Constitutional Interpretation in Republican and Mixed Regimes

In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods.  This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty.  In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history.   The distinctive interpretative method of republican constitutionalism is originalism:  the meaning chosen by the people when the constitution is passed binds the people at later times.

In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element.

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Originalism and the Good Constitution at the Cato Institute

Earlier this week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution.  The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center.  You can watch the video here. Roger took issue with our book from a natural rights perspective.  He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy.  But I believe that Roger is mistaken. …

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This Just In: District Court Nixes IRS Obamacare Rule

In a relatively brief, concise Order and Opinion, U.S. District Judge Ronald A. White (Eastern District, Oklahoma) has set aside a notorious IRS rule declaring that subsidies and mandates under the Affordable Care Act apply in states with federal as well as state-run health care “Exchanges.” The Order and Opinion in Pruitt v. Burwell agreed with the D.C. Circuit’s holding in Halbig v. Burwell, currently pending on en banc consideration, that the statutory language—an exchange “established by the State”—could not be read to include exchanges established by the federal government in and on behalf of the state. The District Court disagreed…

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Leaving Behind the EU: A Conversation with David Conway

with friends

The attempt by the media and the political elites of the three major political parties in the United Kingdom to heap contempt on Euroskepticism no longer possesses the same power. With the victory of the United Kingdom Independence Party in local and European Parliamentary elections, the prospect of the UK leaving the European Union is a live one. Indeed, Prime Minister David Cameron has agreed to a public referendum on this question in 2017 should the Conservatives be returned to power in 2015. I recently discussed the case for a UK exit with David Conway, a frequent contributor to this…

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Is Peter Thiel a Prophet We Can Believe In?

Allen And Company Annual Meeting Draws Top Business Leaders To Sun Valley, Idaho

It seems like everyone–but especially conservatives–is talking about Peter Thiel these days. One sees his name all over. The traditionalist conservative Intercollegiate Studies Institute has made the venture capitalist and PayPal cofounder this year’s speaker defending Western civilization. I met Peter (and sat cozily beside him for two days) at a theology conference sponsored by First Things, where he shared his quite singular interpretation of Genesis. Last December, I went to a Straussian conference on Burke and Strauss, funded, of course, by Peter Thiel.

I (and 60,00 or so others) recently got an email from Jonathan Last of the Weekly Standard, who began by saying that he often disagrees with Thiel; he thinks his praise of the innovative benefits of monopolies, for instance, applies “only in the narrowest cases.” Still, “right or wrong, or somewhere in between,” Peter’s writing is always “interesting,” and he is “one of our more important public intellectuals.” Thiel’s big claim, that “the collapse of technological progress over the last 40 years is the root of our cultural, political, and economic malaise,” is worth arguing about.

You know, it really is.

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Cooperative Federalism is the Handmaiden to the Administrative State

Texas State Flag

What does federalism have to do with the administrative state, and vice versa? Everything. Statutes typically confer authority on a federal agency (or several) in the first instance. However, practically all federal regulatory programs are “cooperative,” meaning they’re implemented by state and local officials. Entitlement programs from Medicaid to education are likewise run through states. So states will participate in the federal agencies’ process. Federalism isn’t shaped in once-in-a-generation enumerated powers cases; it’s shaped in millions of daily administrative interactions. How does that work?

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The Sounds of Allied Evasion

Ruling class pundits make much of the fact that Saudi Arabia, Qatar, the Emirates, Bahrain, and Jordan have joined the Obama administration’s campaign of bombing the Islamic State. Also noted by the same talking heads is that some 5,000 so-called moderate Syrians are being trained to fight against Islamic State next year. Most admit the obvious: no one can imagine how these air strikes—few, against structures, mostly when these are unoccupied—can inconvenience the Islamic State seriously, never mind destroy. Yes, Sunni Arab counties have decided to take military action against the Sunni Arab Islamic State. But what is consequential about actions that have illusory consequences? What explains our government’s pretense that an alliance to accomplish un-consequential things is itself consequential?

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There’s No Such Thing as a Constitutional Free Lunch

Constitutions are supposed to create a framework of good government that cannot be easily upended. As Justice David Brewer remarked, the Constitution is supposed to protect “Peter sober from Peter drunk.” Or to use the canonical analogy from classical literature, a good constitution functions like the ropes that prevent Ulysses from throwing himself into the sea in response to the sirens’ call.

Frequently, however, the United States Constitution is criticized for its inability to accommodate the current preferences of the people.

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The Truth is Marching On

The universal human rights régime, under which we live, originated in response to the racial and other atrocities committed by Nazi Germany and its allies. The architects of the post-War system intended to institutionalize the liberal and egalitarian vision that had animated the Allied war effort. Drawing from the constitutional practices of liberal Western societies, they placed the rights-bearing individual at the center of the new global order.  They thus refashioned the pre-War states system in four major ways.

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Another Genius Who Was a Poor Student

I am presently reading this biography of Friedrich Hayek by Alan Ebenstein.  The book is not an intellectual biography, but more focused on the events of Hayek’s life – which is where I have biggest gaps in my knowledge of Hayek. One interesting aspect of Hayek’s early years, that I had not known, is that he was a poor student.  Ebenstein writes: He showed little interest in any subject except biology.  Once, at age fourteen, having failed Latin, Greek, and mathematics, he was required to repeat a grade. . . . He would generally “swot up in a few weeks before the…

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