James Madison famously sketched an invisible-hand theory of institutional competition in The Federalist No. 51.
The case of Washington v. Trump—in which a panel of the Ninth Circuit expressed apparent sympathy, during Tuesday’s arguments, for a district judge’s restraining order against the President’s pause on immigration from seven Muslim-majority countries identified as terrorism threats—has less to do with an overreaching judiciary than with an underperforming Congress.
One way of understanding American history is as a struggle between consequential Presidents who expand liberty and consequential Presidents who expand the state. On this view, most Presidents are frankly not all that important: their decisions are marginal and many are reversed or substantially modified.
If so, Donald Trump’s victory had an important benefit for liberty, even if he himself is no classical liberal, because it prevented Barack Obama from being a consequential President on the statist side of the ledger.
First, in the truest tradition of conservative thought, the bad news: At this time on Wednesday, one of the major parties in American politics will be institutionally invested in inflating a presidential office already swollen beyond healthy constitutional proportions.
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.