Labor Law and Political Entrenchment

My new article (with Daryl Levinson) is now available from the Yale Law Journal.  The article, Political Entrenchment and Public Law, details the ways incumbents use substantive legal policy to entrench themselves in office. One of our lead case studies is labor law. We show, as one example, how white conservatives in the South during the 1940s used restrictive labor legislation to keep African Americans and low-income whites from the polls.

The abstract is here:

Abstract

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics.

The full article is here.