Politics and Legal Arguments Can Coexist: a Reply to Drall and Moyn

Guest Blogger

Paul Gowder

Constitutional practice, whether in the courtroom or in the academy, has lots of problems, but one of the main ones is dealing with its dual character as law and politics. Perhaps that’s a controversial claim—certainly it would be controversial to a pure legal realist or an attitudinalist across the hall in political science. I guess it might be controversial to a classical formalist too, but I’m not convinced any of those still exist.

Outside those fairly small groups, I take it that we mostly agree that constitutional law is political in virtue of the following two features (at least):

(1.a) The outputs are influenced by politics. That is, judges’ and justices’ decisions depend in part on their ideology; and

(1.b) The inputs are influenced by politics. That is, the legal arguments that advocates make are influenced by, among other things, social movement advocacy, doctrinal entrepreneurship (the most famous recent example, which Drall and Moyn discuss at length, being the surprise impermissibility of ordering people into commerce), and extended programs of strategic advocacy and theory-building motivated by political goals, whether carried out by Charles Hamilton Houston, Ruth Bader Ginsburg, or Leonard Leo.

I take it that we also mostly agree that constitutional law is legal in virtue of the following four features:

(2.a) The enterprise is conducted in the language of law and legal reasons. Lawyers and judges aren’t permitted to just say “because I said so” or “because I’m a Republican”; those constraints establish outer bounds on the permissible positions one might take. For obvious examples, reestablishing chattel slavery, banning the Republican Party, or electing a 19-year-old president are off the table, regardless of one’s politics—but so are many less extreme things. We can call this the “minimal baseline” of constitutional law as law.

(2.b) Regardless of whether or not one thinks that constitutional arguments have truth value (one of my skeptical Northwestern colleagues regularly insists in the faculty lounge that they don’t), constitutional arguments can be better or worse than one another for legal reasons, either with respect to some higher-level interpretive theory (one can do originalism better or worse) or with respect to the minimal baseline (any argument that entails that Dred Scott is still good law is, all else being equal, worse than an argument that does not do so).

(2.c) As a consequence of the previous two features, it is sometimes impossible for a participant in the enterprise of constitutional law, who takes that enterprise seriously and in good faith, to defend their preferred political outcomes from within that enterprise. I happen to think that the malapportionment of the Senate is terrible, outrageously unjust, and undemocratic, but there is no good faith pathway for me to argue that it is unconstitutional.

(2.d) The previous three features are valuable for all of the standard reasons that people defend the practice of constitutional law (for example that it limits the stakes of ordinary politics, or that it permits certain kinds of democratic coordination), and legal professionals of all kinds are rightly subject to criticism, from within the norms of constitutional law, for undermining them, including by intentionally trying to make the worse arguments appear to be the better.

If those things are true, then 2.c-d constitute a normative limitation on 1.b. Consider a concrete example. I might convince some rich people to fund an organization dedicated to spending a few decades seeding the idea that the First Amendment permits the government to ban a political party if that party has veered in a sufficiently authoritarian direction. But doing so would be a violation of the (justified) norms of the social practice of constitutional law.

That isn’t just a crazy hypothetical. Recall that other liberal democracies, most notably Germany, have banned political parties associated with world-historical evils or the collapse of their own political liberty. It might very well be the case that banning the Republican Party or at least a kind of forced de-MAGAification would be the all-things-considered best way to restore our democratic order, consistent with the insights of the position known to other fields as militant democracy. Nonetheless, I would be rightly subject to harsh professional criticism for arguing that the First Amendment permits such a thing.

Claiming that the First Amendment permits full-fledged militant democracy would be improper—a betrayal of the enterprise of constitutional law and the role morality of a legal scholar—even if such entrepreneurship ultimately succeeded and the bad arguments convinced some court to agree. Because any arguments for banning a political party being constitutionally permissible would be extraordinarily bad, articulating them wouldn’t even be playing by the rules of constitutional law at all. (To be clear, I don’t claim that this is true of all bad constitutional law arguments. Rather, the claim is that there is a degree of badness beyond the pale of permissibility—and for the sake of argument it seems safe to assume that any conceivable argument for the permissibility of banning a political party under our current constitution would reach that degree of badness.) Instead, it would be dressing up a policy or even a political argument as a legal argument, an act of bad faith and dishonesty.

That doesn’t mean that I can’t argue for banning the Republican Party. I might argue that we need to amend the First Amendment, or disobey it, or even that we’re in a Civil-War-esque constitutional rupture where the ordinary rules go out of the window. But I may not legitimately argue for banning the Republican Party from within normal constitutional interpretive methods.

What then is the obligation of the rest of us when someone violates that normative limitation by engaging in constitutional entrepreneurship so beyond the pale that it ceases to be constitutional argument at all? This quite naturally brings us to the problem of birthright citizenship and to the second post by Pranjal Drall and Samuel Moyn in these very “pages” on that subject.

Drall and Moyn seem to think that those of us who have attempted to argue against what they characterize as the “revisionist” movement on the right have erred. (In the first post they accuse us of LARPing. Ok?) But it’s far from clear what the error is. They divide us into two groups.

The first group consists of those who have in some sense taken the arguments of the likes of John Eastman and Ilan Wurman seriously and chose to address them in what Drall and Moyn call “ordinary scholarly terms.” Folks like Keith Whittington have written careful arguments from within the idiom of originalism, qua the interpretive approach claimed by most of the opponents of birthright citizenship and a majority of the Supreme Court. Non-originalist historians like Martha Jones have aptly pointed out that the task of interpreting the Fourteenth Amendment ought to have something to do with what the Black people who fought for citizenship were trying to do. But for Drall and Moyn this comes off as some kind of delusion. Careful originalists like Whittington are accused of trying “to live a current political struggle as a star-crossed quest for an apolitical and determinate answer about how the past bears on the present,” while the historians “are tempted to mistake apolitical professionalism for a guarantee of determinate results.” (That one’s particularly odd. I’ve never once met a historian who has been willing to concede that looking to the past yields “a guarantee of determinate” anything.)

In the other group are “Professors Evan Bernick, Anthony Michael Kreis, Jed Shugerman, and other allied liberal and progressive critics” (by that last clause Drall and Moyn appear to mean, uh, me) who recognize that there’s a political game afoot and have been willing to say so. The members of this second group, according to Drall and Moyn, have done something “far less defensible”: we’ve recognized, openly and explicitly, that there’s politics going on, and have nonetheless allowed ourselves to be “drawn onto the terrain of those they initially dismissed as incompetent or ridiculous–as if there was no other choice for responding to the legal politics of their enemies.” As far as can be discerned, what being “drawn onto their terrain” amounts to is addressing their legal arguments—showing, for example, that they get the history wrong or that they hold themselves to the standards of originalist methodology but fail to meet those standards. (By post three it becomes impossible to tell whether the problem is that we’re making legal arguments at all or that we’re entertaining the originalist sort in particular: Drall and Moyn decry “responding to the argument on legalist and originalist terms,” as if doing one is just as bad as doing the other.)

This is really puzzling. If anything resembling the model of constitutional law’s dual political and legal character that I sketched above is true, then the reason that the anti-citizenship position is so incompetent and ridiculous is because the arguments are so bad. Claiming that the position is incompetent and ridiculous is a kind of promissory note redeemed by carefully pointing out the way that the arguments fail. That’s our literal job.

Moreover, the evidence for the arguments being nakedly political again goes through their badness. There’s other evidence too, of course, like the fact that that all these old rejected arguments suddenly got rediscovered right after Donald Trump issued an executive order. But if the arguments were reasonable interpretations of the law then a charitable interpreter might nonetheless conclude that they were sincere efforts at filling out the content of our shared legal commitments. Because they’re not reasonable interpretations of the law, it becomes much more plausible to think that they’re just naked power grabs by one political team. (For the same reasons they at least raise the suspicion of outright corruption, that is, that at least some of the people making arguments against citizenship are doing not out of honest belief but out of a desire to demonstrate loyalty to the guy who currently has the power to hand out fantastic life-tenured patronage jobs.)

In other words, the whole enterprise of recognizing that constitutional law is operating in this case on the political rather than the legal end of the spectrum depends on critical engagement with the claim by its politicizers to be doing something lawlike.

Moreover, why are Drall and Moyn so confident that the effort by the birthright politicizers to shift the Overton window to include their lousy arguments was successful? Isn’t it a good idea to contest those efforts, by, yet again, carefully pointing out how those arguments fail even on their own terms? Put differently, why on earth would recognizing the attack on birthright citizenship as nakedly political oblige those who wish to defend it to cede the “terrain” of legal argumentation to its betrayers?

Ultimately Drall and Moyn are playing coy with us, hinting that there is, in their words, some “other choice for responding to the legal politics of [our] enemies,” but never bothering to say what that other choice is. I can’t help but suspect that the reason is because the other choices are all far from satisfactory.

Even in Part 3, where we had been promised the strategy, what Drall and Moyn tell us to do is to “argu[e] for birthright citizenship politically and in principle.” But that’s not a strategy, it’s just a platitude.

First of all, there isn’t any particular reason to think that the people on the other side of our current politics (including the majority of the Supreme Court), who by Drall and Moyn’s assumption are uninterested in whether or not the legal arguments are any good, are going to be any more interested in hearing arguments from principle.

Second, we have been offering arguments from principle with our legal arguments. For example, in the paper that Anthony, Evan and I wrote, we not only argued that the “revisionists” have done their history and their originalism badly, we also argued that poking holes in the longstanding and traditional rule of birthright citizenship would undermine the stability of citizenship itself and all kinds of other legal rights, creating huge amounts of arbitrary power to be turned on the vulnerable. We also directly argued against the weird kind of moralizing that some of the advocates of ruining birthright citizenship have offered: both Epstein and Vermeule have claimed that birthright citizenship somehow confers a morally objectionable reward on a wrongdoer, but we explained that this position both rests on a confused and bigoted understanding of undocumented immigrants (the empirically false premise that undocumented immigrants are all people who snuck across the border to procure some illicit benefit) and amounts to punishing children for the sins of their parents. That’s an argument on the domain of principle.

Similarly, the Jones/Masur amicus brief that Drall and Moyn seem so skeptical of makes the principle underneath the Black struggle for citizenship clear. They remind us that

Douglass and other free Black Americans knew precisely why their long-held vision for a sweeping, democratic birthright principle needed to be written into the Constitution: without it, the whims of political authorities would govern citizenship, and large groups of American-born people might be deemed non-citizens and therefore subject to removal or banishment from the country without process or cause, to arbitrary arrests, to exclusion from courts, and other abuses.

Some of those who chose to engage with the legal process went further. The U.S. Conference of Catholic Bishops submitted an amicus brief that outright argued that the Catholic principle of human dignity required the preservation of birthright citizenship. All of those examples are arguments about principle, not merely the technical machinery of originalism or anything else that Drall and Moyn are so against.

Third, why does it have to be one or the other? Can’t we hold two or even three thoughts in our heads at the same time? The arguments for undermining birthright citizenship are garbage, legally speaking (even from within originalist methodology) and they would create a moral and practical catastrophe, and  they’re dangerous politically speaking such that we need to be making political alliances to stop them because once you start down the pathway of declaring that some people lose their citizenship you very quickly end up conferring on racists and fascists the power to kick out anyone who they don’t like. Those are all true.

Liberal and progressive legal scholars don’t need to be a monolith. Drall and Moyn suggest that engaging directly with the arguments of the other side “requires collusion on interpretive method, which moves our jurisprudence to the right.” But there is no “our jurisprudence.” We have multiple jurisprudences. Forgive me for once again using the paper that Evan, Anthony and I wrote as an example. The three of us, progressives all, have almost entirely disjoint approaches to the field of constitutional law. Evan’s a serious originalist who has co-authored with Randy Barnett. Anthony’s expertise and focus is more aligned with traditional historians, to the point that he’s a fellow of the Royal Historical Society. And I’m a political theorist who thinks the right way to do constitutional law starts with the problem of democratic legitimacy and that this requires an explicitly radical, tactical and reconstructive approach to the past. (I did not sign participate in any amicus brief because I’m pretty sure my views would make the current Supreme Court majority recoil in horror.) The paper we wrote quite self-consciously aimed to demonstrate that the case against ruining birthright citizenship can be made from all three standpoints, and while simultaneously “call[ing] out the revisionism as a political project rather than a scholarly one, and … attack[ing] the good faith of the elite legal actors on the other side pretending otherwise.”

Right now we’re in a moral and political catastrophe, and the other side seems to think that their bad legal arguments are going to help them perpetrate that catastrophe. They are deploying frivolous legal arguments in order to hurt the most vulnerable among us, in witting or unwitting league with a racist political movement that believes that immigration is a conspiracy to turn American culture non-white and non-Christian for unspecified nefarious purposes. (One thing that Drall and Moyn notably lack is a theory of why the other side feels the need to make all those arguments if they’re just epiphenomenal.) Assuming that our —under the circumstances I’ll go along with the troublingly Schmittian language that Drall and Moyn use and say—“enemies” are not fools, and experience those arguments as serving some function, even if merely permitting the Supreme Court (if it turns out to be inclined to decide in their favor for political reasons) something plausible-sounding to say to explain its abuse of power. But then it requires something more than postmodern ironic distance to justify letting them offer those arguments uncontested.

In response to this, Drall and Moyn seem to think that somehow contesting the bad arguments makes the matters worse. Post 3 contains the clearest statement of this position: “We seem to forget that the revisionists do not need to win the argument cleanly. They just need the argument to be plausible and liberals, by responding to the argument on legalist and originalist terms, make it easy for the Supreme Court to treat it as an open question.”

But how precisely is that supposed to work? The (frivolous) legal arguments have already been uttered. We can’t stuff them back into Pandora’s box by ignoring them. Right now the choices available to us are to let the legal arguments go unanswered or to answer them.

If we simply let them go unanswered, the right-wing Supreme Court majority, should it be so malicious as to wish to rule against the newborns, is free not only to “to treat it as an open question” but even to treat it as a question that is settled the wrong way—to say “oh, well everyone kind of assumed after Wong Kim Ark that birthright citizenship applied to the children of undocumented immigrants, but only because nobody did the research to check. Now our far-right originalist buddies have actually looked in the archives, and lo and behold, it doesn’t. Case closed!”

By contrast, what is the consequence of answering the arguments? Drall and Moyn sometimes write as if doing so lends them some kind of legitimacy, sort of like the legend about Lyndon Johnson once spreading a nasty sexual rumor about one of his opponents and a pig in order to “make the sonofabitch deny it.” But that’s not plausible. Neither Donald Trump nor Samuel Alito are likely to conclude that the arguments of their allies become more plausible because we feel the need to respond to them. As our host pointed out a few years ago in The Cycles of Constitutional Time, one of the features of our current constitutional crisis/rot is that the elite social networks of the bench, bar, and academy have split, so that Sam Alito is much more likely to care whether Randy Barnett says his arguments are plausible than whether I or Sam Moyn do.

Permit me to suggest that there are two more hopeful possibilities for what might come of our deigning to respond directly to the arguments of the other side:

(1)  The most hopeful possibility is that our arguments might have some effectiveness on the margins. Even modeling them as pure political actors, Supreme Court justices could have preferences over multiple political dimensions—for example, their preferred policy outcomes and their perceived legitimacy. John Roberts and Amy Coney Barrett might prefer to create a bunch of stateless newborns, but their preference for doing so might be insufficiently intense to overcome their reluctance to subject themselves to public embarrassment by signing on to legal arguments that are demonstrably (because we’ve bothered to demonstrate it) garbage even from within their own preferred interpretive theory.

(2)  The less hopeful possibility is that at least a malicious Supreme Court majority would be forced to say visibly dumb or wicked things in order to confront our arguments (if only because they’ll be in Justice Sotomayor’s or Justice Jackson’s dissent). Doing so would at least be better than the alternative, for those visibly dumb or wicked things can then provide the basis for future political and legal action down the line, when the political environment is more favorable. We can build a record for the case to be reversed.

To be clear, I absolutely agree with Drall and Moyn that we need to be doing politics in addition to law. As we all know, the domain of possibility for the Supreme Court is constrained by what other officials and ultimately the general public are willing to accept. But that doesn’t mean that it’s a good idea to ignore the legal arguments.

One big problem is that pure politics about basic questions of membership and civic identity without the guardrails of law tends to very quickly devolve into gunplay. Indeed, as the commentators from diverse political teams who have compared the anti-citizenship position to Dred Scott might observe, we had a whole Civil War the last time the Supreme Court and raw politics conspired to create a class of internal stateless without the rights associated with citizenship.

It may be that things are so bad that we’re on the gunplay path anyway. But that doesn’t mean we have to give up on all efforts to avoid it. Forgive me for thinking that part of the point of the Fourteenth Amendment and our generally positive attitude toward it is to not give the Confederates a do-over. Relatedly, I also don’t quite understand how you consolidate the gains of the gun-toting kinds of politics without being willing to at least sometimes do constitutional-law-as-law. I had been under the impression that another big part of the point of the Fourteenth Amendment—albeit one that did not manage to take hold even partially for many decades after its enactment—was to permit the Freedpeople and their Unionist allies to set the guns down.

Moreover, even agreeing, as I do, with Drall and Moyn that political contestation and arguments from principle are necessary components of the fight against the mad movement to create a bunch of stateless newborns, there isn’t any particular reason to think that their audience—a bunch of law professors and historians—has any particular comparative advantage in doing principle or politics. What are we supposed to be doing right now?

One approach, characteristic of a certain kind of legal realism/critical legal studies pose, is to gaze down on the whole thing with a kind of Olympian detachment, like an old-school anthropologist observing the quaint customs of the tribe that call themselves “constitutional lawyers.” (Or, god forbid, “liberals.”) Look at how they use all those magic words and pretend that they have meaning. We, the enlightened ones, know that it’s all just superstitious ritual meant to propitiate the gods because the tribesfolk are too primitive to understand that the real cause of the crop failure and the fascism is the means of production or something. Maybe this also counsels engaging in some kind of political critique of the enterprise of conditional law altogether. In the first post Drall and Moyn go so far as to dismiss the enterprise of offering legal arguments as “legalist,” as if that’s a bad thing or some kind of tragic concession to the other side.

At its worst, the Olympian approach to constitutional law just amounts to the neglect not only of the internal point of view on the business we’re all in but also of the real human beings who are hurt by it. We can tut-tut at the libs and their false consciousness and praise ourselves for not sullying our lips with anything so clueless as constitutional legal argumentation while ICE drags babies straight from the maternity ward and puts them on a plane to whichever dictatorship has a sweatshop with room for them.

At its best, the Olympian approach to constitutional law might be paired with some putatively effective mode of extra-legal political action. Perhaps we should all just quit our jobs and become organizers. Or we could take a page from the Silicon Valley effective altruists (at least the ones who aren’t in prison) and keep our jobs, but only do constitutional law ironically while donating our salaries to some group of children of undocumented immigrants. And surely such political action is a good thing. But if that’s all that we’re supposed to be doing right now, then it’s hard to see how we’re any better positioned to do it than anyone else, and we probably ought to quit our jobs and go do something productive with our time. (On the effective altruist version of the strategy, we ought to go get corporate law jobs to have more money to donate.)

Perhaps I’m wrong. Perhaps Drall and Moyn do think that there’s some other way that we can, by carrying out our functions as lawyers and constitutional scholars, serve the innocent people who are at risk of having their rights and basic human interests ripped away by this regime with the active collaboration of our morally depraved colleagues. But until they explain what that other option is, I will continue to believe that critically engaging with bad arguments for evil political programs that have been laundered through the forms of constitutional law is just doing our damn jobs. And as long as there is some possibility, however remote, that someone with power, wearing a black robe or otherwise, might be sufficiently embarrassed by the clear weakness of the arguments for brutalizing the most vulnerable people in our midst relative to the arguments against brutalizing them to hesitate before deporting a single newborn, it seems to me that our jobs are worth doing.

Paul Gowder is the Frederic P. Vose Professor of Law at Northwestern University and most relevantly for present purposes one of the co-authors, with Evan D. Bernick and Anthony M. Kreis of Birthright Citizenship and the Dunning School of Unoriginal Meanings. You can reach him by e-mail at paul.gowder@law.northwestern.edu.