Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

What Do These Two Think About the Office to Which They Aspire?

Andrew Harrer/Bloomberg via Getty Images

Presidential debates neither are nor ought to be midterm exams. The people who administer midterms do not necessarily possess political wisdom (see “Wilson, Woodrow”), and the people who excel at taking them may be better at demonstrating technical detail than prudential judgment (see above). Thus questions that make a candidate stumble—and that can win the journalistic brass ring for the moderator, namely, instigating news—tend not to be as valuable as those that prompt reflection and reveal a mind at work.

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Will Judges Debate the Layout of Shower Areas?

Paragraph Rechtsstreit

Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end. That is worth keeping in mind as the first frontal constitutional challenge to the U.S. Department of Education’s attempt to impose a one-size-fits-all approach to transgender access to intimate facilities—bathrooms, locker rooms, and showers—works its way through the courts.

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The Flight of Fancy Election

Fantasy Airship

According to Livy’s History, the Roman consul Publius Decius Mus sacrificed himself to the gods by “leap[ing] upon his horse and dash[ing] into the middle of the enemy” in a ritual that secured victory for his embattled army. One hopes the polemicist using Decius as a pseudonym in a much discussed broadside against Never Trumpers, having anonymously expressed an opinion with which somewhere north of 40 percent of Americans agree, is safe. The republic almost certainly will be.

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Reason Bounded by Experience

The Constitution by Barry Faulkner, Mural the Rotunda of the Capitol. Source: National Archives

To say legislation is not a discretely rational exercise is not to say it is positively irrational. But what of the fundamental law that is often taken to be the apex of legislative reason: the Constitution of the United States?

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The Myth of Rational Legislation

gavel

The ongoing debate between libertarian and more traditional constitutionalists is about something more fundamental than what standards of review to apply to which cases. What’s at stake in this disagreement is politics—its very survival, and in what form. Is this institution that is, or at least was, enlivened by argument among citizens to be replaced by a desiccated vision of rational claims adjudicated by courts?

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George Will, Burkean

george will

The forgotten etymology of “conservatism” lies in its hardly hidden first two syllables—to “conserve”—so when the Republican Party underwent its lurching metamorphosis from its commitments to constitutionalism, free trade, and chivalry to royalism, protectionism, and vulgarity, the news was not that George F. Will, conservative, stood still. It was that, in the terms of conservatism’s father Edmund Burke, the Republican Party may no longer constitute, properly speaking, a party at all. It is at risk of reverting to the primordial state of “faction” from which Burke rescued what he called the practice of political “connection.”

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They’re Into Masochism

US Capitol dome detail

Among its myriad other mysteries, the 2016 election presents this Madisonian puzzle: Why are so many members of Congress genuflecting before presidential nominees whose platforms include emasculating them?

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Bernie’s Avengers

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Situated at the corner of Fairfax and Wilshire in Los Angeles, the iconic Johnie’s Coffee Shop was where Mr. Pink plotted a diamond heist in Reservoir Dogs and where Walter offered to obtain The Dude a toe in The Big Lebowski. But it has never witnessed malfeasance like the villainy that has unfolded there over the last few weeks. Johnie’s has been converted into a hub of unregulated advocacy for Bernie Sanders’ presidential campaign.

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Arise, Ye Prisoners of Scalia

Businessman running to the future

The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.

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