Somin on Koppelman on Somin on Koppelman

Andrew Koppelman

Ilya Somin, at Volokh Conspiracy, has written a rebuttal to my response to critics (including him) in the recent Balkinization symposium on my book, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. 

Somin does not dispute my claim that sometimes, large regulatory programs are justified.  But, he says, the characteristic failures of democratic governance “amount to a systematic relative advantage of the private sector that should create a presumption against state control. The problem isn't limited to one or a few specific areas of government policy.”  This is not, however, the sort of question that is appropriately addressed with presumptions.  As I say in the book, “whether this is so in any particular case cannot be resolved without attention to the local evidence.”  (69)  Presumptions are not a substitute for such evidence.  Sometimes libertarians can supply it: we are well rid of the Civil Aeronautics Board and the pre-1980 Interstate Commerce Commission restrictions on trucking.  But sometimes the evidence points the other way.

Cost-benefit analysis, later confirmed by analysts in the Trump Administration, found that “the first three years of regulation under Obama produced net annual benefits of $91.3 billion.”  (51)  Such analysis isn’t perfect, but it can be revealing.  “[T]he Trump administration focused exclusively on the costs of regulation to businesses, either ignoring the benefits or attempting to conceal them.” (48)  The Trump policy is an instance of the Somin presumption being permitted to do too much work.

Climate change is the clearest example of the difference.  Somin’s concerns can be manipulated by actors who are a lot less admirable than he is.  Small government ideology was deployed quite effectively by the fossil fuel industry.  So the human race now faces a catastrophe that was entirely avoidable.  “The ideology of small government attracts two very different groups: principled ideologues . . . driven by philosophical commitment, and predators who want to hurt people without interference from the police.  As libertarian rhetoric becomes more common, the second group increasingly likes to masquerade as the first.” (7)

The modern regulatory state is a mighty complex enterprise, and it’s hard to make reliable generalizations across the whole.  The most powerful case for intervention is presented by problems of externalities, positive or negative, in which if government doesn’t do something it just won’t get done.  Libertarian presumptions, as lately deployed in the Supreme Court, have crippled the capacity of the federal government to address climate change and Covid. This is not a gain for liberty.

Asymmetries of information create another appropriate occasion for intervention.  Addressing workplace safety, Somin writes that “workers should be allowed to decide for themselves whether they wish to accept increased risk in exchange for increased pay or benefits.”  But of course there are some risks, such as exposure to toxic chemicals, that workers will not even know about, and which therefore cannot influence the terms of employment.  Justice Gorsuch deployed similar rhetoric of consent to allow employers to nullify workers’ rights with boilerplate contract terms.  (165)  These illustrate a more general problem with libertarianism, its focus on the abuse of state power while neglecting the abuse of private power.

I’m grateful to Somin for his willingness to keep engaging on this topic.  He is, as I’ve said, an old friend. But friends don’t let friends make mistakes about the appropriate scope of government. 

LevinsonFest on the Second Amendment

Guest Blogger

Comments on the LevinsonFest Second Amendment Panel

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on the Second Amendment, convened as part of LevinsonFest 2022.

As always, I am grateful to those who organized and then brought to fruition this latest panel, the “Levinsonfest” on guns and the Second Amendment: Richard Albert, Ashley Moran, and Trish Do. And, of course, I am also immensely grateful to H. W. Perry for moderating this panel and to those who participated as contributors to the discussion. I am flattered by the compliments that the contributors direct to my work, but what is most important, by far, is the discussion itself, including, obviously, elaboration of points on which they (and I) disagree with one another. 

I begin with Renée Landers piece for a quite simple reason: More than any of the others, she emphasizes the costs that are attached to a free-wheeling policy of access to guns. Even if guns are not agents that themselves kill people, it is beyond argument that people with guns often kill other people and, perhaps as importantly, kill themselves as a means of committing suicide. In a country (and culture) that sometimes appears to believe that prevention of even one terrorist attack justifies immense costs in terms both of money and deprivations of ordinary liberty, it is at least worth noting the remarkable indifference of much of the public—and certainly the whole of the Republican Party—to the costs attached to offering the kind of capacious interpretation of the Second Amendment instantiated in the recent case of New York State Rifle & Pistol Association v. Bruen. There six justices, through an opinion by Justice Thomas, seemingly constitutionalized a principle of “open carry” of firearms that makes it difficult to limit their presence in public life.

Bruen and Constitutional Gnosticism

Guest Blogger

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

Darrell A. H. Miller 

Many years ago, before he lost his religion, Sandy Levinson wrote a wonderful little book, Constitutional Faith. The monograph ran with the basic idea that our nation, the United States, has a “civil religion” organized around the Constitution, and that this is a faith to which we must all choose to subscribe. It was a remarkable meditation on a central conceit: insightful, learned, stylistically charming—all hallmarks of Sandy’s work. For a young academic who grew up around evangelicals but had come to admire the intellectual depth of Catholics and High-Church protestants, the book was brilliant and intuitive. 

In Constitutional Faith, Sandy constructed a two-by-two matrix of different interpretive tendencies or “strains.” One strain had to do with the sources of constitutional authority; the other with the persons and communities authorized to do the interpretation. “Protestant” tendencies focus exclusively on the written Constitution as the interpretive source; and legitimate acts of interpretation by individuals and non-specialist communities rather than hierarchical institutions (read “courts”). “Catholic” tendencies expand the sources of constitutional interpretation to non-textual traditions alongside the written Constitution; and repose authority in hierarchical institutions to settle matters of constitutional dispute.

"Interconstitutionalism" in Yale Law Journal

Jason Mazzone

My article, "Interconstitutionalism," with Cem Tecimer (S.J.D. candidate at Harvard), appears in the current issue of the Yale Law Journal. The article abstract is below. Balkinization authors and readers gave us helpful feedback on early drafts of the article. We're now planning some additional pieces from the same project and so further comments and suggestions are very welcome. 

Interconstitutionalism, 132 Yale L.J. 326 (2022)

New constitutions aim to break from the past, but they rarely do. Instead, predecessor constitutions routinely influence how a new constitution is interpreted and applied. Past constitutions linger, even when the new constitution is the product of revolution or civil war. To explore this phenomenon, we take up a prevalent yet understudied practice of constitutional interpretation that we call “interconstitutionalism.” By interconstitutionalism, we mean the use of a polity’s antecedent constitution(s) to generate meaning for that same polity’s current constitution. Courts and other interpreters regularly engage in interconstitutionalism, keeping alive the seemingly dead constitutions of the past. Interpretations of the U.S. Constitution regularly make use of the Articles of Confederation; state constitutional interpretation regularly involves comparison to predecessor state constitutions; and abroad, past constitutions play a starring role in making sense of nations’ current governing charters.

This Article examines the multiple and often surprising dimensions of interconstitutional interpretive practices, drawing on examples from federal, state, and foreign courts. Understanding interconstitutionalist practices informs and challenges existing accounts of constitutional interpretation and adjudication. It also sheds light on the very nature of constitutional governance. A core commitment of modern constitutionalism is self-rule: government by the people. But interconstitutionalist practices challenge the very possibility of constitutions as self-governing charters. Interconstitutionalism means that past constitutions—those written and adopted by other people, for another political system, and now superseded—continue to hold sway. Yet, as the Article concludes, interconstitutionalism reveals a path forward for meaningful popular sovereignty and a basis for securing constitutional legitimacy.  

Rooting Meaning in History and Tradition Imposes “Embarrassing” Limitations on Constitutional Vitality: Reflections for LevinsonFest

Guest Blogger

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

Renée M. Landers 

I am honored to take part in this tribute to someone who has achieved iconic status in the Pantheon of constitutional law scholars. While I mostly lurk and only occasionally engage, the discussions Professor Levinson initiates and pursues--with seemingly endless energy and unlimited time—on the AALS constitutional law professors’ list are sources of information and insight that probe the raw edges of disagreement about constitutional analysis and debate. For these efforts to engage colleagues, I am also grateful. 

I am still a bit puzzled by the invitation to participate in the LevinsonFest on the subject of the Second Amendment as I have mentioned it in writings only in passing. Despite this puzzlement, I decided to accept the invitation and to approach the subject from the perspective of health law and policy—one of the other areas in which I teach.

Response to the symposium on Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed

Andrew Koppelman

Thanks to Richard Epstein, Christina Mulligan, James Hackney, Matt Zwolinski, Ilya Somin, Jamie Mayerfeld, Jennifer Burns, and Jonathan Adler for their thoughtful responses to my book, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed.  It’s an honor to be able to engage with such an impressive group.

The book is a critical history of libertarian philosophy.  It argues that modern libertarianism began as a corrective to the Depression-era vogue for central economic planning. It showed how individual liberty and free markets could improve life for everyone, especially the poorest.  I trace its evolution from Friedrich Hayek’s moderate pro-market ideas to the romantic fabulism of Murray Rothbard, Robert Nozick, and Ayn Rand, and Charles Koch’s aggressive promotion of climate change denial.  Today it has become a toxic blend of irresponsible anarchism, cruel disdain for the weak, and rationalization for environmental catastrophe. The notion of a minimal state has attracted a new form of parasite: the dishonest businessman who wants to deceive his customers or poison his neighbors without being bothered by the police.

Unsurprisingly, the libertarians who participated in this symposium are unpersuaded.

Challenging the Monopoly of Arms: Reflections on Sandy Levinson and the Embarrassing Second Amendment

Guest Blogger

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

Robert J. Cottrol

When I first received the invitation to participate in the LevinsonFest and to discuss Sandy Levinson’s critical role in the world of Second Amendment scholarship, many thoughts raced through my mind on how I might begin and focus this short discussion. Sandy Levinson’s 1989 essay, “The Embarrassing Second Amendment” played a critical role in taking the Second Amendment from what had been a state of academic neglect and judicial desuetude to the triumph of the individual rights position that we saw in June of this year with the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen. A discussion focused on the role Sandy’s essay played in stimulating Second Amendment scholarship and how that scholarship caused the courts to re-examine the right to keep and bear arms, a re-examination that ultimately brought us Heller and now Bruen would have been entirely appropriate. Along the way I could commend Sandy for the intellectual and moral courage it took to embark on such a venture. I recall being at a dinner with Sandy at an academic conference in 1988 or 1989 when he indicated that he was working on an article on the Second Amendment and that the short of it was that the NRA was probably right at least in broad terms about the amendment having been intended to protect an individual right. A number of people suggested that he shouldn’t go through with the project saying that it would probably bring about a fair amount of ostracism and opprobrium from liberals in the legal academy. To his great credit, Sandy ignored that advice and by doing so produced that rare occurrence, a piece of scholarship that made history.

Andrew Koppelman’s Half-Way Hayekianism

Guest Blogger

For the Balkinization Symposium on Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed  (St. Martin’s Press, 2022).

Jonathan H. Adler 

Andrew Koppelman’s Burning Down the House is a simultaneously engaging and frustrating book. It offers a refreshing center-left appreciation F.A. Hayek and provides insightful critiques of more rigid and radical libertarian thinkers. Yet it also strangely resists serious consideration of the broader application of Hayekian insights and is too quick to assume a conscientious Hayekian would be part of the today’s center-left coalition.

Part of what is so refreshing about Koppelman’s book is that his appreciation of Hayekian insights is so rare in center-left discourse. He understands that liberals should be more  concerned with poverty than inequality. Market-driven increases in standards of living around the world have been a boon for humanity, increasing lifespans and reducing human suffering. Moreover, there can be no meaningful wealth redistribution if there is not sufficient wealth to redistribute. Koppelman  also appreciates that the benefits of markets are not purely economic.  “In a diverse society, markets facilitate peaceful cooperation among people who radically disagree about fundamental values,” he observes. (175) As a consequence, the market “stimulates not only competition but empathy.” (176)

Appraising Sandy’s Call to “Arms”: Success in the Academy … Not So Much in the Courts

Guest Blogger

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

Joseph Blocher 

In 1989, Sandy Levinson published “The Embarrassing Second Amendment” in the Yale Law Journal. It remains the most-cited law review article on the right to keep and bear arms and, while not always described accurately or deployed faithfully, has played a significant role in the development of scholarship and doctrine in the decades since. Writing today from within the scholarly field that Sandy helped create, my hope here is to offer a few broad observations—through the lens of his work—about how firearms scholarship and doctrine have changed. 

LevinsonFest on the Second Amendment

Guest Blogger

Ashley Moran

We’re pleased to share essays from our recent LevinsonFest 2022 roundtable on the Second Amendment. The roundtable includes essays from Joseph Blocher (Duke University), Robert Cottrol (George Washington University), Renée Landers (Suffolk University), and Darrell Miller (Duke University), as well as a response from Sandy Levinson (University of Texas at Austin).

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

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

"American Founding Son" Audiobook

Gerard N. Magliocca

I am excited to say that my biography of John Bingham is now available as an audiobook, read by me. 

Happy Thanksgiving to all of our readers and contributors.

The Grotesque, Wonderful Respect for Marriage Act

Andrew Koppelman

The Respect for Marriage Act (RFMA), which Congress is on the verge of passing after the Senate moved forward on it last week, takes a grotesquely roundabout approach to the problem it addresses. It is also a great moral achievement.

I explain at The American Prospect, here.

Wither Friedman?

Guest Blogger

For the Balkinization Symposium on Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed  (St. Martin’s Press, 2022).

Jennifer Burns

Andrew Koppelman has given us a polemical, lively, and smart take on the various political traditions, ideologies, ideas, and irritable impulses captured by the general category of “libertarianism” in the contemporary United States.  The book’s greatest contribution is to break up the static category of libertarian.  It’s a little too neat to separate libertarianism into two warring camps, but the heuristic does offer a useful way into an ideological and political space that could use more curious visitors and analytic legal minds.  Koppelman also makes a useful intervention when he pulls libertarianism across the partisan divide, not only by expressing his own appreciation of the creed from a leftist position, but in his arguments for libertarian’s influence on American liberalism.  In his telling, what was most valuable in the libertarian tradition was absorbed into the political mainstream; Koppelman denounces the leftover bits.  Several commentators are skeptical of this argument, but Koppelman’s narrative is echoed by new interpretations of the late twentieth century like Gary Gerstle’s Rise and Fall of the Neoliberal Order and Elizabeth Popp Berman’s Thinking Like an Economist.   

Which brings me to a central hole in Koppelman’s account… where is the discipline of economics?  Where is Milton Friedman?  Perhaps it’s inevitable that having just finished writing an intellectual biography of Milton Friedman, I see the world through that lens.  Nonetheless, I do believe there is a case to be made that Friedman plays a central role in Koppelman’s story.  In many ways he could be swapped in for Hayek – yet Friedman was far more central than Hayek to modern economics and American political debate.  As both a dominant force in economics from the mid 1960s to the early 1970s, and one of the most visible public figures advocating free markets in the following decades, Friedman played a central role in articulating libertarian ideas and in tempering their excesses.

Balkinization Symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Jim Fleming's new book, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

1. Jack M. Balkin, Introduction to the Symposium. 

2. Carlos A. Ball, We Are All Constitutional Libertarians Now. 

3. Douglas NeJaime and Reva Siegel, The Wages of Crying Lochner!. 

4. Ilan Wurman, Whose Substantive Due Process?. 

5. Serena Mayeri, Equality and Liberty After Dobbs. 

6. Cathleen Kaveny, The World Turned Upside Down: What’s Up with the Harm Principle?. 

7. Sanford Levinson, Constructing Basic Liberties: A Meta Review. 

8. Guha Krishnamurthi, Pluralism, the Common Law, and Substantive Due Process. 

9. Aziza Ahmed, Erasing the Past, Rethinking the Future. 

10. James E. Fleming, Constructing Basic Liberties: A Response to Eight Comments.

Constructing Basic Liberties: A Response to Eight Comments

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

James E. Fleming

            I am enormously grateful to Jack Balkin for hosting this symposium on my new book, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022) and to the contributors for commenting on it. In this brief response, I cannot possibly do justice to all of the thoughtful criticisms they make. Instead, I will address some of the most salient and recurring issues they raise. My primary aim will be to make clarifications where these careful readers have shown the need to do so. I will take up the comments in the order in which they were posted.

Libertarian Insights, Errors, and Calamities

Guest Blogger

For the Balkinization Symposium on Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed  (St. Martin’s Press, 2022).

Jamie Mayerfeld

Andrew Koppelman has done us an invaluable service by tracing the development of libertarianism, capturing its appeal, diagnosing where it went wrong, and underscoring the terrible price to be paid for adopting its more extreme versions. Burning Down the House is packed with information, insight, and wisdom. It is a brilliant and necessary book that everyone should read.

            One of many reasons to admire the book is Koppelman’s commitment to addressing people across the political spectrum. He does not prescreen his audience in advance, for example, by starting with the assumption that either capitalism or socialism is a dirty word. His message to libertarians is that they should prefer moderate to extreme libertarianism. His message to moderate libertarians is that they should still relax some of their resistance to regulation and redistribution. His message to leftists (among whom he counts himself) is that they should support capitalism in view of its demonstrated power to alleviate domestic and global poverty. Because most conservative libertarians and left-wing progressives share a commitment to freedom and equality, he regards their disagreements as a “family quarrel” amenable to evidence and reasoning. Koppelman advocates what he calls a “moderate libertarianism” for which he finds a model in Scandinavia’s social democratic yet indisputably capitalist economies, combining regulated free markets with generous social welfare programs.

Donald Trump's Provisional Candidacy

Gerard N. Magliocca

Tonight Donald Trump is expected to announce his third bid for the White House. Whatever you think of his prospects, there is a more basic question: Is Trump even eligible to serve again as President? Or does Section Three of the Fourteenth Amendment bar him from office because of his role in January 6th? 

When people want to vote when there are legal doubts about their eligibility, they cast a provisional ballot.   When people want to run for office when there are legal doubts about their eligibility, the best description is that they are provisional candidates. The Supreme Court must decide as soon as possible if Donald Trump's provisional candidacy is a real one. It would be unfortunate if people gave money, volunteered for, or voted for a presidential candidate who was then deemed ineligible under the Constitution.

Obtaining a prompt ruling on Trump's eligibility will be difficult. The practice of presidential campaigns far outpaces the formalities. Candidates declare well before the primaries and caucuses are held. There will not be a filing deadline for months that could be the basis of a cause of action. But there may be some creative ways to get the issue before the Court sooner. More on that soon.    

Retrieving Democracy: Andrew Koppelman and C.B. Macpherson’s Reformulation of Libertarian Political Thought

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Communication Nation

Guest Blogger

Nick Frisch 

One of the more elusive words in Mandarin is jiaotong. It means, roughly, “communications,” both in the sense of moving physical objects, and also the flow of information—think “traffic,” “connectivity,” “transport,” and “infrastructure.” In the names of Chinese institutions, the word occurs in contexts that an English-speaker might find puzzling. China has several dedicated jiaotong universities, and a behemoth jiaotong bank. Today, Beijing’s official department for jiaotong translates its name as the Ministry of Transport. This huge bureau reflects the Chinese state’s obsession with managing flows of people, products, information, and capital: the Ministry has a heritage that dates back to imperial China, older than either the People’s Republic (founded 1949) or the Communist Party (founded 1921) its bureaucrats now serve.

In the 21st century, in places like Silicon Valley, we have come to see the spread of modern communications and logistics infrastructure across borders as an unalloyed good. China has not always viewed jiaotong with such enthusiasm. China’s jiaotong institutions have roots in a painful history that inverts the West’s narrative of borderless techno-optimism. During Europe’s colonial expansions, China learned hard lessons about jiaotong—and what happens when you don’t control it on your own sovereign territory. These lessons guide the Communist Party’s current decisions on access to, and control over, the traffic of both physical goods and information flows.

Assessing Libertarianism Requires Engagement with Modern Libertarian Political Thought

Guest Blogger

For the Balkinization Symposium on Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed  (St. Martin’s Press, 2022). 

Ilya Somin

Andrew Koppelman’s Burning Down the House makes some worthwhile points, and I agree with more of it than I would have expected. But it is also something of a missed opportunity. Koppelman attempts a critical analysis of libertarian political thought and its impact on public policy. But he overlooks major aspects of both.

Let’s start with a few points of agreement. Early in the book, Koppelman recognizes that free markets have made enormous contributions to human freedom and welfare (he calls it “the Great Enrichment”). He also notes the validity of F.A. Hayek’s classic critique of economic central planning, on the ground that governments lack the knowledge needed to plan economic production competently. Perhaps most strikingly, he points out that many on the left fail to recognize the contradiction between their support for diversity and their sympathy for socialism; the latter is likely to stifle the former. As Koppelman puts it, “[m]any on the left repudiate capitalism because they don’t grasp the anti-socialist logic of their present views.”

If I have a quarrel with this part of the book, it is that it overstates the extent to which much of the rest of the left has internalized these points. Koppelman insists that mainstream modern left-liberals – including even self-described “democratic socialist” Bernie Sanders have mostly accepted Hayek’s key insights, and mostly reject central planning. In reality, much of the left still advocates centralized control of large parts of the economy – most notably health care and education – and Sanders’ supposedly new version of socialism includes policies that collectively would amount to a government takeover of the majority of the US economy. Much of the political right – especially  in its Trump-era incarnation, with its love of “industrial policy”  –  is guilty of similar sins. Koppelman is overly optimistic when he writes that  appreciation for the (limited) virtues he sees in market processes has “prevailed across the political spectrum.”

Two Cheers for Radical Libertarianism

Guest Blogger

For the Balkinization Symposium on Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed  (St. Martin’s Press, 2022).

Matt Zwolinski

Ed Crane, one of the co-founders of the libertarian Cato Institute, once quipped that as a libertarian he always knew that it was important to be tolerant of alternative lifestyles, but until he walked into the conventional hall of the Libertarian Party, he had no idea just how many alternatives there were.

In the course of writing our book on the history of libertarian thought, The Individualists: Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism, John Tomasi and I had much the same experience. Both of us were already familiar with the main libertarian thinkers of the 20^th century: Robert Nozick, Murray Rothbard, Ayn Rand, Ludwig von Mises. But neither of us had sufficiently appreciated just how many differences there were between these thinkers. And we certainly didn’t realize how much deeper, messier, and more interesting this diversity would become once we expanded the scope of our vision. Libertarianism, we came to realize, was not the creation of 20^th century American intellectuals. Libertarianism was born in the 19th century, and first came on to the scene in Britain and France, only later making its way to the United States, where it took on a strikingly different form.

The Journal of American Constitutional History

Richard Primus

I'm proud and excited to be part of the launch of a new journal, called the Journal of American Constitutional History.  A number of Balkinization bloggers are editors of the journal, including Mary Dudziak, Mark Graber, Sandy Levinson, Gerard Magliocca, John Mikhail, and Mark Tushnet.  You can read more about the journal at its website, which is here.  Please find the first Call for Papers below.

---------------------------------

Journal of American Constitutional History

Call for Papers

You are cordially invited to submit articles to the Journal of American Constitutional History, a new online peer-reviewed journal. At a time when law office history is increasingly casting its shadow over both scholarship and jurisprudence, the Journal of American Constitutional History will offer a space for scholarship that tries to understand the past, rather than to distort it to influence present controversies.

The Journal seeks to promote inter- and multi-disciplinary scholarly dialogue on constitutional history, and we therefore invite submissions from disciplines outside of law, including history and political science. The Journal will publish articles of all lengths, from shorter essays and thought-pieces in the 4,000-to-6,000-word range to longer, traditional articles. Authors will be able to conform to the norms and citation styles of their respective fields.

Why this journal?

The Journal of American Constitutional History offers a serious alternative to student-edited law reviews and the constraining expectations of student editors. Authors will not need to erect elaborate scaffolding that shows some present-day “doctrinal payoff.” Nor will authors have to devote thousands of words to well-known background material, unnecessary footnotes, or literature reviews.

The Journal offers much faster publication decisions and time-to-publication than most peer-reviewed journals. Authors can expect to receive first-level decisions within a week of submission, and articles submitted for double-blind peer review will receive a decision within 3-4 weeks. Each author will receive written feedback explaining our publication decision. Articles will be published via the Journal website as soon they are completed rather than awaiting compilation of a full issue. Each article will be assigned a unique page range for citation purposes, and published articles will be carried by Hein Online and other searchable electronic databases.

The Journal’s Board of Editors comprises leading scholars in the field of constitutional history. (Please see listing on reverse page.) Authors can thus be assured of reaching their target audience from a distinguished platform and need not associate “prestige” with killing trees.

To submit articles, please visit our website, https://jach.law.wisc.edu, starting December 1, 2022. For questions, please contact the Journal’s editor-in-chief, David Schwartz, at

editor-jach@law.wisc.edu.

McCarthy’s Minefields

David Super

     With the latest projections showing House Republicans likely to take a five-seat majority, it seems worth considering what their impending reign might resemble.  Those concerned with the nation’s well-bring will surely be disappointed.  Those hoping for a Democratic rebound in the 2024 elections should be buoyed.  And those that enjoy political slapstick may want to make extra popcorn. 

     At the top line, a majority is a majority.  The House of Representatives is designed around the same principles of “democratic centralism” that made the Supreme Soviet all that it was. 

     Only a simple majority is required to elect a speaker.  My guess is that Representative McCarthy becomes speaker, notwithstanding internal anger over the lack of a “red wave”, because of the absence of a clear, credible alternative.  If McCarthy falls, each faction will want to put forward its own candidate and will start trashing those of the other factions.  (Liz Truss, anyone?)

     In some state legislatures with tenuous majorities, the minority party has made deals with a faction of majority-party legislators to elect one of the faction’s number to lead the chamber in lieu of the majority party’s leader.  That is not possible here because of the lack of genuine moderates within the House Republicans and the certainty that any Members in such a hypothetical rump caucus would be primaried and defeated in two years.  And the Democratic Party is not cohesive enough to offer such hypothetical breakaways immunity from serious challenge in 2024. 

     The new majority will have little procedural difficulty bringing whatever legislation it pleases to the floor and blocking legislation it disfavors.  Because the House lacks a filibuster, the minority has no say in how the chamber is organized.  This means the majority can and typically does give itself majorities on key committees far greater that its proportion of the total membership of the House.  Ways and Means, Appropriations, and other priority committees will all have Republican majorities of sixty percent or more.  (Proportionate committee membership in the Senate results from the minority’s ability to filibuster each session’s organizing resolution and delay the start of legislative business indefinitely if it is not treated fairly.) 

     The House Rules Committee likely will have a 9-4 Republican majority – the same five-vote margin as the chamber as a whole – and will be stacked with Members absolutely loyal to the speaker.  The Rules Committee makes grand juries look like paragons of independence:  it would (and actually once did) report out a ham sandwich.  Any unwelcome amendments that somehow get added in substantive committees may be stripped out in the Rules Committee before the legislation goes to the floor.  Knowing that, Republican Members on those substantive committees may see little advantage to defying their committee’s leadership.

     Because of their extreme vulnerability to defections, and their inability to give endangered Members permission to cast dissenting votes that will be politically popular back home, the Republican leadership is likely to direct the Rules Committee to bring almost all legislation to the floor under closed rules or “modified open rules” that sharply limit amendments.  The relatively slender House majorities of recent years on both sides have greatly reduced opportunities for Members to bring amendments to a vote that could be uncomfortable for majority-party legislators; that process of curating democracy will surely accelerate.

     One large open question is the fate of motions to recommit.  One House tradition that both Democrats and Republicans have held sacrosanct when leading the House has been that, prior to final passage, the minority party may offer one motion to recommit that legislation to committee.  This is, in effect, a single opportunity for an amendment.  Rather than directly adding or subtracting text to a bill, or offering a substitute, a motion to recommit sends the legislation back to committee with instructions to make the desired additions or subtractions or to report out the desired substitute.  (Some motions to recommit are offered without instructions, but that serves little purpose as it merely duplicates the vote on final passage.)  The motion to recommit forces a vote of the full body on one change or package of changes desired by the minority. 

     When they were in the minority from 1994 to 2006 and from 2010 to 2018, Democrats’ motions to recommit have largely sought to give their own Members opportunities to vote for things their base desired rather than to force Republicans to cast difficult votes.  Many were wholly new versions of the pending legislation, including provisions Republicans could safely cite as reasons to vote “no.”  Others were cartoonish protest resolutions that posed no threat to Republican cohesion and that no objective observer would criticize Republican Members for voting down.  Democrats’ inability to resist including unpopular items in their motions to recommit have made these motions politically harmless.  Republican motions to recommit, by contrast, have often been much smarter, proposing changes in legislation with considerable public appeal and forcing Democrats to cast politically costly votes to defeat the motion. 

     With such a slender majority, a Republican Rules Committee may be reluctant to continue to allow motions to recommit on all major legislation.  If it does, the Democrats’ ability to craft more viable, reasonable motions that stress the majority’s cohesion will depend on the willingness of the entire Democratic caucus to vote for motions to recommit that leave intact many troubling parts of the pending Republican legislation. 

     The House Republican leadership will have absolutely no capacity to discipline its Members for pretty much anything.  No matter how egregious the conduct, an aggrieved Member can paralyze the House by getting just two friends to join in withholding votes.  The Members will know this, and acting out by the (numerous) Members with weak impulse control is likely to crescendo.  If the Democrats are effective at hanging the failure to punish bad behavior on individual Members, this could help in marginal districts in 2024.  Of course, that strategy will depend on Democrats’ having the discipline only to make an issue out of behavior that would genuinely shock swing voters rather than everything that irritates some part of the Democratic base. 

     The leadership likely will struggle to move major legislation.  The Trumpist wing of the Party likely will insist on some other constraint on deals with Democrats.  Such constraints will magnify the power of their threats to withhold votes.  Perhaps mildest restraint the leadership can hope for is reinstatement of the “Hastert Rule,” which allows legislation to move if but only if it enjoys majority support within the majority party.  Crucial may be whether primary-fearing Republican Members are forced to declare publicly their support for legislation proceeding publicly:  if they must, the leadership may face continual deadlock.

     Appropriations bills typically have remained at least somewhat bipartisan even in a sharply polarized House:  they provide the ideal vehicle for buying off Members of the minority party without either side making ideological concessions.  But if some far-right Republican Members refuse to vote for appropriations bills that fail to defund investigations of former President Trump (or of themselves), the leadership may struggle to get their primary-fearing Members to vote for a bill dependent on many Democratic votes to pass.  Funding for Ukraine, which enjoys significant Republican support, seems secure; if the pro-Russian faction cannot find a political “off-ramp” to allow such legislation to move, they may make Democrats’ votes even more indispensable to their own leadership and hence strengthen Democrats’ bargaining positions. 

     To minimize the number of divisive votes required, the leadership may largely abandon the annual appropriations process in favor of a single catch-all omnibus appropriations bill in the fall.  Perhaps they will seek the appearance of normality by passing a few smaller appropriations bills for less controversial agencies in the interim.  On the other hand, the leadership may try to fund Ukraine entirely through separate supplemental appropriations so that their need for bipartisanship on that funding does not force them to reach broader appropriations deals with Democrats. 

     Non-appropriations bills will be even harder.  Various House Republican factions will have demands about what conditions to place on legislation raising the Debt Limit, due fairly early next year.  The leadership will struggle to get them down to a single demand even though a laundry list would surely be difficult to defend to the public and especially to business-oriented donors unwilling to risk a default.  The most likely scenario, once those donors weigh in, may be for the House to pass highly conditional, politically infeasible debt limit bill with only Republican votes, go to conference with the Senate, and bring back a “clean” debt limit increase that achieves final passage largely with Democratic votes.  The dissention that would bring likely would imperil the leadership’s ability to move legislation for some weeks or months thereafter. 

     Disruptive investigations should be easy to maintain:  they require only the initiative of the pertinent committee chairs and can significantly hobble the Biden Administration’s capacity to function.  On the other hand, impeachment, whether of President Biden or Administration officials, could pose serious challenges for the leadership.  It likely will have many Members in marginal districts that are leery of voting for an unsupported impeachment.  Bringing impeachment to the floor and losing would intensify right-wing activists’ cries of “RINO”.  But getting incoming Judiciary Chairman Jim Jordan to slow-walk impeachment to save his marginal colleagues from difficult votes seems unlikely. 

     Because House rules so completely entrench the majority party’s power, transitioning from majority to minority or vice versa is extremely challenging.  Few Members, and even fewer leaders, do it well because the two roles require fundamentally different skill sets.  Speaker Pelosi is one of the few adept at both jobs:  indeed, as gifted a Speaker as she has been, she was the most effective Minority Leader in many, many decades. 

     Many Republican bomb-throwers that have thrived in the minority will have extremely difficult paths to the lower-profile, more cooperative profile needed to have an impact in the majority.  If they fail to make the transition, they will hand President Biden and their Democratic challengers in 2024 the perfect “do-nothing Congress” piñata to bash for failure to respond to the likely economic downturn.  If I were Representative McCarthy, I might well be quietly rooting for the remaining toss-up races to break for the Democrats and save me from embarrassing failure leading this caucus with a slender majority. 

     @DavidASuper1