Living the New Constitutional Morality

Photo: Doug Mills/The New York Times

The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.

Read More

Progressivism Makes Immigrants Unwelcome

Last week President Obama gave a speech to newly naturalized citizens at the National Archives. His remarks show why immigration, long rightly praised as an essential part of our heritage, has become a source of ever greater controversy. The President failed to acknowledge that it is the principles of limited government and individual rights that make United States a welcoming place for immigrants because they assure that newcomers cannot tip the political balance to make life worse for those already here.

Instead, the President celebrated the raw power of democracy to make “progress,” change that can come at the expense of long time residents.The President did suggest that one of the “binding forces” for America is “loyalty” to “the documents” that surrounded the new citizens at the Archives. But he never identified these documents by name, quoted any language from them, or explained why they have an enduring claim on our loyalty. In particular, President Obama cited almost none of the liberties protected by the Constitution and nothing of the structure of federalism and separation of powers that protects those liberties.

It is hard to believe this was mere oversight. His administration has notably failed to defend both the structure and rights that are actually in the Constitution.

Read More

An Eternal Introduction

USA Constitution Parchment

When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.

Read More

Do We Want a Redeemed Constitution?

Textured American Constitution with US Flag

My current podcast is a discussion with a most excellent scholar, Michael Paulsen, on the book he has coauthored with his son, Luke Paulsen, introducing the U. S. Constitution to the general reader. Good as the book is in many respects, it did surprise me with its embrace of the idea that the Constitution of 1787 was a pro-slavery document.

Read More

Don’t Run Government Like a Business. Please.

Hand arrange alphabet CEO of acronym Chief Executive Officer.

The panoply of antipolitical candidates seeking the Republican nomination and gaining varyingly intense but correspondingly fleeting degrees of traction—Donald Trump, Carly Fiorina, Ben Carson—are united in their aspiration to run government more like a business.

Read More

Introducing the Constitution: A Conversation with Michael Paulsen

Paulsen constitution

This next edition of Liberty Law Talk is a discussion with Michael S. Paulsen, co-author with his son, Luke Paulsen, of their new book entitled The Constitution: An Introduction. The Paulsens’ book is a thoughtful and probing overview of the foundations and evolution of American constitutionalism. Our discussion focuses on key ideas in the book: What does it mean to be a country that is defined by a written constitution? Is the Founders’s Constitution a pro-slavery document? Has the use of substantive due process in Lochner, Griswold, and Roe corrupted our understanding of the Fourteenth Amendment? Of what worth is the Youngstown decision that…

Read More

The Contest for Constitutional Liberty

A Funeral Procession for the Stamp Act of 1765.

In 1993 John Phillip Reid published the fourth and final volume of his Constitutional History of the American Revolution.  The subtitles for each volume are noteworthy: The Authority of Rights (1988); The Authority to Tax (1987); The Authority to Legislate (1991); and, finally, The Authority of Law.  The shelves of many American libraries, public and private, have welcomed the accumulated weight of historical explanations of the coming of American Independence with political, economic, and social templates serving as the sources of underlying causation.  Few, too few, have offered legal and constitutional analyses, an intellectual shortcoming that would have astounded, and likely angered, American whigs watching from their perch in 1775.

Read More

The Undeclared War on ISIL

(U.S. Navy photo by Mass Communication Specialist 2nd Class Alex King/Released)

Mr. Gerry never expected to hear, in a republic, a motion to empower the Executive alone to declare war. - Constitutional Convention, August 17. Quaint, that Elbridge Gerry—hung up as he was on the idea that an Executive might need to be empowered to declare war. Two-hundred-and-twenty-seven years nearly to the day after that remark, and one year ago today, the United States commenced military operations against the Islamic State of Iraq and the Levant. One year, $3.3 billion, 5,000 airstrikes and 3,500 ground troops later—hardly repelling a sudden attack—Congress has yet to raise its timid hand to assert its institutional authority. The Obama Administration,…

Read More

Judicial Supremacists’ Dilemma

Supreme Court of United States

Whether it derives from the right or left, the argument for judicial supremacy—giving the judiciary the last word in sequence in constitutional interpretation—distills to this: Because no one can be trusted with unchecked power, the judiciary must be trusted with unchecked power.

Read More

Ted Cruz: A Probable Natural-Born Citizen of the American Republic

Senate Republicans Speak To The Press After Weekly Policy Meetings

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

Read More