Download This Paper Open PDF in Browser Add Paper to My Library Share: Permalink Using these links will ensure access to this page indefinitely Copy URL Civic Education and Democracy's Flaws 1 Nomos LXVI (2023), Forthcoming 9 Pages Posted: 3 Nov 2022 See all articles by Robert L. TsaiRobert L. TsaiBoston University - School of Law Date Written: November 1, 2022 Abstract This is an invited essay responding to Seana Shiffrin’s plea for increased investment in teaching legal knowledge as a way to revitalize civic education and enhance democratic engagement. I make three main points. First, while I applaud Shiffrin’s embrace of a robust conception of citizenship, I am doubtful that increased facility with legal methods will be sufficient to cure the ailments that afflict American democracy. Instead of creating more citizens who are technically proficient in the law, we must raise a generation of political diagnosticians. Second, beyond habits such as listening, truth-telling, and toleration, we must cultivate a capacity for righteous outrage, fear of role reversal, and wisdom in managing the multiplicity of relationships and identities in modern life. Otherwise, teaching legal proficiency could very well reinforce existing patterns of corruption or inequality. Third, when it comes to the content of civic education, we should select texts that help citizens draw connections between despised policies and the structural features of our political existence. In other words, we should show citizens how to reason from injustice. Keywords: civic education, justice, democracy, equality, political theory, philosophy Suggested Citation: Suggested Citation Tsai, Robert L., Civic Education and Democracy's Flaws (November 1, 2022). 1 Nomos LXVI (2023), Forthcoming, Available at SSRN: https://ssrn.com/abstract=4264405 Robert L. Tsai (Contact Author) Boston University - School of Law ( email ) 765 Commonwealth AvenueBoston, MA 02215United States HOME PAGE: http://bit.ly/37YuJZ9 Download This Paper Open PDF in Browser Do you have a job opening that you would like to promote on SSRN? Place Job Opening Paper statistics Downloads 6 Abstract Views 71 PlumX Metrics Related eJournals Boston University School of Law Research Paper Series Follow Boston University School of Law Research Paper Series Subscribe to this free journal for more curated articles on this topic FOLLOWERS 3,674 PAPERS 833 This Journal is curated by: Michael J. Meurer at Boston University - School of Law U.S. Constitutional Law: Rights & Liberties eJournal Follow U.S. Constitutional Law: Rights & Liberties eJournal Subscribe to this fee journal for more curated articles on this topic FOLLOWERS 2,136 PAPERS 14,803 This Journal is curated by: Matthew D. 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In the 1987 decision, McCleskey v. Kemp, , the Supreme Court rejected a black death row inmate's argument that significant racial disparities in the administration of Georgia's capital punishment laws violated the Fourteenth Amendment's Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state's capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling's incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether. But that would be wrong and incomplete. For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision. It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith. It is also based on archival research into their case files. Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980's and early 90's had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of "rebellious localism." Instead of forsaking structural equality claims, they doubled down on them. Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it. They also scrambled to formulate reliable quantitative evidence of intentional discrimination. Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts. Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable. For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end criminal law policies and funding decisions—continued to shape the actual quality of representation received by poor people.

In Real Americans, Jared Goldstein offers a bracing examination of the role played by the U.S. Constitution in the country's political consciousness. Goldstein's aim is to pierce the narrative of constitutional nationalism to show how citizens have invoked America's founding text to express “deeply conflicting conceptions of national identity” (2) and “justify hatred, violence, and exclusion” (4). He does so by exploring the beliefs of various right-wing movements that have resisted mainstream developments in basic law, as well as more diffuse social changes. Among the subjects covered: the Know Nothings, the Ku Klux Klan, the Tea Party, the ascendance of Judeo-Christian nationalism, and the modern militia movement. Goldstein's reader-friendly approach is mostly descriptive rather than normative; he presents even the most illiberal visions of community in largely nonjudgmental terms. This allows readers to appreciate the capacious and disturbing nature of American political culture. At the same time, it leaves unstated what, if any, criteria ought to be used to evaluate the competing visions of power and community—particularly those that claim authority to dominate existing institutions rather than as an excuse to opt out of normal politics.

This is a contribution to a symposium on David M. Driesen's book, "The Specter of Dictatorship" (Stanford Press 2021), held at Syracuse University College of Law in the Fall of 2021. In his book, Driesen encourages judges to take an active role in preserving American democracy, not only by checking presidents with despotic tendencies, but also by restoring the Constitution as originally designed. I make several points related to why we should be modest about predicting the capacity of judges to constrain a president who is bent on breaking legal limits and busting valuable political norms. First, whether constitutional adaptations to the expansion of presidential power are illegitimate or worthy of acceptance remains highly contested given our sparsely written constitution and aging political order. For instance, the need to respond to new threats and the rise of social movements that vocally support presidents now complicate and even limit what judges can do. Second, some judges may in fact be "movement jurists" whose approaches are closely aligned with certain sectors of society. Third, while Driesen cites the example of Turkey and Hungary as examples where judicial intervention in democratic backsliding can do some good, there are reasons to be cautious about drawing those lessons when it comes to America's own situation. Fourth, in the U.S., some of the factors creating gridlock and political dysfunction are likely to also infect the judiciary. Fifth, the actual history of judicial involvement to protect democracy in the U.S. is not a happy one. Without tracing the entire sweep of that history, it's worth noting that it's just as likely that vigorous judicial review will block and demoralize pro-democracy forces or anti-corruption reformers. We might have to completely reimagine how judges are selected in this country before confidently putting our faith in judges to save democracy.

Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I contend that pragmatism takes different forms in their theories: disciplinary substitution, decisional allocation, managed consequentialism, and materialist purposivism. Together, these represent the legacies of pragmatism. Third, after considering the views of Robin West and Roberto Unger, I offer some thoughts about what it will take to construct a form of pragmatism that restores the tradition's emphasis on humanistic governance.

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. Likewise, the knowledge that he might wind up on the wrong side of history in part explains the anguished quality of Justice Felix Frankfurter’s dissent in the coerced flag salute case, West Virginia State Board of Education v. Barnette, for he had not merely lost the argument over what a post-war liberal order should look like, but also saw the consensus represented in his earlier opinion on the issue collapse as his colleagues abandoned him for Robert Jackson’s rights-centered vision of justice. But what exactly renders a particular legal outcome, which surely begins as a good-faith effort to do the right thing, a despised precedent over time? Some judicial rulings are infamous because they are one day cast aside with great fanfare, as Bowers v. Hardwick was by Justice Anthony Kennedy in Lawrence v. Texas or the Dred Scott case was through consistent denunciation by abolitionists and a dramatic defeat for the Slave Power during the Civil War. But other precedents are treated disdainfully through a more nuanced process of shunning or erosion, so that they remain formally alive but shamble about, a vestige of their former selves—Korematsu v. United States, Roe v. Wade, and Miranda v. Arizona might fall into this category. This is true even though there may have been efforts by judges to rescue some aspect of each of these decisions. Whether renounced openly or surreptitiously, each of these precedents has been deeply marked by public condemnation. This essay investigates the politics of repudiation—the socio-legal dynamics by which losers to a contest over the meaning of the U.S. Constitution seek to castigate and de-legitimate a controversial outcome. It will ask what actions can spur the sense of moral outrage with a judicial ruling, and what components are necessary to transform a precedent into an exemplar of public regret. The politics of repudiation begins with the notion that every judicial ruling is a first draft, a sketch of legal and political values. Judges’ words are only fragments, composed by a single collection of influential individuals reading a legal text for a particular moment in time. What a judicial ruling means in the social world depends on what it becomes. Along these lines, the command to obey that is intrinsic to every ruling is satisfied through compliance by those who are immediate parties to the controversy; no one else is obliged to endorse the constitutional vision sketched by judges who presided over that dispute. The republican and federalist design features of our constitutional order therefore join with the necessary cultural processes upon which every legal system must depend to foster a broad range of efforts to either entrench or contest a particular vision of law. What matters more than the ideas contained in a judicial opinion, then, is what average citizens and elites do with that legal decision once it reenters the stream of democratic discourse and, if they disagree with it, what steps they take to inscribe a very different narrative about that decision in the public imagination. Much of this work of public repudiation is done through unglamorous politics: activism of civic groups and church organizations that educates citizens and the enactment of local policies, state laws, and other texts through which the people turn a legal ruling into an object of obloquy. National party dynamics can play a significant role by sharpening and broadening the politics of repudiation. For instance, by making opposition to Roe a central tenet of the party platform and political identity, the Republican party helped make Roe reviled among a generation of conservative lawyers who now hold a majority of seats on the Supreme Court. These efforts have put conservatives on the cusp of codifying a final victory should the Court overrule that decision.

This is a review essay of Camila Vergara, Systemic Corruption (Princeton 2020). In this lively and important book, Vergara argues that corruption should be given a structural definition, one that connects corruption with inequality and is plebeian rather than elitist. After surveying the work of thinkers from Machiavelli to Arendt, she proposes a set of solutions grounded in the civic republican tradition. I press several points in my essay. First, Vergara's linkage of corruption with inequality is promising, but introduces tension between a general problem (domination of the many by the few) and a more specific problem (the domination of perennial outcasts). Second, the materialist-consequentialist mindset required to maintain an anti-corruption constitution, while valiant, will revive an older question: the extent to which any written text can constrain future politics, much less interpretation, in a maximal sense. Third, turning to the American experiment, we have learned that what is plebeian or local isn't necessarily liberationist. Fourth, Vergara's proposal to create a new network of local constituent assemblies is exciting but would require clear limits on their roles as such an innovation introduces additional layers of complexity to existing, often already dysfunctional, forms of governance. Five, allowing non-citizens to participate in such assemblies is defensible but controversial. Six, some of Vergara's insights about the need for direct levers of popular control of elected officials could be cashed out through other methods, such as a national referendum to overturn presidential orders or Supreme Court decisions. As we have seen at the state and local level, such means of direct democracy have been successfully used to advance egalitarian objectives.

In the past, Michael Sandel has inveighed against modes of debate that bracket moral questions and has exhorted Americans to discuss controversial issues in openly ethical terms, without telling us whose moral conception should prevail. His inviting and probing style, coupled with his insistence that you couldn’t have a just society without being judgmental, has made him an academic sensation. The title of his new book, The Tyranny of Merit: What’s Become of the Common Good?, disparages merit, but it is coy about whether the idea is problematic in the abstract or in practice. About halfway through the book, I began to feel that he had finally slipped off the fence on the question under consideration. Merit is not a laudable concept that should be saved. As the pace of the book quickens, so Sandel becomes more urgent in trying to persuade us there is something intrinsically corrosive about the idea itself. Sandel contends that a meritocratic manner of approaching the important things in life is objectionable for two reasons. First, it may actually lock in inequality rather than ameliorate it by layering a sense of unjustified desert on top of existing inequities. Second, obsession with merit fosters “hubris” among society’s winners and “humiliates” the losers through a series of ultracompetitive social experiences. Sandel is at his best when he painstakingly unpacks the idea of merit into its component parts, illuminating both its appeal and why its “logic is corrosive of commonality.” He also fruitfully shows how philosophy has accommodated the rise of meritocracy by

This is an invited response to Professor Mark Killenbeck's article, Sober Second Thoughts? Korematsu Reconsidered. In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court's Muslim travel ban case are overwrought and that the latter case, too, is defensible. I'm not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned decision that licensed racial animus and failed to account for the magnitude of unequal suffering by Japanese Americans under wartime internment policies. Third, the case stands for little as doctrine that subsequent precedent can't offer. Fourth, in finally overruling Korematsu, the Roberts Court did not clearly reject the government's ability to use race going forward when the need is great enough. Fifth, we do in fact learn valuable lessons comparing Korematsu and Trump v. Hawaii: a president's power to inflict mass suffering has grown exponentially rather than diminished, he has more bureaucracies and defenders at his disposal, it's easier for a president to cover his tracks when bigotry is involved, and judges continue to underestimate the incentives created by their decisions to inflict future harm. For all these reasons, Korematsu deserves a proper burial—more than the Roberts Court has given it. Trump v. Hawaii should be given the same treatment at the next best opportunity.

This Essay arises from a symposium based on Jack Balkin's book, The Cycles of Constitutional Time, which argues that America's constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a President. This dynamic frustrates accountability and exacerbates the possibility of unearned transformation. Second, institutional imbalance over the ability to generate legal change can take the form of ad hoc bureaucratic work-arounds. Third, modern Presidents are increasingly tempted to rely on social movements to gain and retain power. These developments augment a President's ability to influence the pace or degree of legal change, but each also carries significant pitfalls.

This is an invited review essay of Michael Sandel, The Tyranny of Merit: What's Become of the Common Good? (FSG 2020), for the inaugural issue of The American Journal of Law and Inequality (R. Kennedy, M. Minow, C. Sunstein, eds.). Sandel makes three principal arguments: (1) meritocracy is deeply flawed because it worsens inequality and fills meritocracy's winners with hubris and losers with shame; (2) universities should introduce a lottery into the admissions process; and (3) this reform, coupled with increased emphasis on the dignity of labor, will repair the politics of resentment that now roil our country.I respond in the following ways. First, treating meritocracy as an ideology, I assess the underlying tension in Sandel's logic, which accords primary moral value to the form of politics over outcomes, and status over materiality. Given the complex culture of meritocracy, I question whether its excesses can be curbed, or gross inequality reduced, with an approach that fails to stress material outcomes.Second, I conclude that Sandel's proposal to reform university admissions could only be realistically implemented at a handful of highly selective and wealthy institutions. Even then, its impact on meritocratic faith or tangible inequality is likely to be exceedingly modest. Worse, randomizing distribution may in fact lead to a backlash among communities that have (over)invested in the means to compete for slots at elite universities and colleges, which would undermine Sandel's objectives. Despite these misgivings, his idea may still be worth a try.Third, I praise Sandel's concern that meritocracy is contributing to the broader politics of resentment. But I say that his approach to emotions in politics is incomplete, for it focuses too narrowly on white grievance in a single election, and we need to get better at assessing historical claims of anger and disillusionment from multiple communities across time. I conclude by suggesting that Trumpism was not a coherent attack on meritocracy, but one that tried to harness resentment to introduce meritocratic logic into new domains, such as immigration and refugee policy. If we want to reduce meritocracy's dominance in particular social domains, I argue, we must offer a potent substitute that can bring elites and everyday people together. In certain domains such as university admissions or border control where the politics are fraught, that alternative may be the rhetoric of fairness.

This paper arose from an invited symposium on Democracy in America: The Promise and the Perils, held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the 1960s. These efforts at demographic control are being pursued unilaterally, however, without sufficient evidence there is a broad and lasting desire on the part of the people to alter the fundamental values generated during that period. In order to withstand Trumpism’s challenges, we’ll have to better understand the Immigration and Naturalization Act’s origins as an integral component of the civil rights revolution. When we revisit this history, we learn that this settlement introduced three principles into the immigration context: equality, a presumption of cultural compatibility, and family integrity. These crucial principles must be made part of any judicial evaluation of a president’s policies — especially those conducted unilaterally.

Review of Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America.

This is the introduction for a new work of constitutional theory and politics: Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (W.W. Norton 2019). In the book, I draw upon pragmatism to develop an account of second-best solutions when disputes arise over questions concerning equality. Practical egalitarianism doesn't require that a person give up his commitment to a substantive vision of equality, but instead offers a general ethic, useful precedents, and a method for prioritizing the amelioration of tangible inequities when debate over first principles bogs down. The approach does require that a practical egalitarian not only train attention on reducing inequities in the short term, but also that he use alternative concepts that can do some of the work of equality in other ways, thereby increasing redundancy among values and building a culture of equal respect in the long run. This approach can be superior to two other approaches historically deployed when intractable disputes over equality have arisen: (1) deferring resolution until broad social or political consensus arises; or (2) demanding a resolution based explicitly on equality grounds, but swallowing a thin conception of substantive equality.

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie had a major consequence: Republican officials could not follow through on their apparent scheme to engage in partisan entrenchment by depressing census responses from Hispanic citizens and undocumented migrants. I defend this creative effort to manipulate the political value of time and characterize the Court's invocation of the rule of reason as an effective substitute for the principle of equality under the circumstances. Drawing on my new book, PRACTICAL EQUALITY (Norton 2019), I also put the strategy in jurisprudential context among past instances where reason ended up being the grounds for a consensus when an equality issue seemed intractable.

The goal of Fred Lee in Extraordinary Racial Politics is to explicate a recurring form of political activity that is distinct from either revolutionary politics that convulse the entire polity or normal politics that yield formal laws and institutions. Between these phenomena, he describes a political experience that can be “unusual, episodic, intensive, decisive, and transformative” yet leaves its mark on a polity (p. 2). Lee is less concerned with the laws on the books than he is with an informal set of potent racial formations that are both sticky and generative: sometimes they are partly codified (as with legal segregation), at other times they are generally unseen but fill gaps in our formal understandings of the law (say, in treaties with native populations and policies demanding their removal), and sometimes they supplant them entirely over time (as with latent notions of citizenship). Historians will not find any gems mined from freshly discovered archives, but they may be intrigued by the author's theoretical tools, which can be used to inform a story that is well told. Lee productively synthesizes work from political theory, sociology, and critical race studies. His fresh approach is sociological in that he follows Michael Omi and Howard Winant, who are concerned with racial ideologies and social structures. His theory is overtly political in that he strives to update and blend the insights of Hannah Arendt and Carl Schmitt on the sovereign's resort to exceptional power. And it is critical in that it incorporates the deconstructive orientation of such commentators on race matters as Derrick Bell, Michelle Alexander, and Ian Haney López.