Noah Feldman, THE THREE LIVES OF JAMES MADISON: GENIUS, PARTISAN, PRESIDENT

Sandy Levinson

I have just finished reading Harvard Prof. Noah Feldman's remarkable book on James Madison.  It deserves a wide readership.  It is extremely well-written and full of insights.  As the title suggests, it focuses on three facets of Madison's career, his role as one of at the chief designers of the U.S. Constitution (the "genius"); an important originator of the American party system (the "partisan"); and then America's first war-time president.  The first part is likely to be least surprising to most con law buffs, though it certainly tells the story very well.  Madison may have been the "father of the Constitution," but he was a distinctly disappointed parent, given that at that stage of his life he, like Hamilton, really disdained the states and wished an even more "consolidated" government than the one achieved in Philadelphia.  And, importantly (and correctly), he despised the allocation of voting power in the United States Senate.  Where the book really shines, at least for me, was in the second two-thirds of the book.

Feldman convincingly demonstrates that Madison did not simply disagree with Hamilton (his erstwhile close friend and co-author of The Federalist), but, in an almost Schmittian way, identified him as an "enemy" of the Constitution who had to be organized against and defeated.  This is distinctly different from Madison's views toward many others, including Edmund Randolph and James Monroe, with whom he disagreed but always in a spirit of fraternity and the belief that friends could differ but still remain cordial to one another because, after all, they were properly motivated by devotion to the common good (as envisioned by Madison).  As Feldman argues, the kinds of "polarization" we see today is baked into Madison's theory of the necessity for political parties, for if one defends the necessity to organize a political party as based on the fact that one's opponents are a "faction," defined by commitment to private interests rather than the common good, then the only proper response is political warfare.  So we immediately get, among other things, the Federalist Midnight Judges and then the Jeffersonian purge of most of those judges.

Steven Levitsky and Daniel Ziblatt in their important (albeit flawed) book on How Democracies Die emphasize the necessity for toleration of one's opponents and a willingness to engage in "forbearance" with regard to the complex plurality of contending groups in American polities.  It is not that Madison was always rigid; he certainly engaged in more than enough forbearance of slavery (being a slaveowner himself), and he ultimately was willing to accept the dreadful compromise regarding the Senate rather than risk failure of the Philadelphia project.  But he defined Hamilton as different.  Feldman makes the brilliant point that the difference between the two is that Madison put his primary reliance on formal structures of constitutions (though not on "parchment barriers" devoted to rights), whereas Hamilton believed that what was most crucial was developing an alliance between the propertied and the state, so that the former would have incentives to support the latter.  Thus the importance, say, of the Bank of the U.S. and assumption of state debts.

Feldman also does an exceptional job of delineating Madison's "republican" approach to foreign policy, which gave priority to economic challenges such as embargoes or 'non-intercourse" acts, as against military warfare.  That strategy obviously failed with regard to the UK, which generated the fiasco of the War of 1812.  Feldman is surprisingly generous in his account of Madison as a wartime president, though he emphasizes also that the cabinet was full of incompetents, and Madison himself obviously had no military experience or particular acumen as commander-in-chief.  The War itself was wholly unnecessary, caused in part by the sheer fact that it was impossible to get real-time information about what was going on in Europe so that the US could make decisions based on genuine facts.

The book is not truly a "biography."  Instead, it is a study of these three aspects of Madison.  But that doesn't make it any less fascinating or, obviously, less worth reading.  It throws immense light on the Founding period, but it is also not difficult to draw some extrapolations with regard to our own era.  (Indeed, from my perspective, Feldman is too admiring of the Constitution, whereas I would place more emphasis on our need to learn from Madison's "audacity" in leading what Michael Karman called a "coup" against what Madison and his colleagues believed was an "imbecilic" government created by the Articles of Confederation.  One might suspect that Madison would be astonished at the "veneration" attached to the Constitution.)  It's a hefty book (628 pp. before the footnotes), but one keeps turning the pages to find out what happens next.      

There is no point in opening this up for comments unless one has actually read the book.
Posted 4:36 PM by Sandy Levinson [link]

The Administration is Lying About the Census

Joseph Fishkin

The Commerce Department has announced that it is adding a question about citizenship to the 2020 Census, for the first time in seventy years.  There has been a lot of speculation about possible political motivations for this action.  It is difficult to know exactly what motivates government actors whose deliberations are not public.  But it is possible to know one thing: the government’s sole stated reason for adding the question—improving enforcement of Section 2 of the Voting Rights Act (VRA)—is false.  It is not the real reason.

 “Lying” is a strong word.  Many falsehoods are based on mistakes, confusion, carelessness, wishful thinking, and so on.  But today’s situation puts me in mind of an evidentiary pattern that arises constantly in employment discrimination law: The plaintiff thinks something nefarious has occurred, but has no direct proof; the defendant offers a legitimate, non-discriminatory reason for the disputed action; all the plaintiff can prove is that the proffered reason is false.  It’s then, ordinarily, up to the jury to sort out what really happened.  But the fact that the defendant offered up a reason that was definitely false is significant.  It raises a potential (contestable) inference that it may have been a lie, covering up something the defendant could not admit.

My sole aim in this post is to explain why the government’s stated reason for adding the citizenship question is false.  To understand this, you need to understand something about the role Census data plays in redistricting.  It plays two completely different roles.

Read more »
Posted 10:30 PM by Joseph Fishkin [link]

The Wrong Section 2

Gerard N. Magliocca

Yesterday the Commerce Department announced that a citizenship question will be included on the next census. Secretary of Commerce Wilbur Ross stated that the addition of this question would generate data that would be helpful "for determining violations of Section 2 of the Voting Rights Act," which "protects minority population voting rights." The Commerce Secretary also concluded that the concern that fewer non-citizens will respond to a census that includes a citizenship question were unfounded. Several states are considering a challenge to this proposed change. Presumably, they will argue that the decision to add a citizenship question reflects a discriminatory intent that violates the Fourteenth Amendment.

While there are many ways of assessing the Department's intent, here's one that I want to throw out there. I find it strange that a Commerce Department (responding to a DOJ request) interested in asking a citizenship question to protect voting rights would choose not to ask that question about Section 2 of the Fourteenth Amendment. If the Department really wants more information about our citizens to protect their voting rights, then the most straightforward way of doing so would be to ask how many of them were unable to vote and for what reason. There is precedent for this in the 1870 census form, as my forthcoming article explains.

The actual census question being proposed, by contrast, is uninterested in whether citizens can or cannot vote. This strikes me as a poor tool for improving voting rights, though it might be a fine way of reducing the count of non-citizens.
Posted 8:39 PM by Gerard N. Magliocca [link] (51) comments

Mark Zuckerberg Announces that Facebook is an Information Fiduciary

JB

Today in response to the Cambridge Analytica scandal, Facebook founder Mark Zuckerberg announced what I have long contended-- that Facebook is an information fiduciary. Indeed, along with Google, it is one of the most important information fiduciaries in our present age.

Of course, Zuckerberg didn't actually use the words "information fiduciary." But he did say two things that are effectively equivalent to it.

Read more »
Posted 8:00 PM by JB [link]

"A First Amendment for All? Free Expression in an Age of Inequality"

David Pozen

Posted 2:08 PM by David Pozen [link]

Stormy Daniels and Cambridge Analytica

JB

Mark Graber has argued that the First Amendment should protect Stormy Daniels' violation of her nondisclosure agreement with Donald Trump. I doubt that this is correct-- for reasons described below, I think her best argument sounds in contract law. But even if Mark is correct,  I want to argue in this post that there are very good reasons why the First Amendment generally does not forbid enforcement of contacts that prevent the disclosure of sensitive personal information. Most companies' privacy policies depend on this proposition. These considerations are especially important in the digital age. We should not use First Amendment doctrine to make it difficult if not impossible for governments to implement reasonable privacy protections that will prevent the disclosure and manipulation of sensitive personal information.
Read more »
Posted 5:50 PM by JB [link]

Stormy Daniels and New York Times Co. v. Sullivan

Mark Graber

Posted 9:20 PM by Mark Graber [link]

National Conference of Constitutional Law Scholars

Stephen Griffin

Inspired by Larry Solum's efforts at live blogging scholarly conferences, I am in Tucson at the inaugural meeting of the National Conference of Constitutional Law Scholars.  This is a very good idea put together jointly by Andrew Coan (Arizona), David Schwartz (Wisconsin), and Brad Snyder (Georgetown) and funded by the University of Arizona's Rehnquist Center.  The papers I mention are available (I assume) from Andrew.  It's a great conference, with an interesting mix of scholars at different stages of their careers.  I was just listening to Aziz Huq presenting a paper on "Apparent Fault," followed by Victoria Nourse talking up a terrific paper, "Reclaiming the Constitutional Text from Originalism."  It's part of a book she is working on which I can't wait to read.  Jamal Greene is commenting.

Previously this morning, we heard a wonderful set of papers on the political process, including Tabatha Abu El-Haj's "Networking the Party," on thinking about political parties as associations, Aaron Tang rethinking how notions of political power are factored into judicial review, and Franita Tolson on how the elections clause relates to Shelby County.  Other presenters and papers included Deborah Pearlstein's "Executive Noncompliance and the Effectiveness of Legal Constraint,"  Jeffrey Schmitt on the public land clause and an excellent panel on the related ideas of animus, dignity, and special legislation featuring William Araiza, Luke Boso, and Evan Zoldan.

Just an excellent conference that amounts to a much-needed professional reaffirmation of the project of doing constitutional law and theory at this difficult time in our nation's history.

UPDATE:
Other notable papers being presented today include Shalev Roisman on "Presidential Factfinding" (really interesting topic); Rebecca Aviel on "Revisionist Rights Talk"; Yvonne Lindgren's "Scapegoating Abortion Rights" and Yxta Murray on "The Takings Clause of Boyle Heights."  Richard Primus continues his inquiry into the enumerated powers doctrine by looking closely at the original debate over the national bank in Congress in relation to the development of Madison's views; Christopher Schmidt is currently presenting on "Section 5's Forgotten Years" (very interesting paper) and David Schwartz follows with "The Strange History of Implied Commerce Powers."  Ilan Wurman continues his intervention into originalist theory with "Constitutional Primary and Secondary Rules."  My own contribution, which I hope to post soon on SSRN, is "Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change."  Lots of great work going on advancing our understanding of the Constitution.
Posted 7:09 PM by Stephen Griffin [link]

Explaining the Persistence of "Impure" Legal Theories

David Pozen

Posted 12:36 PM by David Pozen [link]