Draft Paper on the Equal Rights Amendment

Gerard N. Magliocca

Here is my draft article on the status of the proposed Equal Rights Amendment to the Constitution. I welcome any and all comments.
Posted 4:34 PM by Gerard N. Magliocca [link] (9) comments

Data Nationalization in the Shadow of Social Credit Systems

Guest Blogger

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Posted 9:00 AM by Guest Blogger [link]

Cultural contradictions of capitalism II

Sandy Levinson

Ross Douthat has a very interesting column in today's Times (online) noting the transformation in views especially by feminists with regard to the use of surrogates to carry children.  Without expressing my own view on the merits, I do find it a wonderful illustration of Bell's (and Deneen's) overall point that the power of libertarian-capitalist ideology, even for people who undoubtedly identify themselves as one the left, does indeed lead to a lot that was formerly solid melting into air.  Not surprisingly, a number of the hostile comments to Douthat's column denounced him for his failure to respect the capacity of women to make autonomous choices on how to use their bodies, including, of course, in effect renting them out to more affluent persons and couples.  All we have to do, of course, is to define exactly what constitute the conditions for "autonomous choice," as Kanye West recently reminded us (with stunning ineptitude).  The one thing we can be relatively certain about is that the judiciary will provide almost no help, since all American lawyers are socialized into a theory of contract that basically ignores, save, at most for a day, the problems of "duress" or "unconscionability" in favor of a model of arms-length bargaining and contractual freedom, as with, say, plea bargaining.



Posted 4:52 PM by Sandy Levinson [link] (57) comments

Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

Guest Blogger

• In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.
  
• Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
• These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

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Posted 3:35 PM by Guest Blogger [link]

The Cultural Contradictions of Capitalism

Sandy Levinson

I mentioned in a previous post some of my reactions to Patrick Deneen's interesting book Why Liberalism Failed.  I noted that many of his arguments are evocative of earlier critiques of liberalism written in the 1960s and early '70s.  One of the most important of those critiques was Daniel Bell's "The Cultural Contradictions of Capitalism."  As Marx had noted, one effect of capitalism was to disrupt settled societies, to "make all that is solid melt into air."  The decidedly anti-Marxist Joseph Schumpeter emphasized the importance of "creative destruction" in the capitalist project, i.e., to destroy existing industries and the communities that might have been based upon them upon the discovery of new and better mousetraps.  Although it is not my primary interest in this post, I do note a story in today's New York Times that emphasizes, altogether accurately, the extent to which  Donald Trump is engaging in the political economy of nostalgia, trying to restore industries, most obviously the coal industry, that will never ever make a come back because it has in fact been creatively destroyed by other sources of energy.  Texas, for example, is now the largest source of wind power in the US, and one finds very few Texans, other than the hapless Rick Perry, who believes that valuable dollars should be wasted on trying to revive a dying coal industry.  One might make much the same argument about steel.  But, as I say, that's not the primary focus of this comment.

Instead, I am completely fascinated by the column in Friday's Wall Street Journal, part of its regular series "Houses of Worship," on various religions in America.  The Journal, of course, is to be commended for taking an interest in American religious communities.  This weeks column, by Kim Woodward Osterholzer, is about "Faith and Family Among the Amish."  She herself is a home-birth midwife, now living in Colorado, having earlier lived for nine years in the Amish country in Pennsylvania.  She scarcely presents an attractive picture of the Amish; it is very different, for example, from the high-romanticism offered by Chief Justice Burger in Yoder.  Thus she writes that she "found barely functional homes filled with a bustling, Spartan folk wearing patched and sweat-stined clothes.  I was taken aback by the rough hands, the weather-battered faces, the round and weary shoulders, the bare and blackened feet, the swollen ankles, and the legs stranger with bulging veins.  I glanced when I saw how many young families lived in barns, shed and the basements of partly constructed homes....  I learned to regard with nonchalance the rolls of flypaper that dangled from the ceilings.  After a while, I hardly noticed the mice scampering under doors and along the edges of baseboards,,,, "  She also describes herself as "unfazed by the severity of the religion," which is structured around following the Ordnung, as interpreted by a bishop and two local ministers, "who are selected by lottery and serve for life while keeping their day jobs."  Perhaps needless to say, "women are never allowed to preach."

Lest one think that the column is a criticism of this completely totalitarian enclave of those who might be described by the unsympathetic as religious fanatics, the author in fact ends up with a tribute to what she saw.  "The Amish are a God-fearing, family-centered people.  They work hard, but they also relax and play.  Their lives are so untarnished by the broader culture that to be with them is refreshing...  The fruit of the Amish way i\of life is that it keeps its people better focused on what truly matters--faith and family.  They intimately understand the resilience and fragility of life and the certainty of death.  It keeps them close to the earth, in sync with its rhythms.  Whenever I departed from a visit, I would ask myself:  Do we really need the fear of hell driving us before we can make time to be with one another and enjoy the magnificent world God created for us?"  I suspect that one might find some similar elegies about some Hasidic Jews, who equally withdraw from the world and do everything they can to make sure that their children are indoctrinated into the ostensible virtues of the integral community and rendered basically unfit to exist in the outside world.

Deneen is Catholic, so I doubt that he would be completely taken with these descendants of German Anabaptists.  But they do instantiate the kind of small integral communities whose destruction by liberalism--defined either as the strong consolidated state favored by contemporary progressives or the buccaneer capitalism embraced by libertarians--he laments and seemingly wishes to return to.  There is an obvious problem, though.  If a significant number of Americans were persuaded even that milder versions of Amish austerity were desirable, American capitalism would collapse.  The Wall Street Journal devotes itself to covering those whose lives are devoted to extending the reach of capitalism, including, all importantly, the consumer-oriented societies that define success as owning the next big thing, whether the latest number IPhone or expensive watches or whatever.

I suspect that the Wall Street Journal would be hesitant to open its columns to serious hippies, assuming any are left, who call for the rejection of consumption in favor of the simple life.  Ordinary radicals, who might believe that everyone deserves an equal opportunity to buy Mercedes etc. are far less dangerous to the overall capitalist ethos than someone who preaches the virtue of asceticism, as do the Amish.  So why do they publish the column, and its conclusion?  I suspect it is because they recognize that almost literally none of their readers are likely to find asceticism a genuine virtue.  The Amish play the function of exotic animals at the zoo.  We can feel better about ourselves for tolerating them, but only so long as they do not in fact present a genuine threat to a society built on almost everything the Amish reject.

But Bell wasn't really concerned about the Amish. Rather, he noted that capitalism depends on the destruction, creative or otherwise, of existing ways of life.  My home town of Hendersonville, North Carolina is now a quaint tourist town instead of a community of local small businesses, etc, (where I worked when I was growing up, beginning when I was a ten-year old), because of Walmart, etc.  Donald Trump promises to restore communities in West Virginia and Kentucky that were built around coal, or Gary, Indiana, built around steel.  But, tellingly, he isn' promising to go after Walmart and other denizens of modern American capitalism that have destroyed many small communities.  (Nor do I necessarily think he should.  That, too, is the topic for other conversations.)

The Journal instantiates the most bizarre feature of the contemporary Right, i.e., the alliance between religious conservatives, many of whom genuinely yearn for community, and the agents of American capitalism who are completely and utterly indifferent about the consequences of their prosperity.  Think only of Facebook in this regard.  And, of course, the Journal adamantly supports the further destruction of labor unions, a destruction accurately credited by Stephen Brill in his own book Tail  Spin, as one of the sources of American decline over the past half century.  Opioids and suicide are genuine problems of public health, and they are in part a response to the "creative destruction" of modern capitalism.   





Posted 11:00 PM by Sandy Levinson [link] (56) comments

Hjalmar Schacht and Mitch McConnell

Mark Graber

Posted 2:33 PM by Mark Graber [link]

Nonnonjusticiability

Joseph Fishkin

If you read Justice Kennedy’s opinion in Vieth in 2004 together with the Court’s opinions this morning in Gill v. Whitford and Benisek, at some point it begins to become apparent that although everyone on both sides of the sharply pitched debate about the constitutionality of partisan gerrymandering is desperate for a victory in the Supreme Court, Justice Kennedy is strongly disinclined to provide such a victory to anybody. His dogged insistence on finding creative ways to avoid deciding these cases, even at significant cost to doctrinal coherence, at some point begins to suggest the possibility that his actual preference is for what we might call nonnonjusticiability: the vaguely Schrodingeresque state of affairs in which the legally correct answer to the question of whether such a constitutional claim can proceed or is dead is “maybe.”  The Court could continue to hold partisan gerrymandering claims nonnonjusticiable, if it wishes, right up until the 2020 Census, a state of affairs that would be unlikely to strike too much fear into the hearts of increasingly confident partisan gerrymanderers, with their increasingly impressive data and software. But, maybe just a little teensy bit of fear. After all, you never know when a nonnonjusticiable claim might suddenly get justiched—that’s the nature of nonnonjusticiability. Perhaps we should take seriously the possibility that this teensy amount of fear is the precise amount Justice Kennedy views as optimal. Anyway, today’s decisions might at least permit a little bit of development of partisan gerrymandering doctrine in some lower courts (development that often tends to be stunted in redistricting law by the special three-judge court system).

Posted 1:36 PM by Joseph Fishkin [link]

Police Surveillance Machines: A Short History

Guest Blogger

Posted 9:00 AM by Guest Blogger [link]

Happy Flag Day

Gerard N. Magliocca

Today marks the 75th anniversary of the Supreme Court's opinion in West Virginia State Board of Education v. Barnette, which remains Justice Robert H. Jackson's rhetorical masterpiece:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

Posted 9:23 PM by Gerard N. Magliocca [link] (25) comments

ACA's Former Foes Agree DOJ/Texas Have Severability Wrong - An Unusual Amicus Brief That Says a Lot about the Case's Lack of Merit

Abbe Gluck

Posted 3:22 PM by Abbe Gluck [link]

Technology, Political Economy, and the Role(s) of Law

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Posted 5:05 PM by Guest Blogger [link]

The De-Americanization of Internet Freedom

David Pozen

[Cross-posted at Lawfare]
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Posted 2:30 PM by David Pozen [link]

The Minsky Moment in Constitutional Law

Gerard N. Magliocca

During the Panic of 2008, fresh attention was given to the economic research of Hyman Minsky. Minsky proposed a theory to explain periodic financial crises that went something like this: The further the previous crisis receded from memory, the more people discounted the possibility that such an event would recur. This led them to take on more risk or deregulate, which eventually triggered the next crisis. And so on.

I wonder if we are now having a Minsky Moment in politics or constitutionalism. In other words, voters and some political elites may be taking for granted the benefits that have flowed from various institutions or practices developed since World War II (free trade, global institutions, rule of law, constitutional democracy, etc.). As a result, people think that we can take on more political or legal risk (in the name of one goal or another) without losing the benefits associated with those practices. Until, that is, there is a significant upheaval. Then everyone will reassert the older caution and learn their lesson until they forget again.


Posted 10:53 AM by Gerard N. Magliocca [link] (55) comments

Further reflections on "the common good"

Sandy Levinson

As noted yesterday both Patrick Deneen's and Steven Brill's new books, about which I am very enthusiastic, both ultimately turn on the belief that there is an ascertainable "common good" or "public interest" that is being ignored by feckless politicians, for whatever reasons, including, of course, the sheer power of the donor class.  I am not unsympathetic with this critique.  One of the reasons I have become so critical of the Constitution is that, as Mark Graber has pointed out, it is structured so as to assure that no national elected office-holder, including the President, truly has an incentive to think about the "national good."  Every member of Congress is beholden to local constituents.  The only difference between the House and Senate on this score, putting to one side the seven states with more senators than representatives, is that senators represent larger constituencies, but their incentive is to do what they believe these parochial constituencies desire.  Thus Mitch McConnell as the faithful ambassador from a dying coal industry.  Indeed, if one wants to understand why it's going to be so hard to win the "war on coal," one should begin with the fact that most of the largest coal producing states are small (in population) and, therefore, coal plays an exaggerated role in the consciousness of the representatives and senators.  (These states include Montana, Wyoming, Kentucky, and West Virginia, which have a total population of approximately eight million people (out of approximately 325 million people in the entire US), but who have, among them, 8% of the in the egregious and indefensible U.S Senate and, unlike the senators from, say, Illinois, they are not encumbered by in-state groups that might not be so completely committed to maintaining the supremacy of coal.  (Texas, a high coal-producing state, somewhat to my surprise, is now the leading center of wind-energy in the US.)

Although some (especially presidents themselves) claim that the President is the "tribune of the national people," the even more egregious and indefensible electoral college assures that most often the President is the faithful servant of the particular coalition that put him (so far) into power.  Thus, whatever FDR's "real views" might have been on civil rights, the New Deal, as Ira Katznelson has demonstrated, was shameful with regard to protecting the rights of Southern African Americans because racist Democrats were an essential part of the then-Democratic coalition.  (They have, of course, migrated to the Republican Party as a result of the Voting Rights Act of 1965.)  Similarly, the most shameful appointments to the federal courts in the past sixty years, prior to Donald Trump, were JFK's, who felt it "necessary" to pander to Mississippi Sen. James Eastland and others to provide "safe" judges.  Ohio, as a battleground state, has been the recipient of special solicitude from, especially, George W. Bush and now Donald Trump, though I suspect it wouldn't be that hard to find some similar examples from Bill Clinton and Barack Obama.  The only one of the three basic branches that might be free from this critique is, of course, the judiciary.  As Graber has also argued, one cannot possibly understand Dred Scott without realizing that there was a national desire that the Court, as the one remaining "national institution," given the almost total breakdown of Congress as a genuine governing institution, intervene and try to save the Union. Taney didn't do it, but, if one can accept Story's similarly-motivated opinion in Prigg v. Pennsylvania, it's not self-evident that Taney deserves all of the opprobrium visited upon him unless one takes the Garrisonian position, which I'm sympathetic to, that there might have been a more important value than maintaining the Union.   One might also try to defend the "Administrative State" in similarly national terms.

But these are all "political science" points, as important as they are (and which, perhaps, deserved more recognition particularly from Brill).  Far more fundamental, and quite explicit in Deneen's book, is the extent to which what political theorists call "modern" political theory, i.e., post-Machiavellian, basically rejects the notion of an ascertainable "public good" or "public interest."  I have written elsewhere that the most important single paragraph in "modern" political theory is from Hobbes's Leviathan, where he ruthlessly condenses Aristotle's six forms of government--monarchy, tyranny, aristocracy, oligarchy, constitutional government, and demagoguery, into only three.  (Some lists, incidentally, describe the last two as either a "polity" or a "democracy."  The point is that the second "contrast" terms, "tyranny," "oligarchy," and "demagoguery" or "democracy" Hobbes dismisses as merely the names for forms of government "misliked."  That is, there is no real "fact of the matter"; it's simply a matter of (arbitrary) opinion, so that we should analyze only three forms of government, based the sheer number of rulers:  Monarchy (one); aristocracy (the few); and then democracy (the many).

Madison was perhaps fatally schizoid about such matters,  reflected in the Constitution that he helped so much to design.  Many of the Federalist papers clearly presuppose the existence of "virtuous" dispositions that will lead leaders to prefer the common good to merely selfish "factional" interests.  On the other hand, he also seems to indicate, especially in Federalist 10, that it is basically futile to believe that selfishness can be tamed, that we need instead to construct a "machine" that will, with adequate bells and whistles, create a way of balancing out the various factional interests and, implausibly, perhaps, result in a public interest.  That way lies what came to be called "interest group liberalism," which triumphs especially in the 20th century.

When I entered graduate school 56 years ago, it was taken as a simple truth that normative political theory was basically dead, that "everyone" knew it was simply naive to use terms like "public interest" except in reference to a vector sum of bargaining among distinctly factional political interest groups.  Richard J. Daley and New Haven Mayor Richard Lee were the heroes of what came to be called the "pluralist" view of politics.

John Rawls is widely credited with reviving normative political theory with A Theory of Justice in 1971, but key to Rawls is that his approach was based ultimately on a model of "rational choice," in which entirely self-seeking individuals would realize that it was ultimately in their own interest to adopt "a theory of justice" that would maximize certain notions of "fairness" (because, after all, one could never know, in the original position behind a veil of ignorance, what slot one would inhabit when the veil was lifted).  Genuine commitment to a "public good" was not really central to the Rawlsian vision.  Moreover, as Michael Sandel argued, Rawls's ontology, as is true generally of "rational choice" models, was of completely isolated individuals concerned only with maximizing their own welfare.  (In this sense, there was less difference between Rawls and his chief libertarian critic, Robert Nozick, than one might think.)  Sandel, instead, emphasized (like Deneen), the extent to which we come into the world "embedded" and "encumbered" by community loyalties, norms, etc. Not only are they not easy to escape, but one can read Sandel (and certainly Deneen), more controversially, as suggesting that they ought not be escaped.  I dare say that most readers of this blog are "cosmopolitans" of one form or another who have long since left their original birthplace and, perhaps, family and religious traditions behind, and are not particularly taken with the pull of remaining loyal to initial "encumbrances" that in no sense are "chosen" or the product of any kind of "autonomy."  (It is clear that no libertarian can possibly be sympathetic with Sandel, or Deneen.)

But even with the revival of normative political theory and the rich array of books that are now being written, it is scarcely the case that there is anything close to agreement on what constitutes the public good or, even more to the point, on the epistemological tools by which we might ascertain it.  This is what makes arguments like Deneen's and Brill's (and, for that matter, your own favorite politician--both Brill and I are big admirers of Bill Bradley, who would have been a superb President) so genuinely problematic.  It is always tempting, and often correct, to claim that assertions of the public good are mere "ideology," i.e., gussied-up defenses of what are "in fact" merely selfish interests.  The main business of lawyers, after all, is to manufacture arguments favoring their clients in the name of impersonal interpretations of statues or the Constitution.  (Who would be so bold as to describe yesterday's voting rights decision about Ohio as five conservative Republicans making it easier for their party to remain in power rather than the good faith interpretation of two federal statutes?  It would be like describing the Court as the "running dogs of the capitalist empire.")  Going back to Plato and the Gorgias, Socrates distinguished between sophistry and true knowledge.  At best, many (though not all) of us believe that "true knowledge" is available with regard to a certain realm of "facts."  (The Flint water supply was contaminated with lead is not a matter of opinion; I also agree with Brill that it, like many other failures in our infrastructure, can be traced to fanatical Republican opposition to spending public money in a redistributive manner designed to help what Brill calls those who are "unprotected" by class or meritocratic privilege. ) But is it a matter of "fact" that poor people are "entitled" to decent water, public transportation, education, etc., etc., etc.?

I'm skilled at delineating the structure of legal and political debates, but I'm scarcely confident that I in fact know what the "public good" requires.  I remain enough a child of that aspect of my graduate education to be skeptical (just as I'm even more skeptical of claims to true and certain knowledge of what "the Constitution" requires of us).  My first book was "Constitutional Faith," and I have written subsequently of how and why I lost any real faith in the Constitution.  What Brill and Deneen are relying on, though, is perhaps a more important kind of faith, i.e., that we can in fact come to agree on what the "public good" requires and then identify leaders and groups who are committed to bringing it about.  Without some kind of such faith, I don't know how a democracy can ultimately function (unless, that is, one accepts the now generally discredited assumptions of interest-group-liberalism).  But requisite belief can't simply be summoned out of thin air.

More depressing thoughts for a late spring day (provoked by these two very interesting books).
Posted 3:23 PM by Sandy Levinson [link] (77) comments

Non-light reading for the summer of our discontent

Sandy Levinson

Posted 6:53 PM by Sandy Levinson [link] (28) comments

The Right of Rescission

Gerard N. Magliocca

I was away on a vacation and returned to see Sandy's interesting posts on the ERA. In one respect, I am in complete agreement with him. States should be able to rescind their ratification votes for an Article Five amendment. Thus, my view is that Congress should not consider the ERA part of the Constitution until SIX more states ratify (as five rescinded their yes votes in the 1970s).

Unfortunately for me and for Sandy, Congress may not agree when the time comes. In 1868, Congress disregarded rescissions by Ohio and New Jersey in declaring the Fourteenth Amendment ratified. And the Supreme Court stated, in Coleman v. Miller, that state rescissions raised a political question for Congress. (Remember that in 1939, when Coleman was decided, many in the South saw the Fourteenth Amendment as illegitimate because of its various procedural irregularities. The Court may well have had this in mind in saying that those sorts of questions could not be reviewed.)

What if Congress decides to follow the Fourteenth Amendment precedent and disregard the ERA rescissions? One point I will make in my draft paper on this subject is that you can read the 1868 rejection of rescission as requiring at least a two-thirds vote in each House of Congress. This is, in fact, what happened then. And there is a good reason for requiring a supermajority to reject state rescissions. First, such a rule recognizes the federalism interest in states getting to change their minds. Second, such a rule would alleviate concerns about the legitimacy of ratifying in the face of rescissions. (Basically, you would need a broad coalition of both parties to "count" rescinding states.)
Accordingly, if Congress insists that states do not have an unqualified right to rescind, then a two-third voting rule should be applied to the final decision to rescind.

Posted 11:15 AM by Gerard N. Magliocca [link] (16) comments

Just How Indefensible Does an Argument in a Government Brief Have to Be to Cause All the Career Litigators in Federal Programs to Withdraw from the Case?

Marty Lederman

Posted 10:20 AM by Marty Lederman [link]