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!