Affordable Care Act Entrenchment

Abbe Gluck

Posted 9:35 AM by Abbe Gluck [link]

Formalism and Democracy in the Design of Amendment Rules

Guest Blogger

For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).

David Landau
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Posted 9:30 AM by Guest Blogger [link]

If Covid-19 doesn't force us to connect the dots, what will?

Sandy Levinson

Here is my latest screed on the defects of the Constitution, from Talking Point Memo (TPM).  They will be publishing a series of comments on the Constitution, of which mine was the first.

While I have your attention, I note my dismay at a column in today's Washington Post by Jared Bernstein on the big takeaways from the current situation.  It is not that I disagree with his four specific takeaways.  He is someone whose views on the economy I have long admired, and I hope that he plays an important role in the Biden Administration.  (He was Biden's chief economic advisor when Biden was Vice President.)  What dismayed me, though, is that, per usual with the Washington punditry, the takeaways included literally no mention of the Constitution and the possibility that it might need any reform.  One of the takeaways is that effective governance is crucial, but it is apparently unsayable, even within the Beltway left, to suggest that the Constitution was created to make effective governance as difficult as possible even if one accepted the preposterous view of most of the Framers that political parties could be staved off and national governance (at least) turned over to virtuous elites, Jefferson's "natural aristocracy."  And Bernie Sanders, in an eloquent column in the Sunday Times, also failed to say anything about the Constitution, perhaps because he doesn't want to confront the illegitimacy of Vermont's having the same voting power as Texas.

I'm not sure there's any point in opening this up for comments, since I'm really not breaking any new ground, save, perhaps, for emphasizing the degree to which the Senate is an affirmative action program not only for residents of small states, but also for the disproportionate number of whites who happen to live in most of the small states.  It's an unacknowledged form of white privilege.  That probably wouldn't have bothered the Framers; it should bother us.
Posted 11:25 AM by Sandy Levinson [link] (56) comments

Constitutional Amendments from Design to Culture

Guest Blogger

For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).


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Posted 9:30 AM by Guest Blogger [link]

Further thoughts on "representative sample voting"

Sandy Levinson

I posted a comment on "Election Fetishism" several days ago, and I then received the following superb response (and critique) from a San Francisco lawyer, Gordon W. Renneisen.  He asks a host of completely relevant questions.  Perhaps the most probing has to do with whether the "representative sample" of voters would be selected just before election day--and thus in fact being no more likely than the typical voter to have deeply studied relevant issues--or selected well in advance, which raises all sorts of important problems about access to the now small set of determinative voters in the run-up to election day.  With his permission, I am posting it in its entirety.  There's no point in any discussants discussing my own prior posting, but it would certainly be interesting to read any thoughtful responses to Mr. Renneisen's comments.

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Posted 4:08 PM by Sandy Levinson [link] (20) comments

The right book at the right time: Richard Albert on constitutional "adaptation"

Sandy Levinson

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Posted 9:30 AM by Sandy Levinson [link] (81) comments

Why the Supreme Court got it right in the Wisconsin election case

Jason Mazzone

Vik Amar and I have a column out today in Verdict/Justia on why the Supreme Court reached the correct decision in its recent per curiam ruling in the Wisconsin election case, Republican National Committee v. Democratic National Committee. We explain that although Wisconsin's decision to proceed with its election was a mistake there was no showing of a constitutional violation to justify the injunction the district court had ordered.   
Posted 9:00 AM by Jason Mazzone [link]

More Thoughts on a Cancelled Election

David Super

Since my article on the consequences of President Trump cancelling the November election appeared in Politico, I have been having an interesting discussion with Howard Wasserman.  Professor Wasserman previously blogged about essentially this problem and came to many of the same conclusions that I did.  He has since posted two thoughtful responses. 

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Posted 5:11 PM by David Super [link]

What if President Trump Tried to Cancel the November Election?

David Super

After a week in which President Trump claimed the power to boss around governors as if they were his casino managers and to force Congress to adjourn, I could not help but wonder what would happen if, with sagging polls and a raging pandemic, he decided to order the November election cancelled.  I can certainly imagine Rudy Giuliani suggesting it:  he reportedly proposed something similar to extend his term as Mayor of New York after the 9/11 attacks.  Of course it would be unconstitutional, but what if he tried anyway? 

The answer turns out to be surprisingly complex, with some surprising people having the potential to play kingmaker -- or even to become president:


Posted 5:29 PM by David Super [link]

Is the Roberts Court going to let coronavirus kill us?

Andrew Koppelman

Posted 10:55 AM by Andrew Koppelman [link]

Constitutional Legitimacy and the Right to Amend

Guest Blogger

For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).

Julie Suk

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Posted 9:30 AM by Guest Blogger [link]

The Adjournment Clause

Mark Tushnet

Posted 2:35 PM by Mark Tushnet [link]

The James Bond of Comparative Constitutional Law

Guest Blogger

For the Symposium on Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).


Read more »
Posted 9:30 AM by Guest Blogger [link]

Balkinization Symposium on Richard Albert, Constitutional Amendments

JB

This week and next at Balkinization we are hosting a symposium on Richard Albert's book, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019).

We have assembled a terrific group of commentators, including Erin Delany (Northwestern), David Landau (Florida State), Sandy Levinson (Texas), Eugene Mazo (Rutgers), and Julie Suk (CUNY).

At the conclusion, Richard will respond to the commentators.
Posted 9:00 AM by JB [link]

The Johnson Treatment Does Not Work on Zoom

Gerard N. Magliocca

Thinking in partisan terms is a hard habit to break. Fortunately, Speaker Pelosi and Majority Leader McConnell are giving all of us an opportunity. They are both against permitting Congress to have remote voting (in a way, for example, that other world legislatures are now doing or planning). Why is that? Maybe they are just traditionalists. Maybe they really are concerned about ensuring security or accuracy in voting.

The more likely explanation, though, is that they both understand that remote voting makes whipping votes a lot harder. Mitch McConnell is probably not all that persuasive on Zoom. The Speaker does not have the trappings of her office available on the phone. The famous Lyndon Johnson "treatment" where he would persuade people to do things they did not want to do were in-person (and sometimes vaguely intimidating) physical encounters.

This is a one-time opportunity for back-benchers in both parties to take some power back from their leadership (albeit temporarily during this crisis). Who knows though--that could become a new habit. And that is what the Speaker and the Majority Leader probably fear.
Posted 8:16 AM by Gerard N. Magliocca [link] (28) comments

How Dysfunctional is Congress Now?

David Super

     Both the House and the Senate are currently holding pro forma sessions, with a handful of Members from each party present.  A Democratic representative or a Republican senator calls their respective chambers into session, recognizes a leader of their party for any motions he or she wishes to make, and in the absence of any adjourns the chamber for the next few days.  If the majority’s floor leader makes a motion that has not previously been negotiated with the minority, a Member from the opposition party is on hand to object.  In the absence of a quorum, the proposal dies.  Actions on which both parties agree can be passed by unanimous consent or on a voice vote, with both sides agreeing not to make quorum calls.  Members can submit statements, which their party’s respective leaders move be included in the Congressional Record. 

     Some commentators have criticized Congress for going out of session in the midst of a crisis.  Those on the Left in particular have contended that by sending Congress home Speaker Pelosi has surrendered bargaining leverage with Republicans over the shape of coronavirus relief legislation.  It therefore seems useful to consider how much Congress’s effectiveness has deteriorated with the shift to pro forma sessions.  The conclusion – not much – tells us a lot about the declining importance of individual Members, and the indispensable role of compromise, in our hyper-partisan age.

     Under ordinary circumstances, four entities can block legislative action:  the House majority (by not bringing legislation to the floor or voting it down), the Senate majority (by not bringing legislation to the floor or voting it down), the Senate minority (by filibustering or raising points of order that require sixty votes to overcome), and the President (by vetoing legislation). 

     Certain fairly narrowly defined types of legislative action can proceed without the Senate minority:  budget reconciliation bills, resolutions invalidating Executive Branch actions under the Congressional Review Act, reports of military base closure commissions, etc.  Treaty ratification does not constitutionally require the House majority’s consent, although for practical reasons our current practice often gives it a say.  Confirmations never required the House majority and now do not require the Senate minority, either. 

     Of course, where one of these entities is fractured, others gain power.  The Freedom Caucus’s frequent rebellions empowered the Democratic House minority, allowing Rep. Pelosi to extract large concessions from Speakers Boehner and Ryan.  Much farther back, the North-South split in the Democratic Party in the 1960s made members of the Republican minority crucial to enacting civil rights legislation.  And, unlike the other three leading entities, the President is not absolutely essential to enacting legislation – a resolute coalition of the Senate majority and minority and the House majority can substitute the House minority for the President by overriding a veto.  In hyper-partisan times, however, that substitution is rare.

     In the first two years of the Trump Administration, Republicans controlled three of the four entities needed to make policy.  They enacted relatively little legislation, however, because Senate Democrats ordinarily could block them.  Their two major legislative initiatives – repealing the Affordable Care Act and the 2017 tax law – proceeded under reconciliation procedures that allow bypassing the Senate minority.  They succeeded on the tax bill when they held their majority together; their loss of three votes on the health care repeal re-empowered the Senate minority, which supplied the rest of the votes required to defeat it. 

     Since the midterm elections, Democrats and Republicans have each controlled two of the four entities required to enact legislation.  Controlling the House affects Democrats’ ability to convene hearings, force Republicans to cast embarrassing votes, pass “message” bills and, of course, impeach the President.  But other than taking reconciliation off the table for Republicans this has added little to the power Democrats already had with their Senate minority. 

     This understanding of federal policymaking is, essentially, a version of the vetogate theory updated for extreme partisanship.  Traditional vetogates – such as committee chairs and marginal Members – have ceased to matter in a hyper-partisan and relatively centralized political environment.  Differences between chambers also have faded enormously:  few people besides consummate insiders can name an issue on which Senator McConnell and Representative McCarthy disagree or one that divides Senator Schumer from Speaker Pelosi. 

     Contrasting the ordinary arrangement with the current situation shows some changes, but nothing remotely as dramatic as critics suggest.  The consent of House Republicans is now required to move legislation, but that changes little:  they are unlikely to block an agreement on which Senate Republicans and President Trump have signed off. 

     On the other hand, the current arrangement has effectively restored the filibuster for executive and judicial nominations.  For now, the stampede to pack the courts with conservative judges has paused because Democrats need only make a quorum call to derail a nomination.  Even after the Senate returns to its usual mode of operations, by using all the time available for each nomination Democrats may be able to force Senator McConnell to prioritize unless he can persuade his Members to stay for an extended session.  Even under Senator McConnell’s amended Senate procedures, he needs almost all of his senators present and voting to force a vote on a nominee.     

     The current arrangement does theoretically create more opportunities for rogue Members to exercise power.  We saw this when one Republican insisted on reconvening the House to vote on the third coronavirus relief bill, forcing hundreds of Members to drive or fly back to Washington.  This replicates end-of-session politics in less-partisan times when relatively ideological senators willing to incur their colleagues’ wrath – Republicans Jesse Helms and Tom Coburn or Democrats Howard Metzenbaum and Paul Wellstone – would raise objections that were effectively lethal to legislation in the absence of time to work through the usual Senate process.  These senators would hold court on the Senate floor and sometimes insist on sweeping last-minute changes to bills with overwhelming bipartisan support as a price for releasing their de facto vetogates.

     In practice, however, what rogue Members can do today is limited.  Rep. Massie won no concessions for forcing the House back into session and garnered scathing bipartisan criticism from his colleagues and a caustic tweet from President Trump.  Moreover, Members may only raise objections in person, requiring them to stay in (or return to) Washington.  Who wants to be in a swamp during a plague?

     The opportunities and rewards for obstructionism in the current environment thus are few.  These objections cannot hope to kill legislation:  with the parties so sharply divided, little beyond true must-pass legislation reaches bipartisan agreement anyway.  Nor can it win substantive concessions:  the already-tenuous working relationship between the two parties would shatter if either party’s leadership tried to leverage obstructionism from one of its rogue Members to reopen agreements. 

     Although most Members appear to have returned to their districts, they and their staff continue to work energetically on legislation.  It seems entirely possible that the remainder of the current Congress could continue to function through pro forma sessions.  Pollsters’ predictions about whom voters will blame for an impasse, not expected floor votes, are driving the respective parties to make concessions – but that has been true for several years anyway.  A pro forma Congress likely would pass a continuing resolution this fall rather than individual, detailed appropriations bills – but, again, that is already a well-entrenched pattern, especially in an election year.  And a huge fraction of what one sees in the Congressional Record was not actually uttered on the floor even in ordinary times.

     Making provision for remote debate and voting would be prudent and desirable.  But its absence is nothing like the catastrophe many believe it to be.

     The notion of a legislature in nearly continuous session is not nearly as inevitable as many seem to think.  Only about ten state legislatures follow anything resembling Congress’s model.  Many other countries bring in legislators only occasionally to vote on bills leaders have crafted in their absence.  Most federal appellate judges retain residences some distance from their courts’ headquarters, convening only for a few days of oral argument.

     Having Members assemble in Congress for debate and negotiation makes sense if they come as individuals.  But with neither party having much patience for heterodoxy, the scope of individualism has narrowed considerably.  Negotiation occurs primarily between committee chairs and ranking members, and that works at least as well at a distance.  Perhaps we should add Member of Congress to the list of jobs that this crisis is demonstrating can be done largely by telework.


@DavidASuper1
Posted 2:00 PM by David Super [link]

The Legality of Interstate Compacts

Gerard N. Magliocca

Article One, Section Ten, Clause Three of the Constitution states, in part:

"No State shall, without the Consent of Congress  . . . enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

Two groups of states (all with Democratic Governors) have reached agreements amongst themselves to coordinate their plans to reopen their economies when appropriate. Presumably they are doing this because they do not trust the Federal Government (in other words, the Trump Administration) to give them coherent advice. But can these states make these plans without the consent of Congress?

One way to think about this issue is by parsing the text that I just quoted. What is an agreement or compact exactly? Are certain formalities required or is any understanding between or among states (however informal) enough? Does the qualification about invasion or imminent danger apply only to fighting wars, or also to the earlier part about an interstate agreement or compact? If the qualification does apply, are decisions about how to reopen state economies a matter of imminent danger?

Another way to look at this problem is that nobody has standing to challenge these interstate arrangements. There could be circumstances where an individual or a state would be harmed by an interstate agreement reached without congressional consent, but I'm hard-pressed to see who would be in this instance.

The final, and most likely solution, is that nobody will pay attention to the issue at all because a state of emergency exists.    
Posted 12:49 PM by Gerard N. Magliocca [link] (98) comments

Where the Supreme Court went wrong in today's Wisconsin election decision (I think)

Marty Lederman

If I'm not mistaken, the Supreme Court just stayed a provision of a district court preliminary injunction that does not exist, and in so doing imposed a restraint on the franchise of Wisconsin voters that Wisconsin law itself doesn't require.

At least that's how I read the Court's decision, together with the underlying Wisconsin law.  [I am, of course, far from being an expert on Wisconsin voting procedures.  If others more learned than I bring additional considerations or contrary authorities to my attention, I'll be happy to revise my mistakes or retract the criticism below.]

If I'm right, how did it come to this?  Let's recount the harried developments concerning the Wisconsin primary of the past few days.

Read more »
Posted 12:09 AM by Marty Lederman [link]

Coronavirus and Executive Underreach

David Pozen

National leaders around the world have taken extreme measures to curb COVID-19, leading to fears of human rights abuses and presidential power grabs.  We in the United States face something closer to the inverse dilemma: a president whose response to the pandemic has been disastrously insufficient.  Jonathan Gould and I offer some thoughts on this problem, and how Congress can address it, in Slate.
Posted 5:57 PM by David Pozen [link]

Election "fetishism"

Sandy Levinson

"Elections are the fossil fuel of politics."  This incendiary sentence comes form a fascinating book, Against Elections, by David van Reybrouck.  What he is attacking is what might be termed a certain kind of "fetishism" that views our standard reliance on certain forms of election as the one true way of selecting leaders in a "representative democracy.'  To be sure, Reybrouck can be read in part as a critic of "representative democracy" in favor of more direct democracy, as seen in America in such different states as Maine or California (with lots of others as well).  But I think the real importance of his argument, and what makes it worth discussing in a far greater context than the debate about direct democracy versus representatives democracy is that he accurately suggests that our present system of elections is not even the best way of producing truly "representative" leaders.  For starters, they are snapshots taken on a given day of the constellation of pubic opinion of those who show up and vote for a restricted list of candidates.  We could obviously discuss at length the degree to which the restricted list generates truly "representative" candidates, given the role played by money or well-located interest groups.  That's the subject for other postings.  Rather, let's assume for the moment that the candidate-selection process is acceptable, and we're concerned only with how we should structure the choice by the citizenry of who should occupy the offices in question.

I read van Reybrouck to suggest, a la Jim Fishkin, whose work both he and I deeply admire and believe should have far more impact than it has had up to now, that the actual choice be determined by a process of genuine deliberation among a random sample of the American electorate, chosen in accordance with the most advanced methods by which Gallup and other respected pollsters do their own polling.  The actual voters would be less likely to meet the objections raised by Ilya Somin and others about the palpable "ignorance" of many voters.  If, for example, they that they were part of a carefully chosen (albeit random) group of, say, 2000 Americans, to pick the next president, and if in addition there were "hearings" at which the candidates would speak and be subject to careful cross-examination concerning their views, there is every reason to trust that the choice would be well within the "margins of error" that we in fact accept, albeit without giving any genuine thought to it in our "ordinary" election process.

Such an approach to elections would immediately obviate the kind of all-out partisan warfare now occurring in Wisconsin and, many people fear, that is on the horizon and Donald Trump and his GOP minions will do almost literally whatever they think it will take to hang on to power in November.  It would also render close to irrelevant the role of big money at least following the nomination process.  So what's the problem?

The quick and dirty answer is that this exposes the chasm between "thinking like a social scientist" and "thinking like a layperson."  I.e, I am assuming that any and all trained social scientists would agree that a well-chosen representative sample will produce more "representative" outcomes, whether one is testing the distribution of public opinion or, as in the hypothetical case the selection of a president, than does the baroque process by which we conduct elections.  The laity, on the other hand, I suspect would be appalled at this suggestion because we have built up over the years a true mystique about elections per se.  Instead of a truly serious discussion about what a "republican form of government" requires of all of us, we instead have sacralized the particular process as a form of social communion.  WE all believe that we're better citizens because we get up early and stand in long lines or stand in long lines at the end of a days work, perhaps with children in tow who are told that this is the very essence of "American democracy."  That is an epic piece of false consciousness, with extraordinarily important consequences for the actual reality of what we ideologically label "American democracy."

We are told that we ought to grant legitimacy to the winners of any and all elections.  But why, exactly?  If and only if we truly have a reason to believe that the election process is truly fair in sufficient respect.  There is good reason to have more and more doubt as to whether that is true in the US today, in part thanks to obtuse decisions by the US Supreme Court.

There is a perhaps paradoxical connection between van Reybrouck's (and Fishkin's) arguments and some of those that originally justified the electoral college.  (There are no good arguments that justify the current operation of the electoral college.)   That is, it was thought desirable to place selection in the hands of a group of people who would presumably exercise better and more informed choices than the people at large.  The difference is that this defense of the electoral college is elitist through and through.  There is nothing elitist in Fishkin's and van Reybroucks arguments, however.  A random sample, a "national citizen jury" in effect, would be full of the hoi polloi.  There would obviously be some elites within the overall sample, but they would play no special role.  It would truly be a one-person/one-vote system where the voting pool would be, of course, a minuscule percentage of the national population.  For me that is no problem.  I suspect that many of you would find it a fatal defect.  But the question is why.
Posted 4:19 PM by Sandy Levinson [link] (72) comments

Two Timelines of COVID Crisis

Frank Pasquale

We often hear that the current COVID crisis came “out of the blue,” that “nobody” was expecting it.* But anyone with a decent grasp of pressing issues in public health knew the risks of pandemics. As I wrote in 2014:

[R]eduction in hospital facilities and other resources, although “efficient” in normal times, may prove disastrous if there is an epidemic. For example, one national preparedness plan for pandemic flu estimated that, in a worst-case scenario, the United States would be short over 600,000 ventilators. “To some experts, the ventilator shortage is the most glaring example of the country’s lack of readiness for a pandemic,” one journalist noted. The lack of “surge capacity” throughout the health care industry is a major infrastructural shortcoming, likely to cause tremendous, avoidable suffering if a pandemic emerges.

So how did we get here? It's critical, in the midst of the COVID crisis, to keep two timelines of missteps and mistakes in mind. There are short-term problems that have only emerged in 2020. And there is a much longer history of disinvestment (and poor investments) in American health care. In other words: ongoing rot has exacerbated the crisis, in Sandy and Jack's temporal framework. It is the toxic combination of these two sets of problems that has left the U.S. one of the epicenters of COVID-related morbidity and mortality.
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Posted 11:27 AM by Frank Pasquale [link]

Common good v. public good or public interest

Sandy Levinson

Let me begin with where I certainly agree with Jack:  Adrian Vermeule is in fact promoting Catholic integralism (just as some Protestants, including, it has been alleged, Vice President Mike Penc,  are adherents of "dominionism"), both of which advocate forms of theocracy.  Indeed, certain members of the Haredi community in Israel and, I suspect, some members of Modi's ruling coalition in India are also theocrats, not to mention supporters of an Islamic Caliphate or even the "Islamic republics" of Saudi Arabia, Pakistan or Iran.  What makes Adrian special is that he is unusually smart and enjoys the institutional location of being a chaired professor at the Harvard Law School.  (One of his predecessors as the Tyler Professor of Constitutional Law was Laurence Tribe!)  He is a relatively recent (four years ago, apparently) convert to Catholicism and, perhaps like many converts, is tempted by some of the more extreme doctrines that are available within the Church.  I put it that way because the Church, like all large institutions, is in fact pluralistic, and one can find a variety, even if not limitless, number of doctrines available for trying to decide the relationship between Moral Reality as enunciated by the Church and the actual political realities of what Augustine called "The City of Man."  One can imagine an American future in which the still relatively young Adrian Vermeule become a genuine political force. (One would be interested, for example, as to whether or not Amy Comey Barrett, a sure candidate to succeed Ruth Ginsburg should Trump be in power when that day comes, adheres to the views articulated by Vermeule or by her Notre Dame colleague Patrick Deneen, who also condemns liberalism in all of its purported aspects.  I personally think it would be perfectly legitimate to interrogate her on this matter, but the "No Test Oath Clause" has been misinterpreted, I believe, to make illegitimate any questioning at all about the religio-theological views of candidates even when they proudly affirm the centrality of their religious identity to how they conduct they lives.

But that isn't the major impetus for this posting.  Rather, I think that Jack's attempt to defend the "pubic good" as against Adrian's "common good" is open to dispute.  The basic problem, as Jack fully realizes, is how one constructs a stable--and admirable--polity for what Holmes called people of "fundamentally different views," where some of the central differences involve precisely what might count as "the public interest" or "pubic good."  As Jack notes, Madison recognizes, kind of, the problem, particularly in Federalist 10, but he scarcely comes up with a convincing, or even plausible, solution.  Or, perhaps, he comes up with two quite different solutions.  The first, which Jack emphasizes, is the theory that the "extended republic" will make it hard (perhaps impossible) for a selfish "faction" to gain control over the national polity, unlike the states, which Madison, at least at that time, viewed as little more than cesspools of faction.  Anyone who believes that the Madison of 1787-88 was a devotee of "states rights" is truly illiterate.  There are all sorts of critiques of this version of Madisonian optimism, beginning with the importance of the creation of national political parties (or factions) that serve to reduce the transaction costs of capturing the national government for their own nefarious purposes.  In any event, this version of Madison leads to what came to be called "interest group liberalism," in which we simply assert, or stipulate, that whatever gains the assent of the relevant coalition of interest groups just is in "the public interest.  To put it mildly, there is no reason to accept this definition, even if it is comforting to accept it as true.

But Madison also offers the possibility that national leaders, unlike local leaders, whom Madison came close to despising, would be imbued with what Jack accurately identifies as sufficient "virtue" to tame the selfishness that pervades society and to adopt policies that in fact serve a genuine "public interest." That model of elite (and "representative") democracy was based on a fundamental mistrust of what we today might call "democracy" inasmuch as the lower orders were expected to recognize and then defer to their betters, what Jefferson notoriously called "the natural aristocracy."  Whatever one thinks of that as a normative model, it clearly did not survive, say, the election of Andrew Jackson.

So the dilemma facing contemporary liberals (and liberalism) is to enunciate a "progressive" political program at the same time that most liberals are scared stiff of what is described as "populism," i.e., a much more active participation by "we the people" in the process of decisionmaking and a concomitant distrust of established elites. And the paradox of the Sanders candidacy, as I have repeatedly argued, is that the self-styled "revolutionary" offers literally nothing by way of a serious critique of a constitutional structure, established in 1787, to minimize the actual role of the demos and to assure that the byzantine system of "checks and balances" would make it extremely difficult to meet the challenges of the day, including, in our own time, those presented by Covid-19.

Not surprisingly, Jack and I address some of these issues in our epistolary exchange, Democracy and Distrust, available at a book store near you!  Although our analyses overlap in important respects, there are, nonetheless, significant points of departure.  One of them, in addition to the relative weight we put on political structures as against political culture, is the degree to which there is at present any truly satisfactory theory of "the public interest," "common good," or "public good."  Michael Sandel, who established his reputation as a critic of John Rawls, has been articulating his own theory of the "common good" for quite a while, though I'm not aware that it's really made much headway (and I find it more than a bit problematic myself).  All of this is by way of saying that the gauntlet that Vermeule is throwing down must be taken seriously, even if I certainly agree that one should reject any notions of Catholic integralism, Torah-true governance, or an Islamic caliphate as the answers.  Perhaps the best we can do is to stick with some sort of modus vivendi politics based on compromise and a willingness to forbear from pushing one's own views too far.  To maintain a society of relative peace and good order--the Canadian credo--is no small achievement, but is's hard to come up with a grand theory that necessarily justifies the hard compromises that may be necessary to attain it.
Posted 9:49 PM by Sandy Levinson [link] (152) comments

Common Good versus Public Good

JB

One of the distinctive claims in Adrian Vermeule's recent constitutional work is his argument that government authority should endeavor to promote, and enforce, the "common good."

By contrast, the political theory of liberal republicanism argues that politicians and the public should cooperate and compete with each other to promote the "public good."

Does this mean that Adrian is arguing for a familiar kind of liberal republicanism well-known to the founders and promoted by them?

No, these two concepts are not the same.

Read more »
Posted 11:31 AM by JB [link]

Symposium on Helen Norton, The Government's Speech and the Constitution: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Helen Norton's new book, The Government's Speech and the Constitution (Cambridge University Press, 2019).

1. Jack Balkin, Introduction to the Symposium on Helen Norton, The Government's Speech and the Constitution 

2. Frederick Schauer, The State’s Speech and Other Acts 

3. Sonja R. West, The Government, the Press, and Our Shared Diagnosis 

3. Richard Schragger, What is “Government” “Speech”? A View from Charlottesville 

4. Josh Chafetz, Who is The Government? 

5. Nathan Cortez, What To Do About Government Lies? 

6. Jack Balkin, Three Concepts of Propaganda and the U.S. Constitution

7. Nelson Tebbe, Government Speech and the Market Metaphor 

8. Caroline Mala Corbin, The Government’s Speech and the Constitution: Public School Teachers & Transgender Students & Pronouns

9. Mark Graber, Extraordinary and Ordinary Government Speech 

10. Helen Norton, The Government’s Speech and Why It Matters 

11. Helen Norton, The Government’s Speech and Its Complexities



Posted 9:30 AM by JB [link]

Why Do (Some) Originalists Hate America?

Andrew Koppelman

Posted 1:19 PM by Andrew Koppelman [link]