A Jeffersonian Proposal for the Constitution

There are two basic approaches one can take to thinking about the United States Constitution.  One is to treat it is a given, whether that refers only to the specific document proposed and ratified in 1787-88 with subsequent textual amendments or to the body of case law developed over the past two centuries.  In any event, the lawyerly task with regard to a constitution that is treated as already existing is to engage in debates about its interpretation. 

What, for example, are the powers of the President?  One might focus on the difference in language between Article One (“all powers herein granted”) and the more laconic language of Article II (“the executive power”) or on the meaning of the Commander-in-Chief Clause; or, commonly, one might parse at length various opinions issued by the Supreme Court over the years, including, of course, Justice Jackson’s now-canonical opinion in the Steel Seizure Case, with its “three-part test” elaborating the basic structure of presidential authority.  There are, of course, literally thousands of other possible examples. 

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Tributes to James Q. Wilson

Numerous fond, appreciative tributes to the late James Q. Wilson over the past days include fine reflections by Michael Barone, Heather Higgins, Yuval Levin (linking to Wilson’s collected articles for The Public Interest and National Affairs), Harvey Mansfield, John Podhoretz (linking to Wilson’s fifty-plus pieces for Commentary), Steven Teles, and George Will.  R. Shep Melnick’s splendid review of the great man’s later essays, published awhile ago in the Claremont Review of Books, appears here.

No More Flukes

The Obama Administration has pushed the regrettable term abortifacient—a term I cannot spell without assistance and a word I dare not attempt to pronounce—into our public discourse. President Obama faces opposition that he cannot resist; he simply will not be able to win this debate, because he is attacking a fundamental liberty, enshrined as such in our Constitution and recognized as such but also believed as such by the vast majority of people. I have wondered why he would even attempt such an outrageous maneuver in any year, much less in an election year. The current rhetoric defending the birth control mandate centers on access to contraception for all women. But that’s clearly not what’s at stake.

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Patrick Charles and Kevin Francis O’Neil: Saving the Press Clause from Ruin

Patrick J. Charles and Kevin Francis O’Neil have posted Saving the Press Clause from Ruin: The Customary Origins of a ‘Free Press’ as Interface to the Present and Future (Utah Law Review, Vol. 2012, No. 3, 2012) on SSRN. Here is the abstract: Based on a close reading of original sources dating back to America's early colonial period, this article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the article critiques recent scholarship in the field and reassesses the Press Clause jurisprudence of the Supreme Court. Finally, the article describes the likely impact of its…

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Judicial Blame Avoidance, Part 2

Yesterday’s post interpreted Mass v. EPA as a Supreme Court exercise in institutional blame avoidance. Today, as threatened, a second, more incendiary example: affirmative action in higher education. With the February 21 cert grant in Fisher v. University of Texas, the question has returned to the Court; it’s worth a quick look. The precedents and their holdings are familiar. Justice Powell’s controlling opinion in Regents of the University of California v. Bakke (1978) held that universities may not use racial quotas or set-asides; however, they may use race as a “plus factor.” In the Michigan affirmative action cases, Gratz v. Bollinger…

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Diversity and the American Warrior

Seldom has an American president so enthusiastically embraced a public policy doctrine than President Obama has the doctrine that diversity benefits groups possessing it. Last August, he began an Executive Order ‘establishing a coordinated government-wide initiative to promote diversity and inclusion in the federal workplace’ by declaring:

‘Our Nation derives strength from the diversity of its population…’

That from which the American nation has derived its strength is not its diversity in terms of race, creed, color, religion, gender and sexual orientation, but in equality under the law, which permits the magnitude and diversity of the skills and talents of its members to be employed usefully.

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Seminars for Graduate and Law Students at the Witherspoon Institute’s Simon Center

The Witherspoon Institute’s Simon Center on Religion and the Constitution is offering two seminars this summer for early-career faculty, and for graduate and law students. Church and State: Religion in the Young American Republic This seminar, held on the campus of the Princeton Theological Seminary from July 29 to August 4, 2012, will explore the interaction of religion and political life in the early American republic, from colonial and revolutionary times to the early nineteenth century, employing primary sources and emphasizing theological perspectives as well as political and legal ones.  Many of the readings will be in drawn from Dreisbach and Hall’s…

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Mass v. EPA Reconsidered: Our Duplicitous Court

Among the Supreme Court’s most lamentable habits is a lack of candor in cases of grave political, economic, and social import.

By “lack of candor,” I don’t mean the shading or the strategic deployment of legal arguments. That comes with the constitutional territory, and we have tolerably efficient social practices—the publicity of judicial opinions, a watchful and disputatious legal profession—to flush out mistakes and misconduct. What I mean is (1) a deliberate judicial attempt to recruit political institutions (Congress, states, lower courts) into bringing about desired social outcomes, coupled with (2) an ex ante maneuver to evade responsibility for an anticipated adverse result.

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Exciting Announcement from the Claremont Institute

The Claremont Institute recently launched the Center for the Jurisprudence of Natural Law .  The Project is being led by Hadley Arkes, who has intervened in this space a few times. The Center will be leading with a conference later this year that will more fully explore the connections between the Constitution and natural law reasoning. I hope you make this site's contents part of your reading. For starters, here is an opening piece by Arkes entitled "Turning the Tables on Obamacare: Returning to Natural Rights."   Enjoy!

The Constitution of Liberty and Law, Legislation, and Liberty

Yesterday, I posted on people's preferences for Capitalism and Freedom versus Free to Choose.  I also noted that one's preference may turn on which book one read first. The same issues of preference and timing arises with Hayek's two great works -- The Constitution of Liberty and Law, Legislation, and Liberty (LL&L).  For me, the better work is The Constitution of Liberty, and not surprisingly I read it first.  (In fact, I read it in that critical period of 1977-1978 when I was becoming persuaded of libertarian ideas. )  So my preference for it may reflect what I called in my…

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