Gay Rights, Religion, and Giving Peace a Chance

Andrew Koppelman

Fulton v. City of Philadelphia was the latest skirmish in the ongoing war over gay rights and religious liberty. The conflict concerns, in various forms, the question whether religious people who conscientiously object to facilitating same-sex marriages, and who therefore decline to provide cakes, photography, or other services, be exempted from anti-discrimination laws. The adoption agency in Fulton, which refused to provide certification for same-sex couples, offered a different instance of the same problem. The Court managed to avoid handing either side a dramatic victory. The struggle is certain to continue.

Two Book Notes: The Gun, the Pen, and the Sword and The Public's Law

Mark Tushnet

Two excellent and important books on public law elicit the following mostly methodological comments. Linda Colley’s widely and well-reviewed The Gun, the Ship, and the Pen tells two slightly different stories. One is about the spread of the idea of constitutionalism from roughly 1700 to the early twentieth century. This is the story about “the ship” and “the pen” – the technologies that helped the idea diffuse.

The other, the story about “the gun,” is about the adoption of constitutions themselves. Here Colley offers a historian’s version of an argument familiar to students of constitutions who are political scientists and economists. (I associate the argument with Douglass North, Roger Myerson, Barry Weingast, and Stephen Holmes.) Rulers with ambitious military programs have to pay for them. They do so by raising taxes, which requires either force or voluntary compliance, or borrowing money. Why should people agree to pay taxes or lend money to an absolute monarch? Because they expect to be repaid either in economic growth or money. Yet, if the monarch is truly absolute why should they be confident that they’ll enjoy those benefits? Absolute monarchs limit their power – through a constitution – to provide assurances that the money they get will indeed be repaid. Absolute monarchy becomes constitutional monarchy. (Weingast and his colleagues have developed an argument that constitutions that “work” – lead to repayment – are self-enforcing. I think that that argument works only with some assumptions about how people read constitutions, but that’s not worth going into here.)

The methodological comment: Colley identifies two “mechanisms” for adopting a constitution. One is “the gun” argument – why monarchs come up with constitutions to limit their own power. The other is implicit but obvious: the mechanism by which the constitution is adopted is the unilateral imposition of the constitution by the absolute ruler. With the rise of democracy that mechanism is irrelevant. Perhaps because I’ve been writing a short piece about the politics of modern constitution-making, I find that Colley doesn’t illuminate contemporary issues about constitutional adoption. And, I think it’s significant in this connect that the U.S. Constitutional Convention plays a quite small role in her narrative.

Blake Emerson’s The Public’s Law is a different sort of history, this one about the origins of Progressive ideas about and the institutions of the U.S. administrative state. Emerson locates those origins in Hegel’s account of the ideal state. This is, to say the least, a heterodox view. And I’m not sure that Emerson pulls it off – or, more precisely, I think the resources of academic intellectual history need to be supplemented to pull it off.

Emerson first offers an argument about Hegel’s concept of the state and then argues that five thinkers who historians associate with Progressivism knew Hegel’s work and in some rough sense knew that Hegel had made something like Emerson’s interpretation of Hegel’s thought. They modified “Hegel”’s ideas (the scare quotes are there for a reason I’ll get to) to make it compatible with their own ideas about democratic self-governance. Those ideas then worked their way into the institutions of the U.S. administrative state.

Emerson’s methodological stance is a bit unclear. Sometimes he uses words like

“compatible with” the ideas he has developed to describe components of the administrative state, or treats the association of the ideas and those components as a rational “reconstruction,” a way of seeing how we can understand the administrative state. This is basically an exercise in normative political theory using the resources provided by past intellectuals, and as such is interesting in itself.

Sometimes Emerson seems to offer an account of actual historical developments, writing as if he believes that the political actors who constructed the administrative state knew of and were influenced by the Hegel-inspired modifications he identifies. And there is some, but in my view, quite thin evidence of that. And having read a fair amount of the literature by legal academics and politicians who were the proximate sources of the administrative state, I remain skeptical about claims of direct influence.

That’s not to say that Emerson’s historical account is inaccurate, only that it has to be, so to speak, reconstructed to connect high-level political theory – Hegel – to on-the-ground institutional development. Here’s how I think the reconstruction should go (and it’s not incompatible with Emerson’s story). Hegel was a systematic political theorist; the Progressive thinkers Emerson describes were not, with the exception of John Dewey and, to some degree, Mary Follett). Those thinkers picked up ideas from their not-too-systematic reading of Hegel and adapted them for their own purposes. Levi-Strauss’s idea of bricolage is helpful here, and my earlier use of scare-quotes is an attempt to signal that Hegel’s actual works were less important than their (perhaps almost fictionalized) thoughts about what Hegel said.

These adapted ideas were themselves “in the air” for the legal academics and politicians to pick up and use for their own purposes. They might decorate their articles and speeches with references to Hegel (though Emerson does not show that they often did so) or, more commonly, throw in phrases similar to those found in Hegel’s work to give their actions a fancy intellectual foundation. The ideas, though, were not actually doing the foundational work. (In earlier work I used the term “informal political theory” to describe an early and crude version of this argument.)

As with Colley, then, I’m interested in Emerson’s implicit and explicit accounts of the mechanisms linking ideas and the institutions of public law. Both books of course deserve careful attention by public law scholars.

Section Three and the 2024 Campaign

Gerard N. Magliocca

My paper on Section Three of the Fourteenth Amendment is now published. I thought I'd give a brief update on where things stand.

Section Three will probably be dormant until 2023. You might see a few claims next year against members of Congress who are running for election, but I seriously doubt that any court will reach the merits. Some claims will be dismissed for lack of standing. In other cases, a court can say that the issue is non-justiciable because a House of Congress is the ultimate authority on the eligibility of members-elect to serve. If any courts do reach the merits, they will probably go with the J.J. Gittes rule and say as little as possible before rejecting the claim.

In 2023, Section Three will probably come to life. First, either chamber of Congress could exclude a member-elect as ineligible. If this is done with a simple majority vote, then litigation would ensue on whether Section Three is an eligibility requirement subject to a majority vote or a punishment that requires expulsion by a two-thirds vote. Second, when Donald Trump announces his candidacy, Section Three objections will be raised and will certainly be litigated. Here I think that there is a reasonable chance that at least one court will find him ineligible, requiring the Supreme Court to weigh in.

The chief problem with any Section Three litigation about Trump is that the election calendar is fixed. Thus, the cases are going to be rushed. The Supreme Court will need to act in an expedited fashion to resolve the issue before the 2024 primaries. This does not bode well for a thoughtful analysis, though by then there may be more factual development through congressional investigations or press stories about what occurred on January 6th and the extent to which Trump was involved. Ultimately, I think that the inability of Congress to enact Section Three legislation will prove fatal to the claim that he is ineligible, but we shall see. 

Balkinization Symposium on Skowronek, Dearborn and King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive-- Collected Posts

JB

Punishment and Empowerment as Political Strategies.

Mark Graber

Jamelle Bouie’s criticisms of the American failure to punish leading rebels in the wake of the Civil War (New York Times¸ July 13, 2021) ironically champions the Reconstruction policy advocated by leading Democrats in the immediate aftermath of the Civil War.  Andrew Johnson upon taking office and many white supremacist War Democrats in Congress insisted that secession and the Civil War were largely the responsibility of a few traitors.  Once such rebels as Jefferson Davis and Robert E. Lee were hung, ordinary southerners would see the error of their ways and again become good Union citizens. 

 Although some Republicans aggressively sought treason trials for leading confederates, most thought criminal punishments marginal to the broader issues of Reconstruction.  The most important radical members of the Republican Party thought the United States would experience a “new birth of freedom” only if the nation passed powerful civil rights laws, empowered former slaves politically by giving them the vote, and empowered former slaves economically by giving them land.  Representative Thaddeus Stevens of Pennsylvania, the leading radical in the House, put “forty acres and a mule” at the core of his Reconstruction program, not “forty feet of rope and a firing squad.”  Senator Charles Sumner of Massachusetts, the leading radical in the Senate, spoke for days (literally) on why African-Americans needed the ballot, but rarely for more than seconds on the need to punish former confederates criminally. 

Stevens, Sumner, and other congressional radicals preferred reconstruction policies that empowered persons of color and their political allies to one that punished leading confederates because they understood secession was the product in part of a mass political movement.  There was not enough rope in the United States to hang even a small percentage of the persons who committed treason from 1860 to 1865.  The postwar south contained numerous ambitious white supremacists eager to assume the reins of racist leadership should existing leaders be executed.  Southern politics could be reformed only if persons committed to reform were empowered.  Radical Republicans recognized that former slaves were by far and away the most important constituency committed to reform in the postwar south.  Their efforts during Reconstruction were directed at providing southern blacks with the political and economic rights necessary to control their destiny.  Reconstruction failed because radical Republicans did not gain the political support in the north necessary to empower persons of color in the south, not because the southern landscape was not sufficiently littered with the executed corpses of confederate leaders. 

Charging Mr. Bouie with advocating the Democratic solution to Reconstruction is in equal parts silly and offensive.  He has been a powerful voice for providing marginalized persons with the political and economic resources they need to become equal citizens in the contemporary United States.  Imputing a belief that criminal punishment would have sufficed for Reconstruction is a gross misreading of his column.  Nevertheless, his column can be read as putting criminal punishment too close to the core of the Reconstruction agenda, both in 1866 and today.  We would be better off emulating Thaddeus Stevens and Charles Sumner, who understood that the best way to combat a mass movement dedicated to racist and other status hierarchies is by empowering a more massive movement of persons committed to a more egalitarian regime and not by trying to cut off the heads of a few racist traitors. 

A Response to the Readers of Phantoms

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Stephen Skowronek, John A. Dearborn, and Desmond King

We are delighted to have this opportunity for intellectual exchange with the community of law scholars through Balkinization. Each of the scholars who posted reactions to Phantoms of a Beleaguered Republic engaged the book with insight and verve, and collectively they have given us a lot to chew on. We wish we could elaborate responses to all the points raised, but we will rest content for now with a few short reflections, down payment on what we hope will be a continuing dialogue.

We’ll start with the book’s title, for several of the readers puzzled over that. The “Deep State” and “the unitary executive” are conjectures, extrapolations from the notoriously complicated design of American government. We dubbed those two ideas “phantom twins” because they draw each other out from the shadows of the constitutional structure. Insistence on a unitary executive, hierarchically controlled by the president, is bound to provoke resistance from administrative operatives, if only because the place of administration in the design of American government is ambiguous. And resistance to presidential control is just as certain to elicit outrage from the “chief executive,” stiffening claims on behalf of executive branch unity and administrative subordination.

Perhaps because we are political scientists, we did not feel compelled to insist that there must be a solution to this conundrum somewhere within the Constitution itself. Sometimes ambiguities are just ambiguities. What we did seek to show was that different solutions have been arrived at serially and pragmatically. American government has been reconfigured repeatedly over the course of its history to address these basic design issues, and the various reconfigurations arrived at have all been grounded in extra-constitutional (not un-constitutional) innovations and contrivances. We argued that looking to this long history of improvisation might prove a surer path forward than looking squarely to the Constitution per se.

Linda Greenhouse and the religious right

Andrew Koppelman

In a new piece at The Hill, I respond to a critique of my work by Linda Greenhouse.  Some excerpts:

Linda Greenhouse, the Pulitzer-prize winning New York Times columnist, writing in the New York Review of Books, generously calls my book, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict, “a novel and useful contribution to discourse on LGBTQ rights,” and appreciates “the willingness of one of the legal academy’s most prominent advocates for LGBTQ equality to meet the other side halfway.”  But she questions whether “the very notion of accommodation can be seen in today’s America as anything more than a noble thought experiment.” 

Greenhouse doesn’t believe that it is possible for proponents of LGBT equality, like her and me, to reach any modus vivendi with the religious right. Some of its best-organized elements, she accurately notes, are dangerously antidemocratic and even theocratic, promoting a paranoid narrative of “grievance conservatism — conservatives’ belief that they are losing unfairly even when they are actually winning.”  My subtitle calls the conflict “unnecessary.”  She responds:  “Unnecessary, perhaps, seen from the ten-thousand-foot level. Here on the ground, ‘The Inevitable Conflict’ seems more accurate.”

The religious right however is not a monolith.  Its leaders have notably failed to control their constituents’ moral beliefs or political behavior.  On gay rights issues, they are actually losing.  A recent Gallup poll reports that 70% of Americans support same-sex marriage, as do 55% of self-identified Republicans.  Among Americans ages 18-34, it is 84%.  That last number must include a lot of religious conservatives. 

Those leaders desperately wanted to reelect Trump, who, she writes, “essentially handed the federal government’s policymaking apparatus over to the religious right.”  But in 2020 they didn’t deliver.  My book argues that Hillary Clinton’s lack of interest in reaching religious voters was an important reason why Trump defeated her.  To take one prominent denomination, he got 81% of white evangelical votes in 2016, but only 76% in 2020.  Biden’s victories in Michigan and Georgia came largely from outperforming Hillary Clinton among that demographic.  These voters are in play.  It would be a mistake to give up on them.  One path toward winning the political conflict is lowering the intensity of the cultural one.

Greenhouse doubts the workability of my suggestion that wedding vendors – bakers, florists, and the like – be permitted to discriminate if they are willing to bear the cost of publicly disclosing their discriminatory behavior.  “It’s easier to imagine that a jurisdiction adopting such a proposal as law would be promptly greeted with a lawsuit challenging the notice requirement as compelled speech in violation of the First Amendment.”  As my book notes, some of the Supreme Court’s conservative justices have indeed shown an unfortunate tendency to distort free speech law in order to hand victories to conservative Christians.  But it is hard to imagine how the Court could sustain a First Amendment challenge to a compulsory disclosure rule without invalidating every requirement for warnings on dangerous consumer products.  I doubt that they would go that far.  (Well, maybe some of them, but I don’t count five votes.)

I know a lot of people of good will on both sides of this fight who would like it to stop.  A book like mine is always an exercise in speculation: a vision for coexistence that might or might not – who knows? – persuade a sufficient critical mass of the audience to try it out.  Political proposals are like Broadway shows: you can’t know until you put it in front of an audience whether you have a hit or a flop.  The conflict will be inevitable only if we give up trying to end it.

Are the Phantoms Real?

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Anya Bernstein & Cristina Rodriguez 

            In Phantoms of a Beleaguered Republic, Steven Skowronek, John Dearborn, and Desmond King artfully juxtapose two central features of the conservative legal movement’s decades-long attack on the administrative state: the shadowy bureaucrat wielding obstructive regulations on the one hand, and the empowered president who reins in such unaccountable power through tight control of the executive branch on the other. In President Donald Trump’s distorted conception of the office he inhabited for four years, our national administration became the “deep state” – a term previously used to deride behind-the-scenes military control of civilian government – conniving to thwart the all-powerful CEO of the country. Phantoms well illuminates these two poles of today’s conservative legal theory (at least in its conspiratorial version). And it disrupts that theory, highlighting the benefits of depth to a well-run government. At the same time, by taking on the conspiracy theory’s juxtaposition as its own frame for analysis, the book also misses the way that presidential administration doesn’t just undermine or challenge administrative depth, but also participates in and re-enforces it. 

            As the title suggests, the book presents both the deep state and the unitary executive as ideas that haunt our conceptions of and debates about government. As a narration of conservative legal theory, that’s fair enough. The authors then complicate the notion of “depth,” pushing it from its original implication of an unauthorized shadow hand controlling the entire enterprise to a more positive notion, one that values the widespread development of experience, expertise, and ethics throughout the bureaucracy. They then pile disturbing accounts of Trump’s efforts to enervate the state on top of one another, contending that his administration has “shown us the full implications of a unitary executive, . . . turn[ing] electoral decisions into an iron cage in which the rest of us are trapped.” Phantoms at 195. 

We would push the analysis further to underscore that one side of the deep-state-vs-unitary-executive juxtaposition is more phantasmagoric than the other. To be blunt, expertise and experience in our state is in fact deep, and we agree with the authors that this depth is a good thing. But our executive has never been unified. Indeed, even President Trump’s attempts to centralize power hardly comported with unitary executive theory’s acknowledgment of the president’s constitutional—rather than autonomous—role in faithfully executing the laws. What is more, the political influence that runs throughout the administrative state is not always or even primarily ominous and malign, as the unitary specter implies. 

            To begin with the rehabilitation of depth: “Administrative power in America does not easily conform to tight hierarchical lines of control, but it has sunk deep roots into the nation it serves.” Phantoms, at 15. What a Trumpian skeptic regards as a threat (perhaps to private profit, or to presidential power) is in fact, in the authors’ telling (though more by implication than by direct argument), part of the virtue of our vast bureaucracy—the expertise to make government run and approximate the truth through data and science; the professionalism to hew to statutory authorities; the judgment and strength to resist impetuous whims. Rather than simply choosing between deep state and unitary executive, the authors suggest, we need to decide “whether we value what depth has to offer.” Phantoms, at 195. 

            And value it we should. No modern state can operate, much less promote the welfare of its people, without the kind of depth the authors describe. The unitary executive, on the other hand, is the true phantom in this story. It is a fictional impossibility, a formal invention with no corporeal form. The Trumpian depredations catalogued with flair in the book are pretenses to totalizing control, but they are also tantrums—tantrums with consequences, sure, but not the organized beginnings of a complete takeover. Depth, combined with breadth and complexity, make it well-nigh impossible for a president to centralize and control the entirety of the state. That would require levels of discipline not held by our previous president, as well as unlimited time to avoid the inevitable difficulties of setting, and the inevitable conflicts of then acting on, practical priorities. Meanwhile, any such attempt at single-handed power is also complicated by the overlapping jurisdictions and competing interests of dozens of agencies; the dispersion of statutory mandates authorizing and requiring administrative actions; and just the sheer number of things the government does. The myriad people and institutions involved in government decisionmaking, the range of roles they occupy in the process, and the complexity of their relationships to one another all constrain the possibility of unifying the executive branch. Ours is a decidedly fragmented executive. 

At the same time, presidential and political influence do reach the far corners of the state. The thousands of political appointees who populate the executive branch, often supervising career officials, are simultaneously officials of an elected political regime and also close collaborators with the civil servants who provide the depth that the book describes. Career officials and political appointees are sometimes presented as oppositional forces—competing representatives of the very phantoms that Phantoms discusses. But when you get them talking about their work, another pictures emerges. 

In our own work together, conducting interviews with dozens of administrators from across the federal government—civil servants and political appointees alike—we found neither a unified executive nor a bifurcated power struggle, but an integrated, differentiated state. Our interviewees described the two groups as contributing different kinds of approaches to government and holding different kinds of responsibilities within the bureaucracy. Civil servants were seen to offer institutional memory, subject matter knowledge, technical expertise, and a feel for regulatory practicalities. Political appointees brought strong policy perspectives, provided the impetus for change, and took responsibility for making the final call. 

These two types of officials, in their respective roles, work together in decisionmaking. The regulatory process is complex. Career officials and political appointees provide the different—complementary and sometimes rivalrous—forms of reasoning and judgment it requires. The picture our interviewees presented is not one without conflict: many administrators expressed frustrations with their counterparts or discussed difficult decisions where the two approaches were pitted against each other. But no one suggested that one needs to, or ought to, choose between the two approaches, nor between passing whims and rigid technocracy. On the contrary, our subjects presented the political and the career—one might say the executive and the deep state—as complementary modalities. 

But while presidential influence abounds in the accounts of policy formation and legal interpretation we heard, it was seldom direct or even explicit. Our interviewees described the president as channeling priorities, not issuing orders. Indeed, many described taking their cues not primarily from the president himself, but from ideas associated with the political coalitions and interest groups aligned with the regime in power. In other words, pervasive presidential and political influence over the administrative state does not necessarily confront us with the “ineluctable question” of “whether we are finally resigned to let go of old republican values and accept a strong, hierarchically controlled presidential democracy.” Phantoms, at 201. That is because presidential influence is already integrated into our administrative state, as a diffuse but pervasive value-setting force. Rather than threatening to obliterate administrative expertise, though, presidential influence usually works in tandem with it to produce administrative actions. 

The integrated picture we have described does not account for the administrative state in its entirety, of course. Given the state’s complexity and diversity, we believe that no single model could. But our findings do offer a way to reconcile the seemingly contradictory expectations that administration be expert and independent, but also responsive to the needs and preferences of the people. The reconciliation takes place right inside the agency, in the persons of its variegated but complementary personnel. 

Phantoms does a crucial service by highlighting how destructive the unitary executive fiction can be, especially when wielded by a self-dealing president contemptuous of the institutional mediation of interests, not to mention the expertise, that the administrative state is set up to foster. And we wholeheartedly endorse the book’s call to value depth more, and more explicitly—to recognize the importance of “instilling administration with an integrity of its own” and not be beguiled by unitary executive theory’s “oddly contrived…belated push for constitutional clarity” and its strange suggestion that “the only way to figure out what to do now is to try to divine what [the framers] really meant.” Phantoms, at 201-203, 21. 

Phantoms’ discussions of the Trump administration’s soap-operatic crisis cycles powerfully demonstrate both the dangers of consolidated presidential power and its limits. The next step, we think, is to look inside the state to understand how actual presidential influence—rather than the phantasmagoric unitary executive—functions there. Our research suggests that everyday governance does not usually juxtapose conflicting, incompatible phantoms of institutional structure. Rather, it progresses through the ongoing interplay of differentiated but complementary decisionmaking modalities that express a more grounded, less phantasmagoric, version of the impulses that Phantoms illuminates. 

Anya Bernstein is Professor of Law at SUNY Buffalo School of Law, and Cristina Rodriguez is Leighton Homer Surbeck Professor of Law at Yale Law School.

Textualism and its Discontents

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Victoria F. Nourse 

Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive by Stephen Skowronek, John A Dearborn, and Desmond King (SDK) is a must read for all those who study presidential power and the Administrative State.  Skowronek has consistently enlightened the legal academy about the deep political roots of the unitary executive and this book is no exception by its eloquent and ingenious linkage of the “deep state” and the unitary executive as “twin phantoms.” 

I write for an audience of law professors to rebut a misreading common when lawyers read the work of political scientists:  the idea that law has nothing to do with our political dilemmas.  To be sure, law cannot make Presidents good, but law can legitimate bad Presidents (just take a look at the legal filings in the Trump era in Congress and in court repeated in press coverage), and it can keep a bad President’s political ideas alive, as I hope to show here, creating a self-generating and reinforcing loop between law and politics. 

So, let’s begin with a different history than that offered in the book, a legal history.  As the authors know, Donald Trump did not invent the legal theory of the unitary executive.  Lawyers who had worked in the Reagan Justice Department, typically former clerks of Justice Scalia, invented its legal foundations.   Decades later, George W. Bush famously used it to support his claims for torture.  Another decade after that, Donald Trump announced:  “It’s a thing called Article II . . . . It gives me all of these rights at a level that nobody has ever seen.”  SDK at 25 (quoting Trump). 

In my view, the authors misunderstand the constitutional theory that gave us the unitary executive. The theory goes by the notoriously slippery name “originalism,” and purports to be about the Framers, but it really amounts to something different.  First, contrary to its title, originalism as practiced on the Supreme Court is not about history, it’s about word meanings--semantics--and in this sense is anti-historical.  This explains why historians make little headway with originalists.  (If you disbelieve this, read the work of my former colleague and originalist theoretician Professor Larry Solum).  Second, the problem with the semantic theory, aside from the fact it hyper-focusses on tiny bits of language (see the Supreme Court’s focus this Term on “a” and “so”) is that the method allows the interpreter to resist the calls of ordinary legal reason:  it assumes that text can override past and future experience. 

Trump’s lawyers revealed what I call the “authoritarian strain” to textual originalism.  The authoritarian strain depends upon the idea that text controls, it trumps [pun intended] whatever else the interpreter may consider (precedent, consequences etc.).   The textualist judge simply says “the text made me do it.”  (See Justice Gorsuch’s opinion in Niz-Chavez this Term on the meaning of “a”).  The text commands the judge to decide X, whatever the consequences and legal precedent.  This upends traditional common law constitutional modalities.  In my view, the traditional constitutional modalities are gussied up in legal lingo, but they describe “ordinary reason.”  When ordinary people decide on a course of action, they think back to what they have done before (past precedent) and what consequences their action will have (future precedent).   Even Members of Congress use the constitutional modalities, see my forthcoming book on The Impeachments of Donald Trump, West 2021).  But constitutional textualists refuse to look at consequences and claim that text trumps precedent (see District of Columbia v. Heller).  To sum it up:  exclusionary textualism is at war with reason and experience.  (Which explains the current fracturing on the Court over textualism, and why there are so many faint-hearted originalists, doing what their theory tells them not to do.) 

The authors write that the textual arguments are evenly balanced on the question of a unitary executive (SDK at 33), but they are not, they are gerrymandered.  The interpreter focuses on Article II’s vesting clause, completely disregarding Article I, and Congress’s powers to create the executive branch (for a textual response, see my colleague John Mikhail’s work and my own).  This decontextualization of the President, the very act of interpretation--pulling a small part of Article II out of the Constitution entire--creates the legal idea of the unitary executive.  Once the President is isolated in the interpretive imagination, one no longer sees anything else, including Article I and Congress. Experience, and Skowronek’s own work, should tell us this gerrymandered view must be false. There would be no Administrative State without Congress, no departments, no bureaus, no civil service. The President would be literally alone, with no one to assist him, as members of the First Congress knew quite well.   The unitary executive is thus an excellent example of what we see with textualism more generally, which is that it gerrymanders constitutional text.  (See Eskridge & Nourse, forthcoming NYU). 

Unfortunately, too many have accommodated the interpretive approach generating the unitary executive.  A la Justice Kagan, they believe that “we are all textualists and originalists now.”  History and life tell us that things banal and true at one level can turn dictatorial and dangerous when transplanted to another (think:  genetics transformed to eugenics).   The key to the danger lies in what the textualist excludes, not recourse to text itself.  And that helps to explain why the unitary executive as a legal phenomenon did not die in the George W. Bush Administration, as many liberal law professors believed.  It came right back to legal life in the Trump administration because textualist and originalist lawyers believed its method was undeniable.  We should have been able to predict this resurgence not simply because presidents have an incentive to aggrandize their power:  the theory of constitutional interpretation undergirding the unitary executive is theoretically impervious to experience.  Exclusionary textualism seeks to triumph over past precedent and future consequences.  No matter that in the Steel Seizure case, in 1952, Justice Jackson warned that the vesting clause theory was “totalitarian,” no matter that Trump demonstrated the dangers of “I have Article II” on a daily basis.  Article II’s vesting clause and three little words “the executive power” makes it so. 

Followers of the “text-made-me-do-it” constitutional theory do not believe that they are authoritarians, they believe that they are patriots, just following the Founders, in the name of “ordinary” people.   Anya Bernstein and Glen Staszewski call it “judicial populism,” in their forthcoming piece (Minn. L. Rev.)  Eskridge & Nourse (NYU above) agree that the move to the “ordinary” reader is populist in impulse:   the interpreter who believes she is commanded by the text is commanded by a text the interpreter too often invents in the image of the “people.”   The unitary executive is justified by greater “accountability” to a phantom people, even though it seems entirely doubtful that the people have any clue about this doctrine other than it helped justify torture. Populists around the world claim power on behalf of the people, but it is too often an “imaginary” people made in the image of an authoritarian leader. 

When I agreed to do this review, I considered the fact that the Supreme Court would, despite the violent Trumpian aggrandizement of presidential power, come out with decisions in June that would, like whack-a-mole, resurrect some of the basic ideas of unitary executive legal theory.  And, that’s precisely what has happened:  Unlike Justice Scalia who famously misquoted the Constitution to say that the president has “all” executive power, the Court now says the President is “alone” the leader of the people.   Again, the word “alone” is not in the text, although some Justices still coin it (see Gorsuch, J. concurring in Arthrex).  In Arthrex and Collins v. Yellen, the Court granted more constitutional power to the President.  The Justices believe that the text commands it to restructure agencies in the Administrative State. Displaying the populist’s Manichean tendency, and misquoting the Federalist Papers, exclusionary textualists believe that the President is good and the Congress bad.  No amount of history, nor a political explanation of the origins of the legal theory, is likely to change those views, because they are grounded in a deeper methodological commitment.  For the current Court, Article II’s vesting clause makes it so. 

The premise of the new Skowronek book is elegant and true as a description of political dilemmas facing the Administrative State.   But the description does not lead to any confident predictions other than that Presidents will find the unitary executive helpful.  For what it is worth, my prediction is that Joe Biden’s Justice Department will not embrace the unitary executive, even as he struggles to control the Administrative State and even though he has an incentive to deploy as much power as possible. Why?  First, he once fought a highly public battle against originalism, and won (the Bork nomination).  Second, he ran for President precisely because he saw the Trumpian threat and aims to rebrand “depth” as “public service.”  Third, he respects the power of Congress; the Senate was his life.  Of all Presidents, he is likely to appreciate that the real political target of the unitary executive is at least as much the defanging of Congress as it is the empowering of Presidents. 

Victoria F. Nourse is Whitworth Professor of Law at Georgetown Law Center. You can reach her by e-mail at Victoria.Nourse at law.georgetown.edu. 

Don't Count the Constitution Out of the Deep State Battle Yet

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Paul Gowder

Skowronek, Deaborn and King carefully and insightfully describe the history and present of a conflict that can read, variously, either as between "good government," represented by administrative stability and expertise, and democratic legitimacy, represented by the plebiscitary presidency; or as a conflict within different conceptions of democratic accountability---with the administrative "deep state" standing in for Congressional authority to regulate the executive branch with laws and processes rather than by the will of the current occupant of the Oval Office. However imagined, one of the key claims of Phantoms of a Beleaguered Republic is that the conflict can't be resolved by the Constitution, either as it is or even under the shadow of potential amendment: the existing Constitution doesn't resolve the tensions between presidency and administration/Congress (and all prior working arrangements were thoroughly extraconstitutional if not downright unconstitutional); even the deepest reforms would still require political cooperation to operate them---and it's that cooperation which we lack and whose lack sparked the crisis of the Trump years.

Yet, as political scientists are wont to do, Skowronek, Deaborn and King underestimate, I think, the importance of law to the conflict, or at least to any acceptable resolution of it. To see why this is the case, we need to look underneath the "good governance" justification for administrative depth to the vulnerability of the real human beings who so often stand underneath the (literal) gun of the unitary administrative state.

Depth and Unity

JB

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

In their remarkable book, Skowronek, Dearborn, and King speak of twin "phantoms": The first is the Deep State. The second is the Unitary Executive.

Phantoms are ghosts. Ghosts are not real, but they scare people all the same. Phantoms scare people because they disguise and distort. They disguise what is actually the case. They also distort our understanding, making what is normal or even normatively attractive into an evil bogeyman.

The book's metaphor thus suggests that behind the twin phantoms are two far more respectable doppelgangers. The phantoms are frightening, distorted versions of these two models of American governance.

What are those two models?

“A Shining City on a Hill”: The Unitary Executive and the Deep State

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Steven Gow Calabresi

I respectfully disagree with the title Phantoms of a Beleaguered Republic:  The Deep State and the Unitary Executive, just as I disagreed with the title eleven years ago of Bruce Ackerman’s book: The Decline and Fall of the American Republic (2010).  Both titles are just plain wrong.  The American Republic is a rising power in the world, and it is not in any way beleaguered or in a state of decline and fall.

In fact, the U.S. Constitution, as amended, works so well that it has made the United States what President Ronald Reagan once called “A Shining City on a Hill.”  We are a beacon of liberty and democracy to our NATO allies, to the peoples of Ukraine and Taiwan, and to our East Asian Allies.  Millions of people would leave Asia, Africa, and Latin America to live in the U.S. if they could.  No Americans are leaving the U.S. to move to Canada or New Zealand or Switzerland.  This tells us that the amended U.S. Constitution is a good and well-functioning document despite its age.  Consider some numbers that show just how good the U.S. Constitution is.

Going Deeper

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Blake Emerson 

Phantoms of a Beleaguered Republic offers a penetrating diagnosis not only of the Trump presidency but of long running trends in American political development and public law. Stephen Skowronek, John A. Dearborn, and Desmond King argue that the “unitary executive theory” and the bureaucratic “deep state” are bound together as two antagonistic, pathological extremes in American political thought and practice. The investigations and impeachments of Trump and the bungled response to Covid-19 are not anomalous. Rather they are symptomatic of an unresolved and destructive conflict between plebiscitary presidential power and the durable norms of the administrative state.

I highly recommend the book to legal academics for its insights in placing recent crises in the context of “deep” problems of the American constitutional order and state structure. The authors build on the work of public law scholars like Jon D. Michaels, Anne Joseph O’Connell, Daphna Renan, and Jed H. Shugerman, and me to disentangle the hierarchical mechanisms that implement presidential will from the crisscrossing, horizontal lines of communication that tie the bureaucracy to Congress and to civil society, and that give the administrative state some independent standing of its own. Phantoms argues that these two dimension of the executive have come apart and entered into open conflict as the scope of state intervention has widened, ideological conflict has deepened, and the party system has become centered around presidential candidates. The problem, then, is neither the deep state nor the unitary executive standing alone but rather their mutually-destructive combat.

I want to argue that, despite the author’s protestations, their argument is one that cuts fairly strongly against the unitary executive and in favor of the republican virtues of a bureaucratic officialdom working in partnership with Congress and the public at large. The problem, then, is not the antagonism between the personal presidency and the institutional executive. The problem is the constitutional structure, Supreme Court jurisprudence, and political ideology that favors hierarchy, subordination, and unilateral discretion within the executive. The anti-republican relations and mentalities that constitute the unitary executive improperly and dangerously aggrandized the president’s place in American democracy.

American Constitutionalism as Political Development

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Daphna Renan

Deeply researched and beautifully written, Phantoms of a Beleaguered Republic takes a close look at the Trump presidency and reveals “a polity driven to wit’s end by two wildly different conceptions” of what good government entails (p. 11). The Deep State and the Unitary Executive “are both distillations of ambition and fear, larger-than-life projections onto issues and arrangements that are all too real” (p. 193). As the authors recognize, either phantom—an executive branch that privileges depth or one that trains on unitary authority—could plausibly claim a foothold in the U.S. Constitution (p. 201). But it is the Unitary Executive that has assumed the “lawyer’s brief” (p. 9, 29), unfolding, in the hands of lawyers and jurists, as an argument about immutable constitutional commitments anchored in legal text and rooted in some imagined original consensus. That legalistic rhetoric has obscured and distracted from the central normative question that the twin phantoms pose—in the authors’ crisp articulation, “whether we value what depth has to offer” (p. 195-198).

In this sense, Phantoms of a Beleaguered Republic is a meditation on the perils of structural constitutional legalism as an instrument of American state-building. Indeed, the authors lament a “doubling down on the Constitution” that has made “[o]ur thinking about separation and checks . . . correspondingly narrow, rigid, and reactive” (p. 202). And they yearn for an earlier time when the Constitution got what it deserved: “a wink and a nod” (p. 201).

What I want to suggest, however, is that the problem is less American constitutionalism than the legalism that today passes for it. When it comes to the design of the state, the question need not be whether extra-constitutional measures are politically feasible. It can be a different way to understand the Constitution itself. In exposing the pathologies that our court-centric, formalist, and purportedly fixed Constitution has fueled, Phantoms of a Beleaguered Republic invites, implicitly at least, a more developmental approach to constitutional interpretation itself.

A Belated Response to My Colleagues

Guest Blogger

Alex Keyssar 

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020) – as well as Edward Foley, Presidential Elections and Majority Rule:  The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College (Oxford University Press, 2020).

First: my apology for the extraordinary lateness of this contribution to an excellent symposium.  Like Jesse Wegman, who filed his (far less belated) response in late January, I was swamped by Electoral College-related (and book-related) demands on my time from the early fall of 2020 through the unexpectedly prolonged aftermath of the election. I thought that I had finally found the space to focus on my overdue response by the second week of January, and I wrote to Jack Balkin to ask if an essay from me would still be welcome.  (He graciously told me to just send it on.)  But shortly thereafter, in the gripping aftermath of January 6, I decided to create a new spring course about the extraordinary events of that day as well as the forces and factors that had led up to the “insurrection” at the Capitol.   That course ended up consuming my energies for five months. 

Second, my thanks to Jack Balkin and to the participants in this symposium:  Jack Rakove, Sandy Levinson, Franita Tolson, Ned Foley, and Jesse Wegman.  In reading and re-reading the original  essays as well as Jesse’s astute response, I am struck by the breadth and diversity of the intellectual perspectives, as well as by the uniform strength of engagement not only with the books at hand but with the compelling problem of how to deal with a presidential election system that is profoundly flawed but extraordinarily difficult to fix.  No writer of a book could ask for more than to be included in such a conversation.  That the participants have been generous in their responses to my lengthy tome is also appreciated. 

And now a few more substantive thoughts/comments/reactions.

The Unitary Executive and the Deep State: Insights into Constitutional Change

Stephen Griffin

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

The publication of Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive, a joint effort of Stephen Skowronek, John A. Dearborn, and Desmond King, is welcome and timely.  I find their penetrating argument exemplary on many levels.  But will lawyers and legal scholars heed their analysis?

The inspiration for the book is that the Trump administration exhibited a problem that has been festering for decades with the confines of American constitutionalism – between the “unitary” claims of the presidency versus the claims of administrators and, ultimately, of Congress, to lawful control of the many departments and agencies of the executive branch.  As the authors say, “Trump raised the stakes of the lawyer’s brief for a unitary executive.  What was once a talking point for advocates of presidential power was put on full view.”  Still, they treat the unitary executive and the deep state as “phantoms.”  They are ideas about how to conduct constitutional government, not reliable descriptions of the reality of governance.  The purpose of the book is not to endorse either perspective but to understand what the unceasing conflict between them tells us about the recent past of American government and provide insight as to its future.

Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive

JB

Balkinization Symposium on Kate Masur, Until Justice Be Done-- Collected Posts

JB

Response to the Symposium on Until Justice Be Done

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Kate Masur

I begin this response with thanks, first to Jack Balkin and Balkinization for hosting this forum, and above all to the eight scholars who took time to read and engage with Until Justice Be Done. Each one had already influenced my own perspectives on history and law, and I so appreciate their attention and insights.

I’m grateful that my work seems to have spoken to readers in ways that I hoped it would. My primary aim was to write a book that illuminated antebellum struggles over racial equality and thereby cast the 1866 Civil Rights Act and the Reconstruction amendments in a new light. This meant shifting from the conventional antebellum focus on the politics of slavery and antislavery to a focus on race, rights, and citizenship. As William Novak writes, “the crisis of slavery frames this whole book,” but my emphasis is on “the distinctive rights claims of free African Americans.” As Sandy Levinson and others also note, I departed from the prevailing tendency to focus on the federal level and emphasized, instead, the state and local arenas, where jurisdiction over questions of individual status and rights largely resided. When we turn to those areas, we see in new ways how Black Americans actively participated in framing and advancing the conversation about race, governance, and law. We also see the essential role played by political coalitions in which people with varying motivations and perspectives united behind the principle of racial equality in what were then considered “civil rights.”

A different cast of characters comes into view – not necessarily the elite theorists, judges, or lawmakers who are most often the subjects of scholarship in constitutional law, but everyday people who took part in a broad-based movement that insisted that racist laws had no place in American life. As Gerard Magliocca and several others observe, this approach also entails looking well beyond the courts and even beyond voting as a means of fomenting political change. The judicial system was of limited use to reformers when state courts readily deferred to state legislatures, and when federal jurisdiction over such matters was extremely limited. Participants in the first civil rights movement therefore turned to petitioning state legislatures and using the press to draw attention to abuses. Black activists often gathered in their own organizations and published addresses to white people, calling on them to do better. I’m not the first historian to write about people like Ohioans John Malvin and David Jenkins, or the Illinoisans John and Mary Richardson Jones. But I am happy to join in elevating these individuals – and their ideas, their allies, and the causes for which they fought – and helping thereby readers understand the diversity and richness of nineteenth-century Black thought and action.

My aim was also to provide an account of how it was that, by 1860, the free states had become home to a powerful political party — the Republicans — whose leadership was willing to fight for the principle of racial equality. Fifty-one years ago, Eric Foner wrote that by 1859, Republicans generally agreed that free Black people “were human beings and citizens of the United States, entitled to the natural rights of humanity and to such civil rights as would protect the natural rights of life, liberty, and property.” Yet, few historians seemed to have noticed that this analysis contradicted the widespread view, found in the work of Leon Litwack and others, that white northerners were unrelentingly racist, even if many opposed the spread of slavery. I wanted to make sense of this contradiction in the literature and to bridge conventional boundaries of periodization to explain how prewar northern politics shaped Republican policies during the Civil War and Reconstruction.  

My interlocutors’ commentaries were generous and wide-ranging, and it’s impossible to do them all justice here, so I’ve picked out a few themes to highlight below: periodization, rights and police powers, Section One of the Fourteenth Amendment, and how change happens.