Escaping History

Isaac Cui
- Apr 11, 2021
- 9 min read

The Head and the Heart

“This could be so easy, / If you could see you through my eyes. / I tell myself not to let it go, / Hold on to something so beautiful.”

—The Head and the Heart, “See You Through My Eyes”

In my senior year of high school, a band called The Head and the Heart was all the rage. Indie folk was the vibe for that cohort of Austinites, I think. The music was also appropriate for the end of high school. I remember many a drive listening to their most famous song, “Rivers and Roads,” with friends as we processed the bittersweet feeling of parting ways for college.

I once read that the band members chose that name because they knew in their heads that making a band was a terrible idea, but they knew in their hearts that the band was the right thing to do. This week, I wanted to write a bit about that distinction — about the head and the heart.

I got here by reading an essay about patriotism, where the author argues that patriotism — thought in terms of constitutional loyalty — is both a matter of rational agreement and also emotional allegiance. Patriotism is about being convinced and about being converted, about thinking and feeling.

Telling in that article, I think, is the way the author describes and quickly shoots down the New York Times’s famous “1619 Project,” which traced the origin of the American state to the importation of slaves to Virginia in 1619 rather than to the Declaration of Independence in 1776. Analytically, I think the 1619 Project is thought-provoking, in that it’s interesting to ask about what it would mean for a state’s origins to be in slavery rather than revolution. But I think the real effect of the 1619 Project is in its emotional appeal — in its denial that the American state was founded on laudable-but-imperfectly-implemented ideals and instead in its positing that the state’s actual foundations were on a morally bankrupt economic system.

The author waves aside this core claim of the 1619 Project easily: “One reason I cannot accept this view is that it denies the efforts of generations of Americans – black and white – in their struggle to achieve a more perfect union. Slavery is an irreparable stain on America but it is not the essence of America.” That’s not an appeal to the head. There’s little logic. In place, instead, are feel-good platitudes. Notice the biracial emphasis, suggesting unity or at least solidarity; the constitutional allusion; the concession about the “irreparab[ility]” of slavery but the final assertion that slavery cannot be the “essence” of America to wave away the substantive argument.

Who is convinced by such logic? Presumably those who feel, in their hearts, the fundamental righteousness of our constitutional order (its project of creating “a more perfect union”), who are pulled by images of the Civil Rights Era and warm-and-fuzzy rhetoric about progress toward a promised land of equal opportunity. I imagine it’s readers of a website called The Constitutionalist, who already have some fundamental faith in this constitution, who agree with the author’s argument — and not those who do feel, in their hearts, that the Constitution was wrought of anti-Blackness and Indian genocide.

When we recognize the emotional dimension of constitutional loyalty, argumentation begins to look a lot more intractable. What difference, I wonder, is this kind of lofty constitutionalist rhetoric from what we might think of as “normal partisan politics” and all its associated connotations of ugly, simplistic, belligerent contestation? “A more perfect union,” “separation of powers,” “equal protection,” “due process” — are these in meaningful ways distinguishable from “lock her up,” “electoral integrity,” or “battle for the soul of America”? Aren’t they all, ultimately, targeted emotional appeals to people who resonate with a particular rhetoric, who have been socialized to think in particular ways? What if these are mostly empty platitudes that don’t convince and, instead, merely serve as signals of one’s allegiances and inclusion in ideological communities?

Thought this way, constitutional rhetoric is no different than the ability to offhandedly cite Tocqueville, or Thucydides, or Du Bois, or Pauli Murray, or Scalia’s dissent in Morrison v. Olson. Surely speaking in this valence reflects some kind of learnedness, but mostly it signals inclusion in specific communities. “I’m one of you,” you tell your audience of political theorists, when you make note of the Melian dialogue. “I believe what you do,” you signal to your Republican friends, when you talk about the scourge of voter fraud. I have no doubt that talking about the unitary executive, cooperative federalism, or the counter-majoritarian difficulty has the same effect in constitutional law circles.

None of this is to say that the head has no role in persuasion. Among like-minded people, I think, disagreement can be very rational and constructive. But I think establishing credibility within a community is often a prerequisite for rational debate to exist. It’s why even the most well-reasoned YouTube comment won’t persuade many readers, whereas a judge’s speech to lawyers — even one that is poorly reasoned — can likely find a receptive audience.

Patriotism, constitutional loyalty, constitutional rhetoric — these ideas are generally important in a civic community, but they’re especially relevant in the context of legal thinking when originalism has become dominant. That is, when constitutional interpretation is tethered methodologically to what a text was originally (and publicly) understood to mean, then questions of patriotism take on a much more practical importance. To give an example: I once had a conversation with a brilliant lawyer where I asked her about her thoughts on originalism. I expected some argument about how difficult originalism is, or about how it doesn’t achieve its goals, but her response was much simpler — why should we be forced to tie our constitutional ideas to the beliefs of men who would’ve been scandalized by women wearing pants? Ask people left-of-center about originalism, and I think you’ll get many such responses: Why listen to rich white men? Why listen to slave owners? Why listen to racists or misogynists? Why listen to those who were complicit, or actively involved, in genocide?

Note that there are, of course, more “sophisticated” arguments about originalism. There are those, like Brennan, who would say that originalism is simply impossible to do — that judges can’t transport themselves into a 1787 mindset. Others, like Breyer, point to judges being poorly equipped to originalist jurisprudence — judges are lawyers, not historians, and there is plenty to criticize about “law office histories.” More common-law oriented scholars, like Richard Primus, would say that originalism empowers judges to engage in sweeping constitutional rulings, throwing away decades of stable law in pursuit of Truth as narrowly defined by their own constitutional methodology. There are merits to these arguments just as there are merits to intellectual defenses of originalism — about the role of constitutional methodology in disciplining judges, in serving as a metric for accountability, in delimiting the extent of legitimate legal arguments, and so on.

But while these arguments focused on the head rage on, it seems to me the real battle is for the heart. Those of the left tend to be convinced that the Framing generation irredeemably partook in, perpetuated, or were complicit in violence. They see no merit in referring to a generation of oppressors for defining their constitutional politics. And those of the right see people like Madison or Jefferson as wise men whose ideas should serve as the backdrop for constitutional development. One side emphasizes the unique depravity of the American state; the other lauds the exceptional ingenuity of the Founders in ushering to the world a new era of freedom.

Exaggerated, of course, these arguments are. But the nature of emotional ties is that they’re simplistic feelings of the gut rather than sophisticated thoughts of the mind. Most people I’ve asked say that they have “mixed” feelings about the Framers. (I say the same.) No one wants to be perceived as simplistic, to be an ideologue that says either the Framers were gods or demons. But in the end, when push comes to shove, if the question is about the very legitimacy of the originalist undertaking, one’s answer hinges, I think, only on a gut instinct about the righteousness of the Framers themselves. “Mixed” feelings don’t cut it. Either one thinks of them as sufficiently “good” and “deserving” that originalism is legitimate, or one thinks of them as sufficiently “bad” that originalism is illegitimate. One necessarily imparts on the Framers a level of legitimacy by accepting originalism.

If this analysis is right, then I think we ought to look to two particular sites of contestation that will determine the future of originalism among people on the left. First, historical scholarship about the Framers really does matter, because that scholarship may well inform elite perception that trickles down to societal consensuses around these people. Particularly crucial, I think, are history textbooks — how we narrate the story of the Founding. No wonder that the 1619 Project and “Critical Race Theory” have become scare tactics among the right. The public’s “feeling thermometers” about the Framers will have important implications for conservatives’ decades-long project of embedding originalist thought into the legal mainstream.

Second, and related, are public-facing cultural artifacts about the Framers. Richard Primus wrote in 2016 that the musical Hamilton “attempts nothing less than regime change” by rewriting our public imagination of the Framing generation. Slave owners they were, Hamilton tells us, but immigrants, progressives, and nationalists (rather than state sovereigntists) they were, too. In Primus’s view, Hamilton helps Americans on the contemporary left to rethink the Founders and thus to retell their story: “[B]y offering a version of the Founding that resonates with liberals today, Hamilton will encourage liberals to embrace the Founding rather than running away from it. And when liberals appropriate the Founding, they will emphasize both consciously and subconsciously those sources that can be made to do work for liberal causes in modern constitutional law. . . . What matters is who tells the story.”

* * * * *

Rose: I went on a trip last weekend to Somerset, in South West England. Things that were cool:

* Got to meet a bunch of new Marshalls (it was a bit intimidating to go on a weekend trip mostly with people I didn’t know, but it turned out okay!).

* Got to see farm animals like never before — I’ve never interacted with a donkey before (his name was Derek, and he was quite loud); I’d never seen such a large pig (Fifi must’ve weighed at least seven hundred pounds); and I got to feed two horses.

* Got to see the British coast (we went on a day trip to Dorset), which was absolutely beautiful.

* Got to see stars for the first time since being in the UK. I had missed them a lot.

Things I learned:

* Never try puffing a cigar! I figured I had to try it at least once when someone offered it, but it was, truly, a terrible taste. (I also learned that if you smoke a cigar correctly, it’s much less dangerous than smoking cigarettes because you don’t inhale the smoke into your lungs. I did the puff correctly and still hated it.)

* I am truly bad at small talk and big-group conversations. Whenever I was with people individually, I felt quite content — I learned a lot about hyperparasitism and working in Congress during President Trump’s first impeachment! — but the big-group-talk-about-music conversations were not my cup of tea.

* People, including myself, can be very territorial in a kitchen! If there’s anything that has proved to me the value of a unitary executive, it’s cooking with a bunch of people.

Here are some pictures (as you can tell, I found Dorset gorgeous):

Also, two weeks ago, London had absolutely glorious weather — blue skies and 70 degrees. Because I’m still basking in that day (it’s been very cold since), here are a few pictures I took on a walk with a friend:

Lastly, I can’t help but mention that Taylor Swift’s rerecording of Fearless came out, and it’s great. Favorite song: “Untouchable” (which, curiously enough, is a cover of a rock song that sounds completely different).

Bud: I’ve started the first of Robert Caro’s books on LBJ, and I have to say that it’s beautifully written. I’m hoping to devote quality time to reading this, since I’m getting very far behind on my new years resolution books. Also, a bunch of stuff will open up tomorrow in London, so that’s exciting! At the very least, I can get a haircut and go to the gym.

Thorn: I’m having a lot of fun working on my dissertation, but I’m getting very worried about how manageable I can design a research project to be ready by September.

Gratitude: I didn’t really know the person who invited me to the Somerset trip, and as I mentioned earlier, I basically didn’t know any of the other people who went on the trip. So I was pretty opposed to going at first. I’m grateful both to the Marshall who invited me and to my friend who convinced me to give it a go.

Future topics:

* The “special relationship” — this is something I hear a lot given that the Marshall program is all about gratitude from Britain toward the United States for its support and, more broadly, for building the special relationship. I was reading about the role of the UK during the Civil War and thought there might be a cool spin on the special relationship that focuses on Lincoln and workers in Manchester.

* Meritocracy — I’ve seen a decent number of interesting articles on the topic recently, so it might be nice to more systematically think it through in writing.

Isaac Cui
- Mar 28, 2021
- 13 min read

The “Usual Burdens on Voting”

Debates about voting rights and elections administration are at the top of the political agenda across the United States right now. One of the results of our federalist system, though, is that we’re seeing diametrically opposed movements depending on where we look. Georgia just passed a law including a broad mixture of restrictions on voting, such as limiting ballot drop boxes and requiring an ID for no-excuse absentee voting. Similar efforts are being spearheaded by Republicans across the country. The election scholar Michael McDonald noted a month ago that “[w]e are witnessing the greatest roll back of voting rights in this country since the Jim Crow era,” and the President echoed that assessment recently.

But on the flip side, Democrats in (bare) control of the national government are pushing for election reform to make voting easier. These efforts have mostly concentrated on the sprawling H.R./S. 1 “For The People Act,” where the key question is whether Senate Democrats will get rid of the filibuster in order to push through a party-line vote in favor of reform. But we should also note that there are plenty of state-level efforts to support the franchise, too. Two interesting proposals are the New York and Virginia laws that mimic the mechanisms of the national Voting Rights Act. (At least California, Oregon, and Washington have passed analogous laws, but I’m not aware of other states — and none of their laws, to my understanding, has preclearance provisions like the New York and Virginia proposals do.)

When thinking about these efforts, my mind keeps going back to a question that Justice Alito asked in oral arguments in Brnovich, the Supreme Court’s big Voting Rights Act (VRA) case this term: what are “the usual burdens of voting”? The essence of the argument, advanced by the Republican National Committee’s lawyer, is that laws that impose “usual burdens” on voting, even if they result in discriminatory effects, shouldn’t violate the VRA’s ban on policies that have the effect of denying or abridging the right to vote based on race.

There’s an intuition to that kind of standard. It means the Voting Rights Act wouldn’t bring “usual” election methods into question, thereby exposing thousands of local jurisdictions to legal risk. But the standard is either normatively conservative (the status quo is pretty good, so the only laws the VRA should ban are those that are outliers and thus impose “unusual” burdens) or indeterminate because it embeds within it some standard of “usual” that isn’t merely the status quo.

Justice Kagan (probably one of the top three questioners on the Court) was able to very effectively push the RNC lawyer into admitting the incoherence of the standard. Consider, she asked, election poll hours: If you have good evidence that opening a poll from 9 to 5 has racially discriminatory effects on accessing voting because people of different races have different ability to get to a poll during working hours, is it unlawful? The response: No, because “that would be pretty much the status quo.” Then comes the obvious next questions — how about 9 to 3? 10 to 6? And there just wasn’t a good answer.

Note that there’s a few separate reasons why Kagan’s questions are so successful, in my opinion. With the first question, she suggests that a conservative (in the sense of status quo preservative) interpretation of the VRA defies common sense. The VRA was written to eliminate racial discrimination in voting. It was, and is, a clearly transformative statute. It defies credulity to think LBJ, signing the VRA into law in the shadow of the Bloody Sunday beatings of voting rights activists, was trying to preserve the status quo. Shouldn’t that purpose and context be analytically prior to the goal of protecting elections administrators from legal risk? Moreover, with the second question, Justice Kagan exposes that even with a conservative interpretation, there are line-drawing issues — how far from “9-5,” if 9-5 is the “safe harbor” standard, does the law have to deviate in order to violate the VRA?

More fundamentally, the idea of “usual” burdens on voting reflects how expectations are (to use an oft-mocked phrase) socially constructed. There’s no objective or neutral way to design an electoral system; elections administration is always a mix of contested principles (equal access! democracy! security! freedom! election integrity!) and the hard realities of policy implementation.

Consider a few aspects of elections administration in the United States. As you’ll have noticed from my opening discussion, elections administration is deeply federalized: the original Constitution assigned primary authority for elections administration to states but provided the ability for Congress to “make or alter” the rules that states set. Over time, the Constitution has provided greater guarantees for voting rights (such as in banning race-, sex-, and over-18-age-discrimination in voting eligibility and in outlawing poll taxes), and each time, it has provided Congress power to enforce those guarantees.

That federal structure provides the battleground for partisan conflict. A unique aspect of elections in America is that they are run primarily by elected officials. The result is an obvious fox-guarding-the-henhouse problem: The people who benefit from the system are also the ones who run the system. As a result, you’d expect conflicts of interest. Incumbents will manipulate the rules — whether through gerrymandering, vote denial/expansion, or so on — in order to bolster their position. It’s not clear, though, how you fix this problem. You could try to depoliticize the issue and place elections administration in independent, nonpartisan entities, but that might just disguise the problem. In an era of intense partisanship, can you trust “independent” actors? (For what it’s worth, I think that even if independent actors are not as independent as we’d hope, they’re still better than overtly political actors, who have every reason to behave in self-serving manners.)

Overlaid on top of all of this is the fact that political fights are also contests over legal rights. In the political science and legal literature, we sometimes find a distinction between “negative” rights (freedom “from” something, such as freedom of speech from censorship) and “positive” rights (a right “to do” or “receive” something, such as a right to housing or a livable wage). I think that delineation is treated today mostly as an intellectual punching bag. After all, the delineation is quite difficult to maintain. A “negative” right from takings by the government of your property rests on a “positive” right (i.e., that the government protects private property to begin with). A “negative” right to be free from racial discrimination in voting rests on a “positive” right, namely, the ability to vote. Put more abstractly, protecting “against” intrusion on liberty often depends on providing “for” some framework of legal guarantees within which liberty can be conceived; often, there can be no negative right without a prior positive right.

But the distinction is nevertheless helpful in thinking about how courts interplay with elections administration because it draws our attention to specific facets of voting rights litigation. Because voting is a positive right, courts can’t just say “stop doing that” — they must articulate some notion of what is necessary and not just what must be abstained from. In some cases, that’s really easy. A court can ban an all-white primary, and the remedy is pretty obvious (“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” in effect). But when thinking about contemporary issues of voting rights, these issues become much more complex. With gerrymandering, for example, contesting the way a district is drawn implies a challenge to the entire map. It’s not enough to outlaw a particular district — you also need to create entirely new districts. You have a judicial order that tells you what not to do — but how do you figure out what to do? Similarly, does outlawing a law that requires polling hours to be limited to 9-3 imply that localities must open polling hours from 9-7? Or is 9-5 good enough? Why? How can you know?

In this way, legal rights create boundaries on political fights. We know political parties are self-interested, and they seek to win through whatever methods available — including manipulating the franchise.* As a result, we should be somewhat skeptical that any burdens on voting are “usual”; it seems much more fair to assume that most burdens on voting are deeply questionable! And courts, compelled by their duties under the Constitution’s rights guarantees, must step in at some point to patrol the political process. But how?

Some would say that they just shouldn’t step in unless there are very clear, administrable standards for regulating elections through law. The oft-cited example here is the “one-person, one-vote” principle — if a state is going to draw districts to choose elected officials they need to be, in election-law speak, equally apportioned. The idea here is that if the Court is going to enter what Justice Frankfurter called the “political thicket,” then it ought to take care to articulate precise legal standards for adjudicating disputes, lest courts begin to look like political actors.** That perspective traces its modern roots to Alexander Bickel’s The Least Dangerous Branch, where Bickel argued that judicial override of legislation is deviant in a democratic system. Because Bickel thought judicial review posed a “counter-majoritarian difficulty,” he thought it needed to be highly limited through strict legal standards along with judicial temperance. The most famous response to Bickel was in John Hart Ely’s Democracy and Distrust, where Ely argued the counter-majoritarian difficulty should not bar judicial intervention when majoritarian politics goes wrong — when incumbents entrench themselves, violating the rights of minorities and making it difficult for them to get voted out.

Note that Ely doesn’t necessarily resist Bickel’s original premise — that judicial review is fundamentally deviant. Some scholars today, including the eminent Pamela Karlan, have argued that Bickel’s premise is actually flipped, because the legislation he was defending is today made by counter-majoritarian forces. A legislature that disenfranchises huge swaths of the population, people like Karlan would say, can hardly be thought of as having “democratic legitimacy.” So the idea that judges should abstain from overruling “majoritarian” institutions is wrong because those “democratically elected” officials don’t have a legitimate stake to majoritarian support.

At a high level, I think Karlan and Ely are right to resist the “counter-majoritarian difficulty” framework at least in the context of election law, where foxes routinely guard the henhouse. It seems like politicians should be less legitimate than judges when deciding on what election rules are “fair” given that the politicians directly benefit from those rules. That conclusion, of course, is not enough. We still need an affirmative understanding of what “electoral fairness” constitutes.

In this context, process is intimately linked to substance. If we think back to Justice Alito’s question about the “usual burdens on voting,” we might say that that’s a substantive standard — something like, if most states do [X], and it’s a well-established practice, then it’s lawful because we regard its limitations on voting as “usual.” But Justice Alito’s question embeds also a procedural standard because it provides a method by which to discern unlawful behavior — in effect, the standard says that a standard is lawful if politicians at the state and federal level come to normalize that practice, and potentially not otherwise.

Ely’s “political process” argument, as one of my professors once explained to me, is limited to when courts should get involved; it doesn’t actually determine how courts should act once they’ve injected themselves into a case. Ely seeks to maintain solely a procedural standard rather than a substantive one. There’s a way to tie his procedural argument to something approaching a substantive standard, though.

The key issue is that even if in the abstract we have intuitions about what’s a “fair” electoral system, it’s very hard to know how those ideals get applied in reality — predicting the effects of electoral reform is a difficult business.*** The problem, in other words, is that we need to create a system that’s “fair,” but we don’t know how to tell if a proposed system is “fair.”

One answer to the dilemma is to say that even if we don’t know how to assess a system on the merits, we can assess a system by the process in which the system came to be proposed. From there, we might be able to compile factors that go into determining whether a process is fair: whether certain interest groups had a role to play, whether the information about the process was transparent, whether there were expert analyses of the effects of an election system and whether any such analyses were published. In other words, we might require inclusive and transparent processes for making electoral changes.

Current federal voting rights laws protect racial and language minorities (the Voting Rights Act), overseas and military citizens (Uniformed and Overseas Citizens Absentee Voting Act), and voters with disabilities (VRA and Voting Accessibility for the Elderly and Handicapped Act). We might say that if an electoral change was conducted in consultation and input with organizations that meaningfully represent such interests, then the process was inclusive. Similarly, if the electoral change was published, subject to open comment, and understandable to the public, then we might say the process was transparent. A law could be written to provide local jurisdictions with “safe harbors” from litigation on the merits of their election changes so long as they meet such procedural requirements. Such a law, which is inspired by proposals laid out in a 2004 essay and a 2009 book by Heather Gerken, would use legal threats to promote more inclusive democracy while also sidestepping the negative/positive rights issue. Rather than having courts decide what is fair as a matter of substance — for example, identifying what constitutes a “usual burden” — they might focus on whether the process for getting to the outcome sufficiently promoted the interests of minorities that Congress has said ought to be protected.

In doing so, courts would take the Elyian role of creating guardrails for a democratic process. But such a perspective on the role of courts wouldn’t assume the Bickelian idea that judicial review is deviant; rather, it begins from the premise that political bargaining is almost certainly going to be unequal and that incumbents will try to protect themselves from minorities and out-groups, such that the backdrop of judicial action to protect the integrity of the political process is ever present. Such a law would understand that the idea of a “fair election system” is always in the eye of the beholder, and so rather than trying to identify what is actually required to create a “fair” election system, it would strive to “stack” the political process in favor of ensuring that different interests get their say in what counts as a “fair” system.

* This “both-sidedness” doesn’t imply moral equivalence: even if both parties are acting in self-interested manners, that doesn’t mean their methods are equally justified. One party, to put it bluntly, believes that it is easier to win if it suppresses racial minorities’ votes; the other party believes it is easier to win if it lowers barriers for racial minorities to vote.

** Note that even one person, one vote raises non-trivial administrative questions. How close do you have to get to equal apportionment? The Court has said that for federal congressional districts, their populations must be “as close to perfect equality as possible,” whereas for state and local districts, the equal population requirement is presumptively met if the maximum population deviation is less than 10%.

*** In fact, I’d believe Harry Enten’s argument that efforts to restrict the vote in Georgia won’t necessarily benefit Republicans. The political science literature is, I think, relatively clear that restrictions on voting often have very small short-term effects (basically, they mobilize opposition, especially if the media covers these efforts intensely), but over time, they can build up and have lasting disproportionate outcomes. Two threads from Brendan Nyhan are, I think, helpful in that they convey a sense of balance, in terms of what the literature shows, and also emphasize the separation between moral/ethical concerns from empirical outcomes. I think he doesn’t note, though, how competitive these elections are, which raises the stakes on reforms that could upset election outcomes even if the net result on votes is quantitatively equivalent to noise.

* * * * *

Rose: This week was basically my last week of real classes, so now I’m starting to get more time to focus on dissertation work (you might’ve been able to guess that fact given my post this week!), which is exciting. I went down to Borough Market with my LSE friend and we walked around the area. Fun fact: you can get £36/kg asparagus (!!!) at that market. As you might guess, I did not buy anything. But it was fun to look at all the produce. Also, she introduced me to hot cross buns. It turns out these are real delicacies, and not just an elementary-school music-class tune. I can’t say they’re my favorite pastry, but they’re pretty good. Plus, it’s nice to get some sense of British seasonal foods (mulled wine and mince pie at Christmas, hot cross buns at Easter) so that I can feel like I’m fulfilling some aspect of the whole “cultural exchange” part of this scholarship.

One of my flatmates is looking into buying a property in London, and so I went with him to check out a potential place. It’s in East London, right north of the Thames, in Whitechapel.

Whitechapel — and the spot he was looking at — is a liminal space. It’s just a short walk east of the City of London, the financial hub, where skyscrapers, fancy restaurants, and people in suits abound. Whitechapel, and further east, is historically an impoverished and squalid district. You can still see some of that legacy, especially when juxtaposed with the City. But the place also looks fascinating. It’s filled with immigrants, especially Bangladeshi immigrants, and is home to the largest mosque in Britain (the East London Mosque). I got the sense that my flatmate felt that the location was a bit dodgy, so I don’t think he’ll end up buying the property. I thought it was a cool neighborhood, though.

Here are some pictures from the walk back.

Bud: I’m going on an Easter trip to Somerset, in South West England, with some other Marshalls. I’m a bit nervous, but hopefully it’ll be a chance to meet some of the other folks in my cohort and to get a break from sitting around and reading in my flat/walking around central London.

Thorn: I’ve been feeling rather inefficient at getting work done. I can’t tell if it’s a subset of the more general “things always take longer than you expect,” or if I’m actually getting slower at reading and processing information, though. Also, LSE released our exam schedules. The exam period runs from the beginning of May through the middle of June. I have four exams and, alas, three of them are in the first week, and the last is a month later (in June). It’s just a bit of an unfortunate schedule. But it does mean I’ll get finished with exams fairly early, which I think is good.

Gratitude: My other flatmate returned yesterday, so the flat is back to full capacity! I’m hopeful that life will be a bit more lively.

Future topics:

* You will likely get more about voting rights in the near future. There’s a good analogy from competition law and IP law, I think, to voting rights bargaining as I argued would be desirable, so I might lay out that analogy next week.

* The Supreme Court is hearing a case called Cedar Point Nursery v. Hassid, which deals with the Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”). This case could be hugely important, but the question it raises seems so technical and boring (I’m sure you zoned out a little when I wrote the phrase “Takings Clause”) that I’m not sure the case is getting as much attention as it deserves.

Isaac Cui
- Mar 20, 2021
- 10 min read

The Liberal Reformers, Reconstruction, and Redemption

I want to write today about the liberal reformer wing of the Republican Party that arose toward the end of Reconstruction. But before getting too far ahead of myself, let me start by contextualizing the late Reconstruction period.

I should note that Reconstruction is one of the most contested eras of American history, and I’m by no means an expert. I’ll be taking from Eric Foner’s Reconstruction: America’s Unfinished Revolution, 1863–1877.

Recall that Reconstruction is the period of American history after the calamitous Civil War. Central questions of politics in this period pertained to the rights and freedoms of the freedmen in the South, the recreation of Southern state and local governments, and the direct relationship of the federal government to the people. Note two particular trends.

First, Reconstruction represented the first time that America witnessed meaningful biracial governance. When the Radical Republicans were ushered into office with supermajorities in both houses of Congress in 1866, they quickly set about creating a new system of government in the South. They sent the Fourteenth Amendment to the states for ratification. They passed three Reconstruction Acts, placing the South under military governance and enabling Black male suffrage. Black participation in political and associational life skyrocketed in this period, with Black turnout reaching almost 90% in many elections. (By comparison, the 2020 election — a peak in turnout for recent elections — saw around a 66% turnout.)

But this was also a time of intense white backlash. The Ku Klux Klan, of course, traces its origin to this period. From 1868 to 1871, the Klan, with other white supremacist organizations, launched what Foner called a “wave of counterrevolutionary terror,” assassinating Black leadership, disrupting Republican Party meetings, attacking Black churches and schools, lynching Black farmhands engaging in labor disputes with plantation owners, and destroying Black property. Eventually, the federal government responded with a set of Enforcement Acts culminating in the Ku Klux Klan Act of 1871, which effectively put down the Klan.

That, of course, wasn’t the end of political violence. Southern Democrats launched a campaign of Redemption to violently overthrow Republican governments throughout the 1870s, and over time, they were successful as federal law enforcement weakened. For example, in Mississippi — a predominantly Black state, and therefore a Republican stronghold in the South — Redeemers quite openly stole the 1875 election: in Aberdeen, white Democrats went to the polls armed with rifles and a six-pounder cannon to drive Black voters away; in other Black-dominant precincts, they literally destroyed ballot boxes; and in the few places where Republicans were still able to win election, they threatened (or carried out) assassinations. Having won the legislature, they impeached the Lieutenant Governor and then forced the Governor to resign under threat of impeachment. And by this point, the federal government under President Grant was unresponsive. He had become disillusioned with “bayonet rule” by sending military troops to restore order. Foner writes, “Unlike crimes by the Ku Klux Klan’s hooded riders, those of 1875 were committed in broad daylight by undisguised men, as if to underscore the impotence of local authorities and Democrats’ lack of concern about federal intervention.”

Second, Reconstruction witnessed a breathtaking expansion of the state throughout the country. Taxes ballooned as the government, to put it simply, began doing more: creating social services for children lacking homes and for people with disabilities, building public works, expanding (or, for the first time establishing) public schools and institutions of higher education, and so on.

Governments also did less positive things. Reconstruction is sometimes remembered as a time of intense corruption. This is true. But we should resist the stereotype that corruption was limited to Southern, Reconstruction governments run by Black people. This was an era of patronage, where winning office was tied to granting civil service positions to one’s political favorites to win their support. It was an era of state-supported capitalism, where states and municipalities funneled money to railroad, manufacturing, and mining corporations. There were, in short, many smoke-filled rooms in the North and the South, and the rents extracted by corporations from the state compounded trends toward increasing inequality, leading the period after Reconstruction to be what we now call the Gilded Age.

By the mid-1870s, as the nation plummeted into depression, a new wing of the Republican Party was rising. Since the 1866 election, protecting Black political and civil rights and promoting free labor ideology had been unifying ideas within the Republican Party. But as the North grew tired of Reconstruction, as the difficult work of building a new political economy in the South set in, a faction of liberal reformers in the Party argued for a reorientation of politics. Almost all of the liberal reformers were previously abolitionists and advocates of Black political equality. But they thought the federal government, having emancipated the slaves and secured Black male enfranchisement, should be finished with the work of Reconstruction.

The liberal reformers were primarily the intelligentsia of the North — those graduates of fancy institutions with fancy social scientific training. They believed in following what they called “financial science” — in lowering tariffs, respecting the free market, and upholding the gold standard. They sought limited government because they saw the vices of Reconstruction-era governments, North and South, in delivering corrupt outcomes. And they opposed “class legislation,” such as the income tax or eight-hour workday laws, which would benefit some groups in society over others. Foner explains, “In their own eyes, liberal reformers stood above social divisions as disinterested spokesmen for the common good. Yet at the same time, the ideology of reform helped to crystallize a distinctive and increasingly conservative middle-class consciousness.”

As a result of their ideology resting in their own enlightened understanding of the common interest, some liberal reformers advocated for limits on the franchise — they believed in education or property qualifications for voting, and they wanted to create more appointed, rather than elected, officials. They sought civil service reform, to bureaucratize the work of government and to remove the patronage system. And, with respect to the South, they diagnosed its ailments in terms of the exclusion of the “best men” from power: “Fundamentally, reformers believed, Southern violence arose from the same cause as political corruption: the exclusion from office of men of ‘intelligence and culture.’ If in the North, civil service reform offered a solution, in the South, reformers advocated the removal of political disabilities that barred prominent Confederates—the region’s ‘natural leaders’—from office . . . .”

The liberal reformers succeeded at pulling the Republican Party to the center. As a result, even before 1876, when the disputed presidential election led to the full withdrawal of federal troops from the South, everyone understood that the era of Reconstruction was over. The Republicans abandoned their commitment to biracial governance; they sought reconciliation, to move on from the bitter Civil War; and white Southern Democrats, for the most part, were able to cement their power, monopolizing power in the South until the Voting Rights Act’s passage. Redemption was not a linear process, just as Reconstruction wasn’t. Even in the late 1870s, Virginia witnessed a resurgence of biracial politics in the form of the Readjuster Party. But Radical Reconstruction wasn’t to last.

Reading our current understanding of Reconstruction is a bit like rereading a tragedy. You see the rise of Radicals in Congress, the potential of the federal government in stamping out the Klan in 1871, and you feel an optimism that Reconstruction didn’t have to lead to Jim Crow. But you know it did. And though I won’t pretend to know all the reasons why Reconstruction met its tragic end, it seems to me clear that the liberal reformers were part of that story. That leaves me uneasy, because I can’t help but to feel parallels between the liberal reformers of the 1870s and the technocracy I study everyday.

With both, there is an assuredness that formal education will enable one to discern the “common good” that transcends parochial “class interests.” With both, there is a skepticism of democratic actions for being seemingly unenlightened. Compromise and bargaining, we say in my law and regulation classes, lead to incoherent rules. Why, we ask, is there a rule limiting the quantity of pre-trade transparency waivers for over-the-counter equity trading to 8% of total EU-wide trading under the Markets in Financial Instruments Regulation (MiFIR)? It’s because Member States have parochial disagreements about the value of “dark,” over-the-counter trading versus “lit,” venue-based trading. So they create rules to balance between multiple ideas of good public policy. There’s nothing special about 8% except that everyone could agree on it.

In my mind, that balance is a good thing — it reflects how a plural, diverse polity reconciles different understandings of the common good. To liberal reformers and technocrats, it reflects the problem of democratic policymaking. It is a problem to be fixed by creating more technocracy, more independent agencies. Isn’t that the natural bias for well-educated people who see themselves as more enlightened and thus more able to discern the common good?

I don’t mean to say that expertise is a bad thing. Technocracy is very important. It is a good thing that we have an expert FDA to decide on when a vaccine is safe for the public, that we have a CDC to advise an virology-illiterate public about how to respond to a dangerous virus, that we have competent lawyers in the SEC to regulate the financial markets by identifying and dealing with conflicts of interest among traders vis-a-vis their clients. Policy issues invariably include technical components, and so we need expertise to create good interventions. I do want to emphasize, though, that I think reducing politics to expertise can lead to two risks.

First, experts will tend to be anti-democratic — to fear the mob and protest, to disdain the nitty-gritty sausage making of legislative compromise and the grubby work of organizing. Insofar as democracy is a value that is substantively held and not just a platitude evoked as a feel-good slogan, experts must be wary about extending their individual, parochial beliefs into institutional forms. But I imagine that’s the tendency — that because they disagree with the 8% volume cap rule, technocrats will push, during MiFIR II negotiations, to include greater delegation of power to independent regulators so that any such trading-waiver cap can be decided by technocrats rather than legislators. Who decides must, I think, tilt toward democratic actors unless we have very good reason to defer to technocrats.

Second, I am wary that experts will tend to trust other experts over non-experts, even when they hold substantive moral disagreements with those other experts. A striking aspect of the liberal reformers is that they were abolitionists and supporters of Black suffrage who came to believe that ex-Confederate leaders rather than Black southerners ought to lead the South. How can that be? It must be, at least in part, because they believed that the “best men” — those who are educated or who hail from aristocratic families — are superior to less formally educated people, even if the “best men” committed treason in service of protecting slavery. The argument must be that, to some liberal reformers with racial justice bona fides, it’s better to have an educated white supremacist as a leader than an uneducated freedman. Education and aristocratic qualities, one must conclude, are more important than moral purity for leadership. That logic seems very dangerous to me.

* * * * *

Rose: A few this week. First, I had a call with the Pomona professor I’ve been doing research with because we just heard back about a paper we submitted — we got a “revise and resubmit,” which means the journal is interested in publishing our paper if we rewrite parts of it to their editors’ satisfaction. I’m a bit nervous about some of the comments, but my professor thinks the reviews overall were really positive, such that we should be able to get this paper over the finish line.

The UK has been doing its census, and I got to fill it out today! It was pretty cool. I know it must sound weird to be excited about filling out a census form, but I enjoyed doing it, especially after following the census litigation in the US and having some sense of how important censuses are.

I went for two walks this week. With the first, I went to Joseph Grimaldi Park, St Pancras Old Church, as well as Regents Park. I got some feedback that someone appreciated maps from a few weeks ago, so I thought I might start adding maps of where I’m going. Here’s a rough sketch of the route I took (both of these routes were probably much more windy in real life than on maps, since I’ve been walking based on instinct for the most part).

Grimaldi, St Pancras Old Church, and Regent's Park

I went to Joseph Grimaldi Park because there’s a cool musical “grave” installation there. It turns out Grimaldi was something of a clown who lived in Islington, and so the grave is meant to be danced on. The grave is supposedly tuned to be able to play the song “Hot Codlins,” which Grimladi was famous for.

His epitaph reads, “Joseph Grimaldi was 3 years old when he first went on the stage of Sadler’s Wells with his father, and he worked there for 43 years as performer and part-proprietor. From his debut in 1806 at Covent Garden in Mother Good he was adored by all and could fill a theatre anywhere. The name Joey has passed into our language to mean a clown. He lived all his life among the people of Clerkenwell and died at 33 Southampton Street - now called Calshot Street.” After reading that, I had to include a tribute to Joey Tribbiani.

To get to the St Pancras Old Church, I walked through the King’s Cross and Camden area.

At the Old Church, there were a ton of cool gravestones, as well as some rather creepy trees.

Here are some pictures on the way back.

I went for a second walk during a call I had with a high school friend. I kind of just wanted to go South of the Thames, to explore some place I hadn’t seen before, but I found myself at the Imperial War Museum. Here’s a rough sense of the route I took.

Here are various pictures of the journey.

Bud: The sun is really starting to come out more. Sunset, especially after we go through daylight savings tomorrow, will be after 7pm! It’ll be glorious.

Thorn: I was taking a look at my new year’s resolutions the other day, and I am behind! It took me forever to finish Foner’s Reconstruction book, but I’m now trying to spend more time reading each night.

Gratitude: I went into my capital markets regulation professor’s office hours, and we had a really interesting chat about constitutional issues. She actually ended up giving me a case study idea to bring a comparative component to our OLC research, so I’m excited about that and grateful for her insights.

Future topics:

* Funnily enough, I was hoping to do a “vignettes” post this week, where I would write a bunch of different, much shorter and punchier essays. But that obviously didn’t work out — the Reconstruction topic just ballooned. But I do want to return to some of those other ideas — focused on voting rights questions — in a subsequent week.