American Democracy Is Not Endangered by Trump

There have been many Democrats and liberals arguing that Trump is not just wrong and foolish, but a danger to democracy. Tom Ginsburg and Aziz Huq put forward a more sophisticated version, arguing that while Trump poses no danger of a coup, American democracy may face incremental erosion. But their arguments are unpersuasive as a matter of sociology and law. Moreover, they ignore, as is all too typical, the burgeoning administrative state’s danger to democracy.  And I say this as one who has substantial reservations about the President.

First, they analogize American democracy to that in Poland and Hungry, where they contend that populist authoritarian parties have degraded democracy. But United States citizens are far wealthier and that wealth provides greater stability. We are not just “fairly wealthy” but very wealthy. And these nations are still scarred by a recent totalitarian past, making their institutions less secure.

The authors also worry that the rule of law may be at risk here because of the deference that the judiciary shows the political branches. This is an odd claim, because there is an extensive literature, going under the rubric of “We the Court” that suggests that the modern courts show little deference.

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What’s Wrong with Inequality?

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Do you, the reader, own any Apple products? Are there Dell computers in your office, or at home? Have you purchased anything on Amazon in the past month?

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Do Liberals Want Conservative Nonoriginalists?

Over at the Volokh Conspiracy, Randy Barnett, as an aside, asks liberals the following question: Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause? In his U.S. Today Column, Glenn Reynolds picks up on the idea and explores various decisions that might be overturned based on a conservative living constitutionalism. Barnett’s is an…

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Are There Economic Policy Choices between “America First” and “Global Cosmopolitanism”?

Hard talks on the boat

Wages for American working men got a double whammy during the last fifty years. First, starting in the late 1960s, American women entered the paid workforce as never before. This added significantly to the supply of labor in the American workforce. Secondly, just as the American labor market had started to move beyond the economic shock of increased entry of women into the workforce, the uptick in globalization – easier mobility of capital and labor across national borders – effectively increased the supply of labor competing with U.S. workers a second time. Many of these workers were willing to work for wages significantly below wages for American workers. There are other causes as well, but these factors certainly contributed to stagnating wages for working men in the U.S. over the last 50 years.

But this is not simply a story of loss; there are tradeoffs.

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Telling the Story of the Holodomor

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In his great movies and Schindler’s List (1993) and Lincoln (2012), Steven Spielberg provided a good model for adapting tragic historic drama to celluloid. Instead of taking a sprawling subject like the Holocaust or the Civil War and trying to capture all of it, you narrowcast. Take one relatively small patch of time, such as Lincoln’s attempt to pass the Thirteenth Amendment, or a few years in the life of World War II hero Oskar Schindler, and focus on that. It sharpens the plot and suspense and intensifies the performance of the actors.

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When Moderation Is a Virtue: A Conversation with Aurelian Craiutu

faces of moderationBarry Goldwater famously told the Republican National Convention in 1964 that "extremism in the pursuit of liberty is no vice and ... moderation in the pursuit of justice is no virtue." Begging to differ is Aurelian Craiutu who joins this episode to discuss his new book, Faces of Moderation, a profound study of thinkers such as Raymond Aron, Michael Oakeshott, Isaiah Berlin, and others, who defended freedom and constitutional government against ideologues of all types.

Originalism Is Being Tried Today

Richard Primus has graciously clarified his claim about originalism. It is not that many originalists believe it has never been tried in simple sense. Instead, “in the context of my initial post, ‘never-been-tried’ is a shorthand for something like ‘not yet conducted with sufficient persistence and proficiency so as to let its record of conduct stand as a fair test of what the theory can deliver if carried into practice properly.’ ”

I don’t entirely agree with this narrower claim and I don’t think most other originalists would either, but it is a more interesting question. There are two parts to my demurral. Richard focuses on testing the question of whether originalism constrains decision makers and creating stability. Constraint and stability are not for me the chief advantages of originalism. Nor are they for such varied theorists as Randy Barnett, Keith Whittington, or Jack Balkin. And I am not sure the advantages that these theorists emphasize are reducible to an empirical test through case law. Mike Rappaport and I, for instance, have suggested that the original meaning of the Constitution is likely beneficent by other kinds of arguments. In short, there other justifications for originalism and other ways of making these justifications plausible than empirical review of cases . Originalism can be evaluated in other ways.

A more direct disagreement is that I think there has been enough practice of originalists to suggest, although not prove, that originalism does lead to substantial, albeit not perfect, constraint. Let me set aside the more distant past which was the subject of a prior post. In recent times Antonin Scalia and Clarence Thomas were the most consistent adherents of originalism and not coincidentally they agreed in about ninety percent of cases.

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Originalism and Judge Neil Gorsuch

At the annual Originalism Works in Progress Conference, I try to discuss, at the beginning of the conference, the most important events concerning originalism in the past year.  Here is an excerpt of my remarks on Supreme Court nominee Judge Neil Gorsuch: Last year, I spoke about the sad passing of Justice Scalia and whether originalism could survive it.  But what a difference a year makes!  Based on his writings, it appears that Judge Neil Gorsuch would be an originalist justice.  Some of the strongest evidence of Gorsuch’s originalism comes from his Case Western Law Review Article on Justice Scalia. That essay…

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Platonic Advice for the University Cosmopolitans

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It probably should not have been a surprise when, affirming that the attorneys general of Washington and Minnesota had legal standing to challenge the Trump administration’s executive order on immigration, the Ninth Circuit panel pointed to the international dimensions of the University of Washington’s and the University of Minnesota’s activities to argue for a “concrete and particularized injury” from the order. Especially not to me—for back in the day, and indeed for eight wonderful years, I was an international student, lending my own zestful and idiosyncratic brand of cosmopolitan diversity to students and colleagues at the University of Toronto. (If I hadn’t been there to explain Ronald Reagan to them, they never would have understood.)

The truth is that all of our great universities, in the United States and abroad—understanding “our” in a sense that will be clear soon enough—are international.

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