Crouching Congress, Hidden Judges

US Capitol Building, Washington DC

One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…

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The Unconstitutionality of Prohibiting Faithless Electors

Recently, there has been a bit of an originalist debate about the issue of the “faithless elector.”  David Post argues that “the original intent of the Constitution, supported by its text and overall structure, not only permits but also ‘requires’ presidential electors to exercise ‘discretion and independent judgment’ in casting their ballots.  Mike Ramsey responds that the original meaning of the constitutional text – both the original Constitution and the 12th Amendment – allows the states to select electors “based on the electors' advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.” I…

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Democracy Is Endangered More by the Size of Government Than by Republicans

deutsche Gesetze

In an op-ed in the New York Times, two Harvard political scientist professors, Steven Levitsky and Daniel Ziblatt, have sounded the alarm about democracy in America. It is in danger they say mostly because democratic institutions are no longer backed up by the “guardrails of democracy”—deep norms of “partisan self-restraint and fair play.” Sadly, their analysis of the decline of these norms is itself both partisan and shallow. It is partisan because they note only Republican breaches of such norms, when Democrats have engaged in breaches as well. Its shallowness in turn comes from their partisanship. They blame a particular political party rather changes in the nature of our polity, like the growth in the power of government and decline of federalism.

The partisanship of Levitsky and Ziblatt is striking. They claim that one of the informal norms is that legislative votes about matters of “extraordinary importance,” like impeachments, be bipartisan and Clinton’s impeachment by Republicans was not. But the only previous impeachment of the President—that of Andrew Johnson—was also a party-line vote. The norm that creating new entitlements—also actions of extraordinary importance—should be bipartisan, however, is a much more established one: Social Security, Medicare and Medicaid all had bipartisan support. Yet President Obama enacted the Affordable Care Act without the support of even one moderate Republican such as Senator Susan Collins of Maine.

These Harvard professors decry the failure to vote on Merrick Garland, which they characterize in hyperbolic terms as “stealing” a Supreme Court seat.

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Camelot’s Punitive Liberalism


Jackie, which tells the story of Jacqueline Kennedy and the immediate aftermath of President Kennedy’s assassination, is a moving and socially important film. It’s about grief, but also about how a pliant press allowed a grieving widow to create a powerful myth that was related to reality, but only tenuously. It’s about the media willingly succumbing to manipulation.

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George Washington, American


In my “Age of Washington” class the other day, I stumbled over the start of his Last Will and Testament.  I regard the will as a partly public and partly private document—the last of his great “farewells,” including his farewell to the Virginia Regiment in 1759, his last Circular to the States in 1783, and, of course, his Presidential Farewell Address of 1796.

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American Heresies and the Betrayal of the National Interest: A Conversation with Walter McDougall

tragedyWhat is American civil religion? And has it been distorted to the extent that it has undermined our nation's foreign policy? The eminent historian and scholar Walter McDougall, author of the new book, The Tragedy of U.S. Foreign Policy, joins this edition of Liberty Law Talk to discuss these questions.

Using Left Wing Institutions for Right Wing Purposes

While I am often critical of the left, there is one area where one must admire their accomplishments: the left is extremely good at designing institutions that promote their agenda.  In fact, some of these ideas have been so good that the right has copied them, with success. One traditional area where the left has promoted its agenda is through “public interest” law firms.  The various law firms, such as the ACLU, bring lawsuits that have had enormous impact.  Over time, the right has formed its own law firms which have also had significant effects. Another area where the left has been…

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Do You Believe in the Judicial Supremacy of Dead Justices?

Wooden Judges Gavel And Old Law Books On Wooden Background

Randy Barnett recently had a great line on Twitter accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?

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Stumbling Toward a Compromise

rugby scrum

“If you want to understand why evangelicals could vote for someone of Trump’s morals,” Megan McArdle suggested, read Harvard Law professor Mark Tushnet’s “Abandoning Defensive Crouch Liberal Constitutionalism.”

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Why Are Non-Originalist Professors Ignoring Non-Originalist Arguments for Binding Electors?

Larry Lessig, Geoff Stone, and other law professors have called for the electors on the Trump slate to abandon him and so throw the election into the House of Representatives. They argue that the electors have this constitutional right even in the face of state statutes that forbid them from doing so, because the Framers gave electors the power of discretionary selection. They are empowered to use their own judgement and are not tied to the views of those who selected them.

I agree that electors have the constitutional right to vote for whomever they choose for the reasons that my friend Robert Delahunty brilliantly provides in a recent essay. I do not agree, however, that it would be prudent to do so. Indeed, if the objective is to prevent a Trump presidency, the exercise is a pointless one. Republicans control 31 state delegations in the House and almost every Republican member from those states comes from a district Trump won. It is inconceivable that there would be a House majority for anyone else, particularly so late in the transition process. Indeed, a cynic might conclude that the objective of throwing it to the House is to draw out the acrimony over the election, make Trump less legitimate, and yoke House Republicans more closely to his presidency in case of its failure.

And, unlike Delahunty, those who are arguing for the discretion of electors are generally not originalists. And this raises questions about the consistency and neutrality of their jurisprudence. Living constitutional, historical practice, and pragmatic arguments all cut against permitting electors the discretion that the original meaning confers.

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