The Constitutional Morality of Restraint

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…

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Perfect Ten

Ten dollars isolated on white background

At long last the U.S. Department of the Treasury has taken an action for which it actually has legal authority (the 1862 Legal Tender Act): it has decided to replace Alexander Hamilton’s image on the $10 bill with the picture of a woman. After extensive consultations with stakeholders, the Department agreed that the “New 10” woman must be a Cherokee. The nod eventually went to Chief Wilma Mankiller. In a somewhat testy Senate oversight hearing, Treasury Secretary Jack Lew regretfully informed the runner-up, Ms. Elizabeth Warren, that under binding law individuals—male, female, or other—who wish to appear on U.S. currency must…

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Is the Republic Lost?

Money keep silent

When the delegates were departing the Constitutional Convention, a woman stopped Benjamin Franklin outside Independence Hall and asked the Pennsylvania delegate, “Well, Doctor, what have we got? A republic or a monarchy?” Franklin responded, “A republic, if you can keep it.”

Political journalist Jay Cost believes we didn’t. His new book, A Republic No More: Big Government and the Rise of American Political Corruption, is a highly informative and at times deeply dispiriting account of how we failed Franklin’s challenge.

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Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick

philo-publiusTo gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.

That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”

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A National Thanksgiving: President Washington and America’s National Holiday


Thanksgiving is a peculiar holiday, at least in the modern world.   Its roots are religious, and the American nation is, at least in law, secular.   Its very name speaks of thanks, or gratitude, and gratitude is an ancient virtue.  Indeed Aristotle speaks highly of it.  Even so, or perhaps for that reason, it is very American.  In his Thanksgiving address in 1922, President Coolidge called it “perhaps the most characteristic of our national observances.”   He was not wrong for, as Chesterton wrote, America is “a nation with the soul of a church,” and Abraham Lincoln called us an “almost chosen people.”

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A Sanctions Shell Game

There “is a role for Congress,” says a spokeswoman for the White House’s National Security Council, “in our Iran policy.” This is big of her, seeing as how “our” Iran policy consists largely of sanctions imposed by the legislative authority of Congress. A great deal hangs on the spokeswoman’s cavalier use of the word “our.” The suggestion is that the nation’s disposition toward other nations is a constitutional plaything, belonging solely to “us,” which is to say to the executive, and to be shared at “our” discretion. Imagine a comparable audacity—or is it to be called magnanimity?—from a congressional spokesperson: “There…

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To Love America Well

With this I end with thanks a month-long stint as a Law and Liberty blogger. It’s been great fun, even with the distractions that came from pushing my book, The Once and Future King: The Rise of Crown Government in America.

The book’s thesis is that, from an admirable patriotism and a less attractive ignorance of history, American libertarians do not adequately defend liberty.

We are all patriots first and philosophers second—and that is just as it should be. For American theorists, patriotism means elevating people such as James Madison to the pantheon of political philosophy. The British have Hume and Burke, the French have Rousseau and Tocqueville—and the Americans have Madison and Hamilton. To be sure, they’re not mediocrities. But then they’re not the people who made the deals that produced the Constitution, or whose beliefs informed its content.

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The Myth of Constitutional Science

Kevin D. Williamson has posted an excellent takedown at National Review of a National Journal assault on the Constitutional regime. This latter piece, a polemic by Alex Seitz-Wald, argues that the founding document, while innovative in its time, no longer reflects humanity’s best constitutional erudition. Williamson’s critique is definitive—he notes, among other points, that the regime is not defective simply because it has failed to produce results in accordance with a critic’s proclivities—but I would amplify one point. Seitz-Wald argues for a sort of latter-day constitutional technocracy arising from science and divorced from experience that describes neither what happened at Philadelphia nor that for which any political society ought to wish today.

Seitz-Wald writes: “What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science.” Actually, the entire history of planetary life contained the British constitution, which the convention delegates much admired, and, more important, upwards of a century-and-a-half of uniquely American experience with self-government from which constitutional institutions evolved.

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The Constitution is a Bill of Rights

My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.

“Did you read the Constitution in school?’

“Yeah.” Pause. “Well, we read the Bill of Rights.”

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Making the Supreme Court Safe for Democracy


This next conversation is with Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th Amendment. In one sense, we understand directly what the Antifederalist Brutus once opined about its potentially unlimited powers. The Court, Brutus informed, would be the most dangerous branch because its judges "are independent of the people, of the legislature, and of every power under heaven." Of course, criticisms of the Court's activism are now part of…

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