The Progressive apoplexy over Donald Trump—which is justified on myriad grounds, many of them other than those his critics are articulating—ought not obscure this decisive fact: Trumpism is a disease of Progressive constitutionalism. Its symptoms include an inflamed presidency and Supreme Court—and embrace of the former and a reaction against the latter.
Presidential debates neither are nor ought to be midterm exams. The people who administer midterms do not necessarily possess political wisdom (see “Wilson, Woodrow”), and the people who excel at taking them may be better at demonstrating technical detail than prudential judgment (see above). Thus questions that make a candidate stumble—and that can win the journalistic brass ring for the moderator, namely, instigating news—tend not to be as valuable as those that prompt reflection and reveal a mind at work.
Earlier this month Jack Balkin (Yale Law School) and I found ourselves on an APSA/Claremont Panel on “The Legacy of Justice Antonin Scalia,” alongside Hadley Arkes and Ralph Rossum. We couldn’t find anything to disagree about.
According to Livy’s History, the Roman consul Publius Decius Mus sacrificed himself to the gods by “leap[ing] upon his horse and dash[ing] into the middle of the enemy” in a ritual that secured victory for his embattled army. One hopes the polemicist using Decius as a pseudonym in a much discussed broadside against Never Trumpers, having anonymously expressed an opinion with which somewhere north of 40 percent of Americans agree, is safe. The republic almost certainly will be.
One of the criticisms made against originalism by historians is that originalism fails to take into account that word meanings change over time. In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed. Therefore, originalism is problematic because it assumes that traditional word meanings are stable. Unfortunately, this charge by historians turns out to be largely mistaken. If some originalists assume that word meanings were stable, then that would be an argument against those originalists. But it would not condemn originalism generally, since nothing in originalism requires that word meanings be…
One of the most interesting aspects of the Trump candidacy is the way in which it involves a Republican (or, if you will, the Republican nominee) employing tactics or promoting programs that are related in some way to those used by the Democrats at times. This makes Trump much less attractive to those who favor limited government. But it raises the question whether he might be able—unintentionally of course—to raise the consciousness of the Democrats to the problems with their approach.
Start with strong executive power. President Obama and the Democrats embrace strong executive power. There are many reasons for this. One is that the Democrats want a government that can pass large numbers of regulations and is quick-acting. Another is that the Democrats do not want to be limited by the public opinion constraints of the legislature. But, of course, executive power is dangerous and is problematic, especially when one is on the receiving end of it.
While Republican Presidents have used executive power, they have not used it—especially in the domestic sphere—to the extent that Democrats have. And they have not played as fast and loose with the law as President Obama has.
Many people have the impression, not without reason, that a President Trump would be willing to aggressively use executive power. This concerns the Democrats, especially since much of Trump’s agenda is anathema to them. Could this persuade the Democrats that executive power is a dangerous thing that should be constrained? It is hard to say, but if Trumpian executive power doesn’t persuade them, what would?
Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.