Ask not for whom the First Amendment tolls: It tolls for you. Or so I argue in an essay just published at the Columbia Law Review online. It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy”—a boring title for a vital and urgent problem. Courts, speaking in the name…
This is the final post of a three-part series. Read Part I and Part II Part Three: The Substantive Constitution Reconstruction, Freedom, and Nullification: The Battles over the Fourteenth Amendment In 1872, newly-emancipated and enfranchised black Republicans won a wave of elections throughout the country, including in Grant Parish, Louisiana. The election was disputed and…
This is the second post of a three-part series. Read Part I and Part III. Part Two: The Structural Constitution The Basic Structure Suggested readings: One of the central functions of the Constitution is to structure the core institutions of government. In our constitutional system, this means the allocation of power between federal and state…
A primer on constitutional law from the perspective of political economy.
What does political economy have to do with the issue of gender violence that roiled Kavanaugh’s Supreme Court confirmation? One answer is that law should not separate economics from the social inequalities that mediate power. Violent enforcement of social hierarchies has long been a core capitalist strategy for securing selective economic advantage, as Angela Harris…
There’s a lot for liberals to despair about these days and the Kavanaugh appointment sharpened several sources of that despair. After such an intensely partisan fight about the Court, and especially after the remarkable, norm-shattering partisan performance of the Justice himself at his final confirmation hearing, some of the liberal worry is inevitably focused on…
In our market supremacist era, is anyone allowed to bring their full self to the marketplace and the workplace? Or must we all be “everywhere and only homo oeconomicus,” as Wendy Brown put it? One of the more arresting aspects of the Supreme Court’s recent Masterpiece Cakeshop case is how neoliberal it isn’t. If neoliberalism casts us…
Legal advocates have scored some major class-related victories in 2018. In January, an appellate court held that the administration of California’s money bail system violated the Fourteenth Amendment rights of indigent defendants. In February, the Fifth Circuit held Harris County’s money bail procedures unconstitutional on the ground that they keep the “poor arrestee” behind bars…
When calling out discrimination is itself forbidden as discrimination . . .
If the First Gilded Age is the age of industrial capitalism, the Second Gilded Age is the age of digital or informational capitalism. Like the First Gilded Age, it is also a time of deep political corruption and despair about the future of American democracy. It has not yet produced a second Progressive Era, yet every day I see signs that this is where we are headed.
On May 30, 2018 the Illinois legislature voted to ratify the ERA. Thirty-seven states have now ratified the sex equality amendment to the U.S. Constitution, just one state shy of the three-quarters required by Article V to validly amend the Constitution. Legal commentary following this news is primarily focused on questions about the amendment’s legitimacy,…
Twenty-first century democracy demands structural limits on techno-power that render private data monopolies amenable to democratic control.
In our first post, we made the case for studying immigration enforcement through a political economy lens. Without political economy, we are left with an ahistorical and inadequate understanding of the challenges and realities of immigration enforcement, which implicate both state and market, and not just Donald Trump and Barack Obama, but our colonial past…
Liberals and progressives bemoan the problems of immigration enforcement and deportation along the vectors of racialization and criminalization. Their critique goes something like this: the immigration enforcement system is unfair in how it targets Black and Latinx and other immigrants of color, and this targeting has worsened as immigration enforcement has become increasingly entangled with…
Recently on this blog, Sabeel Rahman and Ganesh Sitaraman detailed the growing interest among public law scholars in questions of power, inequality, and political economy. One feature of the emerging scholarship, they correctly note, is that it directs its attention not primarily to courts, but to legislators and social movements; it focuses not primarily on…
