Saturday, May 18, 2013

Chaos Muppets

Impeachment is the word of the day, as after faux-scandal after faux-scandal have failed to stick, Republicans have finally found a government act that everyone agrees was an abuse of power (the IRS audits). Now, from what we know if the IRS scandal at this stage talk of impeachment is obviously ludicrous. Nonetheless, Jon Chait argues that Republicans should let the crazy fly.

It's an interesting question, to be honest. Our constitutional system depends on norms to function, and what we've seen these past few years is what happens when these norms start to breakdown -- when it becomes acceptable to try and kneecap entire wings of government by refusing outright to confirm any agency appointees, or to hold the entire economy hostage through the debt ceiling, or, for that matter, by tossing "impeachment" around every time Obama hears a sneeze without saying "God bless you." Our political system (defined crudely as who wins and loses elections), by contrast, is zero-sum -- it doesn't matter how much the American people hate you so long as they hate the other guy more. Chaos, as Littlefinger reminds us, is a ladder, and a calculated decision to sow chaos certainly can end up redounding to one party's benefit. The system is calibrated to respond to people who stay within well-defined borders, and when a player comes along who openly flouts those rules, he can gain a distinct advantage. This is why the Joker is Batman's most dangerous foe -- his behavior defies even those norms which govern how criminals behave.

But that chaos can aid its progenitors does not mean it always will, and the truly chaotic actor is by definition incapable of ceasing setting fires just because its no longer in his interest. The problem for Republicans is that I don't think this is planned chaos. The Clinton impeachment, for example, was obviously farcically weak on its merits, but at least it could be plausibly sold as a political strategy. It turned out to be a bad gambit -- the American people reacted badly, and the GOP was tarred as a bunch of overzealous hypocritical loons -- but they at least could claim that outcome was apparent only with the benefit of hindsight.

By contrast, today it seems quite clear that all the impeachment chatter is not a calculated strategy but simply an uncontrollable reflex. Impeachment was uttered about Solyndra and Fast and Furious. A number of high-profile Republicans have contemplated it for one alleged offense or another. World Net Daily convened a panel to discuss impeaching Obama over no less than a dozen different "scandals" ranging from the Libya war to Cap and Trade. Rob Portman gets elder statesman points for not being ready to commit to impeachment yet.

Republicans were convinced in 2012 that Benghazi was their ticket to victory, and were shocked that American voters didn't seem to think the Obama administration did anything wrong. One could say they've learned nothing. But I think the problem is deeper. The impeachment talk is no longer a political strategy -- its just the raw result of the conservative id flailing about, and Republicans can no longer keep it under control.

Wednesday, May 15, 2013

Our Divine Constitution

It wasn't the first academic piece I had accepted for publication (that would be "When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, which came out in the Dartmouth Law Journal when I was still at Carleton).

It wasn't the first piece of academic scholarship I published in a true law review (that would be my law review comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement). Nor was it the first piece I published as a professor (The Perils and Promise of the Holder Memo), or even the first full-length piece I had accepted for publication (Sticky Slopes, which I believe is scheduled to come out this October).

But nonetheless it is a milestone, and I am pleased to announce the publication of my first full-length law review article to actually hit the presses: Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).
The presumption that God is omnibenevolent — inherently just, wise, kind, and merciful — is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoken of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself.

In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we think it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.
As always, I'd love you feedback.

It's been a really hard year this year, and it did not go the way I had hoped (to put it mildly). But I can do this, and this article will be the first of many.