Progressive Democracy and Legislative Form

Blake Emerson

Adrian Vermeule recently made a stir with his proposal for a “common-good constitutionalism.” He argued that originalism had “outlived its utility” now that the right had gained power on the federal bench. Instead it was time for a “substantively conservative approach to constitutional law and interpretation.” We got only a few peaks at the substance, however. It included labeling individual autonomy, including abortion rights, as “abominable,” and jettisoning “the libertarian assumptions central to free speech law.”

Responses have examined whether Vermeule’s constitutional theory is defensible, or rather winks more or less subtly at authoritarian or even fascist ideas. But to me the most striking aspect of the argument was not the substance of the values Vermeule would ascribe to the Constitution, but rather the form of his conservative constitutional structure. Vermeule proposes a version of constitutionalism that, much like the Law-and-Political-Economy framework, goes “Beyond the Twentieth Century Synthesis” in abandoning the liberal separation of the state from the “private” spheres of the market and family. In contrast to the LPE approach, however, Vermeule’s constitution puts hierarchy at the center of its moral universe, with a strong executive at the top. In the mirror of Vermeule’s constitutional frame, we can glimpse the progressive alternative.

Common-good constitutionalism “does not suffer from a horror of political domination and hierarchy,” but rather expects that “[s]ubjects will come to thank the ruler” for fostering “more authentic desires.” Vermeule thus emphasizes a pre- or post-liberal form of government in which the people are rightfully subject to the discretionary authority of political leaders. He prioritizes the executive branch over others, favoring “a powerful presidency ruling over a powerful bureaucracy,” which acts as “the strong hand of legitimate rule.”

These structural commitments are in line with the theory of the “unitary executive,” which can be traced back to Alexander Hamilton’s defense of a “vigorous” presidency in the Federalist. That enlarged conception of the office has continued to influence landmark Supreme Court decisions from Chevron to the Travel Ban Case. But there is another thinker who deeply informs Vermeule’s analysis: Carl Schmitt, the conservative critic of Germany’s Weimar Republic who became the crown jurist of the Third Reich before falling out of favor with the Nazis.

For Schmitt, the Weimar Republic showed that liberalism’s commitment to positive law, rational deliberation, and individual rights was too brittle to withstand serious economic and political crises. Parliamentary democracy gave way to a “governmental state” in which the executive rather than the legislature made the important decisions. Schmitt did not bemoan this transition, but rather envisioned a direct connection between the substantive values of the Volk and the bureaucratic apparatus of the state. Vermeule, of course, disavows Schmitt’s Nazism, and instead fastens onto his critique of liberal legalism, as well as his interest in religious-bureaucratic political form. He follows Schmitt in privileging the executive branch as the best vehicle to carry out a conservative ethical vision.

Some of Schmitt’s most prominent opponents on the left offered up models for an alternative, social-democratic economy of political power. Scholars like Hermann Heller and Franz Neumann endorsed the norms freedom, the rule of law, and the separation of powers that constitute the liberal ideal of the Rechtsstaat. But they argued that those norms could only be preserved under the conditions of twentieth-century capitalism by transforming the bourgeois Rechtsstaat into a social Rechtsstaat. Such a social-constitutional state would infuse economic relations with material equality, and ensure that monopoly power did not undermine individual and collective autonomy. In stark contrast to Schmitt, these thinkers prioritized the legislature over the executive, and bound the latter closely to the norms of the former. Because Heller and Neumann’s hope was to institute general, egalitarian norms through democratic processes, the legislature had to play the lead constitutional role. Momentary decisions of a charismatic leader would not suffice to firmly entrench social equality.

This correlation between the left and the legislature, on the one hand, and the right and executive, on the other, also has purchase for us in America today. Conservatism of Vermeule’s and Schmitt’s variety is grounded on authority, discretion, and hierarchy. It relies on the obedience of subordinates to the commands of superiors who know better, have keener judgment, or who command greater allegiance. That vision runs like a red line through reactionary models of both economic and political structure. While the rhetoric of freedom, choice, and competition pervades the American right, its legal interpretations and policies often function to preserve various kinds of concentrated power, exercised by some persons and groups over others. The last forty years of conservative ideological dominance has generated stark social hierarchies: employers now exercise arbitrary power over employees, monopolists control consumers and smaller firms, capital accrues the gains from labor; status hierarchies surrounding religion, sex and gender, and race are conceived to reflect a “natural” ranking of superior and inferior.

Executive-centered constitutional structure works in parallel to such legally sanctioned social domination. It subjects the hitherto “independent” civil service to the strong hand of presidential leadership, displacing various forms of disciplinary competence, administrative due process, and public input with assertions of value by the “Chief Executive.” This affinity for an “unbound” executive has animated conservative constitutional scholarship since Reagan. As Bill Barr claimed in his strident criticism of the Mueller Investigation, the president “alone is the Executive branch,” and subordinate executive officers are merely “his hand.”

Progressives, by contrast, should be steadfastly committed to legislative constitutional forms. That is because democracy is concerned not with the command of a single person but with reaching a decision amongst a plurality of persons. That process respects the equal worth of each participant. It models a form of human association that recognizes autonomy and yet brings people together to identify shared goals and values.

Legislation should be viewed as an iterative process of popular will-formation. David Grewal and Jedediah Britton-Purdy have shown how democratic constitution-making is a legislative act of the sovereign people to erect a government that acts on their behalf. Ordinary legislation replicates this process within the government, as it brings together the several representatives of the people to reach binding agreements and empower marginalized groups. Maggie Blackhawk, for instance, has shown how the Indian Reorganization Act of 1934 helped to “foster power and to promote collective action” by sovereign Native peoples. Legislative rulemaking within the executive branch takes this democratic empowerment one step deeper down, giving affected groups a role in deciding how economy and society are regulated. As Matthew Cortland and Karen Tani have documented, progressives have used the public comment process during the Trump Administration to thwart unjust and arbitrary executive actions ranging from approval of Medicaid work requirements to narrowing the definition of sex harassment in education. Kate Andrias has unearthed precedents in the New Deal for establishing workplace democracy in and through the administrative process. I’ve explored in my own scholarship how this legislative version of agency procedure stretches back to the institutions and ideologies of the Progressive Era.

The legislative left therefore does not ignore or sideline the executive branch, but rather aims to recreate parliamentary values, processes, and organizations within the executive. A corollary to this vision is that the president should not be able to fire executive officers at will, as the unitary executive theory would hold. The scope of the president’s removal power is currently before the Court in Seila Law v. CFPB. An executive branch that honors democratic principles should recognize a qualified equality amongst officials. Officers whom Congress has given rulemaking powers should not be subject to implied direction by the president, but rather should lead a broader deliberative process that incorporates affected publics.

Such a legislative constitutional structure, it should be noted, runs counter to strong tendencies and historical traditions amongst American Progressives. From Teddy Roosevelt and FDR to LBJ and Obama, egalitarian programs have often relied on an empowered presidency. And I don’t wish to malign the important persuasive role the president can play as a spokesperson for the people, nor the movement building potential of executive action. But much is lost in pinning our hopes on a particular presidential candidate and what she or he can accomplish once in office. That approach is particularly likely to fail with a conservative Supreme Court that will strike down “novel” administrative actions, or deny deference on “major questions.”

Progressives and social democrats are concerned with freedom, equality, and solidarity. While there might be temporary victories for such values in the hands of a capable and charismatic president, a durable democratic future must take a form that mirrors democratic substance. If we want to recognize and institute the equality of persons, we must all become legislators.

Blake Emerson is Assistant Professor of Law at the UCLA School of Law.

The Constitutional Role of Economic Coordination Rights

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Sanjukta Paul –

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

There’s a common notion that pervades legal and policy debate—including among fairly liberal Democrats—that collective bargaining mechanisms, and even public coordination of markets through minimum wages and working conditions, distort market outcomes and are therefore inefficient (though they may be justified by countervailing considerations). This position immediately sets up a kind of presumption against labor coordination or public coordination of markets to benefit workers, a presumption analytically and normatively supported by Law and Economics.

Too often, progressive and even left responses have been limited to asserting that considerations other than efficiency should be balanced with efficiency concerns—we should balance fairness, or humanitarian concerns, with efficiency for example; or worker voice, living wages, and so forth are indeed efficient because they correct market failures. Some critiques rely heavily on the idea that labor is different from other commodities, which can imply that we can understand everything else as a potential commodity.

While these approaches often have merit, the Law & Political Economy orientation should attend to deeper critiques of L&E emanating from fields such as economic sociology and heterodox microeconomics. These critiques call into question the coherence of basic theoretical assumptions that are indispensable to L&E’s prescriptions about what is efficient in the first place. For example, many economists now challenge the idea that prices are determined according to orthodox microeconomic assumptions, and that these “market prices” in turn maximize welfare by allocating resources in an optimal manner; a number of sociologists, meanwhile, emphasize the indispensable role of social coordination in markets.

Also, Law & Political Economy itself can pose a powerful internal challenge to L&E, by reviving and updating the old legal realist insight that all markets are legally constructed, and by applying that insight in the weeds of particular areas of law that today have been all but given up to L&E. Relatedly, the Legal Realist move of displaying, in detail, the historical contingency of certain rules of law takes on especial importance in the context of an analytic framework like L&E, which assumes certain market rules that are given by law, but also often ignores legal contingencies and treats law as derivative of independent economic principles.

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A Law and Political Economy Agenda for Labor and the Constitution

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Kate Andrias

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

At the end of September, labor law scholars gathered at a conference focused on “Labor and the Constitution: Past, Present, and Future.”  There, a group of us considered the problem of “Political Economy and the Constitution”—and the extent to which the Law and Political Economy (LPE) analytical frame can be useful in building a more democratic and egalitarian future for workers.

As readers of this blog know, LPE represents an emerging approach in legal scholarship—or at least a return to an old approach that had long been dormant.  Yet, in contrast to other areas of the legal academy, attention to questions of economic power never disappeared from view in labor law.  Maybe more than in any other field, people who study the history of the workplace and workers’ position in society have long recognized the importance of power. They have been acutely aware of connections between the political and the economic, between markets and law. Continue reading

A Political Economy the Constitution Requires

Join us this week for a series on the political economy of labor & the constitution. 

Willy Forbath –

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

“Political economy” has an antique ring. More than a century ago, the field of “political economy” began to give way to what was called “economics.” By the mid-twentieth century, political economy was forgotten; economics ruled the roost. But what is old is new again. Political economy is coming back. Economics sidelines the distribution of wealth and power; political economy puts it at the center. Economics claims to be value-free; political economy asks: “What is the good economy?”

Because it blends the normative with the analytical and the economic with the political, political economy always has lent itself to constitutional discussion. And when you go back to the eighteenth , nineteenth and early twentieth centuries, you find that judges, lawmakers, reformers, advocates, constitution-makers and policy-makers of all stripes looked at and argued about the Constitution through a political economy lens and the political economy through a constitutional lens.

They started from the premise that the Constitution was inevitably entwined with – and not neutral with respect to – the economic order. Thus, many matters that we see as policy debates about the maintenance or reform of institutions affecting the distribution of wealth and economic power they saw as the stuff of constitutional law and politics.

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The New Black Codes: Racialized Wealth Extraction, Economic Justice, and Excessive Fines Schemes in Timbs v. Indiana

Emma Coleman Jordan and Angela P. Harris –

timbs.jpegWhen Tyson Timbs’ father died, he left his son an insurance policy. Timbs used $42,000 of that money to buy a Land Rover SUV, and he was driving that car when he was arrested for selling heroin to an undercover police officer in Indiana. Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft, and the judge sentenced him to one year of home detention, five years of probation (including a court-supervised addiction treatment program), and $1,203 in fees in costs.

The State of Indiana, however, was not done with Timbs. It hired a private lawyer to bring a civil forfeiture action against Timbs’ Land Rover, on the theory that the vehicle had been used to commit the crime of transporting heroin. The court held that the Land Rover was indeed used in the commission of an offense, but denied the requested forfeiture, observing that its purchase price was more than four times the maximum he might have been fined for his actual conviction. Forfeiture of the Land Rover, the judge determined, would be grossly disproportionate to the gravity of Timbs’s offense, and for that reason it would be unconstitutional under the Excessive Fines Clause of the Eighth Amendment. The Court of Appeals of Indiana affirmed that decision, but the Indiana Supreme Court reversed on a different ground, holding that the Excessive Fines Clause applied to federal but not state governments.

When the United States Supreme Court agreed to hear Timbs v. Indiana, anticipation ran high across the political spectrum, and revealed some strange bedfellows. The Southern Poverty Law Center and the Cato Institute appeared on the same amicus brief. Justices Gorsuch and Sotomayor energetically agreed with one another during oral argument. However, when the Supreme Court issued its unanimous decision on February 20, 2019, the opinion offered less than interested parties might have hoped for. Justice Ginsburg, writing for the Court, affirmed that the Excessive Fines Clause does apply to the states, as “incorporated” into the Due Process Clause of the Fourteenth Amendment, and held that in rem forfeitures fall within the Clause’s protections. The Court, however, did not offer a standard for deciding when a fine is excessive. From our perspective, moreover, Timbs v. Indiana represents a missed opportunity to discuss racialized wealth extraction in its past and present forms, and to situate the Excessive Fines Clause within the constitutional debate about economic rights that arise from predation by the government itself.

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Movement Visions for a Renewed Left Legalism

Amna Akbar, Sameer Ashar, and Jocelyn Simonson –

In this moment of crisis for the rule of law, a number of thinkers on the left have prescribed new strategies for progressives to shift reigning ideas about constitutionalism and the law. Jedediah Purdy, for example, has argued that part of the answer is to “reclaim the Constitution” by articulating visions of how constitutional rules can promote true democracy. In Purdy’s view, strengthening voting rights and the rights of non-citizens, promoting economic citizenship, and reforming the criminal legal system should be central to a left vision of the Constitution. He argues these substantive ideas pose a challenge to the status quo distribution of power, resources, and life chances. Eyeing a different branch of government, Samuel Moyn has urged progressives to resist the “juristocracy” and to shift our vision for change away from the courts and towards legislators at all levels. Moyn bases his analysis on the idea that in the short term, legislatures will be more likely than Trump-appointed judges to enact laws that reduce inequality.

Purdy and Moyn generate important insights for left lawyers and social justice activists. But neither identifies where we should look for the substance of left legalist vision, or the process by which we should derive one. How is it that we, as progressives, should generate and evaluate the desired ends of constitutional doctrine or legislative change? Addressing this question is essential for a renewed left legalism of the sort this blog and its community hope to provoke.

As we suggested in our prior piece, we believe a left political agenda must be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces. (Willie Forbath, too, recently gestured on this blog at the relationship between social movements, labor, and left legalism.) The prevailing underlying presumption of much legal discourse is that the formulation and interpretation of legal doctrine requires specialized expertise. Past waves of left legalist critique, such as Critical Legal Studies, reflected this traditionally elitist approach to law by remaining confined within elite institutions and purveyed by law professors, sometimes in impenetrable language. Like Purdy and Moyn, we care deeply about democratic engagement, but we believe that the institutional choice between courts and legislatures misses the bigger picture: that a new left legalism should be derived from social movements fighting for justice on the ground.

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The Constitution and Democratic Insurgency

Aziz Rana—

One of today’s most urgent questions is how to combine an analysis of capitalism with an analysis of democracy.  The rolling socio-economic crises of the last decade, highlighted by the global financial meltdown, have laid bare the extent to which American society is marked by fundamental and irreconcilable conflicts between those enjoying economic power and those subject to the vagaries of the market.  At the same time, the constitutional system, plagued by legislative dysfunction and extreme counter-majoritarianism, is incapable of implementing popular policy—let alone resolving endemic collective problems.  American capitalism generates profound social and material dispossession, yet American democracy either facilitates these developments or seems helpless to address them.  Why is this the case? And to what extent is the existing constitutional order—its basic ideological and institutional terms—at least partly to blame?

Since the forging of Cold War liberalism in the mid-twentieth century, elites have offered the same, familiar account—in both electoral politics and in the study of constitutional law—of the relationship between the constitutional order and the economy. The prevailing theory is that the structures of legal-political decision-making do not favor particular social groups. Instead, through an intricate system of checks and balances—overseen by a Supreme Court enjoying powers of judicial review—the constitutional process produces essentially just outcomes while ensuring that no single political or social actor wields overwhelming authority.  This structure of constraint substantively pushes decisions away from the extremes of fascism and communism and toward a moderate middle ground of ameliorative reform and steady collective improvement.

Although some may be suspicious of the Whiggish story of progress, a bedrock assumption underlying this account has been widely held—even among left-liberal circles.  This is the idea that the constitutional structure and its discursive traditions remain essentially agnostic as to existing distributional battles.  They can be used productively to pursue virtually any end—up to and including socialism.  As the New Deal victories seemed to confirm, constitutional process and language carry no essential theory of political economy.  To the extent that legal-political outcomes have remained in line with a vision of market capitalism and a limited welfare state, this is simply the product of popular will: the complex balance of views expressed across the constitutional system.

But this account ignores a fundamental critique of the constitutional order, one leveled by labor and black radicalism in the first four decades of the twentieth century before Cold War ideas took such an extreme hold. For those activists, the history of sustained racial, indigenous, gender, and class subordination made clear that the country was not then and had never truly been democratic.  Rather, the constitutional order systematically operated to expand the strength of a racial and economic minority.

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Three Views of Constitutional Political Economy

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part III of III

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William Forbath –

To recap, what constitutional political economy is good for on the labor scene is three-fold:

  1. as a movement discourse that provides moral and political legitimacy to acts of civil disobedience and law-breaking – and lends reform-minded publics and law-makers a keen sense of the stakes for our deeply eroded democracy in enacting reforms that encode a pro-labor constitutional outlook;
  2. as a source of robust accounts of substantive constitutional principles to put on the scales when defending such reforms against neo-liberal constitutional attack;
  3. and, finally, as a framework for labor movement activists, lawyers and policy-mavens to compare and argue about the practical and normative considerations favoring rival constitutional constructions for the future.

Let me close this series with the briefest of sketches of two emerging views of the way forward, with a focus on how they’re interestingly at odds on constitutional grounds.

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Janus in Appalachia

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part II of III

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William Forbath – 

Unlike the workers’ organizations in Kate’s study, just about everything the striking teachers did in West Virginia and Kentucky fell outside the bounds of legality – the strikes themselves, the efforts to “bargain” over not only teachers’ pay but also the states’ miserly education budgets and unjust tax codes, even the stab at collective bargaining itself. It may have been because their demands were broad-based and popular that the striking teachers suffered no legal sanctions and state repression along the way. But not every collective action on the part of hard-hit public employees in red states (or the federal government) is likely to be so lucky. As the anti-strike injunctions and arrests roll out, labor constitutionalism will beckon.

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The Labor Movement Never Forgets?

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part I of III

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William Forbath – 

Is it really a good idea for liberals and the left to be making constitutional arguments against economic inequality? Give it a rest! Take a break from constitutionalizing everything.  And don’t talk about “taking the Constitution away from the courts.” The Constitution always leads to the courts, and the courts are not our friends, certainly not when it comes to fighting economic inequality.

That, in a nutshell, is one reaction to articles and a book-in-progress by Joey Fishkin and me, about what we call The Anti-Oligarchy Constitution. There’s something to be said for this reaction, and I’ll spell it out in a moment. But in the end, I think the arguments in favor of attacking economic inequality by pushing a left-liberal “constitutional political economy” outweigh the arguments against it.

In a nutshell, the arguments in favor of the notion come down to this.  It’s not easy to unpack why the stakes in combatting gross economic inequality are not only about fairness and distributive justice, but also about political freedom and democracy. Constitutional discourse can make that point sharp and resonant. Historically, in the U.S., constitutional-political-economic discourse was crucial to making the case for the proposition: No political democracy without social and economic democracy. It’s time to reinvent that discourse.

I’m going to use labor law as my main setting here. Labor law is the terrain on which Kate Andrias has written a great, sustained critique of Joey’s and my work, in the “Give it a rest!” vein. Responding to Kate’s critique seems a good way to test our views.

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