jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
A Marker of a Disjunctive President
Wednesday, October 24, 2018
A Marker of a Disjunctive President
Gerard N. Magliocca
We have a long-running debate on the blog about whether Donald Trump is a disjunctive president. In other words, does he represent the end of a particular party system (the Reagan coalition)? This label comes from the influential work of Stephen Skowronek, who analyzed the presidency in relation to the prevailing party system of the day.
After voters during the past four election cycles fired over 1,000 of them, Democrats hold the fewest elected seats since Calvin Coolidge was POTUS. Barack Obama is arguably the Democrats Herbert Hoover.
The Donkeys have a LONG way to go before we can legitimately start questioning the viability of the Reagan Elephant herd.
This will not be that election.
"Barack Obama is arguably the Democrats Herbert Hoover."
Of course, Obama won re-election while Hoover lost by almost twenty percentage points, so there's that complication...
Can we stop trying to do history while living through it?
Even if these terms describe any reality at all (which is doubtful, because they are based on tiny biased samples), you will find out in 30 years, OK?
I've noted on several previous occasions that I'm pretty skeptical of the whole Skowronek concept. I'll just note here that it's weird to see Pierce included as "disjunctive". I mean, he was in a sense, but his fellow Dem Buchanan succeeded him, unlike the other 3 examples given.
And that's putting aside the futility of any attempt to make predictions about a given president without some perspective given by succeeding events.
I agree with him, too. The truth is, there haven't been enough Presidents to establish a taxonomy like this. They're all different.
OT: While I've enjoyed all of the posts about Gienapp's book, I thought John Mikhail's was particularly good. He should post more often. And he should open up comments so I can tell him that his posts are good.
I took the book out of the library today and will see how I like it.
John Mikhael is on Twitter & one can also drop him a line at his school email.
I referenced but removed Sean Wilentz's new book, "No Property in Man: Slavery and Antislavery at the Nation’s Founding." The premise is interesting and overlaps some of my own feelings [somewhat contra to the "they are just a bunch of slave rapists" philosophy of others] but thought the follow thru was a bit lacking.
It does have some good stuff including a meeting of the son and nephew of two Founders on a ship a few years before the Civil War. Now that I see Alexander Hamilton's son wrote a memoir (e.g., he was an advisor to Andrew Jackson!), I want to check it out.
I too enjoyed the review posts on Glenapp's book and eagerly await his responses. There were many variations in the review posts. Both Sandy and John Mikhail delved into pertinent areas that Glenapp apparently did not. Perhaps over at the Originalism Blog the posters might review Glenapp's book from their perspectives. Will Bause's review post seemed to have been cut short as he has to study the book in more detail. Jack Balkin in the first review post made references to the views of several originalists, including Will Baude's expressed with a co-author; Baude's review post did not address Jack's comment. I liked Mark Graber's comment on ongoing excavations by originalists in attempts to justify their theories. And Allison LeCroix made the point for serious consideration of Mary Sarah Bilder's book Madison's Hand in connection with reliance upon Madison's Notes as the "Father of the Constitution" in interpreting/construing the Constitution And Sandy repeated some of his earlier critiques of giving too much credence to The Federalist Papers.
Perhaps like the Framers with the Constitution, the review posters are not in lockstep on Glenapp's book. If the Originalism Blog posters were to review the book, they might not be in lockstep because of the diverse forms of originalism.
If there is one thing we should have learned from the 2016 election, it is that results can turn on some pretty random events. So I agree with Mark and Dilan that basing some grand historical theory on how a handful of Senate races turn out is rather problematic.
(Actually, if there is one thing we should have learned from the 2016 election, it is that outsourcing our civic responsibilities to the FBI is a bad idea. But since we seem incapable of learning that one, lets go with the other thing.)
Permit me to go off topic and point out that Sandy's review post went into moderation before there was a full resolution of Brett's claim, supported by SPAM,, that the 8th A's "cruel and unusual" punishment provision was aimed at the judiciary. Until the 14th A's ratification the 8th A and the rest of the Bill of Rights applied only to the central government and not the states. As a result, any aim of the 8th A against the judiciary did not target the states' judiciaries. Were there federal common law crimes where federal judges determined what the punishment would be or were punishments spelled out in federal criminal statutes? In any event, it would seem that the federal judiciary per Article III would determine if a punishment imposed by a federal judge was "cruel and unusual." So what was aimed at the federal judiciary would be subject to judicial review.
One might argue that the 8th A should have applied to the states for common law and statutory crimes punishments. But Barron v. Baltimore in 1833 held that the Bill of Rights did not apply to the States. Sometimes the aim misses the target.
United States v. Hudson (1812): "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense."
The courts were held to have limited inherent powers ("But they have the power to fine for contempts, to imprison for contumacy, and to enforce the observance of their orders.") but not some general power over federal common law crimes. There was a lot less federal criminal law in the early 19th Century, but there was some.
The 8A does clearly limit judges and they regularly would have to apply it such as whenever they had to set bail or whatnot. But, when Congress passed laws and the executive carried them out (such as in a prison out of view of the courts), the provision also applied.
For instance, in his Commentaries, Justice Joseph Story noted: "It was adopted, as an admonition to all departments of the national government."
Joe, as usual, fills in gaps quite aptly with his comments on Sandy's thread and here on the 8th A. Thanks.Post a Comment
Back on topic, overnight I have been thinking about the parenthetical portion of mls' 7:42 PM comment. The FBI is part of the Executive Branch. Exactly what is this referring to"
" ... outsourcing our civic responsibilities to the FBI is a bad idea."
Hillary's emails on her personal server? The role of Russia in interfering in 2016 elections? Who did the "outsourcing"? What were "our civic responsibilities" that were "outsourced"? Was the FBI acting ultra vires?
As to the political theory of Gerard's post, it might be said that history, while informative, does not repeat itself.
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
Syllabi and Exams