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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Student Debt Cancellation: It’s Actually Good

Luke Herrine-

Whenever talk of student debt cancellation, or even of a “student debt crisis,” gets too loud, there is a bevy of pundits ready to tut-tut. Don’t you so-called progressives know that most student debt is held by young professionals? That the young professionals with the biggest debt loads are unlikely to default on their debt because they have leveraged their education into high-paying jobs (or at least have well-off family who can pitch in)? And so don’t you see that cancelling student debt would mostly just be a subsidy to already comfortable people? And you call yourself progressive? Shame! Go think about what you’ve done. Let the professionals take care of the policymaking.

Now that the Levy Institute has published a report on the likely macroeconomic effects of student debt cancellation and some left politicians have taken up the idea, David Leonhardt at the New York Times saw fit to rehearse the arguments he and others have made multiple times before (apparently not having read the arguments against his position in that selfsame report). Here’s why he’s wrong again.

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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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Lawyering and Political Economy: The Clinical Wing of LPE

Charles Du-

What does an LPE perspective imply for the practice of law? In other words, what is the “clinical wing” of LPE? My recently published essay, “Securing Public Interest Law’s Commitment to Left Politics,” seeks to denaturalize and politicize “public interest law,” arguing for a public interest law focused chiefly on building left political power by supporting movements and organizing. In its current popular usage, public interest law mostly refers to the wide variety of legal practices that are motivated by “progressive” political commitments on the part of the lawyer. (It also increasingly includes conservative causes, especially in the official, institutional definitions of some law schools, which serve as a sort of concession to right-wing students in the name of “intellectual diversity.”) Yet despite its vagueness, public interest law is highly institutionalized, with curricular offerings, scholarships, and fellowships devoted to it. The set of opportunities for each new cohort of progressive lawyers is essentially identical to the contemporary institutional forms of public interest law. This, at bottom, is why it matters to contest the meaning of the term.

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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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Racism is at the Heart of the Platform Economy

Daria Roithmayr –

This post argues that race and racism are segmenting the new “on demand” labor markets, in ways that facilitate the transition to this new sector of the economy.  Scholars of racial capitalism have argued that modern capitalism could never have gotten off the ground without the violence of slave labor in the cotton economy. Violent racism operated to segment plantation workers into free and unfree labor, and unfree labor made cultivating cotton in bulk possible, facilitating the transition to industrialized cotton production and then to industrialization more generally.

Likewise, I argue here that race and racism are segmenting the new labor markets into more free and less free labor, and that this segmentation plays a central role in the transition to the new economy.  Platform-based “on demand” service firms like Amazon and Instacart rely for their flexibility on a core of so-called “motivated” gig workers—workers whose economic survival depend on gig work. As it turns out, these workers are “motivated” because they are workers of color who are less free to turn down unstable work, or to bargain for a wage premium for doing risky, back-breaking or otherwise odious work. As we’ll see, race does very important work in constituting this segment of the workforce, and in keeping this core of workers “motivated.”

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Job Announcement: Executive Director of the Law and Political Economy Project

We are thrilled to announce our search for the inaugural Executive Director of the Law and Political Economy Project. Details below, and please share widely. Download the announcement here. We also welcome applications for the part-time blog editor position, posted here.

The Law and Political Economy (LPE) project at Yale Law School seeks a full-time Executive Director (ED). The ideal ED will play both a scholarly and organizational role.

The LPE project is a network of scholars, practitioners, and students working to develop innovative methods at the intersections of legal, political, and economic ordering, with special attention to democracy, economic inequality and power, and racialized and gendered inequality. We seek to make our work relevant to judging, advocacy, policy, and politics as well as scholarship more traditionally understood, and see our initiative as, in part, a response to the fraught political moment and an attempt to understand and address the longer-running problems that have contributed to it. This grant-funded initiative is housed at Yale Law School, and will coordinate closely with other key hubs of legal scholarship and advocacy, including Columbia Law School, Demos, and others.

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Anti-State Statism and Slumlord Capitalism

John Whitlow –

Ruth Wilson Gilmore has written that “we are faced with the ascendance of anti-state state actors: people and parties who gain state power by denouncing state power.” This tendency surfaced in the wake of the economic and legitimacy crisis of liberal capitalism in the 1970s, and has gained strength in the decades since, taking hold in both major political parties and surviving a catastrophic financial collapse a decade ago. The Trump administration is the most garish and contradictory iteration yet of this tendency: [1] an agglomeration of race-baiting grifter capitalists intent on slashing the last vestiges of the safety net while at the same time expanding the carceral and militarized functions of the state. I have argued elsewhere that it is useful to view the current administration as the federal-executive embodiment of the unscrupulous landlord. In this post, I will examine the administration’s particular brand of anti-state statism through the prism of the Trump family’s real estate practices.

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Toward a Law and Political Economy of Gender Violence

Martha T. McCluskey –

What does political economy have to do with the issue of gender violence that roiled Kavanaugh’s Supreme Court confirmation?  One answer is that law should not separate economics from the social inequalities that mediate power.  Violent enforcement of social hierarchies has long been a core capitalist strategy for securing selective economic advantage, as Angela Harris and Frank Pasquale have written in this blog.

The recent #Metoo movement suggests the strong arm and insidious shadow of physical force is common, not marginal, to the everyday economic lives of many women, a factor to bargain with in the process of securing opportunities for education or work, housing or health care.  Conventional law and economics tends to assume a background of private voluntary exchange that belies continuing contests over the power to gain through violence. In contrast, a political economy perspective recognizes that government does not monopolize force. Instead, government enables and distributes private force by how law defines, punishes, monetizes, and immunizes private acts of violence.  Neither formal law nor social norms have firmly settled the questions of what forcible acts and impacts count as normal, excusable, trivial, implausible, or invisible.

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A Torts Course for the Actually Existing World

John Fabian Witt –

The torts classroom is like a dystopian historical fantasy.

Or maybe a kind of morbid historical science fiction. Students and teachers gather to rehearse time-honored rituals around the Great Cases of human tragedy: Scott v. Shephard, Brown v. Kendall, Rylands v. Fletcher, Vosburg v. Putney, Leroy Fibre v. Chicago, Milwaukee, & St. Paul Railway, MacPherson v. Buick, Murphy v. Steeplechase Amusement Co., Palsgraf v. Long Island Railroad, and more. The cases tend to be old. They tend to involve railroads. We conjure up a bygone world on the rails or at old-school amusement parks, in coal mines or at small-town markets. We conjure a world of judges, juries and appellate opinions, too. But in the actual world outside the torts classroom, railroads have been in decline for a half-century and more. Amusement parks, too, though that’s a story for a different day. More importantly here: so have judges, juries, and appellate opinions. The spread of waivers, the rise of arbitration, the disappearance of the trial, and the prevalence of settlement have made the Great Cases almost literally things of the past.

What would it mean to bring the torts class into the twenty-first-century and connect it to actually existing problems?

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