Constitutional Law 101: A Primer for the Law and Political Economy Blog

K. Sabeel Rahman-

Part Three: The Substantive Constitution

Reconstruction, Freedom, and Nullification: The Battles over the Fourteenth Amendment

In 1872, newly-emancipated and enfranchised black Republicans won a wave of elections throughout the country, including in Grant Parish, Louisiana. The election was disputed and the conflict quickly escalated into an armed standoff battle between black Republicans, who occupied the courthouse in an effort to certify the elections, and white supremacist Democrats. This standoff culminated in an all-out assault by the former Confederates in 1873, resulting in the Colfax massacre, the slaughter of dozens of African-American defenders by William Cruikshank and his co-conspirators. Under the 1870 and 1871 Enforcement Acts—passed under Congress’ newfound authority under the Fourteenth Amendment—Cruikshank was prosecuted for conspiracy to violate the civil and political rights of African American citizens. But in 1876 the Supreme Court dismissed the convictions. United States v. Cruikshank effectively ended the aspirations for black political power, provided judicial sanction for the wave of white terror and violent suppression of communities of color, and in turn ushered in the collapse from the dream of Reconstruction to the terror of Jim Crow. The Court did so, not only by creatively (and incoherently) reading substantive limits into the Fourteenth Amendment—anticipating future doctrinal developments like state action, incorporation, the defense of states’ rights—but also by weakening Congress’ structural power to pass legislation enforcing the Fourteenth Amendment’s promise under its Section 5 powers.

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Constitutional Law 101: A Primer for the Law and Political Economy blog

K. Sabeel Rahman-

Part Two: The Structural Constitution

The Basic Structure

Suggested readings:

  • Federalist 10, 51
  • Marbury v. Madison, 5 U.S. 137 (1803)
  • McCulloch v. Maryland, 17 U.S. 316 (1819)
  • Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523-26, 528-29, 535-36, 538-43 (2004)
  • Jack Balkin & Sanford Levinson, Constitutional Crises, 157 U. Penn. L. Rev. 707, 708-9, 711-15, 720-22, 728-32, 736-39 (2009)

One of the central functions of the Constitution is to structure the core institutions of government. In our constitutional system, this means the allocation of power between federal and state governments (“federalism”), and the division of powers between the federal branches: legislative, executive, and judicial (“separation of powers”).  Taken together, federalism and the separation of powers comprise our basic constitutional structure.

For starters, the Federalist Papers offer a distillation of the political theory animating this basic structure. Pay close attention to how Madison describes the dynamics of power, ambition, and the purposes of institutional design. This is not a government designed to rely on or even encourage civic virtue; rather what we see here is an emphasis on politics as conflict and contestation. The task of institutional design is to contain and channel that contestation into productive ends. This idea of productive contestation is central to a particular strand of republican political thought, and a key to the basic structure. Through contestation, faction can check faction, corruption can be prevented, and ultimately government can be harnessed for the common good. We also see here a deep concern with concentrated power. A key part of the design is to diffuse political power, preventing domination by distributing power across different governmental bodies.

As Madison suggests, however, these institutional designs do not come into being simply from being put on paper. The Marshall court’s foundational rulings in Marbury and McCulloch were arguably nearly as crucial to the founding of the Constitution as the drafting itself. As the Levinson, Balkin, and Tushnet readings highlight, these foundational cases were decided not just on the basis of deep principle and reasoning, but also in the heat of the political moment, with very real partisan and power-politics debates at play. These historical backstories are vital reminders that the Founding was not some era of “pure virtuous” politics, and that constitutional law is often forged in the fires of partisan and political conflict. Indeed, this reality is one reason why Marshall’s reasoning in both of these cases are so deeply “structural”; note how Marshall’s approach to constitutional reasoning combines text, and history but focuses on the structural and long-term institutional implications of potential rulings. Marshall (like Madison) sought not only to assure checks and balances, but also to assure an effective government. That meant in turn assuring that the federal government has basic capacities to act.

This basic tension—between assuring checks and balances and accountability against arbitrary political power on the one hand, and assuring a powerful and efficacious government on the other—runs through the first half of most Con Law courses, encompassing units on the Commerce Power, federalism, and the separation of Powers. The next few sections extend these themes in context of traditional Con Law reading assignments.

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Constitutional Law 101: A Primer for the Law and Political Economy Blog

K. Sabeel Rahman-

Part I: Constitutional Law as a Political Economic Battleground

For students and scholars interested in questions of political economy, inequality, exclusion, and power, conventional black letter law classes can often be daunting. The volume of case law and the compressed time of the semester can often squeeze out more thematic and critical discussion of these themes. Furthermore, the selection of cases covered and the focus on current legal doctrine may not always highlight fully the contingencies, roads not taken, and the normative and structural stakes of these legal debates. This page, like others in the “Law and Political Economy 101” series, offers a primer on constitutional law from the perspective of political economy. There are of course many different ways to approach a constitutional law curriculum centered on LPE themes; this series represents one possible approach.

This primer is designed to be a companion to a standard semester-long class on Constitutional Law covering Federalism, the Separation of Powers, and the Fourteenth Amendment. Beyond the doctrinal developments and case law, any constitutional law course raises several key overarching themes. Note that this primer does not address issues around First Amendment doctrine and courses focusing on speech and religion questions. This first post of three highlights themes that I explore in subsequent posts.

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Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

K. Sabeel Rahman –

Consider the following developments:

  • In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.46038488 - law concept: circuit board with  scales icon, 3d render
  • Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
  • These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

There has been a growing sense of concern about the twin crises of twenty-first-century democracy on the one hand and of the growing problems of inequality and insecurity on the other. Technological change is at the heart of both of these transformations. Technological change alters the distribution and dynamics of political and economic power, creating new forms of “functional sovereignty”—state-like powers concentrated in entities and systems that are not subject to the institutional and moral checks and balances that we associate with the exercise of public power. Such arbitrary power represents a kind of quasi-sovereignty that, left unchecked, poses a threat of domination.

The rich scholarly debate on law and technology has surfaced a range of approaches for addressing some of these concerns, from legal standards for privacy and data use to antitrust and public utility regulation, and more. These proposals and interventions can be reframed as part of a broader challenge of defusing the threat of domination created by these technological systems. Regulating and responding to new technologies and modern forms of economic and political power thus represent a variation on familiar questions of public law and constitutional design: how to structure the exercise of potentially arbitrary, state-like power, rendering it contestable, and therefore legitimate.

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Structural Inequality and the Law: part II

K. Sabeel Rahman

In the 2015 case Texas v. Inclusive Communities Project (2014), the Court upheld the application of a disparate impact standard for judging violations of the Fair Housing Act, enabling advocacy groups to challenge urban development policies that (re)produced patterns of racial and economic segregation. In justifying this interpretation of the statute, Justice Kennedy offered in his majority opinion a brief account of the ways in which racial and economic segregation has persisted and been codified by a variety of legal and policy regimes, despite the formal elimination of de jure segregation.  Meanwhile, writing in dissent in the 2013 Shelby County v. Holder case where the Roberts Court struck down the preclearance protections of the Voting Rights Act, Justice Ginsburg provides in her opinion a lengthy exposition of the various “second-order” forms of voter suppression and discrimination, outlining how an apparently well-functioning democratic process in fact was riven by systemic patterns of discrimination and political inequality.

These glimpses are indicative of a growing awareness that social justice must be understood as a structural phenomenon encompassing a complex interplay of economic, racial, gender, and political dimensions. Many different legal and policy choices combine to create systemic forms of inequality and exclusion. As discussed in the previous post, one of the key ways these claims for greater inclusion and equity are precluded is by casting them as products of “natural” economic forces, not subject to human agency and alteration. However, even if structural forces are acknowledged to be within the scope of public redress, how to combat them is often viewed too narrowly. This post suggests that the remedies for structural inequities require a similarly structural approach.

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Structural Inequality and the Law: part I

K. Sabeel Rahman 

In the 2007 school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the voluntary school desegregation efforts by Louisville, Kentucky, and Seattle, Washington for employing an overly aggressive mode of racial balancing. In his majority opinion, Chief Justice John Roberts argued that de jure segregation—of the sort that marked the Jim Crow South—had been officially eliminated as in the case of Louisville, and had never been employed in Seattle. Thus whatever racial disparities existed in these regions were not the product of law. For such schools, Roberts wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The systematic racial segregation of modern metro areas, long documented by urban scholars as a result of economic inequalities, racial wealth disparities, and deliberate policies of zoning and urban planning, did not factor into Roberts’ analysis.

A relative lack of concern for what might be termed “structural” inequality has characterized the Roberts Court’s voting rights jurisprudence as well. In Citizens’ United v. FEC, which upheld corporate campaign contributions as political speech, the Court ignored how disparities in economic wealth could skew the otherwise free-flowing marketplace of ideas or the dynamics of political competition. In Shelby County v. Holder, Roberts suggested that the preclearance regime established by the Voting Rights Act of 1964 to oversee voting regulations in many Southern states was no longer needed. In her dissent, Justice Ginsberg castigated Roberts’ argument as, among other things, exhibiting a blindness to more subtle “second-generation” barriers preventing minority groups from exercising their voting rights in full.

These glimpses point to a larger challenge for legal scholarship, analysis, and policymaking. The question of structural inequalities often stump courts and lawmakers alike. What does it mean for inequality to be “systemic”? Can any single actor be held responsible for such systemic or structural disparities? If these disparities are so diffuse, so baked into the background patterns of social and economic activity, how would they even be redressed or counteracted? This two-part series offers a means of conceptualizing both structural inequality and its means of redress.

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Law, Political Economy, and the Legal Realist Tradition Revisited

K. Sabeel Rahman — 

As David, Amy, and Jed note in their opening post, the economic, social, political, and ecological crises of the current moment are helping fuel an exciting wave of legal scholarship. This emerging trend, the “law and political economy” (LPE) approach, interrogates the relationships between law, politics, and economics, exploring issues of power, inequality, democracy, and social change. As we explore what this approach might mean and what its implications might be, it is important to situate these inquiries in a larger history of legal scholarship and reform politics. This is not the first time that a similar moment of crisis has helped spur creative new thinking about the relationships between law, capitalism, and democracy—and it won’t be the last. In this post, I want to sketch a particular aspect of this trajectory: the long legacy of legal realism and its relationship to our current debates around law and political economy.

This legacy is important for two reasons. First, now, as then, we face a similar period of socioeconomic upheaval and political conflict, prompting us to rethink our legal structures. As a result, the substantive insights of legal realism remain valuable for an LPE approach today. Second, recalling the trajectory of legal realism and its successor intellectual movements is helpful in highlighting the kinds of tensions and questions that an LPE approach will have to continue to address.

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