I don’t agree with anyone all the way, if I can avoid it. (Not even myself over time.) But I can’t find anything wrong with Beau Baumann’s call for a new “constitutional politics” of legislative supremacy. As a fellow traveler in the crusade against juristocracy and presidentialism, I write only to express a few small worries — first about how Beau might have chosen a misleading name for his vision, next about how much opposition it might face even among the like-minded, and last about where the “law and political economy movement” is nowadays as a result.
In advocating for legislative primacy, Beau frames his argument as a form of “constitutional politics.” One might reasonably wonder, however, whether it is a constitutional vision in any sense. Beau doesn’t appear to mean interpreting the U.S. Constitution in yet another new way. As he says, he couldn’t. For all its ambiguity and flexibility, that document is at odds with Beau’s agenda. (The Electoral College, the Senate, an executive and indeed any parts of American government — such as the administration or the states — with any powers not delegated and revocable by the legislature all require confrontation.)
Of course, Beau might refer to constitutionalism in its original sense, what the Greeks labeled “politics” or “regime.” But then he shouldn’t say that his question is: “who should wield state power and on what terms?” The answer to that question, after all, is about whether everyone and everything is justly ordered, since state power intervenes justifiably or not as deeply or transformatively in society as its authority requires (or abstains from doing so to the same extent).
Referring to a theory of justifiable social and political relations as a “constitutional politics” could mislead people into thinking that what matters is to draft a document that entrenches authorities for and limits on state actors. Yet Beau never mentions the big-C Constitution. And if the realization of our highest ideals (including freedom from arbitrary or excess power, whether “public” or “private”) depends on the legislature having the last word in politics, as Beau seems to think, it’s probably best to be honest that this means that nothing is formally entrenched in law that the legislature can’t change. Avoiding the label of small-c constitutionalism is another way to keep ourselves honest, without giving any impression that entities other than democratic and political ones like the legislature (and the people ultimately) ought to be empowered to keep us safe or make us just.
Next, Beau complains about juristocracy and presidentialism alike, and I am most definitely down. But he may be understating just how tenacious both are on our side of the political spectrum, including within LPE circles.
“Few on the Left, I suspect, would oppose judicial rollback,” Beau writes. This depends, of course, on how one defines “the Left” — for even as progressives circle around a more consensual plan for disempowering courts than their splintered proposals to date, it is clear that that addiction to the judiciary and even the higher judiciary, like most such maladies, will remain tantalizing no matter the ruin to which it has led. Nor has everyone even entered treatment.
Witness, most obviously, how many liberals glazed the Supreme Court after its decision to block the tariff authority Donald Trump arrogated to himself. By the end of the current term, centrists — including many liberals among them — may well have been lured back to another round of Supreme Court revivalism thanks to such deceptive if real victories, especially if it goes on to side with birthright citizenship and Lisa Cook.
Thankfully, there is no doubt that a long since reactionary court is taking its toll on the endemic hope for an emancipatory form of juristocracy. Consider the catastrophe in United States v. Skrmetti for our favorite clause of our favorite amendment, the Equal Protection Clause of the Fourteenth, a setback that finally touched off a debate about how to think about litigation as politics.
The brilliant liberal Douglas NeJaime, for instance, convincingly revisited his famous old article, “Winning through Losing,” which held that court defeats can help mobilize social movements, to make sure no one reads it as an alibi for bad strategy. Actually, losing is losing, he clarifies now — at least often enough to avoid courts when the outcomes are so toxic. On the other hand, beneath that persuasive realism lurks an almost inextinguishable wish for a better court — without exploring whether it’s fantastical or not. A liberalized judicial power, NeJaime writes in another new piece with Reva Siegel, could someday abandon the bad old substantive due process of Lochner v. New York, while guaranteeing the good kind that progressives like. Far from being undemocratic, it would make democracy credible in the first place.
Such nostalgia takes many forms, and many critics of the Court seek only to abandon it temporarily, not definitively. I fear that a lot of liberals and even some parts of the left in law schools still seem to be at the stage of their relation to juristocratic temptation that, as in St. Augustine’s earlier twelve-step program for sin, says: “save me from it, just not yet.”
Presidentialism has been an even worse transgression than juristocracy. On the rare occasions that the Democracy party bothers to avoid losing winnable presidential elections, liberals and progressives drop all pretense of holding out against it. On a dime, having preached against bureaucratic excesses and illegal wars of their political enemies when out of power, they pivot. In the guise of “presidential administration” and “regime change,” advocates for last few Democratic chief executives have embraced partisan versions of the same depraved executive self-aggrandizement that we are all denouncing now. (And in foreign affairs, too, Democrats often rationalize presidentialist fiat as if “democracy” in a world of despotism justifies war.)
We need to start with how predictable and unsurprising all this is. It’s highly understandable for liberals to drift back to executive might for good causes, just as they so readily drift back to the cult of the higher judiciary. The legislature of our time looks increasingly defunct. And even if Congress were more functional, there are compelling psychological reasons to avoid relying on it, like a perceived need for initiative and speed rather than entropy or lassitude. Class, environmental, gender, and racial injustice are so extreme, Sabeel Rahman writes in his own great new piece, that in the place of an authoritarian Republican approach to administrative law, the left could put a republican vision in its place, subbing “non-domination” for oppression. It’s not clear where the legislature is in this picture.
Beau seems to be suggesting, rather, that the first priority is to stop being “opportunistic,” making clear the need to steer our side clear of the presidentialist trap. Yet no one has even contemplated a step-by-step program that reckons seriously with all the institutional and political incentives that have led liberals and progressives to co-create the current presidency with their allegedly bitter foes. Today, as a result, it is conservatives, including on the Supreme Court, who are most likely to stand up for the legislature’s prerogatives, however ideologically and opportunistically and rhetorically, as in Neil Gorsuch’s recent concurrence in the tariffs case.
Answering Beau’s call will require generational work, in other words, and I’d say it should start with a new theory of administrative law as a fundamentally legislative activity. Legislatures would take charge not of just “rule-making” but also of all of the adjudication currently relegated to executive auspices. (Authorization and control of military force also ought to be treated as legislative activities, as even the 1787 Constitution’s text says.)
All of which raises, lastly, the stakes of Beau’s post for the law and political economy movement. I am as LPE-pilled as all the other progressives in the legal academy these days. But I continue to wonder whether we have had enough of the fights of the kind Beau envisions to resolve what prescription we are pushing. Inside LPE, let alone in broader liberal circles, who even agrees with Beau about a program of legislative supremacy — especially when we know how readily we will fall off the wagon into juristocracy and presidentialism when they advance our goals?
To be honest, I am not sure. It’s not a focus of the original LPE manifestos or recent work. The re-emergence of progressive attitudes in American law schools in the last decade has been nothing short of spectacular. But how many, I wonder, are foul weather friends of the campaign against juristocracy, only aligned with these goals during an era of reactionary courts? How many speak vaguely enough of their commitments to “democracy” to leave themselves leeway, if the opportunity arises, to rebuild the cult of a judiciary allegedly indispensable for making democracy worthy of the name?
A parallel set of questions arises when it comes to presidentialism. If anti-authoritarianism and anti-fascism are LPE’s slogans in the face of Trump, and understandably so, where is its plan to disempower his office after he dies, falls, or leaves? It would seem that there is a lot more resistance to the current American president than to the American presidency. What would a “reconstruction” of Congress look like? And how would (or should) it happen without allocating yet more powers to the courts?
As I see it, then, Beau’s essay is a call to LPE — and challenge for it.
