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Thursday, February 27, 2020
Bernie Sanders's intellectual sleight-of-hand
Sandy Levinson
I have indicated quite a few times since 2016 my distaste for Bernie Sanders's purported self-identification as a "revolutionary," given his absolute unwillingness to address in any way the extent to which it is the Constitution of 1787 that most truly "rigs" the constitutional order in favor of the status quo. The only two explanation for that refusal is either abject ignorance (and commitment to a simplistic Marxism that looks at any and all formal institutions as mere epiphenomena when compared with the one things that is really important, i.e., class structure) or political cupidity. For better or worse, his flamboyant willingness to embrace the label of democratic socialist and to offer some (merited, by the way) praise of Fidel Castro even while (equally justifiably) denouncing his regrettable excesses, unfortunately suggests that ignorance or ideological rigidity is more likely to be the explanation than more ordinary political opportunism.
Comments:
It pains me to defend Bernie on even one small point, especially since I agree with the basic thrust of the OP, but....
"His unwillingness to support getting rid of the filibuster, should he win and have a Democratic Senate, is dispositive evidence that he is totally unserious about governing." I don't think you can rule out the possibility that he's playing politics here. Taking a traditionalist position on the filibuster may make him seem less threatening. That doesn't mean he'll actually oppose repeal when push comes to shove.
That he was morally correct is beside the point if one is using the language of popular sovereignty.
Well, that was Stephen Douglas' thing anyway. And Lincoln did pick, or accept, the awful choice of Andrew Johnson to be his second VP, perhaps because, like too many politicians, he wanted to believe he was immortal. He took him on as a unity ticket and as things go it was standard to not worry too much about the VP pick & after all, I don't think it was too shallow of him not to think he would be shot. He thought in fact he would lose so a balanced ticket to appeal to conservatives was not exactly unreasonable. Johnson was as far it went on paper acceptable, unlike Trump let's say actually have extended experience in public life including as military governor as a loyal Southerner in the Civil War. --- As to Mark's comment, I guess one can be generous and say that. Seems more likely he has an outdated and somewhat egotistical view of governing instead. Though that might be a factor in his reasoning or somewhat cynically the net result at any rate. It might also underline his is behind the times, stuck pining for an older era. But, then again, some people younger than him (as seen here) also have that mindset in a fashion.
His argument about "ballots, not bullets," settling the issue of slavery int the territories was, alas, demagogic gibberish.
This is a bit much too because he was operating in the system of the era and in the system in place he won the presidency fair and square. Unlike in 2016, it was not even tainted because his campaign tried to get support from the UK or France to corrupt the election or some late investigation from some Buchanan official throwing some "October Surprise" to interfere somehow. It was a clean plurality win, suggesting the limits of the Electoral College. Plus, the congressional elections is part of the "ballots" too. Even the opposition split three ways was arguably a self-inflicted wound on their part, letting the anti-slavery side win via "ballots" because they staid united, especially if the Southern members staid in Congress. At most, Lincoln exaggerated some, the South not letting a fair election settle things, making it easier for Republicans to speed things up.
I'll be blunt: Why would Bernie critique a constitution he means to bury? He's a communist.
Raised by communists. Joined a Stalinist Kibbutz. Honeymooned in the USSR, and came back singing its praises. Advocates nationalizing multiple industries. He's a communist. And communists don't care about the rule of law, just the rule of themselves. And, no, his praise of Fidel Castro isn't merited. Plenty of countries managed to raise literacy rates without becoming totalitarian states along the way.
"I guess one can be generous and say that. Seems more likely he has an outdated and somewhat egotistical view of governing instead. Though that might be a factor in his reasoning or somewhat cynically the net result at any rate. It might also underline his is behind the times, stuck pining for an older era."
All possible.
"best candidate"? By what metric? The only metric that counts, of course, is the number of EC votes come December. And predicting that this summer is going to be difficult, given that months will come between the choice and the election, with vast capacity for tricks, both clean and dirty by all the players (and I'm not referring only to citizens or even residents of our country here...)
Even if the metric is merely "get rid of Trump" -- a noble goal, IMHO -- there remains the question of whether it's better to try and "get out the vote" in the traditional ways, focusing on the party faithful (who are so much less faithful than they used to be) or try and attract the "independents" (who are so much less independent than they used to be, thanks to their seeming reliance on social media) or bring in new voters (who seem to have grown even more disenchanted with participating in this democratic kabuki theater we go through every few years). In my opinion, Sanders is merely acting like a typical, long-term successful politician, going with what's always worked for him before. Act the outsider, but tell the people what they want to hear whenever you can spin and shade the truth to your advantage. And that forebodes what his presidency would be like, since the methods that have worked in the past (compromise, conciliation, payoffs) are not working today and seem even less likely to work tomorrow.
Why are some Liberals so short sighted? Getting rid of the filibuster is the STUPIDEST thing you could possibly do.
1) Republicans can't get to 60 votes. The last time they had 60 Senators was 1909! Meanwhile Democrats have had at least 60 Senators ELEVEN times since 1909. Getting rid of the filibuster helps Repubs more than it helps Dems. 2) Sure the filibuster stops Dems from doing things, but it also prevents Reps from doing TONS of things you'd hate (Building a Border Wall, getting rid of Obamacare and Voting Rights laws and Civil Rights laws, and they'd pass so many anti-abortion laws you head would spin.) 3) Even if you got rid of the filibuster and passed all this legislation all of it would just be erased the next time Repubs got full control. Without the filibuster no laws would have any staying power. 4) And this notion that a President Warren or Sanders can get rid of the filibuster is fantasy land stuff. No Senator worth his or her salt is gonna take orders from the President. Joe Manchin (D-WV) & Jon Tester (D-MT) will tell Warren/Sanders to pound sand if they are "ordered" to get rid of the filibuster.
I think the point of getting rid of the legislative filibuster, (It's already gone for judicial appointments.) is that it clears the way for the sort of entrenchment legislation that's expected to prevent the Republicans from getting a majority again. Naturalizing all illegal aliens, admitting several territories as states, using the "time, place, and manner" power to mandate gerrymandering and prohibit ballot security. There's lots of potential entrenchment laws that could be passed on a straight party line vote provided a bare majority in both chambers and a willing President. Many of them might require packing the Supreme court to have a chance of surviving judicial review, but that, too, just requires a bare majority if you get rid of the filibuster.
Agreed, Bernie won't order them to get rid of it, and it would not go well if he tried. But, based on his recent statements, he doesn't really plan to rely on legislation, just executive orders.
Birchers like Brett have been calling anyone to the left of Genghis Kahn 'communists' for long it's just yawn inducing when they do it these days.
You've reached the point where you can't even recognize a communist as he's calling for industries to be nationalized.
Communism =/= calling for 'industries to be nationalized', it involves, among other things, the abolition of private property.
But, as I've said, Birchers like Brett have been calling everything from the minimum wage to Medicare to Social Security 'communism' forever.
I do think Rick makes a good point, though for an interesting reason.
The left and the Democratic party are currently the party that respects the idea of majority rule. And so, on principle, just as they rightly decry the counter-majoritarian things like the EC or the Senate or disenfranchisement of the territories or large swaths of voters, they also think the counter-majoritarian filibuster smells funny. But when you move from abstract principle to real politics, *as long as things like the counter-majoritarian nature of the Senate is the reality* then the filibuster is really important to the left and Democrats. The GOP has and will have for a while a natural advantage in the Senate because it discounts the votes of people for the votes of geographical political sub-units. It's politically not good for them to try to get rid of it if they somehow luck into overcoming that built in advantage, because the advantage would still be there...
Why are some Liberals so short sighted? Getting rid of the filibuster is the STUPIDEST thing you could possibly do.
Republicans can't get to 60 votes. The last time they had 60 Senators was 1909! Meanwhile Democrats have had at least 60 Senators ELEVEN times since 1909. Getting rid of the filibuster helps Repubs more than it helps Dems. Republicans can get 40 votes, which blocks legislation passed by a majority of two houses which the POTUS is willing to sign. The cite is also misleading since party dynamics changed over time as seen by Southern Dems blocking civil rights legislation. Also, what the filibuster does is further the current Republican brand of not making basic policy. The Democrats wish to (with the compromises necessary given even w/o the filibuster, there are multiple veto points) legislate. If Congress and POTUS is in control one Republicans and they wish to do that in a "bad" away, long term, that is part of the program, especially if some Republicans are willing to work with Dems on certain things. But, that won't happen much, especially if other reforms such as dealing with gerrymandering are addressed. 2) Sure the filibuster stops Dems from doing things, but it also prevents Reps from doing TONS of things you'd hate (Building a Border Wall, getting rid of Obamacare and Voting Rights laws and Civil Rights laws, and they'd pass so many anti-abortion laws you head would spin.) Trump (by executive order -- which some are eh about when the right people are in power) is working on a border wall (or rather fence or whatever) now though it is held up by court review. Also, even when the Republicans controlled Congress and Trump was in power they could not pass major legislation to water down the Affordable Care Act, which was possible given there exceptions to the filibuster. Civil rights was blocked for decades by the filibuster and it helps block gay rights law even now. Republicans need total control too & even then "many anti-abortion laws" would need to be upheld in the courts. A lot of this stuff actually is opposed by some Republicans too. 3) Even if you got rid of the filibuster and passed all this legislation all of it would just be erased the next time Repubs got full control. Without the filibuster no laws would have any staying power. Some laws have staying power. That is also how it works where there is no filibuster. Anyway, if there is full control and there is a will, yes, that is also how it works. Even then, there is judicial review and other checks. Resting on a minority of the Senate is a weak way to hold the dam. 4) And this notion that a President Warren or Sanders can get rid of the filibuster is fantasy land stuff. No Senator worth his or her salt is gonna take orders from the President. Joe Manchin (D-WV) & Jon Tester (D-MT) will tell Warren/Sanders to pound sand if they are "ordered" to get rid of the filibuster. All presidential campaigns talk big & talk about things that ultimately require legislative action. It's ultimately a means to send a message that there is popular support for the message. Senators running can join the effort. Obviously, that's silly, they can't "order" a change here. The filibuster for appointments was ended given events warranted it and support of the end here (or significantly changing how it is applied) also very well might be warranted. Change comes via popular pressures and a President (the titular head of a party) is significant.
As to Mr. W.'s limited comment, net over the years, the value for the Democrats regarding the filibuster to me is unclear. I also think the Democrats need to think big (Mark Field has addressed this) and the filibuster is only part of the problem there.
Sanders labels himself a "democratic socialist," but like my representative, what this generally amounts to is standard left leaning Democratic proposals, many of which in some sense have broad popular support. "Communist" is a buzzword that was used to scare people since it was used in the 19th Century against a mild income tax (see the Income Tax Cases).
"The GOP has and will have for a while a natural advantage in the Senate because it discounts the votes of people for the votes of geographical political sub-units."
To supplement Joe's points, it's the counter-majoritarian nature of the Senate that makes it imperative to abolish the filibuster. Over the next 20 years, the Senate majority will be elected by an ever decreasing proportion of America: roughly 30% by 2040. The Dems have little chance of gaining a majority there. When they do get one, they must use it in a very narrow window before they lose it again. If they let the Rs filibuster Dem policies, there will never be Dem policies. As for the Rs, yes they may again control the presidency and both Houses. If they want to pass legislation under those circumstances, the filibuster won't be allowed to stand in their way. It's a one-way ratchet, which is why McConnell has preserved it for now -- he's hoping the Dems hobble their own ability to govern by keeping it, knowing that the Rs will not if and when it's their turn.
Naturalizing all illegal aliens, admitting several territories as states, using the "time, place, and manner" power to mandate gerrymandering and prohibit ballot security.
Brett, These accusations have no relation to reality.
For better or worse, his flamboyant willingness to embrace the label of democratic socialist and to offer some (merited, by the way) praise of Fidel Castro even while (equally justifiably) denouncing his regrettable excesses, unfortunately suggests that ignorance or ideological rigidity is more likely to be the explanation than more ordinary political opportunism.
Ah. But did Castro make the trains run on time? Sometimes unreliable train schedules are acceptable, given what it might take to improve punctuality.
Byomtov, these accusations are all things that I have seen advocated by Democrats. Not random living in their mother's basement Democrats. Democrats like Tushnet, who posts here from time to time. They're obvious entrenchment moves which can be accomplished by a bare majority if the filibuster is eliminated.
Do I expect them all to be enacted on the first day, if Democrats recapture the Senate and the White house this fall? No, not really. Then again, neither would I be shocked; The Democratic party went into the 2016 election expecting to come out owning everything, and was utterly confounded. Something broke in a lot of Democrats that night, many of them started embracing tactics, like trying to suborn electors, that they'd previously disdained. We've been watching that newfound "by any means necessary" philosophy in action for the last 3.5 years. Look at Sandy, and his determination to deny Trump "the presumption of regularity"! A lot of Democrats don't think the old rules apply anymore. I didn't expect Reid to eliminate the filibuster for the lower courts, but he did. Since that, I pay more attention to this sort of scheming. Why did I bring these up? To point out to Rick that, while getting rid of the legislative filibuster might seem stupid to do in isolation, (In the same manner packing the Court seems stupid in isolation.) it's not so stupid if you're planning on using the temporary advantage to entrench your majority. If a new Democratic majority eliminates the filibuster, and especially if they pack the Court, expect legislation like this. You don't do things like that and not use them.
Brett,
I'll leave it to Tushnet to respond for himself, while noting that he holds no political position whatsoever. As to the rest, I'd say you are projecting again. It is in fact the Republican Party, with more than a little help from the Trumpist Supreme Court, that is engaging in a widespread campaign of entrenchment, through gerrymandering, voter suppression, a barely failed attempt to rig the census, phony "vote fraud" claims, providing insufficient numbers of voting places, etc. Show me the Democratic equivalents of fraudsters like Kobach, von Spakovsky, Adams, Hofeller, DeSantis, Kemp, and so on. While you complain about what a few random Democrats may have said, your side has actual officials, elected and appointed, and staff working to entrench itself. Read some real news sometimes.
"It is in fact the Republican Party, with more than a little help from the Trumpist Supreme Court, that is engaging in a widespread campaign of entrenchment, through gerrymandering, voter suppression, a barely failed attempt to rig the census, phony "vote fraud" claims, providing insufficient numbers of voting places, etc."
Democrats have developed a nasty habit of treating any election law or action they themselves wouldn't have done as "voter suppression". North Carolina decides to go from four to three weeks of early voting, while absentee ballots are freely available without cause? Suppression! Districts aren't deliberately crafted to negate Democrats' inefficient distribution? Gerrymandering! It's proposed to ask a question in the Census that historically was asked in most Census'? Rigging the Census! You seem to think you're entitled to have the entire system fine tuned to maximize your base's turnout! And, of course, since any failure to do this might minutely reduce turnout, it's "vote suppression". Meanwhile, you legalize ballot harvesting, a known enabler of absentee ballot fraud? You refuse to purge voter rolls, maximizing the potential for absentee ballot fraud? You object to any effort to investigate whether such fraud is happening? Perfectly innocent! But, I'm not a Democrat, I don't have any motive to pretend you're all shining examples of innocence and good will.
As to Mark's amendment to my comment, I'm inclined to think prophecy works best after the fact as seen in the Bible. But, his predictions as to the Senate do reflect reasonable population statistics.
At some point, change needs to come even if things seem locked in stone. He might have been a slave rapist, to quote he who shall not be named, but James Madison was right about apportionment in the Senate. A woman president might not be possible, apparently, but sanity there might be in the next twenty or so years. The 2020s should be interesting. I don't know what will happen there but like some other things that some take as a given, the filibuster is not like oxygen in the air or something. Modern governments manage fairly well without it or at least the form in place in D.C. now.
* Gerard N. Magliocca has talked about this on the blog and in academic writing such as here. See also, this article.
Anyway, Sanders to me is appealing to people in a rhetorical fashion while someone like Elizabeth Warren is more likely to be practical on how to get things done. Perhaps, that influences in a fashion why some Republicans are pushing people to vote for him today in South Carolina. I look at things somewhat differently than Sandy Levinson but welcome his comments.
It's funny to see Bircher Brett complain about Democrats 'cheating' when he's made it clear he's not a fan of democracy in principle. He's like the Woody Allen joke 'the food here is terrible, and such small portions!'
Partisan incoherent.
Democrats have developed a nasty habit of treating any election law or action they themselves wouldn't have done as "voter suppression". North Carolina decides to go from four to three weeks of early voting, while absentee ballots are freely available without cause? Suppression!
Yes, Brett. Because what motivated that shortening of the period was the fact that too many dDemocrats voted early. And I wouldn't hold NC's record as something to be proud of. Rather, it is a repeat offender. Districts aren't deliberately crafted to negate Democrats' inefficient distribution? Gerrymandering! Way more than that to it, Brett, and you know. Don't be disingenuous. It's proposed to ask a question in the Census that historically was asked in most Census'? Rigging the Census! A question which has not been asked for decades, is no longer necessary to get the desired information but will, in the virtually unanimous opinion of people who actually know a thing or two about it, suppress response rates in a predictable fashion, to the advantage of Republicans. Their own internal communications admit this, Brett, and further reveal that that was the purpose, not the laughable lie that they were trying to help enforce voting rights. So yes. Rigging the Census, no matter how many times your Limbaughesque excuses are repeated. (Yes, yes, it's just like asking whether you have a washing machine. That's your next excuse. More BS.) Is there any dishonest RW garbage you won't swallow and repeat?
I deleted a reply that was addressed elsewhere (if in a more blunt way than I did) but left in the links to discussion of the second section of the 14th Amendment.
I think you're demonstrating the problem: You don't see any room for somebody else to legitimately deviate from your policy choices. They either do what you'd do, or they're acting illegitimately, even criminally. Nobody is allowed to make different trade offs between competing values.
THAT is why I expect, the next time Democrats control both chambers of Congress and the White house, they will eliminate the filibuster, pack the Supreme court, and then enact entrenchment legislation to make sure they stay in control. Because when you can't accept anybody else's rule can be legitimate, what else can you do but everything in your power to prevent anybody else from ruling?
"Districts aren't deliberately crafted to negate Democrats' inefficient distribution? Gerrymandering!
Way more than that to it, Brett, and you know. Don't be disingenuous." I follow the debate about gerrymandering and redistricting reform quite closely. It isn't particularly well concealed that Democrats tend to use a definition of "gerrymandering" where the only way a district map ISN'T 'gerrymandered' is if it has been drawn to produce a result almost indistinguishable from proportional representation. This is known as "vote efficiency". Due to the fact that the distribution of Democrats in this country tends to be inefficient, with a large portion of Democrats living in areas where they are not merely the majority, but the overwhelming majority, almost any map which is not deliberately gerrymandered to favor Democrats will be net disadvantageous to them; Electing somebody with 80-90% of the vote is just a waste of votes, after all. In most states you have to gerrymander, often quite egregiously, to NOT have a map qualify as a "gerrymander" under the rigged definition of gerrymandering Democrats have been urging on the courts.
Everything is not some sort of Democratic plot.
Gerrymandering over the years is a matter of a range of things being taken into consideration and an attempt to gain/retain partisan control is a basic part of that. This was so since the term itself was crafted around two hundred years ago. At times, both parties in fact negotiated so gerrymandering helps both. So, no, so-called "inefficiencies" isn't the only reason why partisan gerrymandering is alleged, with "gerrymandering" used in regular fashion as well. Means to address partisan gerrymandering, such as independent commissions, are found in various places and like things like gun regulation is not merely supported by one party's members. Representation should be done in a fair fashion, and to the degree people for a variety of reasons in some areas live compressed together, it is a reasonable thing to do to address that factor. Proportional representation might be warranted to some degree, but it is not the only approach used to deal with partisan gerrymanders. Again, BOTH parties have used partisan gerrymanders over the years, using the term in a common sense way to mean that neutral procedures are not used, but lines are drawn purposely to benefit a party in a way that does not fairly represent the population at large. Supreme Court cases dealt with cases involving both parties.
Democrats tend to use a definition of "gerrymandering" where the only way a district map ISN'T 'gerrymandered' is if it has been drawn to produce a result almost indistinguishable from proportional representation. This is known as "vote efficiency"....
In most states you have to gerrymander, often quite egregiously, to NOT have a map qualify as a "gerrymander" under the rigged definition of gerrymandering Democrats have been urging on the courts. So according to you the only equitable way to draw districts is to give Republicans a systematic advantage, which they deserve because Democrats live in cities. Do you realize how laughable that is? Your obsession with the rights of acreage to represented strikes again.
So Brett claims Republican redistricting gurus aren't, in fact, deliberately creating an advantage (contra the leaked memos and internal documents that are now public, as well as common sense, which he seems to lack), but instead are merely incompetent?
No, I'm not talking about "equitable" at all. Personally, I'm in favor of proportional representation.
But we don't have that, we have single member first past the post elections. And "gerrymandering" has a meaning, and that meaning isn't, "Fails to reproduce the net outcome proportional representation would have." The meaning is drawing districts to produce a particular political outcome, particularly districts that aren't compact. Because Democrats are inefficiently distributed for purposes of single member first past the post elections, maps favorable to them do not naturally fall out of any neutral redistricting process. They're only produced if you deliberately set out do produce them, at the expense of neutral redistricting criteria such as compactness, equal population, respecting natural boundaries. If you Gerrymander, in other words. My preference, if we're not going to have proportional representation, is that the maps be computer generated entirely on criteria which totally exclude any consideration of electoral outcomes. I've suggested that the fairest way to do it is to computer generate 100,000 or so random maps, let each party eliminate 40,000 or so maps that it hates, and then pick one at random from the remaining maps. And screw whether the incumbents don't like what results.
"So Brett claims Republican redistricting gurus aren't, in fact, deliberately creating an advantage (contra the leaked memos and internal documents that are now public, as well as common sense, which he seems to lack), but instead are merely incompetent?"
No, I'm quite clear about the fact that Republicans AND Democrats engage in some degree of gerrymandering where they're able. I'm just saying that Democrats are at a natural disadvantage in doing that because of the way they're clustered together in cities. And that they have long attempted to get the courts to order gerrymandering for them under the guise of outlawing gerrymandering, by using a bogus standard for when it is taking place. I'd suggest that Democrats try learning to appeal to people who don't live in urban centers, instead of just trying to rule the entire country from them by utterly dominating the vote there.
"They're only produced if you deliberately set out do produce them, at the expense of neutral redistricting criteria such as compactness, equal population, respecting natural boundaries."
Two of those are not "neutral" criteria. You chose them as criteria because they benefit your party.
"I'd suggest that Democrats try learning to appeal to people who don't live in urban centers, instead of just trying to rule the entire country from them by utterly dominating the vote there."
I'd suggest that Republicans try learning to appeal to people who don't live in rural areas instead of just trying to rule the entire country from there by insisting that grass is more important than citizens.
Seriously? You're going to argue that there's no neutral reason to prefer that districts be compact, have equal population, or respect natural boundaries? Maybe you think there's no problem with districts that are shaped like salamanders? That combine disjoint areas distant from each other?
I think you've got it backwards: The only reason you have contempt for traditional neutral redistricting criteria is that your own party needs gerrymandering, and they get in the way of it.
Districts aren't deliberately crafted to negate Democrats' inefficient distribution? Gerrymandering!
Way more than that to it, Brett, and you know. Don't be disingenuous. Ask and you shall receive: "I'm quite clear about the fact that Republicans AND Democrats engage in some degree of gerrymandering where they're able." So, Republicans do gerrymander ... that wasn't that hard, was it?
"You're going to argue that there's no neutral reason to prefer that districts be compact, have equal population, or respect natural boundaries?"
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I agree that equal population is a proper condition, though I wouldn't refer to it as "natural". But compactness and "natural boundaries" (whatever those might be) are assuredly not. You're so blinded by your insistence on privileging grass over people that you can't even recognize the bias inherent in your "natural" criteria.
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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 |