jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
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Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
David Brooks's incomplete Hamiltonianism
Tuesday, June 14, 2011
David Brooks's incomplete Hamiltonianism
David Brooks has an interesting column in today's Times berating both political parties for forsaking what he calls Hamiltonian "national greatness" policies. Along the way, he refers to "ouor dysfunctional political system." Needless to say, he nowhere suggests that that political system is at all traceable to the Constitution that Hamilton so notably defended (sincerely or not) in The Federalist. Consider, though, that Hamiltonwas was savagely critical of the political system created by the Articles of Confederation (see, e.g., Federalist #15). I believe that he once referred to the existing American political system in 1787 as "imbecilic." He believed, probably correctly, that "national greatness" of any kind, including the basic ability to create a military that could defend us from adversaries, was impossible under that system, and it needed immediate replacement. One need not argue that the Constitution is as bad as the Articles (though it's closer than most people think) in order to believe that Brooks and other pundits who so regularly write about the "dysfunctionalities" of our present political order might profit from actually thinking about the Constitution and, concomitantly, about possible changes.
I'm a long way from informed to make any useful comment on the substance of this but thanks for the interesting, new, "unblinking seriousness" test!
Brooks is best read for the confusion he puts forth. What exactly does "Hamiltonian/National Greatness perspective" mean anyway? The suggestion seems to mean that they are sides of the same coin. Are there other "National Greatness perspectives" like a Madisonian/NGP?
Madison in his veto message regarding the national bank respected "experience." This includes development of the specific application of constitutional provisions.
But, the issues are complex. Some disagree with you that it is an over worship of the Constitution that is the problem.
It is not "Constitution veneration" as such that opposes certain applications (the filibuster as applied is not compelled by the Constitution) or expect the level of change you desire is either dangerous or unlikely at the moment.
Hamilton after all even then felt much more should have been done and his brand of Federalism (capital "f") soon died off. The opposition to change has been around for quite some time. It is right there in the Declaration of Independence, talking about all that we can bear before change comes. Things are even more enmeshed now.
David Brooks in his University of Chicago days was well aware of the elephant in the room with his paper deriding Bill Buckley, Jr.s movement. Alas, Buckley co-opted Brooks with a job on his National Review. I guess personal economics got Brooks to ride the elephant. It should be noted that fellow NYTimes op-eder Paul Krugman does not step back from criticizing Brooks' support of Rep. Ryan's economics.
(Hopefully the Hamilton reference in this post will not serve to restart the grilling of Anthony W.)
Krugman is in fact no better than Brooks with regard to the "elephant" of the Constitution, even if he is almost infinitely better re his understanding of the deficiencies of the Ryan budget.
Sandy's elephant in the room (the Constitution) perhaps is treated more like a pinata. It has been beaten on for most of its existence yet it survives. Some say it has been lost and requires restoring. A few seek to rehab a certain Court decision in shameless huckstering of a new book. A few see redemption. Sandy seems to want to add to these three-Rs (Restoring, Rehabbing, Redemption) a fourth-R - Rewriting. But the process of a constitutional convention would most likely be messy, especially if the Rewrite is accomplished in a democratic manner as noted in another post at this Blog. While I have long been an admirer of the Uniforms Laws approach, the Constitution has been so politicized I have no confidence that we can rely upon constitutional scholars/experts to come up with an appropriate Rewrite. It's gotten to the point of Genesis and its Original Sin interpretation by fundamentalists (and others). Maybe, just maybe, the pinata beaters should take off their blindfolds and recognize that it might just be the men, not so much the laws, that are the problem.
As for Sandy's comment on Krugman, who is an economist who sticks to his last, I am not aware that Krugman considers the elephant in the room to be the Constitution but rather the GOP that does not want the economy to recover for obvious reasons (pointing out that President Obama is not yet effectively challenging the GOP on this). I mentioned Krugman in an earlier comment only for the purpose of demonstrating that he, despite being an op-ed colleague, remonstrates Brooks from time to time on economic issues. I have no idea how Krugman might respond to an inquiry by Sandy on the impact of the Constitution on the economic mess we're in.
One has "no idea" about Krugman's response because he has never connected the dots himself about the relationship between our constitutional order and our malaise. Instead, he prefers to focus on perfidious Republicans and splineless Democrats, both of which might be true, of course, but a limited view of why it is perfectly rational for Mitch McConnell to behave as he does and for Democrats to refrain from getting into poltical fights that, under the rules, they cannot win.
It's a tad overreaching to suggest that an economist, even a Nobelist, should be able to connect these dots. While Krugman recognizes the political tactics of McConnell et al, it is difficult enough for Krugman to address the economics without being accused of drifting into an area in which he may lack expertise. The dots should be connected with the aid of Sandy and other constitutional scholars. Sandy has been making a case, but he doesn't seem to be joined by other such scholars. Of course, Sandy should keep up the fight on the constitutional reform side, so that others may eventually join him, keeping in mind that Krugman is challenged at every turn as "shrill" and he is supported by only a few. But Krugman is relentless. For those who only read his NYTimes columns on Mondays and Fridays, they are missing his blog at the Times in which he is constantly doing battle, with facts and figures.
The Arts section of yesterday's (6/15/11) NYTimes has an interesting article by Patricia Cohen (page 1) titled "People Argue Just to Win, Scholars Assert" addressing cognitive issues that David Brooks has been discussing in his columns for the past year or so as well as in his new book. The article includes references to the legal profession and politics. Perhaps Brooks may pick up on the work of the scholars. As I read the article, I thought of the positions taken by constitutional scholars on the Affordable Care Act (aka Obamacare). Here's an excerpt from Cohen's article that might entice readers:
"Think of the American Judicial system, in which the prosecutors and defense lawyers each have a mission to construct the strongest possible argument. The belief is that this process will reveal the truth, just as the best idea will triumph in what John Stuart Mill called the 'marketplace of ideas.'"
I don't personally believe that the truth is actually produced by the system. But, like in horseshoes, close enough wins. But is winning everything?
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Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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