Two Timelines of COVID Crisis

Frank Pasquale

We often hear that the current COVID crisis came “out of the blue,” that “nobody” was expecting it.* But anyone with a decent grasp of pressing issues in public health knew the risks of pandemics. As I wrote in 2014:

[R]eduction in hospital facilities and other resources, although “efficient” in normal times, may prove disastrous if there is an epidemic. For example, one national preparedness plan for pandemic flu estimated that, in a worst-case scenario, the United States would be short over 600,000 ventilators. “To some experts, the ventilator shortage is the most glaring example of the country’s lack of readiness for a pandemic,” one journalist noted. The lack of “surge capacity” throughout the health care industry is a major infrastructural shortcoming, likely to cause tremendous, avoidable suffering if a pandemic emerges.

So how did we get here? It's critical, in the midst of the COVID crisis, to keep two timelines of missteps and mistakes in mind. There are short-term problems that have only emerged in 2020. And there is a much longer history of disinvestment (and poor investments) in American health care. In other words: ongoing rot has exacerbated the crisis, in Sandy and Jack's temporal framework. It is the toxic combination of these two sets of problems that has left the U.S. one of the epicenters of COVID-related morbidity and mortality.
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Posted 11:27 AM by Frank Pasquale [link]

Common good v. public good or public interest

Sandy Levinson

Let me begin with where I certainly agree with Jack:  Adrian Vermeule is in fact promoting Catholic integralism (just as some Protestants, including, it has been alleged, Vice President Mike Penc,  are adherents of "dominionism"), both of which advocate forms of theocracy.  Indeed, certain members of the Haredi community in Israel and, I suspect, some members of Modi's ruling coalition in India are also theocrats, not to mention supporters of an Islamic Caliphate or even the "Islamic republics" of Saudi Arabia, Pakistan or Iran.  What makes Adrian special is that he is unusually smart and enjoys the institutional location of being a chaired professor at the Harvard Law School.  (One of his predecessors as the Tyler Professor of Constitutional Law was Laurence Tribe!)  He is a relatively recent (four years ago, apparently) convert to Catholicism and, perhaps like many converts, is tempted by some of the more extreme doctrines that are available within the Church.  I put it that way because the Church, like all large institutions, is in fact pluralistic, and one can find a variety, even if not limitless, number of doctrines available for trying to decide the relationship between Moral Reality as enunciated by the Church and the actual political realities of what Augustine called "The City of Man."  One can imagine an American future in which the still relatively young Adrian Vermeule become a genuine political force. (One would be interested, for example, as to whether or not Amy Comey Barrett, a sure candidate to succeed Ruth Ginsburg should Trump be in power when that day comes, adheres to the views articulated by Vermeule or by her Notre Dame colleague Patrick Deneen, who also condemns liberalism in all of its purported aspects.  I personally think it would be perfectly legitimate to interrogate her on this matter, but the "No Test Oath Clause" has been misinterpreted, I believe, to make illegitimate any questioning at all about the religio-theological views of candidates even when they proudly affirm the centrality of their religious identity to how they conduct they lives.

But that isn't the major impetus for this posting.  Rather, I think that Jack's attempt to defend the "pubic good" as against Adrian's "common good" is open to dispute.  The basic problem, as Jack fully realizes, is how one constructs a stable--and admirable--polity for what Holmes called people of "fundamentally different views," where some of the central differences involve precisely what might count as "the public interest" or "pubic good."  As Jack notes, Madison recognizes, kind of, the problem, particularly in Federalist 10, but he scarcely comes up with a convincing, or even plausible, solution.  Or, perhaps, he comes up with two quite different solutions.  The first, which Jack emphasizes, is the theory that the "extended republic" will make it hard (perhaps impossible) for a selfish "faction" to gain control over the national polity, unlike the states, which Madison, at least at that time, viewed as little more than cesspools of faction.  Anyone who believes that the Madison of 1787-88 was a devotee of "states rights" is truly illiterate.  There are all sorts of critiques of this version of Madisonian optimism, beginning with the importance of the creation of national political parties (or factions) that serve to reduce the transaction costs of capturing the national government for their own nefarious purposes.  In any event, this version of Madison leads to what came to be called "interest group liberalism," in which we simply assert, or stipulate, that whatever gains the assent of the relevant coalition of interest groups just is in "the public interest.  To put it mildly, there is no reason to accept this definition, even if it is comforting to accept it as true.

But Madison also offers the possibility that national leaders, unlike local leaders, whom Madison came close to despising, would be imbued with what Jack accurately identifies as sufficient "virtue" to tame the selfishness that pervades society and to adopt policies that in fact serve a genuine "public interest." That model of elite (and "representative") democracy was based on a fundamental mistrust of what we today might call "democracy" inasmuch as the lower orders were expected to recognize and then defer to their betters, what Jefferson notoriously called "the natural aristocracy."  Whatever one thinks of that as a normative model, it clearly did not survive, say, the election of Andrew Jackson.

So the dilemma facing contemporary liberals (and liberalism) is to enunciate a "progressive" political program at the same time that most liberals are scared stiff of what is described as "populism," i.e., a much more active participation by "we the people" in the process of decisionmaking and a concomitant distrust of established elites. And the paradox of the Sanders candidacy, as I have repeatedly argued, is that the self-styled "revolutionary" offers literally nothing by way of a serious critique of a constitutional structure, established in 1787, to minimize the actual role of the demos and to assure that the byzantine system of "checks and balances" would make it extremely difficult to meet the challenges of the day, including, in our own time, those presented by Covid-19.

Not surprisingly, Jack and I address some of these issues in our epistolary exchange, Democracy and Distrust, available at a book store near you!  Although our analyses overlap in important respects, there are, nonetheless, significant points of departure.  One of them, in addition to the relative weight we put on political structures as against political culture, is the degree to which there is at present any truly satisfactory theory of "the public interest," "common good," or "public good."  Michael Sandel, who established his reputation as a critic of John Rawls, has been articulating his own theory of the "common good" for quite a while, though I'm not aware that it's really made much headway (and I find it more than a bit problematic myself).  All of this is by way of saying that the gauntlet that Vermeule is throwing down must be taken seriously, even if I certainly agree that one should reject any notions of Catholic integralism, Torah-true governance, or an Islamic caliphate as the answers.  Perhaps the best we can do is to stick with some sort of modus vivendi politics based on compromise and a willingness to forbear from pushing one's own views too far.  To maintain a society of relative peace and good order--the Canadian credo--is no small achievement, but is's hard to come up with a grand theory that necessarily justifies the hard compromises that may be necessary to attain it.
Posted 9:49 PM by Sandy Levinson [link] (152) comments

Common Good versus Public Good

JB

One of the distinctive claims in Adrian Vermeule's recent constitutional work is his argument that government authority should endeavor to promote, and enforce, the "common good."

By contrast, the political theory of liberal republicanism argues that politicians and the public should cooperate and compete with each other to promote the "public good."

Does this mean that Adrian is arguing for a familiar kind of liberal republicanism well-known to the founders and promoted by them?

No, these two concepts are not the same.

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Posted 11:31 AM by JB [link]

Symposium on Helen Norton, The Government's Speech and the Constitution: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Helen Norton's new book, The Government's Speech and the Constitution (Cambridge University Press, 2019).

1. Jack Balkin, Introduction to the Symposium on Helen Norton, The Government's Speech and the Constitution 

2. Frederick Schauer, The State’s Speech and Other Acts 

3. Sonja R. West, The Government, the Press, and Our Shared Diagnosis 

3. Richard Schragger, What is “Government” “Speech”? A View from Charlottesville 

4. Josh Chafetz, Who is The Government? 

5. Nathan Cortez, What To Do About Government Lies? 

6. Jack Balkin, Three Concepts of Propaganda and the U.S. Constitution

7. Nelson Tebbe, Government Speech and the Market Metaphor 

8. Caroline Mala Corbin, The Government’s Speech and the Constitution: Public School Teachers & Transgender Students & Pronouns

9. Mark Graber, Extraordinary and Ordinary Government Speech 

10. Helen Norton, The Government’s Speech and Why It Matters 

11. Helen Norton, The Government’s Speech and Its Complexities



Posted 9:30 AM by JB [link]

Why Do (Some) Originalists Hate America?

Andrew Koppelman

Posted 1:19 PM by Andrew Koppelman [link]

Tragic Choices and Ventilators

Gerard N. Magliocca

More than forty years ago, Guido Calabresi and Phillip Bobbitt wrote Tragic Choices: The Conflicts Society Confronts in the Allocation of Tragically Scarce Resources. Sadly, we are now seeing a real-life example with ventilators in hospitals. In light of that fact, there might be something to learn from Tragic Choices about how ventilator allocations are being (or should be) made.

Consider four possible allocation methods that Calabresi and Bobbitt discuss:

1. The Market. We usually use prices to allocate scarce resources. Wealthy individuals or hospitals or states would then get the most ventilators. The obvious objection to this approach is that it's unfair to the poor, and that this inequity is particularly wrong in a crisis that involves life or death.

2. Triage. Allocate the scarce resource to those with the best chance of survival. This means that the decisions are made by medical professionals on the scene. The problem with this is that such triage decisions inevitably involve a conscious choice to let some die. And the people who are left to die may well be the elderly, the sick, or the most vulnerable. Also, triage places an enormous burden on these front-line workers, who are probably not prepared (if anyone can be) to play God under great time-pressure and with very limited information.

3. Lottery. The military draft sometimes addressed the tragic choice problem through a lottery. This avoids the problems posed by the first two solutions. A lottery for ventilators, though, eliminates any exercise of thoughtful discretion for a serious crisis. Random chance is fair in the sense that we each have the same random chance, but fairness may not be the only consideration. To the extent that we are using a "first-come, first-serve," system for ventilators, though, that is a lottery. "Better to get sick sooner rather than later" is, I daresay, not the best public health policy.

4. The Noble Lie. Some method of making the tragic choice is being used, but the people making it deny that they are doing this. Perhaps this is a necessary fiction to uphold important values while still making the allocation somehow.

This is a simple summary of Tragic Choices, which is well worth reading again at this terrible time. Of course, the best solution would be to reduce or eliminate the scarcity of ventilators by making enough of them for all who need them. But that outcome remains in doubt.
Posted 8:16 PM by Gerard N. Magliocca [link] (134) comments

The Government’s Speech and Why It Matters

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton


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Posted 9:30 AM by Guest Blogger [link]

The Government’s Speech and Its Complexities

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton


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Posted 4:30 PM by Guest Blogger [link]

The N95 mask scandal

Andrew Koppelman

Posted 9:33 AM by Andrew Koppelman [link]

Optimistic Originalism and the Reconstruction Amendments

Stephen Griffin

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Posted 3:35 PM by Stephen Griffin [link]

Sinai and Philadelphia: Two Dead-Hand Problems, and a Common Solution

Richard Primus

With Passover coming soon, Tablet Magazine has published a little essay I've written called Sinai and Philadelphia.  The essay offers a perspective on something shared between the ritual of the Passover Seder and the practice (if not the normal official theory) of originalist interpretation in American constitutional law.  You can find the essay here.



Posted 4:36 PM by Richard Primus [link]

Government speech in the age of Donald Trump

Sandy Levinson

Given the recent excellent symposium on Helen Norton's book on government speech, I cannot refrain from noting that this afternoon's mail included a document in the addressee's side has, in large print, "PRESIDENT TRUMP'S CORONAVIRUS GUIDELINES FOR AMERICA."  In distinctly smaller type, one is encouraged to log on to Coronovarius.gov for more information.  There are also pictures of the White House and the CDC logo.  On the back is a set of guidelines all of which make perfectly good sense.  But is there something at least a little bit North Korean in having what are in fact the CDC guidelines presented as "President Trump's," even if he didn't have his own personal history of mendaciously lying or otherwise expressing disdain for the prospect of a pandemic.  Moreover, what if the Dear Leader decides in a couple of weeks, as he is threatening to do, to declare a new set of guidelines that feature going back to work (perhaps, as suggested by my colleague Steve Vladek, by ordering all federal employees, including those classified as "inessential" back to work at pains of losing their salaries)?  Will we be treated to another tax-payer-paid postcard, delivered by postal workers who are literally risking their lives to serve the public, containing the "good news" that we no longer should worry about social distancing, etc.

I do take it this is the kind of issue Prof. Norton identifies and wishes to encourage discussion about.  Donald Trump has a first amendment right, presumably, to say whatever he wishes.  Does that extent to commandeering the United States Postal Service to take credit for what is actually the work of the CDC. Can we look forward to a postcard announcing "Donald Trump's vaccine to protect us against Covid-19" and so on?
Posted 4:32 PM by Sandy Levinson [link] (70) comments

Continuity in Government: A constitutional fault line

Sandy Levinson

Gerard's post raises absolutely central questions that too often go undiscussed.  I note for the self-serving record that my wife and I, in the book we wrote together ostensibly for teenagers, Fault Lines in the Constitution, actually devote a full chapter to the problem of "continuity in government" under dire circumstances, including public health emergencies.  It is in that chapter that we discuss the technicalities of quorum requirements, for example.  Should 51 senators be isolated, for example, it would be impossible to meet the constitutionally-required quorum of a majority that is required in order to do business, not to mention the fact, as suggested by Gerard, that even if 51 senators could show up, that means, by definition, that only 26 would be needed in order to pass legislation.  That would presumably present a huge legitimacy problem, but, for better or worse, not a legality problem.

There was some discussion of the overall problem after September 11.  A blue-chip DC committee organized by both Brookings and the American Enterprise Institute met and wrote at least two fine reports, one of them suggesting a constitutional amendment that would address the problem of wholesale deaths or disabilities of the House and Senate.  In fact, I testified in front of a Senate subcommittee headed by Texas Senator John Cornyn, who, to his credit, took the proposal seriously.  It in fact went nowhere because Republican Rep. James Sensenbrenner of Wisconsin, the Chair of the House Judiciary Committee, hated the idea of non-elected representatives under any circumstances so he refused to hold hearings on the amendment (which would, under certain conditions, have provided for the appointment of replacement or substitute representatives).  That was in 2004.  It is now 2020, and we face the same "fault line" that threatens our constitutional order.

It is a grim fact that dead senators are no problem at all; they can, in most states, be immediately replaced by gubernatorial appointment.  That is not the case with dead representatives, since the Constitution requires that all representatives be elected.  That is no problem in the case of "retail" vacancies.  Who really cares if 430 instead of 435 members of the House show up on a given day.  Wholesale vacancies are another matter, obviously,  And both houses of Congress are equally afflicted by disabled members cannot do their legislative duties.

If they're truly disabled, then allowing absentee voting is no solution.  Someone in a coma or on a ventilator is not in a condition to cast a deliberative vote.  Someone simply in isolation can, of course.  Let me suggest that it is an insane reading of the Constitution to declare that all absentee voting is "unconstitutional," which some articles have suggested is Mitch McConnell's position.  Let me also suggest that anyone influenced by McConnell's own Schmittian approach to exercising his power over the past decade should quickly agree, apropos of Gerard's questions, that the Democrats should seize back the Senate the minute they have a majority of members on the floor because of the isolation or quarantine of a sufficient number of Republicans.  Only comity would suggest otherwise, and Mitch McConnell has indicated over and over again that he has no regard whatsoever for the norms of comity.  Those who live by the sword should be prepared to die by it.
Posted 12:32 PM by Sandy Levinson [link] (30) comments

Why Even Free-Marketeers Should Support Central Planning in a Pandemic

Andrew Koppelman

If you understand why central economic planning has almost always been a disastrous failure, you should also understand why we need central planning for coronavirus—and why President Trump’s decision to leave the response to the market will probably kill people.

I explain at the American Prospect, here.
Posted 8:15 AM by Andrew Koppelman [link]

A Ghost Majority

Gerard N. Magliocca

Here's another reason why the Senate needs to adopt remote voting and quorum calls now. Senator Rand Paul may well have infected much of the Senate GOP Caucus over the past week. Suppose 20 of them have to self-quarantine while few Democrats do. At what point can you say that Senator McConnell is still the Majority Leader? He would not leading the majority of present Senators (at least for some period of time). Why wouldn't Senator Schumer become Acting Majority Leader under those circumstances? Counting self-quarantined Senators as present and letting them vote remotely would keeps this can of worms closed. After all, none of the self-quarantined Senators are unable to due their jobs except insofar as they cannot be physically present in the chamber.
Posted 8:22 PM by Gerard N. Magliocca [link] (53) comments

Corona and Contract

Ian Ayres

I once sued Yale for closing down its facilities. The year was 1984 and the University, in the midst of a 10-week clerical workers’ strike, had closed its dining halls, stopped cleaning the dormitory bathrooms, shut down the gym and moved hundreds of classes off-campus.
That shut down is very different from Yale's current suspension of campus activities – this time due to concerns over the spread of coronavirus.  For one thing, the 1984 crisis was at least partly of Yale’s own making, as the University President A. Bartlett Giamatti refused to budge week after week from his initial offer to the clerical union.  In contrast, colleges are obviously not responsible for the coronavirus pandemic that is threatening our country.
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Posted 11:40 AM by Ian Ayres [link]

Negotiating Big Legislative Deals

David Super

     With furious negotiations under way about a third coronavirus response bill, this seemed a good time to discuss how titanic legislation of this kind is produced.  Much of the commentary about these negotiations (and others that have gone before) is so oversimplified as to be highly misleading.

     I will focus primarily on three aspects of this process:  how hierarchy shapes the eventual content, how special interest groups’ views influence the outcome, and how having a president who feels unbound by conventional norms affects the outcome. 

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Posted 11:01 PM by David Super [link]

Proxy Voting and Remote Quorum Calls

Gerard N. Magliocca

Congress is frantically considering emergency legislation. The current rules of both the Senate and the House of Representatives, though, do not permit remote or proxy voting for matters on the floor. This should be changed now. Some members of Congress are in self-quarantine. More will be within the week. How can they vote? How can their constituents be represented? Each House of Congress should modify its rules to permit written proxies that can be given to the presiding officer (perhaps in consultation with the party leadership of each party).

The Constitution presents another problem. Article I, Section 5 states that "a Majority of each [House] shall constitute a Quorum to do Business." Suppose more than a majority are in self-quarantine. Does that mean business is suspended until further notice? Does a Quorum require a majority to be physically present in the chamber at some point during legislative business? I think not, even if that was how the Framers (and the British Parliament) understood that idea.

For one thing, the precedents on quorum calls are (shall we say) flexible. The House said at a certain point that members present who refused to answer the quorum call could be counted. Likewise, the 39th Congress refused to count as present Southern members who were there and said they were. I would argue that these decisions are capacious enough to count as present someone talking through a laptop or a phone After all, the Constitution does not specify what "a Quorum" means. Moreover, the relevant language comes right after the statement that Congress has the power to set its internal rules. The same section also says that a number smaller than a majority in each House may act "to compel the attendance of absent members." You can compel someone to attend via Zoom, under penalty if they do not when they can.

In short, the rules on proxy voting and quorum calls should be modified for the present crisis. The Constitution can adapt to this crisis of human affairs.



Posted 8:54 PM by Gerard N. Magliocca [link] (66) comments

Donald Trump and Herbert Hoover

Sandy Levinson

Max Boot, a distinguished conservative "never Trumper," has a column in the Washington Post in which he writes, "I knew he would be a bad president--but even I didn't expect him to be Herbert Hoover-level bad."  I find this truly mystifying in at least two ways. First, at the time of his election, Herbert Hoover was a truly distinguished American. FDR actually hoped in 1920 that Hoover, an Eisenhower-like figure whose political loyalties were as yet unknown, would run for the presidency as a Democrat.  He was justly lionized for his leadership role in humanitarian efforts in Europe after the War.  Had he been elected prior to 1929, when all of the chickens of American capitalism came home to roost, I suspect he would be viewed as a pretty good president, given his Republicanism, and we would be lambasting whoever was unlucky enough to get the office in 1929.  Hoover was in part a victim of his own conservative ideology, what Schlesinger labeled "the crisis of the Old Order," but, riding my own hobbyhorse, I would also describe him as in part a victim of our fetish for separation of powers/parties that meant that Democrats, who won Congress back in 1930, had no incentive at all to help him achieve any of his policies designed to meet the Depression, lest they contribute to his re-election in 1932.  There's also the fact that nobody ever tied Hoover to any personal corruption.  He was a dedicated public servant who had, alas, some grievously mistaken political views.  It made sense for Harry Truman in effect to rehabilitate him by naming him head of the Hoover Commission to after World War II, and it is not offensive that the Hoover Institute is an important contemporary think tank. I don't want to be overly revisionist on Hoover.  He deserves most of the obloquy directed at him for his insensitivity, say, to the bonus marchers, etc., but, to paraphrase Lloyd Bentsen, we know Donald Trump, and he is no Herbert Hoover.

Trump, as Boot well pointed and points out, is a narcissistic megalomaniac, perhaps suffering from dementia, who has no demonstrated capacity for any of the arts of genuine governance, including eliciting loyalty based on anything other than abject fear, or demonstrating the slightest empathy for anyone who is suffering the consequences of his own degraded policies.  We have simply never had a president so truly awful as Donald J. Trump.  He is truly in a class by himself.  Warren G. Harding appointed Charles Evans Hughes as Secretary of State and commuted the sentence of Eugene V. Debs (and then invited him to visit at the White House).  Andrew Johnson, a thoroughgoing racist, nonetheless expended considerable political energy to make sure that the Thirteenth Amendment was in fact ratified, which was not a foregone conclusion if, for example, William T. Sherman's advice had been followed and Appomattox been viewed as truly ending the War, with the consequent demise of "war powers."  Even the inept James Buchanan had one of the best resumes of any of our presidents, which, of course, calls into question exactly what we should be looking for in electing a president. But, unlike Trump, Buchanan actually knew a lot about government at every level. One should not "normalize" Donald J. Trump in any way, including mentioning him in the same breath as Herbert Hoover.  He is the equivalent of the Covid-19 virus with regard to attacking the health of the American constitutional order in a way that cannot be said of any of his predecessors. If he is not defeated in November, the American republic will be destroyed just as surely as the virus is afflicting the lives of sufferers around the world and, now, in the US itself (in part because of Trump's gross unwillingness to listen to those officials within "his" Administration who were predicting what has indeed come to pass.
Posted 1:05 AM by Sandy Levinson [link] (123) comments

Extraordinary and Ordinary Government Speech

Mark Graber

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

The Virginia and Kentucky Resolutions are the best known instances of government speech in antebellum America.  Both declared that the Alien and Sedition Acts were unconstitutional.  James Madison, the author of the Virginia Resolutions, maintained that the Sedition Act “exercise[s . . . a power not delegated by the Constitution, but on the contrary expressly and forbidden by one of the amendments thereto.”  Thomas Jefferson, the author of the Kentucky resolutions, asserted that the Sedition Act “does abridge the freedom of press.”  Virginians rested content to sound the alarm.  The last paragraph of the Virginia Resolutions “appeal[ed] to the like disposition of the other States, in confidence that they will concur with this commonwealth in declaring, . . . that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each.”  Kentuckians offered stronger medicine.  Jefferson declared the Sedition Act “is not law, but is altogether void and of no effect.”

Government speech in antebellum American frequently challenged constitutional decisions and constitutional provisions.  Georgia declared implementing the Supreme Court’s decision in Chisholm v. Georgia (1793) to be a capital crime.  The Hartford Convention called for constitutional amendments abolishing the three-fifths clause, requiring a two-thirds vote in both Houses of Congress to admit new states, declare war, and impose embargoes, limiting embargoes to sixty days, and forbidding naturalized citizens to hold federal office.  South Carolina in 1832 issued a proclamation nullifying protective tariffs.  Wisconsin two decades later passed legislation nullifying fugitive slave laws.  Four states, South Carolina, Georgia, Mississippi and Texas, issued declarations explaining why they had seceded from the Union.  “A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union” stated, “We hold as undeniable truths that the governments of the various States, and of the Confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race.”

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Posted 9:00 AM by Mark Graber [link]

The Government’s Speech and the Constitution: Public School Teachers & Transgender Students & Pronouns

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Caroline Mala Corbin
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Posted 9:30 AM by Guest Blogger [link]

Government Speech and the Market Metaphor

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).


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Posted 9:30 AM by Guest Blogger [link]

Three Concepts of Propaganda and the U.S. Constitution

JB

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton's fine book demonstrates the multiple ways that government officials can violate the Bill of Rights and the Fourteenth Amendment through their speech. She also canvases the often limited judicial remedies available for these violation. In this post, I want to take up where her book--and Sonja West's and Nathan Cortez's recent posts--leave off. I will focus on situations in which there is no likely judicial remedy but in which government speech threatens important democratic and constitutional values.

I am speaking, of course, of government propaganda.  The term "propaganda," however, is contested, and has many meanings. In its most general sense, propaganda is simply the propagation of persuasive material, usually in a one-sided or devious manner. In this post, however, I will consider three different, and somewhat narrower, conceptions of propaganda. Each is relevant to Norton's arguments about government speech and the Constitution.

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Posted 9:30 AM by JB [link]

The Congressional Process and Disaster Response

David Super

     On March 6, President Trump signed Public Law No. 116-123, the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (widely referred to on Capitol Hill as “C1”).  Its near-exclusive function was providing additional funds for government agencies responding to SARS-CoV-2. 

     Early last week, House Democrats introduced legislation to begin to address the pandemic’s impact on the general public (“C2”).  Speaker Pelosi threatened to pass it with Democratic votes alone and place the Senate in the position of accepting it or explaining why it was not doing so.  In the interest of speed, however, she negotiated a somewhat pared-down version with Treasury Secretary Mnuchin on behalf of the Administration.  She thought she had an agreement Friday afternoon but further back and forth was required before the President would tweet out his approval, which most House Republicans insisted was a prerequisite to their passing the legislation under emergency procedures.    

     Subsequently, it was discovered that the disjointed and last-minute negotiations had resulted in questions about whether the agreements were fully reflected in the legislative language.  Speaker Pelosi, to avoid any hint of bad faith, agreed to further negotiations with Secretary Mnuchin and directed her staff to prepare an amendment making the necessary “technical corrections.”  (That was absolutely the right thing for her to do:  although the corrections could have been made in the Senate, when the ambient level of trust is already low each side needs to be extremely clear that its word is its bond.) 

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Posted 10:15 PM by David Super [link]

Extending the Census

Gerard N. Magliocca

Congress and the Administration have a lot of their plate, to put it mildly. One action item, though, should be an extension of the period for taking the census. I filled my form online the other day. But counting the people who cannot complete the census online is critical and well-nigh impossible in the middle of a pandemic. You would think that everyone would agree that something should be done about this. You would think.
Posted 7:52 PM by Gerard N. Magliocca [link] (17) comments

Shag from Brookline, RIP

Sandy Levinson

I have literally only a few minutes ago become aware of the fact that one of the most reliable discussants on Balkinization, "Shag from Brookline," died this past November.  There is a short obituary in the Brookline TAB about the passing of Arshag Mazmanian. But my own awareness of his death came from running across a graceful tribute to him by Michael Dorf, to whose blog he was also a regular, and valued, contributor as a commentator.  He frequently referred to his age--he was 89 when he died--but what was often most remarkable about his dispatches was the degree to which he was constantly reading new material.  He set a model for all of us in remaining truly intellectually alive--and contentious--until the end.  I confess that I feared the worst when Shag from Brookline disappeared from the list of those who commented on my postings.  He, along with some other regulars, was a reason that I continued to allow comments, as I will continue to do even in his absence (and perhaps in his memory).  May he rest in peace and his memory serve as a blessing for all bloggers.
Posted 7:21 PM by Sandy Levinson [link] (7) comments

What is "affirmative action"?

Sandy Levinson

Some discussants have taken exception to my insistence, both in print and in the Federalist Society panel that I linked to, that the contemporary United States Senate serves primarily as an affirmative action for the residents of small states.  That is, once the 17th Amendment comes along, there is no serious argument that the Senate actually serves as a valiant defender of federalism, defined as concern for preserving the political autonomy of what are called, seriously or not, "sovereign states," unless it happens to be the entirely contingent (and quite unlikely) case that constituents really care about empowering their state legislators and executives.  Thus it's only real function is to enhance the political power of voters in Vermont, Wyoming, etc., and diminish that of residents of California or Texas.  It also serves, along the way, to enhance "white privilege" inasmuch as the states that benefit from the affirmative action of the Senate are disproportionately white in addition to being disproportionately non-urban.

So what is wrong with calling this "affirmative action"?  Is it the fact that the beneficiaries tend to be opponents of the more "standard" examples of "affirmative action," such as putting a thumb on the scale with regard to racial or ethnic minorities who have been the victims of significant discrimination in the past?  Many of my students at UT did not appreciate being told that they were beneficiaries of "affirmative action" owing to the quota system in favor of Texas residents and that they were recipients of "welfare" inasmuch as even with increased tuition costs, it remains the case that even residential students paying full fees nonetheless receive a handsome subsidy relative to the full costs of the education they are getting.  (And, incidentally, I have never had Texas residents tell me that they suffered any stigma from the knowledge that the seats they are occupying could have gone instead to an out-or-stater with higher formal credentials.)

It turns out that bare invocation of a label, whether "affirmative action" or "secession" or "welfare," does not actually provide the grounds for deciding whether one supports or opposes a specific instance of the practice.  Perhaps there is a defense of the particular form of affirmative action, i.e., deviation from any notion of "one-person/one-vote" norm, instantiated in the Senate.  Ironically or not the most heartfelt defense, which invokes the notion of "state sovereignty," also handily supports the legitimacy of secession.  That is not necessarily a deal-breaker for me, but I do wonder about, say, members of the Federalist Society who defend the current organization of power in the Senate.  
Posted 4:04 PM by Sandy Levinson [link] (96) comments

Neville Chamberlain and Donald Trump

Sandy Levinson

Neville Chamberlain actually remained Prime Minister until the disastrous invasion of Norway by Germany and the almost complete loss of confidence in his capacity to lead the British nation.  He was, obviously, succeeded by Winston Churchill.  And this occurred, just as obviously, without an election:  There were no elections between 1935 and 1945, when Churchill, in a magnificent display of democratic decisionmaking, was ousted from office and replaced by Clement Attlee, who immediately flew to Potsdam and replaced Churchill at the conference with Truman and Stalin.

So compare our own situation, when we are facing the greatest domestic crisis since World War II (in retrospect, September 11 was a stunning gutpunch from which the country recovered relatively easily). The President is a completely incompetent near-sociopath who cannot possibly be trusted to be telling the truth about the most easily verifiable information.  Nor, of course, does he wish to take responsibility for anything "his" Administration has done.  A truly rational political system would have a way of deposing him and replacing him with someone in whom we had sufficient confidence to make what are truly Draconian (or, ideally, Solomonic) decisions that really touch on who shall live and who shall die.  Impeachment, it is clear beyond reasonable doubt, does not work, not least, as I've tiresomely argued, because it has been captured by lawyers who want to parse the meaning of "high Crimes and Misdemeanors," which is really beside the point when a political system is facing a genuine near-existential crisis.  Chamberlain committed no crimes, and one can even understand his relentless desire to prevent another disastrous war; that turned out to be utterly irrelevant after September 1, 1939, though in fact Chamberlain did get another year.

I find it truly incredible that any reasonable person has genuine confidence in Donald Trump at the present time.  It is not a question of replacing him with Joe Biden, which I of course hope happens in November (though we will then be afflicted with waiting an excruciating eleven weeks for Biden's inauguration, thanks to our awful Constitution).  I would gladly replace him with, say, Mitt Romney, someone actually skilled in the administrative arts and, all things considered, trustworthy to make decisions on the basis of his understanding of the public interest.

To continue to ignore the extent to which the Constitution is a major part of our crisis is the equivalent of ignoring all of the social distancing advice and choosing instead to go to a bar because it is so frustrating to spend itme alone.  I can understand both impulses, but each can, in its own way, turn out to be disastrous.
Posted 11:36 AM by Sandy Levinson [link] (53) comments

What To Do About Government Lies?

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Nathan Cortez

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Posted 9:30 AM by Guest Blogger [link]

A discussion about the Senate.

Sandy Levinson

I participated Saturday morning in an online discussion of the U.S. Senate.  It was originally supposed to take place in person at the national Federalist Society Student Conference in Ann Arbor that was cancelled.  The discussants were my colleague Lynn Baker; University of California Prof. John Yoo; and Amanda Neely, who works for Ohio Senator Rob Portman at the Senate itself.  The moderator was Federal Judge Raymond Kethledge.  Lynn and I both directed our fire at the allocation of equal voting power, whereas John and Amanda focused more on the purported advantages of bicameralism and the desirability of moving toward a more limited national government.  I thought it was an interesting (and civil) discussion.  The link begins about a minute or so before we actually got going, so just bear with it.  The entire panel lasted about an hour and forty-five minutes or so.  I suspect that few readers will actually want to listen to the whole thing, but I hope that anyone actually offering comments will have done so.
Posted 12:37 AM by Sandy Levinson [link] (17) comments

Suspending campaigns: A bug or a feature>?

Sandy Levinson

One of the notable features of the present situation is the suspension of ordinary political campaigning (save for the debate I'm now watching between Biden and Sanders).  Why should we lament this, save in the states that have not yet held their primaries for state offices?  The campaign season in the US has become indefensibly extended.  I must get literally a half-a-dozen emails a day from the attractive Democratic candidate running against LIndsay Graham in South Carolina.  I have in fact contributed to him, and I'm sure I will do so again, as is the case with several other candidates running for the House and Senate.  But, frankly, I see no reason whatsoever that those campaigns must now last oer a year.  No other political system in the world, I am fairly confident, spends so much time and money on repetitive campaign events, that most often become the occasion only for "gotcha" responses by take-no-prisoners opponents.  I am truly doubtful about the marginal utility of many of these events (including, of course, the Nuremberg-style rallies preferred by Donald Trump).  Perhaps as we start reflecting on the lessons we should learn from Covid-19 (including the necessity for having a trustworthy president instead of the pathological near sociopath who currently occupies the Oval Office), one of the topics might be reform of the almost literally insane way we conduct presidential selection in this country, beginning with the ludicrous attention given Iowa and New Hampshire and going on to the electoral college.  Hope springs eternal, though it may be that literally nothing can generate any serious discussion about genuine "structural reform" in this country. 
Posted 9:54 PM by Sandy Levinson [link] (44) comments

Who is The Government?

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).







Posted 9:30 AM by Guest Blogger [link]

Time for Mike to get it done

Andrew Koppelman

American politics is pervasively distorted, not just by money, but by right wing money.  Charles Koch is a dangerous crank but a superb political organizer, and he is primarily responsible for some of the most malign aspects of contemporary American politics, notably the staggering federal deficit and the insistence on climate change denial.  There is no comparable political force on the left.  That’s why Michael Bloomberg offered such promise.  It’s not pleasant for American politics thus to be at the mercy of billionaires, but if that’s the way it has to be, then it would be good if they could cancel each other out.

Posted 2:25 PM by Andrew Koppelman [link]

What is “Government” “Speech”? A View from Charlottesville

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Richard Schragger
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Posted 9:30 AM by Guest Blogger [link]

Trump doesn’t understand free markets

Andrew Koppelman

Posted 10:32 PM by Andrew Koppelman [link]

The 25th Amendment and Coronavirus

Gerard N. Magliocca

Here's an issue that the White House may soon confront. Suppose the President contracts the virus. He is feeling OK but must self-quarantine for two weeks. Should he then invoke Section 3 of the 25th Amendment and hand over the presidency to Mike Pence until the self-quarantine ends?

The President can do most of his job under self-quarantine, of course. He can just call people, use email, or tweet. In a crisis, though, having a President who cannot meet people face-to-face poses a problem. Woodrow Wilson contracted the Spanish Flu while he was disabled by a stroke, but that was prior to the ratification of the 25th Amendment. Wilson could not temporarily hand off power to his Vice-President, Thomas Marshall. President Trump can. Maybe he will decide that he must.
Posted 11:45 AM by Gerard N. Magliocca [link] (76) comments

The Government, the Press, and Our Shared Diagnosis

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Sonja R. West
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Posted 9:30 AM by Guest Blogger [link]

The State’s Speech and Other Acts

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Frederick Schauer
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Posted 9:30 AM by Guest Blogger [link]