Silencing Warren

(Photo by John Tlumacki/The Boston Globe via Getty Images)

Among the current body of U.S. Senators, Elizabeth Warren (D-Mass.) is certainly the intellectual favorite of many liberals in the country, and she is already being spoken of as a potential Democratic presidential candidate in 2020.  The former Harvard law school professor and consumer protection advocate has a great command of the issues, but her ideological commitments undermine her abilities, making her less effective as a legislator, and an often insufficiently decorous member of the U.S. Senate. Now that she has become a cause célèbre in the matter of Senator Jeff Sessions’ nomination to be Attorney General, the rebukes she is receiving from Republicans will come back to haunt them.

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Lord, Give Me Constitutionalism, But Not Yet

White House Washington DC behind bars

The case of Washington v. Trump—in which a panel of the Ninth Circuit expressed apparent sympathy, during Tuesday’s arguments, for a district judge’s restraining order against the President’s pause on immigration from seven Muslim-majority countries identified as terrorism threats—has less to do with an overreaching judiciary than with an underperforming Congress.

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California Secedin’

Venice Beach, California

Rumblings of secession talk in California, as in Texas a few years back, raises the question of how, if ever, a state might secede from the Union without war.

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Gorsuch’s Opposition to Chevron Speaks Well of Trump and Is a Dilemma for Democrats

Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.

And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.

A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.

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Implementing Obergefell: Who Decides the Scope of a Newly Minted Right?

The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick,[1] in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.

Under that document’s Supremacy Clause,[2] all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.

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We Want Workers, But We Must Form American Citizens

Ellis Island, New York

Gerald Russello, editor of the University Bookman, has put together a great symposium on immigration entitled Citizen, Community, and Welcoming the Stranger with pieces by Yuval Levin, Bruce Frohnen, Peter Lawler, David Azerrad, Brad Birzer, and Daniel McCarthy. Below is my contribution which is reposted with permission from the Bookman.

America’s more open approach to widespread immigration is faltering, the support for it eroded by our low-growth economy. For too many, the pie seems to be shrinking, with those at the Little Debbie level much more aware of this than those who can afford double-swirly cheesecakes. To be sure, some of the blame for the Obama era’s anemic growth can be put on aggressive regulatory policy. Obamacare increased, in effect, the tax on labor that employers must pay, with predictable responses on their part. The Federal Reserve became the largest financial intermediary in the country under the reign of quantitative easing, meaning that the central bank, and not an array of investors, has been the biggest allocator of capital. As Bastiat told us, we’re unable to see the value that wasn’t created as a result of centralized policies that squelched opportunities for growth.

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Welcoming James Rogers

rogers

I'm excited to announce that James Rogers has joined us as a regular blogger. He opens with a response to Cass Sunstein's criticisms of originalism. Rogers is no stranger to this space, having guest blogged in November and, before that, contributing other posts and reviews. His review of Ilya Somin’s Democracy and Political Ignorance is worth revisiting. Rogers has a joint faculty appointment at Texas A&M University and at the TAMU campus in Doha, Qatar. He holds a Ph.D in political science as well as a J.D. In addition to publishing numerous articles in the American Journal of Political Science, Journal of Law,…

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Sunstein’s Critique of Originalism

In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism: But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about. For example, originalism could easily lead to the following conclusions: States can ban the purchase and sale of contraceptives. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C.…

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Why Originalism?

Editing First Amendment Pencil US Constitution

In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law.”

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Gorsuch Nomination: Potentially the Best News for Originalism since 1987

With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.”   The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency:  He makes appointments (except in the trade area) that  on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.

First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential  with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory.

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