The Decline of Constitutional Morality: A Conversation with Bruce Frohnen

const moralityIs America in a constitutional crisis or is the country already post-constitutional and merely adjusting to a regime of quasi-law? Bruce Frohnen joins this edition of Liberty Law Talk to discuss this question and his latest book, coauthored with the late George Carey, Constitutional Morality and the Rise of Quasi-Law.

Medical Marijuana and Federalism

Last week, I blogged about the DEA’s decision not to change the classification of marijuana as a Schedule I substance.  While the decisions seems to me absurd, not all of the news in this area is bad.  In fact, the movement to legalize marijuana under varying circumstances has never been stronger.

It should not be all that surprising that the DEA – a government agency charged with the mission of enforcing the drug laws – should be so unsympathetic and hostile to the benefits of one of the drugs they regulate.  After all, they would be in essence admitting significant error if they acknowledged that marijuana had important benefits.  Of course, less understandable is why Congress and the executive assign this task to the DEA.  Still, the point here is that who makes the decision is important in a political system.

One of the virtues of the American system is federalism.  While the federal government has been very hostile to marijuana for years, decisions in the U.S. are not only made at the national level.  Thus, the federal government may continue to be strongly against marijuana, while at the state level there is growing support for permitting it under certain circumstances.

The number of states allowing medical marijuana (25) has been expanding as has the number of states allowing recreational use (4).  In 2016, 4 additional states will decide on whether to legalize recreational use of marijuana and another 5 states will decide on medical marijuana.    

Read More

Reviving Pluralism: A Conversation with John Inazu

confident pluralismJohn Inazu has emerged as one of the leading scholars on freedom of association and religious freedom. His earlier book, Liberty's Refuge: The Forgotten Freedom of Assembly revived our understanding of the significance of freedom of association in American constitutional history. He joins us in this episode of Liberty Law Talk to discuss his latest book, Confident Pluralism on why we must rebuild both the legal and civic engagement aspects of a pluralist society.

A Decentralizing Remedy for the Diseases of a Fractured Republic: A Conversation with Yuval Levin

fractured republic

This edition of Liberty Law Talk welcomes back Yuval Levin to discuss his latest book, The Fractured Republic. Levin notes that our decentralizing republic, as observed in the decades long trends in social, economic, religious, and cultural diffusion, provides both opportunities and difficulties. America's ongoing deconsolidation from a nearly unprecedented period of national cohesion after World War II has led to numerous benefits for individual freedom and economic prosperity. However, if we are more free than ever, we may also be more alone than ever and bereft of the contexts for a responsible freedom and citizenship. And this has sparked a…

Read More

Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution

While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States.  In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution.  Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.

Steve Calabresi has a new article out that ably defends the U.S. Constitution.  Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.

Read More

Living under Executive Federalism

National mall sunset, Washington DC

Last week, I visited Boston College for a discussion of the Supreme Court’s recent decisions. Herewith an abbreviated version of my remarks. Comments etc. most welcome because the thoughts (some old, some new) are embryonic: I’m working on a more serious, grown-up presentation.

We are living in an age of Executive Federalism. That form of government has some deeply disturbing features, including several that should prompt a judicial response. So far, the Court has given no indication that it has a clue.

Read More

Leave It to the States

Six or so out-of-town summer trips down, only four more to go before the start of the Fall semester—at which point I’ll be able to resume regular blogging, and maybe even some actual research and writing. Pending that merciful eventuality, here’s my Wall Street Journal review of Adam Freedman’s recent federalism manifesto, A Less Perfect Union: The Case For States’ Rights. I’ve met Adam occasionally at Manhattan Institute events. He’s a thoroughly good guy; creative thinker; great writer. Obviously I don’t agree with every chord in his federalism riff. Foremost: while Adam does a manful job in defense of “states’ rights,”…

Read More

Fighting Federalism: Damon Root’s Overruled (Part One)

U.S. Supreme Court building in Washington D.C.

Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…

Read More

Federalism, Upside-Down and Executive

The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work for a living. So some time ago, the Mercatus Center nudged me to write up a more digestible version of the federalism argument—the political economy piece, sans the ConLaw and FedCourts jazz—for wider distribution. The product, a sixty-off page essay on “Federalism and the Constitution: Competition versus Cartel,” is now available from Mercatus. It’s a quick, convenient introduction to the subject. The essay contains a few new riffs. Among them: our upside-down cartel federalism has become an executive federalism: increasingly, federal-state relations are shaped in one-off…

Read More

Federalism as a Catalyst for Beneficial Social Change

The question of whether there is a federal constitutional right to same-sex marriage is essentially a debate about whether judges need to update the Constitution to keep step with changing times. Justice Anthony Kennedy appears to be the pivotal vote on the issue.  One observer yesterday summarized what he takes to be the lesson of  his previous opinions on rights: Kennedy “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”

There is no doubt that each generation has the right to conceive of newer and broader forms of liberty. But it does not follow that federal judges should determine what those are. As Mike Rappaport and I have noted, the Constitution accommodates social change through features other than judicial updating. The most important such method is federalism. The states themselves have few restrictions on their powers.  Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.

Federalism in the modern era has been a great catalyst for freedoms.

Read More