Constitutionalism Project: The Concise Version

I’ve written about this within a more personal post, and I’ve written something fairly highbrow theory-wise; this post is meant to be something to point to that’s a little more approachable.

The theory

Institutions are interlocking stages of action. There is no will of Congress or even of the executive branch; there are instead what you might think of as institutional perches upon which individual human being sit, and from which they may take action.

Language allows us to have words like “Congress” which we treat like really existing entities in order to regulate the power relations between individuals, by giving them roles within that entity, which then changes their relations to individuals outside of the entity. Members of Congress have powers available to them that ordinary citizens, who are not members of that institution, do not. The entity (“Congress”) is the stage in which members of Congress can take specific actions, exercising their powers in their institutional role which they cannot do, even though they are the same physical people, when they’re off the clock (or Congress is out of session).

To exercise social power is to be an individual in an institutional context who performs an action that achieves an effect which results from that specific tripartite combination (of individual + action in context).

But institutional context is vast and complex, full of millions of individuals who do not just passively bend to the intended effects of the actions taken on a particular institutional stage. Some of them occupy positions within institutions with quite expansive powers themselves, others are able to make use of much narrower powers in clever ways to undermine the effect of more powerful institutional actors.

The questions

When seeking to understand some specific set of institutions, the question I want to be able to answer intelligently is:

  • Given a specific actor
  • in a specific institutional context
  • taking a specific action
  • what is the likely effect?

But also the equal and opposite:

  • Given a specific actor in a specific institutional context has taken a specific action,
    • what actors
    • in what institutions
    • can nullify the effect of that action,
    • and what action(s) would they have to take in order to do so?

The constitution

In order to answer these questions, I need to have a sense of the overall character of our institutional context. How do the courts work—in practice? What are the role of congressional staffers and committees but also things like the CBO or, in the White House case, the OMB? The approach of taking the character of the institutional whole as your starting point is constitutionalism; this “whole” just is the constitution. It is the constitution as Edmund Burke understood it and it is the constitution as at least some of the Founding Fathers understood it.

However, I do not think that the constitution begins or ends with the traditional three branches. You also need to look at the agencies, and at “street-level bureaucrats” who have to implement under- or poorly-specified policies on the spot. How do prosecutors actually use their discretion? How do private actors—from landlords to corporate executives—interface with the law and lawmaking? How does the law community influence the way law is interpreted, and how do Supreme Court justices’ personal social circles influence the way they behave on the bench? How can municipal lawmakers subvert the influence of the Supreme Court?

All of these are parts of the social, political, and economic system known as our constitution.

My current project is an attempt to outline that constitution as best as I can.

Parliaments, Police, and Partisans, Oh My!

So, this thing I’m doing, my political science reading, or more accurately my constitutionalist project. The reading list is not what I would call fixed. I broke it up the way I described in the last post—a priority list, then a group in the next priority, a third priority list, and a “would be nice to get to” list. Across these priority buckets are categories that I try to mix up. These are books about:

  • Congress
  • The Presidency
  • The Judiciary
  • The Administrative State
  • Local Government
  • The Party System
  • Law Enforcement (broadly)
  • Comparative Systems (that is, either studies of governments other than ours, or studies explicitly comparing ours to others)
  • Theory

The last one has been almost entirely relegated to the “would be nice to get to” list.

As I have started going through my list and discovered other cited works, as well as begun to talk about the project publicly and even more advice than I had initially, I have revised the list. Three of the seven I have read so far were suggested to me after I began. Books I had in the third priority list got moved up to the first priority list after enough sources (including political scientists I had personal conversations with) called them out as authoritative. Books that appear to cover one of the categories listed above better than others I had chosen also get prioritized (just this weekend I discovered this jewel, along with this one, both cited in the same work. Each displaced other books I had on the list). I am very much figuring this out as I go.

For that reason I haven’t felt like it made sense to publish my list. But I will publish what I read as part of the project in retrospect. And as usual, since writing helps me to process what I have read, I’ll likely post here as I go. This is precisely one of those posts.

Parliament and Congress

The first book I read, at the end of November, might seem an odd choice: William Selinger’s Parliamentarism: From Burke to Weber. I saw through the grapevine that this was coming out and it just seemed like a good way to step out of my rather provincial context, where systems of government are concerned. England is going to be my go-to country for comparative analysis, as it is quite different, but its history obviously influenced our own, so learning about it helps me in more way than one.

I learned a great deal from the book, and reviewed it.

Like the other parliamentarians examined in the book, de Staël thinks carefully about how to offer each side a mechanism, with teeth, that nevertheless won’t threaten to throw the entire enterprise off balance. In this case, the executive is subordinated, but can fight back largely by holding parliament accountable to public opinion. For other thinkers, such as Benjamin Constant, a monarch who “rules but does not govern” subverts unhealthy status competitions by occupying a position at the top which no one else can reach, channeling ambition into the healthier competition for ministry positions. In each case, the thinker carefully mapped out the faultlines of the system as a whole and sought to address each in ways that did not put pressure on the others.

Aside from such constitutional thinking on display among Selinger’s “Parliamentarians,” and the specific developments in the English and French parliaments discussed by the book, I was fascinated by how young the English system really is. Traditionalists like to invoke how ancient the system of the English is, and it is true that common law precedents stretch back quite far into the horizon. But the English parliamentary system changed continuously over time, in quite drastic ways. One recognizably like what we see today dates back to the 18th century at the earliest, developing out of changes made in 1688 as a result of the Glorious Revolution. In truth it’s hardly older than our own system! Especially when one considers the continuities between our federal system and the colonial assemblies.

It provided very helpful context for a book I read more recently, Josh Chafetz’s Congress’s Constitution. The name, of course, was promising, and the information I could get on the book certainly made it out to be just the nuts-and-bolts treatment I needed. Boy was I in for a treat. Chafetz’s vision of constitutionalism is exactly how I think of it; something I had written about only a couple of weeks before starting the book. In that I wrote “to speak of constitutionalism in America is rather presumptuous” because we don’t really have any. Mea culpa, Josh!

What is added by pairing these two books is a sense that England and America both offered answers to the same question: what lessons should be learned from the conflicts between parliament and the Stuarts in the 17th century? But the answers they ended up settling on couldn’t have been more different (while still being broadly liberal-democratic). Chafetz carefully walks through the precedents set by Stuart era parliamentary manuevers that were picked up in colonial assemblies—and turned against colonial governors, much as the 17th century parliaments had turned them against the Crown. He takes us through how these precedents in the Mother Country and the colonial governments informed the design and practice of the federal system.

A book that he turns out to take a great deal of inspiration from, and which I read about a month beforehand, is David Mayhew’s America’s Congress: Actions in the Public Sphere. I was equally gobsmacked by this book as I would later be by Chafetz’s. Years ago, while taking Pete Boettke’s Constitutional Economics course in grad school, I wrote a paper about political actors as constrained entrepreneurs. Mayhew’s model of congressional action is so close to the one I formulated in that paper as to be practically indistinguishable, but as far as I can tell we share no common source whatsoever. In my paper I looked at a single incident, MacArthur’s leadership of the constitutional proceedings in occupied Japan.

Mayhew, by contrast, looks at the entire history of the republic and, using a quite clever method, coded a table of congressional actions over time. He does an excellent job showing the sheer variety of ways to be a member of congress, the range of approaches that have been adopted and method pursued. After finishing his book I have come to see Congress as a stage of action onto which we, the voters, send 535 actors. Mayhew’s book, along with subsequent conversations, was perhaps the final ingredient I needed to refine my lens of choice down to four questions:

  • What actors
  • under what circumstances
  • performing what actions
  • achieve what effects

Chafetz fleshes out the institutional relations that constitute (part of) the circumstances onto which various congressional actors have stepped. But also the ways in which the key effect of many of their actions is to reorder those relations in ways big and small. Since Watergate it has been more or less established, through a number of subsequent cases as well, that contempt of Congress cases get reviewed by the courts up front. But that only occurred because the Court successfully asserted itself, and Congress has not, or has not been able to, push back. Before that, Congress’s unilateral power to hold outsiders to its chambers in contempt was well established from the early days of the republic and spanning back to the colonial assemblies and the 17th century English parliaments. Congress could attempt to assert itself by simply holding someone in contempt without going through the courts, attempting to get it to stick. Or it could assert itself by passing a specific law detailing how contempt of Congress will operate moving forward (without the involvement of the courts). At any rate, there are a range of possible actions, any of which would constitute a rolling of the die rather than a guarantee of what effect they will actually have on the shape of our constitution.

Having spent a decent amount of time on the legislative side of things at this leg of the project, I’m going to be turning to the other two branches next. My next book will be Steven Teles’ The Rise of the Conservative Legal Movement, which may seem an odd place to begin with the judiciary, but the book I’d picked as an overview of the system is still in the mail, I’ve got this one on hand, and I don’t want to wait (it’s going to be a challenge to get through all the items of my second priority list in time, never mind my third priority list). Teles explores a dimension of influence on the courts that has turned out to be incredibly significant; his book was always going to be on the top priority list.

Enforcement and Administration

I sometimes wonder if the courts, presidency, and especially congress, matter much at all. Day to day, it is patrol cops, welfare workers, and other low level bureaucrats who implement the law determine its character as citizens experience it, more than any other type of actors. Because this group is so vast compared to the high-level branch officials we tend to talk about, it’s difficult to know where to even begin attempting to understand their overall impact, and its relationship to bills made into law by elected officials, and court rulings issued by judges. Even executive orders are fairly far removed from the day to day responsibilities of enforcer and administrators.

Sara Seo’s rather depressing book about the relationship between the mass adoption of the car and the growth of policing as we know it approaches this matter from one useful angle. As I summarized in my review, the practices that were required to enforce traffic laws ended up brushing aside centuries of case law establishing what counted as a “seizure;” according to which being pulled over would quite certainly be one. But unlike England, where that case law tradition begins, we have in this country the Fourth Amendment, which states that a warrant is required prior to a seizure of our “persons, houses, papers, and effects.” Rather than rule roadside stops unconstitutional, Courts throughout the 20th century performed a series of incoherent and contradictory jurisprudential gymnastics to by and large allow cops to continue doing what they were already doing.

Critics of the Warren Court frequently accuse it of deviating from either the text of the Constitution or the spirit of existing precedent, but it was policemen, prosecutors, and (by and large) lower courts who blew up the scope of Fourth Amendment protections. The Warren Court simply attempted to pick up the pieces, by providing a few procedural safeguards. In Mapp v Ohio, they held that the exclusionary rule (the existence of which seems a fixture to any audience who grew up watching Law and Order) applied to the states, not just the federal government. Two years after this ruling, New York City went from issuing a negligible amount of warrants per year, to over 5,000 per year. This was a rare case where courts had a palpable effect and put a layer of judicial oversight between citizens and the police—though Seo notes with disdain the tendency of judges to “rubber stamp” warrants.

Other famous cases—such as Gideon v. Wainwright, which established the right to a lawyer, and Miranda. v. Arizona, which applied the exclusionary rule to statements made without notice of that right as well as the right against self-incrimination—were important and certainly impacted how policing was conducted, but did not change its basic nature. Pulling over a car does not require a warrant under current law, and so drivers remain subject to the on-the-spot domination of policemen. The Due Process Revolution, as it came to be known, deals with what evidence will be allowed to be used against you in court, but by and large does not alter this fundamental relationship between citizens and police that was established in the wake of mass adoption of the car.

Did I say that Seo’s book was depressing? I lied. Evicted, by Matthew Desmond, is depressing.

While I’ve characterized my constitutional project as a crash course in political science, I also wanted to get as low to the ground as I could; to see the ways that state enforcement shape what we think of a “private” power. Evicted is not only a book about landlord-tenant relationships, and about poverty, but about, as Wendell so eloquently put it, “the gears of an elaborate piece of civic machinery.” If Desmond spent “years to learn [it] well enough to revere-engineer” it, then I ought to avail myself of the fruits of his efforts. And what efforts—not only did he live in these communities for years, and gather official statistics related to the topic, but he tabulated documents that didn’t exist in a structured, aggregated form beforehand, and he designed official surveys as well. No one plumbed their subject more thoroughly than Desmond did his, and this was well worth my time to read. And, not directly relevant to my project, simply important for me to read for the same reason that Chris Arnade’s Dignity (the subject of Wendell’s review) was important for me to read.

A book I just finished this very day was Bernardo Zacka’s When the State Meets the Street on what he calls “street-level bureaucrats,” the category I began this subsection with which includes cops, teachers, welfare case workers, child services, etc. The people who actually make contact with the public as the lowest level of “implementation” of policies. The administrative state looms throughout all my readings, of course. Mayhew and especially Chafetz detail the screws that congressional actors can turn in order to bring “the fourth branch” in line with their desires. Selinger discusses how making ministers responsible to parliament allows the latter to apply pressure to the former in order to thereby exert influence on the ministries they lead.

But Zacka fleshes out the spheres of discretion that street-level bureaucrats have, and for the most part have by necessity. We can probably shrink it in particular cases, but we cannot eliminate it. He looks at the classic liberal and republican concerns about such discretion, especially in the hands of unelected authorities, but also looks at the merits of such discretion, at least under the right conditions. He provides a lens that is more or less virtue-ethical, towards which I am partial, and in general offers a convincing and rich phenomenology of the situation faced by the typical street-level bureaucrat and how it shapes their sense of self, and how this sense informs the way they exercise their discretion. It is difficult to summarize and as I mentioned, I only just finished it, so I think I will leave it at that for now. He left me with several other avenues to pursue to better understand the character of the administrative state.

Parties

Jacob Levy, to whom I owe much intellectually, has for years left me with the impression that we live in a moment in which parties are unusually weak. Still, political parties are a crucial piece for understanding any constitution. And knowing how they have operated, and how, for example, the Jeffersonians of the early republic were a different sort of party from the Democrats of the 1970s, would undoubtedly be valuable for understanding our current situation as well as thinking creatively about ways forward.

Seth Masket’s No Middle Ground, which was recommended to me a “the gold standard” in political science right now, left me with a very different feeling than Jacob’s piece above. Rather than parties being weak, Masket explains how networks form to control local primaries for each party and lead to extremely strong party discipline, the strongest since the era of machine politics. Indeed, Masket refers to these networks as Informal Political Organizations (IPO), where the formal ones are the aforementioned machines. In as much as parties are “an organized attempt…to get control of the government,” IPOs are parties as much as anything ever was. Perhaps formal parties are weak now, but Masket makes the case that parties, in general, are not. The biggest shortcoming of his study is that it is specific to California, offering weaker (but not necessarily weak) evidence of it being a general characteristic of the country as a whole. I have other books on parties I intend to read but I will have to look into how the political science community has come down on the generalizability of Masket’s results in the 11 years since his book came out.

That’s all I have for now. Teles next; I’m currently seeking to obtain a review copy of the book on the presidency I plan to read first, so I will certainly be writing much more about that. I hope I can maintain this pace and get well into my third priority list before time runs out!

Another Long Year

Well, here we are again, at the end of another year. This felt like an especially long one. Part of that had to do things I’ve been subjected to alongside everyone else; the Democratic Primary race and its never ending churn of C and D list politicians having their fifteen minutes, which feels as though it has been going on three years longer than it in fact has. Donald Trump’s presidency, in general, culminating in actual articles of impeachment less than half a month from the end of the year. Alexandria Ocasio-Cortez’s meteoric rise at the beginning of the year, if somewhat more leveled off position in the second half. And on and on, in the manic political and media environment in which we now exist. In part because I now operate a political publication, but also because of the near-inescapability of political conversation these days, political events in particular made 2019 feel longer than 365 days (and as of this writing we’ve only actually had 354).

Speaking of that political publication: Liberal Currents has had a banner year, in terms of attention, engagement, and most of all, the quality and quantity of contributions and the number of new, bright, talented contributors we managed to bring on. Jason, Paul, and I started LC in 2017 after the shock of Trump’s victory. As an all volunteer operation (a fact I hope to change in the future but cannot be sure when we’ll be in a position to) there have been moments where our contribution pipeline went quite dry for uncomfortably long. But in July of this year, we hit a real turning point, after which our pipeline has been quite robust. Cameron Harwick, Jerrod Laber, and Adam Rust all wrote magnificent pieces that received a good amount of attention. Adam’s piece resulted in our running a response from Kian Hudson, the Deputy Solicitor General of Indiana. I’m very excited by our current trajectory and incredibly proud of our editors and everyone who has been a part of the project. We’re really making something special. The future looks bright for Liberal Currents.

Coincidentally, I didn’t write any pieces for LC myself until July. And that was a piece I shopped around first, but alas its moment had not come. I’m proud of the piece itself, which I worked quite hard on with a number of other people’s input, Jason’s most significantly (as usual). The others were largely book reviews, a format which we have gone in for much more this year. Other than the piece from July, my favorite non-review piece I wrote concerned the nature of freedom of speech, in the context of current controversies over platforms like Facebook. I also wrote more here than I have in years; mostly spitballing but my piece on Rorty’s vision of national self-respect, and an outline of conservative media’s history, while rough, will probably be revised and turned into something more substantial in the future.

It has also been a very good year reading-wise. In my first post here this year, I noted:

Philosophy of law is no shortcut to understanding law. Hermeneutics is no shortcut to understanding literature. Moral philosophy is no shortcut to understanding right and wrong. Political philosophy is no shortcut to understanding either politics or political institutions as they exist and function in life. Epistemology and philosophy of science are no shortcut for becoming a competent scholar or scientist. Metaphysics is no shortcut for understanding reality.

I concluded that it was time to “dial back philosophy” in my reading and “invest more of my time in history, law, political science, and other works focused on concrete particulars.”

By and large, I have done well. I am currently close to finishing my 57th book this year, and may or may not manage another before the year’s end. That will leave me 2-3 books behind last year, though Goodreads tells me I have already exceeded last year in number of pages read. Gross quantities aside, I learned a tremendous amount this year. The one philosophy book I did read, William Curtis’ delightful book on Richard Rorty, was actually quite clarifying in a way that lends itself to application in more practical subject matter. It also coalesced with the image of Rorty that had been forming in my mind since I read Achieving Our Country last year and wrote the post about it this one. 

Otherwise, in my nonfiction reading has stuck very closely to my goal; I’ve read about climate science, the use of memes in the 2016 election (however disappointing that book was), the history of Cuba, the history of postwar India, the Great Enrichment, the history of Athenian democracy (such as we can reconstruct it), the life of Alain Locke, sociology, the Dutch Golden Age, the history of American counterculture, the French Revolution, the life of marginal groups in contemporary rust belt towns, the nature of dog whistle politics, the history of de jure residential segregation in America, eugenics and immigration restriction, the history of protest in Hong Kong, the life of Malcolm X, the history of Uber, the conflict between Peter Thiel and Gawker, parliamentary theory, and the history of policing and Fourth Amendment case law in the 20th century. Two of the novels I read this year were well researched intergenerational histories as well, and I have fallen quite in love with that format.

Looking ahead: legal realism and political science in 2020

Any one of the topics I read a book about this year (including any one of the subtopics touched upon in those books) I could stand to learn a lot more about. But as the year went on, the germ of an idea developed in my mind. Well, more of an impulse, or as those close to me might more aptly call it, a new obsession.

Its seeds were planted by the two pragmatists (in the philosophical rather than merely colloquial sense of the word) who have so influenced my thinking over the last two years, Adrian Rutt and Adam Rust. Adam has experience in both criminal and civil law, and currently works at a firm that represents unions. We have talked at length about his experiences and about legal realism, and his work on originalism (which became the July piece at Liberal Currents mentioned above) opened my eyes to the fact that it is a species of rationalism. Kian’s response only cemented my conclusion: he did not have much to say about the role of precedent, except to note Justice Thomas believes that if we know what the text says, then precedent shouldn’t matter at all. This is rationalism and dogmatism of the highest order, the exact type that Hans-Georg Gadamer debunked in the 20th century.

Legal realism is the jurisprudence, if you can call it that, which focuses on the system as it exists in practice. The more I grew interested in it, the more I worried that embracing it would require discarding the rule of law as an ideal. After all, if the law is nothing more than what the institutional authorities decide, as human beings with fickle psychologies, then how can we ever expect it to be a consistent, predictable, source of stability and bulwark against arbitrary authority?

A very helpful paper by Hanoch Dagan answers exactly that question, breaking down what exactly we value about the rule of law and how legal realism as he formulates it addresses those values. In particular he discusses the pragmatic role of what he calls “doctrinal categories” and how the legal community of a given moment constitutes an interpretive community with a lot of shared understandings that serve to ground interpretations; but these are not the only sources of interpretation. I am not going to rehash the whole paper here, but suffice it to say that Dagan offers a very useful way of thinking about the law as it exists in practice but also in relation to important ideals.

My interest in legal realism and what it means for liberal ideals, and my longer term goal to attend to concrete particulars as opposed to high level abstractions, have led to a project I will be pursuing in 2020, and indeed have already begun. I was loosely calling it the legal realism = unwritten (or ancient) constitutionalism project, but now that the reading list has gelled, I can more clearly characterize it as a crash course in the political science of the American system.

I want to get a better understanding of it all, from top to bottom. The operation of Congress, down to the role of the staffers; the sociology of the legal community and how respectability within it and within the specific social circle that Supreme Court justices operate within constrain judicial decisions; the way policing and prosecution are practiced and how that has changed over time; how the 500 pound gorilla in the room of governance, the administrative state, operates and relates to the more “traditional” branches of government; local government and how it nullifies federal level law in practice; the party system as it is and has been; all of it.

Any one of these is a specialized area of research and knowledge in its own right, so the emphasis here is on “crash course.” I would like to lay a foundation by this time next year, however. In fact, one concrete outcome of this project that I am aiming for is to write a piece in the wake of the 2020 election, whatever its outcome, on what the long term plan should be for Democrats. And that plan will include a laundry list of constitutional amendments to fight for should the opportunity (given a necessary combination of local electoral success, both houses of Congress, and strong party discipline) arise. We too often make the mistake of either writing off amending the constitution entirely, or half-assing what we’d do if we could. The Progressives added four amendments in a seven year span. If you are patient and lay the groundwork, and are ready to be decisive when the right moment comes, it can be done. 

But if you do it, you’d better get it right. If there’s one lesson I have taken away from my various discussions with Adam Rust and my legal realism reading to date, it is that amendments such as ERA are nothing more than an invitation to judges to develop a body of case law. The amendments that matter are ones that restructure our existing institutions in concretely specified ways. The age minimum to run for president, or the apportionment rule for the House, are examples of things that do not leave much latitude for judicial discretion. Creating a new rule like “the president can be removed if two-thirds of the House vote to do so” likewise adds something specific to the House’s toolkit, where “Men and women shall have equal rights throughout the United States” and “Congress shall have power to enforce this article” are much more ambiguous and quite plausibly will change nothing at all.

To return to the piece I wish to write next year: laying the foundation for this will require a much more disciplined approach to reading. To that end, I have laid out around 20 books which I will commit to reading by October. This will hopefully provide me with the basic level of competence required to write the piece I wish to write. Assuming that I stand by that commitment, I have a further 15 to begin going through after that. If I have really stuck to this project and get through all 35 of those, I have yet another set of books to begin going through; if I make it to this point by November I will feel extremely confident in my ability to write the piece. After that, I just have a grab bag of “would be nice to get to” books, including some more theoretical and philosophical works on ancient constitutionalism, legal realism, and jurisprudence generally. I do not expect to get to this grab bag in any meaningful way in 2020 but might draw from it in 2021.

The piece is one specific goal, as I mentioned, but it’s not really the main one. I am attempting to build a basic foundation with several larger ends in mind:

  • Attempting to popularize small-c constitutionalism against “written” constitutionalism, in part by demonstrating its superior merits in meeting liberal ideals
  • Developing a general framework of political activism by laying out a basic sketch of where the main “levers” of power are and which to employ in a scenario where a political opponent controls some specific subset of them
  • Extending the 2020 piece into an academic paper or even a book laying out the specific systematic changes that we should be working towards
  • Developing Curtis’ (and Rorty’s and Deirdre McCloskey’s) virtue liberalism into something concrete and situated in the American system as it exists in practice

These are all quite interconnected and will require developing the same basic foundational knowledge, so which of these I end up pursuing first or in any depth will depend as much on what opportunities are available to me as anything. The 2020 piece itself is largely meant to be part of a broader effort to create such opportunities.

That is what is occupying my thoughts most prominently these days. I admit that I’m more than a little excited to embark on this project. Perhaps it’s an intellectual retreat in politically troubled times, but it feels less like a retreat than focusing on hermeneutics and ontology. At any rate, watch this space. Congratulations to you all for surviving this long year, good luck with the long year ahead.

Disrupting My Book Reviews

This year at Liberal Currents we started going in for book reviews fairly seriously. I picked up two books with the intention of reviewing them together, but am having trouble producing anything worth publishing. So, as is my way, I’m going to spitball a bit here.

I was happy with how pairing two books turned out for my review of Daniel Okrent’s Guarded Gates on the immigration restriction battles and eugenics at the end of the 19th and turn of the 20th centuries. I reviewed it together with Thomas Leonard’s Illiberal Reformers, which, published in 2016, was the source of my interest (some would say obsession) with Okrent’s topic. The two books take very different approaches and the subject matter does not line up one to one; Leonard is an academic historian whose topic is primarily the history of economics as a discipline. Okrent is a popular writer who, while diligent in his research, is focusing on telling a compelling story about interesting characters. More importantly, Okrent’s net is much wider. The more I read Okrent’s book, the more I worried that the approach of pairing the books would prove unfeasible for a review. But I found the right angle and I’m happy with how the piece has turned out.

My experience with my current pair was, if anything, the opposite. I had a specific goal in mind when I obtained a copy of Super Pumped, Mike Isaac’s book about Uber: I wanted to see if there was anything to my father’s framing of the primary intraelite conflict being between tech entrepreneurs on the one hand and east coast establishment types on the other, and Uber seemed like a good lens for that. The best lens; no one has thrown down harder against established elites who have gotten in their way than Uber.

I then learned (through conversation with my father, as it happens) of the book Conspiracy, by Ryan Holiday, about the destruction of Gawker by Peter Thiel. I thought, vaguely, that I could deepen my investigation by adding another tech elite’s activities. My first surprise here was to find that Thiel/Uber did not make a very meaningful parallel at all, whereas Gawker, as described by Holiday anyway, basically operated like a media version of Uber without the deep VC pockets to bail it out of any problem.

But there the parallels largely run dry. I wanted to make some general point about the exercise of power and how hard it can be to tell, in the moment, who really has it—Holiday has a great line, after describing an incident in which Gawker ignored an injunction from a Florida judge:

We asked earlier who the underdog was in the dynamic. It is probably not the party that can defy an order from a judge and get away with it.

ignoring legal orders is the benchmark for power, then Uber is in a league of its own. In October of 2010, just four months after the first Uber user hailed a ride, officials from the San Francisco Municipal Transportation Agency showed up at their headquarters to serve them a cease and desist order. The company, then known as UberCab, was in violation of local regulations, and could face fines up to $5,000 per trip, while the company’s management faced up to ninety days of jail time per day they remained in operation.

Isaac sets the scene:

Graves was scared. “What are we supposed to do here? He said aloud, reading his name on a piece of paper that said he could be going to jail. Hayes, the venture capitalist, wasn’t sure what to say. He was used to investing in consumer tech companies, but rarely (if ever) did they run afoul of the law. Geidt, just a few months out of college, stood quiet and nervous, too. This was her first foray into the professional world. Now she was looking a jail time.

Kalanick didn’t miss a beat. “We ignore it,” he said to the room.”

And that was that. They dropped “Cab” from their name and moved on.

This was their first year. Over the next seven years, Uber would not only break numerous local laws with impunity, they would develop a whole playbook for doing so effectively. In Philadephia, where the battle with local authorities was especially fierce, they would rack up 120,000 violations adding up to a $12 million fine. Uber is available in Philadelphia to this day—and in a settlement they managed to get that fine cut down by more than two thirds, to $3.5 million.

The proximate source of Uber’s power in this regard is quite simple: investors had given them an unbelievable amount of cash with basically no strings attached other than the mandate to grow, grow, grow. This allowed them to hire top talent, of course; talent which allowed them to develop sophisticated strategies for staying ahead of local enforcers, among other things. But far more important and not sophisticated by any stretch was their ability to simply throw money at problems. This included paying for expensive lawyers, of course, but also being able to promise drivers that “all costs associated” with run-ins with local regulators would be covered by Uber. During their doomed play for the Chinese market, Uber spent $40-50 million a week in subsidies alone, to entice drivers away from competitors.

Gawker did not have that kind of war chest, though it had very good liability insurance. Thiel, of course, did have the money to burn trying to take Gawker down, and that’s precisely what he did.

But here I find myself dissatisfied with where a potential review would go. Will it really boil down to “money = power”? The halo around tech “disruptors” and being part of the “rude” (but specifically rude and lefty) press plays an important role too, but this amounts to little more than pointing out that money and status are power. Hardly Earth-shattering stuff; not much meat to sink your teeth into.

Ultimately the books are incompatible in the lessons I would want to draw about them. Conspiracy raises some important questions about a court system too expensive for even, as Thiel put it, “single digit millionaires” to afford, as well as the tension between privacy and freedom of expression, and other press-and-judiciary related questions. Super Pumped, on the other hand, is simply a book I would want to give to all my old libertarian buddies, as well as anyone in finance, and anyone too enthusiastic about disruption per se as an approach to creating progress. I think the end of replacing taxi cartels with services like Uber is a good one in principle; I also think one would be hard pressed to square the means Uber employed to that end with even the rule of law as an ideal, even in the most minimal conceivable formulation.

Rather than deepening the material for approaching the same set of questions, pairing these two books seems simply to multiply the set of questions to be addressed. So I think I’m going to have to bite the bullet and drop one of them, probably Conspiracy, which offers a more unique and therefore less generalizable scenario.

Anyway, that’s what I’ve been failing to write this Thanksgiving break. Hope you all had an enjoyable one.

A Sketchy History of America’s Conservative Media Insurgency

This is perpetually a dream project for me. There is absolutely no way I will have the time to devote to it to really do it right in the next year or two, and after that it is still unlikely. But I’ve given this a great deal of thought over a fairly long period; in some ways this is the topic I have remained most continuously engaged with for the longest span, investing here and there in reading, writing, discussing, and refining little by little.

So I’m going to sketch out the basic outline of how I think about this here, in a blog post, for future reference and hopefully to flesh out into something properly scholarly at some point.

In an important sense, midcentury media was both centralized and wildly competitive and creative. This is because even then, even in the absolute heyday of mass media, “media” was not one single monolithic thing. Magazines and club periodicals and other niche audience publications occupied a space that was energetic as well as ideologically and stylistically diverse.

Mass media, however, was a cartel through and through. From newspapers to book publishers to broadcast television, a very small number of people who all ran in the same social circles set the agenda and got to decide who could and who could not have access to national audiences. The entire niche publishing market combined was a drop in the bucket compared to the enormous audiences enjoyed by the midcentury media cartel.

I would like to pause here for a moment and say that midcentury media is long overdue a serious demystification. The problem is that right now that entire discursive space is monopolized by right-wing narratives, which is chock full of bad actors. On that, more in a moment. But the main thing I wish to say is that like any cartel which is able to get away with a lot of bad bullshit, midcentury mass media did, indeed, engage in a lot of bad bullshit, and get away with it.

Contra the aforementioned narratives, I think that most of the bad bullshit was not political in nature, but was just about drumming up interest—strong-arming people to get a story, selectively and dishonestly quoting people to achieve a certain effect, and so on. In other words, by and large the bad shit they got away with was out of indifference to the harm they caused in pursuit of their bottom line, or sloppiness plain and simple. Because as the only game in town, they could afford to be so callous and so sloppy.

But I don’t want to overstate this, as I often did back in the old bloggers vs journalists days. These were also serious institutions, in every sense of the word. It’s just that institutions of that kind are a lot more shot through with bad behavior than we like to think, especially when dealing more immediately with the faults of their replacements.

On the question of bias: I do think they had it, but here I think the leftist critics are more on the money than the rightist ones. The midcentury cartel had a conventionalist bias. It’s just that they hardened into a cartel at a moment when New Deal Liberalism was at its apotheosis, enjoying extremely broad public support. And so it was biased in that direction. Later, the conservative media insurgency would define itself against that very bias. Later still, as that insurgency began winning major victories, the institutions of the old mass media would begin to define themselves against the insurgents—the beginning of a long slide into the partisan press we live with today.

But I’m getting ahead of myself. Again if I had the time and resources I’d flesh out the good and the bad more thoroughly, along with the exact nature of media bias at particular moments. But I don’t, so let’s move on to the next part: the dawn of the conservative media insurgency.

National Review holds a certain place of pride in movement conservatism, but it is and has always been in the niche audience market. The real conservative insurgency began with Talk Radio. As is typical of entrants seeking to compete with big, established players, conservative media entrepreneurs went into a close substitute field that was basically unoccupied, creating a cottage industry overnight. 

Fox News was the next big accomplishment of this movement; while cable news was not new by the time it launched in 1996, it was still not as pervasive as it has now become. And with the comparative wealth of channels cable TV offered relative to broadcast, there was more room for entrants in general.

The Internet was naturally the last big piece, and it has been big indeed, though we musn’t overstate it—the communities created by Talk Radio and Fox News are probably the biggest pieces of the conservative insurgency’s positive contribution to its final victory. The rise of the Internet probably contributed to that victory most directly by bleeding newspapers dry of classifieds revenue, and by suddenly putting every form of media into more direct national, even global competition with one another. In other words, the Internet ruptured a number of contingent business arrangements and market structures that had buoyed the established media’s profitability for a long time.

But of course, alongside these blows to the entrenched players, the Internet also opened the market up to all comers. The excitement around so-called “Web 2.0” centered specifically on the development of tools and platforms that non-technical users could easily employ to publish themselves online. This very blog, obscure as it is, could have millions of viewers tomorrow under a completely conceivable (not to say likely) set of circumstances. The birth of the big social media platforms reduced the number of steps you needed to receive such sudden and massive attention, which is so common these days we coined a phrase for it (“going viral”) for convenience’s sake.

Unlike Talk Radio, but like Fox News, the conservative insurgency was not the lone pioneer in online media. Especially because the blogosphere really lit up under a Republican administration, the leftist and liberal blogosphere was active and energetic. But the conservative one was equally so, precisely because the mainstream press, though flagging, was still dominant, and when contrasted to the genuinely conservative voices they could now find online (and in Talk Radio and on Fox News), the hated Mainstream Media (“MSM”) was intolerably left-biased. Out of the conservative blogosphere was birthed many an online conservative publication, Breitbart being among the most significant.

All right. Now let us return to the question of quality, raised ever so fleetingly during the discussion of the midcentury cartel.

I mentioned that a lot of bad bullshit occurred under the midcentury cartel because they could get away with it. Well, the conservative insurgency has engaged in a hundred times as much bad bullshit. They have done so because, in general, it is not the nice guys who are able to unseat a truly entrenched power. There is an important parallel in the history of the partisan polarization of congress, discussed by political scientist Frances Lee and summarized by Vox here. In that telling of history, Democrats dominated Congress for decades, and in order to overturn that, the Republicans in effect declared all out war, putting all tactics on the table and steamrolling past established norms.

The conservative insurgency is a phrase I picked precisely because I think it is best seen in such total war terms. Talk Radio played for keeps, and Breitbart definitely does. The more they succeed, the more their enemies sink into the same total war mindset.

Frances Lee thinks that the war of the congressional parties cannot be settled until one dominates again and the other accepts defeat for a while. Here the metaphor becomes hazy, for congressional seats are determined by first past the post voting and other particularities that do not apply to the media landscape. We have lived through times when the press was explicitly partisan before, and that may be our new normal again. A conservative media victory on par with the midcentury cartel is simply impossible under present technological circumstances, and unlikely given the notably unconservative bent of the typical resident of America’s large urban population centers.

Whatever the future holds for American media, the present seems relatively clear to me: at a high level, the big presses are transparently aligned with one major party or other. This does not, again, make them symmetrical: the conservative media ecosystem is truly a cesspool of the worst sort. And that, again, does not get the liberal press off the hook: its sins range from the laughable mediocrity of Glenn Kessler-style “fact checking” and Washington Post #resistance theater in its new motto, to becoming dependent upon pumping up the very bad tendencies it ostensibly is aligned against.

But I don’t mean to do any serious evaluations here. I just wanted to sketch out that broad history: from midcentury media split between the creative niches and the conventionalist cartel, to the conservative media insurgency spearheaded through Talk Radio and Fox News, to the Internet’s gutting of mainstream media’s business models and empowering of the online conservative media ecosystem, to our current partisan press.

That’s the gist. To be fleshed out and defended (and modified based on research of course) at some future time. Please do not hesitate to steal it if you intend to do the scholarly legwork (not that I would mind a link or a shout out should you do so!)