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Opportunities and Pitfalls for a Revived Liberal International Order

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The Russian invasion of Ukraine has changed the world—and the Ukrainian counterattack in Kharkiv Oblast may have changed it again. While it’s too soon to say what will ultimately end up happening in Ukraine, at this point the continued existence of the Ukrainian state (if not its borders) is essentially assured, as is the deep military and economic weakening of Russia. Even if the Russian state can use mobilization to turn the tide militarily enough to capture substantial Ukrainian territory and hold itself together, its military capacity will be noticeably lessened for years to come—and there is the possibility for greater changes still. This weakening of the Russian sphere of influence creates opportunities for a revived liberalism, but potentially serious obstacles still stand in the way. An effective American response needs to reward allies while moving beyond offshore balancing to the creation of hardy liberal multilateral structures around the world. 

Regardless of the precise outcome of the war in Ukraine, the world’s eyes will be on it. The Ukrainian state and its people have made profound sacrifices for their sovereignty, and overwhelmingly support a westward orientation for the future. Support for EU membership runs at over eighty percent, compared to a mere two percent supporting joining a customs union with Russia, Belarus, and Kazakhstan. For many, the war is about both Ukrainian sovereignty and the ability of Ukrainian society to make the choice to align westward. While Ukraine has been granted ‘candidate’ status in the EU, existing EU states like France are much more lukewarm about granting Ukraine full membership, with French president Emmanuel Macron warning that the process could take ‘decades’. The United States needs to ensure that Ukrainians enjoy notable material benefits from their westward turn—even if the EU itself is unwilling or unable to allow Ukraine to join their ranks. This may carry a hefty price tag in terms of rebuilding—but the strategic cost of allowing a very public US ally to fall into deeper poverty once the war is over is much steeper. If, in a decade, Ukraine (and other long suffering European states like Bosnia and Kosovo) appears to be on its way to Polish prosperity, the message to the world will be that support for democratic liberal norms, even when done imperfectly, is rewarded. If by contrast Ukraine languishes, other countries will be profoundly discouraged from following a similar path. And it is almost certainly the case that many other countries will be faced with similar choices.

Already, a power vacuum is emerging where Russia had previously balanced against other regional powers or exercised regional hegemony. Russia had long headed the Collective Security Treaty Organization (CSTO), consisting of itself, Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Tajikistan. This organization strove to serve as a Eurasian counterweight to NATO, but its future is unclear. Only Belarus has provided material support for the invasion of Ukraine, and Kazakhstan has been opposed on a rhetorical level and is seen by many as moving out of the Russian sphere. It is Armenia and Central Asia, however, which are now demonstrating the impotence of the organization: under increased attack from its neighbor Azerbaijan in a conflict that has spread outside disputed territories into Armenian territory, Armenia had (at this writing) received no substantial support from Russia, and Russian peacekeepers in its territory have proven insufficient to secure it or prevent Azerbaijan from occupying Armenian territory. By contrast, US Speaker of the House Nancy Pelosi visited Armenia shortly after the conflict erupted and has thrown considerable political capital behind the fragile ceasefire currently in place there.  In Central Asia, the already tense relationship between Tajikistan and Kyrgyzstan has recently resulted in Tajik shelling of Kyrgyz territory—a notable escalation from previous clashes. Other Russian clients are struggling as well—Syria, for example, is being hit by repeated Israeli airstrikes which have gone so far as to knock the civilian airport in Aleppo out of service. And Iran, perhaps Russia’s most important close ally (and one of a very few that has supported Russia’s war with weaponry) has been rocked by a series of immense protests against mandatory hijab and, by extension, the morality police and Islamic government that rules over them.  

All of these cases, and others beyond, show both the danger and promise of a distinctly weaker Russia. The immediate outbreaks of violence are the expected result of a balancer losing its capacity to balance—but the lesson should be that some policy beyond ‘offshore balancing’ should be pursued. In situations like Armenia and Azerbaijan, the US should play a role similar to that played by President Jimmy Carter in the Camp David Accords between Israel and Egypt: bring the two sides together to commit to a binding peace—and sweeten the deal for both of them with improved American relations and aid. The leading role US Secretary of State Anthony Blinken has taken in current peace proceedings is wise in this regard. 

In other cases, Russian allies like Venezuela and perhaps even Iran will be realizing their suddenly greater vulnerabilities. The approach to these states should also be magnanimous—lifting some sanctions (particularly if done in a way to induce human rights progress) will not only benefit the people on both sides but will improve US strategic position. Obviously, these countries will not be immediate US allies (though some, like Armenia, may be quick to adopt a more friendly policy, by necessity). However, if Russia is unable to regain its position as a great power, they may well see the wisdom of keeping friendly relations with both the US and China, rather than aligning entirely with China. 

The result may be somewhat cooler relations with states like Israel and Turkey that have benefitted from US hostility towards their enemies. This should not be seen as a terrible outcome, however: both Israel and Turkey have shown, over the course of the war in Ukraine, that they do not see their own positions as universally ‘west aligned’, but rather as being independent states already navigating between power blocs—as of course is their right. This is the reality to which the US should be reacting.

There is also an economic dimension to Russia’s weakening. Economically, Russia was a major member of the BRICS group—a loose organization of Brazil, Russia, India, China, and South Africa aligned to present an alternative to western banking and financial hegemony. But the increasing isolation of Russia and potential recession and economic softening in China presents an opportunity for the US here, as well. 

US and European global financial structures, however, should learn the lessons of the last twenty years and the relative success of Chinese lending: the IMF, World Bank, and other economic organizations, have come under increasing criticism for attempting to dictate terms on developing countries regarding privatization and other structural adjustments required for loans. A softening of this approach, accompanied by greater willingness to forgive truly odious debt, could help bring about a more liberal world in the longer run, rather than forcing through ostensibly ‘liberal’ reforms that often generate considerable blowback (such as the water privatization scheme in Bolivia that contributed to the rise of more radical left wing parties there). The US, Europe, East Asia, and other developed capitalist states should be actively ensuring that prosperity continues to grow worldwide, and that this prosperity translates into higher living standards for the working class around the world. This will, in the long run, create a more stable liberal order—and the current window, with Russia firmly on the back foot, provides a new opportunity for liberal democracies to take the lead in fostering that development. 

Finally, the US should learn from what has worked in Ukraine. Just as a broad liberal alliance of states in Europe—especially the UK, Poland, and the Baltic & Nordic states—has emerged to support Ukraine militarily and diplomatically, a similar coalition of proximate states should be organized to defend other areas vulnerable to expansionism and revanchism. Most immediately this means that Taiwan would be best supported by its own arms with backing from Japan, South Korea, and potentially other neighbors concerned about Chinese influence, like the Philippines or Vietnam. The ‘hub and spokes’ security arrangement leaves each east Asian country in a tight bilateral alliance with the US but largely without the expectation of mutual cross support with one another. This arrangement will not be sufficient if the US remains—understandably—unwilling to directly assist its allies against nuclear powers, as has been the case in Ukraine. Transforming this arrangement into a multilateral mutual defense organization should be a top goal of American diplomacy. 

Of course such a sweeping liberal policy towards a changing world will attract opponents. The major objections will, as ever, be that the US is getting ‘soft on anti-Americanism’ if we lift sanctions on Iran or Venezuela, and that the US is sinking too much money into parts of the world that are ostensibly ‘not our problem’. Others may claim that any US involvement, even if it comes with a lifting of sanctions and genuine efforts at economic development, constitutes American imperialism. Both claims must be strongly countered. The coming decade presents opportunities not seen since the early 1990s to produce a world that is friendly to liberalism and democracy, one in which these values can flourish even as countries around the world gain more sovereignty free of the domineering influence of Russia. The last time the US had such an opportunity, much of the progress made in building such institutions (and the resources needed to economically support allies) was squandered by the War on Terror. If the US instead invests its substantial wealth in equally ambitious peaceful initiatives, we can make up for many of the errors of that period.

Featured Image is The President of Ukraine Visits NATO

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The Protecting America’s Police and Strengthening Law and Order Plan

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America is facing an epidemic of violence. Our police officers are overworked, overburdened, and faced with increasingly conflicting duties and imperatives. If we want to uphold law and order in America, we must strengthen our police forces and enable them to face the challenges of the 21st century. This essay outlines a comprehensive six-point proposal for doing just that.

Too often, police officers will be required to perform jobs that they aren’t trained for—and then punished when they do their best anyways. We must protect our police from this Kafkaesque Catch-22. We must enable police officers to focus on their real job of catching violent criminals—and that means shifting the burden of mental health and other social service calls onto other departments that are properly trained and equipped to deal with them. Our police officers are trained to deal with violent, dangerous criminals—not ordinary people having a bad day.

I’ll be blunt: we don’t need highly-paid, highly-trained police officers camped out at stop signs twiddling their thumbs, waiting for a moving violation to happen. In the midst of our epidemic of violence we need our police officers on the front lines tracking down murderers, robbers, rapists, and other violent criminals. This is why we must free police officers from this drudge work, and put traffic enforcement back in the hands of the people who design the streets in the first place, such as local departments of transportation. Departments of Transportation are in a better position to balance the uses of enforcement officers, automated technology like red light cameras, and infrastructure changes like traffic calming.

Across America, hard-working young men have been forced into a life of crime by government overregulation. The war on marijuana has overcrowded our jails, overworked our police officers, and distracted us from the real work of dealing with violent crime. As we’ve seen in states across America, ending the fruitless war on marijuana can create jobs and promote industry and thrift in young people, while bringing in much-needed tax revenue and safety regulations. We must stop overcrowding our jails and overworking our police officers with enforcing burdensome government regulation to no social benefit!

Elliot Ness brought down Al Capone—but even he couldn’t stop the booze. It is a likewise unfortunate fact of human society that men will pay for sex. And it is a similarly like fact that the prohibition on prostitution has created a criminal underworld where rape, pedophilia, and human trafficking can flourish. These heinous crimes are enabled and supported by a culture of silence, in which witnesses and victims are too afraid or too unwilling to go to the police with what they know. By ending the criminalization of sex work, we can end this culture of silence, and bring the pedophiles and predators hiding in their midst to light. As a side benefit, we also protect our police officers from the common temptations of policing such communities!

The distrust between rank and file police officers and “the rats” in Internal Affairs is legendary—and understandable. Informing on your coworkers sows distrust and suspicion. Such distrust can be lethal in the life-or-death situations we expect our police officers to deal with on a daily basis. For that reason, we must move such matters to a panel of law-enforcement experts appointed by the mayor with the power to investigate and discipline abuses among law enforcement. This panel will uphold standards of professionalism and expertise, while protecting our hardworking police officers from the corruption of bad apples.

We have seen time and again what happens when greedy local officials turn hard-working police officers into tax farmers: distrust, alienation, and crime. Police officers depend on the cooperation of honest Americans to report and testify on the problems in their community. Such cooperation is undermined when the police officer is also the tax man. This is why we must prevent profit from corrupting the mission of police departments, and abolish predatory fines and civil asset forfeiture. Police officers are here to protect taxpaying citizens from violent criminals—not play at being tax farmers themselves.

Calls to abolish our police are misguided and unproductive. The American people want a police force that genuinely serves and protects—that identifies, prosecutes, and punishes the rapists, murderers, and robbers who prey on the rest of us. Our current system has heaped our police with too many distractions and left them unable to focus on this pressing goal. By freeing our police departments from the mess of busywork and false imperatives we have burdened them with, we can create a freer, stronger, safer America in the twenty-first century.

Featured Image is The Centennial Police – Their Universal Answer

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Puerto Rico’s Constitution at 70: An Innovation in Self-Government

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For an experiment to succeed, time and attention are required.  The Constitution of Puerto Rico, which celebrated its 70th anniversary on July 25, was just that:  an experiment in sovereignty crafted jointly by the Federal Government and the People of Puerto Rico.  But rather than adhering to the basic scientific principle, the Federal Government has since abandoned the innovative Constitution, and in so doing, it has annulled those promises made in 1952.  This article looks into how the Constitution of Puerto Rico was created, what it meant, and how in recent years, it has been demeaned as a measure of sovereignty and government by consent.

Before the Constitution

Puerto Rico became a United States Territory in 1898, as a result of the Spanish-American War.  That same year, the Treaty of Paris, which ended the war, reserved for Congress the power to determine “[t]he civil rights and political status of the native inhabitants” of the new possessions.[1] Not long after, the United States moved to administer the island, passing the Foraker Act in 1900, which formed a civil government for the island.[2]  Under it, the People of Puerto Rico would not decide who governed them (except for the lower legislative chamber); the Federal Government would.[3]  Further, the People of Puerto Rico were left stateless in that they were not citizens of the United States, as always happened when the United States acquired territories; they were instead considered citizens of Puerto Rico.[4]  And the Foraker Act also treated Puerto Rico distinctly by imposing duties on goods coming from and going to the island.[5]  This last portion went directly against the Uniformity Clause of the U.S. Constitution, which holds that “all Duties, Imposts and Excises shall be uniform throughout the United States.”[6]  (Long before this, Chief Justice Marshall had noted that the term “United States” embraced both States and Territories.[7])

After the enactment of the Foraker Act, a New York merchant sued the Federal Government on those grounds after incurring north of $600 in tariffs on his orange trade.[8]  But the question in Downes v. Bidwell went beyond the precinct of tax law; the Supreme Court’s decision would authorize an American Empire, of which Congress was the masthead and in relation to which Congress placed itself above the Constitution.  In the many opinions issued by the Court in Downes, the one that has commandeered territorial law ever since was a concurrence that found it “impossible to conceive that the treaty-making power by a mere cession can incorporate an alien people into the United States without the express or implied approval of Congress.”[9]  This was a theory buttressed by the Territory Clause of the Constitution, which gives Congress the authority “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”[10]  But this clause should not be interpreted as allowing Congress to operate above the Constitution with respect to these territories.[11]  Three members of the Court, however, placed it just so, when it manufactured a doctrine (embraced by the Court in later decisions) of incorporated and unincorporated territories—the latter would be subject to Congress’s plenary powers but would not enjoy full protection under the U.S. Constitution.[12]  Even when the United States made Puerto Ricans American citizens in 1917 through the Jones Act,[13] the Court noted that the Constitution’s application turned not on an individual’s American citizenship, but on their locality.[14]  So—with few exceptions—Puerto Ricans enjoyed little popular sovereignty and government by consent of the governed until the United States entered into World War II.

 A constitutional government by the people of Puerto Rico?

Progressively, the United States has extended measures of self-government to Puerto Rico.  Consider the amendment to the Jones Act made in 1947, which allowed Puerto Ricans to elect their governor for the first time.[15]  And in 1952, Puerto Rico’s watershed self-government moment came:  After two years of constitution-making, Puerto Rico became the first non-State to adopt a constitution crafted by its people “in the nature of a compact” with the Federal Government.[16]  Puerto Rico had become a democratic experiment.  For example, the Puerto Rico Constitution’s Carta de Derecho (Bill of Rights) safeguarded the dignity and fundamental equality of people; enshrined the right to vote by guaranteeing “direct and secret universal suffrage and [protecting] the citizen against any coercion in the exercise of the electoral franchise”; it also secured the right to an education by mandating a free, non-sectarian educational system;  it barred the death penalty; it protected organized labor movements; it protected laborers’ right to strike; it guaranteed the minority party a third of the legislative ranks if the majority party gained more than two-thirds in one or both chambers so that no political party could monopolize the amendment process.[17]  Still, the Constitution of Puerto Rico went beyond that.  It created an independent body tasked with the reapportionment and the district-drawing processes, overseen by the Puerto Rico Supreme Court’s Chief Justice.[18]  When it came to Jeffersonian (and the more robust Jacksonian) principles of democracy, Puerto Rico’s internal government came first compared to the States.   

The Puerto Rico Constitution also tinkered with federalism:  “[I]t … establish[ed] a new relationship of partnership between the United States and its dependent areas without embracing either of the radical solutions of statehood within the Union on the one side …, or, on the other, the grant of a full sovereign independence.”[19]  Through the compact, Puerto Rico had become a free associated state, and—at least as understood at the time—was supposed to “enjoy[] full local self-government”; the United States had “created for itself the opportunity of democratizing the spirit and structure of the government of its dependent territories.”[20]  And it achieved that by stripping away some of the restrictive measures of the Foraker and Jones Acts that once anchored the island.  For example, the Constitution of Puerto Rico empowered the once-feeble legislature.  It also empowered the Office of the Governor by making the governor the “main driving force behind most legislation.”[21]  It likewise tasked the central government with many duties the Federal Government often delegates to (or does not take from) the States.  The central government, for example, made it its own prerogative to provide an education, not a municipality’s.  This was not your grandfather’s federalism.  But perhaps you’re wondering:  just what is this constitutional arrangement? 

Recall that under Downes-era decisions, Puerto Rico was considered an unincorporated territory, bereft of the Constitution’s full protections.  Not only that, but Congress had unilateral power—except for appointments made by the President with Congressional consent—to administer the island, acting as both jury and executioner.  Perhaps the Constitution of Puerto Rico altered the Foucauldian dynamic between the Federal Government and the newly formed Commonwealth of Puerto Rico by including the principle of consent in the charter initiating the constitution-making process.[22]  But maybe it didn’t, and that was the main problem with Puerto Rico’s Constitution since its inception.  Chiefly, did Congress retain those plenary powers  and through them repeal the Act of 1950 unilaterally?[23]  These concerns were doubtless compounded by some differences between the Commonwealth and States.  For example, Puerto Ricans would get no representation in Congress, having just a Resident Commissioner in the House who’s barred from introducing measures or from voting (unless the outcome is a given).  On top of that, though having ample measures of internal democracy, Puerto Rican voters would not be granted the ability to cast a vote for the President.  A universal postulate is that life turns on a dime—the Constitution of Puerto Rico was no exception.

 Take two individuals, Luis Sánchez Valle and Jaime Gómez Vázquez, selling a gun (on separate occasions) to an undercover police officer in Puerto Rico.[24]  Puerto Rico’s prosecutors indicted them for, among other things, selling guns without a permit.[25]  While they awaited the outcome of the Commonwealth charges, a federal grand jury indicted them for the same sales under U.S. gun trafficking laws.[26]  They both pleaded guilty to the federal charges.[27]  They then moved to challenge the Commonwealth charges based on the Double Jeopardy Clause.[28]  After gaining a favorable ruling from the Supreme Court of Puerto Rico, the U.S. Supreme Court took up the case.[29]

           For the Court, the question turned not on whether a “government possesses the usual attributes, or acts in the common manner, of a sovereign entity,” but on whether separate sovereigns “draw their authority to punish the offender from distinct sources of power.”[30]  The Court found that based on the “ultimate source” of power, Puerto Rico and Congress were the same—for double jeopardy purposes, they could not bring successive prosecutions for the same offense.  Because “Congress conferred the authority to create the Puerto Rico Constitution, which in turn confers the authority [to Puerto Rico] to bring criminal charges,” Puerto Rico and the Federal Government could not both prosecute Sánchez Valle and Gómez Vázquez.[31]  And with this decision, Puerto Rico became subsumed under the Federal Government’s power once again.

This ruling is fundamentally flawed both as a practical and historical matter.  The Court, for example, observed that the States “rely on authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment.”[32]  And doubtless, this is so; but if the Court’s inquiry into the dual-sovereignty doctrine is indeed historical,[33] then under it, thirty-seven of the fifty States would still be attached to the unbreakable chain between them and Congress.  In other words, if the Court were to “look[] at the deepest wellsprings, not the current exercise, of prosecutorial authority” of the thirty-seven States proceeding the original thirteen, there too it would find Congress—like Puerto Rico, they too derived their prosecutorial powers from it.[34]  But of course, this conflict is in many ways preempted by the equal footing doctrine, which holds that when a new State joins the Union, it is entitled to the same standing–the same privileges and rights–as those preceding it.[35]   And this is conceded, even if it undermines the Court’s strictly historical test.  From this, it’s easy to conclude that the sole way through which Puerto Rico can gain equality–and through which Puerto Ricans can gain equal measures of sovereignty–is through statehood.  But this supposes that Puerto Rico’s situation is just like that of any other former territory’s, particularly as–and here’s the quiet part only the Insular Cases said aloud–it is an island populated by American citizens who are not of the same ethnicity and culture as most mainland counterparts.  So to say that the Federal Government will miraculously change course after a hundred-plus years of the same indifference (and at some points hostility) is more than wishful thinking.  But here’s perhaps where the rotten-to-the-core Insular Cases provide some hope:  All throughout them, the Court agreed that the Territory Clause conferred awesome powers on Congress, and Puerto Rico is subject to them.  Under that theory, then-counsel at Interior Felix Frankfurter noted that Congress could engage in “inventive statesmanship” with the new, unincorporated Territories.[36]  Congress could remedy this dearth of autonomy and popular sovereignty, but it has refused to do so.  Puerto Rico has not left the democratic abyss not because its people–again, all American citizens who lack basic political power in representative government–have failed it; Congress has. 

And Congress failed the island again the same day the Sanchéz Valle decision was handed down when it installed a fiscal board managing the island’s finances and thus barring the island’s legislature from truly holding the power of the purse.[37]  Harkening back to the undemocratic Foraker and Jones Acts, the members on this board are unelected, and the way they are appointed is murky.  Let’s not forget the obvious:  The members tasked with appointing or selecting the members of the Financial Oversight and Management Board are themselves unelected by the American citizens of Puerto Rico.  Of the seven-member board, all are appointed by the President.  Six of the members come from a list provided by Congress (two are selected by the Speaker, two by the Senate Majority Leader, one by the House Minority Leader, and one by the Senate Minority Leader).  The Governor of Puerto Rico may participate in the board, but he has no vote.  If this is not repugnant enough to the principles of representative government, perhaps the powers of the board are:  The board casts the dispositive vote over what finances are approved, regardless of the extent of support for the measures tied to those finances.  For example, Puerto Rico’s legislature may have passed a budget with overwhelming support from the parties, but if the board so chooses, it can reject it.  On top of that, the Governor must present the board with expenditure reports every three months.  And more boldly, it could revise active laws and make decisions over the popular will.  The board, as its Chairman David Skeel put it, was meant to be a “temporary” measure, but after six years, the board still directs the island’s financial prerogatives,most notably among them some healthcare and public employee leave laws.

Promises made long ago are not promises to be broken.  The value of popular sovereignty in our Republic is unparalleled.  It means that the people, not the government, get to decide.  Like Madison put it:  “[R]epublican liberty” requires “not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people.”[38]  The Puerto Rico Constitution was a step in that direction but, as it celebrates its 70th, rather than gaining strength as it is more and more engaged in that form of experimental self-government, it has deteriorated with age because of external forces–it has been deteriorated by Congress and the other unelected branches.  The ball thus lies in Congress’s court:  It has refused time and again to pass legislation aimed at untangling the situation it has made for Puerto Rico;  at upholding its side of the compact with Puerto Rico.  Congress has abandoned its responsibilities. 

But Puerto Ricans in the island, unfortunately, have no voting power in federal elections, and so it’s hard to exert any political pressure.  So there’s the other missing piece of the sovereignty puzzle.  Here too, Congress needs to act.  Recall the Felix Frankfurter memo calling for “inventive statesmanship.”  This, coupled with the powers bestowed on Congress by the Territory Clause (and the Court), Congress is able to provide for representation for Puerto Rico.  Or, at the very least, provide voting rights in the general elections.  But of course, that’s the key to the game, isn’t it?  If there are no voters capable of holding elected representatives accountable, then there’s no need to address their interests.  So again, we reach a dead-end.  It’s time the Federal Government meets its end of the bargain and that it honors that compact by increasing autonomy and democratic ideals on the island, and an easy start is to provide meaningful representation in Congress.  It is by no means bound by the practice that States only are the ones to get a seat at the table. Under the powers of the Territory Clause, Congress can engage in “inventive statesmanship,” and that includes the ability to increase representative government for American citizens (it seems almost a given).  On the flip side, the Federal Government could also abolish the Financial Oversight and Management Board, which casts its sprawling shadow over the island and its people.  If the Federal Government’s true goal is to remedy Puerto Rico’s precarious financial situation, then it could work together with the island to address the issues rather than make its people comport with the financial omnipotence bestowed on the board–devolve some power back to the island’s legislature. 

The problems Puerto Rico faces, which are also shared by the other American Territories, holds up a mirror to who we are and what we stand for.  In 1776, Thomas Jefferson jotted down those now-familiar words in the Declaration of Independence:  “Governments are instituted among Men, deriving their just powers from the consent of the governed.”  The United States, though it boasts being the bastion of democracy–and in many ways, it has been–has left its own stranded and in so doing, it has abrogated the primordial values of self-government.  Its practices in Puerto Rico have torn right through the fabric of the ideals this Republic was founded on; it has torn through the fabric Susan B. Anthony extended so assiduously and courageously; it has torn through the fabric John Lewis resew with his blood and broken skull on the Edmund Pettus Bridge.  To fulfill the highest ideals of self-government, which the United States has aspired to throughout its quest to form “a more perfect Union,” principles of both national representation and democratic governance must be upheld everywhere–that includes Puerto Rico.  And this requires going to the negotiating table with those most affected by this rudimentarily undemocratic regime. 

[1] Treaty of Paris, Art. 9, Dec. 10, 1898, 30 Stat. 1759.

[2] Organic Act of 1900, ch. 191, 31 Stat. 77 (Foraker Act).

[3] See ibid., §§17-35, 31 Stat. 81-85.

[4] See, e.g., Louisiana Purchase Treaty, Art. 3, April 30, 1803, 2 Stat. 202 (stating that “[t]he inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States”); Adams-Onis Treaty, Art. 6, February 22, 1819, 8 Stat. 252 (stating that “[t]he inhabitants of the territories which His Catholic Majesty cedes … shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States”); Treaty of Guadalupe Hidalgo, Art. 8, Feb. 2, 1848, 9 Stat. 922 (stating that Mexican citizens who wished to remain in the now-U. S. Territories would be granted “the title and rights … of citizens of the United States”);

[5] §3, 31 Stat. 77-78.   

[6] Art.  I, §8, cl. 1.

[7] Loughborough v. Blake, 18 U.S. 317, 319 (1820) (“Does [the United States] designate the whole, or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of States and territories”).

[8] Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (Lawrence:  Kansas University Press, 2006), 80.

[9] 182 U.S. 244 (1901) (White, J., concurring).  This case marked the start of a series of case law coined the Insular Cases, which concerned the new Territories.

[10] Art. IV, §3, cl. 2.

[11] Cf. Rooke’s Case, 5 Co Rep 99b, 100a; 77 ER 209, 210 (1597) (“Notwithstanding the words of the commission giv[ing] authority to the commissioners to do according to their discretion … their proceedings ought to be limited and bound with the rule of reason and law”).

[12] Downes, 182 U.S. at 342.

[13] Organic Act of Puerto Rico, ch. 145, 39 Stat. 953.

[14] Balzac v. Porto Rico, 258 U.S. 298, 309 (1922) (“It is locality that is determinative of the application of the Constitution, in such matters as judicial procedure, and not the status of the people who live in it”), but see, Johnson v. Eisentrager, 339 U.S. 763, 769 (1950) (“Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar”).

[15] Act of August 5, 1947, ch. 490, §1, 61 Stat. 770.

[16] See Act of July 3, 1950, §1, 64 Stat. 319 (approving the constitution-making process); Act of July 3, 1952, 66 Stat. 327-328 (approving the Constitution of Puerto Rico).

[17] P.R. Const., art. II, §§1, 2, 5, 7, 17, 18; art. III, §§2, 7.

[18] Ibid., art. III, §4.

[19] Gordon K. Lewis, “Puerto Rico:  A New Constitution in American Government,” Journal of Politics 15, no. 1 (February 1953):  42.

[20] Ibid.

[21] Lewis, “A New Constitution in American Government,”:  52.

[22] See Act of July 3, 1950, §1, 64 Stat. 319.

[23] Lewis, “A New Constitution in American Government,”:  58.

[24] Puerto Rico v. Sanchez Valle, 579 U.S. ___ (2016) (slip op., at 4).

[25] Ibid.

[26] Ibid.

[27] Ibid., 5.

[28] Ibid.

[29] Ibid.

[30] Ibid., 7 (internal quotation marks omitted).

[31] Ibid., 15-16, 18.

[32] Ibid., 8 (internal quotation marks omitted).

[33] See ibid., 1, 7, n.3, 12, 17.

[34] See ibid., 7.

[35] See Idaho v. United States, 533 U.S. 262 (2001).

[36] See Memorandum for the Secretary of War, in Hearings on S. 4604 before the Senate Committee on Pacific Islands and Porto Rico, 63d Cong., 2d Sess., 22 (1914).

[37] See 48 U.S.C.A. §2121, 2142(c)(d), 2144(a)(b)(c).

[38] Federalist No. 37, p. 4 (J. & A. McLean eds. 1788) (J. Madison).

Featured Image is Exhibition of Constitution of Puerto Rico at the Capitol of Puerto Rico, by Carlo Giovannetti

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America’s Unusual Legal Politics

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For the past month, the public debate has been roiled with those who believe it too dangerous to prosecute a former president under current political conditions, and those who believe it too dangerous to let presidents break laws with impunity without facing consequences. There’s a striking contrast with the debates around the 2020 and 2021 impeachment proceedings; whereas that time many of those supporting moving forward wanted to emphasize the political rather than the legal nature of impeachment, today there is little doubt that, whatever the political or moral arguments, these are legal cases. It is precisely because of the clear presence of political motives that some are wary of pressing ahead.

Americans are acutely muddled in our understanding of where politics ends and law begins. Where parliamentary systems routinely remove their top executives through a transparently political process, in America we have a removal process that requires bringing charges of “Treason, Bribery, or other high Crimes and Misdemeanors,” and then holding a trial within our legislature’s upper house. Only in America will you find an elected sheriff arresting someone for a crime that will be prosecuted through an elected DA’s office and heard by an elected judge, with the defense quite possibly represented through an elected public defender’s office.

The people who get to decide what the Constitution or a statute or a regulation mean in this case or for this situation are those in positions of institutional authority. For all the reasons described above, the contest for these positions in America is unusually integrated into our party politics. But everywhere that institutional authority of any kinds exists, there are contests of some sort to claim it. In reality, politics does not end where law begins; for politics is simply the striving “for a share of power or to influence the distribution of power”[1] and in order for there to be judges, lawyers, and civil servants at all, there must be people who strive to occupy those roles.

If we can discard the stale dichotomy between law and politics, we can usefully distinguish between the politics of writing and enacting rules—the politics of legislation—and the politics of determining what rules mean in practice—the politics of implementation. America is peculiar in the way we structure both of these types of contests, with two separately constituted chambers and a separately elected president all required for passing bills, on the one hand, and executive and judicial branches much more tied to electoral outcomes, on the other.

Because of the far deeper penetration of party politics into our politics of implementation, electoral politics is perpetually putting the entire legal system into question. This carries very high risks, very much on display in the various legal troubles that former president Donald Trump is embroiled in. On the one hand, a regime that allows its institutional leaders to break laws openly and without consequence is already in a state of lawlessness. On the other hand, a regime that enables whatever political party is in power to prosecute the leadership of their rival is at great risk of becoming lawless, and certainly of becoming undemocratic. Related to this is the risk that if partisans perceive a prosecution to be merely a maneuver for the other side to secure their own power, it could lead to civil unrest.

The legal establishment’s reflex when faced with these risks is to retreat into the comfortable world of some formalism or other. Even in the best of times they display a “tendency to think of law as ‘there’ as a discrete entity,”[2] something to be discovered, understood, and elaborated through abstract analysis. To the natural law jurist and to some extent the common law one (there being a long and unfortunate history of conflating the two), the law that is ‘there’ is one to be discovered through judicial reasoning. To the positivists or originalists, the law is simply derived from the combined semantic meaning of officially enacted texts.

The reality is that there is no law that is discretely out ‘there’, except what in the common law tradition gets called “positive law”; the statutory, constitutional, and regulatory provisions actually written down in official legal documents. But for some action to be “against the law” does not, in practice, mean that someone, somewhere views it as being at odds with something written in some section of positive law. What it means is that someone will bring charges against you for having done it—charges justified in the language of relevant positive law—and some judge will find you guilty of it and set some punishment. In other words, it is against the law because the legal institutions treat it as such, invoking language from positive law as the justification for the treatment.

The jurist’s formalism cannot save them from the inescapably social role they are called upon to perform, nor the peculiar difficulty that America places upon those performing it. Neither positivism nor originalism, nor natural law, can secure the lawfulness of a regime nor the orderliness of a society.

Lawfulness is a matter of reliably following established procedures and treating similar situations similarly; of justifying these similar actions with the same language drawn from positive law. When positive law is changed—for example, when a new bill is passed by the legislature—the way that a lawful system changes its behavior in response to the textual change is consistent across its many actors. Orderliness, meanwhile, is a matter of the members of society at large managing to coordinate their activities peacefully.

Both the politics of legislation and of implementation can make a system more or less lawful, more or less orderly. Elected officials, political appointees, and civil servants must all do their parts. A legislature that routinely removes executives from office has teeth against implementers who get too creative in their interpretations of positive law. A president who knows that the legislature cannot remove him but chooses to limit how bold he will be in his unilateralism also makes for a more lawful system. And the possibility of free and fair elections rests to a significant degree on the typical politicians not behaving as Trump has in defeat, refusing to acknowledge its reality and using every last drop of influence to reverse the outcome.

Lawfulness is one thing, but a regime that de jure deviates too far from what will be tolerated by the de facto interests and powers in a society—power which in this the modern world is spread quite broadly—is apt to fall into disorder. Legislative supremacy is by far the best approach to mediating this, but our difficult to amend Constitution has allowed the interpreters of it—and the Supreme Court above all—to gain disproportionate institutional authority. This has accordingly increased the stakes of the contests for those offices, which has not been wonderful for promoting either lawfulness or order. The resulting range of interpretations of the same clauses of the Constitution over the history of the Court is laughable to behold.

Our system makes it very hard, but we can strive to implement alternate interpretations of legal texts with integrity, just as we can compete in free and fair elections with integrity. There are clear contests in which competing interpretations may eventually be able to supersede established ones. If a party succeeds in contests for the legislature and the presidency, passes new bills and appoints new judges, the interpretation of standing constitutional text can ultimately be changed.

In a healthy liberal democracy, there is no end to elections, no final victory. In the same way, there is no end to either the politics of legislation or of interpretation. This is an important point for liberal law professors to remember, as the Supreme Court precedents set from the 50s to the 70s encouraged a widespread complacency in a number of crucial areas. Conservatives, meanwhile, did not treat these precedents as final, and the results are now plain to see. No one has the final say in politics. There is always the next election, the next bill, the next media event demanding a response from elected officials. But there is also always the next appointment battle, the next court case, the next administrative action. The struggle to maintain the lawfulness of the system, but also to determine the substance of that law, is perpetual.

[1] Weber, Max, David S. Owen, Tracy B. Strong, Rodney Livingstone, Max Weber, and Max Weber. The Vocation Lectures. Indianapolis: Hackett Pub, 2004. 33.

[2] Shklar, Judith N. Legalism: An Essay on Law, Morals, and Politics. First Edition. Harvard University Press, 1964. 9.

Featured Image is Governor Earl Warren at the Anaheim Halloween Parade, photo courtesy County of Orange

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The Case for Abolishing the National Environmental Policy Act

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In November 2006, Superior Court Judge Peter Busch upheld a preliminary injunction against the city of San Francisco, preventing them from moving forward with their plan to build new bike lanes and bike infrastructure.  Busch ruled that the city hadn’t properly followed the environmental review process mandated by the California Environmental Quality Act, or CEQA.  In November 2008, San Francisco was finally finished with the review.  All it took was more than 2.5 years, 1,353 pages and more than $1 million in direct costs. This allowed San Francisco the chance at a public hearing in January of the next year, after which the bureaucratic process could either continue or face more delays.

If you think a two year, million dollar, 1,000+ page environmental report simply to build new bike lanes in an already developed city seems absurd, you’re not alone. Americans are more concerned than ever about addressing climate change, but one of America’s foundational environmental laws is functionally preventing us from doing so. The National Environmental Policy Act—and its state level equivalents such as CEQA—make it far too difficult to take major actions that would help lower carbon emissions. NEPA is a fundamentally broken piece of legislation and should be entirely repealed.

What is NEPA?

NEPA is a 1969 law that requires extensive environmental reviews on federal actions which might “significantly affect” the environment. In practice, its scope is incredibly wide—even 100% private projects can require NEPA reviews simply because they need a federal permit. Virtually every medium-to-large project of any kind, anywhere in the United States, will fall under NEPA’s authority. Many states have also passed state level versions like CEQA which are functionally as strict or stricter than NEPA (we’ll lump the impacts from NEPA and its state level equivalents together for ease of argument).

Despite good intentions, NEPA is one of the primary reasons why it’s so hard to build anything in America. There are three main types of NEPA review—Categorical Exclusions (CEs), Environmental Assessments (EAs), and Environmental Impact Statements (EISs). Environmental Impact Statements are the most stringent category of those three. In 2020, the White House Council on Environmental Quality estimated that the average EIS took 4.5 years to complete and ran more than 660 pages long. This is likely an underestimate as the 4.5 years figure is the time from the “Notice of Intent” filing to the “Record of Decision” ruling, and work typically begins before the Notice of Intent. The American Action Forum estimated an average time of 5.8 years for infrastructure projects to gain NEPA approval. The problem is also getting worse over time, with average NEPA review times estimated to be increasing 39 days per year.

Environmental Impact Statements aren’t even the most harmful process. Environmental Assessments are somewhat less stringent—only taking about 400 pages and two years on average—but there are around 60 times more EAs required every year than EISs, making them at least an order of magnitude more burdensome. NEPA is so poorly implemented that even projects which have been categorically excluded from NEPA review by law (and pre-determined to have no environmental impact) still must go through a Categorical Exclusion NEPA review process. While CEs can be processed quickly, some organizations find that CEs average hundreds of days and 100+ pages. And this for projects which are pre-determined to have no environmental impact.

What NEPA costs us

These delays are harmful in multiple ways. As a first order effect, they cause construction efforts in America to be far more expensive and take far longer than necessary. There are direct costs from the staffing and research required to complete the reports, which are often in the hundreds of thousands or millions of dollars. There are also the indirect costs from having to secure financing over long and uncertain timelines—it’s much harder to get financing, line up vendors and contractors, and organize a plan for your large project when the start date is years in the future (and you can’t even say exactly how many years it might be). As a second order effect, these reviews also drive firms to stop planning new projects entirely. There’s an entire generation of potential housing, infrastructure and energy projects simply not undertaken because the review process is too long and too costly. For projects working on a tight budget or timeline, an EIS is effectively a death sentence.

Perhaps all this burden would be justified if NEPA reviews were guarding against the worst kinds of environmental harm. But the reality is that there’s not much evidence NEPA even does any good for the environment. NEPA is primarily a procedural requirement. As researcher Eli Dourado notes

Federal agencies can go through the entire process, find that the action under consideration imposes huge environmental harms, and decide to go through with it anyway. The process doesn’t provide any substantive environmental protection … NEPA, then, doesn’t actually privilege environmental protection. Like any procedural requirement, it privileges the status quo. Paperwork must be completed and boxes must be checked.

NEPA prevents us from being able to do much of anything efficiently. The American Recovery and Reinvestment Act was meant to stimulate the economy quickly after the 2008-09 recession. But the projects in ARRA were subject to more than 192,000 NEPA reviews, including more than 7,000 Environmental Assessments and more than 800 EISs. While those reviews were ongoing, projects could not begin and economic stimulus effectively could not take place. The same thing is likely to happen to the bipartisan Infrastructure Investment and Jobs Act signed by President Biden. In just a single year, litigious NIMBYs filed suit against 50,000 proposed new homes in California using CEQA. Sometimes NEPA’s reach borders on absurd—it nearly delayed the University of California from admitting new students and delayed Barack Obama’s presidential library for years. The Niskanen Center has reported how NEPA reviews have stopped the U.S. from updating its electricity grid, often delaying or outright cancelling such efforts despite clear economic and environmental need. 

NEPA Is anti-environmental

In fact, NEPA has a long history of delaying explicitly environmental projects. It’s worth belaboring this point at some length to drive home exactly how anti-environment NEPA is. There’s the congestion pricing plan in New York which was delayed by NEPA. There’s the 1353 pages, 2.5 years, $1 million+ review of adding bike lanes in San Francisco. A $3 billion offshore wind project at Martha’s Vineyard was delayed for years due to NEPA. A separate $2.6 billion offshore wind project off Cape Cod was ultimately cancelled after 16 years of legal wrangling. Yet another $3 billion dollar wind project in Wyoming was ultimately approved after 11 years of review process. Hydroelectric dam projects in Oregon have been delayed. A different dam modernization project in Arizona faced a five year delay for review where the executive summary of the EIS is 76 pages long. A reservoir expansion in Denver (despite having the NEPA lawsuit ultimately dismissed) was still delayed by 2.5 years. A lake restoration effort in Utah was delayed 5-7 years. California’s high speed rail plans were delayed in 2017 by CEQA, and then again in 2019 (California ultimately gave up on connecting San Francisco to Los Angeles with high speed rail). Sometimes it’s “environmental” groups themselves who use NEPA as a tool to obstruct environmentally friendly projects. These groups used NEPA to attempt to halt a solar power project in California, to sue a different solar project in Nevada, to stop clean hydropower contracts in Maine, and to stop Minneapolis’s rezoning initiative. The examples are numerous and absurd — the Forest Service’s wildfire prevention projects are delayed an average of 3.5 to 7.2 years due to NEPA.  In one instance a wildfire prevention plan was delayed so long that the impacted forest, which wasn’t aware of the importance of bureaucratic process, caught fire and burned 90,000 acres to the ground while the plan to stop said wildfire was still in review.  Seattle’s light rail expansion, crucial for fighting climate change, was delayed by an 8,000+ page EIS. The federal government can’t even install solar panels on the roofs of federal buildings without a NEPA review. 

Some of the reasoning in these NEPA lawsuits borders on farcical. The Nevada solar project delayed by NEPA was out of concern for the three-corner milkvetch, which to be blunt, is a weed. It is an unremarkable and unimportant weed that grows in the middle of a barren, empty desert. It seems absurd to have to state this, but society must prioritize building out 100% renewable and green energy above the needs of the three-corner milkvetch. If we can’t even muster the political will to build solar in a literal barren desert, the planet will burn from climate change and the milkvetch is doomed anyway.

Just build

NEPA is part of a larger issue with American political culture, which is our inability to build anything fast. In additional to environmental legislation like NEPA, the U.S. has huge issues with NIMBYism and a system of adversarial legalism where nearly anyone can sue to stop anything at any time. Those bringing nuisance lawsuits do so because they know current law gives them incredibly powerful tools to delay, obstruct, and often prevent any new project of any kind from being built. 

There’s also a focus on process over results. One of the worst examples comes from Lisa Jacobson, who wrote a column comparing London and Amsterdam’s transit system with America’s. Jacobson concluded that while London and Amsterdam get better results in nearly every way, they need to learn from America’s system because they don’t have enough process for “equity analyses” or “centering excluded groups.” We’ve become so used to the absurdity of the process that we’re now mistaking the process for the outcome.

It’s worth looking back and realizing we used to build much faster. The Empire State Building was built in 410 days. Today, 410 days would likely be about a quarter of the way through their NEPA review. The Golden Gate Bridge, a technological marvel of its time that was viewed as “the bridge that couldn’t be built”, took only about four years to build. A suicide prevention barrier on that same bridge was bid on in 2015, began construction in 2018, and isn’t due to be completed until 2023. Building the entirety of the Golden Gate Bridge with 1930s technology was faster than building a simple guardrail with today’s review process. America is absolutely drowning in process, forms, and reviews.

Abolish NEPA

NEPA’s defenders often try to shift the blame—arguing that the real villain is agency underfunding, or that NEPA’s problems are overhyped because delays can be caused by a number of factors. These justifications fall flat. Agency manpower and underfunding is an issue because agencies must deal with thousand page reports and hundreds of thousands of NEPA reviews. And while it’s completely fair to point out that NEPA is not the only cause of delays, the existence of other secondary problems shouldn’t stop us from fixing the problem in front of us. 

Some compiled lists of ‘success stories’ where NEPA prevented great harms.  While there are a few examples of NEPA succeeding (you’d expect at least a few big success stories out of the hundreds of thousands of reviews) the list is mostly unimpressive.  It’s filled with bureaucratic-speak about how NEPA ‘considered alternatives’, ‘added accommodations’, ‘allowed a diverse coalition to voice concerns’ or ‘initiated a collaborative decision making process’. Clear examples of prevented harm are few and far between, and often would have been covered by separate legislation like the Clean Air Act or the Clean Water Act. Other proponents say we can’t loosen regulations because it will make it easier to build fossil fuel projects.  But while it’s true that 15% of the Department of Energy’s reviews are for fossil fuel projects, 42% of their reviews are related to clean energy or conservation. NEPA may actually hit clean energy projects harder, proportionally.

In modern political discourse, ‘abolish’ has come to mean ‘significantly reform’. In this sense of the word, NEPA should absolutely be abolished. It’s a broken process and leads to immense costs for questionable gains. There are a number of smart proposals to reform NEPA, and most would be steps in the right direction. Joe Manchin has asked for a permitting review “side deal” to speed up many aspects of this process as part of the compromise on the Inflation Reduction Act. The Trump administration took small movements toward reducing NEPA’s burden (later walked back by the Biden administration). California is trying to exempt campus housing from CEQA reviews. Congressional candidates like Suraj Patel have advocated for NEPA reforms. If they succeed, these reformers will be doing America a great service.

But there’s also a case for the more literal form of abolishing NEPA. The simple truth is that America would be a better, more environmentally friendly place without it. There’s little evidence it prevents genuine environmental harm that isn’t already protected by other statutes, and an enormous amount of evidence that it harms us in many ways. It harms our economy by making infrastructure slower and more expensive to build. It slows down dynamism and innovation. It harms our cities by making it harder to build dense, walkable urban areas with mass transit. It harms the environment by delaying and preventing clean energy projects.

Tinkering around the edges of NEPA’s immense harms may end up locking us into a system where we debate how many years of delay are appropriate, how many thousands of pages of documents is the appropriate number to write, how many millions should be spent on lawyers and review before any shovel ever hits dirt. Tinkering ignores how badly NEPA’s process is broken.  America would be a more prosperous, more dynamic, and even a more climate friendly country without NEPA. Let’s abolish it.

Featured Image is Unfinished concrete building

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23 days ago
New York, NY
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The Fight Makes the Meaning: Noah Feldman, James Oakes, and the Lessons of Antislavery Constitutionalism

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Noah Feldman, Felix Frankfurter Professor of Law at Harvard Law School, is a frequent public commenter on the state of constitutional law and the Supreme Court. Over the last few years he’s been in a rough patch. He’s written about how Trump’s conservative appointees deserve to be on the Supreme Court. He seems to have hoped these justices to behave like Justice Anthony Kennedy. He was sure the Supreme Court would not let conservative states get away with cynical end runs around binding precedent. Even as all evidence was pointing towards the conservative justice’s eagerness to overturn longstanding precedent he said we just couldn’t be sure. Events are outpacing him.

You might expect this experience to chasten his confidence in his abilities. You would be mistaken. Feldman isn’t content to merely bungle reading our current constitutional moment. He’s decided to bring his unique brand of political tone deafness to interpreting the antebellum constitution of the first half of the 19th century. The result is his latest book The Broken Constitution: Lincoln, Slavery, and the Refounding of America.

For all its flaws, Feldman’s book has one virtue. It clarifies why his analysis of our present constitutional moment is so consistently off. He ignores historical actors whose arguments require more than summary dismissal and only engages with opposing views that are easier to knock down. He justifies this by declaring by historical fiat that views he ignores are not politically feasible. He doesn’t fully understand the views of those he considers correct, to say nothing of the people he disagrees with.

I’m not the only person to notice this. James Oakes, a history professor who has written several books on the debates over the interpretation of the antebellum constitution, wrote a scathing review of Feldman’s new book for The New York Review of Books. Oakes’ review addressed the major claims Feldman made in The Broken Constitution and found them wanting. One point in particular caught my attention—Oakes’ withering assessment of Feldman’s superficial engagement with antislavery constitutionalism. 

“To make his case,” Oakes charged “[Feldman] must discount much more than the history of accelerating antislavery policy during the Civil War. He must expunge the entire record of antislavery constitutionalism stretching back to the founding era.” More specifically, Oakes contended that Feldman did not “even hint that proslavery and antislavery forces developed very different interpretations of the what the fugitive slave clause actually meant.” 

Feldman wrote an outraged reply letter to the NYRB. He alleged Oakes’ review was “a case study in whitewashing the central role of race and slavery in the history of the US Constitution.” Such a view, alleged Feldman, “cannot serve as the basis for a usable past.” Denying he ignored the antislavery constitutionalists, he growled in a footnote that “[nearly every time Oakes says the book “ignored” something (and there are many), it is the subject of extended discussion, often of many pages. If Oakes himself did not read the book, the fact checkers ought to have done it for him.” Not only Oakes, but the NYRB itself, stood condemned of a sloppy scholarly drive-by.

Here’s the thing, I read Feldman’s book; I also read books by Oakes on the same topic, specifically The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution and The Scorpion’s Sting: Antislavery and the Coming of the Civil War. Oakes is right. Feldman does ignore vast swaths of antislavery constitutionalism extensively documented in Oakes’ books. Both Crooked Path and Scorpion’s Sting are cited by Feldman in The Broken Constitution, but one could be excused for wondering if Feldman read them at all. 

The substance of this dispute goes beyond disciplinary turf wars between a law professor and history professor. Oakes isn’t a constitutional scholar, but his work has unearthed a history of constitutional reasoning that stands in contrast to Feldman’s method. It points to a way of thinking about and working within an imperfect constitutional order that provides a “usable past” in a way that Feldman’s story does not. 

Feldman ignores interpretive diversity

This can be seen clearly by looking at the particulars of the dispute. In his reply to Oakes in the NYRB, Feldman takes umbrage with Oakes stating that he “barely mentions” the antislavery constitutionalists. Au contraire says Feldman, “I discuss the subject at great length, explicating the views of Federick Douglass, Angelina Grimké, William Lloyd Garrison, Lysander Spooner, and adding to the literature the voices of less well-known Black abolitionists like Charles Lenox Remond, William Howard Day, and Hezekiah Ford Douglas.” 

Feldman’s retort sounds persuasive, but fails on closer inspection. He focuses almost exclusively on the most extreme thinkers. Angelina Grimké and Lysander Spooner believed the Constitution gave Congress the ability to abolish slavery in the states. Charles Lenox Redmond, Hezekiah Ford Douglas, and William Lloyd Garrison believed the opposite extreme: that the Constitution was rotten to the core, providing no path to abolition, even on a gradual state-by-state basis (this is basically Feldman’s view too). Frederick Douglass believed both views at different times in his career.

The one thinker Feldman presents in his book that comes closest to taking a nuanced position is William Howard Day. Feldman presents Day as arguing that the Constitution is like the Bible. It can be interpreted to bad ends, but the document is better than its current interpreters. Fair enough, as far as it goes. 

But Feldman presents himself as having read Oakes’ books so he should know there are better antislavery legal arguments. He just passes over in silence antebellum legal thinkers like William Goodell, Theodore Dwight Weld, as well as numberless antislavery activists, government petitioners, and party platform drafters. These people were trying to craft nuanced, textually based, and historically informed interpretations of the Constitution construing the scope of its compromise with slavery as narrowly as possible. 

Over decades, in the face of long odds, they continued to argue their case. Until 1860 when the Republican party won the presidency advocating for significant portions of the antislavery interpretation of the Constitution. Feldman’s failure to engage with these thinkers impoverishes us in two ways. First, in our understanding of the past. Second, in our understanding of how constitutional change happens. Before getting to the second point, let’s continue considering Feldman’s blinkered historical narrative.

Feldman ignores historical contingency

Feldman’s narrow and selective engagement with the antislavery constitutional theorists results in a failure to understand the historical actors he does engage with. Consider how Feldman and Oakes discuss the nature of the constitutional compromise on slavery. Oakes calls this compromise “the federal consensus” and states that all parties to constitutional debates “agreed that Congress had no power to “interfere” with—that is, abolish—slavery in a state.” Feldman calls it “the compromise constitution” which stood for a belief “that the federal government had no constitutional power to end slavery”. 

Feldman alleges Lincoln shared his view, but his view doesn’t accurately render Lincoln’s perspective on the nature of the Constitution’s compromise with slavery. Oakes’ characterization more precisely renders Lincoln’s view. As Lincoln said in his First Inagural Address: “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists.” Feldman’s “compromise constitution” rendering cuts out the italicized portion of the sentence. Oakes’ “federal consensus” characterization keeps it in place.

This may seem like a minor quibble, but the italicized portion was of vital importance for the antislavery constitutionalists. As Oakes articulates in Crooked Path. If the federal consensus only protected slavery in states where it existed, then logically it also:

protected abolition in the states: Congress had no power to interfere with emancipation in states that had established the presumption of freedom. This… raised a number of contentious constitutional questions. Could a state where freedom was presumed guarantee the rights of due process to men and women accused of being fugitive slaves? Did masters forfeit their slave property when they voluntarily carried their slaves into northern states that presumed freedom? And how far did that presumption of freedom extend? Did slavery follow the Constitution when southern masters migrated westward, or was freedom the “normal condition” of the territories? Did slaves acquire constitutional rights in US territorial waters?

In short, while Congress could not end slavery in a state, it potentially had vast powers to stop its expansion outside the states where it already existed. 

Feldman’s belief that the federal government could not end slavery, full stop, obscures that federal and northern state governments had the power to grind away at slavery in several ways that could make it untenable in the states where it still existed. To pick one example, they could provide due process rights to blacks in free states giving them a right to trial before being taken out of state by slave catchers, effectively increasing the cost and burden on reclaiming enslaved individuals who dashed across state lines seeking freedom.

However, Feldman baldly asserts this idea of ending slavery via gradual emancipation was “logically impossible” and a “fantasy” because of the invention of the cotton gin after the enactment of the Constitution. Feldman acknowledges founders like Jefferson and Madison thought gradual emancipation was the most likely outcome but this “epoch-making technological innovation thwarted the framers’ expectations”. That’s it. That’s the only reason he offers. 

It’s hard to know where to start with such a grand monocausal claim, but let’s start with the obvious. The Northern states elected Abraham Lincoln in 1860 on a platform to halt the expansion of slavery beyond where it currently existed. The Southern states seceded because they felt this was an existential threat to slavery. Maybe if Feldman had been there to explain the cotton gin to Jefferson Davis things would have gone differently. He was not. And the war came.

If one assumes that, as everyone in 1860 seemed to, that gradual emancipation was not a pipe dream, it’s worth considering the various interpretations propounded by antislavery constitutionalists to encourage gradual emancipation. Their textual ingenuity and creativity has a lot to teach us about arguing constitutionally under disheartening conditions. 

The actual debate, fully considered

Since Feldman cuts off the debate before it begins he not only obscures the nuances of antislavery readings of the Constitution, but proslavery readings as well. Nowhere is this more apparent than his discussion of the fugitive slave clause. The clause is found in Article IV, Section 2 of the Constitution and reads:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. 

Feldman dedicates a few sentences to interpreting its meaning: “In intent and effect, this clause superseded the Northern states’ commitment to principles of abolition and freedom. It subordinated the courts and other legal institutions of the free states to the constitutional principle of sustaining slavery.” For Feldman the discussion is over.

Like the proslavery constitutionalists, Feldman’s reading assumes that the constitution was a text primarily animated by a right to property. But the antislavery constitutionalists rejected this reading, arguing instead that the constitution should be read in the light of the right to liberty.

Proslavery readers of the constitution scoffed at this argument for reasons that appear nowhere in Feldman’s book. Oakes fills in this gap in Scorpion’s Sting and Crooked Path, citing proslavery arguments that the idea of property, including property in slaves, had existed since time immemorial. According to proslavery thinkers, the fact that there had never been a carve out for the enslaved from the concept of property showed that they should be included under Fifth Amendment’s promise that “No person… shall be deprived of life, liberty, or property, without due process of law.” The emphasis was on the property. Slaves were property. The Constitution protected property. Therefore the Constitution enshrined slavery.

Not so, retorted their antislavery adversaries. One of the goals of the Constitution, by the express terms of its preamble, was to “secure the Blessings of Liberty”. Furthermore, as well regarded common law jurists like Lord Mansfield made clear, the default presumption under the common law was that of liberty. The only way that slavery could exist was under positive law, i.e., written statutes creating the property right. The antislavery constitutionalists didn’t deny that states like Georgia had such laws, but states like Illinois and the US federal government did not. The right to property in the enslaved ended at the line of the state where the property right was recognized absent some express statutory language to the contrary. The fugitive slave clause, they said, had to read in the light of this right to liberty—narrowly.

Let’s pause to note here that nothing in the Constitution decisively answers whether the right to liberty or the right to property should take priority. There is no constitutional clause that says “in case of an interpretive impasse, favor slaveholders’ property rights over blacks’ liberty rights”. Both sides believed their interpretive prior existed in natural law and should therefore obviously be the key to the text. Most of the disputes between the proslavery and antislavery constitutionalists turned on what the Constitution doesn’t say and what each side thought Congress, the president, and the courts should fill in the silence with.

As an example, consider the fugitive slave clause in the larger context of its location in Article IV, which discusses the relationship between the various states. Some sections give the federal government powers to regulate interstate relationships. For example, Section 3 gives Congress the authority to “make all needful Rules and Regulations” in any new territory acquired by the federal government. In contrast, Article IV, Section 2 (containing the fugitive slave clause) granted no explicit authority to the federal government to enforce this obligation. 

Some radical antislavery constitutionalists used this silence to argue that the federal government had no authority to regulate the return of fugitive slaves. This rendered the Fugitive Slave Acts enacted by Congress in 1793 and 1850 unconstitutional. It meant that states without slavery could decide what due process protections they wanted to give to blacks who fell into the hands of slave catchers.

Other antislavery constitutionalists took a more moderate position. They arrived at it, however, via a clever interpretive move they shared with their more radical fellow travelers. The Constitution, they observed, never explicitly mentions the legal concept of slavery. Anytime the Constitution addressed issues arising from state laws that recognized slavery, the text did not describe slaves, but rather “such persons” (the slave importation clause), “all other persons” (the three-fifths clause), and “persons held in service” (the fugitive slave clause).

For Feldman this is a mere “euphemism”, but the antislavery constitutionalists chose to read the Constitution as if it meant what it said. The Constitution did not mention slavery when it obviously should because, at the federal level, the Constitution did not recognize slavery. Slavery was merely a legal category under the laws of individual states. Under the Constitution all humans, slave and free, were “persons” in the eyes of the federal government. 

As “persons” they were entitled to the protection of the Fifth Amendment which promised “[n]o person shall… be deprived of life, liberty, or property, without due process of law.” Note the difference in emphasis from the proslavery interpretation of the Fifth Amendment. If anything deprived a person of liberty, antislavery advocates argued, it was being taken into slavery by a slave catcher who alleged a person was a slave. Shouldn’t a slave catcher have to prove that the person they had in their clutches was a slave via a more robust standard than what was guaranteed under the Fugitive Slave Act of 1850—a token hearing in front of a magistrate who got paid more if he found the person in the slave catcher’s hands was a slave? In 1860 people answering this question “yes” had a candidate who indicated he agreed: Abraham Lincoln. 

The proslavery constitutionalists thought this was ridiculous. So did the Supreme Court. As Oakes observed in Scorprion’s Sting  “From Prigg [v. Pennsylvania] to Dred Scott [v. Sandford], the justices insisted with increasing vehemence that slaves were property, not persons, under the Constitution.” No matter. The antislavery constitutionalists did not let the current staffing on the Supreme Court deter them. In fact, they took their arguments further.

If the federal government did not recognize slavery, and all persons were protected by the due process clause of the Fifth Amendment regardles of race or property status, then this constrained what “needful Rules and Regulations” Congress could enact in federal territories under Article IV, Section 3 discussed above. To recognize slavery via statute in the federal territories was to deny enslaved blacks liberty without due process of law. It also required the federal government to regulate a type of property not explicitly recognized under the Constitution. 

For antislavery constitutionalists, this step by step textual analysis led to one conclusion: the federal government could not allow slavery in the federal territories. In 1857 Chief Justice Taney issued his infamous opinion in Dred Scott v. Sandford saying this was impossible. In 1860, partly in reaction to that decision, there was a presidential candidate who promised to effectively ignore the Supreme Court’s broad holding and not to let slavery extend into the federal territories: Abraham Lincoln.

The slaveholders of the South in 1860 saw all this and knew the stakes. They sputtered: “Leave the fate of their attempts to reclaim their property in the hands of Republican-appointed judges in the North? In front of Northern juries whose minds had been corrupted against sacred property rights by abolitionist propaganda?” They fumed: “A halt to the expansion of slavery in the territories? Making it so each future state has no investment in perpetuating the property arrangements of the Southern slaveholders? How long could the three-fifths clause boosting our representation in the House continue to protect us, to say nothing of increasing the sectional imbalance in the Senate?” 

The southern slaveholders were confident they knew the answers to their questions and they didn’t like them. That’s why they tried to leave the union. They probably would have made the same choices even with Feldman insistently telling them the cotton gin made slavery indestructible. They may have been morally stunted, but they weren’t stupid. They knew which way the wind was blowing and it was against a system they had profited from tremendously. 

The fight makes the meaning

There’s more that could be said about the distortions and misleading historical analysis in Feldman’s book. How he ignores antebellum debates over wartime emancipation after the Revolutionary War, the War of 1812, the Seminole Wars, and in the lead up to the Civil War (discussed over the course of 62 extensively documented pages in Oakes’ book Scorpion’s Sting). How Feldman disregards the existence of the First Confiscation Act of 1861 and its slave emancipating implementation by the Lincoln Administration (the topic of 37 pages of granular legislative and administrative detail in an Oakes book Feldman doesn’t cite, Freedom National: The Destruction of Slavery in the United States 1861-1865). Or how the only time Feldman discusses the Fifth Amendment’s due process clause in any detail it’s to defend the rights of suspected Confederate spies rather than blacks in the hands of slave catchers (he could have engaged with the discussions in either Scorpion’s Sting or Crooked Path to avoid this unfortunate disparity in constitutional solicitousness). But to get lost in the details would be to obscure the core philosophical error from which all Feldman’s mistakes flow: his belief that he’s making “usable history” and Oakes is not.

The story Feldman tries to tell in The Broken Constitution is not merely one of a “compromise constitution”, but also a story of our current “moral constitution” which he informs us “we revere today”. We revere it, according to Feldman, because the 13th, 14th, and 15th Amendments of the Reconstruction era removed the stain of slavery and racism from our constituional regime.

Let’s assume, for the sake of argument, we in fact “revere” our current constitution in spite of anti-democratic features like gerrymandering, the electoral college, and the Senate. At the very least, we don’t revere it because of the Reconstruction-era amendments. They did not make our constitution moral. In less than a decade after their enactments Jim Crow, lynching, convict leasing, and voter suppression were the order of the day for over eighty years. Feldman calls this a “betrayal” and laments it, but doesn’t really seem to reckon with the fact this history reveals that the words of the Constitution don’t make it moral, how we choose to interpret and implement the words does. If we revere our Constitution it’s because what we do with it makes it reverable. 

Feldman’s abstract labels of “compromise constitution” and “moral constitution” collapses this essential gap between a text and its interpretation. How is a history like this usable? There is nothing to be done but sit in silent awe at the wonder of our constitutional order as interpreted by Noah Feldman. Anyone who would complicate the story should just be ignored. There is one correct way to read the text and Professor Feldman has found it.

Oakes, incidentally, used to hold a view similar to Feldman’s regarding the “correct” interpretation of the antebellum Constitution. As he candidly admits in his most recent book Crooked Path: “Once upon a time a firm yes or no [to the question “were the antislavery constitutionalists right?”] would have come easily to me, but I now think it’s a mistake to dismiss antislavery constitutionalism too readily.” His historical analysis of multiple antislavery constitutionalists, not just the ones that can be dismissed out of hand, is an attempt to rectify his initial knee-jerk response. 

He also raises another essential point: “Clouding the issue [of who was correct] is the fact that the question between [antislavery and proslavery constitutionalists] was not simply Who got the Constitution right? but who had the power to enforce one version of the Constitution over the other.” As Oakes notes, the three-fifths compromise gave Southern slaveholders a representational boost in Congress to help enforce their vision of the Constitution. Scholars have noted the South had other structural advantages as well. However, this benefit slowly eroded as the United States expanded and the population of Northern states increased.

But it wasn’t just population distribution that was changing. Minds were changing too. It started with antislavery constitutionalists arguing that the way the Southern slaveholders read the Constitution wasn’t the only way to read it. They presented these arguments in court. They lost frequently, but they kept making them. Some members of Congress started making these arguments. They lost floor vote after floor vote, but they kept making the arguments. People who made these arguments formed political parties and ran on political platforms endorsing their constitutional views. These people lost election after election, but kept forming parties. And then, finally, in 1860 they stopped losing. One side didn’t like the look of lawful election results and its anticipated constitutional consequences so they tried to leave. We all know what happened next.

I don’t think historians are required to make “usable” history, but if there is a usable history of the antebellum constitution, a history of how people tried to use the constitution is surely it. Throwing in the towel in because, as Feldman put it in a testy Twitter exchange, “0%” of the institutional actors endorsed the interpretations that Oakes reports is not only factually false. It also ignores how constitutional change happens. 

Part of what we vote on in elections is how the Constitution should be interpreted and used. People voting in 1860 didn’t need this explained to them. The Southerners who seceded didn’t need it explained either. I can’t believe this needs to be explained to a constitutional law professor who wrote a (quite good) book about the court packing fight during the New Deal and its consequences, but apparently it does.

The kind of person who reads an essay like this to the end doesn’t need to be told that the current state of affairs for progressive constitutional interpretation is bleak. Feldman’s Bloomberg commentary and books like The Broken Constitution cannot help us understand or navigate it. Histories like the kind told by James Oakes provide a better guide to our moment. 

Oakes’ story provides a way of looking at constitutional interpretation that fits how we got to our current right wing jurisprudential ascendancy. It explains how we got from a former Chief Justice of the United States calling the individual right to bear arms a “fraud” in 1991 to a judicially protected constitutional right in 2008. Also how the Supreme Court’s 7-2 holding in Roe v. Wade turned into an expected 5-4 reversal over the course of 49 years. We are where we are because people fought for it over the course of years and changed the relevant actors in government. 

At the end of day, it doesn’t matter how moral our constitution is on paper, what matters is the morality of the people empowered to say what it means. Advocating for solutions is outside the scope of this essay, but maybe liberal legal thinkers should start advocating that we reconsider who we has the power to interpret the Constitution. Because we all have a stake in this project. Despite what Feldman argues, moral constitutions aren’t just written. They must also be made. 

Featured Image is First Reading of the Emancipation Proclamation by President Lincoln, by Francis B. Carpenter

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27 days ago
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