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

Guest Blogger

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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]