Suchergebnisse

Between 1953 and 1960, the United States' overall military and intelligence-gathering capacities grew enormously, driven by President Eisenhower's "New Look" approach to fighting the Cold War. But the distribution of powers within this New Look national-security state, the shape of its institutional structures, and its sources of legitimacy remained up for grabs. The eventual settlement of these issues would depend on administrative constitutionalism – the process by which the administrative state both shapes and is shaped by constitutional norms, often through ostensibly non-constitutional law and policymaking. Constitutional concerns about civil liberties, administrative procedure, and the separation of powers ran highest in those branches of the national security state responsible for regulating civilian and military manpower, such as the Loyalty-Security Program, an inter-agency effort to root out ideologically deviant federal employees, and the Selective Service System, the civilian agency created in 1940 to register, classify, and select millions of young men for compulsory military service. This Article focuses on the Selective Service System, which has received far less attention from legal scholars despite the fact that it exercised authority over a far larger (and arguably more vulnerable) population than did the Loyalty-Security Program. Administrative constitutionalism inflected every stage of the New Look draft's development: from the size and composition of draft calls; to the arguments that draft administrators made when lobbying their congressional patrons; to the competing interpretations of the Selective Service System's organic statute and regulations offered by Justice Department and Selective Service lawyers; to judicial review of these interpretations; to how executive branch lawyers responded to – and sometimes tried to preempt – judicial criticism by modifying the substance and procedure of draft decisionmaking. By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower's New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower's New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's "constitutional revolution," while also re-examining the constitutionalism of the Founding and Reconstruction in light of New Deal transformations. Given the centrality of the New Deal to this project, constitutional historians seemed to be heading toward a fundamental reconsideration of the relationship between constitutional law and political economy. That is, after all, what New Deal constitutional conflict was all about: the extent to which the Constitution allowed a national political movement to alter the country's economic life in fundamental and lasting ways. And yet, the new generation of constitutional historians generally avoided political economy as such. To be sure, their histories carefully reconstructed early twentieth-century debates about the constitutional authority of the state and federal governments to displace common law economic regulation. But the focus remained on the purely legal logics and purely political events that led the federal judiciary to get out of the business of adjudicating the constitutional merits of various schemes of economic regulation. The economic reasons that political and judicial actors might have had for transforming constitutional democracy received little attention. This exclusion of economic reason from constitutional analysis is symptomatic of what Professors Joseph Fishkin and William Forbath call the "Great Forgetting." From the Founding through the New Deal, Fishkin and Forbath demonstrate, the discourse of "constitutional political economy" was a fundamental feature of American constitutionalism. It was only in the wake of the epochal New Deal synthesis – judicial deference to political regulation of the economy and judicial guardianship of civil liberty and equality – that constitutional political economy became something of a dead language. Prior to that time, constitutional actors across the ideological spectrum spoke in terms of constitutional political economy, believing that "economics and politics [we]re inextricably linked, and [that] a republican constitution require[d] a republican political economy to sustain it, and vice versa." By recovering this language, Fishkin and Forbath's book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath's new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires – "requires" in the double sense of "demands" and "depends upon." This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly "one-sided." First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society's remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy – "the constitution of opportunity" – that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.

It is telling that the winners of [Daniel] Ernst's history are not the hardened legal realists whom we generally think of as building, and justifying, the New Deal state. Rather, Ernst turns the spotlight on reform-minded corporate lawyers, such as Charles Evans Hughes and John Lord O'Brian, who stepped back from the edge of realism. While accepting the necessity of the administrative state for managing a modern economy, they fought to imbue that state with a legalistic conception of "fair play" and a distinctively lawyerly form of expertise. These political and intellectual moderates would have agreed with Sunstein and Vermeule when they write that "[a] dose of legal realism … has its place, but … respect for the governing rules is not optional." Just as for Sunstein and Vermeule, the APA evacuated administrative law of "any kind of ideological valence," for Ernst, the "rule of lawyers" insulated the administrative state from becoming a weapon in the hands of any particular social or economic group. It apparently goes without saying – neither Ernst nor his protagonists say it – that the impartiality of the "rule of lawyers" admits one important exception. Under a "rule of lawyers," the administrative state will persistently favor one socioeconomic bloc: lawyers and the interests they serve. From this perspective, Tocqueville's Nightmare can be read as a narrative of regulatory capture: the capture of the administrative state by lawyers themselves. But while regulatory capture is generally understood as a threat to administrative legitimacy, Ernst suggests that lawyerly capture is its condition precedent. If he is right, important new questions come to the fore: how did lawyers win the struggle to equate administrative legitimacy with their control of the administrative state, and what exactly did they win by defining administrative legitimacy in this way? Ernst's ingenious history not only forces us to ask these questions, but also helps us answer them.

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such "First Amendment Lochnerism" date back to the federal judiciary's initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah's Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith – the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new "liberal" majority's expansive conception of First Amendment enforcement repeated the mistakes of the "liberty of contract" jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on "the rights of others." Justice Jackson's warnings sound strikingly similar to contem­porary critiques of First Amendment Lochnerism. Yet today's critics treat recent case law as a novel, economically libertarian co-option of an otherwise progressive project: the judicial enforcement of civil liberties. In contrast, the Justices and scholars who objected to the 1940s peddling-tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. By recovering the origins and sketching the aftermath of the peddling-tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon's novelty and underestimate the difficulty of curing judicial civil libertarianism of its "Lochnerian" tendencies. This argument, in turn, counsels a reorientation of contemporary advocacy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of today's First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy.

Joseph Fishkin and William Forbath's book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath's new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires – "requires" in the double sense of "demands" and "depends upon." This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly "one-sided." First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society's remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy – "the constitution of opportunity" – that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class. By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have – by any fair measure – done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of "constitutional political economy" comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of "the constitution of opportunity," the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such "First Amendment Lochnerism" date back to the federal judiciarys initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovahs Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith-the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new "liberal" majoritys expansive conception of First Amendment enforcement repeated the mistakes of the "liberty of contract" jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on "the rights of others." Justice Jacksons warnings sound strikingly similar to contemporary critiques of First Amendment Lochnerism. Yet todays critics treat recent case law as a novel, economically libertarian co-option of an otherwise progressive project: the judicial enforcement of civil liberties. In contrast, the Justices and scholars who objected to the 1940s peddling-tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. By recovering the origins and sketching the aftermath of the peddling-tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenons novelty and underestimate the difficulty of curing judicial civil libertarianism of its "Lochnerian" tendencies. This argument, in turn, counsels a reorientation of contemporary advocacy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of todays First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy.

One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – 'liberty' meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient 'liberty of the subject'? This question could be and was asked with regard to many areas of law. The traditional order of property rights, for instance, was already in disarray thanks to the shocks of monopoly capitalism, labour militancy, the First World War, and the profound crisis of the Great Depression. Yet few rights would more directly test a wartime government's conception of the rule of law than the right of conscientious objection. The refusal of alleged pacifists to participate in the often lawless violence of the Second World War posed fundamental practical and normative challenges for all combatants – but especially for those who understood themselves to be fighting for individual liberty.

The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state's decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human rights law and national sovereignty.

The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state's decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human rights law and national sovereignty.

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional "rule" that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual correction. Administrative law has the resources to ensure that the provisionality of guidance does not lead to the abuses that conservatives fear. But to deploy those resources – and to carry through the reforms of administrative organization that are their natural complement – progressives must rethink their commitments to judicial deference to administrative authority and administrative deference to presidential authority, commitments on which the progressive defense of the administrative state currently depends.

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional "rule" that invites its own revision–mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual correction. Administrative law has the resources to ensure that the provisionality of guidance does not lead to the abuses that conservatives fear. But to deploy those resources – and to carry through the reforms of administrative organization that are their natural complement–progressives must rethink their commitments to judicial deference to administrative authority and administrative deference to presidential authority, commitments on which the progressive defense of the administrative state currently depends.

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today? After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century "progressive" model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of "informational capitalism" and the "information state." First Amendment Lochnerism may reflect contemporary judicial politics, but it has deep roots. To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories of free speech. Yet on account of their depoliticization and abstraction, the canonical theories prove indeterminate when confronted by these anxieties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, enables the creative elaboration of a few basic motifs concerning the scope and severity of judicial enforcement, the identification and reconciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary.

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today? After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century "progressive" model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of "informational capitalism" and the "information state." First Amendment Lochernism may reflect contemporary judicial politics, but it has deep roots. To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories of free speech. Yet on account of their depoliticization and abstraction, the canonical theories prove indeterminate when confronted by these anxieties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, enables the creative elaboration of a few basic motifs concerning the scope and severity of judicial enforcement, the identification and reconciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary.

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values – the usual focus of criticism – for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory's persistence may foster down the line.