In Rekindling Constitutional Ambition, his recent post for Law and Liberty, Yuval Levin offered some particularly helpful insights for thinking through our constitutional problems. As Levin points out, friends of the Constitution are currently in a period of uncertainty about what goals they should be aiming for, even apart from the usual confusion over how to achieve their goals. Some friends of the Constitution argue that the election of Donald Trump to the presidency would allow for a revival (such as the writers at the Journal of American Greatness blog), while others (such as the signers of the Originalists against Trump statement) argue that it would undermine obedience to the Constitution as that document was originally intended.
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.
Beginning pre-Brexit and ending post-Turkey coup, the Frankfurter Allgemeine Zeitung published a series of articles under the heading, Zerfaellt Europa? (Is Europe Crumbling?). Interesting stuff. Naturally it’s all in German and that be difficult speak. I’ll supply links upon request but you’ll have to trust my summaries and translations. Or ignore this and the next post.
Jointly and severally, the articles—authored for the most part by past and present politicians—suggest several conclusions. First, the idea that there might be something wrong with the EU that can’t be fixed with the demand for “more Europe” and “ever closer union” has begun to occur to responsible politicians. Good.
I sure hope the Brits vote “Leave” on June 23. That would be the first thing to go right in global politics this year.
At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”
This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.
The Rosenkranz Debate concerned the truth of John Adams’ quotation: The Constitution is designed for a moral and religious people and it’s wholly unfitted for the government any other. My friend, Professor Robert George, relied primarily on George Washington’s Farewell Address for historical evidence. There Washington, like Adams, claimed religion was important, if not essential, to sustaining the Republic. For instance, Washington famously said, “Let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
But Washington’s Farewell Address provides an uncertain guide as to whether the Framers of the Constitution thought widespread religious belief necessary to sustain it. As I noted in my opening remarks at the debate, the text of the Constitution does not support this view. It does not establish any particular religion or even require belief in a religion of one’s choice. It instead expressly prohibits all religious tests for offices under the United State Constitution.
Moreover, it is dangerous to rely too much on the words of politicians in political strife to establish much about the Constitution. And as great as George Washington was he was still a politician, and as powerfully stated is his Farewell address, it is in large measure a document reflecting the principles of the Federalist party. His remarks on religion parallel one of key attacks of the Federalists on the Democratic Republicans–that they were deists, like the dreaded French Revolutionaries, or at least no friends of traditional religion.
At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:
John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.
Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest. The constitutional structure thus maintains itself and does not necessarily depend on any religious system.
Randy Barnett and Ed Whelan have revived the supremacy debate in the wake of the Chief Justice’s opinions in King and Obergefell, with Barnett arguing most recently that judges should be guided by the “constraint” of the text rather than “deference,” both of which he classifies as forms of restraint. Much commends that notion, and the distinction is analytically useful. But in the course of embracing a particular strain of originalism, it finds itself in tension with the original understanding of the judges’ role. Barnett’s standard for judicial nominees is a “proven record of willingness to be constrained by the original…