The Memory Games

The role of legal academics in the construction of our shared past

A friend of mine reached out on social media to congratulate me on the publication of my new piece, Resurrecting the Trinity of Legislative Constitutionalism, in the Yale Law Journal. We had a brief exchange over one aspect of the article that I thought was worth unpacking publicly. In Resurrecting the Trinity, I go to great lengths to explore the constitutional politics of the “Columbia Triumvirate” (Joseph P. Chamberlain, Thomas I. Parkinson, and Middleton Beaman). These men were lawyers and academics who led the effort to establish the Office of Legislative Counsel in the United States Senate and House. Unbeknownst to the legal academy, political scientists, or really anybody at all, these Offices created a powerful system for answering lawmakers constitutional and sub-constitutional questions.

Why did I do this? My article is trying to explore an institution that has been largely ignored and a practice that has been buried in a sealed archive for generations. The natures of the institution and the practice are made legible by the Columbia Triumvirate’s constitutional politics. They represented a distinct branch of Progressivism. Their most important association was with the American Association of Labor Legislation. The AALL was the fixture of the Progressive “parastate” most focused on vindicating legislative power. These folks tended to think that the problems of modernity and urbanity that were becoming especially acute in late-nineteenth and early-twentieth century America had to be remedied by “social legislation.” That legislation could only do the trick if legislatures overcame the adversarial posture of courts and asserted new powers. The procedure at the heart of my article was designed to put a finger on the scale in favor of an expansive view of Congress’s powers.

My sense is that some folks think that this emphasis in my writing might reflect a certain defensiveness about Progressivism. Over the last few years, there have been several interesting takes on Progressive (and, later, New Deal) legal and political thought. In the legal academy, the literature is led by the amazing work of Andrea Katz, Blake Emerson, and Noah Rosenblum. Blake’s book about progressive thought does, if memory serves, positions itself as a response to conservative scholarship that has cast the Progressive Era as a time when American elites came under the influence of radical and proto-authoritarian European experiments. Noah’s work makes a similar move. In one piece he argued that the New Dealers expressly turned away from the fascist model and towards the Constitution. If accepted, Noah’s work would recast the work of influential New Dealers who have long been dismissed as proto-presidentialists.

My work sits in obvious conversation with the new literature on the Progressive Era and the New Deal (I liberally cite Andrea, Blake, and Noah throughout). In my conversation with a friend, I got the impression that he suspected that my work on the Columbia Triumvirate’s constitutional politics came from a place of defensiveness. I’m not really interested in defending progressive or New Deal ideas. I’m focused on institutional history. My brain, for whatever reason, likes to think in terms of contingent institutional developments and ideas. My preoccupation is with how big things happen. I didn’t really set out to vindicate Progressivism or to sell the Columbia Triumvirate’s wares.

Part of the trouble here is describing long-dead thinkers’ views in a way that’s legible to an audience that’s living through an ongoing regime change. I suggest in the Article that the Triumvirs built an eclectic political coalition that was centered, in large part, on the need to create a sort of beachhead for the President on Capitol Hill. This is one of the major discoveries in the Article. The movement to modernize Congress was built in part by people who believed in the transformational role of the presidency. The Triumvirs were invested in the idea of the legislator-in-chief. Although we’ve long stopped any claim that the Progressivism was a coherent political movement (an “ism”), a core principle was the need for “harmony” in government. Many Progressives favored a large role for the President in legislative politics. They hoped that the President’s national perspective could help lift lawmakers out of their inherent parochialism.

This historical breakthrough has a special meaning in today’s world. The ongoing attempt at a Trumpian regime change has renewed fears about presidentialism. But in my opinion, it would be a mistake for contemporary audiences to associate the Columbia Triumvirate, or most mainstream Progressive thinkers, with modern presidentialism. Today’s presidentialism relies heavily on claims to presidential power that are inherent and constitutional in character. Progressives tended to emphasize a vision of a legally bounded presidency that depended on congressional grace. (Let’s bracket for a moment whatever was going on with Chief Justice Taft in Myers.) The Columbia Triumvirate envisioned a harmonious interdependence between Congress and the President that would allow politically ascendant reformers to enact meaningful social legislation.

For me, the point in this is not to assess blame for modern presidentialism. I have two objectives that guide my historical work. First, I’m trying to accurately describe ideas and constitutional politics to help people understand the institutional developments that are the real focus of my work. Second, I’m trying to set up broader lessons about the nature of power. Having distinguished between Progressivism and presidentialism, we might ask some really nuanced questions about how the two are related. For my money, power doesn’t stand still. Having created their legally bounded presidency, the Progressives may have established the sociological foundation that made presidentialism sellable to the American people. Again, the point here isn’t about blame. I genuinely think it’s bizarre to ask whether the generation that no real conception of modern presidential power is responsible for presidentialism. It’s more interesting to ask about the nature of power in the American system of government. To get to those interesting questions, we need to turn off the part of our brains that looks to history in a blame-shifting function.

I’m saying all of this because legal academics are participants in the construction of narrative and authority. You don’t have to be Jack Balkin or Reva Segal to understand that the legal profession generates authority through the construction and deployment of a shared past. This past helps us understand our inheritance and to make claims on the future. When the conservative legal movement advanced an understanding of the Progressive Era that emphasized its connection to lawless proto authoritarianism, its participants were demonizing aspects of modern administrative governance. Sometimes their opponents in the American legal profession have explicitly offered counter narratives to realize their own aims.

My own struggle is accepting that anyone who enters the ring of legal history, myself included, is inextricably brought into the morass of never-ending memory games. In my head, I’m doing something meta, up at one level of abstraction. I’m more interested in studying the memory game itself than being a participant. That’s the instinct that animated my work on Resurrecting the Trinity and it’s what is guiding my new draft article on executive removal.

This post is just a peek inside my head. I hope you all get a chance to read my Trinity piece. It is long, but the length reflects the many years of work I put into the project.