I began to write a typical end of the year post, only because this was hardly a typical year (even discounting our family growing!) I did not much enjoy what I was writing. What I really wanted to do was just a fun post about what I’ve read and written and what we’ve done at Liberal Currents and such. I’ll likely write that other, heavier post, too. Another time.
As of this writing, I have read 57 books in 2020. I’ll likely finish another, Joseph Heath’s The Machinery of Government, before the year is done. That book, like so many I read this year, are part of my constitutionalism project. The output of this project has been a rather openly moving target, but I have had a paper in the works for a couple of months now. The first draft is done, but I did some further research in order to tighten it up, and I have been procrastinating putting in the actual work revising it. I’m hoping to sit down and do it sometime over the holidays.
What I have ended up making this paper about, perhaps unsurprisingly given it was the motivating interest all along, is the nature of law as it is actually practiced. The paper is divided into a section fleshing out the basic framework, and then the rest of it is dedicated to the application: the Voting Rights Act, how it was passed, how it was implemented, what role the courts have played in that implementation. In my original formulation of the institutional question, I broke it down as follows:
- What actors
- under what circumstances
- performing what actions
- achieve what effects
With the follow-up question:
- What the likely effect would be if no other actor made an attempt at nullification
- What actions from what actors could potentially nullify the effect of the action
- What actions from what actors would strengthen or complement the effect of the action
I later revised this to be:
- Given a specific actor
- in a specific institutional context
- taking a specific action
- what is the likely effect?
With the new followup:
- 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?
Once I began the work of formulating this to actually use it in an analysis of the VRA, I changed it yet again, to a more sweeping set of questions:
- Who are the actors?
- What actions did they take, and what actions could they have taken?
- What social or institutional tools were used to take these actions? What tools could have been used instead?
- What intersubjective effects did their actions have, with what scope?
- How much uncertainty was there about the effects of the actions at the outset?
I think the nature of the conceptual problems I’m wrestling with should be easier to see by looking at how I have changed this over time. Hopefully it will be clear for those reading the paper as well, in both the theoretical background provided and the practical application.
The circle I tend to run in is this: “a government of laws rather than of men” seems, on its face, impossible, since it is in fact men who write, enact, and adjudicate law. The caricature version of legal realism is that the law is whatever a judge in a particular case says it is, but this is precisely where things begin to unravel: why does what that judge say matters? Isn’t it because we endow judges with certain authority by law?
I’ve wrestled with this quite a lot over the past year, and read a fair amount of books—starting around October of last year—and am happy with how far I have traveled in so short a time. There, of course, continues to be a vast amount that I do not know. I have only begun to scratch the surface of the biggest gorilla in law, the executive branch. Judges and legislatures occupy an enormous amount of the discussion about government and law, but its day to day character is determined by the permanent bureaucracy more than anything else. The success of the VRA, for example, had much to do with the character of the Civil Rights Division in the DOJ, where they had been tangling with the Jim Crow states for over a decade and across multiple Civil Rights acts before the VRA came along and gave them new weapons to use at a moment the courts were also sympathetic to their cause. But here we see where the legislature and the courts do matter, and of course ultimately it was the Roberts Court that dismantled the main instruments provided by the VRA in Shelby v Holder.
Projects of this kind are always something of an adventure; when you don’t know what you don’t know, it’s quite hard to predict how exactly the path is going to unfold ahead of you. At the outset I did not think I would bother with the Electoral College, which seemed a relatively small concern given all the other features of our complex system of government, and given how hard it is to amend the Constitution. But I received a review copy of Alexander Keyssar’s Why Do We Still Have the Electoral College? and I took it as an opportunity to read his previous work, The Right to Vote. Both are excellent, excellent books, just very high caliber scholarship and historical imagination. And I realized, to my great embarrassment, that I had not even really understood the Electoral College before I read Keyssar’s new book. I thought that the least I could do for our readers was to use my review as an occasion to provide the most boiled down, nuts and bolts explanation of this possible, so that even if they do not read Keyssar’s book (which they should, in fact you should read both) they would come away with a better understanding of how our system works.
I found this approach suited me, so I did it again for Alex Hertel-Fernandez’s State Capture, which primarily discussed the American Legislative Exchange Council (ALEC) but also talked about the State Policy Network (SPN) and Americans for Prosperity (AFP). Books like Keyssar’s and Hertel-Fernandez’s discuss all the characteristics of their subject matter from various angles, so in my review I try to bring that all together to give a single, comprehensive description. I was once again satisfied with the results, and in both cases the exercise of writing the review helped me grasp the subject matter much more strongly myself.
These nuts and bolts exercises really are the bread and butter of this project. Part of what’s slowed me down with the paper is I’m attempting to describe, in nuts and bolts, something orders of magnitude more complex than what I described in those book reviews. The Electoral College, while a Rube Goldbergian nightmare, is at the end of the day a single decision procedure. ALEC is a novel but niche interest group. The story of the VRA involves the conditions under which a bill may become a statute, the specific actions taken by the DOJ lawyers, the methods by which state officials attempted to defang it, the role of suits brought by activists and state AGs, court decisions, multiple Congressional renewal fights, and so on. A nuts and bolts explanation of why the VRA succeeded in actually crushing Jim Crow where all previous attempts had utterly failed must touch on basically every aspect of the American system of government, federal and local. It’s very hard!
Complaining aside, it’s been tremendously rewarding. And somewhat unexpectedly, though perhaps unsurprisingly, it has helped me to think much more clearly about liberalism. The discipline of thinking through the details as carefully as I can has helped even in more theoretical matters, such as my discussion of the various distinctions that get unhelpfully lumped under the heading of “free speech.” It also paid off in my investigation of how our media ecosystem performed in the first few months of the pandemic.
I spent a lot of time thinking about the role of unelected judges and judicial review in a democracy, and ended up confident enough in my views to write on the matter. I have a draft of a piece about liberal democracy as a whole, which I intend to publish after Biden is inaugurated, that further develops a thread I introduce in the piece on judges; the idea that governance is done by professionals, and that professional politician is therefore not a pejorative and we ought to better support our elected officials with large staffs and other resources to do their jobs properly. ALEC can only exist at all because state legislatures are chronically underfunded, and so it can offer staff and researchers and pre-written bills to its members.
I have read a lot of books in this project, as I mentioned. Here are some that I would recommend to anyone curious about these kinds of questions:
- Both of Keyssar’s books of course, but especially The Right to Vote
- Also State Capture, of course
- Two books by David Mayhew:
- Congress’s Constitution
- When the State Meets the Street
- The Supreme Court and the American Elite
- The Rise of the Conservative Legal Movement
- Disjointed Pluralism
- Patterns of Democracy
- Give Us the Ballot
I did some comparative reading, though not as much as I’d like. Patterns of Democracy is a big survey; I also read a bit about the German and the Israeli systems. I intend to read about the French one, one of the few proportional parliamentary systems with an elected president. As far as I am concerned, this project has only just begun. I will hopefully make some progress on the paper over the next few weeks, and finish Heath’s book, and press on.
A new love
When I started reading the Library of America collection of James Baldwin essays in January, I did not expect to fall in love. I had read “The White Man’s Guilt” not even a year before, and it was like a lightning bolt. He unearthed something so clearly, and in such beautiful prose, which I had long felt. Rather than feeling attacked or criticized, I felt understood. It was, perhaps surprisingly, a pleasant feeling. I wanted to return to the well. I also simply wanted to read good writing. My plan was to pick up the massive tome—which includes five other previously published collections in full, such as Notes of a Native Son and The Fire Next Time, along with another few hundred pages of essays beyond that—and put it down, and pick it up again, over the course of the year.
Perhaps it was everything that happened this year. Perhaps it was simply that I fell so completely for Baldwin’s writing. But as the year went on, I simply devoured the book. I finished it, and went on to novels; I read If Beale Street Could Talk, and went right on to Tell Me How Long the Train’s Been Gone, and Go Tell it On the Mountain, and Giovanni’s Room, and I recently finished a short story collection. I have a couple more books by him I intend to get to before I start reading about him; there’s no shortage of biographies on the market at the moment.
His writing is very beautiful, but more importantly, it is very bold. He makes me feel like a terrible coward by comparison. But I feel admiration rather than envy. I feel, through the autobiographical nature of his writing (both fiction and nonfiction), that I have come to know him in a way. I ache with the desire to have a conversation with him. Since I cannot, I continue to read.
I have tried to take the craft of writing a little more seriously. When Jason suggested writing something about Mohamed Bouazizi for what would have been his birthday, I decided I would try to think about it as a piece of writing rather than as a simple analysis. While my project helped me think things through even here—Bouazizi’s self-immolation led to a national democratic revolution but changed nothing about the municipal problems that drove him to his death—it was really James Baldwin who was my primary inspiration in writing the piece, even though I won’t pretend it is either in a similar style or within screaming distance of his caliber.
“Discovering” Baldwin has been a real pleasure, a relief from the difficulties of this particular year.
We launched a Patreon for Liberal Currents about a month before everything went to hell. We have had quite the year as a result. I turns out that if you offer to pay people, many will come out of the woodwork to pitch you! And I’m quite pleased with the range of work we have published. Over 66 in total, so I certainly won’t link to them all! Here’s a sampling:
- Julie Moronuki, Rape Prosecution and the Social Hierarchy. Unfortunately this one is just before we launched the Patreon but it’s so good, I have to share it! I very much hope Julie will write for us again.
- Matthew Downhour, Multilateralism Without Universalism: Hard Lessons from WHO During COVID-19
- Really just go and read all four pieces that Bianca Gonzalez wrote for us!
- Paul Crider, At the Liberal-Socialist Nexus
- Mila Ghorayeb, The Limits of Standpoint Epistemology for Politics
- Adrian Rutt, Lessons for the Left: Achieving Our Country Revisited
- Michael Hoffman, Guido de Ruggiero and the Crisis of Liberalism
- Marcus Schultz-Bergin, From Utility to Liberty: The Case of John Stuart Mill
- Sharon Kuruvilla, Uyghurs: A History of Oppression
- Greg Caskey, “Separate But Loyal” Or Second-Class Citizens? Timothy Grose’s Negotiating Inseparability in China: The Xinjiang Class and the Dynamics of Uyghur Identity
I apologize to those who I did not mention here; there are too many good ones to choose from! I’m very excited by how well things have gone for Liberal Currents. Right now, other than our budget for authors, our chief constraint is editorial capacity. While we’re now a paying publication, our editorial side is still an entirely volunteer effort. This was a particularly difficult year for all of us to find the time for it. I want to give a special shout out to Adrian Rutt who did a tremendous amount of editing this year. Without him, Paul, and Jason, Liberal Currents would simply not be possible. I’m grateful to them all.
If you like anything I’ve linked to above I hope you’ll consider supporting us yourself! Or, if you are a writer, reaching out to pitch us a piece! You can do so at writers at liberalcurrents dot com.
It wasn’t all political science and James Baldwin and liberalism for me this year, reading wise. Martha Wells kindly saw fit to publish the first full novel (as opposed to novella) in her Murderbot Diaries series this year, and I ate it up. If you have not read this series, please get yourself a copy of All Systems Red yesterday; it is a delight to read. I’ve pre-ordered the next book in the series, but missed Wells’ storytelling so much that I went and read all of an earlier, fantasy series of hers, which consumed me for a while. Wells has such a skill for surprising you with an incredibly imaginative world that is slowly revealed through the lens of very enjoyable characters.
I also read Alex White’s Salvagers series and enjoyed it tremendously. A really rollicking fun ride. I listened to White’s podcast novel, The Gearheart, back when I listened to podcast novels. His writing has improved by leaps and bounds since then, but I can see how he got here from there. I stumbled upon Every Mountain Made Low shortly after, and enjoyed it as well; it appears to be a one-shot but that’s fine, not everything has to be a series.
I read Arkady Markine’s A Memory Called Empire and immediately pre-ordered to next book. One of many things I enjoyed about this book is that the space empire is a decadent poetry and literature obsessed civilization, rather than an ice cold, progressive technocracy. More historically accurate!
At the prompting of friends, I started Ken Liu’s Dandelion Dynasty with the first book, The Grace of Kings. It’s quite a tour de force. A very sophisticated book with a lot of attractive characters, cut more closely from history than I had realized while reading it. I plan to read the next one after Baldwin’s Another Country.
That’s more or less what I wanted to talk about in this post. There’s a lot I decided I did not want to talk about, as I mentioned.
Next time, perhaps.
As I wrote this, my wife informed me that the mother and brother of a close friends of hers, a nurse and a resident doctor respectively, have received the vaccine. The end of the year is upon, and maybe the end of the pandemic is closer than I feel, at this moment, it possibly can be.
But I’ll leave it at that, for now.