Week-end Wrap – Political Economy – July 23, 2023

by Tony Wikrent

COVID

First major survey of doctors with Long Covid reveals debilitating impact on health, life and work

[BMA, via Naked Capitalism Water Cooler 7-21-2023]

“Around 60% of doctors told the BMA that post-acute Covid ill health has impacted on their ability to carry out day-to-day activities on a regular basis; Almost one in five respondents (18%) reported that they were now unable to work due to their post-acute Covid ill-health; Less than one in three (31%) doctors said they were working full-time, compared to more than half (57%) before the onset of their illness; Nearly half (48%) said they have experienced some form of loss of earnings as a result of post-acute Covid.”

 

Covid Origins Scientist Denounces Reporting On His Messages As A “Conspiracy Theory”

[Public, via Naked Capitalism 7-21-2023]

War

‘An Act of War’: Inside America’s Silicon Blockade Against China 

[NYT, via Naked Capitalism 7-16-2023]

Though delivered in the unassuming form of updated export rules, the Oct. 7 controls essentially seek to eradicate, root and branch, China’s entire ecosystem of advanced technology. “The new policy embodied in Oct. 7 is: Not only are we not going to allow China to progress any further technologically, we are going to actively reverse their current state of the art,” Allen says. C.J. Muse, a senior semiconductor analyst at Evercore ISI, put it this way: “If you’d told me about these rules five years ago, I would’ve told you that’s an act of war — we’d have to be at war.”

If the controls are successful, they could handicap China for a generation; if they fail, they may backfire spectacularly, hastening the very future the United States is trying desperately to avoid.

The Looming War Against China

Michael Hudson [On Finance, Real Estate And The Powers Of Neoliberalism, via Mike Norman Economics, July 22, 2023]

Why Russia pulled out of its grain deal with Ukraine – and what that means for the global food system 

[The Conversation, via Naked Capitalism 7-20-2023]

What makes Ukraine such an important part of the global food supply chain?

Ukraine has been called the breadbasket of Europe and is a major supplier of wheat, barley, sunflower products and corn to Europe as well as to developing countries such as in the Middle East, Northern Africa and China.

More than 400 million people relied on foodstuffs from Ukraine before Russia invaded Ukraine in February 2022.

One key reason for that is Ukraine has approximately one-third of the world’s most fertile soil, which is known as chernozem, or black soil. And before the war, Ukraine was able to rely on its year-round access to ice-free harbors in the Black Sea to ship grains to nearby markets in the Middle East and Africa….

The U.N. and Turkey brokered what is officially known as the Black Sea Grain Deal with Ukraine and Russia on July 22, 2022…. Ukraine has exported more than 32 million tons of food products through the Black Sea since August 2022. The World Food Program, the world’s largest humanitarian agency, purchased 80% of its wheat from Ukraine. Ethiopia, Yemen, Afghanistan and Turkey have been the biggest recipients of humanitarian shipments.

The U.N. has estimated that the grain deal has reduced food prices by more than 23% since March 2022….

Russia has threatened to exit the deal before, but each time it has chosen to stay in.

But on July 17, 2023, it said it’s unwilling to stay in the deal unless its demands are met to ship more of its own food and fertilizer. Over the following two days, it attacked Odesa with drones and missiles in one of the largest sustained assaults on the port. Russia also said it would deem any ship in the Black Sea bound for a Ukrainian port to be a legitimate military target.

The Incredible Shrinking NATO 

Dmitry Orlov [via Naked Capitalism 7-17-2023]

So, what did the Ukrainians do to raise the ire of the Pentagon so suddenly, and as a direct consequence, fall into disfavor with NATO? In short, the Ukrainians demonstrated that NATO’s weapons are crap. Evidence of this built up slowly over time. First, it turned out that various bits of US-made shoulder-fired junk — anti-aircraft Stingers, anti-tank Javelins, etc — are rather worse than useless in modern combat. Next, it turned out that the M777 howitzer and the HIMARS rocket complex are rather fragile and aren’t field-maintainable.

The next wonder-weapon thrown at the Ukrainian problem was the Patriot missile battery. It was deployed near Kiev and the Russians quickly made a joke of it. They attacked it with their super-cheap Geranium 2 “flying moped” drones, causing it to turn on its active radar, thereby unmasking its position, and then fire off its entire load of rockets — a million dollars’ worth! — after which point it just sat there, unmasked and defenseless, and was taken out by a single Russian precision rocket strike.

This was sure to have seriously pissed off US Secretary of Defense Lloyd Austin, whose major personal cash cow happens to be Raytheon, the maker of the Patriot. Yes, the Patriot proved useless using the First Gulf War, where it failed to protect Israel against ancient Iraqi Scud missiles; and it proved useless later on when it failed to protect Saudi oil installations against ancient Yemeni Scud missiles… but you aren’t supposed to advertise that fact. And now this!

And to top it all off, the German-donated Leopard 2 tanks and the US-donated Bradley infantry vehicles, not to mention the silly French wheeled non-tanks, performed absolutely miserably during the recent Ukrainian efforts to approach, never mind penetrate, Russia’s first line of defense. Rubbing salt into the wounds, Putin remarked off-the-cuff that Western armor burns rather more easily than the old Soviet-made stuff.

HOW BP’S INTERESTS DRIVE UK SUPPORT FOR WARS, COUPS AND DICTATORS 

[Declassified UK, via Naked Capitalism 7-21-2023]

Strategic Political Economy

Can the US Re-Industrialize?

Michael Hudson [On Finance, Real Estate And The Powers Of Neoliberalism, via Mike Norman Economics, July 19, 2023]

… Why did the United States decide to de-industrialize? And I think it was done as a combination between two parties. You had the Democrats with a pro-financial anti-labor policy, and the Republicans with a pro-financial, pro-landlord, pro-1% policy, wanting tax cuts; and the real objective of de-industrialization from Clinton on, was an anti-labor policy, because de-industrialization meant essentially lowering employment, and thereby lowering the demand for labor, and lowering the wages. And the question that everyone was asking from 1980 on was, why were wages having to be reduced, and why are wages lower right now? Well, for years, American dominance, as an industrial power in the late 19th century, was a result of low wages [TW: I think Hudson misspoke here—USA wages were the highest in the world in the 19th century], as a result of low housing costs, low debt, free education, public services, and this had created a very prosperous US economy, from right after the Civil War, down through Roosevelt’s New Deal….

And the Democrats are pro-government. Namely, they want a pro-government strong enough to defend the 1% against the rest of the economy, but they use a different rhetoric for all of this. So the problem is that both US political parties are committed to de-industrialization for the reasons that the head of the Federal reserve has explained over the last few months: if you have more industrialization, you’ll have more employment, and if you have more employment, you’ll raise wages. And our philosophy, Democrats and Republicans alike, is to keep wages down so that corporate profits can be higher. And it’s worth it to the employing class, it’s worth it to the corporate monopolies to impose a depression on the United States, as long as that will reduce wages and strengthen the power of the 1% over the 99%. So the 1% is willing to lose sales, to lose profits, as the economy falls into what they call a recession, as long as their power over the 99% increases.

That’s the basic key to understanding where American politics is going. And this is why the Davos gang says the world is overpopulated. Who needs labor, when it really can’t afford to pay interest. For the financial sector and the FIRE sector, the 1% or the 10%, the role of labor is to make enough earnings so that it can pay interest to the banks, pay rents or interest to the mortgage lenders, and can basically pay money to the FIRE sector. And if labor’s wages really are forced down to break-even subsistence levels, then who needs labor? Time for population control. And basically the US problem is not only low wages, but it’s tax favoritism for the FIRE sector. And this cannot be reversed without causing a bank crisis. Because if you were to tax real estate and home ownership, for instance, and commercial real estate with a land tax, which is what the whole 19th century’s classical economics is all about, then the banks couldn’t get paid. So we’re stuck. America cannot re-industrialize without reversing this whole philosophy of post-industrial society as a class war against labor.

Why they’re smearing Lina Khan

[Pluralistic, via The Big Picture 7-16-2023]

A quick refresher. In 2017, Khan – then a law student – published Amazon’s Antitrust Paradox in the Yale Law Journal. It was a brilliant, blistering analysis showing how the Reagan-era theory of antitrust (which celebrates monopolies as “efficient”) had failed on its own terms, using Amazon as Exhibit A of the ways in which post-Reagan antitrust had left Americans vulnerable to corporate abuse:

https://www.yalelawjournal.org/note/amazons-antitrust-paradox

The paper sent seismic shocks through both legal and economic circles, and goosed the neo-Brandeisian movement (sneeringly dismissed as “hipster antitrust”). This movement is a rebuke to Reaganomics, with its celebration of monopolies, trickle-down, offshoring, corporate dark money, revolving-door regulatory capture, and companies that are simultaneously too big to fail and too big to jail….

When Joe Biden won the 2020 presidential election, he surprised everyone by appointing Khan to the FTC. It wasn’t just that she had such a radical vision – it was also that she lacked the usual corporate law experience that such an appointee would normally require (experience that would ensure that the FTC was helmed by people whose default view of the world is that it should be structured and regulated by powerful, wealthy people in corporate boardrooms).

Even more surprising was that Khan was made chair of the FTC, something that was only possible because a few Republican Senators broke with their party to support her candidacy:

https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00233.htm

These Republicans saw in Khan an ally in their fight against “woke” Big Tech….

Biden’s ceding of antitrust policy to the left wing of the party, combined with disaffected GOP senators viewing Khan as their enemy’s enemy, led to Khan’s historic appointment as FTC Chair. In that position, she was joined by a slate of Biden trustbusters, including Jonathan Kanter at the DoJ Antitrust Division, Tim Wu at the White House, and other important, skilled and principled fighters like Alvaro Bedoya (FTC), Rebecca Slaughter (FTC), Rohit Chopra (CFPB), and many others.

Crucially, these new appointees weren’t just principled, they were good at their jobs. In 2021, Tim Wu wrote an executive order for Biden that laid out 72 concrete ways in which the administration could act – with no further Congressional authorization – to blunt corporate power and insulate the American people from oligarchs’ abusive and extractive practices:

https://pluralistic.net/2021/08/13/post-bork-era/#manne-down

Since then, the antitrust arm of the Biden administration have been fuckin’ ninjas, Getting Shit Done in ways large and small, working – for the first time since Reagan – to protect Americans from predatory businesses:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

This is in marked contrast to the corporate Dems’ champions in the administration. People like Pete Buttigieg are heralded as competent technocrats, “realists” who are too principled to peddle hopium to the base, writing checks they can’t cash. All this is cover for a King Log performance, in which Buttigieg’s far-reaching regulatory authority sits unused on a shelf while a million Americans are stranded over Christmas and whole towns are endangered by greedy, reckless rail barons straight out of the Gilded Age:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

The contrast between the Biden trustbusters and their counterparts from the corporate wing is stark….

The world is in the grip of a manufacturing delusion 

[The Economist, via Naked Capitalism 7-17-2023]

Stoller: “The Economist absolutely despises making things.”

This is plutocracy, not capitalism

Blackstone Wins Private Equity’s Race to $1 Trillion

[Wall Street Journal, via Naked Capitalism 7-21-2023]

[Twitter, via Mike Norman Economics, July 22, 2023]

The Santiago Boys 

Evgeny Morozov [via Naked Capitalism 7-20-2023]

“A wild tale of how Allende’s engineers and a British management consultant dared challenge corporations and spy agencies – and almost won.”

Disney CEO Bob Iger Cackles with Investors about AI Replacing Jobs 

Lee Fang., via Naked Capitalism 7-16-2023]

[Twitter, via Naked Capitalism 7-21-2023]

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Disrupting mainstream economics

Unit Labor Costs are Literally Constructed Using Prices

[Employ America, via The Big Picture 7-21-2023]

Some big-name economists have also unfortunately similarly cited high unit labor costs as a contributor to inflation in the US, arguing that growth in hourly compensation is too high relative to the growth in labor productivity in order to see inflation return to low levels. However, when one takes a closer look at how this statistic is constructed, one finds that “unit labor costs” are simply the product of the labor share and a price index. The notion that this “explains” inflation is therefore a near-tautology; multiplying the CPI by a relatively stable measure—my average resting heart rate, for example—would perform similarly.

No brotherly love for Biden as blue-collar workers slam ‘Bidenomics’ before Philly visit: ‘Still struggling’

[FOX, via Naked Capitalism Water Cooler 7-21-2023]

“Just before his planned visit to the City of Brotherly Love, President Biden said wages were at their highest since the onset of the COVID-19 pandemic, but blue-collar workers there feel their income hasn’t improved much. ‘We’re still struggling. We could be better,’ Donny told Fox News. ‘Wages could be better.”.,.. Valerie said problems with the economy predated Biden. ‘I don’t feel like the president before him did anything, and he’s not doing anything,’ she told Fox News. ‘I feel like we’re still in the same rut that we were in. Like we haven’t move forward. We’re still stuck.’”

Big trouble’: Yellow truck drivers ponder next moves amid potential bankruptcy

[Freight Waves, via Naked Capitalism Water Cooler 7-21-2023]

“From the Great Recession to 2020, Yellow nearly went bankrupt four times. In each episode, the trucking giant was saved — thanks to concessions from lenders, the Teamsters union, the federal government or often all three. As a result, some of Yellow’s 30,000 employees weren’t too scared when the company began warning this summer that the end times were coming again. ‘It’s like crying wolf at this point,’ Yellow mechanic Brian Atchely told FreightWaves earlier this month. Now — as a strike looms, customers begin to pull freight and the Teamsters union refuses to offer concessions — industry watchers are on alert that the trucking fleet may finally shutter. Ahead of a federal court hearing on Friday, Yellow said a work stoppage could force the company into a Chapter 7 liquidation bankruptcy proceeding. Truck drivers are grappling with the idea that they could lose their jobs. Some 22,000 Teamsters members work at Yellow.

Measuring private equity penetration and consolidation in emergency medicine and anesthesiology 

[Health Affairs Scholar, via Naked Capitalism 7-20-2023]

Our findings demonstrate that PE and publicly traded companies have become a major force in both the anesthesia and emergency medicine markets over the last decade. We estimate that they controlled 18.8% and 22.0% of the national anesthesia and emergency medicine markets, respectively, in 2019—a sixfold increase in anesthesia and nearly a threefold increase in emergency medicine since 2009…. It is notable that the rapid growth of PE and publicly traded company ownership in anesthesia and emergency medicine—the two specialties most linked to surprise out-of-network billing—occurred alongside growing interest from state and federal policymakers in protecting patients from surprise bills, eventually culminating in passage of the federal No Surprises Act at the end of 2020. While our study does not provide causal evidence, other research suggests that large staffing companies owned by PE or publicly traded companies increased commercial prices and the prevalence of out-of-network billing.

A Dozen Contrarian Thoughts About Inflation

Barry Ritholtz, July 13, 2023 [The Big Picture)

I have been writing a lot about inflation — what people get wrong about it, why the FOMC is usually late to the party, and what the various causes of inflation (real, modeled, and imagined) actually are. All of this research into the space has led me to have ideas about inflation, many of which are out of step with the mainstream. Here are 12 ideas that are (or were) contrarian thoughts on inflation….

3. Is Labor Inflationary or Deflationary?: The biggest factor in wages has been a shortage of workers across numerous industries; what is needed is more workers. I am at a loss to see how higher rates make that happen.

Wages at the bottom half of the economy have lagged most important metrics (Productivity, CPI, Corporate earnings, etc.) over the past 3 decades; they were a deflationary factor in the economy. But the widespread US labor shortage has led to even the lowest-paid workers getting raises, which the FOMC believes is inflationary.

Economists like Lawrence Summers are stuck in a 1970s mindset. His claim that the only way to end inflation was to throw 5 million people out of work was not just wrong, it relied on an embarrassingly outdated model (it was also unnecessarily cruel). It’s a good thing so few listened to him; it’s a better thing he isn’t the Fed chairman — the resulting recession would have been disastrous….

5. Inflation Models are Inaccurate. PCE, CPI, and just about every inflation model I track is flawed but useful. Those that are consistent can be used as a baseline for historical analysis. However, relying on them to make real-time policy decisions is deeply problematic….

Goodbye to the Prophets of Doom

[The Atlantic, via The Big Picture 7-17-2023]

The conventional wisdom about the global economy is that the rich have been getting richer and the poor have been getting poorer. What if that isn’t true?

Climate and environmental crises

A Good Prospect​: Mining Climate Anxiety for Profit

[The Drift, via The Big Picture 7-16-2023]

From the opening, it was clear that the climate crisis itself has become a means for mining interests to obtain social license, providing a ready justification for the industry’s activities. Decarbonizing the modern world is going to make the mining world a lot of money — by Hoffman’s estimate, on the order of fifteen to twenty trillion dollars. At one point, Hoffman seemed to address a nameless, climate-conscious consumer, the sort of person who wants their personal choices to reflect their desire to save the planet — a desire that, in all likelihood, will enrich the people in that room. “To stop global warming,” he said, “you need us.”

The GOP Darling Who Claims Fossil Fuels Are Good for Humanity

Molly Taft, July 21, 2023 [The New Republic]

America’s Deadly Heat Isn’t (Officially) a Major Disaster — Why doesn’t the federal government recognize that this extreme weather is a catastrophe?

Kate Aronoff, July 20, 2023 [The New Republic]

“When I look out my window and it’s 90 degrees, it looks the same way it does at 105 or 75,” said Ashley Ward, director of the Heat Policy Innovation Lab at Duke University’s Nicholas Institute for Energy, Environment and Sustainability. “Where are the uninsured property losses around heat? That’s what our disaster declaration process is built around.”

Why do cloud providers keep building datacenters in America’s hottest city? 

[The Register, via Naked Capitalism 7-17-2023]

Information age dystopia / surveillance state

iQuit: My Hellish Attempt to Leave Apple’s Walled Garden

[Businessweek, via The Big Picture 7-16-2023]

If you want to transfer a decade of photos and texts out of Apple’s ecosystem, get ready for pain.

 

Disrupting mainstream politics

How Gretchen Whitmer Made Michigan a Democratic Stronghold

Benjamin Wallace-Wells [The New Yorker, via Naked Capitalism Water Cooler 7-19-2023]

“She endured an armed mob at the state capitol and a plot by a group linked to a right-wing militia to kidnap and kill her. Last November, Whitmer tied her candidacy to a state constitutional amendment guaranteeing the right to abortion and won reëlection by ten points, sweeping the suburbs so convincingly that the Democrats gained control of both houses of the Michigan legislature for the first time in forty years. Since then, Whitmer’s Democratic majority has allocated more than a billion dollars to support the auto industry’s green transition; quintupled a tax credit for poor families; repealed a law that made Michigan a right-to-work state; and enacted new protections for L.G.B.T.Q. people. After a forty-three-year-old local man went on a shooting spree at Michigan State University, in February, killing three students, some modest, if hard-won, gun-control measures were put in place.”

Collapse of independent news media

How media makes impact of US forever wars invisible 

[Responsible Statecraft, via Naked Capitalism 7-21-2023]

Solomon demonstrates how in recent U.S. wars the violent consequences for civilians are hidden from public view. The toll — counted in deaths, injuries, destroyed infrastructure and related malnutrition and disease — is far more extensive than Americans are led to believe. Harms inflicted on civilians and their immediate environment can last for generations. Solomon is at his best in discussing how the media ignores or is complicitous in defusing these consequences.

How Paramount buried a Vice documentary on Ron DeSantis at Guantanamo Bay 

[SEMAFOR, via Naked Capitalism 7-21-2023]

(anti)Republican Party

The Republican Noise Machine

[Mother Jones, via The Big Picture 7-16-2023]

David Brock, the reformed conservative noise-maker, on how the Right has sabotaged journalism, democracy, and truth.

Who Pays For Right-Wing Media? 

[Important Context, via Naked Capitalism 7-18-2023]

Making voting pointless, the long durée of snorting Chuck Koch

annieli [End of the Republic, via Daily Kos 7-30-23]

Why Do So Many People Still Support Donald Trump? 

[The Authoritarians, via The Big Picture 7-17-2023]

People will vote for Donald Trump in 2024 for many different reasons, but foremost among them: They believe he stands for what they want and he is the best person available to get it for them. Which are perfectly good reasons for voting for someone. In this case, however, his enthusiastic supporters are willing to send a vengeance-driven, delusional autocrat into the White House to get what they want. A man who will know much better than he did in 2016 how to wield the vast powers of the presidency to corrupt and ultimately destroy America’s democracy. And in so doing put the other democracies in the world on quaking ground.

The ‘QAnon Shaman’ and other Capitol rioters who regret pleading guilty

[BBC, via The Big Picture 7-19-2023]

A growing number of Capitol rioters have gone back on their guilty pleas and apologies – including one of the most recognisable faces from 6 January.

The (anti)Federalist Society Infestation of the Courts

How Harlan Crow Slashed his Tax Bill by Taking Clarence Thomas on Superyacht Cruises

[ProPublica, via Naked Capitalism 7-18-2023]

Clarence Thomas’s Cherry-Picked Originalism on Affirmative Action 

Stephen Siegel, July 21, 2023 [The New Republic]

The ahistorical dishonesty of the Supreme Court justice’s concurrence in the Harvard and UNC cases exposes the originalism fraud.

When John Roberts Tried To Take Power From The Courts 

The Lever

Why Radical Supreme Court Reforms Are Not the Answer to the Radical Roberts Court

Bill Scher, July 13, 2023 [washingtonmonthly]

Anger at the Court is more than justified. However, the justices’ decisions do not justify partisan attacks on the Court’s structure. The totality of the Court’s record makes the opposite argument…b rulings from this term show some of the conservative justices are not fundamentally partisan. They are determined to realize their ideological goals. They don’t care nearly as much about electing fellow Republicans.

Roberts and Brett Kavanaugh joined the Court’s liberals to reject a Republican Party congressional district map that disenfranchised African Americans. Dave Wasserman of the Cook Political Report  estimated that the ruling may add four Democratic House seats next year. (A gain of five House seats would give Democrats control of the chamber.)

Amy Coney Barrett joined that heterodox coalition in a different case that rejected the “independent state legislature” theory, which MAGA supporters promoted so statehouses could ignore election results when Trump loses and send their hand-picked slates to the Electoral College.

If all Republican-appointed judges were beholden to the GOP or MAGA, such rulings would not have been handed down. Nor would the Court, with three Trump-appointed justices, have rejected all of the attempts by the 45^th president to steal the 2020 election….

Barrett, Kavanaugh, and Gorsuch do not deserve praise. The constitutional design of the judiciary deserves praise. Judicial independence should not be destroyed to end the current spasm of right-wing judicial activism.

Any judicial reform enacted by using a partisan process—first abolishing the Senate filibuster on a party-line vote, then enacting measures to add Court seats or imposing term limits on federal judges—ends the independent judiciary. At that point, whenever one party controls the White House and Congress, that party can change the rules as needed to exert partisan control over the Court….

 Clarence Thomas is 75, and Alito is 73. The way to end the activist frenzy of the Roberts Court is for Democrats to hold the White House and the Senate when justices’ seats become available.

Republicanism

Law’s Republic

Frank Michelman [The Yale Law Journal, Volume 97, Number 8, July 1988]

p. 1495 …republican constitutional thought is not indissolubly tied to any such static, parochial, or coercive communitarianism; that, indeed, reconsideration of republicanism’s deeper constitutional implications can remind us of how the renovation of political communities, by inclusion of those who have been excluded, enhances everyone’s political freedom. Republican constitutionalism, I will argue, involves a kind of normative tinkering. It involves the ongoing revision of the normative histories that make political communities sources of contestable value and self-direction for their members. This tinkering entails not only the recognition but also the kind of recognition-reconception of those histories that will always be needed to extend political community to persons in our midst who have as yet no stakes in “our” past because they had no access to it….

pp. 1499-1500 B. Constitutionalism: Self-Rule As Law-Rule
I take American constitutionalism-as manifest in academic constitutional theory, in the professional practice of lawyers and judges, and in the ordinary political self-understanding of Americans  at large-to rest ontwo premises regarding political freedom: first, that the American people are politically free insomuch as they are governed by themselves collectively, 23 and, second, that the American people are politically free insomuch as they are governed by laws and not men [sic]. 24 I take it that no earnest, non-disruptive participant in American constitutional debate is quite free to reject either of those two professions of belief. I take them to be premises whose problematic relation to each other, and therefore whose meanings, are subject to an endless contestation that always organizes, sometimes explicitly but always implicitly, American constitutional argument.25
The problematic relationship between the two American constitutionalist premises-the government of the people by the people and the government of the people by laws-should be evident.  We ordinarily think of ourselves (qua “people”) and laws as being entirely different orders of things. Yet if we are sincerely and consistently committed both to ruling ourselves and to being ruled by laws, there must be some sense in which we think of self-rule and law-rule (if not exactly of “people” and “laws”) as amounting to the same thing. 7 It should be apparent that the problem is not just a verbal artifact. Each of the two constitutionalist formulas—self-government and a government of laws—seems to express a demand that we are all bound to respect as a primal requirement of political freedom: the first demands the people’s determination for themselves of the norms that are to govern their social life, while the second demands the people’s protection against abuse by arbitrary power. Reconciliation is not accomplished simply by regarding the people as making or consenting to their own laws. The process of popular law-making is what we call politics; and politics is, in the traditional (and healthy) American understanding, a theater of power in which some people stand always in danger of abuse by others. If “a government of laws” stands-as surely it does—for the institutionalized discipline that would render legislative politics trustworthy, then “law” in the “government of laws” formula must stand in a circular relation with politics as both outcome and input, both product and prior condition.”….

n. (“It is the very purpose of our Constitution … to declare certain values transcendent, beyond the reach of temporary political majorities.”)

p. 1502. Perhaps we can think our way through this difficulty by taking seriously the cue we have already noticed in our constitutionalist formulas, that is, the conceptual identification (although of course not outright identity or equivalence) of “people” with “laws,” which at the same time holds “people” distinct from mere “men.” One possible way of making sense of this is by conceiving of politics as a process in which private regarding “men” become public-regarding citizens and thus members of a people. It would be by virtue of that people-making quality that the process would confer upon its law-like issue the character of law binding upon all as self-given. A political process having such a quality is one that, adapting a term of Robert Cover’s, we may call jurisgenerative.

Reconciling the two premises of constitutionalism seems to require that we entertain the possibility of a jurisgenerative politics, capable of imbuing its legislative product with a “sense of validity” as “our” law.   The idea of jurisgenerative politics is historically recognizable as an idea of republican lineage.”….

p. 1503. C. Republicanism and Modernity
1. The Dialogic Tradition
In the strongest versions of republicanism, citizenship-participation as an equal in public affairs, in pursuit of a common good-appears as a primary, indeed constitutive, interest of the person. Political engagement is considered a positive human good because the self is understood as partially constituted by, or as coming to itself through, such engagement.  This view opposes the “pluralist” view in which the primary interests of individuals appear as pre-political, and politics, accordingly, as a secondary instrumental medium for protecting or advancing those “exogenous” interests.

A related opposition of ideas is that between “negative” and “positive” liberty. Negative liberty refers to absence of restraint against doing as one wants, while positive liberty implies action governed by reasons or laws that one gives to oneself. 5 The two concepts of liberty differ hugely in their implications respecting the good of citizenship. From a negative libertarian standpoint, participation in politics is not a good (except upon the sheer accident of a given person’s happening to like it). But positive liberty is hardly conceivable without citizenship…..

p. 1505 Yet republican thought is no less committed to the idea of the people acting politically as the sole source of law and guarantor of rights, than it is to the idea of law, including rights, as the precondition of good politics.  Republican thought thus demands some way of understanding how laws and rights can be both the free creations of citizens and, at the same time, the normative givens that constitute and underwrite a political process capable of creating constitutive law.44 Perfectly prefiguring the American constitutionalist dilemma I have already described, classical republican constitutional jurisprudence evidently depends on the possibility of jurisgenerative
politics.

p. 1517 Conversely, to trace a constitution’s validity as the people’s law to its republican political origins would evidently imply that constitution’s impermanence… A constitution cannot retain its claim to republican validity without changing in response to historical change in the people’s composition and values, its identity and “fate as a People.”

n. The more challenging reading, recently clarified by Hanna Pitkin’s probing of Machiavelli’s own thoughts on the matter, sees citizens as founders, corruption as alienation of authority, and virtue as the spirit of constitutional renovation.

p.1524 The Court did not, of course, prophesy in a vacuum, but rather in a context of changes in self-understanding pursued over the years by Black Americans.  Black Americans, however, were not tantamount to “the people,” and there is no telling how long it would have taken for their new foundations to have risen to the level of constitutional significance for a Court following Ackerman’s argument. Rather, they were, as of 1954, still the marginalized and deviationist cultivators of transformative potential, a potential that both had been developed  and would come to such partial fruition as it has in part through the willing enlistment of the Court. If we imagine the Brown Court acting in accordance with the understanding (to which Ackerman and I are both committed) of constitutional adjudication as always proceeding from within an on-going normative dialogic practice, then that Court’s willingness to be thus enlisted must signify its grasp of the enlisters and their work as lying within the bounds, if away from the center, of our then constitutional practice. Thus informed, the Brown Court spoke in the accents of invention, not of convention; it spoke for the future, criticizing the past; it spoke for law, creating authority; it engaged in political argument.

p. 1529 But the generative indeterminacies are not just there as secrets awaiting random discovery. Rather they are products of action, the creations of motivated acts of perception and cultivation.1, 7 Action by whom, then? Most likely, it would seem, by those who enter the conversation-or, as we may sometimes feel, seek to disrupt it—from its margins, rather than by those presiding at the center. 48 So the suggestion is that the pursuit of political freedom through law depends on “our” constant reach for inclusion of the other, of the hitherto excluded-which in practice means bringing to legal-doctrinal presence the hitherto absent voices of emergently self-conscious social groups.

p. 1530 How does such a new slant on the world penetrate the dominant consciousness?
Without belaboring the point, does anyone doubt the primary and crucial role in this instance of the emergent social presence and self emancipatory activity of Black Americans? 52 Does anyone doubt that their impact on the rest of us has reflected their own oppositional understandings of their situation and its relation to our (and increasingly their) Constitution—developed, in part, through conflict within their own community,   in a process that both challenged and utilized such partial citizenship as the Constitution granted and allowed them   (and left its clear imprint on constitutional law both within and beyond the topical area of race)? Does anyone doubt that the judicial agents of the challengers’ accumulating citizenship drew on interpretive possibilities thatthe challengers’ own activity was helping to create?

p. 1531 …much of the country’s normatively consequential dialogue occurs outside the major, formal channels of electoral and legislative politics, and that in modern society those formal channels cannot possibly provide for most citizens much direct experience of self-revisionary, dialogic engagement.

p. 1532 The Court helps protect the republican state-that is, the citizens politically engaged- from lapsing into a politics of self-denial. It challenges “the people’s” self-enclosing tendency to assume their own moral completion as they now are and thus to deny to themselves the plurality on which their capacity for transformative self-renewal depends.

 

Thomas Frank: Ordinary People by the Millions (interview)

Seymour Hersh [via Naked Capitalism 7-20-2023]