Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Tom Friedman can't see the elephant (or smell the rotting pig)
|
Tuesday, October 05, 2010
Tom Friedman can't see the elephant (or smell the rotting pig)
Sandy Levinson
Jack, among others, has commented on Tom Friedman's column in the Sunday New York Times calling for a third-party in 2012. Friedman quotes Stanford political scienitst Larry Diamond: "We basically have two bankrupt parties bankrupting the country." Friedman sounds like James Madison in condemning those now "leading" our country for a basic lack of republican virtue (as in "Republican Form of Government," not maximizing the interests of the Republican Party, which the Madison of the Federalst almost certainly would have regarded--like the Democratic Party--as a basically wicked "faction"). There is much to agree with in the column, and I think it's altogether possible that we will have a four-party election in which David Petraeus will be the Republican candidate, Sarah Palin will represent the Tea party, Barack Obama the Democrats, and Michael Blomberg (with Evan Bayh) the Friedmanite "responsible centrists."
Comments:
"Yes, I know I sound like a crank, just like Cassandra."
I guess that means that no one will believe you? Well, like Madison on the Senate, it isn't THAT bad. Small favors.
" ... to prattle on about the need for 'better' and 'more virtuous' people to take over our political system ...."
Assuming such people exist and are willing to serve, can they be elected? We are a government of laws, not of men and women. But such laws are implemented, applied, etc, by men and women. Can a virtuous man or women survive politically to take over the system? Even if, then how long would it take for politics as usual (e.g., survival, reelection) or Citizens United to taint such a virtuous person? Much of the problem may be the lack of "better" and "more virtuous" voters.
"But might not 'the truth' include the information that they (and we) are trapped in a Constitution that was none too good in 1787 and is truly awful today?"
I'm about half way through Steve Shone's "Lysander Spooner: American Anarchist" and Spooner's views on the Constitution are most interesting. (The book runs only 104 pages of text.) A research project I have been working on for much too long includes Spooner as abolitionist. Randy Barnett is an admirer of Spooner and has a website on him and his works. While Shone focuses upon Spooner as anarchist, Randy's interest seems to be Spooner as a libertarian. A major writing of Spooner deals with the unconstitutionality of slavery published in 1845. According to Shone, some of Spooner's views on the Constitution changed over the years.
"Yes, I know I sound like a crank, just like Cassandra."
The problem, of course, is that about 99 and 44/100ths percent of people who sound like cranks ARE cranks... Sandy, the Constitution has problems. But there are other problems, too. You can't blame it all on a Constitution which is routinely being violated anyway. And if you don't recognize other sources of problems, even if you get the constitution you want, (Not bloody likely, even people who agree the Constitution has problems often don't agree with you as to what they are.) the other problems with just bring it down. And if you don't tone down the hyperbole, even people who might agree with you won't listen. "Truly awful"? Things like that are a good way to marginalize yourself in this country, even if that's what you really think. Haven't you ever suspected that even real cranks didn't start out as cranks, but became that way as a result of the way they reacted to others not signing onto their causes? Are you sure you don't *like* the role of Cassandra? You're certainly trying out for it hard enough.
I appreciate Brett's comment, but let me ask the following question: Is Tom Friedman, especially in his recent columns, much less of a Cassandra than I am, inasmuch as he repeatedly predicts a dire fate for the United States if it doesn't get on the right track? The difference between us, I suggest, is that he pays no attention whatsoever to the role that our formal political structures, as established by the Constitution, play, whereas I do. I surely do not believe, incidentally, that the Constitution explains everything that is problematic about our present situation. That would be absurd to argue. But I do believe it has to be taken into account in any serious analysis, which, obviously, Friedman and almost all of his co-pundits utterly fail to do.
As to Tom Friedman, some of us have determined he is a tool, and the fact you are better than him is not really a high bar.
"has to be taken into account in any serious analysis" That's fine. The rub is how it is taken into account and what is deemed necessary to do once we do.
In my first comment under this thread, I put out Citizens United as bait. With the Tea Party, the Kochs, Murdock, Chamber of Commerce, etc, we are seeing some of the results of Citizens United developing as the November elections approach. The Supreme Court 5-4'ers look like they are looking for more cases to take to promote corporate interests. Since making my comment, I became aware of Michael Kent Curtis' article "Citizens United and Davis v. FEC: Lochner on Steroids and Democracy on Life Support" available via SSRN at:
' http://ssrn.com/abstract=1685459 As soon as I finish Shone's book on Spooner, I'll get to Curtis' article, which runs 101 pages double spaced. The V Conspiracy recently had posts on a Lochner revival. Eventually, if the conservatives get their way, we may see an effort to undo Brown v. Board of Education that sticks in the conservatives' craws, especially after the election of the first African American President in 2008. Part XII of Curtis' article reads: "A Revived Lochner Era." Ah, for the "good old days."
That would be absurd to argue. But I do believe it has to be taken into account in any serious analysis, which, obviously, Friedman and almost all of his co-pundits utterly fail to do.
You're a serious scholar of the Constitution. Tom Friedman is an idiot whose views aren't worth the paper they're printed on. If you want to educate the public, you can't rely on the news media at all, much less the pseudo-intellectual parts of it like Friedman. It's going to take a long period of preparation and (sadly) a crisis before anyone will act.
Sandy, I think we are, regrettably, over-endowed with problems capable of ruining the nation. But I think the dysfunctional political class is central, in that a better political class could make the current system work, or reform it. while the current political class could probably ruin ANY system. Because they've found a way to avoid having to comply with the formal system, where it annoys them.
I think, in designing a new Constitution, (And our current one is on it's last legs, IMO.) you not only have to design a system which would work well if the people running it exhibited good faith. You need to design a system difficult to undermine by people of bad faith. And, in particular, it needs to be designed to resist the 'exploits' that have already proven to work against the current constitution. That's why I place a high priority on reforming the judiciary. Not trivial stuff like how long the terms last, but the core matter of who choses the judges. If you can nominate and confirm the judge in your own case, you have an unbeatable house advantage. That's the exploit that's allowed a federal government of enumerated powers to become today's leviathan. Further, I'd note that constitutional reform is extremely unlikely to originate from Congress. They're people who are doing well under the CURRENT system, and they don't NEED a working constitution, it would just get in their way. Any new constitution is going to have to originate at the state level, via a constitutional convention. Which means it's going to have to be attractive to a supermajority of states. For this reason, I don't think you've got much chance of ditching your hated grand compromise...
I agree with Brett that the political class is dysfunctional -- I'd call it corrupt -- but I disagree strongly with his prescriptions.
Let's begin with how the political class comes into existence. Basically, it originates in the Senators and Representatives we send to Washington. They should be generally representative of us, but they aren't. There are multiple reasons for this, and multiple consequences as well. Start with the Senate. It can't be representative because it's designed not to be. That alone warps the policies which can make it through Congress, making them often contrary to what a national majority really wants. The same is true for the House, though to a lesser extent. While it's representative on some level, at least in design, gerrymandering by the various state legislatures eliminates a lot of this in practice. Again, we see a legislative body which doesn't represent the nation and thus can't deliver the policies which the people want. Then there's the problem that Senators and Congressmen stay in office too long. That has a number of bad consequences, among them a sense of entitlement and privilege by those in Washington. Reasonable term limits (18 years) would help end that. Another contributing factor to the corruption of the political class is the movement from government to lobbyist and back. We need to get former government officials out of Washington and back to private life for good periods of time. For 5 years or so after they leave office, they and their close relations should not be allowed to receive compensation of any sort from any business which lobbies or does business with the government. Then there are the more usual sources of corruption. Sadly, the Constitution failed to stop Congress from voting privileges and benefits to itself. An amendment which restricts them to a salary alone is necessary to force them to live like people instead of a ruling oligarchy. There are some more solutions, but that'll do for now.
I despise term limits. If there is someone in Congress that I like, and who is doing a good job, I see no reason to set an arbitrary limit on how long they can serve. It is anti-democratic.
There are 2 ways to make representatives more responsible to the voters. 1. get rid of lobbyists I know the details may be tricky, but we have to end the special access that lobbyists get. 2. don't allow expenve campaigns Again, the details are a problem, but long expensive campaigns serve no purpose other than to pump too much money into the process of electing representatives, and that will always cause problems. Give each candidate X hours of free tv time, Y hours of free radio time, hold Z number of debates, and then let us vote.
I agree with Mark Field (I'll not tied myself to all his discussion, but in general) and find Brett's comments here helpful, particularly his advice to the professor.
I'm wary of term limits, though for judges, it is probably a good idea. As to lobbyists, what is a lobbyist? Is the ACLU a menace? It lobbies Congress as does civil rights groups generally and so forth. I don't know what "expensive" means. It will cost money to run a campaign. But, free air time etc. are credible ideas. I'm wary about campaign finance limits in many cases though. I think there are constitutional limits there.
Joe, it's not expensive to run a campaign if you're not allowed to spend money on tv and radio advertising. I would limit campaign spending to just enough to fund a small staff of advisors. Constitutional limits would not be a problem, because we are writing this into a new constitution.
Some thoughts on term limits:
I used to be opposed to them for the reason bartbuster states. I've changed my mind somewhat over the last 15 years. IMO, 1. Previous term limits were much too short. Research shows that it takes about 10 years or so of doing something to become an expert in it. After that, we'd like to take advantage of the expertise for a while. Two Senate terms would allow too little of the latter, so 3 would be necessary. I see no reason to limit Representatives more than Senators, hence my suggestion of 18 years. 2. While in theory it makes sense to let the voters decide, in practice the advantages of incumbency are such that the seat becomes nearly a sinecure. We need a flow of citizens into and out of Congress in order to broaden the perspectives within Congress. Districts today are plenty large enough to supply qualified candidates. 3. Staying in Washington too long changes people. It isolates them from real life and the problems of everyday Americans. My suggestions above are intended to break a vicious cycle that has led us to look more like an oligarchy than a republic.
Mark, I think that my changes to election financing would eliminate many of the advantages of incumbency. If they did not, I would be willing to reconsider my opposition to term limits. However, I have no idea how you can quantify whether incumbency is giving someone an unfair advantage.
Unless campaign finance restrictions are very carefully designed, they may have the unintended effect of favoring incumbents (who usually have a name recognition advantage). I'm leery of that as the solution simply because we've been regulating campaign finance for 35 years and the situation has gotten worse.
Yes, some of that is due to bad SCOTUS decisions, but a lot of it is the self-interest of those designing the restrictions. It's easy for the public at large to impose term limits, not easy at all to draft and approve (by what method?) complex campaign finance rules. As for quantifying the advantages of incumbency, I agree that it's hard. My point is not that I want to see Ds replace Rs every time (nor vice versa), but that if the district is strongly D, multiple Ds can serve while the would-be oligarchs go back to live with the peasants for a while.
"An amendment which restricts them to a salary alone is necessary to force them to live like people instead of a ruling oligarchy."
This would, I assume, function somewhat like the 27th amendment? IOW, it would be swiftly circumvented by some bit of sophistry which the courts would rush to endorse? Or perhaps simply be violated, and the violation declared a "political question"? I think reforming the judiciary is central, but it's hardly sufficient by itself. The problem of the political culture in this country is that the political class have become self-perpetuating. They've learned to game the system, so as to reduce the representative nature of our government to a minimum. The 'leadership' of Congress, members elected from wildly gerrymandered districts, miniature one party states, are an example of this. Over time they've altered the (Non-constitutional, Sandy!) rules of Congress so as to transfer most of the power to themselves. Any regular member who challenges them is swiftly marginalized, denied committee assignments, their bills ignored, and the party establishment working against them. As a result, popular opinion on any number of issues simply can't effectuate itself through elections anymore. Nominally we're a democracy, functionally an oligarchy. I think it's become so messed up, the only hope is to scrap the whole system, and start from scratch. But that won't erase the lessons the political class have learned in subverting a democracy, so the ways they've done it need to be guarded against. On the question of the Senate, let me amplify my remark: All roads to constitutional amendment, short of simply repudiating the Constitution in toto, lead through Article V. And article V amendments must, whether they originate with Congress or the states, be ratified by a supermajority of states. Unless you assume that the numerous small states are going to voluntarily reliquish their current position, no Article V amendment is going to lead to the Senate becoming a strictly representative body. The only road to that is by complete repudiation of the Constitution, probably involving a breakup of the current US. And I seen no likelihood that such a break up would lead to the US being reconstituted as a single nation. Unless that's what you're adovcating, Sandy, what's the point of talking about abolishing/reforming the Senate? What's YOUR route there, that the small states can't block?
The constitutional limits I referenced BB are basic free speech and related issues of fundamental importance I would not want to amend. As to cost, a small number of advisers, rent, travel and a myriad of other stuff costs money. Not allowing advertising will favor some over others.
Mark Field's comments on term limits are appreciated. But, I don't know if the fact members can stay longer than 18 years, I'd like numbers as to how many do, will necessarily change things much. The current senator in Alaska, for instance, was appointed by her parent, right? Biden's son was going to run. Rearranging the deck chairs on the Titanic, it seems w/o more.
The constitutional limits I referenced BB are basic free speech
People who join the military give up some of their basic rights, including free speech. I have no problem with restricting the rights of people who run for political office Not allowing advertising will favor some over others. I would allow advertising, with all candidates getting the same amount. How is that not fair?
"I would allow advertising, with all candidates getting the same amount. How is that not fair?"
I don't know about "fair", but "candidates" aren't the only people who have 1st amendment rights. Plenty of non-candidates want to run advertising during campaigns, too. So, whatcha gonna do? Try to stop everybody else from advertising? Attribute advertisements made by other people to the candidate you think they favor, and so reduce their quota? And how about the advertisements that are called "newspaper endorsements"? And the slanted coverage news outlets give as an in kind gift to candidates they like? The whole concept of rationing advertising in the name of 'fairness' is, and always has been, unworkable.
Maybe it's time for Mourad to reintroduce us to British election procedures that run for a limited period of time, etc, and can be workable. Without some sort of limits, money talks, and who's got the money to "buy" elections? Will money solve the problems we have been discussing?
They can make a system like that work for two reasons:
1. Nothing like our robust freedom of speech. 2. Their elections aren't on a predictable schedule. I'm not keen on losing my freedom of speech, though I notice a lot of campaign 'reformers' place little value on it. And do we really trust politicians with the power to decide when elections will be held?
A quick search tells me that the average member of the House serves about 10 years, while the average Senator about 12. However, the leadership serves much longer: in the 90s, the top leaders (Speaker, Majority Leader, etc.) had served an average of 27 years in the House, and I suspect (but couldn't find) that something similar is true for the Senate. I expect that term limits would cut both the average and this extreme variance.
If all got the same amount of advertising, that would favor incumbents and those well known. On this issue, also, I often agree with Brett. As usual, not in every case, but his comments in reply to you are generally sound.
The military has limited rights and is not really an on point model for those running for office and others involved (see Brett's post).
Perhaps limits on leadership roles then? How does it works for chief judge status? Is that for a span of years, or does someone one like Judge Kozinski serve until he takes senior status or something?
Many of the comments on this thread demonstrate C. Wright Mills' theses in his 1956 "The Power Elite." Steve Shone's new (2010) book on Lysander Spooner points to Mills for comparison of views. Perhaps there is no way to eliminate the power elite so long as money talks, especially politically. I remind myself of my characterization of "Lottery Democrats" who are convinced by the power elite that high taxes for the wealthy are abominable, voting against their own interests because when they hit the lottery, they don't want to pay taxes on their winnings. This demonstrates the real power of money talking. Repeat lies long enough and they become believable. Of course there are also poor but principled conservatives who like the snakes at Boston's Franklin Park Zoo don't have a pit to hiss in but stand with the wealthy conservatives on principle, as they are also guiled by the power elites' principal. Yes, money talks - and can lead to even greater riches for the few Daddy Warbucks out there. Perhaps "It's the Economy, Stupid" has been replaced by "It's the Economy of the Stupid Voters."
I'm a big fan of election by lot. Presumably the average member of Congress is qualified for leadership positions, if all the leadership are doing is making sure the joint runs properly. Select random members for the leadership positions.
Of course, ideally we should get rid of gerrymandering. I'd advocate a system where we replaced first past the post elections with revocable proxies. Some members might end up voting the proxies of millions of citizens, some the proxies of tens of citizens, (I suppose we'd set a threshold for actual entry to the physical chamber, and just let anybody with a proxy vote electronically.) but the shape of the districts would cease to matter, if being on the losing side of a local election didn't result in you being left unrepresented.
"Perhaps there is no way to eliminate the power elite so long as money talks, especially politically. "
I think you've largely got that backwards. We've got a power elite in this country, and they use that power to get themselves money. You know, like having spouses given zero work board positions by regulated companies? A bit of insider trading on the side? (Congressmen are remarkably prescient in their stock picks, on average...) But the problem is the power, not the money. You may think the corporation that rents a Congressman has power thanks to their money, but it's the Congressman who's getting money thanks to their power.
Brett's point:
"I think you've largely got that backwards." suggests he may also have the answer to the riddle "What came first, the chicken or the egg?" Brett can't imagine an elected official with principle being seduced by the power elite with their principal. Let's go back to when campaigns were not that expensive. Were elected officials less influenced by the power elite's money that just might not have been necessary for campaigning? Today, without the money, there is no power. Long term elected officials in safe districts who sit on appropriate committees attract money that they don't need for reelection; the power elite flock to them, regardless of party affiliation. Maybe the chicken/egg riddle could be looked at as an order of chicken hash with a poached egg on top, something to enjoy. (Here in the Boston area the preference is for corned - or roast - beef hash.) By the Bybee, have there been studies of the financial returns achieved by the power elite on the moneys provided by them to elected officials? Surely this is a profit center greater for the power elite than the elected officials.
I have been working on for much too long includes Spooner as abolitionist. Randy Barnett is an admirer of Spooner and has a website on him and his works. While Shone focuses upon Spooner as anarchist, Randy's interest seems to be Spooner as a libertarian. I am, inasmuch as he repeatedly predicts a dire fate for the United States if it doesn't get on the right track? The difference between us, I suggest, is that he pays no attention whatsoever to the role that our formal political structures, as established by the Constitution, play, whereas I do. I surely do not believe, incidentally student aid, that the Constitution explains everything that is problematic about our present situation.
That's interesting: It looks like somebody has written a routine to take the other comments, and generate vaguely relevant appearing gibberish from them in which to embed spam.
I just finished reading Michael Kent Curtis' article referenced in an earlier comment. It is a terrific read. Curtis has written extensively on the First Amendment Speech Clause. He does not pull his punches in this article. While the article is lengthy, its spacing makes for fairly quick reading. Here's what he says at the top of page 47:
"The Constitution declares that it is created by 'We the People.' It is based on the idea that the 'people' are sovereign. The House of Representatives and now the Senate are elected by the people in their states. In practice, the people also choose the president.170" "170 But see, Bush v. Gore, 531 U.S. 98 (2000)" I'll long remember this footnote. Here's what he says at page 58: "Opponents of slavery and the 'slave power' attacked slavery and slave power hierarchy. They strongly criticized the Dred Scott decision. Indeed Abraham Lincoln did so in his first inaugural address, with Chief Justice Taney (the author of the Dred Scott decision) sitting close by. Similarly, President Obama criticized the Citizens United decision in his State of the Union address (with Chief Justice Roberts in attendance--to the consternation of some." These teases may encourage some to read Curtis' article that includes an interesting tie-in to the Lochner Court. Today's WaPo includes E.J. Dionne's column on corruption and Citizens United (redundant?) and Tom Toles' political cartoon on a new 'gate scandal in a similar vein. Yes, money talks, louder and louder.
Check out Tim Rutten's column in today's (10/13/10) LATimes titled "In this election, follow the money" which closes with:
"The real architect of all this was the brilliant Ohio financier Mark Hanna, who pulled together big money's contributions to create the first truly modern national campaign on behalf of William McKinley's successful run for the presidency in 1896. Hanna once remarked: 'There are two things that are important in politics. The first is money and I can't remember what the second one is.' "It will be a tragedy if we can't remember either."
After read a couple of the articles on your website these few days, and I truly like your style of blogging. I tag it to my favorites internet site list and will be checking back soon. Please check out my web site also and let me know what you think. Liga Inggris Liga Spanyol
Trimakasih sebelumnya
Obat Sipilis Obat Sipilis Ampuh Obat Sipilis Herbal Obat Sipilis Alami Obat Sipilis Manjur Obat Sipilis Tradisional Obat Sipilis Alami Obat Sipilis Di Apotik Jual Obat Sipilis Nama Obat Sipilis Harga Obat Sipilis Ramuan Obat Sipilis Obat Sipilis Wanita Obat Sipilis Pria Cara Mengobati Sipilis Cara Menyembuhkan Sipilis Cara Alami Mengobati Sipilis Mitra Sehat Abadi Obat Sipilis Obat Kencing Nanah Obat Gonore Obat Wasir Obat Ambeien Ambejoss
Obat Sipilis
Post a Comment
Obat Kutil Kelamin Obat Herpes Obat Wasir Obat De Nature Sipilis Gejala Sipilis Penyakit sipilis Kutil Penyakit Wasir Herbal De Nature
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |