Balkinization: January 2016

Balkinization
an unanticipated consequence of
Jack M. Balkin

Balkinization Symposiums: A Continuing List

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
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Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
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)

Recent Posts

Populism and Progressivism, Traditionalism and Cosmopolitanism, and the Struggle over the Republican Party

More grist for the law professors' mill-- indicting a presidential candidate

Can the Constitution of Opportunity Carry the Day in American Politics?

Only One Place of Redress? How the Supreme Court Unleashed Racist Terror and Divided White from Black Workers

John Roberts, Ted Olson, and the Judicial Separation of Powers

Donald Trump and the Politics of Disjunction

The Public Utility Idea in a Progressive Constitutionalism of Equality

The most important and humane legal development in a long while

Fiscal Policy and Economic Inequality

The Second Freedmen's Bureau Bill's Constitution

Constitutional political economy in the New Gilded Age: A revival of legal realism?

Collective Laissez-Faire in the American Grain

Dividing Sovereignty: Commonwealth of Puerto Rico v. Sanchez Valle

Building Labor’s Constitution

Republicanism and the Constitution of Opportunity

Why Constitutional Political Economy?

The Great Forgetting

Reclaiming Constitutional Political Economy

Symposium on The Constitution and Economic Inequality

Asked and Answered: The Take Care Clause issue in U.S. v. Texas

Two more reasons why the "Take Care" argument in the DAPA case is a non-issue

An Argument Open to All: An Interview with Sanford Levinson

Is Ted Cruz a naturalized citizen?

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Sunday, January 31, 2016

Populism and Progressivism, Traditionalism and Cosmopolitanism, and the Struggle over the Republican Party

In a series of posts, Sean Trende has diagnosed the current split in the Republican Party as a conflict between cultural cosmpolitianism and cultural traditionalism. Back in 1995, I described a related split in terms of the opposition between populism and progressivism. In this context, "progressivism" stands for embrace of expertise, elite culture, and elite values--and not necessarily for left-wing or progressive social policies. Hence there are populist and "progressive" wings in both major political parties. Even though there are few liberal Republicans left, you have plenty of highly-educated elites and intellectuals in the Republican Party who believe in expertise and embrace elite values. They just disagree with the experts and elites on the left. The conservative counter-establishment, which includes conservative think tanks, policy organs, media organizations like National Review, and conservative academia-- is their natural home.

For the last generation or so the Republican political strategy has attempted to identify conservatism and the Republican Party with populism and cultural traditionalism, and to portray liberals and Democrats as "progressives" (in my language) or cultural cosmopolitans (in Trende's). This strategy has often been very effective, because the modern (post-Reagan) Democratic Party leadership has usually been more progressive than populist in its orientation. Nevertheless, this strategy has put many Republican elites in a bind, because their values and attitudes are often not really populist at all. They are cosmopolitan.

Nevertheless, conservative elites have been able to paper over these problems skillfully, by claiming to identify with and speak for the values and concerns of working class (usually white) Americans. For generations, very well-educated businesspeople and intellectuals have defied political gravity by arguing that their economic agenda of low taxes for the wealthy, deregulation, free trade, and immigration reform was also (or should be) the agenda of the conservative working class. Cosmopolitan conservative elites often paid lip service to culture war issues as the price of a very successful political alliance. This is conservative elites' version of the challenges that liberal elites faced in attempting to speak for the interests of working class and poor people, an association that conservative intellectuals have repeatedly and gleefully attacked. To the extent that these attacks succeeded, conservative elites were simply more successful than liberals in hiding the tensions within their own coalition.

That is, until now.

Donald Trump's candidacy has disrupted this strategy, and revealed the tension within the party clearly. He is appealing to cultural traditionalism or populism, capitalizing on resentment against elites and elite values on both the left and the right. Although he himself is a member of the elite (he loves to point out that he is very smart and went to Wharton) his style of speaking is demotic and blunt, and he comes across as someone in touch with populist concerns and populist values.

If The Donald did not exist, some other candidate would have figured out how to exploit the populist/progressive traditional/cosmopolitan divide within the Republican Party. Indeed, as Trende points out, Rick Santorum and Mike Huckabee offered earlier examples of the strategy. But Trump had the talent--and, let's admit it, the shamelessness--to pull it off powerfully and effectively. Even if he loses the Republican nomination, the damage to the Republican coalition has been done. Other politicians will figure out how they can also play on this divide to their personal advantage. Decades of clever attacks leveled against liberal elites for being out of touch and opposed to the interests of "real Americans" can pretty easily be reshaped and deployed against conservative elites. The Republican Party will be in a state of turmoil for some time to come.

Posted 12:15 PM by JB [link]

More grist for the law professors' mill-- indicting a presidential candidate

Over at the New Reform Club, Seth Barrett Tillman argues that law professors and media commentators are wasting their time speculating about Ted Cruz's eligibility, when there is an even more complicated set of issues that could provide endless grist for the scholarly mill: He asks what would happen if a major party candidate (say, Hillary Clinton) were indicted and/or convicted (a) before the party convention, (b) before the November election, (c) before the electors meet, (d) before inauguration, or (e) after inauguration.

Tillman's post is designed to generate discussion of Clinton's particular case. But the legal issues are more general. Although I doubt that Hillary Clinton will be indicted, you may recall that in August of 2015, former Texas Governor Rick Perry, who had announced his candidacy, was indicted by a Texas grand jury. He quickly dropped out of the race, but his legal troubles continue. If you don't like using Clinton as an example because you think she's been treated unfairly, imagine that Donald Trump or Marco Rubio were indicted for shady business dealings. Tillman is certainly right that the legal issues are at least as interesting as the meaning of "natural born citizen."

Posted 11:14 AM by JB [link]

Wednesday, January 27, 2016

Can the Constitution of Opportunity Carry the Day in American Politics?

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Cynthia Estlund

Joseph Fishkin and William Forbath, in their book-in-progress, have brilliantly exposed and mined a once-powerful, mostly-forgotten vein of constitutional political economic thought: the notion that widely shared economic opportunity, and a broad middle class flanked by neither an underclass nor an oligarchic overclass, are essential foundations of our republican form of government. What has been mostly forgotten, and what Fishkin and Forbath hope to revive, is the constitutional dimension of debates over economic inequality, mobility, and opportunity. The forgetting is part of what they are up against in persuading readers that the forgotten constitutional register in which such arguments were made for much of American history really matters.

I confess to being in thrall to the Fishkin-Forbath view of things – deeply moved by their retelling of American political and constitutional history, and largely in tune with both their regrets and their hopes for a resurgence of the progressive counterpart to the neo-libertarian constitution. In particular, I admire the authors’ braiding together of the two histories of struggle for “equal opportunity” – the struggle for inclusion and the struggle for broadly shared opportunity; the two authors’ separate writings foreshadow both histories and their integration, but the book promises to be a fuller realization.

Those two struggles – I will call them “the constitution of inclusion” and the “constitution of opportunity” – often struggled with each other throughout American history. Indeed, they still do, as racially-inflected fears and resentments are among the forces that continue to divide the necessary political constituency for redistributive reforms. But I am getting ahead of myself.

My first aim here to probe one central issue in the book: Why did those two strains of political economic thought diverge so dramatically on just the dimension the authors stress – on the extent to which their exponents recognize and capitalize on the constitutional stakes of these struggles – after the New Deal?

Posted 12:15 PM by Guest Blogger [link]

Tuesday, January 26, 2016

Only One Place of Redress? How the Supreme Court Unleashed Racist Terror and Divided White from Black Workers

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

James Gray Pope

The gap between rich and poor in the United States yawns wider than in any other first-wave industrialized country. Why? One influential explanation points to the failure of American workers to build a class-wide movement for economic redistribution and social welfare protections. While European working classes were developing durable socialist movements during the decades around the turn of the twentieth century, the American working class fractured into craft unions that focused on collective bargaining for the immediate self-interest of their members. In his influential book, Law and the Shaping of the American Labor Movement, William Forbath suggested that law contributed crucially to this failure. American workers did launch struggles for broad, class-wide objectives, but judges repeatedly and forcefully directed them toward more parochial concerns. For example, courts struck down hard-won reform legislation and selectively enjoined inclusive forms of labor organization like industry-wide (as opposed to craft) unions.

My contribution to the symposium explores the involvement of law and courts in constructing another, related barrier to class-wide political and economic action. As Forbath recognized, “ethnic and racial cleavages will surely remain central” to any full explanation for American working-class weakness. In particular, white workers have often chosen to ally with economic elites against workers of color. This poses a serious problem for opponents of racial and economic inequality alike. The great critical race scholar Derrick Bell, for example, argued that African Americans can advance on issues of race only when whites also benefit. One way to secure this “interest convergence,” he observed, is to ally with lower-class whites "who, except for the disadvantages imposed on blacks because of color, are in the same economic and political boat." Unfortunately, however, white workers have rarely acted on these shared interests. They stood with white planters against slave revolts, for example, "even though the existence of slavery condemned white workers to a life of economic privation," and they excluded black workers from their unions, thereby "allowing plant owners to break strikes with black scab labor." To Bell, such choices reflect a form of racism so virulent and deeply rooted that it overrides economic rationality and blocks any hope of genuine racial equality or class solidarity. In apparent despair, he warns that black Americans face permanent and irrevocable subordination because of “the unstated understanding by the mass of whites that they will accept large disparities in economic opportunity in respect to other whites as long as they have a priority over blacks and other people of color for access to the few opportunities available.”

I take as my starting point Bell’s compelling account of white workers repeatedly choosing racial over class unity. It is possible, however, that racial attitudes do not provide a sufficient explanation for those choices. "White workers,” as Martha Mahoney has written, “formed concepts of self-interest in a landscape which was not a vacuum but a set of substantial obstacles to solidarity." Following Mahoney, I submit that law might have played a central role in erecting those obstacles. Given the demonstrated tendency of human beings to develop group antagonisms along even random lines of cleavage without any material encouragement at all, it would seem that official law, backed by the armed power of the state, could erect formidable obstacles to solidarity. By attaching serious consequences to racial categories, law could make them “real” in an experiential and practical sense. When the situational force of law is considered, we may dissent from Bell’s conclusion that poor whites were "easily detoured into protecting their sense of entitlement vis-a-vis blacks for all things of value."

Posted 3:00 PM by Guest Blogger [link]

John Roberts, Ted Olson, and the Judicial Separation of Powers

Neil Siegel

In the recent oral argument before the U.S. Supreme Court in Bank Markazi v. Peterson, former Solicitor General Ted Olson defended Congress’s ability to affect the outcome of pending judicial proceedings, even through legislation directed at a particular case. Chief Justice Roberts repeatedly expressed concern about the threat such legislation poses to judicial independence. In a new paper, my colleague Curt Bradley and I discuss a much earlier debate between Olson and Roberts—while both were working in the Reagan Justice Department—in which their positions were essentially reversed. Aspects of this debate have previously been unknown in the literature, and we discuss them as part of a broader consideration of how Congress and the executive branch have reasoned about the permissibility of proposed restrictions on the Supreme Court in certain high-stakes disputes. Here is the abstract:

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.”

As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”— a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support what Commonwealth theorists have termed “constitutional conventions.”

To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to non-legal but obligatory constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction.

The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.

Posted 1:37 PM by Neil Siegel [link]

Donald Trump and the Politics of Disjunction

Gerard N. Magliocca

We've had an extended discussion on the blog about whether Barack Obama is a "reconstructive" President as described in the groundbreaking scholarship of Stephen Skowronek. Part of the answer turns on the outcome of 2016 presidential election. Will Obama's successor build on what he did or repudiate his legacy? That remains to be seen.

There is another way, though, of looking at this question. Skowronek's presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a "Mr Fix-It" rather than deep connections to the party's ideology or constituencies. Past examples include Herbert Hoover, a self-made millionaire who (though it'a hard to remember now) was widely thought of as a problem solver before he was elected. Jimmy Carter is another example--he was an engineer by training--who was a classic outsider in 1976. On the losing side, there was Wendell Wilkie (the GOP nominee in 1940) who had never been elected to anything and was touted for his business success. These are the "disjunctive" presidents or presidential candidates.

The Republican Party went with this sort of strategy in 2012. Mitt Romney was mainly known as a success in business and as a highly competent manager (of, for example, the Winter Olympics). As Governor of Massachusetts for one term, he certainly did not come from the heartland of the GOP coalition and did not have broad government experience. There was a plausible advantage in this, though, as he also did not carry much of the baggage that a party insider or crusader would.

Now we are getting disjunction on steroids with Donald Trump. He is also pitching himself as "Mr Fix-It" without any significant commitment to the traditional ideology of the party or, of course, any service in office. He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party's ideology--Ted Cruz. You can also contrast Trump's success with the weakness of the obvious Establishment candidate--Jeb Bush--to see how far the traditional formula for success in the GOP primary is falling short this time.

Why does this matter? Because disjunctive candidates only do well at the end of a particular coalition, which implies that the other side represents the start of a new one. But has that already happened with Obama's election, or will it happen after, say, President Trump has a disastrous term?

Posted 11:10 AM by Gerard N. Magliocca [link] (147) comments

The Public Utility Idea in a Progressive Constitutionalism of Equality

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

William J. Novak

To turn a very long paper into a very short post, I’d like to make 3 quick points about the relationship of public utility to the Constitution and economic inequality:

1. We need to recover the historic function of the public utility idea in American constitutionalism. Public utility was a broad constitutional rather than residual municipal ideal that played a significant role in the development of the modern legislative, administrative, and regulatory state. In a nutshell, “public utility” was the political-economic concept through which progressive legal reformers pioneered a more ambitious scope for the police power – ultimately overcoming the retrograde constitutional limitations of Gilded-Age and Lochner-Era conservatism. By the time of Nebbia v. New York (1934) – at the threshold of the New Deal – the public utility concept had done its major work in building a more general conception of regulation in the public interest and for the public welfare. Consequently, broad-scale economic regulation no longer depended upon a demonstration that a particular business was especially “affected with a public interest.” Indeed, as early as World War I, the sweeping regulation of the domestic food supply was justified under the rationale that in time of war all business was “affected with a public interest.”

2. Public utility embodied a progressive equality ideal and not just an economic “natural” anti-monopoly ideal. I write this text sitting 55 miles due south of Flint, Michigan where the significant implications of this abstract statement are playing out in real time. Along with ancient precedents concerning common carriers, the provision of clean, healthy, and affordable water was one of the earliest instantiations of the public utility idea. Here, the economics of natural monopoly were secondary to the public ethical and legal obligation to serve every member of the community equally in terms of the necessities that underwrote basic public health, safety, and well-being. Public utility was a vehicle for the kind of foundational equality that was seen as essential to any truly democratic society. Affordability – price control – was key to the equalitarian impulse at the core of the public utility idea as it expanded from 19th century concerns to broad Progressive-Era extensions in the fields of transportation, communications, banking, energy, food supply, milk, hotels, warehouses, ice, . . . you name it. If something was viewed as necessary to human welfare – broadly construed in a democratic society – equal, affordable, and non-discriminatory provision was the ultimate goal (indeed, requirement). Moreover, as the broad mandate of the Public Utility Holding Company Act of 1935 perhaps made most clear, the provision of such basic necessities was itself not to become a source of profiteering, fraud, collusion, discrimination, oppression, or other forms of economic inequality or unfairness or domination. In Joseph Fishkin and Willy Forbath’s language, the public utility idea in its fullest manifestation was inherently “anti-oligarchic.” David Hume perhaps first captured the broadest ambitions of the original Enlightenment project of political-economic opportunity when he argued that “Public utility is the sole origin of justice.”

Posted 9:00 AM by Guest Blogger [link]

Monday, January 25, 2016

The most important and humane legal development in a long while

Marty Lederman

This is as significant, at least in terms of basic human decency and flourishing, as anything this or any other public official has done in recent memory. It's horrifying and shameful that we'd allowed this barbaric practice to become commonplace -- and with very little public debate or outrage. About time the systemic cruelty is finally being addressed. And Justice Kennedy has signaled that the Court is prepared to restrict the practice at the state level, too. (See the end of my post on Slate, calling this "by far the most encouraging surprise" of the October 2014 Term.)

Like same-sex marriage, it looks as if this could be a sea-change that happens much more rapidly than any of us could have imagined in our wildest dreams. The very idea of reform was a political and jurisprudential nonstarter, in every branch of government, until very recently. And now, this. Thank goodness.

DOJ Report

Executive Summary

DOJ "Guiding Principles"

Posted 8:28 PM by Marty Lederman [link]

Fiscal Policy and Economic Inequality

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Ajay K. Mehrotra

Thanks to Jack Balkin for hosting this blog post and to Joey Fishkin and Willy Forbath for organizing the Texas Law Review Symposium on “The Constitution and Economic Inequality.” I’m looking forward to the conference and I’m honored to be a part of such a distinguished group of constitutional law scholars and historians.

As one of the members of the panel on Constitutional Political Economy, my task is to explore the constitutional dimensions of fiscal policy and economic inequality. In my presentation, I’ll be drawing on a collaborative project that I’ve been working on with my good friend, political historian Joe Thorndike (Tax Analysts/Northwestern Law). Joe and I have been exploring the origins and development of what we refer to as “The Long Twentieth-Century American Commitment to Progressive Taxation.”

Posted 3:00 PM by Guest Blogger [link]

The Second Freedmen's Bureau Bill's Constitution

Mark Graber

For the Symposium on the Constitution and Economic Inequality

This paper focuses on the crucial elements of post-Civil War constitutionalism scholars miss when they give the place of pride to the Civil Rights Act at the expense of the Second Freedmen’s Bureau Bill. The Republicans who framed the Second Freedmen’s Bureau Bill understood that judicial action could not eradicate slavery. Their legislative and constitutional program recognized that persons could transition from slaves to full citizens only if Congress aggressively exercised national power under Section 2 of the Thirteenth Amendment. Legislation was necessary to provide former slaves with various goods and services, the precise provision of which depending on local circumstances and changing conditions. Given the need for a high degree of nimbleness in the managing of that transition, entrenching crucial features of the Freedmen’s Bureau Bill in a constitutional amendment that would be enforced by the federal judiciary made little sense. Instead, the Second Freedmen’s Bureau Bill was drafted by Republicans who understood that Congress rather than the judiciary was expected to play the lead role in removing all badges and incidents of slavery in American constitutional life.

The Second Freedmen’s Bureau Bill was also designed to prevent white persons from making transitions from freedom to dependency. Sections 3-6 of that bill provided both freedmen and destitute refugees with various goods and services. Republican supporters of this provisions emphasized that Congress had the obligation to act for the general welfare and that preventing the dependency inherent in economic destitution justified legislative action. As significantly, Republicans were as inclined to justify the provision of goods and services to white persons who had never been slaves under Section 2 of the Thirteenth Amendment. Their arguments for the constitutionality of the Second Freedmen’s Bureau Bill insisted that a minimum degree of economic security and education was a central condition of freedom and full citizenship.

Restoring the Second Freedmen’s Bureau Bill to the core of Reconstruction explains some features of the post-Civil War Amendments, while challenging other shibboleths of American constitutionalism. Commentary on the post-Civil War Amendments begins by acknowledging that the text speaks in generalities, but fails to appreciate the institutional logic of that language. Republicans did not ratify a precise legal code because they recognized that Congress needed substantial discretion to determine the policies that best ensured that persons of color transitioned from slavery to enjoying the full rights of citizens of a free republic and not, as often maintained, because they could not agree on specifics or were more interested in moral exhortation that precise legal norms. Contrary to Richard Posner and William Rehnquist, the Constitution of the United States is not a charter of negative liberties. The Second Freedmen’s Bureau Bill’s Constitution is committed to ensuring the national government has the power necessary to act for the general welfare and, as such, is more an instrument for preventing local and private tyranny than for limiting government. Reconstruction Republicans believed that national government under the Thirteenth Amendment had duties to provide goods and services to destitute citizens and freedmen who need government assistance making the transition for slavery to independent citizen. Finally, the debates over the Second Freedmen’s Bureau Bill highlight the perversity of contemporary constitutional decisions which insist that the federal judiciary is the institution primarily responsible for implementing the post-Civil War amendments. Republicans when defending the constitutionality of the Second Freedmen’s Bureau Bill uniformly insisted that Congress was the institution constitutionally charged with guaranteeing those positive rights, not the Supreme Court of the United States. More precisely, the Republican Party had the place of constitutional honor. The post-Civil War Amendments were framed at a time when the dominant party were considered the primary vehicle for ensuring constitutional fidelity. Republicans in the Thirty-Eighth Congress assumed that their party, not any particular institution, was the institution that determined the measures constitutionally necessary to realize the promise of the Thirteenth and, later, Fourteenth Amendments. Their arguments on the Second Freedmen’s Bureau Bill highlight the crucial features of American constitutionalism that judges, governing officials, lawyers and citizens miss when they look at the Constitution through the modern lens of judicial supremacy.

The Second Freedmen’s Bureau Bill’s Constitution provides a distinctive perspective on economic inequalities and American constitutionalism. The persons responsible for the original Constitution and post-Civil War Constitution were concerned with economic inequalities or at least economic rights, but their concerns are not explicitly manifested in the text of the Constitution. The Constitution of 1789 and the Constitution of 1868 do not enumerate economic rights because their framers regarded constitutions as empowering rather than as disabling mechanisms. Contemporary Americans assume that constitutions protect rights by enumerating limits on government power and empowering the national judiciary to enforce those restrictions. The persons responsible for the Constitution of 1789 believed that rights were best protected by structuring government institutions so that elite leaders would have the combination of interests, values and capacities that would lead them to protect rights. The persons responsible for the post-Civil War Constitution believed rights were best protected when the party of the majority of the people who remained loyal during the Civil War controlled all three branches of the national government. The Republicans responsible for the Second Freedmen’s Bureau Bill and the post-Civil War Constitution believed destitution and dependency were forms of slavery that the national legislature was constitutionally obligated to alleviate under the Thirteenth Amendment. Once we understand the Republican commitment to economic rights and the way in which the constitution promoted those rights, we can see how the Constitution of 1868 in many ways was better structured to place economic inequality and dependency at the core of American constitutionality than the judicially driven constitutionalism of the present.

Posted 11:00 AM by Mark Graber [link]

Constitutional political economy in the New Gilded Age: A revival of legal realism?

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

K. Sabeel Rahman

From the Occupy movement to the Fight for 15 to Black Lives Matter, the politics of the current moment have cast into relief deep structural inequalities in American politics, economy, and society. At the same time, the Supreme Court’s recent track record on labor rights, voting rights, campaign finance, and class actions evoke for some commentators the specter of “neo-Lochnerism.” The Roberts Court, to these critics, is furthering a business-friendly view of constitutionalism that, while it avoids the formalisms of Lochner, nevertheless evinces a similar disregard for the kinds of underlying power disparities that might make these policies necessary. What might an alternative, more egalitarian and democratically-inclusive constitutionalism for today look like? In their forthcoming book The Anti-Oligarchy Constitution, Joseph Fishkin and Will Forbath attempt to develop one such alternative, arguing for a constitutional tradition emphasizing economic opportunity that draws on the New Deal and on Constitutional legacies back to the Founding.

But I think it is important to understand this larger project that Fishkin, Forbath, and a growing cohort of legal scholars and reformers are engaging in is about more than constitutional text, interpretation, or doctrine. It is, rather, a more fundamental project about the literal constitution of our economic and political structures, and about the moral values that we want to animate these structures. In this, the growing scholarship on law and inequality is best understood as a more modern manifestation of a familiar legacy: that of legal realism and Progressive Era political economy.

Posted 9:00 AM by Guest Blogger [link]

Sunday, January 24, 2016

Collective Laissez-Faire in the American Grain

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Brishen Rogers

The politics of economic inequality are awfully strange these days. There is broad consensus that we should do something about it. Yet most proposals are relatively tame and statist, involving progressive taxation, greater education funding, and more robust welfare benefits. Proposals to raise the minimum wage and to make unionization easier have gained traction, yet various states have passed right-to-work laws, and the Supreme Court seems set to constitutionalize right-to-work across the public sector in Friedrichs v. California Teachers Association.

In a nutshell, petitioners’ theory in Friedrichs is that workplace freedom of association extends only so far as individual workers’ wills, and that the economic and political activities of public unions cannot be disentangled, and therefore that requiring workers to remit any fees at all to a public sector union violates the First Amendment. The Court largely endorsed that logic two terms back in Harris v. Quinn. If it sides with petitioners, and past patterns hold, it would next extend right-to-work across the private sector, further undermining one of our only egalitarian institutions.

What should those concerned about economic inequality do? Perhaps we can make a virtue of necessity. If, as the evidence suggests, powerful workers’ organizations are essential to equality, we need to re-ground workers’ collective action in basic constitutional liberties.

Posted 3:00 PM by Guest Blogger [link]

Dividing Sovereignty: Commonwealth of Puerto Rico v. Sanchez Valle

Guest Blogger

Zachary Price

The Supreme Court heard arguments last week in Commonwealth of Puerto Rico v. Sanchez Valle. The case, which Rick Pildes has blogged about here, presents the question whether Puerto Rico qualifies as a “separate sovereign” from the federal government for double-jeopardy purposes. Were Puerto Rico a state, double jeopardy would not apply because states are separate sovereigns from the federal government. But because the Constitution gives Congress authority to govern non-state territories, the Supreme Court’s century-old decision in Grafton v. United States suggests that double jeopardy does bar repeat prosecution.

In apparent frustration with the doctrine’s rigidity, Justice Kennedy asked at oral argument: “[I]s our argument so abstract that it doesn't acknowledge real practicalities of multiple prosecutions? . . . . Has there been any suggestion by commentators and so forth that this whole inquiry of sovereignty and source of power is a little bit misplaced?”

I published a 2013 article in the Columbia Law Review, “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction,” that made precisely this argument. With respect to both territorial governance and Native American tribes, a number of key decisions such as Grafton have drawn sharp formal distinctions based on who is “sovereign” and whether the power being exercised is “inherent” or “delegated.” As Sanchez Valle illustrates, however, this doctrinal framing inadequately accounts for the practical realities of territorial and tribal governance.

With respect to so-called unincorporated territories like Puerto Rico—territories that might never become states—Congress’s plenary power to govern federal territories gives it ultimate authority. In that sense, territorial government authority is delegated from Congress, and Congress in principle can take back the delegation, just as it can do with respect to delegations to ordinary federal agencies. But exceptionally compelling normative and historical concerns support enabling unincorporated territories to govern themselves. Accordingly, congressional plenary power has been understood to enable unusually open-ended forms of delegation—delegations that enable autonomous self-governance.

It should follow logically that Puerto Rico qualifies as a double-jeopardy “separate sovereign,” no less than a state. In the federal-state context, dual-sovereignty doctrine’s best practical rationale is that it prevents one government from thwarting another’s prosecutions by winning the race to the courthouse. The functional autonomy of territorial legislative and prosecutorial decisions makes that concern equally applicable to Puerto Rico.

Posted 1:22 PM by Guest Blogger [link]

Building Labor’s Constitution

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Kate Andrias

In recent years, in the face of the Great Recession and skyrocketing inequality, economic justice movements among low-wage workers have gathered steam. Take the “Fight for $15”, which began with a few hundred workers in New York, but is now national in scope. Fast food workers, airport and retail workers, federal contractors, home health aides, and adjunct professors all now demand substantially higher wages and a union. The campaign has pulled off strikes in cities across the country. It has had stunning success in raising local and state minimum wages, while shifting the terms of national debate.

The Fight for $15 and other low-wage worker campaigns are making rights-based claims: they demand higher wages, better conditions, and unions, as of right. They use tactics similar to those of earlier rights-based social movements: marches, civil disobedience, and mass protests. But unlike many movements on both the Left and Right, these worker movements make almost no appeal to the Constitution.

Why not?

The problem is not the lack of a blueprint. Scholars have explained how the Constitution could be read to support rights to decent employment and unionization. Those arguments rest on the First, Thirteenth, and Fourteenth Amendments, as well as the Constitution’s overall structure, purpose, and history. The arguments don’t have much support in current doctrine. But other successful social movements, past and present, have invoked the Constitution even when their aspirations ran contrary to the ruling doctrines of constitutional law. And for good reason. The Constitution is a source of inspiration, and arguments grounded in it carry special force in our political discourse.

Why, then, don’t worker movements today make constitutional arguments? Because they think such arguments won’t work—and courts give them good reason to think not.

As much as scholars emphasize the importance of the Constitution outside of the courts, in our legal culture, constitutional arguments are primarily judicial arguments. Even when constitutional claims are directed to elected officials, courts often end up reviewing their validity.

Posted 9:00 AM by Guest Blogger [link]

Saturday, January 23, 2016

Republicanism and the Constitution of Opportunity

For the Symposium on the Constitution and Economic Inequality

A recurring question that Joey Fishkin and Wily Forbath are likely to face in their work on the Constitution of Opportunity is what the Constitution has to do with their argument. They argue that public officials have a duty to promote economic opportunity and a broad-based middle class. They also argue that public officials have a duty to resist the exacerbation of economic inequality and the economic and political oligarchy that comes with it. But why is this a constitutional obligation?

I believe that the theory of living originalism can help in articulating the constitutional basis of their project.

Posted 1:50 PM by JB [link]

Why Constitutional Political Economy?

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Frank Michelman

I will be part of the gathering soon in Austin for talk about Joey Fishkin & Willy Forbath's project on "The Constitution of Opportunity." I haven't had time yet to look through their latest partial draft, just recently received, to see how it stacks up against my remarks at a Harvard colloquium last March about the draft we had before us then, but I thought that, as a kind of warm-up for input to the Austin event, I would send some of those remarks along now. Between now and Austin, I will be looking to see how far they may by now be superseded.

We can distinguish between claims focused on structures and claims focused on goods -- between claims regarding the general structural conditions for opportunity, civic equality, and non-domination and claims regarding supply of specific, immediate material needs. Some might want to say that while American politics over the past several decades have been at least somewhat receptive to policies of delivery to the desperately needy of goods required for basic nutrition, shelter, medicine, and literacy, they have not been nearly so receptive to ideas of constitutionally obligated attention to the kinds of structural policies on which opportunity depends -- policies, say, on jobs, markets, trade, wealth, families, education, and social geography. . . .

. . . I turn now to a question about our speakers' paper and the larger project it represents. It's a question of which they plainly are aware. I'll put it first in terms of the famous insistence of Holmes, in his Lochner dissent, that a country's constitution is not made, and should not be deployed, to lock the country into any "economic theory" that the politics of the day would not be expected on its own to carry out. It seems to me that by "constitution," there, Holmes was not talking about some general conception or idealization of a political and social order, which idealization we might honorifically call "constitutional" as a way to mark its widely perceived centrality to ideas of political legitimacy in that country. By "constitution," Holmes meant a particular class of textual objects, the kind meant for service as a legal code controlling on the day-to-day politics of the country. It was that class of things that should not, Holmes thought, attempt or purport to shackle the country to an economic "theory" -- or hence to some general cast of economic policy -- when the politics of the day are looking in a different direction.

Holmes's declaration to that effect has since been widely approved and accepted, not least on the American legal left. Now here come my friends F & F insisting not just on the centrality of an opportunity component in the historic American social contract, but insisting specifically and emphatically on the constitutional status and import of that centrality. Do they thereby now declare their rejection of the Holmesian wisdom? Do they think such a rejection prudent in the current political and constitutional-discursive milieux? I doubt they would answer either question with a yes, but the questions are ones that their text does push to our awareness.

Posted 9:00 AM by Guest Blogger [link]

Friday, January 22, 2016

The Great Forgetting

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Jed Purdy

Fishkin & Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “great forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the economic middle class to all, particularly members of historically excluded groups.

From the standpoint of this tradition, many recent developments in constitutional law look seriously out of whack. Allowing the First Amendment to lay waste to campaign-spending limits flies in the face of the anti-oligarchy principle. Blocking Medicaid expansion (and nearly invalidating the Obamacare individual mandate) on federalism grounds hobbles Washington’s role in protecting basic security for a broad middle class. Imposing constitutional opt-outs on public-sector union dues schemes tears another hole in the tattered institutional architecture of a middle class economy (and of politically empowered worker-citizens). Interpreting Equal Protection doctrine in a narrowly anti-classification key (a.k.a. colorblindness) implies constitutional indifference to the structures of wealth and opportunity that stand in the way of robust inclusion, and even impedes race-conscious efforts to achieve inclusion (i.e., affirmative action).

But, F&F observe, progressives – especially when working with constitutional doctrine, that is, when self-consciously being constitutional lawyers – tend not to think of these as constitutional issues, except in a negative sense: we say, echoing the New Deal justices, that these are questions where the courts do not belong, where legislatures are constitutionally authorized to act. Armed with the democracy-of-opportunity tradition, we could say more: that legislatures are implementing a constitutional duty to build a democratic political economy. It would follow that courts must not stop them, but also that every public official, perhaps every citizen, has some responsibility to advance democracy of opportunity.

This long-standing line of argument has a small but proud recent presence, in which Willie Forbath’s earlier work is central. It has recently taken new urgency from two developments. One is the Supreme Court’s eagerness to advance a selective anti-regulatory agenda on constitutional terms. (All of the issues cited two paragraphs back are examples.) Another is greatly increased awareness of accelerating economic inequality, which intensifies concerns about oligarchy, the state of the middle class, and the prospects of inclusion. Today it seems that there is much to do to protect, let alone advance, a democratic political economy, and, at the same time, newly devised constitutional barriers are impeding that work.

Posted 1:00 PM by Guest Blogger [link]

Reclaiming Constitutional Political Economy

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Joseph Fishkin and William Forbath

In post-2008 America, it has become obvious to almost everybody that we are becoming a startlingly unequal society, in terms of both wealth and economic opportunity. With post-crash wages stubbornly stagnant, everyone can see that the vaunted the American middle class is today on precarious ground. With opportunities for a middle-class livelihood shrinking, a large part of the former middle class is edging downward toward a more precarious place, closer to that of the poor, while a much smaller group is edging upward toward great wealth. The poor are becoming more geographically concentrated, separate from the rich and even from the middle. The very wealthy are ascending to heights of wealth, power and influence that recall the last Gilded Age a century ago. As the presidential campaign unfolds, we have candidates running whose financing (through Super PACs) depends to a startling degree on a number of wealthy backers you can count on one hand — backers who expect to control their part of the presidential campaign universe the same way they would control their own companies or foundations. We also have, for the first time in living memory, a serious presidential candidate who speaks openly about “oligarchy” and the connections between economic and political power. “The real struggle,” Bernie Sanders argues, “is whether we can prevent this country from moving to an oligarchic form of society in which virtually all economic and political power rests with a handful of billionaires.”

We have been here before. This is certainly not the first time concern about economic inequality and unequal opportunity has spilled over into national politics. Nor is it the first time Americans have struggled with how to steer our collective ship away from the rocks of “an oligarchic form of society.” But one piece of the story seems different this time around. For prior generations of reformers throughout the nineteenth and early twentieth century, economic circumstances like our own posed not just an economic, social or a political problem, but a constitutional one. From the beginning of the Republic through roughly the New Deal, Americans vividly understood that the guarantees of the Constitution are intertwined with the structure of our economic life. This understanding was the foundation of a powerful constitutional discourse that today, with important but limited exceptions, lies dormant: a discourse of constitutional political economy.

This week, the Texas Law Review is hosting a symposium about the Constitution and Economic Inequality that aims to recover this discourse and rediscover some of these connections. Jack has generously offered to publish a series of posts from participants in the symposium on this blog. The symposium brings together constitutional law scholars and scholars whose subjects we no longer understand to be constitutional in nature at all: subjects such as tax policy, corporations, antitrust, labor, and trade policy. But earlier rounds of debate about these and many other important economic policy questions did have constitutional dimensions. Understanding these dimensions matters if we want to understand what constitutional political economy could look like in the present or future. The participants in this symposium are a varied group. Some offer arguments that are more focused on the present and others on the past. All find interesting ways to imagine the connections, which have been latent for several generations, between the Constitution and our economic life, especially inequality and unequal opportunity. The two of us have advised the Texas Law Review students organizing the symposium. We are not exactly disinterested observers: we are hard at work at the moment on a joint book project on many of these themes. (One panel at the symposium will discuss our book manuscript, which is still an early, and partial, draft.) As far as we know, this is the first time any journal has organized a symposium on this topic. We suspect it may not be the last.

Posted 8:57 AM by Guest Blogger [link]

Thursday, January 21, 2016

Symposium on The Constitution and Economic Inequality

The University of Texas Law Review is holding a conference on The Constitution and Economic Inequality on January 29 and 30th, 2016. Joey Fishkin and Willy Forbath are organizing the event.

Over the next week or so, Balkinization will publish short essays by some of the conference participants, who include:

Kate Andrias, University of Michigan Law School
Jack M. Balkin, Yale Law School
Cynthia Estlund, NYU School of Law
Joseph R. Fishkin, University of Texas School of Law
William E. Forbath, University of Texas School of Law
Cary C. Franklin, University of Texas School of Law
Robert W. Gordon, Stanford Law School
Mark Graber, University of Maryland Francis King Carey School of Law
David S. Grewal, Yale Law School
Robert. C. Hockett, Cornell University Law School
Olatunde Johnson, Columbia Law School
Jeremy Kessler, Columbia Law School
Ajay Mehrotra, American Bar Foundation
Frank I. Michelman, Harvard Law School
William J. Novak, University of Michigan Law School
James Pope, Rutgers School of Law — Newark
Jed Purdy, Duke University School of Law
K. Sabeel Rahman, Brooklyn Law School
Brishen Rogers, Temple University Beasley School of Law
Reva Siegel, Yale Law School
Ganesh Sitaraman, Vanderbilt University Law School
Zephyr Teachout, Fordham University School of Law

Posted 8:30 AM by JB [link]

Wednesday, January 20, 2016

Asked and Answered: The Take Care Clause issue in U.S. v. Texas

Guest Blogger

Neil Kinkopf

As Marty has noted, yesterday the Supreme Court granted certiorari in the DAPA case, and generated headlines by adding an additional question: “Whether the Guidance violates the Take Care Clause of the Constitution.” Texas's constitutional argument is that: (i) the Secretary of the Department of Homeland Security's DAPA Guidance--and the work authorization conferred upon DAPA aliens, in particular--exceeds the authority granted in the relevant immigration statutes; (ii) A President who exceeds his constitutional authority violates the constitutional duty to “take care that the laws be faithfully executed”; and thus, (iii) a President who exceeds his statutory powers violates the Constitution.

Putting aside the fact that the Guidance was not issued by the President, this argument would appear, at first glance, to be a forceful one. I used to think it true, in fact. But Marty's right: There's no distinct constitutional question here--it's merely an ordinary dispute about the interpretation of statutory law. And what no one seems to have noticed is that the Supreme Court has already held as much.

Posted 7:12 PM by Guest Blogger [link]

Two more reasons why the "Take Care" argument in the DAPA case is a non-issue

Marty Lederman

As you probably know by now, yesterday the Court granted the government's petition to hear the DAPA case, No. 15-674, Texas v. United States. It will be argued sometime between April 18th and 27th. In its order granting cert., the Court directed the parties to brief and argue the following question, in addition to those presented in the government's petition: “Whether the [DAPA] Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” The Article II clause provides that the President "shall take Care that the Laws be faithfully executed."

This additional question is hardly "stunning," let alone a "bombshell." In its nominal brief in opposition, Texas had proposed amending the Questions Presented to include "[w]hether DAPA . . . violates the Constitution." The Court has now granted Texas's request, thereby signaling to the State that it is free to make a constitutional argument if it wishes to do so, even though the court of appeals did not reach that argument. Adding that "question" ensures that the Court will resolve the entire case this June, without leaving any issue dangling that the lower courts might use to revive the case in the event the Court rules in favor of the government.

As I've explained in earlier posts, however, there's nothing to the Take Care argument.

Read more »

Posted 1:47 PM by Marty Lederman [link]

An Argument Open to All: An Interview with Sanford Levinson

I recently spoke with Sanford Levinson about his new book, An Argument Open to All: Reading The Federalist in the Twenty First Century.

JB: Your last two books were on constitutional structure. Why did you decide to a series of commentaries on the essays in The Federalist?

SL: Framed spent quite a few pages on specific Federalist essays with regard to their justifications for the institutional structures I was discussing. A central question in my book was whether we in the 21^st century agreed or disagreed with the arguments put forth by Publius (though in that book I referred to the “real” author of the essay in question, unlike my strategy in An Argument Open to All). In any event, I realized two things: I really hadn’t carefully read The Federalist in years, probably since I was in graduate school, save for some chestnuts like Federalist 10 and 78, and, more importantly, that the essays as a whole were a lot more interesting than I had thought they were. So I was interested to see if that was in fact true of each and every one of the 85 essays. And the answer, at least to my satisfaction, is that each one does have something of genuine interest to a 21^st century reader, independent of the question of agreement or disagreement.

Posted 8:30 AM by JB [link]

Tuesday, January 19, 2016

Is Ted Cruz a naturalized citizen?

John Mikhail

I am puzzled by the fact that some commentators seem to think that Rogers v. Bellei (1971) is not a problem for Ted Cruz. It seems to me to be a significant problem for him.

In Bellei, the Supreme Court held—or at least clearly affirmed—that a US citizen in Cruz’s precise circumstances (foreign birth, American mother, alien father) was a naturalized citizen. The Court divided, 5-4, on whether the plaintiff was naturalized "in the United States" or overseas, but all nine Justices agreed that he was naturalized.

On many occasions, the Court has stated or implied that naturalized citizens are not eligible to be president. In Schneider v. Rusk, for example, the Court observed that “the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.” 377 U.S. 163, 165-66 (1964).

Likewise, in Luria v. United States, the Court wrote: “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.” 231 U.S. 9, 22 (1914). The Court repeated this statement thirty years later in Baumgartner v. United States. See 322 U.S. 665, 673 (1944) (quoting Luria).

In short, Cruz may be ineligible to be president for two relatively simple reasons: (1) naturalized citizens are not eligible; and (2) Cruz is a naturalized citizen.

I am not sure yet whether I think this argument is sound, but it does seem to be an argument that Cruz and his supporters will need to address.

Posted 1:14 PM by John Mikhail [link]

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