Words, Words, Words

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.

The project

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:

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.

Liberal Currents

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:

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.

Novels

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.

Applying the Foundation

It’s been almost four months since my last project update.

I use these updates to think out loud, to act as a sort of public record mainly for myself, as well as to solicit advice and gauge interest. From the start I’ve said that the primary goal of this project was “to build a basic foundation” of knowledge that could be applied opportunistically to a variety of different things, so zigs and zags were part of the plan from the get go. Still I feel a bit embarrassed reading my previous update and seeing that the paper I’ve worked on bears very little resemblance to the planned paper described there.

On the other hand, I do have a viable draft of a paper which applies what I have learned. It’s rough, but just getting a first draft is always the hardest part.

Last week in particular ended up being very productive on the writing front. I wrapped up the first draft of the aforementioned paper, and I also knocked out a piece for Liberal Currents.

I have had a laundry list of structural reforms I think are a good idea for months now. I’ve tinkered with it along the way but I more or less have a package, as alluded to in my last update. The problem is that turning this into a written piece that is anything but polisci daydreaming verging on utopianism (Sam Hammond described the precise genre of writing as being “very LARPy”). The more I read, the more I also feel that the specific reforms aren’t the most important thing. There’s systemic effects I want to aim for, but the potential range of reforms that could pull it off is vast. In the American case, operating under the assumption that the Senate is impossible to abolish (because it would require unanimous ratification from the states) and Americans are too wedded to their history to consider anything but a presidential system, I would want:

  • The House of Representatives to have primacy over the president, the Senate, and the courts, but also to have institutional competence at writing good law.
  • The Senate to serve purely as a quality filter against bills coming out of the House responding to very short term political calculations, but a filter that the House could unilaterally override with enough support.
  • The President is elected by truly majoritarian means (no Electoral College) but is also more or less removed from the legislative process, and the House has accountability mechanisms with real teeth.
  • The Courts are independent but when their decisions run strongly counter to the elected branches, Congress has the energy and competence to simply update statutes (in response to court interpretations of statutes) or the Constitution (in the case of judicial review).

This last one I struggled with a great deal. In many ways the original motivating questions that instigated this project centered around what, exactly, the role of the judiciary should be, as well as constitutional law in general. When one takes seriously the sheer sloppiness and inconsistency of human institutions—before one even begins to add bad faith and cynical actions into the mix—it becomes easy to question the very idea of rule of law. I did not want to shrink from asking hard questions about rule of law, but also worried about the consequences of throwing out the idea entirely, if that’s where I ended up after further inquiry.

Both the paper and the article address this gnawing dread of mine, in I think a productive way.

The paper is one part theory and one part application. The theory is the one thing that has remained fairly consistent, though I keep refining it bit by bit, and the paper is by far the best version yet. The questions, which I have formulated in a couple of different ways, are now:

  • 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 also flesh out three theoretical types of actors; with the stand-up comedian and the judge standing at opposite ends of a spectrum of institutionalized action, and the entrepreneur taking elements of both to become a distinct type of its own.

All of that was quite easy to write at this point, though I scrutinized it quite closely and invited (and received) criticism of it which helped substantially. But my original application section was a non-starter. I wanted to apply it to Congress as an institution; fleshing out its operation, showing how certain types of congressional action fall into one of the three types of actors I formulated, and so forth. Then moving forward to a discussion of reform. I attempted this section many times but ultimately threw it out.

Instead, I returned to law. I decided to look at law as it operates in practice, but not through one institution but across the (small-c) constitutional system. I picked the Voting Rights Act, because it is a subject of particular fascination for me. James Baldwin expressed skepticism about the success of the Johnson Administration’s civil rights statutes because, as he put it, there was a whole amendment (the 15th) already. What difference could a statute make? This was mere months before VRA passed. It’s a good question!

So the application section of my paper begins with the 15th amendment and a brief history of its enforcement or lack thereof. I dive into some of the conditions that made VRA possible, as well as some of the individuals who had an outsized influence on creating those conditions. Throughout I walk through the institutional mechanics of how these things are passed and how enforcement is empowered and used.

As I said, the draft is rough. I need to tighten the application section more, and stitch the theoretical framework in more seamlessly throughout. But I’m quite pleased with where I am.

The Liberal Currents article is ostensibly about the judiciary but is really about the role of independent institutions within a democratic order, and more indirectly about the role of democratic mechanisms in the first place. Coming out against elected judges, for judicial review, and for an easier amendment process so that the elected branches can respond to judicial decisions by simply updating legal (including constitutional) texts, is not all that conceptually pathbreaking. That last one is perhaps novel to many, as it was to me when Adam Rust first put it to me that way on statutory law. But what really focused it for me was something that appears a bit secondary in the piece:

In terms of elected officials, then, our goal should be to foster strong formal party organizations made up of professional politicians who seek to enact good laws and govern well. “Good” and “well” are not neutral, technocratic terms, but—whatever the specific values and visions inform them—they do require administrative and technocratic competence to execute. Professional politicians do not have those competences personally, and we should not fool ourselves into thinking otherwise, but they can have access to those competences in the form of well-resourced staff for their office, committees, and branch—like the old Office of Technology Assessment in Congress. Yet even if the typical professional politician lacks the administrative and technocratic competence to execute good laws and govern well, this is even more the case for the typical voter, who has no staff at all. This is why ballot initiatives and similar tools are a bad idea, and the legislative and constitutional history of states like California testifies to this fact.

The role of professional politicians is to be the point of accountability for citizens. They do not need to be mirrors for the preferences of citizens; indeed I would argue they should not be, and that selling good ideas to a potentially skeptical public is an important duty. But under a regime of effectively universal enfranchisement—that is, universal enfranchisement without voter suppression tactics—elections exist to ensure that professional politicians must take the interests and values of citizens into account. If this electoral mechanism is somehow weakened, as in the case of the six year Senator terms, or the franchise is restricted, then segments of the population will be left with few tools to stop the government from steamrolling their interests and their values.

There’s a tension between lifetime appointed judges and democratically elected representatives, on the one hand, but also between democratically elected representatives and directly democratic ballot initiatives, on the other. I want to weaken the formal power of the first, empower the second, and do away with the third entirely. But from the standpoint of either independence or democracy that seems a tall order. Isn’t this a case where one need to pick one or the other in some sense?

I don’t think so. I think that elections are an accountability mechanism, not a governance tool. To govern well, we need professional politicians with large, well paid staffs who can expect to have a career providing their expertise to politicians from within the institutions those politicians are elected to. Politicians are not subject matter experts on everything governance must touch upon; most are not subject matter experts in any of them. Their main skill is coalition building, both among the electorate and among other professional politicians.

The average voter is neither a subject matter expert nor do they have access to well paid staffs that are. They should not, therefore, be writing statutes or (heaven forbid, as in the California case) constitutional amendments, nor choosing them directly. They should have the means to punish politicians that allow the government (the machinery of which extends tremendously beyond those operated directly by politicians) to steamroll their interests and their values, and to reward those who they feel have properly looked after them. It’s up to politicians, and their staff, to square the value pluralism of the electorate with good governance and good law.

There’s a nascent theory of when to be more or less independent of electoral mechanisms in the piece, but of course there’s only so much ground I can cover in ~1800 words. Nevertheless, between the paper and the piece, I’m feeling much more comfortable with my sense of what rule of law means in practice, and what job it is we ought to be expecting judges to do.

On the horizon is a review of Reorganizing Government, a phenomenal book that was practically designed for a project like mine. I am also in the middle of State Capture, which I intend to review as well. The latter covers the mechanics of the American Legislative Exchange Council (ALEC) in some detail, something I had been looking for as a good angle on interest group politics in practice. After State Capture I will move on to Joseph Heath’s new book on the place of the administrative state within a liberal democracy.

Right now I’m becoming increasingly comfortable applying the foundation of knowledge I have built to pieces with fairly focused topics, as I continue to invest in that foundation further. The biggest failure mode I encounter in writing is when I attempt to go off into laundry-list (“LARPy”) wonk land. It is much better to get at the heart of the matter and discuss a few good options rather than attempt to cover everything, and in doing so, convey nothing. What pleased me about the recent Liberal Currents article is that I managed to gesture at a number of things (like proportional voting) but keep it in the realm of passing comments without getting bogged down. This is the line I will need to get better at walking.

That’s all I’ve got for now. I hope you all are surviving 2020 as well as you can.

Project Gameplan Update

Hello again.

Tomorrow I “go” back to work after six weeks of parental leave. I was, of course, tremendously lucky to have that, not to mention to have a job, and one that I can do from my apartment. Every few days in the nearly three months since the COVID-19 outbreak began in earnest in this country has felt like an eternity. And just when it seemed that things were settling down, at least temporarily, massive protests have been sparked by yet another police murder of a black man. Even here it feels as though the situation has moved at an insane pace; the narrative that appeared to be gelling a few days ago has been completely obliterated as protesters have gained such wide acceptance that even Mitch McConnell felt the need to chime in about the righteousness of their underlying outrage. When Mitt Romney is joining the protests and saying Black Lives Matter, some sort of corner has been turned.

Strange times indeed.

I want to thank everyone who responded to my last update with helpful advice or offers to introduce me to people. I think I have settled upon a plan of attack based on the conversations that came out of that.

The total package that I want to describe is too long, too detailed, and—I have no illusions about this—too unlikely for publications to take much interest in. So I’m going with a two-pronged approach.

I’m going to write a comprehensive paper that covers:

  • All of the reforms that I believe we should make
  • The framework in which to understand and evaluate them
  • Pragmatic considerations; why it’s useful to be ambitious thinking about what can be accomplished, which specific reforms should be prioritized in real world negotiations

Right now I plan to simply write it and put it up on SSRN, waiting until after it’s done to try and find a home for it. But if anyone knows of journals or think tanks that might be interested in publishing something like that, by all means clue me in!

In the meantime I will also pitch articles that focus on one or two of the reforms at a time, in a way that I don’t think is counterproductive. The biggest reason I want to treat the reforms as a package is that I firmly believe that to make a single change effective, one has to make other changes that effectively anticipate what the counter-response or undesired consequences of the initial change will be. In short, you want to have the right balance of changes. But I do think that some things, like party list proportional voting, can be pushed for with relatively minor additions and still be big net improvements. And publications are much more likely to go for those kinds of pieces than comprehensive constitutional reform packages.

Writing up the paper should also help in this regard. Since I want to discuss compromise solutions within it, those compromises themselves can become the basis of pieces for general audiences. The existence of the paper and, ideally, its publication, will also hopefully increase the chances of being able to speak more comprehensively to broader audiences.

That’s where things are right now! I will likely make fewer of these updates now that work is starting up again. As usual, thank you all for your interest and your support.

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!