New litigants challenging the rules of the administrative state will be arguing in the future to a Supreme Court that is ready to listen.
With this post I bid a very fond farewell to Law and Liberty, its brilliant mastermind Richard Reinsch, and readers and commentators, faithful and occasional, over the past near-five years. I’ll continue to contribute as the spirit and Richard’s impetuous demands may move me. But my more-or-less regular contributions end with this post. That is as it should be, and it comes at the right moment.
My engagement here has been like most of my career: wholly fortuitous, and undeservedly rewarding. Richard recruited me for the launch in the hope of giving air to a fresh, heterodox voice in a vibrant debate over liberty, originalism, and the rule of law. Or so he flattered me. My question, back then: regardless of what you want, do I get to flog my own stuff? Sure, Richard said, and he kept his word. I got to peddle my books; make fun of blowhards; mourn the death of friends and mentors; and spout Supreme Court snark.
On top of that, we have had important, serious debates on this site, among friends. Much of our collective output has addressed the Constitution, its interpretation, and the travesties that now sail under the “constitutional law” banner. My own riff, as presented in The Upside-Down Constitution and a large number of posts, is a kind of broad, non-positivist, idiosyncratic originalism—reminiscent, I hope, of the “grand style” of legal thought that dominated the Marshall Court, but perhaps too idiosyncratic to command uniform assent. (Mike, John: thanks for being such good sports!)
In going beyond the bare text and individual clauses it tries to comprehend the Constitution’s deep structure—its “genius,” as John Marshall called it. That structure presupposes and requires lots of things, such as a common law tradition; institutions that can’t be found in the Constitution but had better conform to it; and judicially supplied doctrines that make the darn thing work over the ages, which in turn requires hard-nosed thinking about institutions, political economy, and incentives. That, roughly, defines my field of vision. It provides a way of understanding how and why government—not this or that government in power, but the institutional system—has failed in matters large and small. Our federalism has turned upside-down, and has now turned executive, not just because we have misinterpreted this or that clause (although that too, is true) but because we have inverted the premises on which federalism is supposed to operate and so turned it into an engine of government growth.
The administrative state is having a grand old time because we have disaggregated a once-unified constitutional theory into a jumble of silly little doctrines (“intelligible principle,” “arbitrary and capricious”) that do not and cannot do any serious work. So we have to recover the constitutional premises and reconnect the pieces. And because the Supreme Court isn’t going to do that and the litigators aren’t going to do it, either, we have to do it, on blogs and in the law reviews and other academic venues.
Law and Liberty has grown into an essential forum for that undertaking. I am proud to have been part of the discussion. Over time, though, once-fresh voices get stale or unsuited to the times. And so, I fear, it is with mine. I don’t think my content has deteriorated over time; but the tone is off-key.
“Sarcasm,” WFB once averred, “isn’t my preferred mode of discourse. It’s my only mode of discourse.” Coming from a writer with an enormous intellectual range and facility of language, that was obviously said with a mischievous wink. But sarcasm has in fact been my only mode of discourse on this blog and beyond. I cannot write or teach any other way. My afflicted wife and children will readily testify that I cannot even talk any other way.
Sarcasm may have corresponded pretty well to the past legal-political environment and to the view of law and legal practice that I’ve been advocating in books, on this site, and in my life as an enabler of constitutional litigation. If only you can show how profoundly stupid and unlawful and corrupt the conventional wisdom actually is, then surely res ipsa loquitur and maybe we can revert to norms, constitutional and other. So I thought, or thought I had reason to think.
Wrong. Or at least, No More.
Sarcasm is parasitic on common expectations, and it presupposes that the addressee is capable of shame. (“Great job, son, your C in Algebra.”) As here relevant, sarcasm assumes a shared appreciation of a liberal political tradition, reasoned argument, and certain bourgeois conventions; and it presupposes an establishment that can be shamed for betraying those norms.
WFB had reason to believe that sarcasm might have traction. (See, God and Man at Yale.) But, Hillary Clinton? Elizabeth Warren? Bernie? The Federal Reserve? The Donald? (After the election we should install him in a Tesla. As an airbag.) Like, these people have ruined my retirement plan to write political satire in the Chris Buckley vein (tentative book title: Thank You For Groping). Now, satirize what? And I think my predicament may have begun to show. Flipping through the pieces I have posted over the years, what has struck me is not that they’ve become much darker (whose thoughts haven’t?) but how much harder they labor to say something constructive, in the only voice I have and in the teeth of a politics and an establishment that have become not just more stupid and intransigent but downright menacing.
The fear that raw power and brutal cynicism will trump or hillary or drown out all debate—especially the “shame on you” kind—is widely shared in this town, and probably the country. Downtown appellate practice groups are trying to reposition their law firms for an environment in which no case of any consequence can ever be won. Trade associations are hopping on the protectionist bandwagon. The re-marriage of state and capital is a fait accompli. Conservative and libertarian think tanks are lawyering up and reorienting not their mission, mind you, but their management—the better to play full-time defense against government audits and investigations and political lawsuits coming from a hundred sources and directions. That might also be a wise course of action for service-oriented outfits—say, the Little Sisters of the Poor, who care for and pray with lonely people in their last days. Think big, Little Sisters: your cross is to fight a government that knows no mercy. Hire gunslingers to fight back, and find a way to sanctify the time you spend in depos and lawsuit management, because that will be your job until you meet the Lord.
Contempt and the parading of evident absurdities are inadequate to the times we are now in. Folks who share the broad, generous vision of this site will have to arm and defend their infrastructure at one end and, at the other end, devote deep, serious thought to what went wrong and how to set it right. I’m no good at either, and a man’s got to know his limitations.
Richard, my man: thank you, and God bless. Your site is halfway to Heaven and a mile out of Hell; and visiting in future years, as surely I will, I’ll feel like I’m coming home. You will continue to find voices, more effective and timely than mine, to defend the stuff we care about.