Reflections on Recent Histories of Center-Left Legal and Economic Thought

Mark Tushnet

Provoked by a tweet from Sam Bagenstos, I read Paul Sabin, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism and Elizabeth Popp Berman, Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy. I agree with Sam that the books are really important for understanding how today’s political economy took the shape it has. Here are some reflections.

The subtitles are a bit misleading. I’d forgone reading Sabin’s book when it was first published because reviews led me to think that he argued that public interest liberals made important contributions to the general discrediting of “government” that’s happened in the United States over the past fifty years. His argument and Berman’s are substantially more nuanced than that. Both do argue, though, that some liberals – Naderites and critics of bureaucratic capture by regulated industries for Sabin, centrist liberal economists for Berman – put forth ideas about “government” and its regular ways of functioning that contributed to some degree to the growth of skepticism about the ability of “government” to do good things, a skepticism that ran much deeper among conservatives and was exploited for political gain by Republicans and big business interests.

In my view (no surprise here), I think their arguments could have been strengthened by incorporating some insights from critical legal studies. I had some strange feelings when reading Sabin. Yale Law School in the late 1960s-early 1970s plays an important role in his story, and it’s disconcerting to read about people I knew then as figures in a historical narrative (though I suppose I’m used to it when reading intellectual histories of legal thought during that period, where I am one of the historical actors). I sort of expected to read a couple of pages about the contemporaneous development of CLS at Yale, then came to understand that including CLS in the narrative wasn’t appropriate for the story Sabin was telling. But, again, some CLS insights – and in particular seeing why CLS-influenced folks put themselves at some (sympathetic) distance from some aspects of public interest law – might have enhanced Sabin’s story. As I’ll note, something similar is true about Berman – though again I want to emphasize that I’m talking about deepening narratives that aren’t seriously flawed in themselves.

For me at least, the CLS take on public interest law was “Go for it, but don’t expect too much – and too many of you see public interest law as a new technocratic solution to the ills of the contemporary political economy.” At least part of the "go for it" came from the fact that I knew and sort of liked a fair number of the people who were working their way into the new field of public interest law (though I did find some others too careerist for my taste). Sabin does a very nice job of showing the deep technocratic aspirations of the most fervent proponents of environmental and public-health related public interest law. (Sabin notes the tension between movement activists and the social-welfare dimensions of public interest  law – here I’d observe that future federal judge and CLS fellow-traveler Nancy Gertner’s student law journal note was on challenges from the public interest legal community to the enforcement of limits on social welfare benefits.). He might have referred to the criticism from the left of the “new professional class” or the “professional-managerial class,” which was part of the Marxist-influenced literature rattling around CLS circles. Technocratic public interest law was, from that perspective, one route into the existing corridors of power – an important aspiration for the soon-to-be lawyers at Harvard and Yale.

(By the way, that aspiration, I think, is one reason for the hostility, particularly at Yale, to CLS – we had no interest in becoming “movers and shakers” while Yale Law’s professors thought that they and their students should do exactly that. The story at Harvard’s more complicated and, for me, intellectually more interesting, because, as Kennedy and Unger have powerfully argued, CLS threatened not the careerist dimensions of law school education but intellectual foundations that were more important to Harvard Law’s identity than to Yale’s. One reason for the absence of a CLS perspective in Sabin may be that, as his acknowledgements list shows, only one of the Yale Law professors with whom he talked – Bob Gordon – had CLS ties, and I suspect Gordon talked with Sabin primarily about the state of the profession in the relevant period than about CLS ideas.)

So, with respect to Sabin, CLS-influenced ideas about class and political power might have introduced even more nuance. For Berman, a similar role might have been played by the critique of rights. She emphasizes the disappearance, or at least eclipse, of rights-based claims about the environment and workplace safety in liberal advocacy and their replacement by efficiency-based arguments for policies in those areas. She doesn’t treat rights- or equality-based argument as a panacea, and emphasizes that such arguments tend to be more successful when associated with social and political movements (and that the weakening of unions and the rise of checkbook environmental groups meant that the rights-related arguments didn’t have such movement associated with them).

The critique of rights saw, as Berman does, successful rights-based challenges associated with social and political movements. It might have contributed to Berman’s story a deeper skepticism about the ability of rights-based arguments to form a stable basis for enduring victories (again, unless supported by social and political movements). The transformation (“weaponization”) of the First Amendment is well-known. Had public interest law managed to constitutionalize economic rights, which was one component of the overall agenda (mentioned by Sabin but not a focal point of his analysis – he is after all mostly an environmental historian), we might have seen a similar transformation (“markets are the best way to ensure the economic prosperity that enables everyone, qua market participant, to secure the basic necessities of life”).

Sam’s right that these two books really do help us understand how we got to where we are. Having recently read and reflected upon Joseph Fishkin and Willi Forbath’s book, I think that the “new political economy” folks have a solid intellectual foundation for moving forward. If only they were connected to some real social/political movement (and were more open about the contributions CLS made to their project)….

Reflections on the Supreme Court, the Senate, and Sandy Levinson

Guest Blogger

This post was prepared for a roundtable on Reforming the Supreme Court of the United States, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Vicki C. Jackson[1]

Professor Levinson has been using his powerful scholarly voice for years now to call our attention to the increasingly hard to justify mal-distribution of the Senate and the way its democratic deficits are hard-wired into our present constitutional architecture.[2] This structural defect is related to the question of Supreme Court reform. For the disjunction between popular voting and presidential electoral success, which arises because of the mal-distribution of the Senate and its carry-forward to the number of votes in the Electoral College, contributes to the present unhappy situation, as does the malapportioned Senate’s role in the confirmation process.

The U.S. stands virtually alone, among constitutional democracies with well-established judicial review by independent courts, in providing neither for a retirement age nor for a limited term in office for its high court justices. Had one looked at this issue in 1921, the United States would have had company: At that time, Australia and Canada, countries that, like the United States, were influenced by the British tradition, provided judges with indefinite tenure during good behavior.^[3] However, each of these countries amended their constitutions and adopted mandatory retirement ages for their federal judges later in the 20^th century – 70 in Australia, 75 in Canada. All but one of the U.S. states now have term limits, or a mandatory retirement age, or both, for their high court judges.^[4] During the New Deal period, and again in the 1950s, serious proposals were made (though not acted upon) for a constitutional amendment creating a retirement age for federal judges. Recently, norms about Senate confirmation have broken, increasing the risks of a confirmation process perceived as systematically skewing the Court and diminishing its legitimacy. Average tenures of the justices are increasing; and the haphazard nature of when vacancies occur have resulted in such powerfully important anomalies as President Carter having no appointments during his four-year term and President Trump (who lost the nationwide popular vote) having 3 – one-third of the Court – during his one four-year term.

Against this background, I suggest that the time has come to seriously take up proposals to limit the indefinite tenures of Supreme Court justices. Fifteen years ago I was disinclined to support proposed changes to tenure “during good behavior,” a provision that had so well secured an independent federal judiciary.^[5] This past year I urged the Presidential Commission on the Supreme Court of the United States to take very seriously the benefits of some reform and to try to seize the moment to build a consensus in favor of change towards a more sensible system of appointment and tenure for Supreme Court Justices. The Commission did not do so but I hope a coalition will emerge to act.

Partisan Entrenchment and 18-year SCOTUS Terms

Guest Blogger

This post was prepared for a roundtable on Reforming the Supreme Court of the United States, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Lori A. Ringhand

I am delighted to have this opportunity to honor Sandy and his work. So much of how I think about the Supreme Court and the Constitution has been influenced by Sandy’s work, as well as the work of so many of the other people participating in this event.

Today I am going to focus on a part of Sandy’s work that has been foremost in my mind of late: partisan entrenchment and constitutional change. In 2001 Sandy and his frequent co-author Jack Balkin published a piece in the Virginia Law Review titled “Understanding the Constitutional Revolution.” The piece laid out a way of thinking about the Supreme Court that has had a profound influence on my work. Despite our profession’s obsession with finding the perfect method of constitutional interpretation, the credibility of the Supreme Court comes not solely from its interpretive acumen but also from the long-term legitimacy it gains when its members are appointed by democratically accountable actors through the confirmation process.

LevinsonFest on Reforming the U.S. Supreme Court

Guest Blogger

Ashley Moran and Richard Albert

We are thrilled to share short papers resulting from the first roundtable discussion convened as part of LevinsonFest 2022—a year-long series bringing together scholars from diverse disciplines and viewpoints to reflect on Sanford “Sandy” Levinson’s influential work in constitutional law.

This first roundtable addresses varied options and considerations on reforming the U.S. Supreme Court, with papers from Lori Ringhand (University of Georgia) providing historical context and assessing a constitutional solution, Vicki Jackson (Harvard) affirming constitutional solutions and proposing a nearer-term statutory solution, Jill Fraley (Washington & Lee) outlining public perception risks of court packing, Samuel Issacharoff (NYU) outlining political risks of varied approaches, and Sandy Levinson (University of Texas at Austin) delving into term limits, selection, and court composition.

Future LevinsonFest roundtables will run through the spring, summer, and fall, with over a dozen panels in the works on constitutional design, constitutional crises, constitutional faith, popular sovereignty, federation and secession, popular constitutionalism, public monuments, religious diversity, voting rights, the Second Amendment, law as literature, civic education, constitutional realities, comparative constitutionalism, and more. The breadth of topics conveys the wide range of pressing issues where Sandy’s work has been instrumental.

The LevinsonFest event schedule (still-in-construction) and registration links are available on the LevinsonFest website. All are welcome to attend!

The resulting papers from each roundtable will be shared here on Balkinization after each event. We are thrilled and appreciative to collaborate with Jack Balkin in this way. Balkinization has long been an important home for vibrant constitutional discourse and Sandy’s own blogging on these topics, and we are honored to continue LevinsonFest discussions here on the blog. We look forward to engaging with many of you through these events and discussions!

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Richard Albert is the William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies at the University of Texas at Austin. You can contact him at richard.albert@law.utexas.edu.

The Constitution We Have and the Constitutions We Want

Guest Blogger

Bad political philosophy can kill you

Andrew Koppelman

Political philosophy sounds abstract and nerdy, but it is inescapable.  If you have any political opinions, then you have a philosophy and are probably acting in accordance with it.  Administrative regulations are even more boring.  Recent developments in the administration of Obamacare – are you bored yet? – show how much it matters.  The prevalence of one philosophy over another, within the federal bureaucracy, makes a huge difference to millions.

Obamacare includes subsidies for low-income workers who have employer-provided health insurance.  The subsidies become available if their premiums exceed 9.6% of their income.  But the IRS interpreted that threshold to be based on the cost of self-only coverage, even if an employee has dependents whose coverage costs much more.

 A Minnesota woman named Allie Krueger, for example, lost her job and found herself dependent on her husband’s insurance.  They badly needed the coverage because she was pregnant with twins, one of whom had a condition that would require surgery.  They ended up paying a quarter of their income for the insurance, draining their savings.  This gap in the statute, which affects more than five million people, became known as the “family glitch.”

This is the kind of technical problem that, in a normal Congress, would routinely be repaired by legislation.  But Republicans are unwilling to do anything that makes Obamacare work better.  Part of the explanation is pure political gamesmanship: as their initial opposition to the law showed, they are willing to leave massive national problems unsolved for the sake of short-term political gain.  The deeper reason, as I explained in my book on the first constitutional battle over the law, is bad philosophy – a rigid libertarianism that opposes nearly everything government does.

But the Biden administrators figured out a fix.  I explain in my new column at The Hill, here.

Common Sense Constitutionalism

Guest Blogger

For the Balkinization Symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022).

Gerald Torres

Two books sit on my desk. Each takes the same narrative trope: recovery. There exists a tradition that has been lost. Suppose we could just recover our footing, our memory, our allegiance to a better, more authentic past. In that case, we could reclaim or, more accurately, achieve a constitutional arrangement worthy of our national experiment. We could, as a people, embrace the co-constitutive nature of our governing code. The path back to the garden is as fraught with danger as the profound as the snake that led to our expulsion, but the garden exists not just in memory but in landmarks; faint though some of them are, it is our duty to map them.

I expected the books to argue, but the conversation was more polite than imagined. Despite their proximity, they did not spontaneously combust. At the level of value, if not at the level of politics, each had something to say to the other. "I will argue that the best of our traditions is that courts should defer to public determination… so long as the public authority acts rationally and with a view to legitimate public purposes: the ends of peace, justice, and abundance."[1] I suspect that Professors Fishkin and Forbath would agree with that construction and the claim that a commitment to peace, justice, and abundance is precisely the aim of the constitutional politics they advance.

To See What The Fuss Is All About

Gerard N. Magliocca

Here is Chief Justice Chase's circuit opinion in In Re Griffin. Here is my original article on Section Three of the Fourteenth Amendment, which discusses Griffin at length. And here is The New York Times essay by Professors Blackman and Tillman about Griffin.

A Reply to Mark Graber’s ‘Legislative Primacy and the Fourteenth Amendment’

Guest Blogger

On April 20, 2022, we published a 1300-word guest essay in The New York Times. We predicted that the courts would, and to a lesser extent should, dismiss voter challenges, in multiple jurisdictions, that invoked state law procedures to remove congressional candidates from the ballot. Our position was entirely based on an 1869 precedent: Griffin’s Case—which was decided by Chief Justice Chase, acting as the circuit judge for the Circuit Court for the District of Virginia. The next day, on April 21, 2022, the Superior Court of Arizona, for Maricopa County, dismissed two such election challenges. It did so after developing alternative grounds, but the first such ground was founded in Griffin’s Case. We predicted correctly—albeit any such decision is subject to appeal. And, we don’t suggest that we were the first or the only commentators to have noted the potential relevance of Griffin’s Case to these voter challenges.

Here, at Balkinization, Professor Mark Graber critiqued our guest essay. His post began:

Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States. Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3 (“Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022).

Mark Graber, ‘Legislative Primacy and the Fourteenth Amendment,’ Balkinization (Apr. 22, 2022, 7:23 PM).

We make three points in reply to Professor Graber.

The Hard Questions about Constitutional Political Economy

Guest Blogger

Constitutional Politics After Defeat: Fidelity to What?

Guest Blogger

For the Balkinization Symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022).

Ken Kersch

In Conservatives and the Constitution (Cambridge, 2019), I detailed the extent to which, long before the ascendence of legalist originalism, the postwar American conservative movement enlisted appeals to constitutional fidelity, redemption, and restoration in the public sphere to both motivate movement participants and unite diverse, and even antagonistic, streams of their incipient coalition into a potent political force.  Fishkin and Forbath’s impressively documented The Anti-Oligarchy Constitution demonstrates the extent to which, across the entire span of American political history until recently, this form of constitutional mobilization in the public sphere was constitutive, not just of conservativism, but of liberal-left progressivism as well.  It was pervasively constitutive of political struggles in the United States over questions of democracy and political power.

In a law review article several years ago, I noted that liberal and progressive appeals to constitutional fidelity, redemption, and restoration in the public sphere have, by now, for generations, been all but absent.  The prevailing assumption on the liberal-left -- articulated, for example, peremptorily in Nancy Pelosi’s flustered incredulity that anyone would raise constitutional objections to the then-pending Affordable Care Act -- is that, if the government wants to enact the policy, the Constitution authorizes and embraces it: the matter warrants no further discussion.  Fishkin and Forbath take this to be a very serious political, and constitutional, problem.

Should We Care What Kevin McCarthy Thinks?

David Super

      Recent revelations, including that Kevin McCarthy told his party’s leadership that he was going to tell former President Trump to resign, have produced a public outpouring of (somewhat confused) commentary on the Center-Left and, no doubt, rather different forms of consternation in private within the establishment Right and the MAGA Right.  This will no doubt feed the already active debate about whether, if Republicans retake the House in November, Rep. McCarthy will be the next speaker.  That discussion, in turn, assumes that the private views of the House speaker are very important. 

     This seems a good time, therefore, to consider how true that assumption might be.  Unquestionably, some speakers have been immensely powerful and have had sweeping discretion to shape public policy as they saw fit.  Speaker Sam Rayburn was legendary; Speakers Tip O’Neill and Newt Gingrich, too, wielded enormous authority in their heydays.  Speaker Nancy Pelosi has also been spectacularly effective in impressing her personal priorities on public policy.  (Her political brilliance may have been even more apparent when she was House Minority Leader.)  But will the next speaker, particularly if a Republican, have the same kind of sweeping discretion?

     The commotion about the McCarthy tapes is consistent with the current trend of personalizing politics despite abundant evidence that ideology, rather than personality, is the overwhelming driving force in our politics to a degree rarely seen before.  For example, all but three Republican senators voted against confirming Judge Jackson despite a paucity of coherent rationales.  This exertion was rather remarkable given the minimal likelihood that Judge Jackson, or anyone else whom President Biden might nominate, would cast the decisive vote on any important case or even receive particularly important opinion assignments on consensus cases.  (To complete the absurdity, senators used the vote is signal their allegiance to the “sane” faction within the Party by opting for a nonsensical reason – that she would not oppose Court-packing schemes over which she would have no say as a justice – or to the QAnon faction – by insisting that her sentencing of sex offenders, while in line with that of Republican-appointed judges, somehow made her part of a pedophilic cabal.) 

     As with Democratic Supreme Court nominees, one could argue that personal views the next Republican speaker of the House (or, indeed, the next representative from California’s 22d District) matter little:  the strength of their enthusiasm for the right-wing agenda seems unlikely to be the main factor limiting how far that agenda advances.  Moreover, a new speaker’s recognition of the danger of extremists in the Party matters little if they have repeatedly demonstrated, as Rep. McCarthy has, a willingness to look the other way to advance their personal ambition and the dominance of their Party.  This is, of course, the same Rep. McCarthy who previously said he believed Russian President “Putin pays” Rep. Dana Rohrabacher and Donald Trump and never raised a finger against either.  Indeed, one could take his statements in the latest tapes as an effort to persuade his caucus that concerns about the insurrection were being raised internally and hence that they need not go public with statements against the President or votes for impeachment. 

     I would not expect a Speaker McCarthy to exercise any moderating influence on what legislation he brings to the floor.  He will be an exceptionally weak speaker, perhaps almost comparable to Dennis Hastert, who was largely a figurehead.  If anything, because these revelations will cause many MAGA Members to presume any restraint he might exercise is a betrayal, he may have to be more unstinting in advancing the far-right agenda.  Thus, the major impact of this week’s revelations may not be to change who becomes speaker but rather to make the already pliable Rep. McCarthy even weaker and more beholden to the far right should he ascend. 

     Congressional leaders’ most important actions (like those of Supreme Court justices) are largely hidden from the public, but these actions are well-known by other Members.  Even less than a subcommittee chair, who can manipulate legislative drafting in ways other Members are unlikely to catch, speakers are constantly accountable to their caucuses and to the well-resourced outside advocacy groups that guide their Members.  Speakers thus have very little ideological discretion.  Indeed, without any coherent, visible moderate or mainstream faction in his party to speak of, he will lack the power some prior speakers had to assign legislation to committees ruled by their ideological allies. 

     Speakers in both parties, however, must arbitrate disputes within their caucuses between true believers who want to fight every battle and Members from marginal districts who want to lighten the load of unpopular votes they must explain to their constituents.  A speaker having credibility with her or his more extreme Members can better-protect their marginal ones.  Speaker Newt Gingrich and de facto Speaker Tom DeLay largely had that credibility, as did Speaker Nancy Pelosi for most of her terms.  Speaker John Boehner did not, and the repeated far-right attacks on his authority forced him to expose his Members to numerous unnecessarily embarrassing votes, both adopting extreme right-wing positions that could never become law and voting for measures negotiated with Democrats when far-right Republicans withheld their votes.  Speaker Paul Ryan was highly credible with his “’wingers” but lost the majority in 2018 when he could not reverse the undisciplined habits they had acquired under Speaker Boehner. 

     A Speaker Kevin McCarthy will be very much in the mold of Speaker Boehner, allowing pretty much anything his far-right Members support to reach the House floor.  And whatever his private views, he has proven he will not restrain any MAGA president elected in 2024.  This could undermine the longevity of any Republican House majority.   

     If the current revelations, or others that follow, sink Rep. McCarthy’s bid to be speaker, the result is harder to predict.  The most likely successor as leader of House Republicans would be Rep. Steve Scalise of Louisiana.  Rep. Scalise was inserted into the leadership to represent far-right Members, but his several years there have certainly tarnished him in those Members’ eyes.  He likely would have a bit more credibility reining in the most politically destructive impulses of his ‘wingers than Speaker Boehner or Leader McCarthy, but not by a lot.  He, too, has given us no reason to believe he would restrain a MAGA president’s extreme actions; indeed, he still denies the legitimacy of President Biden’s win. 

     Third in command currently is upstate New York Rep. Elise Stefanik, who seized her position from Rep. Liz Cheney.  Rep. Stefanik has worked hard to endear herself to MAGA Republicanism but she has a history of seeking a moderate image and has not been active in far-right caucuses.  It therefore is unclear that the MAGA faction would go to the trouble of bypassing reliably pliant Reps. McCarthy and Scalise only to settle for her. 

     If far-right Republicans install one of their own as speaker, they likely will select someone with a lower profile, better communications skills, and less baggage than Rep. Jim Jordan.  Perhaps this new speaker will claim moderation as being “only” a member of the Republican Study Committee rather than the House Freedom Caucus.  In that event, we can expect the final two years of the Biden Administration to be dominated by partial government shutdowns.  At some point, that could open huge fissures in the Party as Members from marginal seats attempt to force legislation ending the shutdown to the floor over their own speaker’s objections with a discharge petition. 

     In sum, when it is a given that any Republican speaker will be either a far-right true believer or someone without the inclination or political capital to rein in more extreme Members, it matters little whether that speaker privately appreciates the danger of the Party’s extremism.  In the near-term, a savvy speaker from the Party’s more extreme factions could better-solidify Republican control over marginal seats.  But a weakened speaker who is known to recognize the problems with Russian influence and the January 6 insurrection might provide better cover for any attempt to overturn the results of the 2024 elections (either for president or in close House races). 

     @DavidASuper1

Un-Reconstruction

Gerard N. Magliocca

In a recent post, I explained that the holding of In Re Griffin, a leading case on Section Three of the Fourteenth Amendment, cannot be properly understood without recognizing that Virginia was an unreconstructed state when the decision was made. A superior court in Arizona that dismissed a set of Section Three challenges yesterday relied, in part, on Griffin without mentioning or analyzing that point.

It's easy to criticize that omission. But how many judges or lawyers know the basics of Reconstruction? The only time that history makes an appearance in a standard law school course is Ex Parte McCardle, and even for that discussion I'm not sure there's much depth. And an interpretation by a court almost never turns on whether a state was unreconstructed or not. The issue did come up in the immediate wake of the Civil War, of course, but virtually never since then. 

The failure to include Reconstruction, as distinct from the Reconstruction Amendments, in standard legal education  creates many problems. The Supreme Court's reasoning in Shelby County, for example, comes up short in part because Chief Justice Roberts did not engage the history of the Fifteenth Amendment in his opinion. People like Mark and Kurt Lash doing great work to improve this state of affairs, but there is a long way to go.

Legislative Primacy and the Fourteenth Amendment

Mark Graber

Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States.  Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3 (“Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022).  Their claims are technically correct, but grossly misleading with respect to the original understanding of the Fourteenth Amendment and false to American practice for more than one-hundred and thirty years.

Blackman and Tillman are right to note that the Republicans who drafted the Fourteenth Amendment believed that Congress was responsible for implementing Section 3.  They fail to inform their readers that those same Republicans believed that Congress was responsible for implementing the entire Fourteenth Amendment.  Section 3 was no different than what became the more popular Section 1, which includes the citizenship, privileges and immunities, due process, and equal protection clauses.  During the late nineteenth, twentieth and early twenty-first century, the Supreme Court without objection took on the primary responsibility for implementing Section 1. The justices have never suggested that Section 3 is an exception to this practice.

The persons responsible for the Fourteenth Amendment were committed to a practice we might call legislative primacy.  Congress was expected to take the lead implementing the post-Civil War Amendments by legislation.  Courts might examine the constitutionality of that legislation, but courts were not expected to play a major, if any role independently implementing the constitutional ban on slavery or the provisions of the Fourteenth Amendment.  Legislative primacy reflected both theory and practice in the 1860s.  Many leading Republicans believed that political parties, not courts, were the primary vehicles for constitutional meaning.  Abraham Lincoln in his first inaugural address insisted that the people through elections had the right to challenge Supreme Court decisions.  As important, a Supreme Court staffed by a number of holdovers from the tribunal that declared in Dred Scott v. Sandford (1856) former slaves could not be American citizens was hardly likely to lead a crusade for racial equality after the Civil War.  If the Fourteenth Amendment was going to be implemented, Congress would have to do the implementing.  Every member of Congress knew this.

Representative John A. Bingham of Ohio, the person most responsible for Section 1 of the Fourteenth Amendment, frequently expressed his commitment to legislative primacy.  Bingham’s speech to the House of Representatives on February 28, 1866 championing only the need to augment congressional authority to protect fundamental rights. He informed fellow representatives, “The question is, simply whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by the Constitution?  That is the question, and the whole question.”  Bingham did not change his tune even when the Joint Committee on Reconstruction deleted the reference to “Congress shall have power” in Section 1 and moved that clause to Section 5.  Bingham still insisted that the point of Section 1 was to give Congress “the power . . . by congressional enactment . . . . to protect by national law the privileges and immunities of all the citizens of the Republic.  No member of Congress explicitly asserted a judicial power to implement any provision in the Fourteenth Amendment.

Republicans assumed legislative primacy during the early 1870s when debating what became the Civil Rights Act of 1875.  The original version of that bill included a ban on school segregation.  Many members of Congress, most notably Senator Charles Sumner of Massachusetts, enthusiastically supported federal legislation prohibiting race discrimination in public schooling.  Others insisted that provision be deleted.  No member of Congress suggested that the Supreme Court might declare school segregation unconstitutional in the absence of federal legislation.  Both proponents and opponents of the provision on school segregation assumed this constitutional decision was for Congress to make.

The Supreme Court confirmed that legislative primacy was the law of the land in Ex parte Virginia (1879).  Justice William Strong’s majority opinion denied that the Fourteenth Amendment was self-enforcing.  He wrote., “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed.  it is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions.  As Bingham had insisted, the Fourteenth Amendment empowered Congress, not courts.  Strong continued, “It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.”

The Supreme Court and Congress almost immediately forgot Strong’s words.  By the turn of the twentieth century, the Supreme Court was vigorously wielding the Fourteenth Amendment to strike down state laws.  Contemporary justices, both conservative and liberal, as aggressively wield the Fourteenth Amendment today.  Judicial conservatives do not ask permission from Congress when declaring bans on guns or affirmative action unconstitutional.  Judicial liberals as freely exercise independent judicial power when striking down bans on abortion and laws discriminating against same-sex couples.

When championing legislative primacy, no member of the Congress that drafted the Fourteenth Amendment distinguished between Section 1 and Section 3.  Neither the participants in the debate over the Civil Rights Act of 1875 nor the justices that decided Ex parte Virginia thought the rules for implementing Section 1 differed from Section 3.  No Supreme Court justice who has asserted independent power under Section 1 to strike down legislation has ever suggested that institutional responsibility for implementing Section 3 is different. 

There is no difference.  Judges who swear off implementing Section 3 are on principle obligated to swear off implementing Section 1.  This means liberals must abandon Roe v. Wade and conservatives must accept affirmation action and gun control laws.  Indeed, if we are to harken to calls to respect the original understanding of the Fourteenth Amendment, the same courts that refuse to disqualify persons from public office who participated in the January 6, 2021 insurrection will on principle be obligated to reverse the Supreme Court’s decision in Brown v. Board of Education (1954), which was also based on the independent judicial authority to interpret the Fourteenth Amendment Blackmon and Tillman would have the courts abjure.