We Are All Cafeteria Originalists Now (and We Always Have Been)

JB

I have posted a draft of my latest article, We Are All Cafeteria Originalists Now (and We Always Have Been), on SSRN. Here is the abstract.

Americans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be.

Cafeteria originalism is not a pathology or a falling away from a pure or correct version of constitutional interpretation. Instead, the persistence of cafeteria originalism in American constitutional culture reveals the deep rhetorical structure of American constitutional law. That is why non-originalists make originalist arguments all the time without thereby being converted to the originalist creed. And that is why conservative originalists have always had to leaven their theories with qualifications, exceptions, and epicycles.

Cafeteria originalism is our law. The most plausible versions of interpretive theory — including the most plausible versions of originalism — make their peace with cafeteria originalism; indeed, they enjoy the smorgasbord. Cafeteria originalism has multiple uses in American legal thought. It offers a powerful rhetoric for legal reform. It clears the ground for new doctrinal development. And it helps people express their contemporary values through appeals to constitutional memory.

Interpretive theories lie downstream from constitutional culture. Within that culture, originalist arguments are simply one element of a larger collection of rhetorical strategies. This produces the effect called cafeteria originalism. From the standpoint of conservative originalism, this fact is a problem. But from the standpoint of American constitutional culture, it is perfectly normal. It is just what we do around here.

Collaboration “Devolved”

Guest Blogger

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

Erin F. Delaney

Aileen Kavanagh has written a book that is beautiful in both words and in sentiment.  She deftly paints a vision of the separation of powers that goes “beyond the forms to norms” (p. 261) and privileges “inter-institution comity [or] ‘that respect which one great organ of the State owes to another’” (p. 98).  She has a normative and a positive claim:  In her view, the “long-term working relationship” (p. 102) among the three branches of government ought to be based on mutual self-restraint and mutual support, focused on reciprocity and reputation.  And Kavanagh argues, in the United Kingdom, that is the nature of the constitution.

Balkinization Symposium on Neil Siegel, The Collective-Action Constitution-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Neil Siegel, The Collective-Action Constitution (Oxford University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Tara Leigh Grove, Restoring Faith in Congress

3. Jack Balkin, The Collective Action Constitution(s)

4. Richard M. Re, What is the “Collective-Action Constitution”?

5. Jessica Bulman-Pozen, The Administrative State and the Collective-Action Constitution

6. David A. Strauss, The Collective Action Constitution and the Conscientious Legislator

7. Guy-Uriel Charles, Democracy As Collective Action

8. Erin F. Delaney, The Collective-Action Constitution and Comparative Federalism

9. Neil Siegel, The Collective-Action Constitution and the Community of Legal Scholars

The Preconditions for Collaborative Constitutionalism

Guest Blogger

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

Lawrence B. Solum

Aileen Kavanagh’s important book, The Collaborative Constitution, offers a deep, insightful, and optimistic analysis of constitutional theory that aims to displace the conventional narrative that pits judicial supremacy and the institution of judicial review against a form of legislative supremacy that would take constitutions away from the courts. Kavanagh’s alternative is a collaborative constitution—in which the constitutional order is structured via interactions between judicial, legislative, and executive institutions and actors. Kavanagh mostly explores these themes in the context of the United Kingdom with less extensive discussion of Canada and other commonwealth systems.  Although the theoretical chapters in the beginning of the book are framed generally, Kavanagh chose not to engage in in-depth exploration of the implications of her theoretical framework for other constitutional orders, including that of the United States. A wise choice, given the effort required to apply a rich constitutional theory to even a single constitutional system.

The Collective-Action Constitution and the Community of Legal Scholars

Neil Siegel

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

In The Collective-Action Constitution, I use what I have learned in law, history, political science, and economics to offer a broad, deep theory of the U.S. Constitution’s federal structure.  I argue that the Constitution’s primary structural purpose, both originally and today, is to empower the federal government to solve collective-action problems for the states and to prevent the states from undermining those solutions or causing such problems.  That main structural purpose is reflected in, and reinforced by, Chief Justice Marshall’s two holdings for the U.S. Supreme Court in McCulloch v. Maryland, 17 U.S. 316 (1819), that (1) Congress may create a national bank, thereby facilitating the solution of multi-state collective-action problems; and (2) states may not tax it, thereby preventing states from interfering with those solutions or creating collective-action problems. Any faithful account of what the Constitution is for and how it should be interpreted, I contend, should include that main structural function.

Constitutional Collaboration and Constitutional Showdowns

Guest Blogger

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

Mark Tushnet

            Aileen Kavanagh offers an extremely important alternative to the common way of organizing our thinking about constitutional review around the dichotomy “judicial” and “political” constitutionalism. We should see the political branches and the courts as collaborators in creating constitutional meaning, not as competitors one of whom must ultimately prevail.

Her analysis has two key components. The first is a distinction between the quotidian work of legislatures and courts and the moments of showdowns between them. Collaboration characterizes the former, conflict the latter. In their daily work our institutions collaborate to advance “the common goal of securing just government under the constitution” even as political actors disagree about the means of doing so.

Second, Kavanaugh insists that we take a realistic view of the actors themselves. Moving beyond the now well-accepted proposition that legislatures are a “they,” not an “it,” she asks us to look inside both the legislative and executive branches. When we do we see complex bureaucracies staffed in part by short-term careerists who are there for a while and then move on, long-term civil servants who build up expertise, and more. In the end, I suggest, Kavanaugh opens the way for us to construct an account of constitutional meaning that integrates the quotidian and the showdown.

Collaborative and Abusive Constitutionalism

Guest Blogger

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

Stephen Gardbaum

Aileen Kavanagh’s The Collaborative Constitution is a rich and wise book.  It has an adult in the room quality by comparison with the quarrelling pro-legislature and pro-courts camps, which have distracted us while the executive has quietly and nearly invisibly extended its domination almost everywhere.  With its emphasis on unwritten norms of cooperation, collaboration, and self-restraint among the three branches as perhaps the central feature of well-functioning constitutional government, the book provides a major and important corrective to both the Madisonian model of the separation of powers and the aspirations of institutional designers.

Balkinization Symposium on Aileen Kavanagh, The Collaborative Constitution

JB

This week at Balkinization we are hosting a symposium on Aileen Kavanagh's new book, The Collaborative Constitution (Cambridge University Press, 2023).

We have assembled a terrific group of commentators, including Erin Delaney (UCL/Northwestern), Stephen Gardbaum (UCLA), Lawrence Solum (Virginia), and Mark Tushnet (Harvard).

At the conclusion, Aileen will respond to the commentators.

"Post-Birth Abortions" (Warning: "NSFW" and Probably NSF My Reputation)

Mark Tushnet

With some trepidation but on the theory that it often makes sense to try to understand positions taken by those with whom one has deep disagreements, here’s my stab at the claims that my side would allow killing infants after very late term or post-birth “abortions.” My side responds that such actions are clearly infanticide in the latter instance and are probably infanticide in the former as well if the fetus/infant is “viable”—and are unlawful everywhere.

Roe clearly allows states to substantially restrict the availability of very late term abortions, etc., but it doesn’t require that they do so. Some of the proposals to protect the right to choose, opponents say, would allow such abortions/procedures. (I note that proposals to “restore Roe” wouldn’t in themselves do so. But, I’m reasonably sure that most supporters of “restore Roe” legislation have more than Roe in mind because, for example, such supporters want to repeal the Hyde Amendment, which according to the Supreme Court is compatible with Roe. And some supporters of “restore Roe” legislation would almost certainly press for expansive interpretations after enactment—including an interpretation that would require the state to allow very late term abortions. But what “restore Roe” means isn’t my concern here.)

The question then is, what do those proposals say about the treatment of the infant afterwards? Opponents refer to former Virginia governor Ralph Northam’s statement that “a discussion would then ensue between the physicians and the mother.” I think the most sensible interpretation of Northam’s statement, one that he later sort of confirmed, is that actions taken with respect to the infant would have to meet the medical standard of care required in the circumstances. Sometimes that standard of care would require substantial efforts to sustain the infant’s life; sometimes it would be, “let nature take its course”; and sometimes—I suspect rarely—the standard of care would allow doctors to take active measures that would have the effect of ending the infant’s life (the equivalent to the standard of care applicable to end-of-life treatment of anyone else). The bottom line, then, is that the “post-birth abortion” argument is actually about euthanasia: “Killing babies” is the rhetorical equivalent of “killing Grandma.” And serious arguments for and against allowing euthanasia are typically pretty complicated and nuanced.

In today’s political climate I don’t think we can expect arguments (about anything, really) to be developed with any degree of nuance, and so—to be clear—I’m comfortable with the response in daily political rhetoric from my side that no state permits infanticide. But there’s more substance to the other side’s arguments than that rhetorical dismissal suggests.

The Collective-Action Constitution and Comparative Federalism

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

Erin F. Delaney

Neil Siegel’s excellent new book, The Collective-Action Constitution, argues the U.S. Constitution must be understood in light of its structural purpose: its foundational attempt to articulate a system of shared and divided powers.  As foreshadowed by the title, Siegel’s claim is that the coordination and cooperation challenges that define collection-action problems drove the structure and enumeration of centralized power(s) under the 1789 Constitution, and that acknowledging and explicating these dynamics can help resolve interpretive questions.  I find much of Siegel’s account persuasive and look forward to engaging with the implications of his theory for U.S. constitutional law.  For purposes of this contribution, I will focus on its synergies with the current zeitgeist in broader federal theory and comparative federalism and raise a few questions for future work.

Against Some Common Versions of Constitutional Originalism: A Comment on Jonathan Gienapp

Mark Tushnet

Contemporary originalism has two components: a historical component describing the original public meaning/understanding of specific constitutional terms, and a jurisprudential component explaining why the material in the descriptive component has authority over us today. 

Suppose we take the first component as an effort to identify the meaning(s) given specific constitutional terms by actual white men in the late 1780s. Jonathan Gienapp shows in “Against Constitutional Originalism: A Historical Critique” that many self-designated originalist inquiries simply can’t identify those meanings. Working in the tradition of Quentin Skinner, Gienapp shows that contemporary originalist inquiries don’t attempt to describe the larger conceptual universe, including the concepts of a constitution and its fixity and law itself, within which the specific constitutional terms are located. But, he shows, those terms took on their public meaning only with reference to that larger universe. And, even more, Gienapp shows that wide disagreement existed about what the larger concepts meant. It would be miraculous, though not I suppose impossible, were the public meanings of specific terms to be widely agreed upon when placed in all the available conceptual universes of larger concepts. 

All that is fine, and as someone skeptical of originalism’s claims I’m naturally sympathetic to Gienapp’s critique. There’s another way to understand contemporary originalism, though, which Gienapp addresses but doesn’t fully confront because the self-described originalists who offer it allow him to criticize them by saying things that make it seems as if they were close intellectual relatives of other originalists, which allows Gienapp to subject them to the criticisms he levels at their relatives.

Start with the accurate observation that the actual practice of most originalists isn’t well suited to finding out what actual white men understood constitutional terms to mean, for the reasons Gienapp gives. (I was struck by the extent to which Gienapp uses the word “actual”—properly so—in his exposition.) One might infer from that observation that these originalists aren’t trying to find out what actual white men understood the terms to mean.

What might they be trying to do? Well, flip things around: Let’s say that these originalists are defining “original public meaning/understanding” to be “the material that our methods of inquiry produce.” My personal view is that the Baude-Sachs approach to which Gienapp devotes a chapter is a not terribly well articulated version of this proposition. Gienapp picks up on some of the places where their difficulties in articulation—mostly, attempts to demonstrate their continuing affiliation with traditional originalists—weaken their argument. He also notes that it’s early days for their approach and that maybe they or others will be able to clean it up. But, he also, I think accurately, says that at heart their approach isn’t really originalist in a sense that most self-identified originalists would recognize. (I can’t resist here an observation applicable to characterizing Jack Balkin as an originalist [as well as Baude-Sachs], from an anecdote associated with Abraham Lincoln: Asked, “How many legs does a horse have if you call its tail a leg?,” Lincoln answered, “Four. Calling a tail a leg doesn’t make it one.”)

To return to the proposition that the material turned up through the practices of self-described originalists is definitionally the public meaning/understanding: To the extent that this version is a definition, it’s hard to see what sort of critique could be leveled against it. The real work with respect to this version would have to be done by focusing on the second, jurisprudential component of originalism. My view is that, with respect to the common versions of originalism that Gienapp critiques, the jurisprudential component is a lot of hand-waving. Much of the hand-waving is no more than that; the “this Constitution” claim, which Gienapp refutes, is one as are quite common arguments about obligations flowing from versions of social contract theory and arguments about the superior neutrality or at least weaker subjectivity associated with originalism. For me, the best types of hand-waving are claims that the material has authority because the provisions as understood do a pretty decent job of giving us a well-functioning government and that other ways of trying to come up with such a government are, on net, less good. (I think this is a cleaned up version of an account offered by McGinnis and Rappaport.) But, with Gienapp’s critique in hand, the jurisprudential claim has to be wrong because these originalists haven’t identified what actual people understood the terms to mean and therefore can’t show that what they understood the terms to mean sets up a pretty decent government, etc.

Because the second, definitional, approach to original understanding is different, we’d have to know what the jurisprudential argument is about it. And because that approach isn’t central to contemporary originalism, we don’t have much to go on here. Again my sense is that the jurisprudential claim is or will be a lot of hand-waving, some of which will reproduce the not terribly good hand-waving we see with respect to the first version. The “pretty decent government” claim might survive, though I think a lot of folks will find it empirically unpersuasive.

Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Rogers M. Smith, And Forgive Us Our Debts: Race, Class, and Ideologies in America

3. Teresa A. Sullivan, Federalism, the Business Cycle, Debtor Organization and the Politics of Debt

4. Bradley D. Hays, State-building in the Judiciary, Judicial Independence, and Judicial State-building

5. Julie Novkov, Turning the Kaleidoscope on Debt Relief: What APD can Teach Us about How and When Politics Works

6. Devin Caughey, Debt relief as a window onto the American state

7. Carol Nackenoff, Move Over, Grant McConnell

8. Timothy P.R. Weaver, The Meanings and Pathways of American Political Development

9. Sarah Staszak, Debt Relief and the Multifaceted American State

10. Stephan Stoller, Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead

11. Emily Zackin and Chloe Thurston, Class, Race, U.S. Statebuilding and Popular Constitutionalism

Class, Race, U.S. Statebuilding and Popular Constitutionalism

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Emily Zackin and Chloe Thurston 

            We are grateful to Jack Balkin and Mark Graber for organizing this symposium and for convening such an illustrious group of participants. Thank you to our nine interlocutors – Rogers Smith, Teresa A. Sullivan, Bradley D. Hays, Julie Novkov, Devin Caughey, Carol Nackenoff, Timothy Weaver, Sarah Staszak, and Stephan Stohler – for their generous and insightful responses. We are unabashed fans of their scholarship, so it is a genuine honor to engage with them now about ours.

Given their brilliance, it is no surprise that each of these commentators has seen things in our book that we, who wrote it, did not. Each has also raised important questions that our book poses and cannot fully answer. We cannot do justice to all of them here, but we’ve tried to point toward fruitful approaches to several of these questions as we, along with our fellow scholars of American Political Development, constitutional politics, and American political economy, continue to investigate them.

Blogging Sabbatical

Gerard N. Magliocca

I've been an active blogger for fifteen years. After much reflection, I've decided that it's time for an extended break. Academic sabbaticals give people time to reflect and to work on other projects. The same will be true here.

I'll be back sometime next year. In the meantime, as Edward R. Murrow used to say when signing off, "Good night, and good luck."

Democracy As Collective Action

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

Guy-Uriel Charles 

Neil Siegel’s The Collective Action Constitution is an important book for scholars of law and democracy.  Admittedly, The Collective Action Constitution is broadly about constitutional interpretation and not about the law of democracy. However, understanding the Constitution through the telos of resolving collective action problems demonstrates the utility of Neil’s book outside his target area.  Commendably, Neil does not ignore democracy, though understandably, most of what he has to say is relatively short and comes toward the end of the book. In what follows, I’m interested in highlighting The Collective Action Constitution’s contribution to law and democracy.

The Collective Action Constitution and the Conscientious Legislator

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

David A. Strauss

Neil Siegel’s Collective Action Constitution is a terrific book. Its underpinning is an idea that is as basic as it is important: government exists to deal with problems that come from people living together in less-than-perfect harmony. Professor Siegel molds that general idea into a more precise claim. The U.S. Constitution, he says, should be understood as a way of dealing with collective action problems, carefully defined. Professor Siegel shows how that approach worked its way through U.S. constitutional law, consistently if often only implicitly and in general ways, from the beginning. And he applies that idea in a way that illuminates one subject after another: the book’s coverage of U.S. constitutional law is exceptionally comprehensive. The theoretical arguments are fresh, sophisticated, and clarifying, but – importantly – they never lose touch with actual constitutional law.

The Collective Action Constitution doesn’t just shed light on, and engage in criticism of, existing constitutional law; it opens doors, giving us new ways of thinking about constitutional questions. To pick one example, among many possibilities: I am not a fan of the anti-commandeering doctrine, but I think the book gives a better defense of it than anything the Court has said. Let me focus, though, on something that more directly implicates the central claims of the book: Professor Siegel’s discussion of Heart of Atlanta Motel v. United States and Katzenbach v. McClung, the 1964 Supreme Court decisions that upheld, on the basis of the Interstate Commerce Clause, the public accommodations provisions of the Civil Rights Act of 1964.

What Comes Next?

Gerard N. Magliocca

I'm reposting this essay that I wrote after Trump v. Anderson. Other than changing "President Biden" to "President Biden and Vice-President Harris," the rest of the analysis stands.

The Administrative State and the Collective-Action Constitution

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

Jessica Bulman-Pozen

In a field that does not want for entries, Neil Siegel has offered a powerful account of the U.S. Constitution’s primary structural purpose. The Constitution, he argues, was established to solve collective-action problems, including cooperation problems and coordination problems. Because the states generally cannot solve such problems on their own, the Constitution empowers the federal government, and Congress in particular, to do so. Harnessing the constitutional methodology of McCulloch, Siegel richly describes and defends what it means to understand the U.S. Constitution as a collective-action Constitution. In addition to the usual stomping ground of Article I, section 8, he analyzes a range of other provisions and practices, from interstate compacts to the right to travel to national security operations. And he offers suggestions for improving our collective-action Constitution in a time of congressional gridlock. It is a great achievement, a book I will happily return to in coming years as I teach and write about federal constitutional law.

What is the “Collective-Action Constitution”?

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

Richard M. Re

Neil Siegel has written a grand book on collective action problems and their pervasive role within constitutional law. The volume of course includes thorough discussion of topics like the Commerce Clause where collective action logic is familiar, but it also journeys quite a bit farther, reaching such diverse matters as interstate compacts, national security, federal court jurisdiction, and the presidential veto. Methodologically, the book deploys historical, game theoretical, doctrinal, and many other tools. And, perhaps most compellingly, the book also situates “the Collective-Action Constitution” alongside other constitutions, such as “the Reconstruction Constitution” (p.357) that protects individual rights. Recognizing multiple constitutions allows the book to pursue its thesis without losing sight of other foundational legal values within the legal system. It is hard to capture how wide-ranging, inquisitive, and nuanced this project turns out to be. If you want to better understand virtually any structural issue in constitutional law, this book can help.

The Collective Action Constitution(s)

JB

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

The basic thesis of The Collective-Action Constitution is that one should interpret the U.S. Constitution so that the national government is empowered to solve collective action problems among the various states. Siegel argues that this collective action principle also explains much of the design of the 1787 Constitution. The argument can be originalist but it need not be. It is a structuralist argument focused on contemporary solutions to contemporary problems. 

Many people have made arguments of this kind before in particular contexts, but no one, to my knowledge, has offered as comprehensive an account of the entire Constitution and its various provisions through the lens of collective action. It is a remarkable achievement that is unlikely to be surpassed.

Will a Credible Public Please Stand Up?

David Pozen

Public law discourse and practice revolve around the concept of the public. Public opinion is said to constrain the Court, curtail executive abuse, and determine the winner of interbranch conflicts. Agencies are asked to regulate for the public welfare while complying with public records laws, public meetings laws, and public notice laws. Courts grant preliminary injunctions in the public interest. And on and on.

But who or what is this public that is endlessly invoked as a source of practical guidance and democratic legitimacy for public law institutions and decisions? And how do the decisionmakers know what “it” wants or needs? Clear answers to these questions are elusive, as contemporary legal scholars and practitioners tend to appeal to the public without a great deal of specification or reflection.

In a new paper titled Looking for the Public in Public Law, political theorist Nikhil Menezes and I try to document this slipperiness; show how it elides important conceptual, empirical, and normative difficulties that have become increasingly acute in recent years; and suggest possible responses.

Here is the abstract:

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the American public as playing myriad roles in governance—checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on the questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, and to propose a pragmatic response—grounded in the recovery of the public’s role as an author and not just a monitor of public law. We first detail how public law’s stylized appeals to the public reflect analytic imprecision and inattention to the values, views, and votes of actual people. We then show how these omissions and obfuscations leave public law vulnerable to critiques from both the left and the right, which have been gaining force on account of broad transformations in the administrative state, social structure, and public sphere. It may not be possible to resolve these dilemmas fully or to redeem the public writ large as an agent in public law. But drawing on recent political science work on deliberative democracy, we outline a research and reform agenda for identifying, constructing, and empowering coherent publics (plural) capable of legitimating legal change.

Restoring Faith in Congress

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

 Tara Leigh Grove

         It often seems as though Congress is the most beleaguered government institution. Complaints of congressional gridlock and polarization—and talk of a “do nothing Congress”—abound. So it is refreshing to see scholarship that highlights the central role of Congress in our constitutional scheme. Neil Siegel’s The Collective-Action Constitution gives pride of place to Congress. Siegel argues that one of the Constitution’s original and primary purposes was to solve collective-action problems among the several states, and that Congress is the institution with both the constitutional authority and the democratic legitimacy to carry out this job.

         Siegel’s terrific work takes us painstakingly through the Constitution, showing how many of its provisions can be understood as designed to solve collective-action problems. Siegel forcefully argues that a collective-action theory explains not only Article I powers such as commerce, taxing, and spending, but also less-often-discussed provisions such as those governing interstate compacts, extradition, and the admission of new states to the union.

Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution

JB

This week at Balkinization we are hosting a symposium on Neil Siegel's new book, The Collective-Action Constitution (Oxford University Press, 2024).

We have assembled a terrific group of commentators, including Jessica Bulman-Pozen (Columbia), Guy Charles (Harvard), Erin Delaney (UCL/Northwestern), Tara Grove (Texas), Richard Re (Virginia),  David Strauss (Chicago), Keith E. Whittington (Yale), and myself.

At the conclusion, Neil will respond to the commentators.

The District of Columbia in Contingent Presidential Elections

Gerard N. Magliocca

Suppose a presidential election ends in a 269-269 tie. That would a trigger a contingent election in the House of Representatives with each state getting one vote. (This last occurred in 1825.)

In that contingent election, the District of Columbia would not be represented. This is strange given that the District chooses presidential electors and would be, by necessity, essential for triggering the contingent election. I wonder if the Framers of the 23rd Amendment considered this problem, overlooked the issue because contingent presidential elections are rare, or might have said that the District should be treated as a state with voting rights in Congress in this singular circumstance. 

Supreme Court Endorses Neutrality Triangulation Approach to Constitutionality of Platform Regulation

Guest Blogger

Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Stephan Stohler 

In his agenda-setting book Age of Reform, Richard Hofstadter claimed that an ethical code had evolved alongside the yeoman farmers of the nineteenth century. That code made a promise. If farmers worked hard and conducted themselves honestly and frugally in their economic affairs, they could largely expect to live a life where their needs were met.   The interesting part of Hofstadter’s story occurred in the latter half of the nineteenth century when industrialization ruptured the relationship between economic behavior and individual ethics. That rupture was driven in no small part by mechanical innovations and volatile market prices.  To overcome slight downturns in agricultural prices, farmers often transformed their farms into industrial projects, investing in land and machinery to increase their overall yield.  The problem, however, was that although their calculations were individually rational, the absence of coordination only exacerbated price declines as farmers collectively tended to overproduce, often leaving farmers in a position where they could not make good on their debts. 

The interesting piece of Hofstadter's work is not the economic story but rather the knock-on effects of such failures for a more general understanding of the relationship between economic behavior and collective morality.  Industrialization, especially agricultural industrialization, radically transformed an ethical system for which many Americans were unprepared. And Hofstadter's implicit thesis was that the politics of the Age of Reform could not be understood unless historians appreciated reformers’ dual efforts to shore up not just the economy but also to reimpose a moral order on American life.  While Hofstadter’s argument is interesting for understanding the politics of the era, the book never provided the kind of systematic defense of this argument.

Debt Relief and the Multifaceted American State

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Sarah Staszak

In The Political Development of American Debt Relief, Emily Zackin and Chloe Thurston provide a multifaceted, insightful, and highly important account of the politics and political development of debt relief.  Their nuanced, historical approach—which moves seamlessly between policy development in the courts and legislatures, as well as organizational efforts at both the state and federal level—provides a methodological scope that allows them to illuminate notable differences and possibilities in those mobilizing for debt relief over time.  The authors also deftly combine their analysis of policy development with the important fractures of race and racism that both empower at times white borrowers while simultaneously denying opportunities to Black Americans.  This is most notable in the late 19^th century, with the somewhat surprising mobilization (at least by today’s standards) of white farmers, occurring simultaneously with the rise of Southern and national racial exclusions and Black agricultural indebtedness. By the time of the New Deal, however, even white borrowers—particularly more industrial wage earners—became stigmatized as immoral, reckless with their money, and undeserving of government support. Despite this early period of success, then, from the New Deal on, Zackin and Thurston point to the puzzling lack of mobilization by those with debt in legislative debates over bankruptcy law, as well as the absence of labor and civil rights advocacy organizations in prioritizing debt issues.

The Meanings and Pathways of American Political Development

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Timothy P.R. Weaver

In this engaging and authoritative account of the politics of debt relief in the United States, Emily Zackin and Chloe Thurston make a major contribution to the burgeoning work on American political development (APD) that emphasizes political economy and that which views APD though a multi-scalar lens, thereby uncovering the different tempos and registers of political development at the local, state, and national levels.

In The Political Development of American Debt Relief Zackin and Thurston build upon their own influential work in these areas. While in Looking for Rights in All the Wrong Places, Emily Zackin refined our understanding of positive rights in the American political tradition through a focus on state constitutions, Chloe Thuston located the politics of credit and homeownership in the political economy at the urban, state, and federal levels in At the Boundaries of Homeownership. Having combined forces, Zackin and Thurston offer a compelling account of a highly consequential but understudied area of APD. In so doing, they tell a story that not only casts its eye on multiple levels of government but also across the ideas, organized interests, and institutions that both created and were created by struggles over debt relief. While so much could be written about this wonderful book, here I will focus on three areas that particularly struck a chord with me: the meaning of development, the role of ideas, and the related shift in party ideology and policy in the late twentieth century.

Call For Papers--National Conference of Constitutional Law Scholars

Gerard N. Magliocca

NATIONAL CONFERENCE OF CONSTITUTIONAL LAW SCHOLARS

THE REHNQUIST CENTER is pleased to announce the seventh annual National Conference of Constitutional LawScholars. This year’s event will be held at the historic Hacienda del Sol Guest Ranch Resort in Tucson on March 28–29, 2025. The late March weather should be beautiful, and the resort has breathtaking views of the Santa Catalina Mountains, with many outdoor recreational opportunities nearby.

As in previous years, there will be a series of panels organized by subject matter moderated by Distinguished Commentators. The program will also include several break-out “lightning sessions,” in which participants deliver short, no-paper presentations on early-stage projects followed by group discussion. The conference schedule will include plenty of time for informal conversation and outstanding food.

Martha Minow (Harvard) will give a keynote lecture. Distinguished commentators for 2025 include:

} Charles Barzun (Virginia) } Seth Davis (UC-Berkeley) } Seana Shiffrin (UCLA)

} Samuel Bray (Notre Dame) } Saikrishna Prakash (Virginia) } Amanda Tyler (UC-Berkeley)

All constitutional law scholars are invited to attend. Those wishing to present a paper for panel discussion should submit a 1- to 2-page abstract by Oct. 1, 2024. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by Nov. 1, 2024. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Those wishing to participate in a lightning session should submit a working title and 1- to 2-sentence topic

description by Oct. 1, 2024. Selected participants will be notified by Nov. 1, 2024. We welcome—and strongly encourage—concurrent submission of paper proposals and lightning-round topics.

The Rehnquist Center will provide breakfast and lunch for all registered conference participants and a Friday dinner and reception for panelists, lightning-round presenters, and commentators. Participants must cover travel and lodging costs. There is a conference registration fee of $250, which is waived for all panelists, lightning-round presenters, and commentators, as well as University of Arizona Law students and faculty. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.

Proposal submissions should be sent to Bernadette Wilkinson (bwilkins@arizona.edu) by Oct. 1, 2024.

Logistical questions should be directed to Arizona Law’s events team (law-events@list.arizona.edu).

CONFERENCE ORGANIZERS

} Andrew Coan (Arizona)

} Rebecca Aviel (Denver)

} Eunice Lee (Arizona)

} Shalev Roisman (Arizona)

} David Schwartz (Wisconsin)

Move Over, Grant McConnell

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Carol Nackenoff

Nearly sixty years ago, Political Scientist Grant McConnell famously contended that, from the founding era, Americans have been so fixated on curbing the abuse of public power that they were blind to the insidious exercise of private power.[1]  Unaccountable private associations and pressure groups frequently captured regulatory agencies, shaping important aspects of public policy.  And governance in private organizations lacked limits that might protect against tyranny over minorities. McConnell worried about the erosion of American democracy and declining pursuit of the public interest. Referencing Louis Hartz,[2] McConnell asserted that American political thought has been distinctive in its views about the exercise of private power, when private power is noticed at all, since class is not part of the American political vocabulary.

Debt relief as a window onto the American state

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Devin Caughey

The Political Development of American Debt Relief (PDADR) is a concise yet panoramic account of the political economy of debt relief over the course of American history. From Daniel Shays to Occupy Wall Street, it documents the mutable and sometimes surprising politics of debt as it has evolved since the founding. Along the way, PDADR provides an illuminating perspective on the development of the American state and its relationship to the American political economy.

Anyone familiar with the prior work of its authors will not be surprised at many of PDADR’s themes. In previous work, each author has helped illuminate the complex and distinctive character of the American state and the politics it engenders. In her work on state constitutions, Emily Zackin has shown that rather than being a repository of Lockean liberal principles enforced by politically insulated judges, the malleable constitutions of U.S. states have long been used by popular movements as vehicles for asserting positive rights and enacting specific legislation that constrains judicial discretion.[1] Chloe Thurston’s research on the politics of home ownership shows that while the U.S. public–private welfare state, with its emphasis on indirect mechanisms such as subsidized credit, “submerges” the state for beneficiaries of government largess, it can also politicize ostensibly market transactions in the eyes excluded groups.[2] Synthesizing the respective perspectives of its authors, PDADR highlights similar dynamics in the context of debt relief.

Is Democracy Coming to the USA? (with a nod to Leonard Cohen)

Mark Tushnet

Reading/skimming Democratizing Constitutional Law (Thomas Bustamente & Bernanrdo Goncalves Fernandes eds. 2016), in which I have a short essay on innovative processes of constitutional change in Iceland (now well known, of course) and Brazil (less well-known), I was struck by how narrow is the discourse on constitutional change/reform in the United States. Even suggestions for adopting an override mechanism of some sort are regarded as wildly outre and basically not worth thinking about. Part of the reason, I suppose, is that amending the national constitution is so difficult that the only things worth doing are efforts to innovate within the existing structure (though of course what "the existing structure" is, is itself contestable--whether a statutory override mechanism is constitutionally impermissible, which I take to be the standard position, depends on lots of reasonably contestable assumptions about existing law).

Why, though, are proposals for innovations in governance structures at the state and local level so limited (basically, I think, they're limited to tinkering with election rules)? (A fair amount of discussion of state-level innovations with respect to rights, of course.) Why isn't there scholarly discussion of the merits of Nebraska's single-house legislature as a model for constitutional reform elsewhere? Or, in the other direction (I suppose), why isn't there scholarly discussion of the merits of New Hampshire's enormous (both absolutely and relative to its population) legislature as a vehicle for democratic participation?

I know there's some discussion of the non-unitary executive (Sandy Levinson and others have done stuff on this) and some on nonpartisan districting commissions, but not, I think, much on the idea of creating an independent electoral management body for state-level elections even as there's heightened attention to the risks that partisan election management poses.

Maybe the problem is that a "democracy agenda" of constitutional revision is too obviously a "Democratic-Party agenda," though why that should deter scholars seems to me a puzzle (only in part because most in the US legal academy who are even modestly interested in these kinds of issues are Democrats anyway). Maybe it's time for an entrepreneurial law review symposium on democratic innovations for the United States but outside the mainstream of current discussions. (With the caveat as always that since I've retired I haven't kept up systematically with the literature and might well have missed a bunch of stuff bearing on this topic.)

Anyhow, another book worth looking at is the Handbook of Democratic Innovation and Governance (Stephen Elstub & Oliver Escobar eds. 2019) (with notably few contributions from or about the United States).

Turning the Kaleidoscope on Debt Relief: What APD can Teach Us about How and When Politics Works

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Julie Novkov

Debt is an  important part of the American economy. In the second quarter of 2024, the aggregate household debt balance hit $17.76 trillion dollars, having grown by $3.7 trillion since the end of 2019. Of this debt, 3.2% of this debt was in some form of delinquency, and in the second quarter of 2024 alone, around 136,000 people had bankruptcy notations added to their credit reports.[1] The emergence of a determined movement to seek debt relief for federally funded student educational debt has seen political success, twice securing regulations forgiving some portion of these obligations, but the regulations have faced stiff and successful resistance in court. In 2023, the Supreme Court invalidated the first effort authorized under the HEROES Act as beyond the scope of that Act’s regulatory authorization.[2] And on August 9, 2024, the Eighth Circuit upheld a district court injunction against the Biden Administration’s SAVE plan, which would have lowered payment amounts, stopped the accrual of interest, and forgiven some loans in as little as ten years.[3] Yet despite this recent flurry of interest, for many decades the United States has seen little broad mobilization around debt relief, and the current popular movement centering on student debt struggles against claims that the debt relief sought is unfair, rescues frivolous or foolish borrowers, and threatens to undermine honored norms of responsible personal financial management.

               In their wonderful new book The Political Development of American Debt Relief, Emily Zackin and Chloe Thurston use the tools of American political development to trace how the federal and state governments have addressed the problem of debt relief across US history. Most casual observers readily acknowledge the importance of debtor politics in the Revolutionary Era and the Founding, recalling both the US inheritance of a common-law system that punished indebtedness and the struggles over indebtedness that sparked Shays’ Rebellion and partially motivated the formation of the US Constitution. Discussion of debtor concerns then crop up around financial panics, but political movements for debt relief receive little independent analysis beyond broader considerations of class politics, populism, and the developmental trajectory of US political economy.

State-building in the Judiciary, Judicial Independence, and Judicial State-building

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Bradley D. Hays 

Emily Zackin and Chloe N. Thurston have written a thoughtfully constructed, carefully researched, and highly accessible study of debt relief in the United States.  The book’s primary contribution comes through its detailed analysis of how debt relief policy shifted from debt policies favorable to creditors to debtor-protective policies as debtors mobilized and, then, regression back to a creditor-friendly regime.  In telling this story, the authors also contribute to our understanding of institution building in the judiciary.  This story will be of interest to a wider section of academic who, like myself, know little about debt policy but are interested in judicial capacity and authority.  For the purposes of this review, I focus on this state-building and the way it connects to other episodes within the judiciary.  In doing so, I hope to point out how Zackin and Thurston’s work connects not just to state-building within the judiciary but to judicial independence and judicially driven state-building.

Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Alison LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Jonathan Gienapp, Inheriting the Constitution 

3. Greg Ablavsky, Facing Federalism(s) From Indian Country

4. Rachel A. Shelden, The Interbellum Constitution On Its Own Terms

5. Anna Law, Reflections on interdisciplinarity and periodization upon reading The Interbellum Constitution

6. Anne Twitty, Going Big by Going Small: Alison LaCroix’s The Interbellum Constitution

7. Simon Gilhooley, Forging Constitutional Politics through the Interbellum Constitution

8. Jane Manners, The Law and Politics of Exclusion in Alison L. LaCroix’s The Interbellum Constitution

9. Evelyn Atkinson, The Creativity and Tragedy of Interbellum Federalisms

10. Aaron Hall, Creativity, Constraint and the Long Founding Moment

11. Christian G. Fritz, The Complexity of American Federalism

12. David S. Schwartz, “Interbellum” versus “Antebellum,” or the Perils of Periodization

13. Connor M. Ewing , From Ideological Origins to the Interbellum Constitution

14. John Mikhail, A Federalism of Forgetting and Reimagining

15. Alison L. LaCroix, Both Descendants and Ancestors: A Response to the Contributors

Federalism, the Business Cycle, Debtor Organization and the Politics of Debt

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Teresa A. Sullivan

Conflict between debtors and creditors exists to some extent at all times and everywhere, but under some conditions important shifts in the relationship occur. This book seeks to explain what led to some of those shifts in American debtor-creditor relations. Three issues stand out in the analysis: constitutional federalism; business cycle downturns; and debtor social movements.

The privileged position of property, bolstered by contract, gave creditors the undisputed upper hand in the original English colonies. Federalism was a potential threat to this relationship, in case the newly constituted states tilted the balance more to debtors and away from the creditors, especially creditors located in other states. The constitutional reservation of bankruptcy to the federal government was intended to forestall this development. As the early chapters of this book document, throughout the eighteenth century some state legislatures did indeed respond to their constituents with forbearances, moratoria, and even outright nullification of Supreme Court decisions.

Both Descendants and Ancestors: A Response to the Contributors

Guest Blogger

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

Alison L. LaCroix 

Let me begin by thanking Jack Balkin and Mark Graber for generously organizing this symposium and for convening such a marvelous group of contributors. I’m extremely grateful to the participants in the symposium – Jonathan Gienapp, Greg Ablavsky, Rachel Shelden, Anna Law, Anne Twitty, Simon Gilhooley, Jane Manners, Evelyn Atkinson, Aaron Hall, Christian Fritz, David Schwartz, Connor Ewing, and John Mikhail – for their thoughtful and probing engagement with The Interbellum Constitution. Having sought in the book to capture something of the symphonic nature of early-nineteenth-century constitutional debates, I’m deeply honored to have such an esteemed audience of scholars gather in this forum to review the orchestra’s performance. It is both nerve racking and exhilarating to hear – from the wings – the commentators’ reactions to my efforts to animate the parade of characters and the raft of plots that constituted the highly theatrical worlds of nineteenth-century law and politics. 

The central claim of The Interbellum Constitution is that a distinct constitutional world existed in the United States between the end of the War of 1812, in 1815, and the beginning of the Civil War, in 1861. The book argues that scholars of constitutional law and thought have largely overlooked the period, mistakenly treating it as the “flyover country” between the “real” destinations: the founding and Reconstruction.

On the Genre “Too Much Law/Too Little Law”

Mark Tushnet

The publication of “Over Ruled: The Human Toll of Too Much Law” by Justice Gorsuch and Janie Nitze (no link, deliberately), coupled with my getting to another book in the genre “too much law” as I read down my accumulated shelf of unread books provoked me to think about the genre.

And Forgive Us Our Debts: Race, Class, and Ideologies in America

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Rogers M. Smith

With apologies to most of the law professors reading this, I start with a preliminary note of interest primarily to political scientists. Many of our quantitative behavioralist colleagues in the American politics and public law subfields have trouble concealing their desires to proclaim that the linked scholarly enterprises of American political development (APD) studies and historical institutionalist public law studies are “dead.” This superb book by two of the discipline’s brightest young senior stars, Emily Zackin and Chloe Thurston, shows that those endeavors are instead breaking vital new ground.

Though their study covers the whole of U.S. history, as only APD scholars and some allied law professors like Bruce Ackerman and Aziz Rana are prone to do, their core findings can be briefly stated. Even though opposition to debtor relief legislation contributed to the creation of the Constitution, even though it provided explicit new protection for contracts, even though the Supreme Court regularly invoked it to ban debtor relief laws up to the New Deal, in the 19th century, farm movements even more regularly won legislative enactments of a variety of kinds of debtor relief measures, though these almost exclusively benefited white farmers. But then, even though the Supreme Court finally approved a state relief measure for those who couldn’t pay their mortgages in Home Building and Loan Association v. Blaisdell in 1933, creditors began winning measures serving their interests in the latter part of the 20th century, up to the present—with, again, Black debtors suffering most as a result. While telling this story, The Political Development of American Debt Relief identifies, typologizes, and explains most of the major state and national laws that have governed debt and bankruptcy. It also lays out the battles over institutional structures that have led to today’s system of federal bankruptcy courts.