[Note to readers: These were the closing remarks to my law students earlier today.]
Each semester, when I finish teaching Constitutional Law I: Structure and Governance, and Constitutional Law II: Individual Rights, I end with a closing spiel. The topics have varied, often reflecting what I happen to be focused on at the moment that seems to relate to the subject at hand. Among other themes, I’ve explored the happiness literature, offered advice to rising lawyers, considered the implications of insights on midlife for students with quite a ways to go, and considered the meaning and implications of civility norms in troubled times.
Most of you know that for some time, I have had my own blog, which is called blindspot. The blog’s conceit is that having been teaching Constitutional Law and Law and Economics for many years, and having spent half my career at George Mason Law School, widely associated with conservatism and libertarianism, and the other half here, widely associated with liberalism and progressivism, I have honed a capacity to see blindspots often missed on both sides of the ideological spectrum. If you haven’t visited it, my blog’s homepage features my car’s side view mirror with a flashing light. Yes, I waited for this to occur before videotaping. The flashing light symbolizes oncoming threats that we too often miss as a consequence of our natural and inherent limitations. Being alerted to them is healthy, even wise.
Early on, a thoughtful reader asked if I might post about my own blindspots. I don’t recall my response; I do recall struggling. This wasn’t, I hope, due to arrogance. The irony is the challenge in seeing one’s own blindspots! Three years later, mine have come into sharper relief. In my many years of teaching, writing, and blogging, I have not fully appreciated the frustration, even anger, people experience when advised that various forms of electoral protest, such as voting third party or declining to vote at all, are against their interest and the interests of society.
Four years ago, following the 2016 election, I invited this same class to discuss the outcome, which had shocked the nation and the world. I offered to consolidate two hours of material into a one-hour lecture, moderating a conversation in the second hour. Almost unanimously the class voted for the discussion. When I put this class to the same choice earlier this month, just shy of twenty percent declined. As I said I would, I deferred to what I regarded as a substantial minority. I believe that was the right call. I don’t know why the 20% voted as they did. Some may have supported Donald Trump and been concerned about expressing their views or feeling silenced, anticipating that the vast majority of the class voted Biden. Others, regardless of whom you voted for, may have experienced election fatigue. In a sense it didn’t matter why. Those wishing to limit class coverage to the assigned materials are worthy of respect.
Here’s what I do know. On January 6, 2020, it was reported that Alexandria Occasio-Cortez, a woman whose politics I do not share, stated: “In any other country, Joe Biden and I would not be in the same party.” She’s right. This also is true: In any other country, very many conservatives and libertarians, including many who voted for Donald Trump in 2016 or 2020, would not have been in the same party as Trump.
With some basic modeling, it’s relatively easy to prove that our method of presidential selection forces a two-party system, producing the result that third party votes, or failing to vote, is often against the ideological interests of voters making those choices. I’ve pointed this out many times; that’s not a personal blindspot. Instead, my blindspot has been failing to appreciate how much anger is pent up as a result of a system foisting upon voters that choice. I imagine being told one’s planned, or actual, vote is against interest is rather like being told to calm down in the midst of a heated exchange. The admonition, however well intended, frustrates by imagining the pent up anger will simply disappear. My blindspot was failing to recognize that such admonitions, election cycle upon election cycle, produce a festering societal anger, one that, as the last two election cycles have shown, is almost always at the verge of boiling over. Counter intuitively, perhaps, the very challenges and delays in calling the 2020 outcome might have been ameliorative, dissipating much of that anger simply by wearing people out. But that fortuity isn’t a structural fix to the deeper pathology.
There’s no point pretending to hide my support for Joe Biden and Kamala Harris. It is worth mentioning one reason I spent considerable time over the past few years in sometimes intense debates with conservatives and libertarians. I’ve argued again and again that for me this really was never about conventional left-right politics. Whatever one’s ideology, I maintained, it’s vital to restore the essential political spectrum so that we can all, at a more granular level, tackle critical policy issues, unobstructed by the noise and anger of rising populism right and left. Disagreements are greater and more intense the higher the level of abstraction; policy accommodations become possible only when we at least agree on what it is we’re arguing about. Biden did win, but what exactly?
Imagine this. Biden secured a popular vote margin of 5-6 million of 155 million votes cast, and he secured 306 of the 270 electoral college votes needed to prevail. This was the same electoral college margin that Donald Trump secured in 2016, although in that race, Hillary Clinton secured approximately three million more popular votes out of approximately 129 million votes cast.
Is the Biden win likely to restore the normalcy as I had advocated? Or is it yet another datum proving how broken our system is and, how, inevitably, it is prone to pent up frustration, even rage?
Consider this: If fewer than 200,000 Donald Trump voters from a state that Trump decisively lost, say California, had relocated, to three swing states, for example, Arizona, Georgia, and Minnesota, Trump would have won. Think about that. In an election with over 155 million votes cast, and without changing a single vote, simply by moving fewer than 200,000 voters, voters making the identical choices at the polls as between Biden and Trump, Trump would have won. And this is despite a comparable popular vote margin in percentage terms to 2016, producing an electoral college result coming out the other way. And yes, we can play the flipside game, moving not very many people around to change the electoral college outcome in 2016 to favor Hillary Clinton.
I suppose another personal blindspot has resulted from a disinclination to see, and thus to call out, just how broken our system is. It’s broken because for it to function, we have to suppress genuine voter anger, even rage, again and again to avoid results that each side increasingly regards an existential threat. It’s broken because outcomes that critically matter to virtually every aspect of our lives and to our safety and well-being here and around the globe, are made to turn on absurd fortuities. This includes, most notably, where particular voters—in the smallest-of-margin battleground states—happen to live. Rather than being a beacon to the world demonstrating the value of democratic governance, our system has proven itself over and over again anti-democratic, a model of what not to do.
I’ve been teaching constitutional law since 1992. I love what I do, and I hope that shows. But loving what I do does not mean loving the materials I teach. Instead, it has to mean being willing to challenge students to see the system completely, including its profound flaws. It has to mean helping expose our blindspots.
You are becoming lawyers at the most interesting time in modern history. Last week, you might recall, I told you what distinguishes great from competent lawyers isn’t LSAT scores, GPAs, or where you happened to study law. Rather, it is about your willingness to be relentless, to constantly think critically and deeply, and to avoid taking the materials you read at face value. It’s about looking, always, for what lies beneath, which can only come from asking why things appear as they do, but not assuming, for example, that a Supreme Court opinion is going to explain that to you. The hard work comes from careful thinking and analysis as, and after, you read the case.
This brings together our system of voting and the bodies of constitutional doctrine we’ve studied together, for some of you just this term, and for others a full year. One reason presidential politics matters so deeply is because of what constitutional law is. It is both a body of substantive rules and a set of framings that governs the permissible bounds of virtually all other domains of positive law. Constitutional law governs, constitutes if you will, how other bodies of law can, and cannot, be made. It is foundational in a genuine sense to the rest of our lawmaking system, federal, state, and local. When a Supreme Court nominee is advanced, the stakes often seem unacceptably high. And that’s likely true.
I have no easy answers. I plan to focus a lot of my time and energy thinking about ways to improve our democracy. Ultimately all of you, the next generation of rising lawyers, are going to confront, remarkably early on in your careers, foundational questions that earlier generations of lawyers, lawyers like me, too often assumed away or took for granted. You are entering this profession in a period of remarkable flux. And you are going to be forced, again and again, to make sure you see, better than we did, the oncoming threats. You will better lawyers—great lawyers—if you keep your eyes open, watch out for your own blindspots, and try, as best you can, to appreciate each other’s frustrations.
[With special thanks to Bob Condlin. It has become my tradition to ask for his early reading and commentary of my end of semester remarks. With characteristic wisdom and insight, he never disappoints.]