Economic Inequalities are Legal Inequalities

Economic inequalities then—inequalities in freedom as producer and as consumer—are embodied in unequal legal rights. In assigning and enforcing legal rights to the fruits of transactions, the law is doing more than protect the winnings in the game of production and exchange. It is dealing unequal hands to the players. Further state intervention to alter the distribution of rights and liberties, to the advantage of those whose liberty is most restricted as a result, in part, of state action cannot be properly described as “statism” in any obnoxious sense. There may, however, be good reasons of policy against disturbing many of the present inequalities. But elucidation of this matter will require another chapter.

Freedom Through Law: Public Control of Private Governing Power, Robert Hale

On Judicial Decisions

Judicial decisions are not what they seem. Their claims are often vastly disproportionate to their effects. The very idea of the decision rests on a model of political power that is rarely realized: one in which authority flows from a hierarchical point, directing the behavior of political institutions as well as ordinary citizens. This model rests on a conception of the sovereign as the decision maker, the person who directs how the rest of the polity will lead their lives. Regardless of whether we put the king or the representative of the people into this role of the sovereign, the model of a single authoritative source of power remains the same. Legal scholars are, for the most part, arguing about how this sovereign should rule. But our legal universe does not work this way.

The Cultural Study of Law: Reconstructing Legal Scholarship, Paul W. Kahn

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

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.

State are not Sovereign: The Supreme Court and Voting Rights

[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.

A Legalistic Heritage and a Democratic Ideology

A legalistic heritage and a democratic ideology have predisposed American political science to search outside the Washington community for explanations of behavior in that community—legalism looking to the Constitution as a determinative influence, and democratic ideology looking to public opinion and constituency ‘pressures’ as determinative influences upon the conduct of men in office….Political science has yet to confront squarely the proposition that the governing group in Washington…has an inner life of its own—a special culture which carries with it prescriptions and cues for behavior that may be far more explicit than those originating outside the group and no less consequential for the conduct of government.

James S. Young, The Washington Community, 1800-1828, quoted in
Donald R. Matthews and James Stimson, “Decision-Making by U.S. Representatives: A Preliminary Model.”

Law and the Politics of Legitimacy

The word ‘law,’ itself, is always a primary object of contention. People argue and fight over ‘what is law’ because the very term is a valuable resource in the enterprises that lead people to think and talk about law in the first place….On a political level, it connotes legitimacy in the exercise of coercion and in the organization of authority and privilege.  On a philosophical plane it connotes universality and objectivity….The struggle over what is ‘law’ is then a struggle over which social patterns can plausibly be coated with a veneer which changes the very nature of that which it covers up. There is not automatic legitimation of an institution by calling it or what it produces ‘law,’ but the label itself is a move, the staking out of a position in the complex social game of legitimation. The jurisprudential inquiry into the question ‘what is law’ is an engagement at one remove in the struggle of what is legitimate.

Robert M. Cover, “The Folktales of Justice: Tales of Jurisdiction.” (pdf)

Rights as a Claim and a Resource

Instead of thinking of judicially asserted rights as accomplished social facts or moral imperatives, they must be thought of, on the one hand, as authoritatively articulated goals of public policy, and on the other, as political resources of unknown value in the hands of those who want to alter the course of public policy.  Stuart Scheingold, The Politics of Rights

Agreeing with Hayek: ‘Interference’ is Incoherent

The question whether the state should or should not ‘act’ or ‘interfere’ poses an altogether false alternative, and the term ‘laissez faire’ is a highly ambiguous and misleading description of the principles on which a liberal policy is based. Of course, every state must act and every action of the state interferes with something or other.

Friedrich Hayek, The Road to Serfdom via Bernard Harcourt

Expanding the Boundaries of the Possible: The Mandate

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.