While he does not write that much these days, Duncan Kennedy used to a big deal. Kennedy was one of the leaders of Critical Legal Studies, the far leftist group of scholars who had a significant influence in the legal academy in the 1970s and 1980s. Interestingly, CLS seemed to lose tremenous influence after the fall of the Soviet Union, raising questions about their claim to favor a different type leftism than that country.
Thanksgiving is a time to reflect on trust and to be grateful for its presence in our lives. Originally, Thanksgiving was a celebration of trust between two different peoples, the indigenous Indians and the Pilgrim settlers. Despite their different cultures and religions, they were able to trust one another enough to contribute food to a feast and sit down to dine with one another.
Today Thanksgiving is quintessentially a family celebration. At its best, it is suffused with trust because the family is a locus of trust. Because of the bonds among kin, for most of human history much commerce took place among extended families. And most of the rest of it took place between people who were known to one another. Being a repeat player who must live in a community inspires trust in others, particularly past eras when being ostracized was very costly.
But as civilization developed, communities became larger and the opportunities for gains from trade extended beyond those that could be easily satisfied by family, new institutions had to arise to police trust.
Editor’s note: The first installment of a three-part series.
The first political leader of any consequence whom I ever met (and I have not met many since) was Ian Smith, Prime Minister of the pariah state of Rhodesia, as it was then still called. I was working as a young doctor in the country, in Bulawayo, and someone said to me at a garden party, ‘Would you like to meet the Prime Minister?’
One of the important differences between American constitutional law and the constitutional law of much of Europe and of many countries throughout the world is the use of proportionality analysis outside of America. Proportionality analysis can be thought of in several ways, but it is primarily a doctrinal tool used to analyze whether an individual constitutional right can be regulated by the state. The PA analysis generally considers the following aspects: 1. Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right? 2. Are the means in service of the…
The happy paradox of constitutional federalism is that two sets of government can protect liberty better than one. This promotion of liberty depends on a federalism of different governmental spheres laid down in the Constitution itself. The Constitution enumerates and thereby limits the powers of the federal government– basically to provide national defense, protection of interstate commerce, and a few other public goods that state and local governments cannot provide.
The states are thus left with very substantial powers. But they are forced to compete with one another in market for governance that is intensified by a few federal constitutional guarantees–those of the free flow of goods, people, and speech across state lines. As the limitation of power protects against tyranny of the federal government so does the ability of citizens to exit protect against state tyranny.
Moreover, by decentralizing most legislative responsibilities constitutional federalism addresses a fact that we must never forget: federal legislation is an exercise in central planning by temporary majorities.
Editor’s note: This is a modified version of Michael Greve’s comments he delivered on a panel called “Public Interest Litigation in the Modern Era” at the Federalist Society’s 2017 Annual Lawyers Convention in Washington, D.C.
I used to be in the public interest litigation business, back in the premodern era. My comments here briefly summarize an outsider’s observations on what I think has changed in public interest law and what its role should be in the future of conservative-libertarian politics.
In addition to requiring instruction in US government and politics, Texas law requires undergraduates at state-sponsored colleges and universities to take a course “which includes consideration of the . . . constitutions of the states, with special emphasis on that of Texas.” I am pretty sure part of the department’s deliberation at Texas A&M University in favor of hiring me those many years ago touched on the fact that the statistical portion of my dissertation drew on a unique state-level data set that I developed. The main point of interest would not be the uniqueness of the data set, but rather that I dipped into state legislative records. That thin reed was sufficient to justify my habitual assignment to teach the state-mandated course in state government, a course most of the faculty in the department preferred to avoid.
President Donald J. Trump benefitted from his lack of ideological moorings. Trump has never presented himself as a principled conservative. Had he been beholden to conservative shibboleths, he would have probably lost the election. Unfortunately, this also makes him an unpredictable President, and leaves the ultimate definition of “Trumpism” up for grabs. Other people will probably define the long-term ideological orientation of Trump’s right-wing populist movement. Few people are in a stronger position to do so than Steve Bannon, Trump’s former chief strategist and current executive chairman of Breitbart News. For that reason, understanding Bannon’s political philosophy—if he ultimately has one—is…
On Thursday I spoke at a panel at the Federalist Society’s National Convention entitled: Is Everyone for Federalism Now? The title is a backhanded tribute to the President. Finally, he is bringing us together, because he has caused the liberal resistance to Trump to appreciate federalism—a cornerstone of conservative thinking about constitution! But that is actually the shallower reason for the renewed interest in possible cross- ideological agreement on America’s most famous practical contribution to governance. The deeper reason is that a whole new school of law professors has embraced federalism under the new name of “national federalism.” Two of its most distinguished adherents, Heather Gerken and Abbe Gluck, were on this panel.
Count me a skeptic, however, about the prospect of any enduring alliance. To be sure, there may be tactical and opportunistic use of federalism by those who oppose the administration: that is the nature of politics particularly in Washington where for many politicians the meaning of the Constitution changes depending on whether they are in power. And there may be a few actual areas of rapprochement: it is conceivable, for instance, that some liberals may join conservatives in opposing commandeering of state officials.
But in general there will be no intellectual convergence because the right and left’s understanding of federalism—its content, origins and purposes—is very different. The right believes that federalism derives from a text of the Constitution that limits the power of the federal government, giving different responsibilities to federal and state officials. The purpose of this distribution of power is ultimately to protect individual liberty from government.
In contrast, progressives who promote federalism support a federalism that promotes activist government and exists largely at its sufferance—almost the opposite of constitutional federalism.