President Trump, whose reflex for pugnacity has its uses, threw a vicious and entirely fair constitutional body check when he named OMB Director Mick Mulvaney acting director of the Consumer Financial Protection Bureau. It is exactly how constitutional conflicts are supposed to be resolved: power checking power.
A commemoration of the Constitution calls for impertinent arguments. Mine is this: Our campaign-finance regime ought to be as unregulated as possible, but not for the reasons commonly supposed.
Constitutions are naturally conserving documents. Their purpose is to say what a society cannot change, or at least cannot change readily. In constitutive moments, polities lash themselves like Odysseus to the mast, not the pilot’s seat.
This is lost on those political commentators, ascendant during the NFL’s anthem controversy, who seek to press the language of the Constitution’s Preamble into the service of Progressivism. We are talking about Progressivism with a capital “P”— the strain that believes in unrelenting progress as the inherent good of man and the inevitable trajectory of events. The phrase in question is an old rhetorical favorite: the Preamble’s quest for “a more perfect union.”
Gordon Lloyd and Steve Ealy make a compelling case for liquidation, what they call “Originalism for the Living Generation,” as the most Madisonian means of settling constitutional meaning. Grounded as it is in Madisonian text and example, from The Federalist to the bank veto, the superb account Lloyd and Ealy offer is difficult to assail exegetically. But if the exegesis is airtight, the source being interpreted might still leak. Whether Madison’s account of liquidation is as persuasive as Lloyd’s and Ealy’s account of Madison requires careful attention. As they note, Madison believed the meaning of the Constitution had ultimately to be…
Gordon Lloyd and Steve Ealy provide considerable material to ponder. The gist of their argument seems to be that rather than a Progressive political culture centered on quadrennial presidential elections and a governmental system featuring a considerable policy-making authority for both the president and the Supreme Court, we ought to prefer a “Madisonian” system. While…
It is subtle, or at least ironic, to use a term—“liquidate”—that has lost its original meaning to initiate a discussion of constitutional interpretation. Today the word still has a legal usage, referring to the payment and settlement of debts. The OED finds that meaning in English publications at the time that Madison and Hamilton employed…
Demonstrators arose at last week’s American Political Science Association annual meeting with signs exhorting their fellow members to “Stand Up to Torture” by bodily turning their backs on John Yoo, late of the George W. Bush administration, who presented to two sessions on wholly unrelated topics. The protests’ premise was apparently that some views so exceed the pale that those who espouse them ought not to be given a scholarly hearing even on other topics. One might have more confidence in their judgment that Yoo—of whose views on presidential authority and the legality of torture I have been sharply critical—resides beyond that pale if the pale’s scope were not permanently shifting.
Perhaps, amid the profound divisions revealed by the national conversation over Confederate monuments, consensus could emerge over this: If their removal is justified, it should be carried out in the light of day.
If President Trump’s indefensible and equivocating response to Charlottesville demonstrates anything, it is something of which conservatives—and originalists in particular—should have needed no reminder: Words, the vessels of truth for those burdened with this mortal coil and of political life for those living in a constitutional republic, matter.
Relations with Russia may or may not be, as the President said, at an “all-time and very dangerous low”—the Cuban Missile Crisis called and wants its ominous superlatives back—but the good news is that constitutional conflict is at a recent high. Congress is acting as independently as it has in a long time, including periods of split partisan control.
Tweets are often impulsive, especially when they emanate from presidential thumbs. Their meaning should not be overburdened. But impulses can expose genuine thoughts, so the particular modifier President Trump deployed to twist the shiv in Attorney General Jeff Sessions was at least suggestive: His chief law-enforcement officer had assumed a “weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!”
Note that Sessions is being upbraided not for taking an unjust position but for taking a “weak” one. Weakness was said to be Reince Priebus’ sin, too. Some reports had the President unimpressed with the dignified, which is to say silent, position Priebus took under foul-mouthed fire from the White House Director of Communications, Anthony Scaramucci (he whose name is a lot like the Italian word for “skirmish,” and who, as of yesterday, is no longer the White House Director of Communications).