One would think from the recent excitement over the possibility of a bipartisan political movement that Hillary Clinton was running on a platform calling for confiscation of corporate property, reestablishment of the moderately progressive tax structure of the 1970s, the return of all American troops from abroad, the abolition of capital punishment, and (heaven forbid), gay marriage. With the exception of a stray remark by John Edwards, Democrats polling more than 10% continue to run to the right of Richard Nixon. Indeed, judging by their legislative activity this year, the Democrats as a whole have almost no ambition to push any program that is substantially to the left of center. The real issue ought to be why some journalists are so excited about the possibility of a third party that might take a middle position between the party clearly to right of the electorate and the party that on its best day sometimes lurches very slightly to the left.

Paul Frymer's Black and Blue: African Amerians, the Labor Movement, and the Decline of the Democratic Party is an exceptional study of the relationships between the civil rights and labor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race.

Following up on Mark Graber's most recent post on the Supreme Court, consider why we might expect that the Supreme Court will not in fact produce principled results significantly superior to those produced by the national political process. One reason, famously suggested by Yale political scientist Robert Dahl, is that the U.S. Supreme Court tends, over time, to cooperate with the views of the dominant national political coalition. It does this by ratifying and legitimating most of the results of the national political process, by policing state and local governments so that they stay roughly in line with the views of national political elites, and (as Mark himself has pointed out) by acting as a political backstop to resolve controversies that national politicians would rather not have to take responsibility for.

The Supreme Court does tend to slow down rapid change when there is a shift in political regimes (and accompanying constitutional values), but eventually it goes along because new Justices appointed by the dominant national coalition replace older ones.

Following the oral argument in Heller, people have been having a good old time making fun of the Justices and their pretty transparent political motivations. Dahlia Lithwick's amusing account of the oral argument is one of her best.

Although I enjoy making sport of the Justices as much as anyone, the question of whether the 2nd Amendment protects an individual right, including a right to self defense, is not that difficult, at least to me. The framers of the 14th amendment assumed that it was one of the privileges or immunities of citizens of the United States. And if a right is a privilege or immunity of citizens of the United States, it hard for me to conclude that it does not bind the United States as well as the individual states.

Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.

That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?

For those interested in avoiding work and/or learning about the new scholarship on race and American Constitutional Development, Professor Michael Klarman of the University of Virginia Law School and I are blogging about his new book, Brown v. Board of Education, and the history of racial equality in the United States over on the website of the American Constitutional Society. Our conversation has ranged from the influence of the Supreme Court on race policy to the political construction of judicial review to the extent to which racial progress in the United States is a function of virtue or interest. Happy reading.

During the past decade, prominent political scientists have written terrific essays under the rubric "political regimes." Many essays cite as foundational such previous work as Robert Dahl’s "Decision-Making in a Democracy: The Supreme Court as a National Policymaker," 6 Journal of Public Law 279 (1957). Neither Dahl nor the first studies which elaborated his thesis, however, used the term "political regimes" to describe their analysis. Indeed, these foundational works had a somewhat different point than works which self-consciously employ the "political regimes" label. At least, this is true of an essay I wrote that is sometimes cited in this vein. With some luck, this post (and possibly a few others) will clarify matters and not add to the confusion.

Tomorrow I'll be speaking at the American Enterprise Institute at a panel jointly sponsored by AEI and Brookings on Steve Teles's wonderful new book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Also on the panel will be Michael Greve, an AEI scholar in residence who was the cofounder and executive director of the Center for Individual Rights, an important conservative public interest law firm. William Galston of Brookings will moderate.

Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.

In a previous post I predicted that the Supreme Court would find for individual rights advocates in the upcoming Heller case, but that this might advantage gun control advocates and the Democratic party in the short run. Responding to my analysis, James Skoufis over at Real Clear Politics argues:

I just finished my introduction to the University of Maryland Law Review Symposium: "An Eighteenth Century Constitution in a Twenty-First Century World." The essays are terrific. I hope many of you read them when published. The first paragraph of my introduction declares:

The legal culture today is marked by an easy acceptance of the notion that politics have a major influence on decisions by the Supreme Court. That was the point of several recent books on the Supreme Court (including my favorite, Toobin’s The Nine). It was the point of Judge Posner’s 2005 Harvard Law Review article on the Supreme Court--“A Political Court.” Political scientists have relentlessly pounded the “judging is politics” theme for four decades now (still presenting it as if we didn’t already know). And newspapers today routinely explain SCOTUS decisions in terms of political alignments of the judges.

Although we like to think of ourselves as more world-wise than our nineteenth century forebears in holding this sophisticated perspective on the Court, they weren’t the formalist dummies we often make them out to be.

The influence of politics on Supreme Court decisions was the subject of an 1893 article—“Politics and the Supreme Court of the United States”—in the American Law Review (then older and more prestigious than the Harvard Law Review).

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

Mike Huckabee is the latest Republican candidate to call for amending the Constitution, though Mitt Romney has led the way. It was "flip-flop" Mitt who in recently told the Family Values Research Council's Values Voter Summit, "I will work with the people in this room, as I have for the past four years, to champion a federal marriage amendment to protect marriage as the union of a man and a woman. ... Make no mistake: a federal amendment is the only way we can protect marriage from liberal, unelected judges" [who may, of course, be interpreting the Equal Protection Clause accurately, a possibility that Romney presumably doesn't recognize].

All of the presidential candidates seem to be picking up Barack Obama's theme of change and portraying themselves as agents of change. If things keep going the way they have been, the 2008 election now looks to be as defining a moment as 1932, 1968 or 1980. (If things keep going, that is. A lot can happen in ten months).

If 2008 turns out to be a pivotal election, defining a new political era, it is important to give credit where credit is due. Two key reasons for the change will be the crackup of the coalition of the dominant party of the era, the Republicans, and the almost complete political failure of George W. Bush and his chief political adviser, Karl Rove. Let me begin with the second feature, and move to the first.

Dahlia Lithwick and Eric Posner question my political science-style account of living constitutionalism, in which popular mobilization and partisan entrenchment in the judiciary play a major role in shaping constitutional change. Dahlia doesn't like the normative implications of my account, while Eric largely agrees with the account descriptively but thinks it makes judicial review superfluous. Let me respond to Dahlia in this post, and respond to Eric in a later post.

One of the respondents to my previous post points out, altogether correctly, that George W. Bush isn't truly "unaccountable." It's possible, after all, that Congress could impeach him or that it would simply vote to cut off all funds for even one more day in Iraq. Putting to one side the fact that the latter action would be irresponsible in the extreme, any genuine analysis of the notion of the American "constitutional dictatorship" must include attention to the vital role that political parties play in our political system.

Imagine, for example,

that Ross Perot had been elected and then embarked on Bush's policy in Iraq. One wonders if he would have been successful, precisely because there would have been no institutionalized party backing the Texas maverick. Even if he could have initiated some activities using his constitutional commander-in-chief powers, one could well expect that members of both parties would have been eager to engage in oversight and, should he turn out to be so dangerously adventurist as George W. Bush has been, he might well have been impeached. Who, after all, would have had any interest in saving him? Indeed, the impeachment would dramatically demonstrate to Americans the dangers of deviating from the sacred two-party system and succumbing to the blandishments of an "independent."

As a very recent addition to the Fallon gang, I am returning to my home state of Iowa to do what Iowans do best, caucus.

Over the last few months, my family and I have braced ourselves against the onslaught of political ads, political rhetoric, people playing politics, political mud slinging, political polls, political reporting, and most of all, a seemingly never-ending stream of politicians. Exhausting? You begin to understand what it is to be an Iowan before the caucus.

I believe the political ad that packed the most punch in our neighborhood was the Huckabee ad that declared a cease-fire for the holidays. For those of you that missed it, this was the ad the mass media focused on due to the fact that there was a cross in the background… I didn’t hear many Iowans complaining. I am not sure if this type of gesture will move votes, but it does produce goodwill, even in my house, and lets just say, we’re NPR, not Fox News.

George Packer's article in the New Yorker on "The Fall of Conservatism" reports that "most" of the younger conservatives he spoke with "predicted that Republicans will lose the Presidency this year and suffer a rout in Congress."  He quotes Republican strategist Ed Rollins:  "Today, if you're not rich or Southern or born again, the chances of your being a Republican are not great."

Suppose these predictions and analyses are correct.  What are the implications for the Supreme Court and especially for the continued vitality of Roe v. Wade?

Most law professors and lawyers are convinced that the Supreme Court has a special capacity to be guided by constitutional values. Professor Ronald Dworkin of Oxford and New York University Law School described the Supreme Court as “an institution that calls some issues from the battleground of power politics to the forum of principle.” The Supreme Court “is predestined in the long run not only by the thrilling tradition of Anglo-American law but also by the hard facts of its position in the structure of American institutions,” Professor Henry Hart of Harvard Law School agreed, “to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law.” Elected officials who make the slightest effort to limit federal judicial power bring down the wrath of a united bar. Lawyers of different political persuasions do not agree on much, but most wax eloquent about the virtues of an independent judiciary.

Three weeks ago I published an op-ed in the Legal Times proposing that we create shadow districting commissions to mitigate the problem of partisanship in redistricting (follow-up blogs can be found here and here). During an informal workshop discussion of the idea here at Yale, I realized that "shadow institutions" -- like my shadow districting commission or Ned Foley's amicus court proposal – present an intriguing set of institutional design questions.

Shadow institutions are designed to combat what I've called the "here to there problem." Academics and reformers spend a lot of time on the "here" (identifying the problems we have now) and the "there" (figuring out how things ought to look in the future). But we don't spend enough time figuring out how to get from "here to there" -- identifying the interim strategies and institutional tweaks that would create an environment in which meaningful reform might take root.

Over at the Washington Post, Eugene Robinson gets what is at stake in the 2008 election-- a reconstructive presidency:

Obama's candidacy not only threatens to obliterate the dream of a Clinton Restoration. It also fundamentally calls into question Bill Clinton's legacy by making it seem . . . not really such a big deal.

That, I believe, is the unforgivable insult. The Clintons picked up on this slight well before Obama made it explicit with his observation that Ronald Reagan had "changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not."

This is a marketing column, right? So, what's with the political analysis.

Well, in truth, this is not so much about political analysis as an evaluation of what our media coverage (or lack thereof) of our presidential election is doing to the brand known as USA. Tim Rutten, in his LA Times piece on our national political coverage, only covers half of the issue. Rutten starts off with an

The question I'm asking here is not the question of individual characteristics, but their structural placement within the succession of Presidents.

University of Virginia political scientist Larry Sabato has just published an interesting new book, A More Perfect Constitution, calling for constitutional reform (including a new convention). Not surprisingly, I am a fan, even if I don't agree with him on all of his 23 specific proposals. I have a review in the Austin American-Statesman for those who are interested in finding out more about it. Phyllis Schafly has also reviewed it; perhaps not surprisingly, she's far less a fan.

Many interdisciplinary law scholars feel like we live Aesop’s fable of the bat who told the birds he was a beast and the beasts that he was a bird. I never feel more like a lawyer than when I attend political science conferences. I never feel more like a political scientist than when I am attending the American Association of Law Schools annual affair. . A good many institutions feel similarly. Friends in the social sciences who study law report that their chairs and deans often feel that interdisciplinary legal scholars should really be teaching in law schools. Apparently, a great many law professors believe we should really be teaching in social science, history, or other related departments. Everyone agrees we belong in the academy, but somewhere else. Not surprisingly, given these sentiments, a great many interdisciplinary law scholars have trouble getting jobs anywhere.

Ralph Nader announced today on Meet the Press that he was running for a third time for the presidency. The reaction so far has been predictable.

Democrats, remembering 2000 and blaming him for the Bush Presidency, are annoyed and a little bit frightened that he is injecting himself into the race. Republicans are secretly delighted, in the hopes that he might swing a few close states like Ohio, or dare one say it, Florida, to the Republican nominee.

I think that Democrats have much less to fear this time. Nader's candidacy means something quite different in 2008 than it does in 2000. In 2000, Nader was one of several factors that put George W. Bush in the White House. And in fairness to him, he was only one factor.

My guess is that there is very little chance that Nader will decide the outcome of the 2008 election; he will probably have very small numbers, as he did in 2004. Third parties who do not quickly displace one of the two major parties (as the Republicans displaced the Whigs in the 1850s) tend not to wear well on repeated attempts.

A mantra of the Clintons' stump speeches is the desirability of "reforming our government." Thus she told the folks in Iowa on December 17 that "We need a new beginning when it comes to reforming our government." Bill returned to this last night in a Missouri speech trying to assuage Obama's rout of Hillary in South Carolina. And the Hllary web site includes a release on her endorsement last June by Illinois Rep. Jack Franks, who said, "When it comes to reforming our government to make it work for the people, Hillary Clinton is the best candidate to lead that change."

George W. Bush is now in the midst of trying to ensure his legacy. His speech this Friday at the Conservative Political Action Committee made clear that he sees the future direction of the Republican party as continuing what he regards as his signature policies: demanding lower taxes appointing conservative judges, increasing spending on defense, and fighting the war on terror, which, for Bush, means continuing the war in Iraq and the military occupation of Iraq indefinitely. Put another way, Bush's speech put down a marker that if John McCain or any other Republican wants to be elected in 2008, Bush expects it will be by a continuation of his basic policies-- a third term of the George W. Bush Administration. It is worth noting that on almost all of the issues just mentioned, John McCain appears to be following Bush.

The Republicans, now divided, are trying to put the Reagan coalition together again. Bush's advice is: do it my way. Use my Presidency and its commitments-- low taxes, a conservative judiciary, and national security in an age of terrorism as the party's mantra going forward. To know what the Republicans stand for, look at what I stand for.

"We are in a constitutional crisis," Kenya opposition leader Raila Odinga said today, as the Kenya election crisis continues to unfold.