What I learned this week
On "punching up"
When you’re young and hungry, folks adopt their own codes to try and guide themselves. When I was fresh out of law school in 2019, I felt like an anonymous legal scholar in the wilderness. I didn’t really have any reputation, and I didn’t really expect anyone to care about what I wrote. (This is not something that really bothered me, anonymity is a blessing in many circumstances.) In interacting with the American legal academy, I thought a lot about how I should operate in the world. I settled on an approach of “punching up.” In scholarship, you invariably must do some critical engagement. I wanted to focus that part of my work upward, towards tenured faculty at fancy law schools. This was my way of making sense of my own interactions with an institution, the American legal academy, that is hierarchical down to the studs.
While I still believe in punching up, I’m increasingly conscious of the limitations of this view. For starters, you may stumble on some pockets of the academy or some adjacent communities that already embody a kind of horizontal morality. In these spaces, punching up may devolve quite quickly into a destabilizing “kill the father” dynamic that’s entirely unnecessary. Separately, if you stand on business long enough, punching up loses its helpfulness as a guiding principle. The domain of “up” shrinks as you go.
This is a long way of saying that I think I would have written a recent piece about constitutional politics a little differently than the me from two weeks ago. The piece was a specific kind of intervention. I was trying to pitch the Law & Political Economy folks on the importance of constitutional politics—specifically a vision of radical reconstruction. In writing this piece, I don’t think two very senior and influential scholars—Sabeel Rahman and Amy Kapczynski—got an entirely fair shake.
Sabeel is a scholar I greatly admire on levels both personal and professional. I met him for the first time at one of these awkward get togethers that try to put scholars and political folks in conversation. Within about the first half hour, I could sense the political people just weren’t really getting it. (This was ahead of the 2024 presidential election.) I was somewhat bombastic in disagreeing with them. (I think my points have been borne out in the many months since that meeting, but I digress.) But Sabeel is a completely different kind of operator. He was more conciliatory. Like a finesse boxer, he was busy sniffing out soft spots that could serve as the grounds of agreement and coordination. I immediately admired the guy quite a bit, even if it felt like I was the yin to his yang.
Sabeel influenced the trajectory of the piece I wrote, and I indicated as much. He has charted a turn towards a very specific view of change rooted in reconstruction politics. When I read Sabeel’s reconstruction work, it hit me like a lightning bolt. But in the piece, I wanted to push Sabeel further, along with the rest of LPE, towards a specific radical reconstruction.
One problem, I think in retrospect, is that I was insufficient in commending Sabeel’s very good insights. LPE people have a few different models or modes for thinking about change. One is nonreformist reform. The other is the idea of sites of countervailing power. Sabeel’s focus on reconstruction was a very good addition to this arsenal. It adds a different lens for thinking about how nonreformist reforms and countervailing power have to be situated within the long story of American political development. It adds a layer of historicized thinking that is frankly catnip for a guy like me.
But in failing to sufficiently commend Sabeel’s intervention and situate it within LPE thought, I wasn’t doing anyone any favors. For example, somebody could very reasonably ask whether I am saying that the reconstruction lens sits ahead of nonreformist reform and countervailing power in some kind of priority. Lost in this approach is a different way the piece could have been written that situates constitutional politics as a complimentary frame that could help make LPE projects and agenda items “stick” within an American polity that has some maddening particularities. (I basically think that within the internationalism of LPE, you have to cop to the domestic mileage of the reconstructionist frame to keep from overclaiming, something I didn’t do in my own work.)
Similarly, I don’t think Amy’s coauthored piece with Joel Michaels on a new industrial policy got a sufficient airing. The piece is brilliant. The authors put forward a new schema for understanding a new and more democratic industrial policy. The piece has a nuanced approach to state capacity that doesn’t collapse into statism. This is something I’ve long been calling for. The piece integrates the idea of countervailing power into a concrete call for new institution building by imagining an administrative apparatus that embeds different interests and communities like labor within new sites of administrative power. It’s doing moves on so many different levels that I can’t even really break them down here.
This piece was kind of the fall guy in my own work. Basically, once you bring in constitutional politics, almost any domestic LPE project at the federal level is going to run into serious problems. I could have done this to anybody, but in the spirit of punching up I chose the industrial policy piece. The piece doesn’t have anything to say about the unitary executive. That’s a problem under my lens. Even if you had a near-perfect alignment of the stars leading to the adoption of Amy’s proposals, the unitary executive is a cheat code that allows the right to come in and either smash new state-building proposals or coopt them into an authoritarian project. The point is that Amy’s rather brilliant deployment of the countervailing power idea has to exist within a broader democratic mobilization that takes constitutional politics seriously. Any big investment in state capacity has to come, as Sam Moyn intoned in a response to my work, with a theory of the state that recasts administration as in some sense belonging to Congress.
The way I wrote the piece is too dismissive of genuinely excellent work, even if the fundamental critique stands. Lost here was the relationship between the reconstruction frame and the idea of countervailing power. That idea is critically important. I didn’t mean to suggest otherwise. But I think its radical potential (same goes for non reformist reform) is magnified significantly when paired with the reconstruction lens. Doing constitutional politics is central for durability and for any reform to not be coopted by would be authoritarians.
I’m writing this all down because I want to remember what I’ve been thinking about and incorporate it into my work on a going-forward basis. Again, punching up is still a pretty good heuristic. But it’s not everything by any stretch of the imagination. As soon as it stops being prosocial within a given context or conducive to good writing, the idea should be abandoned altogether.