Review of Legacies of Losing in American Politics, by Jeffrey K. Tulis and Nicole Mellow

Chicago: University of Chicago Press, 2018 

Jeffrey Tulis and Nicole Mellow have written a great book that should be added to the short list of essential works on U.S. constitutional development. Their interlocutors are Walter Dean Burnham (on critical elections), Bruce Ackerman (on constitutional moments), and perhaps indirectly Stephen Skowronek (on the succession of president-driven regimes). Those authors focus on how political leaders win elections and transform politics by enacting distinctive policies, creating new institutions of governance, and articulating visions of what government should do. As the title of their book says, Tulis and Mellow focus on politicians who lose their battles—decisively, massively—in the short run but who create the conditions for eventual success, again along the dimensions of policy-promotion, institution-creation, and ideology-articulation. 

Tulis and Mellow provide a theoretical framework both derived from and supported by an examination of three major examples of decisive defeats in U.S. constitutional politics—the Anti-Federalists’ failure to block the Constitution’s adoption, Andrew Johnson’s failure to immediately implement a regime of white domination in the post-Civil War South, and Barry Goldwater’s loss to Lyndon Johnson in 1964.  

Tulis and Mellow contend that these examples exhaust the list of candidates for transformative losers, just as Ackerman contends that he has identified the only three constitutional moments in U.S. constitutional history. And, as critics have suggested in connection with Ackerman’s claim, a reader might wonder about the possibility that there are other similar though not quite identical losers. That suggestion isn’t available in connection with Burnham and Skowronek, who describe more than three critical elections and president-driven regimes. For reasons that are central to their argument, Tulis and Mellow are especially concerned to reject Skowronek’s version, contending instead that there has been only one constitutional regime in U.S. history, as they define "regime." 

Tulis and Mellow state their argument early: “Rather than a narrative of liberal constitutional progress, we offer an interpretation of a braided developmental process in which liberal constitutional moments are entwined with constitutional antimoments that sustain and ingrain illiberalisms or ascriptive hierarchies” (6). The reference to ascriptive hierarchies signals Tulis and Mellow’s debt to Rogers Smith’s identification of “multiple traditions” in U.S. constitutional practice and thought.  

Later they add a central point, that the “braiding” is “layered on top of the Constitution’s [political] logic” (150). That logic is this: The Constitution is not “only an arrangement of offices and powers”; rather, it is the vehicle for an entire array of “economic, social, and cultural spheres” (144). The key point here is that their account treats the constitutional regime established by the Constitution—the entire array of the spheres of governance, economy, and culture—as persisting even as we have experienced constitutional moments and antimoments. Winners and losers-to-become-winners all accept the political logic of the commercial republic, a term that Tulis and Mellow use. I find the most powerful articulation of the Tulis-Mellow account of the Constitution’s political logic in this expansive sense in Stephen Elkin’s Reconstructing the Commercial Republic: Constitutional Design After Madison (2006). Because of the enduring commitment to the Constitution’s political logic, Tulis and Mellow properly treat their account as supplementing rather than replacing the accounts offered by the interlocutors I noted at the outset—and as engaging with and supplementing as well another set of interlocutors (Smith, Theodore Lowi, and Louis Hartz). 

Tulis and Mellow identify the mechanisms by which losers become winners. They argue that the very features that contribute to losses become the engines for later successes, thereby offering a “mode[] of agency” for losers (11). They are not merely people who get steamrolled by history, but politicians devising and then acting upon strategies that, in their view, will lead to victory. As an anecdote the authors report has it, politicians always think that winning is better than losing, and in the moment these politicians hope they will win. Their strategies nonetheless lay the foundation for future success in the event they lose. 

Tulis and Mellow draw the mechanisms from their case studies. The Anti-Federalists devised a “politics of appropriation” (25). The Anti-Federalists argued forcefully—and correctly—that those supporting the proposed Constitution expected that it would create a national government with expansive power, not always to be exercised, in the service of the commercial republic. Federalists responded with a confession and avoidance (and, though Tulis and Mellow do not say so, the fact that there is an established legal term of art for this rhetorical strategy is significant). In one register they acknowledged, yes, that was precisely their plan. In another register, though, they derided the charges as feverish fantasies, wildly overstating what the proposed Constitution would do. The politics of appropriation consists of taking the “avoidance”—“don’t be ridiculous”—seriously and using it as the basis for putting in place the vision of the Constitution the Anti-Federalists favored. Tulis and Mellow use recent conservative Supreme Court decisions to illustrate the success of the politics of appropriation: Justices quote portions of the Federalist Papers where Publius discounts Anti-Federalist fears to show that even the proposed Constitution’s supporters weren’t willing to acknowledge the scope of the powers they were conferring on the national government.  

Andrew Johnson developed “a strategy of obstruction, preemption, and ideological revision” (23), rejecting the possibilities, which were real, of compromise and moderation of schemes for radical transformation of the South after the Civil War. He used his powers as president to implement his version of limited “reconstruction,” and did what he could to prevent Republicans in Congress from advancing their agenda. Note one important difference between the Anti-Federalists and Andrew Johnson: He had some levers of power already in his hands, which he used to preempt and obstruct; the Anti-Federalists had “only” rhetoric with which to develop their ideological vision. 

Finally, Barry Goldwater practiced a “politics of integrity” (24), captured in his famous statement, “Extremism in the defense of liberty is no vice…and…moderation in the pursuit of justice is no virtue.” The politics of integrity positioned itself against existing practices by politicians who waffled (in the view of Goldwater’s supporters) and against a political order that rewarded waffling. Further, and perhaps more important, facing opposition from the Republican establishment Goldwater’s supporters established a network of extra-party institutions to promote his candidacy. 

All this is powerful and illuminating. On the most mundane level, it provides a valuable supplement to Skowronek’s account. For Skowronek there are always potential challengers to the regime-in-place (as noted, Tulis and Mellow prefer using some other term), but a challenger succeeds when a president-led regime exhausts itself because of the rhythms of political time and the aspirations and actions of politicians who come after a transformative president. The successful challenger takes advantage of political time by articulating an alternative to the vision-in-place. But, on Skowronek’s account that alternative could be almost anything as long as it differed substantially from the vision-in-place. Tulis and Mellow offer a different account: The challenger pursues the legacy of the loser who the transformative president defeated. Note, though, that the fit this posits between Skowronek and Tulis and Mellow is awkward because he argues that there have been several president-led transformations whereas they argue that there have been only three anti-moments. 

Reading Legacies of Losing inevitably leads one to think about contemporary analogues. Tulis and Mellow refer to some studies of the extra-party institutions Goldwater’s supporters created; we now have several valuable studies on the construction of a group of such institutions specifically focusing on extra-party support for conservative constitutional thought (by Steven TelesAmanda Hollis-Brusky, and Ken Kersch). On the politics of preemption and obstruction, Donald Trump and Mitch McConnell come to mind. And strong partisans today counsel against the strategy of confession and avoidance—“No, Democrats aren’t socialists; just look at the capitalist elements of the programs we’re proposing”—precisely to limit the effectiveness of the politics of appropriation. It would be a mistake, though, to take this book as providing a check-list for losers (or those who would like to defeat them more enduringly), as some have done in thinking about the implications of Skowronek’s work for contemporary politics. As Tulis and Mellow know, and by inference stress throughout the book, the actual conduct of politics is incredibly fluid and pervaded by contingencies. 

As with any great work, this one provokes questions about its argument. Tulis and Mellow anticipate one. The metaphor of braiding suggests that there are two (or more) independent strands that have some sort of internal integrity: There’s a liberal strand and an ascriptive strand, for example (the precise characterizations don’t matter, but the idea of internal integrity does). Yet, when we look at historical examples in detail we always find ascriptive elements within the liberal strand, and liberal elements within the ascriptive one (for the former, think of the difficulties early-twentieth century Progressives had with the questions of race and rights). Tulis and Mellow acknowledge that the “traditions are not coherent” because “each borrows from, and interacts with, the other” (150, 154-55). As positivist social scientists would say, this is a prescription for non-falsifiability: Everything that that doesn’t fit the account can be attributed to the lack of internal coherence. For myself, I find this sounding no more than a caution not to take the metaphor of braided strands too literally, and to look for what we might call dominant and subordinate themes in what winners and losers each have to say. 

Another question is suggested by Chapter Four’s title, “New Deal: Barry Goldwater’s Politics of Integrity.” Here the timing seems quite a bit off. I hope it is not too snarky to observe that Barry Goldwater lost to Lyndon Johnson, not Franklin Delano Roosevelt. Perhaps the argument is that LBJ’s program brought the New Deal to its highest point—but just as it was about to collapse, something like the “one-hoss shay,” for reasons Skowronek describes. 

Were we to focus on Roosevelt and the New Deal, we might want to think about FDR’s attacks on “Martin, Barton, and Fish” and—particularly in connection with Tulis and Mellow’s account of the politics of appropriation—Roosevelt’s statement during the 1936 campaign, “Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me—and I welcome their hatred” (emphasis added). My thought here is that the actual New Deal stands as something of an anomaly in Tulis and Mellow’s account because, as they of course agree, the institutions, policies, and vision put in place by the New Deal have never fully succumbed to the programs and the like offered by the losers during the New Deal itself. 

That in itself may be an important datum, consistent of course with Tulis and Mellow’s ideas about the Constitution’s political logic. That logic means, I think, that U.S. constitutional development experiences something like a one-way ratchet whose teeth occasionally slip a cog or two or more. Tulis and Mellow’s version of the point comes in their brief treatment of Medicare and Obamacare: “Modern heirs to the Anti-Federalists suggest that governmental centralization of medical care (such as Obamacare) is contrary to the Constitution; at the same time they criticize any innovation that would ‘take away’ or cut back an existing program of centralized medical provision, such as Medicare” (67). There is not, as Richard J. Ellis suggests in his review of Legacies of Losing, an anti-statist default to which policy always reverts—or at least what counts as anti-statism loses content over time. 

What might be added to the argument were we to take Johnson as the winner over Goldwater? On standard accounts Johnson was forced to withdraw from the 1968 presidential race because of the political consequences of his commitments to Vietnam and his unwillingness to sacrifice Great Society programs to finance that war. Those accounts help us see a lacuna in Tulis and Mellow’s work. Their book deals with domestic affairs almost exclusively, with essentially nothing about foreign affairs or even about U.S. expansionism within the territory that is now the United States, which would draw into view the ways in which the U.S. government has interacted with both indigenous Americans and people within former Spanish colonies. 

In a sense, though, they might deal with those matters indirectly, with their references to the ascriptive tradition. Here the “incoherence” of the separate strands might come to the fore. Winners and losers have all adhered to a white supremacist version of ascriptive hierarchy (with the obvious exception of Barack Obama). Tulis and Mellow write, “We have no ‘ascriptive’ or aristocratic party in the United States” (163). True enough if they mean, “No party that takes as its animating ideology an account of hierarchy across all domains of social life (as some conservative European parties do),” but not so obviously true if we consider a single white supremacist hierarchy. Put another way, Tulis and Mellow (and Smith, on whom they draw) may be mistakenly inflating white racism, a specific form of ascriptive hierarchy, into a more generally and less accurately described ascriptive ideology. 

Indeed, one might offer an alternate account of the ideologies associated with the losers Tulis and Mellow write about. Many Anti-Federalists were concerned, narrowly, about the threat a consolidated national government might pose to Southern slavery and, more broadly, about the threat that a commercial republic would replace their idealized agrarian society. Little needs to be said about Andrew Johnson’s racism; he preempted and obstructed with the goal of producing white supremacy in the post-Civil War South (and North). Tulis and Mellow discuss the way in which Goldwater’s institutional innovations were transformed by Republican Party operatives into a Southern Strategy capitalizing on white racism. 

The transformation of losers into winners, that is, might be as much a testament to the enduring power of white racism as it is to losers’ political agency (except insofar as that agency had racism built into it). So, it seems appropriate that Tulis and Mellow conclude the book with an extended discussion of Frederick Douglass’s vision of the U.S. constitutional project, in which racism constructs the ugly scaffolding that that project is committed to removing. Isn’t it pretty to think so? 


Posted on 14 August 2019

MARK TUSHNET is William Nelson Cromwell Professor of Law at Harvard Law School.