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

JB

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

1. Jack Balkin, Introduction to the Symposium

2. Stephen Gardbaum, Collaborative and Abusive Constitutionalism

3. Mark Tushnet, Constitutional Collaboration and Constitutional Showdowns

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

5. Erin F. Delaney, Collaboration “Devolved”

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

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

Imagining America’s Collaborative Constitution: Part II

Guest Blogger

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

Aileen Kavanagh

Of Norms and Forms

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

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

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

Imagining America’s Collaborative Constitution: Part I

Guest Blogger

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

Aileen Kavanagh

In The Collaborative Constitution, I argue that constitutional government is a collaborative enterprise between all three branches of government, where each branch has a distinct but complementary role to play, whilst working together in a spirit of comity, civility, and collaboration.  Rejecting the binary options of either legislative or judicial supremacy, The Collaborative Constitution envisages constitutionalism as a shared responsibility between multiple institutions. 

On this vision, protecting the Constitution is neither the solitary domain of a Herculean super-judge.  Nor is it the dignified pronouncements of an enlightened legislature.  Instead, it is a complex, dynamic, and collaborative enterprise, where each branch has a valuable – though limited – role to play in an institutionally diverse constitutional order.  The branches must work together, whilst holding each other to constitutional account.  Envisaging constitutional government as a system of ‘separated institutions sharing powers’, my book strives to make sense of the shared responsibility, uncovering the principled foundations and practical dynamics of collaborative constitutionalism at work.  The resulting picture is one of diverse institutions interacting, counteracting, and collaborating in a common project of governance in mutually respectful and mutually responsive ways.

Law and the Critique of Political Economy

Guest Blogger

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

Talha Syed 

Jeremy Kessler’s “Law and Historical Materialism” is bracing. Bracing in its unapologetic embrace of strong explanatory ambitions for any theory of law, one that must be anchored in a broader theory of society (and even of humanity’s interaction with the natural world). And bracing also in its no-pulled-punches approach to articulating dissatisfaction with existing legal theories, critical legal studies (CLS) principally among them. Sharing both commitments—not only in the content of the views, but also in the form of their unvarnished articulation—I will use this platform of agreement as the basis for launching an unvarnished critique of the alternative theory he offers.

The Minimalism of the Minimalist Historical Materialist Approach to Law (MHMAL): A (Puzzled) Marxist View

Guest Blogger

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

Eva Nanopoulos

For all the baggage that the label carries, I would today self-identify as a Marxist. I was therefore very excited to be approached to contribute to a symposium on Kessler’s ‘Law and Historical Materialism’, given that historical materialism is usually understood to refer to Marx’s theory of historical change, even though he himself did not use the term.  As I was reading, however, rather than finding myself in familiar terrain, I began to feel a little puzzled. My puzzlement stemmed from three dimensions of Kessler’s intervention: a geographical one – Kessler is intervening in what is essentially a US debate; a political one – Kessler is writing for ‘left-leaning legal scholars’; and a theorical one – Kessler is seeking to develop what he calls a ‘minimalist historical materialist approach to law’ (MHMAL) as the best way forward for the left as against Critical Legal Studies (CLS).

My reaction may have had some roots in my personal experience: I am based in the UK; I first encountered Marxism through my political engagement – my investment in developing Marxist critiques of law and Marxist legal theory came later, as one of the contributions I could hope to make to the wider Marxist project as a legal academic; and by the Marxist project I understood not only the principles of historical materialism as a theory of history, but Marx’s critique of political economy (i.e. of capitalism) and his revolutionary project.

But they relate to and reveal several deeper problems about MHMAL. Each of these dimensions of MHMAL correspond to three types of minimalism – geographical, political and theoretical from which, I argue, MHMAL suffers. I cannot elaborate on those in detail in an informal blog post such as this. But I aim to show that, from a Marxist perspective, MHMAL’s minimalism not only casts doubt about its characterisation as historical materialist, but also as the best way forward for the development of a radical legal theory on its own terms.

The transhistorical dormitive principle at its foundation makes MHMAL the wrong social theory for LPE

Guest Blogger

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

Yochai Benkler

Jeremy Kessler has done the LPE movement a favor by producing such a lucid, clearly defined theory of historical materialism for legal analysis. I reject his theory from the ground up and think it must not be the theoretical path forward for LPE. But the article is a model of clear definitions and explicit statements of the kind we all need if we are to develop a social theory of law in capitalism that we can all use as a common framework.

Let me start where we agree.

A Vivid Illustration of the Impact of the Roberts Court's Radical New "Unitary Executive" Doctrine

Marty Lederman

Linking Capitalism and Legal Change: Function versus Form

Guest Blogger

Some Notes on Historical Materialism, Naturalism and Legal Theory, Part II

Guest Blogger

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

Brian Leiter 

         In this second post on Professor Kessler’s “Law and Historical Materialism,” I comment critically on his understanding of naturalism, of the relationship between historical materialism (hereafter HM) and naturalism, and, briefly, on the situating of his project in relation to what he calls “left-leaning legal thought.”

         Kessler begins his discussion of naturalism by claiming that it is an “advantage” of his version of HM that it is consistent “with the naturalistic worldview that undergirds the policy commitments of left-leaning legal scholars” (39).  How is this an advantage?  What “left-leaning legal scholars” think is of no scholarly interest; only what is true or at least justified matters.  That would certainly have been Marx’s view.  I understand Kessler is trying to offer a kind of “internal” argument to appeal to his political allies on the left.  That is fine, but in my view, beneath the intellectual seriousness of his project and a distraction from it.

Some Notes on Historical Materialism, Naturalism and Legal Theory, Part I

Guest Blogger

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

Brian Leiter

I very much appreciate Jeremy Kessler’s careful and well-informed exposition of “Law and Historical Materialism,” and I also appreciate his lucid attention to Pashukanis, who may not have been right, but who is worth revisiting as an intellectually serious form of genuinely left legal theory (see esp. 12-14 of Kessler’s essay for an excellent set of questions that Pashukanis’s analysis invites).  In this first post, I will focus primarily on some technical details about Professor Kessler’s understanding of historical materialism (hereafter HM), and functional explanation in particular.  In a second post, I will discuss his treatment of naturalism, which seems to me more problematic.   I will also say a bit in that second post about Kessler’s framing of his project in relation to Critical Legal Studies and other “left-leaning legal thought” as he calls it.

In Praise of Humble Social Theory

Guest Blogger

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

Paul Gowder

I have a slightly embarrassing confession: I’ve always been skeptical of Big Social Theory (BST)—or, to be more accurate, ambitious Big Social Theory (aBST). It has always seemed to me that one of the major problems with the academic left is its attraction to huge theoretical edifices like historical materialism that purport to explain everything (no matter how implausible such a creature might seem a priori).

While that might sound like a prelude to a complaint about Law and Historical Materialism, it’s actually praise: Jeremy Kessler’s careful case for the superiority of historical materialism over CLS seems to me like an excellent (if somewhat implicit) demonstration of a sensible role for BST, both in the law and outside of it, but only so long as it is kept humble rather than ambitious.

Marxism as a Rallying Cry

Guest Blogger

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

Samuel Moyn

If I knew my tombstone would record that I had inadvertently provoked Jeremy Kessler to attempt to bring Marxism into American legal theory again, I could die a happy man.

Because it is already such a privilege that Jeremy took my own new essay as the prime target in his masterful new piece, I mainly want to thank him. Jeremy’s intervention is characteristically rich and stimulating. The fact that it exists at all portends an exciting new phase for legal theory. Still, I cannot help offering a few modest counterpoints.

Marxism hasn’t ever figured all that prominently in the history of American legal thought. If he is successful, Jeremy could “normalize” our scholarship, so that conversations in the legal academy would not remain so out of step with the contemporary renaissance of Marxist perspectives elsewhere in the university and beyond it (and in the legal theory of some other countries). Given his own premises, Jeremy might suspect there are objective constraints on such normalization. But it is still possible that his essay will have the salutary effect of prompting more teaching about Karl Marx and Marxism in America, at least up to a point, which other capitalist societies have permitted. And that is very good news.

But what is “Marxism” anyway?

Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism

JB

This week at Balkinization we are hosting a discussion of Jeremy Kessler's forthcoming article, Law and Historical Materialism. Our terrific group of participants include Yochai Benkler (Harvard), Matthew Dimick (Buffalo),  Paul Gowder (Northwestern), Brian Leiter (Chicago),  Samuel Moyn (Yale), Eva Nanopoulos  (Queen Mary - University of London), and Talha Syed (Berkeley).

At the conclusion, Jeremy will respond to the commentators.

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.