Election Law and White Identity Politics

The role of race in American politics looms large in several election law doctrines. Regrettably, though, these doctrines’ analyses of race, racial identity, and the relationships between race and politics often lack sophistication, historical context, or foresight. The political status quo is treated as race-neutral, when in fact it is anything but. Specifically, the doctrines rely upon sanguine theories of democracy uncorrupted by white identity–based political calculations, while in fact such calculations, made on the part of both voters and political parties, are pervasive. In this Article, I appraise the doctrine pertaining to majority-minority voting districts, racial gerrymandering doctrine, the doctrine governing ballot access disputes, and campaign finance doctrine through the lens of white identity politics. Drawing from research in political science, sociology, and history, I argue that these doctrines are blighted by what I identify as “racial blind spots” that are inconsonant with political reality. Given the role that courts play in enunciating these doctrines, their failure to meaningfully engage with the significance of white identity politics renders their governing frameworks and remedial prescriptions inapt. The Article concludes by offering a number of suggestions, both doctrinal and legislative, for how to mitigate white identity politics

Incoherent but Reasonable: A Defense of Truth-Abstinence in Political Liberalism

A strength of liberal political institutions is their ability to accommodate pluralism, both allowing divergent comprehensive doctrines as well as constructing the common ground necessary for diverse people to live together. A pressing question is how far such pluralism extends. Which comprehensive doctrines are simply beyond the pale and need not be accommodated by a political consensus? Rawls attempted to keep the boundaries of reasonable disagreement quite broad by infamously denying that political liberalism need make reference to the concept of truth, a claim that has been criticized by Joseph Raz, Joshua Cohen, and David Estlund. In this paper, we argue that these criticisms fail due to the fact that political liberalism can remain non-committal on the nature of truth, leaving the concept of truth in the domain of comprehensive doctrines while still avoiding the issues raised by Raz, Cohen, and Estlund. Further substantiating this point is the fact that Rawls would, and should, include parties in the overlapping consensus whose views on truth may be incoherent. Once it is seen that political liberalism allows such incoherence to reasonable parties, it is clear that the inclusion of truth and the requirement of coherence urged by Raz, Cohen, and Estlund requires more of reasonable people than is necessary for a political consensus

EU Competition Policy Revisited: Economic Doctrines Within European Political Work

European Union competition policy is often described as neoliberal, without this leading to more investigation. This paper highlights how the European Competition policy doctrine has been shaped, how the ordoliberal movement and the Chicago school ideas have been implemented and supported by the political work of some key actors. We show that, contrary to what is sometimes said in literature, ordoliberal actors were neither hegemonic nor leaders between Rome Treaty and the eighties, even if some neoliberal principles were introduced in antitrust law. These laws are much more a compromise between French and German representatives, and between neo-mercantilists and ordoliberals. However, things have dramatically changed since the eighties, when both (1) new political work from members of the Commission introduced in the European competition policy elements of Chicago School doctrine to complete the European market and (2) some decisions from the ECJ clarified the doctrine of EU Competition law. Nowadays, European competition policy is a mix between an ordoliberal spirit and some Chicago School doctrinal elements.competition, policy, European Union, neoliberalism, ordoliberalism, political work

Coming into the Anthropocene

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and highly contested regulatory and judicial interpretation. This analysis, however, does not limit the interest of Cannon’s analysis to this political moment. Rather, Cannon’s integration of legal and cultural analysis has great promise for the Anthropocene, the dawning era when human decisions and values will be among the most important forces shaping the planet. In the future, it will be necessary to think of environmental law as both reflecting and producing ideas of the value and meaning of the natural world. Cannon’s analysis is an excellent starting point for an Anthropocene approach

Justice and the fetus: rawls, children, and abortion

In a footnote to the first edition of Political Liberalism, John Rawls introduced an example of how public reason could deal with controversial issues. He intended this example to show that his system of political liberalism could deal with such problems by considering only political values, without the introduction of comprehensive moral doctrines. Unfortunately, Rawls chose “the troubled question of abortion” as the issue that would illustrate this. In the case of abortion, Rawls argued, “the equality of women as equal citizens” overrides both “the ordered reproduction of political society over time” and also “the due respect for human life.” It seems fair to say that this was not the best choice of example and also that Rawls did not argue for his example particularly well: a whole subset of the Rawlsian literature concerns this question alone

What Normative Facts Should Political Theory Be About? Philosophy of Science meets Political Liberalism

Just as different sciences deal with different facts—say, physics versus biology—so we may ask a similar question about normative theories. Is normative political theory concerned with the same normative facts as moral theory or different ones? By developing an analogy with the sciences, we argue that the normative facts of political theory belong to a higher— more coarse-grained—level than those of moral theory. The latter are multiply realizable by the former: competing facts at the moral level can underpin the same facts at the political one. Consequently, some questions that moral theories answer are indeterminate at the political level. This proposal offers a novel interpretation of John Rawls’s idea that, in public reasoning, we should abstract away from comprehensive moral doctrines. We contrast our distinction between facts at different levels with the distinction between admissible and inadmissible evidence and discuss some implications for the practice of political theory

XIII. Political Liberalism and Nationalism, 1815-1871

The first half of the nineteenth century saw the emergence of two secular faiths which became key features of Western thought: political liberalism and nationalism- Their tenets were not wTiblly ne^ As~early as the lourteenth century when medieval feudalism was giving way to the rising national state, Marsiglio of Padua (c. 1275 - c, 1343) had announced that political authority was properly lodged in the people. The seventeenth century had produced in John Locke (1632-1704) a man whose ideas on government later became a wellspring for political liberalism. The same era also found nationalism accentuated by colonial rivalries and mercantilist doctrines. Later, the Enlightenment left a legacy to both political liberalism and nationalism. The philosophes had reflected on ways and means of broadening the basis for government founded to preserve those inalienable rights based on natural law. In addition, their attacks on Christian superstitions undermined popular respect for religion, thereby opening the way for a new object of reverence. [excerpt

The Pros and Cons of Politically Reversible Semisubstantive Constitutional Rules

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. For such an effort to succeed, however, those decision makers must comply with special, deliberation-enhancing procedural requirements crafted by courts to ensure that constitutional concerns receive fair attention in the lawmaking process. Is semisubstantive review legitimate and sensible? In this Article, the author disentangles—and then responds to—each of ten critiques that judges and scholars have directed at semisubstantive decision making. While acknowledging that most of these critiques have some merit, the author concludes that courts should continue to deploy semisubstantive doctrines as one, but not the only, tool of constitutional review. This approach, it is argued, serves a worthy aim. It protects constitutional values in a meaningful way, while taking due account of the salience of republican self-rule

How “political” is Quong’s political liberalism?

In this short paper I ask to what extent the sharp contrast between the political and the comprehensive, on which political liberals such as Rawls and Quong place primary emphasis, caters to a truly “political” conception of liberalism. I argue that Quong’s own take on this point is more distinctively “political” than Rawls’s, in that it assigns far less weight to citizens’ comprehensive doctrines. Indeed, I suggest that Quong’s exclusion of comprehensive doctrines (exemplified by his worries about an “overlapping consensus”) has more radical implications than Quong himself seems to think. In doing so, I offer a streamlined version of Quong’s critique, which encompasses two more or less direct criticisms of Rawls’s doctrine of the overlapping consensus. I will call them the “sincerity objection” and the “liberal objection”