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Constitutional Escalation

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Howard Wasserman says:

    This is a great big-picture alternative to the small-bore, day-to-day political stories we read in the papers. And a lot of progressives hope (and are urging the President to ensure) that history repeats.

    Here is something worth considering: What happens if there is a divide between the “constitutional generation” in different branches. Because *many* members of Congress already are making statements tonight indicating a willingness/desire to cave and give up on health care, even before we know whether the President will play hardball.

  2. Gerard Magliocca says:

    Well, I didn’t say that this escalation would work. I just said an attempt will be made. After all, I am writing a book about the chief losers in that sort of fight
    – the Populists.

  3. Vladimir says:

    Thank you, Gerard. This is the most uplifting thing I have read on this depressing day. (Thank goodness for scholarship!)

    I think you’re right. The next step has to be internal: the generational politicians in the Democratic Party will have to duke it out with the “normal” politicians (i.e., the trimmers, heirs of Simon Cameron and Company, interested in pork and re-election but not big picture ideas or programs).

    Fortunately, I think Obama has it in him, much like FDR, to change course when the need arises. Here is one scenario (ok, it’s the stuff of my dreams, but still…) First, enough of attempts at bi-partisanship and backing down: pass healthcare however it can be done, including through the nuclear option. Second, replace the Summers-Geithner crew with, say, Joe Stiglitz and Paul Krugman. Maybe then some FDR-like anti-plutocratic, “drive the money changers from their temples” rhetoric as the Administration drills down deeply into the banking sector, with a revival of New Deal regulation, some hefty taxation, and a big-is-bad-break-up legislative and antitrust strategy. So-called “class warfare,” so often derided in normal times, seems entirely appropriate (and winning) here now, given the stark disparity in income across the country. And finally, “Government and Senate reform” could cap it all off — abolishing the filibuster for starters, and then massive campaign finance reform/public financing initiatives, to end the plutocratic hold on government. (Of course, if Citizens United comes out as expected, that would prompt a clash with, and maybe defiance of, the Supreme Court — a frequent element in your generational story).

    Crisis can bring out the best in a movement, and especially in President Obama. Here’s to hoping that’s the case in the days and weeks ahead!

  4. Lance says:

    (1) Even if the Senate could use procedural rules to get a health care bill passed, nothing is coming out of the House this year. All the House reps have to run for re-election this year, and too many will not want to have the albatross of health care legislation signed into law around their neck. A lot of people who thought their seats were safe are having second thoughts tonight.

    (2) It may be that 2008 is not the realignment, after all, but that 2010 is, with the “ruling party regime” being (a) the huge amounts of deficit spending/debt escalation began by Bush and the Republican Congress and continued by Obama and the Democratic Congress [and perceived at large as special interest driven in many cases] and relatedly (b) the corrupt political culture on both sides of the aisle in D.C.

    (3) What is clear from 2006 to the present is that the American people are utterly sick of both parties and the way they conduct their business, including but not limited to the continuing perpetuation of hugely unpopular policies (Iraq; the bailouts; the stimulus; health care; runaway spending).

  5. Mike Zimmeer says:

    There is plenty of blame to go around. First, as suggested, President Obama picked Summers and Geitner. One of them would be more than enough and that should happen now. Second, Obama should have been more apparently active in the health care reform in Congress. Not using your political power because you are saving it has always seemed crazy. Nonuse causes it to disappear gradually.

    More blame for Congress. If nothing else, this debacle shows the value of party unity and discipline — the Republicans — and the cost of disunity with no discipline. Each member of Congress has his or her own political party and the rules are set up so those who get reelected gain increasing individual power. To leave anything important in the hands of Max Baucus, Bill Nelson, etc., is simply asking for the disaster that has struck the larger confederation we call the “Democratic Party.” Harry Reid is no LBJ but the system needs to be recalibrated so there is party unity and discipline. That will be tough but it starts in the Senate with the shrinking of the fillibuster.

    So, President Obama needs to lead the Democrats, leaving the party of “No” to the Republicans, who now, by the way, face splintering themselves as the “tea party populist” try to grab power from the big money interessts that have owned the party for a long time. Part of that leadership is at the individual level: Obama has to get each member of Congress alone and tell each one what horrible things will happen to them individually if they do not go along with the new, much more activist agenda across-the-board on all the outstanding issues. That is what LBJ did and there is no other choice.

    Then the fillibuster has to be broken: Harry Reid should schedule debate for action on every item on the broad agenda and tell the members of the Senate: Start talking till you drop like flies because there will be no stopping until every item on that agenda is voted on.

  6. Martin Sweet says:

    Gerard,

    One factor to consider is that the Skowronek work on regime theory – from which this work appears to have largely derived – argues that the concept of political time has quickened. In fact, Skowronek argued that we are now in a state of permanent pre-emption. One thing about realignments is that they are difficult to see until the regime has taken hold. It seems a bit premature to claim 2008 realigning. I take Howard’s point about different generations to really suggest that the regime itself has not turned over.

    Also – how does the election of LBJ constitute realignment? His entire campaign consisted of “Let us continue.” Hardly seems like a big break from New Deal Liberalism to me.

    Looking forward to reading your work.

    Best,

    Martin

  7. Gerard Magliocca says:

    Excellent points Martin. Couple of thoughts.

    1. I may be wrong about 2008 being a realigning election. But I would note, that Ronald Reagan wasn’t all that popular in 1982 (when unemployment was over 10%) and the GOP did poorly in the 1982 midterm elections. That didn’t mean that 1980 was not a realignment.

    2. I addressed Skowronek’s “thickening” idea in a previous post. That may be right as well (and, indeed, the failure of health care would support that thesis).

    3. I need a separate post to address the 1960s. What occurred was a realignment of the South (at least, it started at that point). But that’s a far more messy story than what I can say (and have said) about the previous periods. Maybe I’ll address that another time.

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