Freelancers and Staff Writers: I Need Your Advice

Things have gelled rather quickly since my last update. The form of the piece I want to write about institutional reform has taken a more definite shape in my mind; I have added four books to my list that I think I need in order to get the details down but am confident I can write what I want once I go through those (and probably sooner).

So I’m asking for help from those of you who know what you are doing: freelancers and writers of all sorts who have pitched pieces to big publications.

My goals are a little different from yours; I’m not trying to make a living off of this, at least not right now. If I could place this piece in The Atlantic without compensation, I would in a heartbeat. I want reach and prestige, in that order.

To that end, I have two questions for you:

  1. Where should I pitch this piece? The basic selling point is “We need systematic institutional change, here’s what it should be and how we should get it done.” It will be a lengthy piece that goes through some fine institutional details as well as political strategy. As mentioned, The Atlantic is probably the ideal but I’d love to hear about other options.
  2. How should I go about this? Emailing the generic pitch alias at a publication seems…like an almost guaranteed way to never hear from them. I’ve tried looking into which editors are subject-matter appropriate for a given pitch, but my toolset is fairly limited there.

Any tips are greatly appreciated!

Highlights from the Year So Far

This year has not…quite…gone as expected. Remarkable that on March 10th I was writing about constitutionalism without any tip of the hat to the unfolding events. Then again, fixating on an unrelated topic to avoid the matter at hand is a rather predictable tendency of mine. Especially if that unrelated topic involves a lot of reading and writing and arguing.

I’ve been getting that itch to write again, but I’ve just recently completed a rather large writing project and don’t have something else specific I’m working on. So I thought I’d go through some updates here.

Liberal Currents

At the beginning of February we launched a Patreon for Liberal Currents. The immediate goal was simply to get enough to begin paying authors, which we accomplished in the first week. I’ve been blown away by the support we received, especially with the level of support from each individual patron.

By this point last year I had not written a single piece on Liberal Currents, and would not until July. In 2020 I’ve written four so far, two of which I put a significant amount of work into, and the most recent involved more research than I have done for a single piece in many years.

Sometime in February, Jason Briggeman floated the idea of writing a piece about Mohammed Bouazizi, the Tunisian street vendor whose self-immolation had sparked a series of mass protests that spread and became The Arab Spring (to summarize simplistically). I was a bit unsure about the idea, as I didn’t know what there was to be said about Bouazizi specifically.

The idea was to put up the piece on what would have been Bouazizi’s birthday. I began digging into what was known about him and decided that I ought to use this as an opportunity to try and grow as a writer. I have a tendency to write highly analytical, argument-driven pieces, but I have a great admiration for writers like my friend Dave. Dave filled Sweet Talk with posts that were both beautiful and invited his readers to approach wisdom, without hitting them over the head with it. I have also been reading essays by James Baldwin, for whom the beauty of his prose was also coterminous with the wisdom contained therein. Notably, both of these men are novelists as much as nonfiction writers.

I would not utter my final result in the same sentence as a work produced by either of these talents, but I was quite pleased with it. Of course, by Bouazizi’s birthday, March 29th, everyone had something quite different on their minds than revising the personal story of the man who inadvertently began mass protests back in 2011. All the same, I hope you’ll consider reading it.

My most recent piece is more in line with how I typically write, but producing it was quite an endeavor. As the pandemic steamrolled everything else, I first sat down, in March, to write a hit piece about the conservative media. It was going to be a straight application of my narrative of the conservative media insurgency to those figures in that ecosystem who at that point were claiming that shutdowns were nothing more than a liberal attempt to tank the economy and hurt Donald Trump’s reelection chances. Only as I began to do the research for the piece, the reality did not appear nearly so one-sided. The mainstream and liberal press made many glaring mistakes as well as bad faith maneuvers in the early days of the outbreak.

As my family and I fled to my parents’ home in order to have access to a better hospital situation when our second son was born (as he was, safely and without complication, on April 27th), I tabled the piece. But the question of how the media had performed, and how one would even go about evaluating it, stuck with me. Some individuals who had been sounding the alarm early, like Matt Parlmer and Balaji S. Srinivasan, had blistering critiques of the media’s coverage as a whole. A locked account that I follow pushed back on this category of critiques, saying “I don’t know what people mean when they say the media failed in its coronavirus coverage. I followed the outbreak from the beginning and was only able to do so through the media.” Then there was the blog and social media aspect; a Medium post in early March had gone so wildly viral that it was a subject of conversation at my place of work, with members of my team specifically recommending it to me.

When I began to rethink the piece, Adam Rust and I talked about a collaboration. We would use the media performance during the Spanish Flu as a historical point of reference. He would write about that, and I would write about how the media performed today. So I went and gathered more and more sources, ultimately amassing something like 200 (the exact number is kinda arbitrary to pin down because some were tweets, some were essays, most were articles but some articles I used for constructing a timeline of events rather than for evaluating coverage).

The more I read, the harder a time I had formulating a one-liner version of my evaluation. So once I finished my research, I sat down and simply tried to write something out. The first draft, completed maybe an hour before we went to the hospital for the baby to be born, clocked in at 6,000 words. Rust was kind enough to provide feedback on this draft, but suggested that expanding it by writing an additional section on the Spanish Flu was probably ill-advised. Between his feedback and my father’s (who I probably would have solicited it from regardless given the topic but it was nice to be able to discuss it in person) I shaved the piece down to 5500 words and, more importantly, significantly restructured it.

For such a monster of a piece, it has been among the more successful at Liberal Currents this year. The Neoliberal Project folks liked it so much that they invited me onto their podcast.

I’ve been babbling on about my pieces, but we’ve published ten others so far this year. In addition, our pipeline is as robust as it has ever been—it turns out more people will write for you when you pay them for their work! Liberal Currents has grown in general, in its audience, its social media following, its contributor base, and as mentioned, its revenue. It’s all happening as an unprecedented disaster rocks the world, so it’s easy to lose sight of. But I’m extremely proud of everything we’ve accomplished since we launched three years ago.

The research project

As I mentioned at the outset, my research project is broken up into four reading lists. I made the conscious choice not to share those lists because I planned to be updating them as I went, while keeping them roughly the same length (with the exception of the fourth list, which is more of a place to dump things that would be nice to get to some day).

As an outsider to the fields I am reading up on, my initial lists were self-consciously tentative based on extremely limited knowledge of what I even needed to know. As I read more, and connected directly with more scholars for recommendations, I substituted the books I originally put on the list for better, more relevant, more authoritative texts.

However, at this point I have almost completed the first list, which I had set a (quite conservative) goal of completing by October. It is the only one of the lists I put a deadline on; essentially I wanted this list to give me the bare-bones basics of what I’d need to write the piece I hope to write in November.

It will be a stretch to finish the second list in time, but I think I can realistically get through half of it; hopefully more! Getting to the third list is extremely unlikely, and starting the fourth list by the end of the year is, I think it is safe to say, impossible.

At this point I can share the first list, though:

I can’t even begin to say how much I have learned, compared to how little I knew at the start, and I still know so much less than I need to. As you may have noticed, I began by writing reviews of each to help me absorb them a bit better, as well as some more gut-responses here. I intended to write a joint review of Congress’s Constitution and The Politics of War Powers and still may, but the pandemic intervened; my family left our home temporarily and the books stayed behind. I will undoubtedly write a great deal more and revisit many of these numerous times, but doing it one by one (or even two by two) was simply going to take too long.

I’d love to have the forthcoming Congress Overwhelmed on this list but it looks like the review copy won’t be coming soon enough. Hopefully it’ll make it in time for the second list.

Murderbot

The last few years I’d tried to balance nonfiction reading with novels, but my constitutionalism project has left little room for that this year. After reading The Last Policeman trilogy in December and January—a good series, though it probably could have been a single book rather than a trilogy—I didn’t read any other novels. But then Network Effects, the first full-length novel novel in Martha Wells’ Murderbot Diaries, came out, and it seemed an opportune moment to take a break from the research project.

I cannot recommend that series enough. As I mentioned, the latest one is the only novel-length part of the series; the first four are novellas. All Systems Red, the first in the series, can be obtained for two bucks and is a very quick read. If you like science fiction at all, or fun, campy series, (like Buffy the Vampire Slayer for example), you owe it to yourself to give this one a try. I’d love if it took off and we got a Netflix series out of it.

I can’t imagine I’ll be getting to too many more novels this year unfortunately, with the tight timeline I have for my research project. But it was definitely worth the detour for this particular one.

That’s all I’ve got. Thanks for those of you interested enough in what I’m working on to read through infodumps like this.

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.