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Tuesday, September 27, 2022

LevinsonFest on Comparative Constitutional Design: Collected Posts

Guest Blogger

Ashley Moran
 
Below are collected posts on the LevinsonFest 2022 roundtable assessing pressing constitutional design issues through a comparative lens: 

1. Ashley Moran, LevinsonFest on Comparative Constitutional Design

2. Kevin L. Cope and Mila Versteeg, Should SCOTUS Term Limits Be Imposed Through Constitutional Amendment? Americans Don’t Care Much

3. Yasmin Dawood, The Hard-Wired Constitution and Comparative Constitutional Design

4. Rosalind Dixon, Constitutional Designment and Amendment: Towards Decreasing Amendment Difficulty?

5. Zachary Elkins, Checking in on the ‘Embarrassing’ Second Amendment: Lessons from Ukraine and Uvalde

6. Ran Hirschl, Comparative Constitutional Design: Northern Stagnation, Southern Innovation

7. Gary Jacobsohn, Comparative Advantage

8. Ashley Moran, Engineered Majorities: U.S. Senate Malapportionment in Comparative Context

9. Sanford Levinson, What Am I Doing Here? Reflections of a Relative Newcomer to the Field of Comparative Constitutionalism

 
Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.


Monday, September 26, 2022

Mark Graber

This essay discusses at some length the theory of Section 3 the Citizens for Responsibility and Ethics and I developed for the hearing in which Couy Griffin, a New Mexico County Commissioner and gleeful participant in the events of 1/6, was disqualified from holding present and future office under Section 3 of the Fourteenth Amendment.  Toward the end, I discuss briefly the case of Donald Trump.  Hope to do more of that here on Balkinization shortly.

90% of Legitimacy Is Just Showing Up

Gerard N. Magliocca

The legitimacy of the Supreme Court is often raised as a concern following controversial or unpopular decisions. Dobbs is the latest example, with sitting Justices murmuring about the issue and commentators saying the quiet part out loud. To my mind, this chatter is just hyperbole. There is a simple test for the Court's legitimacy: Do litigants stop participating in Supreme Court cases?

Take the affirmative action cases that will be heard next month. Suppose Harvard refused to file a brief and boycotted the oral argument. "The fix is in," Harvard might say, "and we refuse to dignify this sham hearing through our presence." Of course, Harvard is not doing that and never gave the idea any thought. Nor have any commentators. This is what you might call a revealed preference that the Court is legitimate and that no serious person thinks otherwise.

Now there are famous examples of Supreme Court boycotts. Marbury v. Madison is one and Worcester v. Georgia is another. In both instances, there was a serious view that the Court was not legitimate (at least in part) that the Justices formally ignored but informally acknowledged in denying an effective remedy to the party that showed up and won. (Today one wonders if the Court would appoint an amicus curiae to argue somebody like Madison's position rather than leave counsel's chair vacant.) We are nowhere close to that.

What Am I Doing Here? Reflections of a Relative Newcomer to the Field of Comparative Constitutionalism

Guest Blogger

Sanford Levinson
 
This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022.
 
First, as always, I want to convey my deepest thanks to the organizers of this splendid (at least from my perspective) project, Richard Albert and Ashley Moran—and to the indispensable Trish Do, who actually makes the Zoom project work without any foul ups. And, of course, I’m also very grateful to Jack Balkin for giving us this space on Balkinization. As wonderful as I’ve found the conversations, they are inevitably truncated, and it is even more wonderful to have the presentations available in this venue. And, of course, I’m immensely grateful to the participants. Some older readers might recognize in my title a reference to Admiral James Stockdale, Ross Perot’s running mate in the 1992 presidential election. As he began his own remarks in the debate among vice-presidential candidates, he asked why he was there at all, given the lack of fit between his distinguished military career and the demands of running for public office. So do I feel a certain sense of wonderment, for the contributors to this panel (and now symposium) are truly among the leaders of the ever-more-important field called comparative constitutional law. They have allowed me entry over the past decade or so, but that should not be confused with genuinely full membership into the rank that they collectively occupy. They have in effect been my teachers and I, their student, and I anticipate that that will continue to be the case in the future. This is not false modesty, but only honest recognition of the reality that most of my career was spent fixated on one constitution, that of the United States, and my move toward a more comparative focus came relatively late.
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Sunday, September 25, 2022

Elena Kagan and the Supreme Not-A-Court

Andrew Koppelman

The Supreme Court is supposed to decide questions based on the law, not public opinion. Yet its power consists solely in its ability to issue pieces of paper, which have no effect unless other officials, the ones with guns and money, respect it and are willing to enforce its decisions. 

Justice Elena Kagan and Chief Justice John Roberts have been having a public conversation about whether the Court is jeopardizing its legitimacy for reasons that go beyond mere disagreement with results. Recent revelations about a decision last June, declaring that a high school football coach had a right to publicly pray on the field, show that Kagan is right: The Court has a deep problem.

I explain in a new column at The Hill, here.

Engineered Majorities: U.S. Senate Malapportionment in Comparative Context

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Ashley Moran 

One of the central takeaways from my early interactions with Sandy was his appreciation for the myriad paths constitutional design can take in addressing a given democratic aim and his discerning eye for assessing the implications of these choices. It’s a point that has invigorated my own work since, particularly in the comparative sphere. And it’s in this spirit that I explore a compelling argument Sandy has raised (among many) in his critique of the U.S. Senate: today a majority of the U.S. population, concentrated in 9 states, is represented by a very small minority of 18% of Senate seats (Levinson 2010; Levinson and Levinson 2019, 39; Levinson and Balkin 2019, 178). My comparative bent wondered how such relegation of the majority compares globally. The topic would seem ripe for comparative exploration, since upper chambers are known for overrepresenting select groups and subnational units (Samuels and Snyder 2001, 658), yet there is relatively little comparative research on malapportionment in upper chambers. 

The topic of malapportionment is well-trodden ground, with established measures borne both of legal necessity following Baker v. Carr and academic study of the causes and consequences of malapportionment. Most of these measures, however, have not been applied to comparative contexts or upper chambers. A robust set of studies focuses on malapportionment in the United States (e.g., Schubert and Press 1962; Balinksi and Young 2001; Ansolabehere and Snyder 2008; Ladewig 2011; Cervas and Grofman 2020). Broad cross-national studies are far less common and focus almost exclusively on lower chambers (e.g., Bruhn et al. 2010; Kamahara and Kasuya 2014; Ong et al. 2017), with the notable exception of groundbreaking work from Samuels and Snyder (2001) that includes 25 upper chambers. In this post,[1] I apply a broader set of established measures than those seen in prior comparative studies of malapportionment, include a larger set of 49 upper chambers, and develop a new measure to explore Sandy’s critique of the U.S. Senate and compare majority relegation in upper chambers globally.[2] 

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Friday, September 23, 2022

Comparative Advantage

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.
 
Gary Jacobsohn
 
Twenty-five years ago Sandy contributed an essay to a book I co-edited on citizenship in which he began with a reflection on pedagogy that is recognizably Levinsonian. “Perhaps the most basic lesson of teaching,” he wrote, “is that the learning process can work two ways, and it is not always easy to distinguish the teachers from the taught.” In this particular essay Sandy was addressing the lawyer/citizen problem, namely whether a state—Connecticut was one that had done so—could limit membership to the bar to “loyal Americans,” individuals who were not associated by membership or propagation with “subversive” ideas. The issue had arisen for discussion in a seminar with Eastern European lawyers, a group whose members Sandy thought would benefit from exposure to a liberal academic lawyer’s reflections on the American experience.
 
It will come as no surprise that Sandy opposed the Connecticut policy, a stance that found him in agreement with the Supreme Court. And true to his pedagogical musings, that he could see his way to understanding why a political test for limiting legal practice was in certain instances justifiable is also not surprising. In an exchange with a Latvian lawyer who defended a citizenship requirement, he was left wondering if “the specific circumstances of Latvia” required a reassessment of her “tribal parochialism,” one that “might have implications even for our own, very different, political situation here in the United States.” This then led to some predictably thoughtful ruminations about small vulnerable societies, settings where cultural preservation might sensibly be seen as taking precedence over liberal universalism.
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Thursday, September 22, 2022

Comparative Constitutional Design: Northern Stagnation, Southern Innovation

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Ran Hirschl

In an earlier work, I suggested that the field of comparative constitutional law tends to draw on “a small number of overanalyzed, ‘usual suspect’ constitutional settings and court rulings.”[1]

The constitutional sphere in the United States, the UK, Canada, and Germany are honorable members of that commonly explored (to put it mildly) “platinum club.”[2] With notable exceptions such as South Africa, India, and Colombia (commonly invoked supposed posterchildren of “Global Southness”), much of the so-called Global South—an admittedly fuzzy category comprising some 150 to 170 countries in Africa, Asia, the Middle East, the Pacific Rim, Latin America and the Caribbean—is infrequently explored or represented. Consequently, “the constitutional experiences of entire regions … remain largely uncharted terrain, understudied and generally overlooked.”[3] The void has been somewhat mitigated in recent years, with an increasing number of works focusing on democratic backsliding and constitutional retrogression. Even so, here too a few constitutional settings (e.g. Hungary and Poland) have become the routine, near-cliché reference point for any discussion in that area.

The “unofficial canon” phenomenon poses a set of normative, epistemological, and methodological challenges for a field that purports to advance universal, generalizable, scientifically sound insights. When it comes to comparative constitutional design, however, the extensive focus on a dozen frequently explored constitutional settings is not a matter of representation, fairness, or justice, but a missed practical opportunity to engage with a living laboratory of constitutional innovation concerning some of the greatest challenges of our time. Unlike the largely stagnant national constitution-making enterprise throughout much of the Global North, many of the most daring and innovative constitutional experiments concerning issues such as climate change, urbanization, and democratic renewal have taken place in countries and constitutional settings of the Global South. The vast majority of these settings lie well beyond the contours of the oft-studied comparative constitutional “canon.”

Consider climate change and environmental protection—arguably the most significant global challenge currently facing humanity. Ecuador (2008) was the first country to enshrine the right of environment in its constitution. Article 71 is dedicated to Pachamama (Andean “Mother Earth”), providing for Nature’s “right to integral respect for its existence, the maintenance and regeneration of its life cycles, structure, functions and its evolutionary processes ... All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature … The State shall give incentives to protect nature and to promote respect for ecosystems.” Article 414 further states that: “The State shall adopt adequate and cross-cutting measures for the mitigation of climate change, by limiting greenhouse gas emissions, deforestation, and air pollution; it shall take measures for the conservation of the forests and vegetation; and it shall protect the population at risk.”

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Wednesday, September 21, 2022

Checking in on the ‘Embarrassing’ Second Amendment: Lessons from Ukraine and Uvalde

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Zachary Elkins

Going Platinum

Sandy Levinson’s oeuvre is so extensive that it surprised me to learn that his 1989 article on the second amendment was his third-most cited publication. The irony, of course, is the premise of the article: that scholars had largely neglected the second amendment. Given that inattention, “The Embarrassing Second Amendment” (“Embarrassing” hereafter) should be a “deep cut” from the Levinson portfolio, not one of his greatest hits.

The appreciation of “Embarrassing” has increased in recent years, much like the Beach Boys’ album “Pet Sounds,” which flopped when it was released only to go certified platinum thirty years later. By no means did “Embarrassing” flop, but it has had late-life resurgence, with each year more popular than the last. Much like Sandy’s career.

That the article has increased in its relevance is indicative of the direction of the Supreme Court and gun culture in recent years. Consider another irony: the article’s relevance is despite Sandy’s zealous efforts to focus our attention beyond rights (and their interpretation) and toward the hardwired, structural elements of constitutions. Alas, Sandy’s Our Undemocratic Constitution may be woefully incomplete—at least one of the founder’s rights may have suboptimally and catastrophically constrained the translation of citizen preferences to law. Admittedly, it could be that structural improvements would be enough to bring our approach to guns in line with Americans’ preferences.

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Tuesday, September 20, 2022

Constitutional Designment and Amendment: Towards Decreasing Amendment Difficulty?

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Rosalind Dixon 

Over the last 40 years, Sandy Levinson has left a large imprint on debates over constitutional design: while many American constitutional scholars of his generation have contributed to the “export” of American constitutional ideas and models, Sandy has consistently tried to warn the rest of the world against buying American. 

Nowhere is this more evident than in global debates on constitutional design and amendment. According to Sandy, there are numerous provisions of the Constitution that harm democracy in the US.[1] A lead example is the design of the US Senate, and the disproportionate power it gives to small states.[2] And rather than permitting these flaws to be corrected by a process of amendment, Art V of the US Constitution makes these flaws almost impossible to overcome: In Sandy’s words, it places democratic politics in America in an “iron cage”.[3] 

Sandy, then, is a strong advocate for flexibility in the design of formal constitutional amendment procedures. In large part, I share this view. Flexible procedures for constitutional amendment have numerous advantages from a democratic standpoint.[4] They allow for the periodic renewal of democratic consent to existing constitutional arrangements. They provide a means for updating constitutional norms and provisions, in response to changing norms and circumstances. And they provide a means by which democratic majorities can modify or override decisions by courts about which there is reasonable democratic disagreement.

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Monday, September 19, 2022

The Hard-Wired Constitution and Comparative Constitutional Design

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Yasmin Dawood 

Sandy Levinson’s book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)[1] is a landmark study of contemporary American law and politics. As I shall suggest in this essay, it also raises crucial questions for comparative constitutional design more broadly construed. In Our Undemocratic Constitution, Prof. Levinson focuses on the role and importance of what he calls the “hard-wired” parts of the Constitution. Setting aside some definitional ambiguities as identified by Sandy, the hard-wired Constitution refers to the basic structural elements of the Constitution and can be distinguished from rights provisions which are so often the subject of extensive judicial interpretation. To honour Sandy Levinson and his work, this essay will highlight some of the book’s contributions and, in addition, will explore its broader implications for constitutional design. In particular, I shall suggest that Prof. Levinson’s reflections on the hard-wired Constitution illuminate (at least) four categories of questions and issues that lie at the heart of comparative constitutional design.

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Sunday, September 18, 2022

Should SCOTUS Term Limits Be Imposed Through Constitutional Amendment? Americans Don’t Care Much

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.
 
Kevin L. Cope and Mila Versteeg
 
Professor Sanford Levinson is a long-time critic of both the U.S. Constitution and the Supreme Court as described therein. Almost two decades ago, Levinson argued that imposing term limits on justices was “an idea whose time has passed.” He endorsed non-renewable 18-year terms with full pensions, though he is also open to, instead of full retirement, “circuit riding,” in which justices could hear only lower-court cases, while formally retaining their posts (Levinson 2006, 376).
 
It seems the idea of term-limiting Supreme Court justices is gaining momentum. In recent years, several conservatives have endorsed the proposal. The bipartisan Biden Commission’s final report explores the idea as a way to bolster the Court’s ideological balance. The report notes that the notion of SCOTUS term limits is popular among the American public and quotes Supreme Court practitioners who think that imposing 18-year, non-renewable terms “warrants serious consideration.”
 
The Commission doesn’t ultimately endorse that (or any) substantive reform proposal. But it does consider how term limits could be procedurally pursued, if at all. While there was no consensus on the constitutionality or general prudence of term limits by statute, some members of the commission believed that “any statute would raise so many difficult constitutional and implementation questions” that proceeding that way would be “unwise.” These commissioners reasoned that a statute might require the Court itself to rule on the law’s constitutionality, undermining the Court’s own legitimacy. “No matter which way the Court came out on the question,” they say, the Court’s legitimacy, or perceptions of its legitimacy, would be undermined.” Levinson doesn’t necessarily disagree, but he seems to think it’s probably worth it, as requiring amendment would surely “doom[]” reform altogether.
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LevinsonFest on Comparative Constitutional Design

Guest Blogger

Ashley Moran

 We’re pleased to share essays from our recent LevinsonFest 2022 panel assessing pressing constitutional issues though a comparative lens.

The roundtable spans a range of topics, with essays from Kevin Cope and Mila Versteeg (University of Virginia) on U.S. Supreme Court reform, Yasmin Dawood (University of Toronto) on questions guiding comparative constitutional design, Rosalind Dixon (University of New South Wales) on constitutional amendment, Zachary Elkins (University of Texas at Austin) on the Second Amendment, Ran Hirschl (University of Texas at Austin) on constitutional stagnation and innovation, Gary Jacobsohn (University of Texas at Austin) on comparative advantage, and Ashley Moran (University of Texas at Austin) on upper chamber malapportionment. A response from Sandy Levinson (University of Texas at Austin) weaves these essays together in assessing what we learn by examining these issues through a comparative lens.

The event discussion broached an even wider range of topics and is available on the panel webpage. We hope you enjoy the discussions! 

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

 


Wednesday, September 14, 2022

Census Data Show the Pandemic Child Tax Credit Dramatically Cut Child Poverty

David Super

     A common refrain about child poverty, hunger, homelessness and other severe hardships that seem incongruous with this country’s affluence is that the problems are “complicated” and “there are no simple solutions.”  Dramatic data the Census Bureau released today shows that that is quite wrong.  Giving low-income families with children money through an expanded Child Tax Credit slashed the child poverty rate to the lowest level in the more than half a century for which data is available. 

     The big news comes in the Supplemental Poverty Measure that the Census Bureau created a few decades ago.  This differs from the Official Poverty Measure in that it includes the effects of major non-cash public benefits (such as food assistance and housing vouchers) and of the tax system (including refundable tax credits such as the Earned Income Tax Credit and the Child Tax Credit).  When the Census Bureau created the Official Poverty Measure in the early 1960s, most anti-poverty spending was in the form of direct cash payments to low-income individuals through programs such as Aid to Families with Dependent Children, Aid to the Aged, and Aid to the Blind. 

     To facilitate historical comparisons, the Census Bureau has resisted suggestions to update the Official Poverty Measure to reflect the country’s sharp shift towards non-cash aid beginning in the 1970s and anti-poverty tax policy beginning in the 1980s.  But in 2014, responding to a congressionally-commissioned National Research Council report, it began publishing the Supplemental Poverty Measure each year.  Researchers at Columbia University subsequently estimated what the Supplemental Poverty Measure thresholds would have been and how many people would have fallen beneath them back to 1967. 

     Most serious researchers interested in the effectiveness of anti-poverty policies focus on the Supplemental Poverty Measure.  Relying on the Official Poverty Measure, which excludes almost all of our largest anti-poverty programs, would be like measuring the U.S. transportation infrastructure in the 1950s and 1960s with a metric that excluded interstate highways.  Naïve reporters would say “we are spending massive amounts on transportation infrastructure and yet seeing only marginal gains.”

     For 2021, the child poverty rate was 5.2% under the Supplemental Poverty Measure.  By comparison, as recently as 2018. The child poverty rate was 13.7%.  (The pandemic sufficiently impaired data collection about what happened in 2019 that that data is less reliable.)  The child poverty rate in 2020 was 9.7%.  That reflected both the coronavirus recession and expanded unemployment compensation, food assistance, and stimulus payments in the bipartisan coronavirus relief legislation. 

     The expanded Child Tax Credit established by the American Rescue Plan Act accounted for more than half of the drop in child poverty from the previous year.  This credit monthly per-child payments to qualifying low-income families in the second half of the year.  Despite not being in effect for the whole year, it lifted 2.1 million children out of poverty for the year while reducing the depth of poverty for millions more. 

     The gains were spread across all racial and ethnic groups identified but particularly striking among non-Hispanic African-American children.  Their poverty rate was 23.7% in 2018 but just 8.3% in 2021.  Latino/a children’s poverty rate, also consistently above the national average, fell to 8.4% in 2021.  Poverty among Native American and Alaskan Native children fell to 7.4% in 2021.  White and Asian-American child poverty also declined substantially.

     A wealth of other data has already shown that the income supports in the bipartisan coronavirus relief legislation and the American Rescue Plan Act had concrete effects on how low-income families live, including less hunger and more stable housing situations. 

     These gains, however, are likely to be transitory.  When the Build Back Better reconciliation bill collapsed in Congress last fall, it took with it an extension of the expanded Child Tax Credit.  The residual CTC continues to play a substantial, positive role in reducing child poverty and in augmenting the well-being of children in families modestly above the poverty line.  Its design, however, renders ineligible many of the poorest children, greatly limiting its anti-poverty effectiveness. 

     The 2021 expansion showed what a difference a robust credit designed to reach the vast majority of low-income children can do.  Whether the country wishes to replicate the success of 2021 remains to be seen. 

     @DavidASuper1 

LevinsonFest on Can this Constitution be Saved-- Collected Posts

Guest Blogger

Ashley Moran 

Below are the collected posts on the LevinsonFest 2022 roundtable assessing the need and prospects for constitutional reform in the United States: 

1. Ashley Moran, LevinsonFest on Can this Constitution be Saved 

2. Wilfred Codrington III, The Political Process, The Court, and Constitutional Amendment 

3. Caroline Fredrickson, Can this Constitution be Saved? The Need and Prospects of Constitutional Amendment in the United States 

4. Bill Galston, Can this Constitution be Saved? 

5. Mark Graber, Constitutional Reform Transformed 

6. Stephen Griffin, Can this Constitution be Saved? The Need and Prospects of Constitutional Amendment in the United States 

7. Jennifer Hochschild, Can this Constitution be Saved? Pondering the Democratic Role of American States 

8. Julie Suk, Can this Constitution be Saved? 

9. Jeanne Sheehan Zaino, On the Need for Reasoned Structural Reform 

10. Sanford Levinson, Saving the Constitution or Saving America: Are they Identical Projects? 

Ashley Moran is a Lecturer and Postdoctoral Fellow with the Comparative Constitutions Project at UT-Austin and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.



Tuesday, September 13, 2022

Betting it all: A response to Doerfler and Moyn’s proposal to abandon constitutionalism

Guest Blogger

Shalev Gad Roisman 

In a recent op-ed, Professors Ryan Doerfler and Samuel Moyn argue that progressives ought to abandon constitutionalism.  They suggest that liberal commitment to our Constitution—indeed to any form of “higher law”—has stood in the way of progressive policy victories over issues like labor rights, racial equality, and environmental justice.  Instead, in their view, all law should be based on what the current popular majority wants. No form of “higher law” should constrain the present majority’s will.  

In this response, I’d like to take their call seriously, but push back against it.  In my view, Doerfler and Moyn’s argument amounts to a radical bet that eliminating the rules of the game will lead to progressive policy wins.  But, as with all gambles, we cannot just focus on what we might gain but also on what we might lose.  No one can say for sure if the bet is worth it. Future politics and the broader contingencies of the real world will determine that. But, if progressives are going to consider taking this gamble, they should understand its downsides.

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Saving the Constitution or Saving America: Are they Identical Projects?

Guest Blogger

Sanford Levinson
 
This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022.
 
I begin, as usual, with deepest thanks to Richard Albert and Ashley Moran for organizing these programs and to Trish Do for the technical acumen to make them happen.  I’m also grateful to Jeff Abramson for his really valiant role as moderator, given the necessarily limited time available and the necessity to truncate remarks.  That makes it especially fortunate that Balkinization offers the opportunity to offer the presentations in an expanded form.
 
However, as the “Levinsonfest” proceeds, I find myself more and more overwhelmed by gratitude to everyone who is participating.  Some of them are, both metaphorically and, increasingly literally, old friends, but thanks especially to Richard, I am also meeting some new people and, I hope, making brand-new friends, not infrequently from abroad.  That is a special reason to be grateful to Richard, who is truly a bridge both between countries and continents, but also between generations. 
 
Today’s roster is typical.  I have known Mark Graber, Steve Griffin, Bill Galston, and Jennifer Hochschild for many years, and we have been talking (and arguing) about some of these issues since our earliest meeting.  Julie Suk and Caroline Fredrickson are newer friends, with whom I worked (as with Mark, Steve, and Jennifer) on what I call the “Tomasky project,” a group that came together charged by Michael Tomasky, the editor of Democracy (and now, as well, The New Republic) to design a constitution that would serve us well in the 21st century.  I had not previously met Jeanne Sheehan Zaino or Wilfred Codrington (though I did happily blurb the book on constitutional amendment that Wilfred co-authored with John Kowal).  All of the essays are of great interest.  Given that I am not writing a series of full-scale articles, I fear that I cannot do justice to all of the essays (or, perhaps, to any of them), but I will try my best to focus on some of the most important themes. 
 
Probably the person I have known longest is Mark Graber.  I am an only child, and he has become one of my de facto brothers over the years.  I happily dedicated my book Framed to both Mark and Jack Balkin, who also certainly qualifies as a member of my close, albeit non-biological, family.  As in most families, though, closeness does not mean identity, and Mark and I have been debating many of the issues raised by this gathering for many of years.  I think it is fair to say that Mark has enabled me to recognize the extent to which I am more Jeffersonian, at least in some important senses, than I might have thought I was, even as I have provoked Mark to become ever more Burkean.  That difference is certainly apparent in his paper (and in some of the others as well).
 
I should note that the title of our gathering, “Can This Constitution be Saved?” was not my own.  But I am quite happy with it.  I have, for many years, advocated holding a new constitutional convention.  Ideally, it would generate a brutally candid conversation—presumably, unlike the Philadelphia convention in 1787, open to the public through C-SPAN and other streaming services—about the adequacy of the Constitution to the American republic in the 21st century.  An important feature of The Federalist, after all, is its willingness to dismiss the existing framework of government created by the Articles of Confederation, finally adopted in 1781, as “imbecilic” and very much in need not only of “revision”—the task assigned by Congress to the Convention—but really of fundamental replacement.  I have been arguing since my first book, Constitutional Faith, that an American pathology is the “veneration” attached to the 1787 Constitution.  That disposition of “constitutional faith” is perhaps the most truly “exceptional” aspect of American political culture.  It is, I think, a pernicious feature inasmuch as it generates an unwillingness to emulate what was most truly admirable about the “Founders,” their willingness to engage in what Federalist 1 called “an argument open to all,” where Americans were treated as serious people, capable of thinking about the most fundamental issues of governance, and then deciding, after suitable “reflection and choice,” how they wished to be governed.  Anyone reading Federalist 1 might be forgiven for thinking that it was written by Thomas Jefferson (and not Alexander Hamilton) inasmuch as it is suffused with a faith in “the people” and their capacity for disciplined “reflection” and then wise “choice.”  One may wonder whether Hamilton was sincere, but it really doesn’t matter.  He set out an admirable vision of what it might mean to live in a “republican form of government” dependent for its ultimate legitimacy on the capacity of the public to engage in self-governance, to offer their truly informed “consent” as suggested in the Declaration of Independence.
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Monday, September 12, 2022

Abortion and Partisan Entrenchment

JB

I have posted a draft of my latest paper, Abortion and Partisan Entrenchment, on SSRN. Here is the abstract:

In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party's commitments of ideology and interest.

Over time, partisan entrenchment by both parties can keep the Supreme Court's ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court's current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.

Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe's demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.

Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among Court’s conservative majority.

Moreover, Roe's demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review--that is the point of partisan entrenchment--but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.

Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party's most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.

Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.

On the Need for Reasoned Structural Reform

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.
 
Jeanne Sheehan Zaino

On the Sanctity of the Constitution

The seven most important words in American history, “We the people of the United States,” were written by Gouverneur Morris. While Morris is not well-known, he played a critical role at the Founding. He spoke more than any other delegate at the Convention and is known as the ‘penman of the Constitution,’ because he wrote significant portions of the document, including the preamble.

Morris suffered physically throughout his life. As a boy he was so badly scalded he had to miss a year of schooling. He later lost his leg in a carriage accident, and ultimately lost his life to a debilitating infection. Perhaps it was his intimate understanding of the fragility of both the human body and the body politic which led him to say about the Constitution:

Nothing human can be perfect… Surrounded by difficulties, 
we did the best we could; leaving it with those who should 
come after us to take counsel from experience, and exercise 
prudently the power of amendment. [1]
Read more »

Sunday, September 11, 2022

Religion and Alito’s time bomb

Andrew Koppelman

An irresponsible sentence that Justice Samuel Alito wrote eight years ago may now excuse religious people from nearly every legal obligation they have, so long as a hypothetical, nonexistent government program could substitute for it.

That became clear this week when Judge Reed O’Connor declared in Braidwood Management v. Becerra that employers with religious objections may offer health plans without drugs that prevent transmission of HIV, contraception, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use.  

I explain in today's column at The Hill.

Can this Constitution be Saved?

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.
 
Julie C. Suk
 
After the Supreme Court’s blockbuster decisions of the 2021 Term, progressive politicians have described the Supreme Court as “rogue,” accusing the new conservative majority of destroying the Constitution and the rights it protects. Hence, the question posed for this LevinsonFest, “Can this constitution be saved?,” appears tailored to this moment of constitutional crisis, wherein the defenders of reproductive and climate justice are rallying to correct Justice Alito’s perversion of “this” constitution. “No, Justice Alito, Reproductive Justice Is In the Constitution,” reads a June 26 New York Times headline by leading Black feminist scholar Michele Goodwin. But which Constitution do we mean? Is it obvious that Justice Alito’s declaration, “The Constitution makes no reference to abortion,” distorts its meaning? Should feminists, antiracists, and all the proponents of twenty-first century inclusion and justice to “save” it from a Court that’s gone off the rails?
 
Alternatively, Dobbs, Bruen, and West Virginia v. EPA are what saved our eighteenth-century constitution (and its modest nineteenth-century revision), restored to its intended glory by Alito and a Court skeptical of modern governmental intrusions through the regulation of guns and climate, yet respectful of governmental intrusions on reproductive matters. Alito’s opinion in Dobbs reveals a Court that intends to take back the Constitution to the mores that they attribute to the 18th and 19th century Founders and Framers—white men who owned Black slaves and exerted dominion over wives who had no independent legal rights. And, if that is not the Constitution that the American people want today, why should it be saved? Should progressives be looking for a way to save it?
Read more »

Saturday, September 10, 2022

Making History End, Again

Andrew Koppelman

Liberalism – the idea that the purpose of government is to guarantee to individuals the freedom to shape their own lives – is, Francis Fukuyama observes, “under severe threat around the world today.”   Political rights and civil liberties became more widespread in the late twentieth centuries, but since then have been in retreat.  His new book, Liberalism and Its Discontents, is a shrewd and concise anatomy and critique of the new authoritarian alternatives.  

Some think  his most recent work retreats from the triumphalism of his bestselling 1992 book, The End of History and the Last Man.  In fact, he hasn’t budged an inch. Nor should he.  There he argued that with the advent of liberal democracy, mankind “achieved a form of society that satisfied its deepest and most fundamental longings” as much as any political principle could.    Liberty and equality “are not accidents or the results of ethnocentric prejudice, but are in fact discoveries about the nature of man as man.”  His core claim in his new work is that, despite recent setbacks, he was right the first time: the rivals are variant forms of liberalism, and draw their rhetorical power from the attractions of a free society.  They are, however, defective mutations: the discontents with liberalism arise from “the way in which certain sound liberal ideas have been interpreted and pushed to extremes." 

The earlier book was commonly misunderstood as a prediction that liberalism was inevitably destined to prevail.  In fact, he explained in 2019, “The word ‘end’ was not meant in the sense of ‘termination’ but ‘target’ or ‘objective.”   History is contingent and unpredictable.  His claim was that history has a point, that the human race has a common purpose toward which it has moved and should strive.  Misfortunes can’t refute that purpose, any more than my claim that a student has enormous promise is refuted if she is then hit by a bus.

The deeper challenge to liberalism, the one that Fukuyama must answer, is loss of faith in its institutions.  The fall of the Soviet Union showed that a regime is vulnerable if its leaders no longer believe its guiding philosophy.  He wrote in The End of History: “The critical weakness that eventually toppled these strong states was in the last analysis a failure of legitimacy – that is, a crisis on the level of ideas.”   Is liberalism headed for a similar fate?

Liberalism and Its Discontents aims to show that purported alternatives to liberalism, on left and right, are phony remedies that will produce oppression and misery. 

I elaborate in a review of the book, newly published in the Los Angeles Review of Books.


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