Notes on a Theory…

Thoughts on politics, law, & social science

Posts Tagged ‘Law

The Fundamental Principle of Popular Sovereignty…Good for One Day Only

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At the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the Constitution creates a system of enumerated powers at the federal level. But, when it came to the Arizona’s punitive immigration law, those same nine justices all agreed the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration.

As I said then, “both positions were consistent with past decisions”:

All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk.  Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.

This term brings a similar example, although this time it involves a smaller number of justices.

Read the rest of this entry »

Written by David Kaib

June 28, 2013 at 1:22 pm

State are not Sovereign: The Supreme Court and Voting Rights

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[Update: For a sense of legal landscape in the wake of the Supreme Court's decision, read The Way Forward After Shelby County by Joey Fishkin]

The Supreme Court has struck down Section 4 of the Voting Rights Act (pdf), rendering Section 5 inoperable until Congress changes Section 4 (assuming Congress can and there is anything Congress could pass that the Supreme Court would allow, which is unclear).  I addressed the most fundamental conservative objection to the Voting Rights Act after oral arguments – that it is a “racial entitlement”.

Generally speaking, you should just read Justice Ginsburg’s dissent, which righteously shreds Chief Justice Roberts’, and Jessica Mason Pieklo.

I wanted to address something a little more abstract.

Roberts’ opinion repeatedly references ‘state sovereignty’ as an (unenumerated) constitutional principle that supposedly overrides the enumerated power of Congress to enforce the 15th Amendment through appropriate legislation. Let’s leave aside the issue of enumeration, and of the case law (Ginsburg dispatched that handily).  The bigger problem with this is that it’s absurd.

The Constitution makes clear that sovereignty is not vested in governments. It is vested in the people. Neither the states nor the federal government are sovereign. (Yes, don’t miss that second part – and let’s not pretend that a war settles constitutional questions either). From the opening words of the preamble of the original Constitution to it’s final clause, from the beginning to the end of the Bill of Rights, the basic, most fundamental constitutional principle is popular sovereignty. The entire process of ratification, by conventions rather than by state governments, only makes sense if you begin with popular sovereignty.

Literally every other principle we associate with American constitutionalism–separation of powers, federalism, enumerated powers–flows from this basic principle. Read the rest of this entry »

Written by David Kaib

June 26, 2013 at 9:24 am

Expanding the Boundaries of the Possible: The Mandate

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Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.  

Jack Balkin has a piece on The Atlantic that didn’t get the attention it deserved.  Called From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream, the piece focuses on how legal arguments move from the fringe to common sense.

The changing perception of the individual mandate is an example of one of the most important features of American constitutional law — the movement of constitutional claims from “off the wall” to “on the wall.” Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts. In the process, people who remember the days when these arguments were unthinkable gape in amazement; they can’t believe what hit them.

I’d go farther, and suggest that this is an example of the one of the most important features of American politics.  But the sad thing is that both political science and our general political discourse tends to ignore these questions. Instead, they ask: (given the boundaries of what’s possible) how is choice made?  But the question of what is possible is far more important than the choice itself.  As political scientist E.E. Schattschneider reminded us a long time ago, “The definition of the alternatives is the supreme instrument of power,” yet we’ve rarely listened.

Balkin has been asking these more important questions for some time.  I’ll just sketch the argument here.

The basic idea is to understand the roles of several key actors.

1) Intellectuals.  The role of intellectuals is to develop ideas that are considered off the wall.  Conservatives have long understood this which is why they built an infrastructure that allows intellectuals to do this and that creates networks among them. These have to be willing to do so without worrying about their acceptability, or they will simply be reinforcing the status quo. (This is why tying think tanks and the like too closely to either politicians or funders is a bad idea.)

2) Social movements.  Movements are one of the most important drivers of change, but they work long-term, through cultural change, that is, “from the bottom up”.  Obviously, conservatives were mobilized against the mandate, but Balkin argues that social movements work on a much longer time line.  There was not enough time to move arguments that the mandate was unconstitutional from the fringes to an acceptable legal claim this quickly.

3) Political parties. When a party gets behind a claim, it moves it quickly to ‘on the wall.’ “[W]hen an entire political party gets behind a constitutional argument,” Balkin says, “almost by definition the position has become mainstream.” Needless to say the unity of the Republican Party makes this a lot easier.

4) Media. The media tends to reflect the political parties.  That is, if one party makes a claim, the media will treat it seriously. This is true for institutions like Fox News, but it’s also true for the media in general.  Journalistic conventions don’t allow the media to challenge these sorts of claims, when they are taken seriously by one (or both) of the parties. This has a tendency to reinforce the role of the parties.  (Balkin here parallels the arguments of media scholars – see for example Jay Rosen’s classic post detailing Daniel Hallin’s arguments, here.)

5) The Courts.  Once a position has become ‘reasonable,’ judges are willing to give them a hearing, and once lower courts, especially circuit courts, are willing to accept an argument, this lends respectability before the Supreme Court (not to mention beyond the judiciary).

Of course, if you were to look only at the choices of courts, or the Court, ideological splits would go a long way towards explaining those choices.  It’s true that the president, Congress, or the public have no formal ability to reverse decisions.  But judges care about what’s reasonable, they take things for granted, and they reconsider things they previously took for granted.

I do have one objection. Balkin’s argument largely avoids confusing democracy as a legitimation with democracy as an explanatory concept. But see here:

When establishment politicians — who, after all, have to stand for election and don’t want to be thought out-of-touch to their constituents — get behind a constitutional argument, they often help move it forward quickly.

The problem here is that there is plenty of reason to think that politicians aren’t driven by such concerns.  There are often large gaps between public opinion and policy, both foreign and domestic.  The Republican Party has demonstrated that marching away from the center doesn’t automatically lead to electoral defeat.  Reasonableness is an elite phenomenon.  The belief that one can infer popular beliefs from institutional outcomes (i.e. ‘democratic efficiency’) is generally false.

Written by David Kaib

June 13, 2012 at 1:17 pm

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