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The Market Metaphor, Radicalized: How a Capitalist Theology Trumped Democracy
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An entanglement between economic and political thought stands as a causal factor behind Trump's 2016 victory as discussed by the authors, and this way of thinking allows wealth to be transferred to the elite.Abstract:
An entanglement between economic and political thought stands as a causal factor behind Trump's 2016 victory. Enshrined as constitutional law, this way of thinking allows wealth, whether a...read more
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What an 'Originalist' Would Understand 'Corruption' to Mean: The 2013 Jorde Lecture
TL;DR: More recently, Lessig as discussed by the authors describes the originalist roots to his conception of dependence corruption, and shows why that conception is neither a version of "equality" nor inconsistent with modern First Amendment jurisprudence.
Journal ArticleDOI
State Responses to U.S. Supreme Court Campaign Finance Decisions
TL;DR: In this article, the authors discuss recent U.S. Supreme Court decisions that deregulate campaign finance rules and are out of step with the policy preferences of many state electorates and officials, and describe the implications of these dynamics for federalism.
[86WashLRev0217] Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law
Abstract: Abstract: Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court's inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts's opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court's treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law. INTRODUCTION Disagreement over the proper direction of constitutional law is as old as the Republic. At present, however, it isn't clear to many which direction ? right or wrong ? the United States Supreme Court is taking constitutional law. On the one hand, the editorial board of the New York Times spoke for a host of other critics in complaining that "the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."1 By "the Roberts [C]ourt," the editors meant what they described as a five-Justice "conservative majority [that] made clear that it is not done asserting itself on issues of grave national importance,2 perhaps including the constitutionality of health-care reform. From the perspective of these commentators, the Roberts Court has "come of age" and "entered an assertive and sometimes unpredictable phase," in which (despite the occasional surprise) the majority Justices are "fearless" in exerting their power to advance the politically conservative (pro-business, pro-gun, anti-criminal defendant) interests Chief Justice Roberts favors.3 Elena Kagan's succession to the seat of retiring Justice John Paul Stevens, on this view, was at best a holding action against the Court's complete takeover by the Right. On the other hand, the admirers of the Court's decisions generally insist that the critics are vastly overstating both the ideological content of the Court's judgments and the aggressiveness of the Justices who usually make up the majority in highly ideological, divided decisions. This error of analysis was quite deliberate, and the tale of political takeover was "all such tedious sophistry" by the Left, a dishonest demonization of Justices whose decisions were marked by caution and attention to the specific demands of the judicial process.4 The identity of the current Court, on this view, is shaped more by circumstance than ideology, and by the Justices' lawyerly approach to its role. As Jonathan Adler argued, "The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. . . . [A]t present, we can characterize the Roberts Court as a moderately conservative minimalist Court . . . ."5 No reader was surprised to notice that critics of an aggressively ideological Roberts Court are to the left of center in terms of American politics, or that admirers of a judicially modest majority are equally likely to occupy positions to the political center's right. …
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Politics As Markets: Partisan Lockups of the Democratic Process
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Neoliberal Constitutionalism: Lochnerism for a New Economy
TL;DR: For example, the authors argues that the constitutional expression of neoliberalism is a special case of a broader trend in U.S. jurisprudential and economic regulation, and argues that there is value in illuminating emerging constitutional neoliberalism by comparison with the much-debated Lochner era, the period when U. S. constitutional law came closest to constitutionalizing classical liberalism in economic matters.
Posted Content
What an 'Originalist' Would Understand 'Corruption' to Mean: The 2013 Jorde Lecture
TL;DR: More recently, Lessig as discussed by the authors describes the originalist roots to his conception of dependence corruption, and shows why that conception is neither a version of "equality" nor inconsistent with modern First Amendment jurisprudence.
Journal Article
Neoliberal Political Law
TL;DR: In the last twenty-five years, the Supreme Court has struck down all limits on campaign expenditures, some limits on contributions, state experiments in open primaries, and the central feature of the Voting Rights Act.