Balkinization  

Wednesday, November 06, 2024

The Brits Let Me Down

Bruce Ackerman

The Brits decided that the American election wasn't sufficiently interesting to warrant around-the-clock coverage -- so the decided to end their broadcast at the stroke of midnight. Since I was supposed to join the conversation at 12:20, they responded to my clicks with an apology -- which I extend to anybody who searched for my comments and found a void. 


Tuesday, November 05, 2024

My Interview on Times Radio

Guest Blogger

Bruce Ackerman

I’ll be live on air with @CalumAM on @TimesRadio at 12:20am ET reacting to the results from the US election as they roll in… Tune in at times.radio and on YouTube where you can watch all the action too.. https://www.youtube.com/@ListenToTimesRadio 


Shifting Standards for What Constitutes a Dispute

David Super

      As we enter a day of suspense, likely followed by many more of disputes should former President Trump lose, I am struck by the divergence in our nation’s standards for what constitutes an adjudicable dispute.  Our judiciary, long led and now dominated by conservatives, has been steadily narrowing what claims may receive full consideration.  By contrast, the former President and his supporters, also wanting to be seen as conservatives, adamantly insist on greatly broadening the definition of a legitimate dispute.

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Friday, November 01, 2024

Just Security pod on historical threats to democracy and January 6

Corey Brettschneider

 I spoke with Tom Joscelyn, a principal author of the House January 6 Report, on the Just Security Podcast about my new book, The Presidents and the People. We talk about historical threats to democracy as well as Trump's attempted self coup. The link is here: https://www.justsecurity.org/104473/presidents-people-book-podcast/


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Corey Brettschneider, Brown University

www.coreybrettschneider.com


Thursday, October 31, 2024

The crumbly philosophical foundations of Trumpism

Andrew Koppelman

 To the extent that Trumpism has any intellectual basis, it's that articulated by J.D. Vance, and Vance's principal philosophical guru appears to be Patrick Deneen. I explain what's wrong with Deneen, philosophically and at the policy level, here.


Tuesday, October 29, 2024

Monday, October 28, 2024

In praise of the Washington Post’s cowardice

Andrew Koppelman

The Washington Post deserves our gratitude for its craven, contemptible decision not to endorse any presidential candidate.

I explain in a new column at The Hill.


Wednesday, October 23, 2024

Law and Historical Materialism: A Reply to Critics – Part II

Guest Blogger

For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism.

Jeremy Kessler 

In Part I of this Reply, I addressed objections to the naturalistic and transhistorical character of the minimal historical materialist account of law (“MHMAL”). MHMAL is naturalistic in that it: (a) takes the relationship between human and non-human nature to provide the ultimate, explanatory foundation of law and legal development; and (b) assumes that the causal structure of this relationship is uniquely accessible to empirical scientific inquiry. MHMAL is transhistorical in that it seeks to explain law and legal development by reference to individual and collective human propensities that are effectively invariant across historical epochs. Part II of this Reply considers how these commitments shape MHMAL’s understanding of the place of class struggle and ideology in the explanation of law and legal development. 

Several symposium contributors take MHMAL to task for marginalizing class struggle[1] and ideology[2] in its explanatory scheme. Although Law and Historical Materialism addressed both phenomena, it gave pride of place to others: on the one hand, the primacy of the development of the productive forces in explaining law and legal development; on the other hand, the potential role that “nonfunctional determinations” – such as aspects of culture and environment unrelated to a particular development of the productive forces – might play in such explanation. I am more confident about the explanatory primacy of the productive forces than about MHMAL’s openness to so-called nonfunctional determinations. But I will try to clarify why I think that the historical materialist explanation of law and legal development might be stuck with both, even as it accords significant roles to class struggle and ideology as well.

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Tuesday, October 22, 2024

Taking "Offers to Pay for Registering" Seriously (Probably a Mistake)

Mark Tushnet

 

Perhaps mistakenly (because almost certainly the pro-Musk/Trump side isn’t really concerned about legal details), in trying to think about the X flap over Musk’s lottery offer, I began to wonder about the possibility of a difference between lay and lawyers’ ways of interpreting statutes. Here, with excisions, is the relevant language: 52 U.S.C. 10307(c): “Whoever knowingly or willfully … pays or offers to pay … for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both…” I’m pretty sure that the “controversy” isn’t over whether giving someone a ticket to a lottery counts as “payment”: in lawyers’ terms, and probably in lay terms, it’s something of value (you could sell your lottery ticket to another sucker and buy a candybar).

 

So, the “controversy” is over the meaning of the words “for” and “offer.” “For” first: Suppose you announce that starting tomorrow you’ll pay any registered voter $5. The day after tomorrow someone comes up to you and shows you a voter registration card dated tomorrow (that is, after the voter learned of your offer). You give her $5. Have you paid her “for” registering? I’m pretty sure that most lawyers and lay people would say, “Yes.”

 

The next person in line shows you a voter registration card dated three years ago (and still valid). You give her $5. Have you paid her “for” registering? Or, have you paid her for having registered? And is paying someone for having registered where the person had no expectation of payment at the time of registration covered by the statute, that is, the same thing as paying someone for registering after knowing of the offer of payment? If there’s a good faith disagreement here, it’s that many lawyers are comfortable in saying that paying someone for having registered, without expectation of payment, is covered by the statute and many lay readers think the difference between having registered without such expectation and registering after learning of the offer matters.

 

Does “offer” matter? Suppose Musk says to the person who registered three years ago, “Sorry, you’re not covered by my offer,” and gives $5 to the other person. I’m pretty sure that most lawyers and lay people would say that Musk construed his words as an “offer to pay” people “for” registering. What if he said to the one who registered after learning of the offer, “Sorry, you’re not covered by my offer.” I’m reasonably confident, though not quite sure, that most lawyers and lay people would say that he hadn’t offered to pay people for registering. That is, in this context both groups would distinguish between “for registering” and “for having registered.”

 

Finally, what if Musk says, “I don’t care when you registered, you each get $5.” Was his initial offer, which didn’t specify when the registration occurred, an offer to pay for registering? My guess is that this is where the lawyer-lay divide kicks in (if it does in good faith). Many lawyers would say, “Of course this is an offer to pay for registering—at least as long as there’s even one person who registers after learning of the offer and seeks payment. And (if it matters) we think it probably would be OK for the burden to be placed on the defendant to show that no such person existed.” If there is good-faith lay disagreement, it’s because lay readers think that you’re not offering to pay someone for registering if (lots of) people fall within the offer’s coverage even though they registered before the offer was made.


Friday, October 18, 2024

The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It

Corey Brettschneider

On Monday, October 21, the Harvard Safra Center will host an event on my new book, The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It.

In the book, I argue that the presidency has always posed a threat to American democracy, a threat seen in Patrick Henry's warning about how weak the supposed formal checks on the office would be if a president with authoritarian ambitions came to power.

Specifically, I show, in a series of case studies, that we have seen that threat play out multiple times when presidents with authoritarian understandings of the Constitution have come to power. John Adams waged war on the national press of the early republic, overseeing numerous prosecutions of his critics. In the lead-up to the Civil War, James Buchanan colluded with the Supreme Court to deny constitutional personhood to African Americans. A decade later, Andrew Johnson urged violence against his political opponents as he sought to promote a white supremacist republic after the Civil War. In the 1910s, Woodrow Wilson modernized, popularized, and nationalized Jim Crow laws. In the 1970s, Richard Nixon committed criminal acts that flowed from his corrupt ideas about presidential power. The actions and ideas of these leaders illuminated the dangers posed to democracy by the American presidency.

But I also argue these presidents didn’t have the last word; citizen movements brought the United States back from the precipice by appealing to a democratic understanding of the Constitution and pressuring subsequent reform-minded presidents to realize the promise of “We the People.” I profile the citizens-the newspaper editors prosecuted by Adams, Frederick Douglass, Ida B. Wells, Daniel Ellsberg, and more-who fought back against presidential abuses of power. Specifically, I argue that these figures helped lead "democratic constitutional constituencies" that prevailed upon recovery presidents to put back in place the norms and institutions damaged by authoritarian presidents. It is this citizen-led political check, rather than the supposed checks of impeachment and judicial review, that has often led to the recovery of American democracy.

I hope the book will be of interest to a wide group of academics as the book speaks to debates about popular constitutionalism, presidential power, and constitutional theory.


Sunday, October 13, 2024

Power for the People: Recognizing the Constitutional Right to Vote for President

Guest Blogger

Charlie Martel

Recently, I’ve argued for a federal constitutional right to vote for president. No court has yet held that citizens have an independent federal constitutional right to vote for president. In fact, the Supreme Court has twice held that under the Constitution, states have such “plenary power” to choose presidential electors that they can exclude citizens from voting for president. The Supreme Court cases rejecting the citizens’ right to vote for president are wrong for five reasons.

Read more »

Friday, October 11, 2024

Law and Historical Materialism: A Reply to Critics – Part I

Guest Blogger

For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism

Jeremy Kessler

I am indebted to the seven legal scholars who engaged so thoughtfully with Law and Historical Materialism, and to Jack Balkin for hosting a symposium on the article. As the symposium contributions make clear, Marxist legal thought remains a useful tool for studying the causal relationship between law and extra-legal social and natural phenomena. As the symposium contributions also make clear, there exists significant disagreement about the precise content of Marxist legal thought. For that reason, the article does not claim that its “minimal historical materialist account of law” (MHMAL) is a faithful rendering of Marx’s own understanding of law. Nor does the article claim that MHMAL offers a comprehensive overview of past or present Marxist legal thinkers. Instead, the article presents MHMAL as an interpretation of Marxist legal thought, an interpretation that aspires to be relatively simple, usable in legal and historical research, and consistent with other beliefs that left-leaning legal scholars hold about the world. That last criterion has occasioned the greatest pushback, which strikes me as all to the good. Such pushback reveals deep divisions within a scholarly community that might otherwise understand itself as united by the deficiencies of alternative frameworks – whether law and economics, critical legal studies, etc. To air these differences and, in doing so, to dissipate a false sense of intellectual unity, may be the symposium’s most significant, collective contribution. 

Notwithstanding the virtues of difference, I will begin with agreement. First, Sam Moyn and Eva Nanopoulos are right to suggest that the ultimate antagonist of MHMAL is not critical legal studies or law and political economy but the mainstream of Western Marxism. I agree with Moyn that CLS and its successors are best understood as offering variations on a set of themes that have dominated Western Marxist thought for the past seventy-five years. The critique of economic determinism, the emphasis on agency and contingency, the suspicion of naturalism – the leitmotifs of CLS and its successors are the leitmotifs of Western Marxism more generally. By presenting MHMAL as a Marxist alternative to CLS and its successors, I was indeed deferring a debate about MHMAL’s heterodoxy in relation to Western Marxist orthodoxy. Moyn and Nanopoulos fairly take me to task for not acknowledging and justifying this heterodoxy. I will try to do so more fully below. For now, I only want to note that while Law and Historical Materialism offers a heterodox interpretation of Marxist legal thought, that interpretation is neither especially US-centric nor entirely alien to the Western Marxist tradition. To the contrary, the article seeks to identify something of a dissenting tradition within and at the boundaries of Western Marxism, a dissenting tradition that places the interplay between human and non-human nature at the foundation of its understanding of law. As none of the contributors fail to note, G.A. Cohen’s semi-repudiated Karl Marx’s Theory of History is a major contributor to this tradition. But so too are a range of works by French, German, Italian, Nigerian, and Russian scholars on whom the article draws. 

A second source of agreement was more surprising to me. Most of the symposium contributors agree that strong avowals of the indeterminacy, contingency, and/or autonomy of law are neither consistent with historical materialism, broadly construed, nor especially useful for left-leaning legal thought and practice. Contribution after contribution affirm that the form and content of law is heavily determined by extra-legal social conditions, and, consequently, that law develops in a manner that is heavily determined by developments in those extra-legal social conditions. Whether legal relations should be understood as basal or superstructural, whether law should be understood as a species of ideology or as shaped by ideology, whether law is a terrain on which class struggle occurs or a tool deployed by contending class fractions – these distinctions are not insignificant, but they are secondary to the general sense that law and legal change ought to be explained by reference to extra-legal social phenomena.[1] Such agreement is consistent with Moyn’s intuition that what left-leaning legal scholars need and want is, after all, a social theory of law. 

Given all this agreement, where do the deeper divisions lie? All over the place, but I will focus on four sites where disagreement seems to be most intense and sustained. First, should a historical materialist account of law seek to explain the social conditions of law in terms of even more fundamental natural conditions? Several contributors take MHMAL to task for adopting a relatively naïve, naturalistic perspective, in which law and legal development are ultimately attributable to human beings’ relationship to, and struggle with, the non-human world. Second, should a historical materialist account of law admit transhistorical elements into its explanation of law and legal development? Several contributors take MHMAL to task for explaining law and legal development in transhistorical terms – such as relatively innate individual and collective human propensities. Third, what role should class struggle play in a historical materialist account of law? Several contributors take MHMAL to task for underemphasizing class struggle and overemphasizing the development of the productive forces in its explanation of law and legal development. Fourth and finally, what role should ideology play in a historical materialist account of law? Several contributors take MHMAL to task for saying too little about ideology, instead emphasizing other sources of complexity and constraint. 

In the remainder of Part I of this Reply, I will try to clarify my understanding of the naturalistic and transhistorical aspects of historical materialist explanation. A second post will take up the role of class struggle in legal development, and the relationship between law and ideology. Throughout both Parts, I will indicate where my understanding of these issues seems to overlap with or diverge from the perspectives of various symposium contributors. With respect to the naturalistic and transhistorical character of MHMAL, there is significant overlap between Brian Leiter’s perspective and my own. Even with respect to the question of class struggle, Leiter and I agree that the outcome of class struggle must ultimately be explained in terms of contending classes’ more or less “effective” use of the productive forces. As for ideology, the MHMAL’s approach lies somewhere between Leiter’s and Matt Dimick’s. It is harder to quantify the relative degrees of overlap and divergence when it comes to the other contributions, although I suspect that my clarifications will be comparatively more acceptable to Moyn, Paul Gowder, and Dimick than to Yochai Benkler, Nanopoulos, and Talha Syed. I will nonetheless suggest that Benkler’s account has at least a bit more in common with MHMAL (and Leiter) than one might think on a first read. 

A. Naturalism in Historical Materialist Explanation

Brian Leiter’s two-part symposium contribution offers several useful corrections to Law and Historical Materialism’s discussion of naturalism. I agree that all that MHMAL needs to be committed to is methodological, as opposed to substantive, naturalism, and that Law and Historical Materialism should have avoided suggesting that Marx himself was a substantive naturalist. Nonetheless, as Leiter’s own reconstruction of Marxist thought demonstrates, a commitment to methodological naturalism has real bite. Methodological (or M-) naturalists: 

refer the answers to all metaphysical questions to the scientific methodologies that are most successful at prediction and (in the case of historical sciences, like evolutionary biology) explanation.  For the M-Naturalist, if you want to know what exists, turn to empirical science, not philosophy. M-Naturalists then seek to emulate successful scientific methodologies, which means some amalgam of (i) drawing on established scientific results; (ii) collecting empirical evidence of their own; (iii) appealing only to well-established causal mechanisms in offering explanations; and (iv) engaging in inductive and abductive inferences over the evidence. 

Many Western Marxists – and, I imagine, many symposium contributors – would find this approach insufficiently critical of the social bases of scientific knowledge. I myself would soften Leiter’s deflationary account of the social construction of scientific knowledge: “Credible scientific theories of nature do not survive unless they are predictively successful, and they are not predictively successful unless they identify the actual causal structure of the world.” The determination that a scientific theory is “predictively successful” is the outcome of a social process.[2] Some scientific theories persist for a long time despite their failure to satisfy a certain metric of predictive (or explanatory) adequacy.[3] Nonetheless, I agree with Leiter that empirical scientific inquiry proceeds from the assumption that there is an “actual causal structure of the world,” and that historical materialism proceeds from the same assumption. 

Accordingly, when Law and Historical Materialism talks about “the social construction of nature,” it is indeed referencing what Leiter calls “causal” and “category” social construction and not “idealist” social construction. But it is precisely because a great deal of Western Marxist and contemporary left-leaning legal thought flirts with idealist social construction that I believe it is important both: to defend what Leiter describes as the “trivially true” alternative; and to identify a dissenting tradition within Western Marxism that thoughtfully critiques the idealist temptation.[4]  Leiter – and his student Lawrence Dallman – clearly can be counted as members of this dissenting tradition.[5] 

So we agree that there is an actual causal structure of the world. We also agree, I think, that the historical materialist account of law should strive for consistency with what empirical scientific inquiry learns about the actual causal structure of the world. What assumptions and hypotheses about that structure does MHMAL make? Leiter suggests that MHMAL should dispense with an assumption about human nature that it inherits from G.A Cohen’s version of historical materialism: “that human beings are always striving to increase productive power.” Instead, MHMAL should follow more carefully the lesson of Darwinian theory. All it needs to assume – or hypothesize – is that “when technological innovations occur that enhance productive power (the analogue of genetic mutations in the Darwin case) . . . the relations of production and ideological superstructure will change . . . to accommodate and support the exploitation of those productive forces [affected by the technological innovations].” “[T]hose changes” to the relations of production and ideological superstructure will, in turn, “predominate in the population affected by the technological advance.” 

I am happy to accept this redescription of how MHMAL might explain the relationship between technological and legal change. But I do not think it frees MHMAL – or Leiter’s account of Marx – of certain assumptions about human nature and human society. If one asks why the relations of production and ideological superstructure change to accommodate and support the exploitation of newly productive productive forces, the answer is going to have something to do with the propensity of humans – whether human individuals or human collectives – to favor or to be benefitted by enhanced productivity. I will make a similar argument when it comes to Leiter’s account of class struggle. I do not think Leiter’s account, Marx’s account, or my own can be stripped of a particular set of anthropological assumptions. Such assumptions are the source of much of the criticism that Western Marxists – and left-leaning Anglophone legal scholars – have historically directed at accounts such as Leiter’s and my own. 

For instance, neither Leiter nor I would object – I don’t think – to Talha Syed’s argument that the proper focus of “denaturalizing critique” is “to point to the ways that something that is social, and historical, is falsely imputed to asocial, or transhistorical, natural givens.” This form of critique is wholly consistent with Leiter’s worldview and my own. But the question remains what phenomena are truly imputed to asocial, or transhistorical, natural givens. One gets the sense that Syed would accept as true few if any claims about the explanatory power of “asocial, or transhistorical, natural givens.” Yet a historical materialist cannot do without them.[6] Similarly, neither Leiter nor I would object – I don’t think – to Yochai Benkler’s definition of productivity as “the capacity to turn nature into more of what people need and want with a given set of resources and labor,” or his insistence that the “continuous intensification of productivity” is a distinctive feature of the “historically unprecedented dynamics of capitalism,” dynamics ushered in by the generalization of commodity exchange.[7] Yet I also want to understand the extent to which the human “capacity” – and maybe even the human propensity – “to turn nature into more of what people need and want with a given set of resources and labor” contributed to the generalization of commodity exchange that unleashed the unprecedented dynamics of capitalism. To the extent that such capacities and propensities remain essential features of what it means to be human, that socio-physical fact ought to have some bearing on efforts to explain both the persistence of capitalism and potential pathways beyond it. 

When I drafted Law and Historical Materialism, I did not have the benefit of the American philosopher Vanessa Wills’s recent book, Marx’s Ethical Vision. Whether or not one agrees that Marx had an ethical vision, or with Wills’s reconstruction of it, the book makes the case for “a historical materialist account of human nature” with exceptional clarity.[8] Wills’s account begins by recognizing that: “Humans are natural beings in the sense that they are biological beings of a certain sort. In particular, they are mammals, with a particular anatomy, particular metabolic processes, and particular history of evolutionary development that has led to their emergence as a distinct biological species.”[9] What makes this species distinct is its propensity to “labor,” which Wills defines as “human beings’ goal-directed intervention into their natural and social environment, an intervention that humans initiate in order to satisfy their needs, and through which they necessarily transform their environment and themselves in the process.”[10] It is the human labor process that creates history; but this very fact entails something transhistorical about human beings, their labor, and what that labor produces. 

Before turning to the question of MHMAL’s transhistorical tendencies, I want to acknowledge that both Leiter and Moyn express reasonable discomfort with my suggestion that the only alternative to MHMAL’s naturalism is Thomas Nagel’s critique of the neo-Darwinian synthesis or the advocates of intelligent design. Perhaps that suggestion was rhetorically extravagant. But my rhetorical posture stems from a belief that historical materialists committed to methodological naturalism and the explanatory primacy of the productive forces tend to understate the strength of those commitments. Such commitments certainly allow for interpretations of human freedom distinguishable from divine intervention, and for a variety of solutions to the mind-body problem, but they exclude social theoretic approaches that reject the explanatory primacy of the productive forces or the belief that the world has one, actual causal structure uniquely accessible to empirical scientific inquiry. 

B. Transhistorical Aspects of Historical Materialist Explanation           

While several contributors raise concerns about MHMAL’s transhistorical aspects, Benkler’s critique is the most thoroughgoing. As the previous discussion of naturalism suggests, my view is that a historical materialist account of law cannot do without at least a few transhistorical assumptions. I have the further intuition that Benkler’s own approach is not bereft of transhistorical assumptions either. If that’s right, then our primary disagreements concern whose transhistorical assumptions are more plausible, and how relevant anyone’s transhistorical assumptions should be when it comes to explaining specific legal developments. Nor may that second disagreement turn out to be all that divisive. Benkler is surely right that his fine-grained explanation of the rise and fall of the Statute of Artificers is preferable, in most respects, to G.A. Cohen’s impressionistic sally, which I should not have used as the sole example of how MHMAL might work in practice. Nonetheless, there are costs to the version of historicism that Benkler commends. 

I will begin with some minor caveats about Benkler’s account of the Statute of Artificers because summarizing that account tees up our broader disagreements about transhistorical explanation. In addition to his meticulous research, what enables Benkler so deftly to balance constraint, complexity, and agency in his account of the Statute of Artificers of 1563 is the assumption that by the middle of the previous century, England was a capitalist society. With that assumption in place, the “institutionally imposed structural dynamics” that we associate with capitalism – market dependence for both subsistence and production, the “imperative” to pursue “profit on pain of losing your access to the means of production,” and the resulting political “influence of the profit-reaping classes” – go a long way to organizing the historical data that Benkler puts at our disposal. The Statute of Artificers and related legislation embodied “the competing demands, and lobbying, of major already-powerful capitalist sectors: urban trade and textile manufacture, on the one hand, and an emerging agricultural capitalist sector, farming reliant on wage labor in large commodity farming oriented farms, on the other hand.” The “social stabilization program” these capitalists put in place in in the middle of the sixteenth century “survived until the end of the 18th century, when the Smithian government of William Pitt the Younger led far more liberalizing reforms.” “Not a shred of feudal remnants in sight; nor of ‘productive forces’ ineluctably forcing their demise.” In other words, sometime between 1350 and 1550, capitalist social relations emerged and became dominant, along with the rural and urban capitalist classes themselves. Then, between 1563 and 1694, when the Statute of Artificers was partly repealed, “[n]othing important changed.”[11]

Some of Benkler’s own data, such as the “compression in real income distribution and rising rural standards of living” between 1650 and 1750, could be read as cutting against this insistence on a macro-stable – if characteristically crisis-ridden – social structure. Benkler attributes these economic phenomena to a combination of the legislative compromise that rural and urban capitalists brokered in 1563 and “continuous agricultural productivity growth.” Elsewhere, however, Benkler himself has placed more emphasis on punctuated technological change – in particular, the transmission to England of new agricultural tools and techniques by Dutch refugees beginning around 1568, five years after the Statute of Artificers was enacted.[12] These imports bear significant responsibility for the “revolutionary productivity gains” witnessed thereafter.[13] That is no reason to think that the putatively intra-capitalist legislative compromise that Benkler emphasizes in his symposium contribution did not also contribute to productivity gains, just as it took time for new agricultural tools and techniques to make their mark.[14] Yet a great deal was changing in the 1600s: in particular, the percentage of the English population living in large towns and cities more than doubled, and a second wave of Dutch technological imports further transformed English society and economy – particularly in the realms of manufacturing and transportation.[15] It seems reasonable to hypothesize that these developments might have contributed to the sort of de facto supersession of mid-sixteenth-century labor regulation that Cohen had in mind, as well as to the gradual institutionalization of “Smithian ideology” in the eighteenth century. More research would be necessary to make good on this alternative hypothesis.

For now, I want to make two more general points – one empirical, one theoretical – about Benkler’s starting point. That starting point is capitalism in the saddle. Since we know that capitalism was the law, so to speak, of the land, it makes sense that the Statute of Artificers was brokered by the leading capitalists of the day in pursuit of the profits that capitalist social relations required them to pursue. I have no objection to reasoning in this way – from macro-historical (if emphatically not transhistorical) social structure to the explanation of the behavior of social actors and the legal outcomes that their behavior produced. Nor do I have any doubt that Benkler has plenty of evidentiary support for his analysis of the social structure that obtained in 1563 and of the most influential actors within that structure. Nonetheless, Benkler’s treatment of mid-sixteenth-century England as a mature capitalist society– “[n]ot a shred of feudal remnants in sight” – is far from uncontroversial.

Benkler’s chronology roughly tracks that of the historian Robert Brenner, whose “historical-institutional political Marxism” Benkler commends as a subtler alternative to the Marxism on offer from MHMAL and Cohen. Benkler’s own approach is more subtle still, drawing on Veblen, Polanyi, DuBois, Pinchbeck, and a host of others. Furthermore, Benkler’s independent reading of early modern sources and scholarship avoids Brenner’s (and Ellen Meiksins Wood’s) tendency to overstate the role of the English countryside in the emergence of capitalism. Nonetheless, a range of liberal, institutionalist, and Marxist scholars have lodged powerful objections to the identification of a mature capitalist society in fifteenth and sixteenth century England.[16] I emphasize “mature,” because Benkler needs a fully operational capitalist “structure” in place to motivate his story of a durable, intra-capitalist compromise in the early 1560s. I agree with those scholars who cannot locate such a structure in the period when Benkler needs it to exist.[17] What I see instead is an uneven and combined development of capitalist social relations, with those relations gradually achieving dominance over feudal ones between the mid-sixteenth and the mid-eighteenth centuries. The “liberalizing reforms” described by Benkler in the late eighteenth century memorialized that dominance, although they certainly did not cause it. 

This empirical disagreement is relevant to our theoretical disagreements concerning transhistorical explanation in the following way. Benkler takes MHMAL to task for adopting “a profoundly, irreducibly transhistorical account of human nature no different from the transhistorical account of Smithian ideology.” More generally, Benkler argues that transhistorical dynamics are not the place to look for constraints on individual or collective human agency in historical explanation. Instead, it is “the historically specific structure of the society and time” that typically prevents an “individual choice” from becoming a “population-level social practice.” What Benkler means by “historically specific structure” is a set of sufficiently entrenched “social relations” or “institutions.” And it is these sufficiently entrenched social relations or institutions that constrain – and explain the constraints on – transformative human decision-making at a particular time and place. In the case of the Statute of Artificers, recall, it is the distinctively capitalist structure of sixteenth century England that ultimately explains the existence of the urban and rural capitalists and why they crafted the legislative compromise that they did. 

I have three reservations about such an anti-transhistorical social theory. First, I am not sure it can explain how capitalist “structure” came into being. Second, and relatedly, I am not sure how it deals with the possibility – mooted above – that sixteenth century England featured a mix of capitalist and feudal social relations without an obviously dominant social-structural logic. In the absence of such a dominant logic, from where does the social theory derive constraint and the explanation of constraint? Third, to the extent that such an anti-transhistorical social theory can explain how capitalist structure came into being, I doubt it can do so without resort to transhistorical elements of its own. 

With respect to the first two reservations, it might be the case that some pre-existing social structure – such as a feudal social structure, dominated by feudal social relations or institutions – is replaced all at once by a capitalist social structure, dominated by capitalist social relations or institutions. Or it might be the case that capitalist social relations gradually appeared within a society previously constituted exclusively or primarily by feudal social relations, and then gradually, for whatever reason, edged out the previously dominant feudal relations. In either case, we still need to explain the process by which the eventual dominance of capitalist social relations came about. In explaining this process and its outcome, however, we are not able to appeal exclusively to the constraints imposed by feudal or capitalist social structure. This is because the logic of the process by which one structure of social relations ceases to be dominant, and another structure of social relations becomes dominant, is what we are after. Accordingly, I think we need something like a structure of structures – or, rather, a transhistorical structure – that imposes constraints on the transition from one social structure to another. 

On Benkler’s account, it seems to be the existence of a society-wide structure – a set of dominant social relations or institutions – that generates the historical field within which non-transhistorical explanation takes place. (Something similar could be said about Syed’s implicit philosophy of history.) If that’s right, then the transition between one society-wide structure and another is a transhistorical process. Class struggle is one obvious candidate for such a transhistorical process – a process in which the classes generated by one society-wide structure come into increasing conflict, a conflict that eventually results in the victorious class’s construction (or at least superintendence) of a new society-wide structure. Class struggle, on this reading, is transhistorical both because it purports to explain the transition from one historically specific social structure to another, and because it purports to explain multiple such transitions.[18] This account is consistent, I think, with Leiter’s description of the causal role of class struggle in historical materialism. It is also consistent, as I will discuss in Part II of this Reply, with MHMAL.[19] 

An alternative to class struggle would be a process less focused on conflict between large social groups defined by their position in a historically specific production process and more focused on the gradual adjustment of historically specific social relations or institutions to historically specific social and natural pressures. As certain pressures produce certain institutional adjustments, those adjustments begin to have knock-on effects on other relations or institutions that were not, at first, affected by the initial pressures. Eventually, a new social structure emerges from this concatenation of adjustments. Such an explanatory framework, however, would be just as transhistorical as class struggle. For it purports to explain the transition from one historically specific social structure to another, and it purports to explain multiple such transitions. 

To escape the transhistorical regress, I suppose that the anti-transhistorical social theorist could argue that the process which leads from one social structure to another is always and everywhere distinct. There is no transhistorical process to speak of – each social structure generates its own unique mode of disappearance. There are two difficulties with this strategy. First, it does not work for historical cases in which a society features antagonistic sets of social relations or institutions, neither of which is dominant over the other. Earlier, I suggested that sixteenth century England might have been such a society. The truly anti-transhistorical social theorist, however, must deny that any such society could exist. There always must be a dominant set of social relations that explains how all the society’s relations relate to one another, and how the dominant set might someday lose its dominance. The second difficulty is even deeper. The very categories of “structure,” “social relation,” and “institution” are transhistorical in nature. The very claim that “each social structure generates its own unique mode of disappearance” is a transhistorical claim.  Any social theory that seeks to explain historical change will have to include transhistorical elements. The questions that remain are: how plausible are the transhistorical elements; and do they do too much explanatory work in the mine-run of historical cases? 

Reformulated in this way, I take Benkler’s critique of MHMAL to be grounded in the latter’s use of an implausible account of human nature to do too much historical explanation. For reasons discussed in the previous section on naturalism, I don’t find MHMAL’s account of human nature to be implausible. I do agree that such an account risks flattening historical specificity, and has done so in the past. But the transhistorical alternatives are not without their own risks. For instance, social theories that insist on the existence of dominant sets of social relations in every time and place, and task those relations with explaining their own transformation, tend to flatten historical detail as well. They also tend to lose interest in purely natural constraints on social agency. The trick, in all cases, is to remain fallibilistic about the theory and attentive to the detail. Benkler can undoubtedly be trusted to pull off the trick. Nonetheless, for reasons discussed above and in Part II of this Reply, I think there are advantages to grounding social theory – even and perhaps especially radical social theory – in a more naturalistic framework.[20] Within such a framework, transhistorical human propensities – including propensities that drive the structure and outcomes of class struggle – are particularly useful in explaining historical cases that lack an obviously dominant set of social relations. 

As Paul Gowder reminds us, the relevance and adequacy of a social theory is context- and goal-dependent. Both MHMAL and Benkler’s social theory of law – adumbrated over a series of important articles and in a forthcoming book – would, I think, qualify as “big social theories” in Gowder’s sense. Yet Benkler’s approach also possesses certain features of “small social theory,” which Gowder defines as “mak[ing] claims that are about relatively narrow domains of the social world—for example, about specific societies, specific time periods, or smaller social phenomena.” The focus of Benkler’s social theory is “what drives social relations” once the “historically unprecedented dynamics of capitalism” are unleashed. This is no narrow focus! Yet it is, as Benkler says, anchored in a “historically specific dynamic.” The focus of MHMAL is even less delimited. I do think MHMAL provides some useful guardrails when it comes to explaining specific legal developments within mature capitalist societies. But its motivating impulse is to get clear on the more general relationships between law, society, and nature before, during, and – potentially – after capitalism.[21] 

Inspired by Gowder’s call for social theories to be “humble” even if they are “big,” I can imagine a research program that favors Benkler’s approach when there is consensus about the relevant social structure guiding legal development, but favors MHMAL when the precise character – or existence – of a dominant set of social relations is in dispute. It is in the latter circumstances that MHMAL’s transhistorical commitments to naturalism and the explanatory primacy of the productive forces become most salient. Part II of this Reply will spell out in greater detail how those commitments shape MHMAL’s understanding of the place of class struggle and ideology in the explanation of legal development.

Jeremy Kessler is Stanley H. Fuld Professor of Law at Columbia Law School. You can reach him by e-mail at jeremy.k.kessler@gmail.com. 



[1] Talha Syed’s bravura contribution raises the deepest objections to this way of talking. But even Syed’s double-critique of historical materialism and critical legal studies leaves us with law understood as a system of “social relations” that are “in no way ‘legally constructed,’ nor simply indeterminately up for grabs.” Such historically specific social relations possess an “architectural systematicity” that can only be “targeted” and “transform[ed]” by “social agency.” The degree of such social agency itself depends on the “lucid[ity]” of our “social understanding” and the “effectiveness” of our “social practices.” Even here, law takes a back seat to the social, notwithstanding Syed’s dissatisfaction with the trope of “internal” versus “external” critique.

[2] See generally Barry Barnes, David Bloor & John Henry, Scientific Knowledge: A Sociological Analysis (1996).

[3] See, e.g., Harry Collins, Changing Order: Replication and Induction in Scientific Practice (1985); Donald MacKenzie, Inventing Accuracy: A Historical Sociology of Nuclear Missile Guidance (1990); Simon Schaffer & Steven Shapin, Leviathan and the Air-Pump (1985).

[4] Here, as elsewhere, Leiter suggests I worry too much about what various communities of Marxist or leftist scholars think. I suspect that the difference between historical and philosophical training helps to explain why I take the persuasiveness of a claim to depend more on what others have written than Leiter does. 

[5] See Lawrence Dallman, Marx’s Naturalism: A Study in Philosophical Methodology (2021); Lawrence Dallman & Brian Leiter, Marx and Marxism, in The Routledge Handbook of Philosophy of Relativism 88 (Martin Kusch ed., 2020).

[6] For this reason, among others, Syed’s preferred account of law rightly abjures both historical materialism and critical legal studies.

[7] Yochai Benkler, Structure and Legitimation in Capitalism: Law, Power, and Justice in Market Society 7 & 7 n.30 (Nov. 25, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4614192.

[8] Vanessa Wills, Marx’s Ethical Vision 46 (2024).

[9] Id. at 50.

[10] Id. at 48.

[11] Benkler might mean only that the partial repeal of the Statute of Artificers in 1694 itself changed nothing important. But that is a statement with which Cohen would have agreed. On his (and Christopher Hill’s) interpretation, the important social changes occurred in the century prior to repeal. See Christopher Hill, From Reformation to Industrial Revolution 18-19, 41, 71-76, 139 (1967).

[12] See Benkler, supra note 7, at 28.

[13] Id.

[14] For the limited if still identifiable impact of late sixteenth and early seventeenth century innovations on agricultural productivity growth before 1750, see S.N. Broadberry et al., British Economic Growth, 1270-1870, at 128-129 (2015); and Mark Overton, Agricultural Revolution in England 202-203 (1996).

[15] See Steven Pincus, 1688: The First Modern Revolution 49-90 (2009); William Sewell, Jr., On the Emergence of Capitalism: Marx, Brenner, and the Troublesome Case of the Dutch, 8 Critical Historical Studies 1 (2024).

[16] See, e.g., Overton, supra note 14, at 193-207; Geoffrey Hodgson, The Wealth of a Nation 8-14, 77-111 (2023); Neil Davidson, How Revolutionary Were the Bourgeois Revolutions?, 13 Historical Materialism 3 (2005).

[17] In a recent article, Bill Sewell offers both a helpful overview of the strengths and weaknesses of Brenner’s evolving approach, and a broadly persuasive, if streamlined account, of the interrelated origins of Dutch and English capitalism. See Sewell, Jr., supra note 15.

[18] Note that for class struggle to serve as a satisfying explanatory framework for structural transitions, the framework would have to include further assumptions about why classes come into conflict and the kinds of factors that determine the outcomes of such conflicts.

[19] Benkler and Syed reject this explanatory framework – on anti-transhistorical grounds – in a recent article. See Yochai Benkler & Talha Syed, Reconstructing Class Analysis, 4 Journal of Law and Political Economy 731, 738-739 (2024).

[20] Vanessa Wills nicely captures the intuition with respect to radical social theory: “We do not exist in a world that is shaped only by capitalists promoting capitalist ideas, building capitalist institutions, and enforcing capitalist property relations. We live in a world in which capitalists have an overwhelmingly significant role in determining human reality; but try as they might, their rule over humanity is no settled fact. . . . It is th[e] practical contradiction between capital and labor, its dynamic unfolding under changing historical circumstances, that increasingly draws the whole of humanity into a single, central conflict. The sharp, ever more all-encompassing character of this battle creates, as a material reality, the possibility of observing the species as a totality in motion, one riven by internal conflicts whose expression under different circumstances over time grants us insight into the nature of the species as one whole.” Wills, supra note 8, at 47.

[21] Many thinkers within the historical materialist tradition argue that Marx himself rejected such a transhistorical aspiration. I disagree, although I don’t think that particular disagreement is relevant for understanding the differences between Benkler’s approach and MHMAL. It is relevant for understanding a difference between my interpretation of Evgeny Pashukanis’s commodity form theory of law and Eva Nanopoulos’s. Nanopoulos writes that: “Kessler reads Pashukanis as offering an account of the ‘precise kind of legal relations that capitalist relations of production require – and generate’.  But this is not exactly what Pashukanis was after. Pashukanis saw law as a form of social regulation that emerges with and is tied to capitalism as the generalization of commodity exchange, not as a form of social regulation that pre-existed but was transformed by capitalism.” Pashukanis is more ambivalent on this point than Nanopoulos suggests. While it is true that Pashukanis argues that only under capitalism does the fully “crystallized” legal form become the dominant mode of social regulation, his historical curiosity prevented him from claiming that law emerged with capitalism. Evgeny B. Pashukanis, Law and Marxism: A General Theory 59 (Barbara Einhorn trans., 1983). That is why his General Theory includes detailed analyses of Roman and medieval law. Thus: “The municipal statutes were in part general charters, and in part an enumeration of isolated rights or privileges belonging to particular groups of citizens. Only when bourgeois relations are fully developed does law become abstract in character.” Id. at 120. And: “The earliest and most complete separation between the public-law principle of territorial sovereignty and private land ownership occurs in medieval Europe, within the city walls. It is there that the material and personal obligations pertaining to land disintegrate earlier than anywhere else into taxes and obligations in favour of the municipality on the one hand, and into rent based on private property on the other.” Id. at 137. See also Matthew Dimick, Pashukanis’ Commodity-Form Theory of Law, in Research Handbook on Law and Marxism 115, 120-121 (Paul O’Connell & Umut Uszu eds., 2021) (noting that, for Pashukanis, “the ‘juridical factor’ in social life appears wherever private exchange or private property” – and thus “the differentiation and opposition of interests” between individuals intrinsic to such exchange and such property – “exist,” but that “exchange relations under capitalism sharpen and purify this differentiation and opposition of interests to an unprecedented degree”).



Thursday, October 10, 2024

What Lawyers Want From History

JB

I've posted a draft of my latest piece, What Lawyers Want From History, to SSRN. Here is the abstract:

This short essay, written for academic historians, explains how lawyers who argue and decide constitutional cases use history and what they want from history.

Lawyers’ use of history is both normative and prescriptive. They construct a lawyerly version of the past to tell us what we should do in the present. This lawyerly construction of history has three basic features. First, lawyers use history to establish authority for their own arguments and to undermine claims of authority by their opponents. Second, lawyers channel history through standard forms of legal argument that shape what they see in history and what they look for in history. Third, lawyers construct memory. They are memory entrepreneurs who try to get their audiences to remember the past in particular ways.

Lawyers remake history in law’s image and for lawyers’ purposes. They beat history into shape so that they can use it in their quest for authority. To understand the legal uses of history, one must be clear-eyed about what lawyers want from history. Their practices follow their desires.


History vs. Originalism: The Bill Comes Due

Stephen Griffin

I've posted a book review essay to SSRN.  It will appear in Constitutional Commentary.  Here is the abstract:

This is a review essay of three highly significant recently published books concerning constitutional history, the controversy over originalism, and constitutional interpretation.  The books are: Jack Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation; Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique; and Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War.

The views of historians on how to best use historical evidence to interpret the Constitution have long taken a back seat in the debates of legal scholars.  I argue that this will no longer be the case once the legal academy has absorbed the lessons of these books.  Historians have finally weighed in and constitutional scholarship will be better for it.

While academic originalism comes in for substantial criticism in all three books, their more subversive theme is that giving history its proper due poses difficulties for the ordinary practice of constitutional lawyering as well.  Whether originalist or not, all lawyers and judges have much to learn from these books.

I'm very grateful to all three authors for the advance access I had to their manuscripts.



Wednesday, October 09, 2024

Rahimi and The Constraint of History

Guest Blogger

Lorianne Updike Toler & Robert Capodilupo
 
After all its hype, United States v. Rahimi, wherein the Court ruled this summer that states could bar domestic abusers from bearing arms, proved anti-climatic. Yet below the near-unanimous decision (only Justice Thomas dissenting), at least one debate raged: how history was and should be used by the Supreme Court.
 
According to Justice Kavanaugh’s concurrence, “absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.” And “[h]istory, not policy, is the proper guide.”
 
The concurrence then goes on to explain “how courts apply pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text.” In Justice Kavanaugh’s view, “there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences.”
 
And while history and precedent often find themselves at odds in constitutional reasoning, Justice Kavanaugh does not see these modalities as mutually exclusive. Rather, “pre-ratification and post-ratification history[ ] may appropriately function as a gravitational pull on the Court’s interpretation of precedent.” That’s especially true given the vast corpus of prior Courts’ own historical reasoning.
 
Justice Kavanaugh’s defense of history raises a quibble of many academics: can history work as Justice Kavanaugh assumes it can, to actually constrain a judge’s policy preferences?
 
Turns out this is just the question we answered in a quantitative study, The Constraint of History, published by the Harvard Journal of Law and Public Policy in 2023.
 
The answer? Yes. Kind of.
 
It actually depends on the type of history the Justice uses. After analyzing the outcome of every Supreme Court case that referenced the Constitutional Convention, our results showed that primary sources alone—at best, eye-witness accounts of events as they happen (but sometimes recorded later)—don’t constrain Supreme Court Justices to vote against their policy preferences. In that sense, we were unable to conclude that a Justice’s reliance on pre-ratification sources (and her own historical reasoning) had any constraining effect.
 
But we also found that a Justice’s reliance on secondary sources is associated with a Justice voting against her policy preferences. One caveat is that the Justices don’t often consult historian’s secondary sources (books or treatises) except for the very famous ones, and only very rarely.
 
However, Justices do consult judge-made secondary sources, or when the Supreme Court acts as a historian and collates and summarizes primary sources in their cases. It appears, then, that history and precedent can work in tandem to steer the Justices away from their policy preferences.
 
Our results challenge the conclusions of Frank Cross’s 2013 book, The Failed Promise of Originalism, which claimed to offer quantitative evidence of a lack of a relationship between the use of historical sources and the Justices varying from expected policy outcomes. But Cross relied on only descriptive statistics to back up his conclusions and failed to employ more robust inferential methods. Our study suggests that Cross’s work should not be seen as definitive evidence that Originalism has failed. 
 
The full study is available here  and, if you’d like to peak underneath the hood, our data is available here.
 
Lorianne Updike Toler is Assistant Professor, Northern Illinois University College of Law. You can reach her by e-mail at lautoler@gmail.com.

Robert Capodilupo is Judicial Law Clerk, U.S. District Court for the Southern District of Florida. You can reach him by e-mail at rcapodilupo@gmail.com. All views expressed are of the authors and do not represent the opinions of the federal judiciary.


Monday, September 30, 2024

Balkinization Symposium on Aileen Kavanagh, The Collaborative Constitution-- Collected Posts

JB


Here are the collected posts for our Balkinization symposium on Aileen Kavanagh's new book, The Collaborative Constitution (Cambridge University Press, 2023).

1. Jack Balkin, Introduction to the Symposium

2. Stephen Gardbaum, Collaborative and Abusive Constitutionalism

3. Mark Tushnet, Constitutional Collaboration and Constitutional Showdowns

4. Lawrence B. Solum, The Preconditions for Collaborative Constitutionalism

5. Erin F. Delaney, Collaboration “Devolved”

6. Aileen Kavanagh, Imagining America’s Collaborative Constitution: Part I

Aileen Kavanagh, Imagining America’s Collaborative Constitution: Part II





Saturday, September 28, 2024

Imagining America’s Collaborative Constitution: Part II

Guest Blogger

For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023).

Aileen Kavanagh

 

Of Norms and Forms

               As Professor Stephen Gardbaum rightly observes, The Collaborative Constitution emphasises the fundamental importance of unwritten norms in all constitutional systems.  Even in a country with a revered constitutional text like the United States, the normative force of that text depends crucially on whether the key constitutional actors treat that text as normative and binding on their behaviour.  This is the signature insight of H.L.A. Hart that all law bottoms out in non-law (i.e. in social norms), and at that level what matters most is whether the people in power commit to the constitutional rules of the game - aptly described by Josh Chafetz as ‘the ethics of constitutional commitment’.  Absent that commitment, the written text becomes a hollow hope – a ‘parchment barrier’ devoid of authority and force.  Beneath the constitutional forms lie norms; and beneath the constitutional architecture lie attitudes.  Instead of embracing the formal idea of ‘constitution as architecture’, my book explores the deeper terrain of ‘constitutionalism as mindset’.

               Gardbaum poses two key questions about this analysis.  First, if these norms are as foundational to all constitutional systems, does this flatten out the differences between systems and make my account ‘oblivious to context’?  Second, does my analysis overlook the consequential – and variable - impact of constitutional design on how a system works?  In emphasising norms, do I underestimate forms? 

               My answer to both of those questions is ‘no’.  In drawing attention to ‘the ubiquity of unwritten constitutionalism’, I do not underestimate the valence and variability of constitutional design.  As Gardbaum observes, constitutional design creates different basic structures of democratic politics.  Fundamental design choices – such as whether there is a parliamentary or presidential system - makes a big difference to how institutions act and interact in a structured constitutional scheme.  I agree with Gardbaum on this.  Design matters - and design differs - with myriad consequential effects for the success and sustainability of any constitutional system.

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