grand jury. He quickly dropped out of the race, but his legal troubles continue. If you don't like using Clinton as an example because you think she's been treated unfairly, imagine that Donald Trump or Marco Rubio were indicted for shady business dealings. Tillman is certainly right that the legal issues are at least as interesting as the meaning of "natural born citizen."
Joseph Fishkin and William Forbath, in
their book-in-progress, have brilliantly exposed and mined a once-powerful,
mostly-forgotten vein of constitutional political economic thought:the notion that widely shared economic
opportunity, and a broad middle class flanked by neither an underclass nor an
oligarchic overclass, are essential foundations of our republican form of
government.What has been mostly
forgotten, and what Fishkin and Forbath hope to revive, is the constitutional
dimension of debates over economic inequality, mobility, and opportunity.The forgetting is part of what they are up
against in persuading readers that the forgotten constitutional register in
which such arguments were made for much of American history really
I confess to being in thrall to the
Fishkin-Forbath view of things – deeply moved by their retelling of American
political and constitutional history, and largely in tune with both their
regrets and their hopes for a resurgence of the progressive counterpart to the
particular, I admire the authors’ braiding together of the two histories of
struggle for “equal opportunity” – the struggle for inclusion and the struggle for
broadly shared opportunity; the two authors’ separate writings foreshadow both
histories and their integration, but the book promises to be a fuller
Those two struggles – I will call them “the
constitution of inclusion” and the “constitution of opportunity” – often
struggled with each other throughout American history.Indeed, they still do, as racially-inflected
fears and resentments are among the forces that continue to divide the
necessary political constituency for redistributive reforms.But I am getting ahead of myself.
My first aim here to probe one central
issue in the book:Why did those two
strains of political economic thought diverge so dramatically on just the
dimension the authors stress – on the extent to which their exponents recognize
and capitalize on the constitutional stakes of these struggles – after the New
between rich and poor in the United States yawns wider than in any other
first-wave industrialized country.Why?One influential explanation
points to the failure of American workers to build a class-wide movement for
economic redistribution and social welfare protections.While European working classes were
developing durable socialist movements during the decades around the turn of
the twentieth century, the American working class fractured into craft unions
that focused on collective bargaining for the immediate self-interest of their
members.In his influential book, Law and the Shaping of the American Labor
Movement, William Forbath suggested that law contributed crucially to this
failure.American workers did launch struggles
for broad, class-wide objectives, but judges repeatedly and forcefully directed
them toward more parochial concerns.For
example, courts struck down hard-won reform legislation and selectively enjoined
inclusive forms of labor organization like industry-wide (as opposed to craft)
contribution to the symposium explores the involvement of law and courts in
constructing another, related barrier to class-wide political and economic
action.As Forbath recognized, “ethnic
and racial cleavages will surely remain central” to any full explanation for
American working-class weakness.In
particular, white workers have often chosen to ally with economic elites
against workers of color.This poses a
serious problem for opponents of racial and economic inequality alike.The great critical race scholar Derrick Bell,
for example, argued that African Americans can advance on issues of race only
when whites also benefit.One way to
secure this “interest convergence,” he observed, is to ally with lower-class
whites "who, except for the disadvantages
imposed on blacks because of color, are in the same economic and political
boat."Unfortunately, however, white workers have rarely acted on these shared
interests.They stood with white
planters against slave revolts, for example, "even though the existence of slavery
condemned white workers to a life of economic privation," and they excluded black workers from
their unions, thereby "allowing plant owners to break strikes
with black scab labor."To Bell, such choices reflect a form of racism so virulent and deeply
rooted that it overrides economic rationality and blocks any hope of genuine
racial equality or class solidarity.In
apparent despair, he warns that
black Americans face permanent and irrevocable subordination because of “the
unstated understanding by the mass of whites that they will accept large disparities
in economic opportunity in respect to other whites as long as they have a
priority over blacks and other people of color for access to the few
as my starting point Bell’s compelling account of white workers repeatedly
choosing racial over class unity.It is
possible, however, that racial attitudes do not provide a sufficient
explanation for those choices."White workers,” as Martha Mahoney has written,
“formed concepts of self-interest in a landscape which was not a vacuum but a
set of substantial obstacles to solidarity."Following Mahoney, I submit that law might have played a central role in
erecting those obstacles.Given the
demonstrated tendency of human beings to develop group antagonisms along even
random lines of cleavage without any material encouragement at all, it would
seem that official law, backed by the armed power of the state, could erect
formidable obstacles to solidarity.By
attaching serious consequences to racial categories, law could make them “real”
in an experiential and practical sense.When the situational force of law is considered, we may dissent from
Bell’s conclusion that poor whites were "easily detoured into protecting their
sense of entitlement vis-a-vis blacks for all things of value."
John Roberts, Ted Olson, and the Judicial Separation of Powers
In the recent oral
argument before the U.S. Supreme Court in Bank Markazi v. Peterson, former Solicitor General Ted Olson
defended Congress’s ability to affect the outcome of pending judicial
proceedings, even through legislation directed at a particular case.Chief Justice Roberts repeatedly expressed
concern about the threat such legislation poses to judicial independence.In a new paper, my colleague Curt Bradley and
I discuss a much earlier debate between Olson and Roberts—while both were
working in the Reagan Justice Department—in which their positions were
essentially reversed.Aspects of this
debate have previously been unknown in the literature, and we discuss them as
part of a broader consideration of how Congress and the executive branch have
reasoned about the permissibility of proposed restrictions on the Supreme
Court in certain high-stakes disputes.Here is the abstract:
Scholars have increasingly
focused on the relevance of post-Founding historical practice to discern the
separation of powers between Congress and the executive branch, and the Supreme
Court has recently endorsed the relevance of such practice. Much less attention
has been paid, however, to the relevance of historical practice to discerning
the separation of powers between the political branches and the federal
judiciary — what this Article calls the “judicial separation of powers.”
As the Article explains, there
are two ways that historical practice might be relevant to the judicial
separation of powers. First, such practice might be invoked as an appeal to
“historical gloss”— a claim that the practice informs the content of
constitutional law. Second, historical practice might be invoked to support
what Commonwealth theorists have termed “constitutional conventions.”
To illustrate how both gloss and
conventions enrich our understanding of the judicial separation of powers, the
Article considers the authority of Congress to “pack” the Supreme Court, and
the authority of Congress to “strip” the Court’s appellate jurisdiction. This
Article shows that, although the defeat of Franklin Roosevelt’s Court-packing
plan in 1937 has been studied almost exclusively from a political perspective,
many criticisms of the plan involved claims about historical gloss; other
criticisms involved appeals to non-legal but obligatory constitutional conventions;
and still others blurred the line between those two categories or shifted back
and forth between them. Strikingly similar themes emerge in debates in Congress
in 1957-58, and within the Justice Department in the early 1980s, over the
authority of Congress to prevent the Court from deciding constitutional issues
by restricting its appellate jurisdiction.
The Article also shows, based on
internal executive branch documents that have not previously been discovered or
discussed in the literature, how Chief Justice John Roberts, while working in
the Justice Department and debating Office of Legal Counsel head Theodore
Olson, failed to persuade Attorney General William French Smith that Congress
has broad authority to strip the Court’s appellate jurisdiction. The Article
then reflects on the implications of gloss and conventions for the judicial
separation of powers more generally.
We've had an extended discussion on the blog about whether Barack Obama is a "reconstructive" President as described in the groundbreaking scholarship of Stephen Skowronek. Part of the answer turns on the outcome of 2016 presidential election. Will Obama's successor build on what he did or repudiate his legacy? That remains to be seen.
There is another way, though, of looking at this question. Skowronek's presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a "Mr Fix-It" rather than deep connections to the party's ideology or constituencies. Past examples include Herbert Hoover, a self-made millionaire who (though it'a hard to remember now) was widely thought of as a problem solver before he was elected. Jimmy Carter is another example--he was an engineer by training--who was a classic outsider in 1976. On the losing side, there was Wendell Wilkie (the GOP nominee in 1940) who had never been elected to anything and was touted for his business success. These are the "disjunctive" presidents or presidential candidates.
The Republican Party went with this sort of strategy in 2012. Mitt Romney was mainly known as a success in business and as a highly competent manager (of, for example, the Winter Olympics). As Governor of Massachusetts for one term, he certainly did not come from the heartland of the GOP coalition and did not have broad government experience. There was a plausible advantage in this, though, as he also did not carry much of the baggage that a party insider or crusader would.
Now we are getting disjunction on steroids with Donald Trump. He is also pitching himself as "Mr Fix-It" without any significant commitment to the traditional ideology of the party or, of course, any service in office. He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party's ideology--Ted Cruz. You can also contrast Trump's success with the weakness of the obvious Establishment candidate--Jeb Bush--to see how far the traditional formula for success in the GOP primary is falling short this time.
Why does this matter? Because disjunctive candidates only do well at the end of a particular coalition, which implies that the other side represents the start of a new one. But has that already happened with Obama's election, or will it happen after, say, President Trump has a disastrous term? Posted
by Gerard N. Magliocca [link]
The Public Utility Idea in a Progressive Constitutionalism of Equality
To turn a
very long paper into a very short post, I’d like to make 3 quick points about
the relationship of public utility to the Constitution and economic inequality:
1.We need to recover the historic function of
the public utility idea in American constitutionalism.Public utility was a broad constitutional
rather than residual municipal ideal that played a significant role in the
development of the modern legislative, administrative, and regulatory
state.In a nutshell, “public utility”
was the political-economic concept through which progressive legal reformers
pioneered a more ambitious scope for the police power – ultimately overcoming
the retrograde constitutional limitations of Gilded-Age and Lochner-Era
conservatism.By the time of Nebbia v. New York (1934) – at the
threshold of the New Deal – the public utility concept had done its major work
in building a more general conception of regulation in the public interest and
for the public welfare.Consequently,
broad-scale economic regulation no longer depended upon a demonstration that a
particular business was especially “affected with a public interest.”Indeed, as early as World War I, the sweeping
regulation of the domestic food supply was justified under the rationale that
in time of war all business was “affected with a public interest.”
2.Public utility embodied a progressive
equality ideal and not just an economic “natural” anti-monopoly ideal.I write this text sitting 55 miles due south
of Flint, Michigan where the significant implications of this abstract
statement are playing out in real time.Along with ancient precedents concerning common carriers, the provision
of clean, healthy, and affordable water was one of the earliest instantiations
of the public utility idea.Here, the
economics of natural monopoly were secondary to the public ethical and legal
obligation to serve every member of the community equally in terms of the
necessities that underwrote basic public health, safety, and well-being.Public utility was a vehicle for the kind of
foundational equality that was seen as essential to any truly democratic society.Affordability – price control – was key to
the equalitarian impulse at the core of the public utility idea as it expanded
from 19th century concerns to broad Progressive-Era extensions in the fields of
transportation, communications, banking, energy, food supply, milk, hotels,
warehouses, ice, . . . you name it.If
something was viewed as necessary to human welfare – broadly construed in a democratic
society – equal, affordable, and non-discriminatory provision was the ultimate
goal (indeed, requirement).Moreover, as
the broad mandate of the Public Utility Holding Company Act of 1935 perhaps
made most clear, the provision of such basic necessities was itself not to
become a source of profiteering, fraud, collusion, discrimination, oppression,
or other forms of economic inequality or unfairness or domination.In Joseph Fishkin and Willy Forbath’s
language, the public utility idea in its fullest manifestation was inherently
“anti-oligarchic.”David Hume perhaps
first captured the broadest ambitions of the original Enlightenment project of
political-economic opportunity when he argued that “Public utility is the sole
origin of justice.”
The most important and humane legal development in a long while
This is as significant, at least in terms of basic human decency and flourishing, as anything this or any other public official has done in recent memory. It's horrifying and shameful that we'd allowed this barbaric practice to become commonplace -- and with very little public debate or outrage. About time the systemic cruelty is finally being addressed. And Justice Kennedy has signaled that the Court is prepared to restrict the practice at the state level, too. (See the end of my post on Slate, calling this "by far the most encouraging surprise" of the October 2014 Term.)
Like same-sex marriage, it looks as if this could be a sea-change that happens much more rapidly than any of us could have imagined in our wildest dreams. The very idea of reform was a political and jurisprudential nonstarter, in every branch of government, until very recently. And now, this. Thank goodness. DOJ Report
Thanks to Jack Balkin for hosting this blog post and to Joey
Fishkin and Willy Forbath for organizing the Texas Law Review Symposium on “The
Constitution and Economic Inequality.”I’m looking forward to the conference and I’m honored to be a part of
such a distinguished group of constitutional law scholars and historians.
As one of the members of the panel on Constitutional
Political Economy, my task is to explore the constitutional dimensions of
fiscal policy and economic inequality.In my presentation, I’ll be drawing on a collaborative project that I’ve
been working on with my good friend, political historian Joe Thorndike (Tax Analysts/Northwestern Law).Joe and I have been exploring the origins and
development of what we refer to as “The Long Twentieth-Century American
Commitment to Progressive Taxation.”
This paper focuses on the
crucial elements of post-Civil War constitutionalism scholars miss when they
give the place of pride to the Civil Rights Act at the expense of the Second
Freedmen’s Bureau Bill. The Republicans
who framed the Second Freedmen’s Bureau Bill understood that judicial action
could not eradicate slavery. Their
legislative and constitutional program recognized that persons could transition
from slaves to full citizens only if Congress aggressively exercised national
power under Section 2 of the Thirteenth Amendment. Legislation was necessary to provide former
slaves with various goods and services, the precise provision of which
depending on local circumstances and changing conditions. Given the need for a high degree of
nimbleness in the managing of that transition, entrenching crucial features of
the Freedmen’s Bureau Bill in a constitutional amendment that would be enforced
by the federal judiciary made little sense.
Instead, the Second Freedmen’s Bureau Bill was drafted by Republicans
who understood that Congress rather than the judiciary was expected to play the
lead role in removing all badges and incidents of slavery in American
The Second Freedmen’s Bureau Bill was also designed to
prevent white persons from making transitions from freedom to dependency. Sections 3-6 of that bill provided both
freedmen and destitute refugees with various goods and services. Republican supporters of this provisions emphasized
that Congress had the obligation to act for the general welfare and that
preventing the dependency inherent in economic destitution justified
legislative action. As significantly,
Republicans were as inclined to justify the provision of goods and services to
white persons who had never been slaves under Section 2 of the Thirteenth
Amendment. Their arguments for the
constitutionality of the Second Freedmen’s Bureau Bill insisted that a minimum
degree of economic security and education was a central condition of freedom
and full citizenship.
Restoring the Second Freedmen’s Bureau Bill to the core
of Reconstruction explains some features of the post-Civil War Amendments,
while challenging other shibboleths of American constitutionalism. Commentary on the post-Civil War Amendments
begins by acknowledging that the text speaks in generalities, but fails to
appreciate the institutional logic of that language. Republicans did not ratify a precise legal
code because they recognized that Congress needed substantial discretion to
determine the policies that best ensured that persons of color transitioned
from slavery to enjoying the full rights of citizens of a free republic and
not, as often maintained, because they could not agree on specifics or were more
interested in moral exhortation that precise legal norms. Contrary to Richard Posner and William
Rehnquist, the Constitution of the United States is not a charter of negative
liberties. The Second Freedmen’s Bureau
Bill’s Constitution is committed to ensuring the national government has the
power necessary to act for the general welfare and, as such, is more an
instrument for preventing local and private tyranny than for limiting
government. Reconstruction Republicans
believed that national government under the Thirteenth Amendment had duties to
provide goods and services to destitute citizens and freedmen who need
government assistance making the transition for slavery to independent
citizen. Finally, the debates over the
Second Freedmen’s Bureau Bill highlight the perversity of contemporary
constitutional decisions which insist that the federal judiciary is the
institution primarily responsible for implementing the post-Civil War
amendments. Republicans when defending
the constitutionality of the Second Freedmen’s Bureau Bill uniformly insisted
that Congress was the institution constitutionally charged with guaranteeing
those positive rights, not the Supreme Court of the United States. More precisely, the Republican Party had the
place of constitutional honor. The
post-Civil War Amendments were framed at a time when the dominant party were
considered the primary vehicle for ensuring constitutional fidelity. Republicans in the Thirty-Eighth Congress
assumed that their party, not any particular institution, was the institution
that determined the measures constitutionally necessary to realize the promise
of the Thirteenth and, later, Fourteenth Amendments. Their arguments on the Second
Freedmen’s Bureau Bill highlight the crucial features of American
constitutionalism that judges, governing officials, lawyers and citizens miss
when they look at the Constitution through the modern lens of judicial
The Second Freedmen’s Bureau Bill’s Constitution provides
a distinctive perspective on economic inequalities and American
constitutionalism. The persons
responsible for the original Constitution and post-Civil War Constitution were
concerned with economic inequalities or at least economic rights, but their
concerns are not explicitly manifested in the text of the Constitution. The Constitution of 1789 and the Constitution
of 1868 do not enumerate economic rights because their framers regarded
constitutions as empowering rather than as disabling mechanisms. Contemporary Americans assume that
constitutions protect rights by enumerating limits on government power and
empowering the national judiciary to enforce those restrictions. The persons responsible for the Constitution
of 1789 believed that rights were best protected by structuring government
institutions so that elite leaders would have the combination of interests,
values and capacities that would lead them to protect rights. The persons responsible for the post-Civil
War Constitution believed rights were best protected when the party of the
majority of the people who remained loyal during the Civil War controlled all
three branches of the national government.
The Republicans responsible for the Second Freedmen’s Bureau Bill and
the post-Civil War Constitution believed destitution and dependency were forms
of slavery that the national legislature was constitutionally obligated to
alleviate under the Thirteenth Amendment.
Once we understand the Republican commitment to economic rights and the
way in which the constitution promoted those rights, we can see how the
Constitution of 1868 in many ways was better structured to place economic
inequality and dependency at the core of American constitutionality than the
judicially driven constitutionalism of the present.
From the Occupy movement to the Fight for 15 to Black Lives
Matter, the politics of the current moment have cast into relief deep
structural inequalities in American politics, economy, and society. At the same time, the Supreme Court’s recent
track record on labor rights, voting rights, campaign finance, and class
actions evoke for some commentators the specter of “neo-Lochnerism.” The Roberts Court, to these critics, is furthering
view of constitutionalism that, while it avoids the formalisms of Lochner, nevertheless evinces a similar disregard
for the kinds of underlying power disparities that might make these policies
necessary. What might an alternative,
more egalitarian and democratically-inclusive constitutionalism for today look
like? In their forthcoming book The Anti-Oligarchy Constitution, Joseph
Fishkin and Will Forbath attempt to develop one such alternative, arguing for a
constitutional tradition emphasizing economic opportunity that draws on the New
Deal and on Constitutional legacies back to the Founding.
But I think it is important to understand this larger
project that Fishkin, Forbath, and a growing cohort of legal scholars and
reformers are engaging in is about more than constitutional text,
interpretation, or doctrine. It is,
rather, a more fundamental project about the literal constitution of our economic and political structures, and about
the moral values that we want to animate these structures. In this, the growing scholarship on law and
inequality is best understood as a more modern manifestation of a familiar
legacy: that of legal realism and Progressive Era political economy.
politics of economic inequality are awfully strange these days. There is broad
consensus that we should do something about it. Yet most proposals are
relatively tame and statist, involving progressive taxation, greater education
funding, and more robust welfare benefits. Proposals to raise the minimum wage
and to make unionization easier have gained traction, yet various states have
passed right-to-work laws, and the Supreme Court seems set to constitutionalize
right-to-work across the public sector in Friedrichs v. California Teachers
a nutshell, petitioners’ theory in Friedrichs
is that workplace freedom of association extends only so far as individual
workers’ wills, and that the economic and political activities of public unions
cannot be disentangled, and therefore that requiring workers to remit any fees
at all to a public sector union violates the First Amendment. The Court largely
endorsed that logic two terms back in Harris
v. Quinn. If it sides with petitioners, and past patterns hold, it would
next extend right-to-work across the private sector, further undermining one of
our only egalitarian institutions.
should those concerned about economic inequality do? Perhaps we can make a
virtue of necessity. If, as the evidence suggests, powerful workers’
organizations are essential to equality, we need to re-ground workers’ collective
action in basic constitutional liberties.
Dividing Sovereignty: Commonwealth of Puerto Rico v. Sanchez Valle
The Supreme Court heard arguments last week in Commonwealth of Puerto Rico v. Sanchez Valle.The case, which Rick Pildes has blogged about here, presents the question whether Puerto Rico qualifies as a “separate sovereign” from the federal government for double-jeopardy purposes.Were Puerto Rico a state, double jeopardy would not apply because states are separate sovereigns from the federal government. But because the Constitution gives Congress authority to govern non-state territories, the Supreme Court’s century-old decision in Grafton v. United States suggests that double jeopardy does bar repeat prosecution.
In apparent frustration with the doctrine’s rigidity, Justice Kennedy asked at oral argument:“[I]s our argument so abstract that it doesn't acknowledge real practicalities of multiple prosecutions?. . . .Has there been any suggestion by commentators and so forth that this whole inquiry of sovereignty and source of power is a little bit misplaced?”
I published a 2013 article in the Columbia Law Review, “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction,” that made precisely this argument.With respect to both territorial governance and Native American tribes, a number of key decisions such as Grafton have drawn sharp formal distinctions based on who is “sovereign” and whether the power being exercised is “inherent” or “delegated.”As Sanchez Valle illustrates, however, this doctrinal framing inadequately accounts for the practical realities of territorial and tribal governance.
With respect to so-called unincorporated territories like Puerto Rico—territories that might never become states—Congress’s plenary power to govern federal territories gives it ultimate authority.In that sense, territorial government authority is delegated from Congress, and Congress in principle can take back the delegation, just as it can do with respect to delegations to ordinary federal agencies.But exceptionally compelling normative and historical concerns support enabling unincorporated territories to govern themselves.Accordingly, congressional plenary power has been understood to enable unusually open-ended forms of delegation—delegations that enable autonomous self-governance.
It should follow logically that Puerto Rico qualifies as a double-jeopardy “separate sovereign,” no less than a state.In the federal-state context, dual-sovereignty doctrine’s best practical rationale is that it prevents one government from thwarting another’s prosecutions by winning the race to the courthouse.The functional autonomy of territorial legislative and prosecutorial decisions makes that concern equally applicable to Puerto Rico.
recent years, in the face of the Great Recession and skyrocketing inequality,
economic justice movements among low-wage workers have gathered steam. Take
the “Fight for $15”, which began with a few hundred workers in New York, but is
now national in scope. Fast food workers, airport and retail workers, federal
contractors, home health aides, and adjunct professors all now demand substantially
higher wages and a union. The campaign has
pulled off strikes in cities across the country. It has had stunning success in raising local
and state minimum wages, while shifting the terms of national debate.
Fight for $15 and other low-wage worker campaigns are making rights-based
claims: they demand higher wages, better conditions, and unions, as of right. They use tactics similar to those of earlier rights-based
social movements: marches, civil disobedience, and mass protests. But unlike many movements on both the Left and
Right, these worker movements make almost no appeal to the Constitution.
problem is not the lack of a blueprint. Scholars
have explained how the Constitution could be read to support rights to decent
employment and unionization. Those
arguments rest on the First, Thirteenth, and Fourteenth Amendments, as well as
the Constitution’s overall structure, purpose, and history. The arguments don’t have much support in current
other successful social movements, past and present, have invoked the Constitution
even when their aspirations ran contrary to the ruling doctrines of
constitutional law.And for good reason.
The Constitution is a source of inspiration, and arguments grounded in it carry
special force in our political discourse.
then, don’t worker movements today make constitutional arguments? Because they think such arguments won’t work—and
courts give them good reason to think not.
much as scholars emphasize the importance of the Constitution outside of the courts,
in our legal culture, constitutional arguments are primarily judicial
when constitutional claims are directed to elected officials, courts often end
up reviewing their validity.
A recurring question that Joey Fishkin and Wily Forbath are
likely to face in their work on the Constitution of Opportunity is what the
Constitution has to do with their argument. They arguethat public
officials have a duty to promote economic opportunity and a broad-based middle class. They also argue that public officials have a duty to resist the exacerbation of economic inequality and the economic and political oligarchy that comes with it.But why is this a constitutional obligation?
I believe that the theory of living originalism can helpinarticulating the constitutional basis of their project.
will be part of the gathering soon in Austin for talk about Joey Fishkin & Willy
Forbath's project on "The Constitution of Opportunity." I haven't had
time yet to look through their latest partial draft, just recently received, to
see how it stacks up against my remarks at a Harvard colloquium last March
about the draft we had before us then, but I thought that, as a kind of warm-up
for input to the Austin event, I would send some of those remarks along now.
Between now and Austin, I will be looking to see how far they may by now be
can distinguish between claims focused on structures and claims focused
on goods -- between claims regarding the general structural conditions
for opportunity, civic equality, and non-domination and claims regarding supply
of specific, immediate material needs. Some might want to say that while
American politics over the past several decades have been at least somewhat
receptive to policies of delivery to the desperately needy of goods required
for basic nutrition, shelter, medicine, and literacy, they have not been nearly
so receptive to ideas of constitutionally obligated attention to the kinds of
structural policies on which opportunity depends -- policies, say, on jobs,
markets, trade, wealth, families, education, and social geography. . . .
. . I turn now to a question about our speakers' paper and the larger project
it represents. It's a question of which they plainly are aware. I'll put it
first in terms of the famous insistence of Holmes, in his Lochner dissent, that
a country's constitution is not made, and should not be deployed, to lock the
country into any "economic theory" that the politics of the day would
not be expected on its own to carry out. It seems to me that by
"constitution," there, Holmes was not talking about some general
conception or idealization of a political and social order, which idealization
we might honorifically call "constitutional" as a way to mark its
widely perceived centrality to ideas of political legitimacy in that country.
By "constitution," Holmes meant a particular class of textual
objects, the kind meant for service as a legal code controlling on the
day-to-day politics of the country. It was that class of things that should
not, Holmes thought, attempt or purport to shackle the country to an economic
"theory" -- or hence to some general cast of economic policy -- when
the politics of the day are looking in a different direction.
declaration to that effect has since been widely approved and accepted, not
least on the American legal left. Now here come my friends F & F insisting
not just on the centrality of an opportunity component in the historic American
social contract, but insisting specifically and emphatically on the constitutional
status and import of that centrality. Do they thereby now declare their
rejection of the Holmesian wisdom? Do they think such a rejection prudent in
the current political and constitutional-discursive milieux? I doubt they would
answer either question with a yes, but the questions are ones that their text
does push to our awareness.