The Distinction Between Constitutional Law and Constitutive Traditions

Last week, I had the pleasure of participating in the Tradition Project run by Mark Movsesian and Marc DeGirolami of St. John’s Law School. The subject of this year’s conference was tradition in law and politics. One of the high points for me was the opportunity to read Harry Jaffa. He turned out to be a very interesting thinker. But I found that his famous claim that the Declaration of Independence has a constitutional status weakly defended. In particular, he fails to distinguish between positive constitutional law and constitutive traditions—a distinction that I think central to political life in a constitutional republic.

The Declaration of Independence is not positive law. It is instead a declaration of the reasons that the colonies were breaking with Great Britain. Courts do not enforce it as law. While other officials reference the Declaration on occasion, they do not generally do so in a way that suggests that it represents a binding legal obligation. It would be hard to make it so, because while the Declaration announces general truths of politics, it does not impose specific legal norms. And, unlike the Constitution, it was not ratified by the people and is not the product of a process that Mike Rappaport and I have described elsewhere as conducive to good constitutions.

While it does not create positive law, the Declaration of Independence is an important source—the most importance source— of our constitutive traditions.

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Tradition in a Scattering Time

Jean-François Millet - The Sower

What could be more amusing, quaint really, in the minds of many than meeting in New York City for two days to discuss tradition and law?

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A Society Worthy of Our Televisions

Multimedia background. Composed of many images

The best way to avoid disappointment is to have low expectations—they can almost always be met. In that sense, the Clinton-Trump debates did not disappoint. No one really expected them to be an intellectual feast. Their interest, such as it was, could be said to be more in the realm of psychology, or even of pathology, than that of ideas.

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Better Days, Really?

Any serious checks on the separation of parties and executive government, I’ve argued in my earlier post, would compel us to re-think big pieces of the constitutional and institutional architecture—stuff we haven’t thought about and that’s wholly missing from the GOP’s pedestrian “Better Way” agenda.  Herewith some examples of what that might look like. Here’s an option that ABW stumbles toward: under the German Constitution, one-third of the legislature can ask for immediate constitutional review of any piece of legislation. Why? Because Germany doesn’t have a separation of powers that permits one political branch to check the other’s transgression. It’s a…

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Removal of the Director of the Consumer Financial Protection Bureau

Recently, a three judge panel on the D.C. Circuit held in PHH Corp. v. Consumer Financial Protection Bureau, that the for cause removal provision for the director of the Consumer Financial Protection Bureau was unconstitutional. Rather than striking down the entire statute, the court struck the for cause removal provision, leaving the director subject to removal at the pleasure of the President.

The Bureau is an example of the newest philosophy in administrative governance, which the Democrats have pursued in Sarbanes Oxley, Obamacare, and the Dodd-Frank banking act. The idea is to maximize the independence of administrative agencies and to enhance their power. In terms of maximizing the independence of the Bureau, the Bureau does not answer to the President (that is what the for cause removal provision means) and it is funded through the Federal Reserve, so that the Congress cannot use its appropriations power to control the agency. The power of the agency is enhanced, because it is controlled by a single director rather than a bipartisan commission as virtually all independent agencies are. Needless to say, this new philosophy of governance is extremely problematic.

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The Original Understanding of Substantive Due Process

Justice Collage

The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.

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Rekindling Constitutional Ambition

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Whatever the outcome of this year’s election, conservatives and other friends of American constitutionalism have our work cut out for us. The Republican candidate for president has not shown much familiarity with or interest in the workings of our constitutional system. And the Democratic candidate (as usual) has evinced a desire to continue, with judicial backing, a transformation of that system—one that further enhances executive and regulatory power while weakening the powers of Congress.

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Obstacles to Raising Children: A First Time Father’s Reflections

My first year with my first born daughter has been an occasion for both personal joy and melancholy public reflection. Governments, both state and federal, created an obstacle course for raising our child. And for many other children the natural obstacles have been exacerbated by bad social norms, most particularly norms against rendering judgments about how people’s living arrangements affect children.

To begin on a happy note, however, the first year has reminded me once again of the transcendence of individual genius. The classics of children’s literature are antic marvels of cheer and cleverness. Reading the best of them allows for adult pleasures as well, because like all great works they offer different line readings and different interpretations. For instance, if one gives Sam the resonant voice of God, Green Eggs and Ham becomes a parable of reconciling man to God’s creation.

But the government has been a constant frustration, making it difficult for a working couple to comply with its laws while also providing personal care for their child. Hiring a nanny requires one to calculate social security, withholding, buy unemployment and workman’s compensation insurance, and obey various federal and state regulations. Quite apart from the absurd nature of some these laws, their intricacy defeated this lawyer from doing the compliance work himself and required the additional expense of hiring an outside service. No wonder the agencies referring nannies all told me that very few of their clients even attempt to follow the law. In this context, complexity makes the law self-defeating.

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While It Was All Just Slippin’ Away

Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss: Well my soul checked out missing as I sat listening  To the hours and minutes tickin' away Yeah just sittin' around waitin' for my life to begin While it was all just slippin' away The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed,…

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Moderately Marginalized

fantastic
Sure, as a teenager, I experimented a little—rock, but also blues, jazz, standards, alt country. Never pop—that cesspool of cheap, predictable noise shunned by all who take themselves seriously for taking music seriously.

It began as curiosity, an alienated feeling, the desire to understand. It became a temptation. The occasional trace of a melody would wriggle into my imagination. So what if I snuck away to enjoy a hot single now and then? No one had to know. But now I’ll admit it—I have two pop stations preset in the car. And I’m not ashamed.

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