Category: contitutionalism

My Paper is on SSRN, and Other Project Updates

I received a great deal of feedback after my last post on the state of my paper. The most important of these came from Ryan Muldoon, who very generously laid out what he thought options were in seeking publication in an academic journal. He suggested some papers and books to engage with in the paper, which I fully intend to read (along with a couple of other papers in the same literature).

After giving it some thought, I decided to publish the current version of the paper on SSRN. You can read it here.

Based on Ryan’s suggestions, the next version of the paper will likely be a substantial rewrite.

  • The additional research and of course the writing itself will take time, and I intend to hold off on this until I’ve gotten to a few other things in the larger project this is a part of, which I’ll discuss below.
  • The biggest change will be to create section which reviews the literature on norms and the law, and place my paper in relation to it, and defend the strength of my particular approach over others.
  • The overall effect however will be to make the paper more thoroughgoingly theoretical, as I will likely need to chop down the bits of the history I go through in order to make space for putting the parts I do keep through a more granular analysis according to the framework.
  • In many ways, this simply continues the types of changes I made between the second draft and this one. But I quite like the current version. Even if it is not likely to fare well in the academic marketplace, I’d like to put it out there. Hence publishing it on SSRN.
  • Publishing it also leaves open the possibility of someone finding it and reaching out to (highly unlikely) talk about publishing it, or (more likely) offer valuable feedback.

So that’s where things stand.

The paper, of course, is just one piece in my ongoing research project, though by far the most rigorous output thusfar produced. But I have other things I’m going to be working on, largely book reviews, that are going to take priority over working on the paper for the time being.

The first of these will pair the volume Congress Overwhelmed with Joseph Heath’s The Machinery of Government.

Heath’s book continues to capture my imagination with its unflinching bullet-biting. In Heath’s view, the 20th century saw the decline of the active role of legislatures in political systems around the world, displaced by a ballooning executive branch. Rather than attempting to address this like most political scientists or theorists writing on the subject inevitably want to do, Heath articulates the implicit norms of the status quo, and defends them as continuous with the liberal project.

The contributors to Congress Overwhelmed, on the other hand, are looking at the decline of the American Congress specifically, and attempting to diagnose the specific causes and devise reforms to increase the centrality of that institution again.

Something I did not appreciate until I began this research project is the fact that “parliamentary supremacy” does not, in fact, imply that members of parliament have a larger role in those systems than members of Congress have in ours. Quite the opposite. Mass democracy and the rise of the administrative state have turned parliamentary government into ministerial government, as ministers (rather than a particular members of parliament) introduce all of the legislation, and since the Prime Minister is the head of the majority party (or governing coalition as the case may be), they are virtually guaranteed to have the votes they need. Members of Parliament therefore become a bit vestigial for legislative purposes, and Parliament itself becomes predominantly an indirect mechanism for the popular selection of ministers, as well as a provider of constituency services.

In Congress on the other hand, power is much more decentralized—though the extent to which this is true varies tremendously, especially in the House, but that there is a decentralization leg of the cycle at all is noteworthy, and even relatively centralized moments (such as the current one) are far more decentralized than parliamentary systems.

I see the pairing of these two books as asking whether the path taken by liberal democracies in the 20th century largely correct, or is substantial correction needed to strengthen the role of legislatures? Can they be strengthened, or is some version of the current status quo overdetermined by structural factors that cannot be meaningfully compensated for?

After that I plan to review A Pattern of Violence, which looks at the effects of how a crime gets classified, something highly relevant to my project.

And of course, my main role at Liberal Currents is not, in fact, as a writer, but as Editor-in-Chief! Never mind my responsibilities to my family and my actual employer; in short, it’s certainly going to be a matter of months before a substantially revised version of my paper, likely with another title to distinguish it from what I put on SSRN, can be completed.

That is the long and short (but mostly long) of it.

For the curious, the paper-specific reading that I’m going to be doing is:

  • The Grammer of Society by Cristina Bicchieri
  • Norms in the Wild by Cristina Bicchieri
  • “Social Meaning and Social Norms” by Larry Lessig
  • “The Regulation of Social Meaning” by Larry Lessig
  • “Social Norms and the Law: An Economic Approach” by Richard Posner
  • “The Bases of Cooperation: Social Norms and the Rule of Law” by Jack Knight
  • “A Grammar of Institutions” by Sue Crawford and Elinor Ostrom

That’s the current list, anyway. I’m sure it will grow. It always does.

The Journey of My (Still Unpublished, But Finally Written) Paper

Almost a quarter of the way into the year and it’s my first post of 2021. A few things have perhaps happened since my last rather bitter post.

But this isn’t a post about any of those things. This is a post about my paper, which I’ve talked about before.

The very idea of what the paper would be evolved many times. The framework came first, based on some spitballing I’d been doing almost entirely in blog form, rooted in many years of obsession with hermeneutics, communitarianism, speech acts/pragmatics, and institutional analysis, obsessions to which I subjected many innocent friends, and obsessions which my whole project is largely aimed at bringing to the ground, and giving bones, blood, and flesh.

The original conceit was to focus on various types of actors and the actions available to them, and the ways these actions reverberate in the social environment the actors are acting in. I was stunned when I read David Mayhew’s book, America’s Congress: Actions in the Public Sphere because it displayed a worldview very similar to my own, in which institutions provide actors with stage of action, indeed make certain categories of action possible that otherwise would not be. Josh Chafetz’s Congress’s Constitution took a very similar approach as well. Actual adoption of a framework like this was relatively rare among what I read but much of the analytical and empirical work I have encountered in my project is comfortably compatible with it.

I walked through the various iterations of the basic formula in an earlier post. Naturally, since it has been three months, that formula has changed again. Actually, it changed in just the last week, but I will get to that.

Back in August or September, I thought I had the basic formula licked. In fact, I thought I had the whole theory section nailed down, and all I needed to do was get through the application. My first plan was to apply it to a detailed institutional analysis of Congress, as that was a topic I had spent the most time on so far. This quickly proved too intractable and nonspecific an object. I can’t say what exactly put me on the course I eventually followed, but I think it was watching the Baldwin/Buckley debate. Early on Baldwin notes:

We have a civil rights bill now. We had the 15th Amendment nearly 100 years ago. If it was not honored then, I have no reason to believe that the civil rights bill will be honored now.

When I watched, I thought he was referring to the Voting Rights Act, but the timing of the debate was such that he must have been referring to the Civil Rights Act of 1964; the VRA would be passed later in 1965 than the debate occurred. The VRA did make a difference, where the 15th Amendment did not. This framing hooked me; so much of my research has centered around this exact sort of question. Why did this law have an effect but this one did not? Why did a statute make such a difference when an amendment did not?

I decided that would be the application. By the end of September I had written a very rough draft, based on what I knew of the VRA’s history. On Adam Rust’s recommendation, I then read Ari Berman’s Give Us the Ballot which traced that history in tremendously granular detail. I finished the book in October, but progress on my paper was halting and a struggle. Part of that was simply, well, life. Work, Liberal Currents, the pandemic, two small children; I have felt stretched much more thinly these past couple of months than I somehow did for the bulk of 2020, for reasons I could not explain purely by pointing at objective events which occurred during that time. Anyway, we’ve all been there this past year, we all are there still, some much more so than me.

But beyond these difficulties was a more prosaic problem; I was not sure how to turn the ingredients that Berman offered into the dish I wished to cook. My framework demanded a lot, and he supplied it, but that didn’t mean that I had the skill to use those materials. It was a much bigger challenge than anything I had previously attempted.

I decided to take a page from the way I laid the groundwork for my essay on the media’s early coverage of the pandemic, and construct a timeline. I began, sporadically, in January, and managed to get it done in February. The morbidly curious may see the mess of a thing if you so wish. It helped me get (somewhat) structured and get me going again; I began the second draft in earnest in mid-February.

Looking at things through the lens of why some specific action by some specific actor was more effective than others can get you searching for information at a level more granular than even Berman or others go. At one point I became somewhat obsessed with the question of why federal agents being able to directly add names to voting rolls would make such a difference. Aren’t they just names in a list? Wouldn’t it have been trivially easy for southern officials to smile and nod when federal officials handed them the lists, and then simply thrown them in the trash, or marked them in some way to indicate to poll workers not to let those people vote when they showed up on election day?

I could not find the details about this hand off, or any real particulars of how federal agents taking down names translated into official recognition on election day. So I speculated a little. Here’s an excerpt from the current version of the paper:

To understand the power of voting rolls, consider the scenario of businesses who wish to underreport their revenue. Superficially, simply lying about revenue seems like an easy task. But correct knowledge of income and costs is crucial for businesses to operate at all, so in practice this deception requires keeping one set of closely guarded documents for the people running the business to see, and one set of documents for tax purposes. The existence of the secret documents is a vulnerability; their discovery would constitute proof of noncompliance.

Voting rolls are similar; county officials can keep two sets of voting rolls but need to give a list of names to poll workers on election day. Federal examiners are authorized by the VRA to check that list and compare it to a list of who federal agents had registered in that county. Blatant noncompliance, so long as examiners were watching, was therefore much more difficult. And once examiners have registered a large number of voters in a jurisdiction and overseen an election, the newly registered voters will, so the theory goes, have exerted their influence at the polls and changed the electoral calculus, at least a little.

I couldn’t find anyone who walked through the particulars, so I posited a model that I think is pretty plausible. No idea if this kind of thing will pass muster at a peer reviewed journal, but I think it’s a pretty good model, and I hadn’t seen any attempt to try to explain things at this level.

Obsessions and struggles aside, I finished the second draft the first week of March, and felt pretty good about. But I knew I was way too close to it. I didn’t just need someone to help me edit it, I needed someone who would tear it apart and find the weaknesses I wasn’t capable of seeing any more. So I asked my friend Andrew, who has a skill for finding such weaknesses. And he absolutely obliterated my paper.

Honestly, I was so in awe of how completely he tore it apart that I wasn’t even bothered by watching all those months of work fall apart before my eyes. More encouragingly, he saw very clearly what it was I was trying to do, and his feedback was often in the spirit of “stop giving us all this irrelevant history unless you can actually tie it back to your framework and describe it in those terms.” After obsessing at the level of voting rolls, it did smart to see several passages he called out for being too abstracted from particulars!

Somehow his demolition was actually inspiring rather than disheartening, because I turned around an almost complete rewrite of the paper in under a week. Andrew looked it over again and had only minor feedback.

That timeline that I built up over months? Ended up being almost completely irrelevant to the final product. But the work was not wasted, exactly. The reason I could knock this draft out so quickly this time, even though very little of the second draft’s text was preserved, is that I’d become very familiar with all the particulars. Even though I had to throw out a lot, it was trivially easy for me to draw on what I did need very quickly, and assemble it into the shape I needed it to be.

The last crucial ingredient was an old paper—ironically, from 1965. I wanted to get at what people talk about when they talk about norms, but it seemed to me that the term was fairly underspecified. Jack P. Gibbs’ “Norms: The Problem of Definition” was an excellent reference point.

I didn’t want to use this gigantic taxonomy, though it helped me to clarify my thinking and I of course cited this paper in mine. But what I actually ended up using, in modified form, were his notions of “collective expectation” and “collective evaluation.”

So the (final, I swear) formula I use involves:

  • Groups that are formed by
  • Collective Perceptions held by individuals in the group, who may become
  • Actors by taking some
  • Action, which, if successful, influences the collective perceptions of the group and therefore the relations among its members.

And I elaborate in another part:

  • Groups are individuals bound together by collective perceptions. This necessarily means that some groups involve more people than are in a particular physical location, but some physical locations become venues in which collective perceptions form a particular group; the courtroom and the comedy club are two such examples. 
  • Collective perceptions are what individuals in the group perceive that other individuals in the group perceive. Collective expectations and collective evaluations are a subset of collective perceptions. Collective expectations are expectations that individuals in the group perceive that other individuals in the group have. Collective evaluations are beliefs about what an actor ought or ought not to do, or what action ought or ought not to be done, that individuals in the group perceive other individuals in the group to have. The exact proportion of individuals who must hold this perception, and how widely they must believe the perceptions, expectations, or evaluations are held, in order for it to shape the character of a group, is a difficult empirical matter that is outside the scope of this paper.
  • Actions come in many types but the basic distinction drawn in this paper is between those that cause an immediate change in institutional status and those that do not.
  • Actors are simply anyone in a group who is taking action. The actions available to them are determined by a number of factors, including the particular collective perceptions of the particular group, but also technology. Crucially for this paper, some actors are collectively perceived to fill a role in some group which gives them authority, or the collective evaluation that some specific other actors ought to show deference to them and their actions within some specific domain of action.

This is, I think, a far superior formulation to the one I had landed on back in September (which you can see here, as well as its precursors). Wrestling with collective perception and its aspects made the crucial difference, for which I owe the Gibbs paper.

The application part of the paper actually applies this to a much greater extent than the formula in the second draft was applied in its application section. There’s very little about the 15th Amendment or the VRA that I describe without putting it into these terms and illustrating what the framework sheds light on. I added a particularly involved discussion of why actors in Congress and the rest of the federal government who thought the situation in the south was unconstitutional and unjust nevertheless had their hands tied by the nature of the collective perceptions that formed the very groups which provided them with the possibility of taking action on that matter.

Long story short (too late) I am very pleased with how this has turned out. I’m going to have one or two more people take a look at it before I start reaching out to some friends I have in the academic world, to ask for advice on how I should go about seeking to get this published. No guarantee it will be published, but for now, I am relishing the accomplishment of having cleared the struggle of writing it. It will make it out into the world, one way or another. But I hope that it does so in a peer-reviewed journal.

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.