Abandoning Defensive Crouch Liberalism Redux

Mark Tushnet

Posted 9:41 PM by Mark Tushnet [link]

Constitutional Hardball post below updated to allow comments

Priscilla Smith

Posted 2:23 PM by Priscilla Smith [link] (44) comments

A Fascinating Question

Gerard N. Magliocca

Suppose the President nominates Senator Mike Lee of Utah to the Supreme Court. Would Senator Lee be able to vote for himself or must he abstain on that vote? This may matter because the Senate is closely divided and Senator McCain is absent due to illness.

In the past, many senators were named to the Supreme Court. Back then, though, these nominations typically were confirmed by unanimous consent. (Indeed, I believe Senator Hugo Black was the first member of the Senate nominated for the Court when a vote was even held, though I'd have to check that.) I'm not sure after that whether there is any relevant practice, as no sitting Senator has been sent to the Court since 1949.

Some Senators have been nominated for Cabinet posts (like Jeff Sessions last year). On his vote to be Attorney General, he simply voted "present." Does that custom carry over to a Court confirmation?
   
Posted 11:39 AM by Gerard N. Magliocca [link] (17) comments

"Constitutional Super Hardball"

Priscilla Smith

Posted 1:56 PM by Priscilla Smith [link] (21) comments

Constitutional Political Economy When the Court is to the Right of the Country

Joseph Fishkin

By Joseph Fishkin & William E. Forbath

Most Americans, even well-informed Americans, understand the fight over a new Supreme Court justice largely in terms of certain high-salience issues in constitutional politics such as abortion, affirmative action, the death penalty, or perhaps the religious rights of a conservative Christian to refuse to serve a gay couple. We seem a great distance, in other words, from 1936, when President Roosevelt ran for re-election against the “constitutional-economic philosophy” of the “Nine Old Men” who had recently struck down key New Deal statutes. In 1936, everyone, whatever their views, could see that the constitutional fight ahead had to do with fundamental questions about how the nation’s economy would be organized, and for whose benefit. In Jones & Laughlin in 1937, the Court famously retreated, upholding the National Labor Relations Act (NLRA) (the “Wagner Act”) against a challenge that perfectly encapsulated one side of that debate—a fiercely anti-union and anti-redistributive vision of the demands the constitution places on how we structure economic life.

Those fundamental questions of constitutional political economy were never settled. After 1954, Brown and debates about school busing became the main axis around which our constitutional politics turned; liberals took to defending the Warren Court while conservatives found success running against it; and this pattern has basically continued ever since, despite changes in the mix of salient issues and despite the fact that conservatives, not liberals, have controlled the Court since the mid-1970s. Since that time, American political economy has changed. Inequality has skyrocketed; unions have been ravaged; workers’ share of national income has declined; the cost of health care, higher education, and for that matter, political campaigns have gone through the roof in ways that make access to any of them perilous and unequal. Groups favoring an ever more hierarchical and anti-democratic vision of American political economy, from the Chamber of Commerce to the Koch brothers’ network, have found enormous success not only in the Republican party but also in the courts. In court, instead of building their political-economic vision through the old constitutional claims of property and contract rights and substantive due process of the Lochner era, these groups today use different doctrinal tools, of which perhaps the most powerful is the newly “weaponiz[ed]” First Amendment.* The objectives, and the political-economic stakes, remain the same.

The Roberts-Kennedy Court, as perhaps the first years of the Roberts Court may eventually be known, began to make interventions in our constitutional political economy forceful enough that Americans started to take notice. Citizens United, in particular, drew a powerful public response; it was the first case in a long time that vividly illustrated to large numbers of Americans that the Supreme Court is in the business of deciding profound questions of political economy. When faced with Obamacare, the single largest egalitarian intervention in American economic life in a generation, Chief Justice Roberts stepped back from the brink, issuing some wild Commerce Clause dicta but ultimately upholding the law as an exercise of Congressional power to tax.

Well, buckle your seat belts. Justice Kennedy’s retirement announcement yesterday means that we are on the cusp of a bolder Roberts Court, one poised to push much harder for a neo-Lochnerite individualistic vision of constitutional political economy. The evidence is already before us. Indeed we need look no further than the case decided yesterday, Janus v. AFSCME, the Court’s latest effort to nationalize some states’ anti-union policies that are aimed, undisguisedly, at breaking some of the last bulwarks of workers’ political power. (More about the case below.)

President Trump responded to Janus with predictable bluntness: “Big loss for the coffers of the Democrats!” In this case, his lack of interest in legal doctrine actually brought him fairly close to the core of what the case was about. The remarkable thing is how close the majority opinion, by Justice Alito, itself comes to revealing that this decision’s purpose and effect are essentially about economic and political power. If Justice Kennedy’s successor is anyone from President Trump’s list (outsourced to the Federalist Society) of potential nominees, it will be time for everyone who disagrees with the political-economic course the Court is charting to begin to reorient our constitutional politics. The next decades will be a period of progressive constitutional politics outside, and largely in opposition to, a hostile Court.

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Posted 12:01 PM by Joseph Fishkin [link]

Williams v. Mississippi, the Travel Ban and Justice Kennedy's Legacy

Mark Graber

Posted 5:14 PM by Mark Graber [link]

Justice Kennedy's Legacy

Mark Tushnet

Posted 4:10 PM by Mark Tushnet [link]

The Standing-on-One-Leg Version of Constitutional Law, circa and post-2018

Mark Tushnet

Posted 3:53 PM by Mark Tushnet [link]

Truly the Roberts Court

Gerard N. Magliocca

With the announcement of Justice Kennedy's retirement today, Chief Justice Roberts is primed to become the most powerful occupant of that office since Earl Warren. We do not know, of course, who will replace Justice Kennedy. (Personally, I would love to see Kevin Newsom, just recently confirmed to the Eleventh Circuit, get the nod.) But there is a strong likelihood that the Chief Justice will be the swing vote as well as the head of the conservative bloc.
Posted 2:10 PM by Gerard N. Magliocca [link] (109) comments

Why was Korematsu wrong?

Joseph Fishkin

Amid the general horror show today at the Supreme Court (sequel tomorrow), one small point that could easily get lost, but should not, is the majority’s effort in the travel ban case to distinguish Korematsu.  Read more »
Posted 5:20 PM by Joseph Fishkin [link]

Carpenter's Curiosities (and its Potential to Unsettle Longstanding Fourth Amendment Doctrines)

Marty Lederman

Not surprisingly, there are already a slew of reactions to the Court's landmark decision on Friday in Carpenter v. United States.  Most observers understandably have focused on two major aspects of the ruling:

(i) The Court held that customers have at least some "reasonable expectation of privacy" in the cell-site location information (CSLI) records that their service providers maintain about them--a new "exception" to the so-called "third-party doctrine," and thus a repudiation of the principle the Court announced in Smith v. United States that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”  (Such a categorical principle was obviously vulnerable and inadequate from the outset--indeed, it can't be reconciled with the landmark Katz holding itself, in which he Court found that Katz had at least some reasonable expectation of privacy in information that he "voluntarily" shared with a third party, namely, his bookie.)  After the Court's decision in Carpenter, the fact that one has shared information with a third party is relevant to the Fourth Amendment analysis but it does not, in and of itself, resolve the question of whether an expectation of privacy in that information is legitimate, and thus subject to some Fourth Amendment solicitude, including in cases where the state directs the third party to produce the records. 

(ii) Carpenter also confirms the Court's recent willingness to shape its Fourth Amendment doctrine to address the extraordinary new technological surveillance capabilities of the state--in particular, its ability to glean huge amounts of detailed information about individuals, without significant cost, using computer searches of now-ubiquitous databases that track our every transaction, communication, and movement.  (In this respect the best early take, emphasizing the possible implications of Carpenter for "bulk" foreign intelligence surveillance collections, is this piece by David Kris.  [UPDATE:  And this post by my colleague Paul Ohm is also must reading.])

Those aspects of the decision are certainly momentous, but they don't begin to tell the whole story.  Indeed, at least on my preliminary first reading, Carpenter appears to be even more extraordinary and groundbreaking than the initial reports have suggested, for at least three reasons.

1.  It's actually a 6-3 decision--and Justice Gorsuch's rationale might be even broader than the Chief Justice's


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Posted 1:30 PM by Marty Lederman [link]

The Glaring Omission in the Chief Justice's Opinion

Gerard N. Magliocca

Whatever you think of the Chief Justice's opinion in Trump v. Hawaii. there is one obvious problem with his analysis. There is no reference to Masterpiece Cakeshop. The dissents both discuss the case, which is clearly relevant to the Establishment Clause claim. The Chief Justice decided to pretend that the case was not decided a few weeks ago.

In a federal court of appeals, this sort of omission would amply support a petition for rehearing pointing out that the Court overlooked a pertinent authority in rendering its judgment. Once in a blue moon, the Supreme Court grants a petition for rehearing. This case will not come out any differently if they grant one in Trump, but the challengers deserve a fair assessment of the relevant case law.
Posted 11:24 AM by Gerard N. Magliocca [link] (79) comments

Two Different Constitutional Ideas

Gerard N. Magliocca

"We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents . . ."

President Donald Trump (June 24, 2018)

"Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?"

Congressman John Bingham (February 28, 1866)
Posted 8:46 PM by Gerard N. Magliocca [link] (69) comments

Draft Paper on the Equal Rights Amendment

Gerard N. Magliocca

Here is my draft article on the status of the proposed Equal Rights Amendment to the Constitution. I welcome any and all comments.
Posted 4:34 PM by Gerard N. Magliocca [link] (10) comments

Data Nationalization in the Shadow of Social Credit Systems

Guest Blogger

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Posted 9:00 AM by Guest Blogger [link]

Cultural contradictions of capitalism II

Sandy Levinson

Ross Douthat has a very interesting column in today's Times (online) noting the transformation in views especially by feminists with regard to the use of surrogates to carry children.  Without expressing my own view on the merits, I do find it a wonderful illustration of Bell's (and Deneen's) overall point that the power of libertarian-capitalist ideology, even for people who undoubtedly identify themselves as one the left, does indeed lead to a lot that was formerly solid melting into air.  Not surprisingly, a number of the hostile comments to Douthat's column denounced him for his failure to respect the capacity of women to make autonomous choices on how to use their bodies, including, of course, in effect renting them out to more affluent persons and couples.  All we have to do, of course, is to define exactly what constitute the conditions for "autonomous choice," as Kanye West recently reminded us (with stunning ineptitude).  The one thing we can be relatively certain about is that the judiciary will provide almost no help, since all American lawyers are socialized into a theory of contract that basically ignores, save, at most for a day, the problems of "duress" or "unconscionability" in favor of a model of arms-length bargaining and contractual freedom, as with, say, plea bargaining.



Posted 4:52 PM by Sandy Levinson [link] (57) comments

Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

Guest Blogger

• In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.
  
• Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
• These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

Read more »
Posted 3:35 PM by Guest Blogger [link]

The Cultural Contradictions of Capitalism

Sandy Levinson

I mentioned in a previous post some of my reactions to Patrick Deneen's interesting book Why Liberalism Failed.  I noted that many of his arguments are evocative of earlier critiques of liberalism written in the 1960s and early '70s.  One of the most important of those critiques was Daniel Bell's "The Cultural Contradictions of Capitalism."  As Marx had noted, one effect of capitalism was to disrupt settled societies, to "make all that is solid melt into air."  The decidedly anti-Marxist Joseph Schumpeter emphasized the importance of "creative destruction" in the capitalist project, i.e., to destroy existing industries and the communities that might have been based upon them upon the discovery of new and better mousetraps.  Although it is not my primary interest in this post, I do note a story in today's New York Times that emphasizes, altogether accurately, the extent to which  Donald Trump is engaging in the political economy of nostalgia, trying to restore industries, most obviously the coal industry, that will never ever make a come back because it has in fact been creatively destroyed by other sources of energy.  Texas, for example, is now the largest source of wind power in the US, and one finds very few Texans, other than the hapless Rick Perry, who believes that valuable dollars should be wasted on trying to revive a dying coal industry.  One might make much the same argument about steel.  But, as I say, that's not the primary focus of this comment.

Instead, I am completely fascinated by the column in Friday's Wall Street Journal, part of its regular series "Houses of Worship," on various religions in America.  The Journal, of course, is to be commended for taking an interest in American religious communities.  This weeks column, by Kim Woodward Osterholzer, is about "Faith and Family Among the Amish."  She herself is a home-birth midwife, now living in Colorado, having earlier lived for nine years in the Amish country in Pennsylvania.  She scarcely presents an attractive picture of the Amish; it is very different, for example, from the high-romanticism offered by Chief Justice Burger in Yoder.  Thus she writes that she "found barely functional homes filled with a bustling, Spartan folk wearing patched and sweat-stined clothes.  I was taken aback by the rough hands, the weather-battered faces, the round and weary shoulders, the bare and blackened feet, the swollen ankles, and the legs stranger with bulging veins.  I glanced when I saw how many young families lived in barns, shed and the basements of partly constructed homes....  I learned to regard with nonchalance the rolls of flypaper that dangled from the ceilings.  After a while, I hardly noticed the mice scampering under doors and along the edges of baseboards,,,, "  She also describes herself as "unfazed by the severity of the religion," which is structured around following the Ordnung, as interpreted by a bishop and two local ministers, "who are selected by lottery and serve for life while keeping their day jobs."  Perhaps needless to say, "women are never allowed to preach."

Lest one think that the column is a criticism of this completely totalitarian enclave of those who might be described by the unsympathetic as religious fanatics, the author in fact ends up with a tribute to what she saw.  "The Amish are a God-fearing, family-centered people.  They work hard, but they also relax and play.  Their lives are so untarnished by the broader culture that to be with them is refreshing...  The fruit of the Amish way i\of life is that it keeps its people better focused on what truly matters--faith and family.  They intimately understand the resilience and fragility of life and the certainty of death.  It keeps them close to the earth, in sync with its rhythms.  Whenever I departed from a visit, I would ask myself:  Do we really need the fear of hell driving us before we can make time to be with one another and enjoy the magnificent world God created for us?"  I suspect that one might find some similar elegies about some Hasidic Jews, who equally withdraw from the world and do everything they can to make sure that their children are indoctrinated into the ostensible virtues of the integral community and rendered basically unfit to exist in the outside world.

Deneen is Catholic, so I doubt that he would be completely taken with these descendants of German Anabaptists.  But they do instantiate the kind of small integral communities whose destruction by liberalism--defined either as the strong consolidated state favored by contemporary progressives or the buccaneer capitalism embraced by libertarians--he laments and seemingly wishes to return to.  There is an obvious problem, though.  If a significant number of Americans were persuaded even that milder versions of Amish austerity were desirable, American capitalism would collapse.  The Wall Street Journal devotes itself to covering those whose lives are devoted to extending the reach of capitalism, including, all importantly, the consumer-oriented societies that define success as owning the next big thing, whether the latest number IPhone or expensive watches or whatever.

I suspect that the Wall Street Journal would be hesitant to open its columns to serious hippies, assuming any are left, who call for the rejection of consumption in favor of the simple life.  Ordinary radicals, who might believe that everyone deserves an equal opportunity to buy Mercedes etc. are far less dangerous to the overall capitalist ethos than someone who preaches the virtue of asceticism, as do the Amish.  So why do they publish the column, and its conclusion?  I suspect it is because they recognize that almost literally none of their readers are likely to find asceticism a genuine virtue.  The Amish play the function of exotic animals at the zoo.  We can feel better about ourselves for tolerating them, but only so long as they do not in fact present a genuine threat to a society built on almost everything the Amish reject.

But Bell wasn't really concerned about the Amish. Rather, he noted that capitalism depends on the destruction, creative or otherwise, of existing ways of life.  My home town of Hendersonville, North Carolina is now a quaint tourist town instead of a community of local small businesses, etc, (where I worked when I was growing up, beginning when I was a ten-year old), because of Walmart, etc.  Donald Trump promises to restore communities in West Virginia and Kentucky that were built around coal, or Gary, Indiana, built around steel.  But, tellingly, he isn' promising to go after Walmart and other denizens of modern American capitalism that have destroyed many small communities.  (Nor do I necessarily think he should.  That, too, is the topic for other conversations.)

The Journal instantiates the most bizarre feature of the contemporary Right, i.e., the alliance between religious conservatives, many of whom genuinely yearn for community, and the agents of American capitalism who are completely and utterly indifferent about the consequences of their prosperity.  Think only of Facebook in this regard.  And, of course, the Journal adamantly supports the further destruction of labor unions, a destruction accurately credited by Stephen Brill in his own book Tail  Spin, as one of the sources of American decline over the past half century.  Opioids and suicide are genuine problems of public health, and they are in part a response to the "creative destruction" of modern capitalism.   





Posted 11:00 PM by Sandy Levinson [link] (56) comments

Hjalmar Schacht and Mitch McConnell

Mark Graber

Posted 2:33 PM by Mark Graber [link]

Nonnonjusticiability

Joseph Fishkin

If you read Justice Kennedy’s opinion in Vieth in 2004 together with the Court’s opinions this morning in Gill v. Whitford and Benisek, at some point it begins to become apparent that although everyone on both sides of the sharply pitched debate about the constitutionality of partisan gerrymandering is desperate for a victory in the Supreme Court, Justice Kennedy is strongly disinclined to provide such a victory to anybody. His dogged insistence on finding creative ways to avoid deciding these cases, even at significant cost to doctrinal coherence, at some point begins to suggest the possibility that his actual preference is for what we might call nonnonjusticiability: the vaguely Schrodingeresque state of affairs in which the legally correct answer to the question of whether such a constitutional claim can proceed or is dead is “maybe.”  The Court could continue to hold partisan gerrymandering claims nonnonjusticiable, if it wishes, right up until the 2020 Census, a state of affairs that would be unlikely to strike too much fear into the hearts of increasingly confident partisan gerrymanderers, with their increasingly impressive data and software. But, maybe just a little teensy bit of fear. After all, you never know when a nonnonjusticiable claim might suddenly get justiched—that’s the nature of nonnonjusticiability. Perhaps we should take seriously the possibility that this teensy amount of fear is the precise amount Justice Kennedy views as optimal. Anyway, today’s decisions might at least permit a little bit of development of partisan gerrymandering doctrine in some lower courts (development that often tends to be stunted in redistricting law by the special three-judge court system).

Posted 1:36 PM by Joseph Fishkin [link]

Police Surveillance Machines: A Short History

Guest Blogger

Posted 9:00 AM by Guest Blogger [link]

Happy Flag Day

Gerard N. Magliocca

Today marks the 75th anniversary of the Supreme Court's opinion in West Virginia State Board of Education v. Barnette, which remains Justice Robert H. Jackson's rhetorical masterpiece:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

Posted 9:23 PM by Gerard N. Magliocca [link] (23) comments

ACA's Former Foes Agree DOJ/Texas Have Severability Wrong - An Unusual Amicus Brief That Says a Lot about the Case's Lack of Merit

Abbe Gluck

Posted 3:22 PM by Abbe Gluck [link]

Technology, Political Economy, and the Role(s) of Law

Guest Blogger

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Posted 5:05 PM by Guest Blogger [link]

The De-Americanization of Internet Freedom

David Pozen

[Cross-posted at Lawfare]
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Posted 2:30 PM by David Pozen [link]

The Minsky Moment in Constitutional Law

Gerard N. Magliocca

During the Panic of 2008, fresh attention was given to the economic research of Hyman Minsky. Minsky proposed a theory to explain periodic financial crises that went something like this: The further the previous crisis receded from memory, the more people discounted the possibility that such an event would recur. This led them to take on more risk or deregulate, which eventually triggered the next crisis. And so on.

I wonder if we are now having a Minsky Moment in politics or constitutionalism. In other words, voters and some political elites may be taking for granted the benefits that have flowed from various institutions or practices developed since World War II (free trade, global institutions, rule of law, constitutional democracy, etc.). As a result, people think that we can take on more political or legal risk (in the name of one goal or another) without losing the benefits associated with those practices. Until, that is, there is a significant upheaval. Then everyone will reassert the older caution and learn their lesson until they forget again.


Posted 10:53 AM by Gerard N. Magliocca [link] (55) comments

Further reflections on "the common good"

Sandy Levinson

As noted yesterday both Patrick Deneen's and Steven Brill's new books, about which I am very enthusiastic, both ultimately turn on the belief that there is an ascertainable "common good" or "public interest" that is being ignored by feckless politicians, for whatever reasons, including, of course, the sheer power of the donor class.  I am not unsympathetic with this critique.  One of the reasons I have become so critical of the Constitution is that, as Mark Graber has pointed out, it is structured so as to assure that no national elected office-holder, including the President, truly has an incentive to think about the "national good."  Every member of Congress is beholden to local constituents.  The only difference between the House and Senate on this score, putting to one side the seven states with more senators than representatives, is that senators represent larger constituencies, but their incentive is to do what they believe these parochial constituencies desire.  Thus Mitch McConnell as the faithful ambassador from a dying coal industry.  Indeed, if one wants to understand why it's going to be so hard to win the "war on coal," one should begin with the fact that most of the largest coal producing states are small (in population) and, therefore, coal plays an exaggerated role in the consciousness of the representatives and senators.  (These states include Montana, Wyoming, Kentucky, and West Virginia, which have a total population of approximately eight million people (out of approximately 325 million people in the entire US), but who have, among them, 8% of the in the egregious and indefensible U.S Senate and, unlike the senators from, say, Illinois, they are not encumbered by in-state groups that might not be so completely committed to maintaining the supremacy of coal.  (Texas, a high coal-producing state, somewhat to my surprise, is now the leading center of wind-energy in the US.)

Although some (especially presidents themselves) claim that the President is the "tribune of the national people," the even more egregious and indefensible electoral college assures that most often the President is the faithful servant of the particular coalition that put him (so far) into power.  Thus, whatever FDR's "real views" might have been on civil rights, the New Deal, as Ira Katznelson has demonstrated, was shameful with regard to protecting the rights of Southern African Americans because racist Democrats were an essential part of the then-Democratic coalition.  (They have, of course, migrated to the Republican Party as a result of the Voting Rights Act of 1965.)  Similarly, the most shameful appointments to the federal courts in the past sixty years, prior to Donald Trump, were JFK's, who felt it "necessary" to pander to Mississippi Sen. James Eastland and others to provide "safe" judges.  Ohio, as a battleground state, has been the recipient of special solicitude from, especially, George W. Bush and now Donald Trump, though I suspect it wouldn't be that hard to find some similar examples from Bill Clinton and Barack Obama.  The only one of the three basic branches that might be free from this critique is, of course, the judiciary.  As Graber has also argued, one cannot possibly understand Dred Scott without realizing that there was a national desire that the Court, as the one remaining "national institution," given the almost total breakdown of Congress as a genuine governing institution, intervene and try to save the Union. Taney didn't do it, but, if one can accept Story's similarly-motivated opinion in Prigg v. Pennsylvania, it's not self-evident that Taney deserves all of the opprobrium visited upon him unless one takes the Garrisonian position, which I'm sympathetic to, that there might have been a more important value than maintaining the Union.   One might also try to defend the "Administrative State" in similarly national terms.

But these are all "political science" points, as important as they are (and which, perhaps, deserved more recognition particularly from Brill).  Far more fundamental, and quite explicit in Deneen's book, is the extent to which what political theorists call "modern" political theory, i.e., post-Machiavellian, basically rejects the notion of an ascertainable "public good" or "public interest."  I have written elsewhere that the most important single paragraph in "modern" political theory is from Hobbes's Leviathan, where he ruthlessly condenses Aristotle's six forms of government--monarchy, tyranny, aristocracy, oligarchy, constitutional government, and demagoguery, into only three.  (Some lists, incidentally, describe the last two as either a "polity" or a "democracy."  The point is that the second "contrast" terms, "tyranny," "oligarchy," and "demagoguery" or "democracy" Hobbes dismisses as merely the names for forms of government "misliked."  That is, there is no real "fact of the matter"; it's simply a matter of (arbitrary) opinion, so that we should analyze only three forms of government, based the sheer number of rulers:  Monarchy (one); aristocracy (the few); and then democracy (the many).

Madison was perhaps fatally schizoid about such matters,  reflected in the Constitution that he helped so much to design.  Many of the Federalist papers clearly presuppose the existence of "virtuous" dispositions that will lead leaders to prefer the common good to merely selfish "factional" interests.  On the other hand, he also seems to indicate, especially in Federalist 10, that it is basically futile to believe that selfishness can be tamed, that we need instead to construct a "machine" that will, with adequate bells and whistles, create a way of balancing out the various factional interests and, implausibly, perhaps, result in a public interest.  That way lies what came to be called "interest group liberalism," which triumphs especially in the 20th century.

When I entered graduate school 56 years ago, it was taken as a simple truth that normative political theory was basically dead, that "everyone" knew it was simply naive to use terms like "public interest" except in reference to a vector sum of bargaining among distinctly factional political interest groups.  Richard J. Daley and New Haven Mayor Richard Lee were the heroes of what came to be called the "pluralist" view of politics.

John Rawls is widely credited with reviving normative political theory with A Theory of Justice in 1971, but key to Rawls is that his approach was based ultimately on a model of "rational choice," in which entirely self-seeking individuals would realize that it was ultimately in their own interest to adopt "a theory of justice" that would maximize certain notions of "fairness" (because, after all, one could never know, in the original position behind a veil of ignorance, what slot one would inhabit when the veil was lifted).  Genuine commitment to a "public good" was not really central to the Rawlsian vision.  Moreover, as Michael Sandel argued, Rawls's ontology, as is true generally of "rational choice" models, was of completely isolated individuals concerned only with maximizing their own welfare.  (In this sense, there was less difference between Rawls and his chief libertarian critic, Robert Nozick, than one might think.)  Sandel, instead, emphasized (like Deneen), the extent to which we come into the world "embedded" and "encumbered" by community loyalties, norms, etc. Not only are they not easy to escape, but one can read Sandel (and certainly Deneen), more controversially, as suggesting that they ought not be escaped.  I dare say that most readers of this blog are "cosmopolitans" of one form or another who have long since left their original birthplace and, perhaps, family and religious traditions behind, and are not particularly taken with the pull of remaining loyal to initial "encumbrances" that in no sense are "chosen" or the product of any kind of "autonomy."  (It is clear that no libertarian can possibly be sympathetic with Sandel, or Deneen.)

But even with the revival of normative political theory and the rich array of books that are now being written, it is scarcely the case that there is anything close to agreement on what constitutes the public good or, even more to the point, on the epistemological tools by which we might ascertain it.  This is what makes arguments like Deneen's and Brill's (and, for that matter, your own favorite politician--both Brill and I are big admirers of Bill Bradley, who would have been a superb President) so genuinely problematic.  It is always tempting, and often correct, to claim that assertions of the public good are mere "ideology," i.e., gussied-up defenses of what are "in fact" merely selfish interests.  The main business of lawyers, after all, is to manufacture arguments favoring their clients in the name of impersonal interpretations of statues or the Constitution.  (Who would be so bold as to describe yesterday's voting rights decision about Ohio as five conservative Republicans making it easier for their party to remain in power rather than the good faith interpretation of two federal statutes?  It would be like describing the Court as the "running dogs of the capitalist empire.")  Going back to Plato and the Gorgias, Socrates distinguished between sophistry and true knowledge.  At best, many (though not all) of us believe that "true knowledge" is available with regard to a certain realm of "facts."  (The Flint water supply was contaminated with lead is not a matter of opinion; I also agree with Brill that it, like many other failures in our infrastructure, can be traced to fanatical Republican opposition to spending public money in a redistributive manner designed to help what Brill calls those who are "unprotected" by class or meritocratic privilege. ) But is it a matter of "fact" that poor people are "entitled" to decent water, public transportation, education, etc., etc., etc.?

I'm skilled at delineating the structure of legal and political debates, but I'm scarcely confident that I in fact know what the "public good" requires.  I remain enough a child of that aspect of my graduate education to be skeptical (just as I'm even more skeptical of claims to true and certain knowledge of what "the Constitution" requires of us).  My first book was "Constitutional Faith," and I have written subsequently of how and why I lost any real faith in the Constitution.  What Brill and Deneen are relying on, though, is perhaps a more important kind of faith, i.e., that we can in fact come to agree on what the "public good" requires and then identify leaders and groups who are committed to bringing it about.  Without some kind of such faith, I don't know how a democracy can ultimately function (unless, that is, one accepts the now generally discredited assumptions of interest-group-liberalism).  But requisite belief can't simply be summoned out of thin air.

More depressing thoughts for a late spring day (provoked by these two very interesting books).
Posted 3:23 PM by Sandy Levinson [link] (77) comments