What Is Consent? A Reply to James R. Rogers

James R. Rogers contended in his piece, “Americans No Longer Believe in the ‘Consent of the Governed,’” that as a people we no longer believe in the consent of the governed, nor in the foundations of government noted in the Declaration of Independence.

The last general election seem to contradict those claims.

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Unleashing Arrogance, Complacency, and Mediocrity

Unleashing Demons: The Inside Story of Brexit is one of the worst books on any subject that I have read in a long time. It is a blow-by-boring-blow account of David Cameron’s referendum campaign, principally in the media of mass communication, to keep Britain in the European Union. It was written by Craig Oliver, whose job was director of politics and communications in David Cameron’s administration, a title instinct with dishonesty. At least one knows what a second-hand car salesman does. But a very bad book may, in its own way, be highly instructive, as this one is. If mediocrity can…

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The Filibuster – Meh

filibuster

Debates over government practices and processes in the U.S., like the Senate’s filibuster, typically come amidst specific disputes, such as Gorsuch’s confirmation. As a result, support or opposition to those practices or processes typically depend on whose ox is getting gored in the particular debate. Republicans last week eliminated the filibuster for Supreme Court nominees, Democrats opposed it. Democrats eliminated the filibuster for lower-court nominees and executive officers in 2013, Republicans opposed it. Given the taboo has been violated in these debates, and voters responded with little more than a yawn, I wouldn’t bet on the filibuster’s long-term continuation for ordinary legislation.

There’ll be some differences with its elimination, but I expect the overall effect will be a wash.

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The Liquid Constitution

Water

Legal historian Mary Sarah Bilder’s op-ed in the Boston Globe means to level originalism. Her effort has produced responses from Lawrence Solum and from John McGinnis and Mike Rappaport on this site. The criticisms sum to the notion that Bilder is shooting scattershot rounds at a defined scholarly target.

Bilder’s argument is that the members of the Constitutional Convention did not have “the luxury of even imagining that each and every word possessed an invariable, sacred meaning.” Who said they did?

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The New Retirement Calculus of Justices

The new politics of Supreme Court confirmations  substantially affects the retirement calculus for justices. The elimination of the filibuster for Supreme Court nominations together with the much stronger possibility that a Senate controlled by one party will not confirm a Court nomination by the President of the other will change the date of many justices’ retirements.

Three objectives inform  the retirement decisions of Supreme Court justices. First, justices would like to preserve their legacy and thus would prefer to be replaced by a justice like themselves. Second, most justices want to hand back the seat to a President of the party that appointed them. This is secondary to the first objective and when their judicial views diverge substantially from the party that appointed them, as it did in the cases of Justices Blackmun, Stevens and Souter, they will resign during the Presidency of the other party. Third, they want to resign at a time when it will not cause institutional damage to the Court or inconvenience to their colleagues.

The death of the filibuster and the possibility of a blockade generally makes it much easier to meet these objectives if the President and the Senate are controlled by the same party.  First, the blockade can leave the Court short staffed, inconveniencing their colleagues. More importantly, the standoff between the President and Senate places the Court in a partisan cross-fire, harming its legitimacy.

In contrast, the absence of a filibuster gives a free hand to the party that appointed the justice if he resigns during a period of unified control of the Senate and Presidency by that party.

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Historians and Originalists Part I: The Context of the Debate

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement. One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend…

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The Original Nuclear Option

The basic idea of the “nuclear option” in the U.S. Senate is that supermajority rules exist at the sufferance of simple majorities. Last week’s decision to use a simple majority to eliminate the Senate filibuster for Supreme Court nominees was thus not the original nuclear option. The Constitutional Convention of 1787 was.

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Judicial Activists Take On National Security

New York

Judicial activism always undermines the rule of law. Rarely, however, does it also endanger national security. Yet the federal judges who have blocked President Trump’s executive orders on immigration have done just that.

The lawlessness of the courts in question has been exposed by a group of five dissenting judges on the Ninth Circuit Court of Appeals. As these judges so ably observe, the federal district courts that ruled against the President’s policy simply ignored binding precedents—of both the Ninth Circuit and the Supreme Court—recognizing the legal authority of the President to act as he did. Moreover, these judges achieved their aim by deploying an utterly novel application of the First Amendment, holding that an executive order that does not even mention religion somehow violates the Establishment Clause.

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Why Many Universities Make Free Speech a Low Priority

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My friend Heather Mac Donald is the latest speaker to be prevented from presenting on a college campus—this time at Claremont McKenna. Heather’s talk was to show how policing saves citizens’ lives, including those of African-Americans. Heather is the one of the most eloquent speakers I know. It is outrageous that some students prevented her from speaking. But perhaps not surprising: they fear that she may persuade their fellow students that it is some of their preferred policies, not the police, that are the greater danger to minority communities.

After the suppression of Heather’s talk a Vice-President at Claremont voiced bureaucratic regret in the manner that has become familiar after similar such incidents across the country. But it is generally a mistake to believe that university administrators at these universities or many others will do what it takes to defend free speech and thus free inquiry at their institutions of learning. The best evidence of the low priority they place is that students who prevent talks are almost never disciplined, let alone expelled or prosecuted for their interference. As Robert George reminds us every day, no has yet been held accountable for the assault on Charles Murray and his host that occurred at Middlebury. No one has yet been disciplined for the recent violence at Berkeley over a speaker either.

Three reasons combine to make actual protection of free speech a low priority on colleges campuses. The first is the tendency to treat students as simple consumers rather than as participants in the university community with duties that are no less important than professors.

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God Talk and Americans’ Belief in Inalienable Rights

I posted earlier this week regarding whether Americans still believe the Declaration of Independence’s affirmation that they “consent” to laws and taxes through their legislative representatives. There may be good reasons Americans no longer believe they really consent to the laws their representatives enact, but it is a striking change from the beliefs articulated during the founding era.

In considering whether Americans still believe the Declaration of Independence, we next consider the most-well known section in the Declaration, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

There are, of course, entire books devoted to these few lines. A few observations, however. First, what is the link between there being a creator and persons being endowed with “unalienable” (or inalienable) rights?

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