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April 16, 2018|auxiliary precautions, Federalist 51, James Madison, Judicial Review, moral hazard, Republican Virtue

When “Auxiliary Precautions” Undermine Republican Character

by James R. Rogers|15 Comments

Chambers of the South Carolina Supreme Court, December 10, 2014 (Nagel Photography/Shutterstock.com).
Is it possible that the courts - one of our most important "auxiliary precautions" - are undermining republican liberty?

January 8, 2018|Administrative State, Congress, Deference, Federalist 51, George Lovell, legislature, Madison

Why Congress Cedes Power to the Administrative State

by James R. Rogers|4 Comments

Our bureaucracy seems to move further and further from legislative accountability, but what explains this?

September 6, 2017|Appointments Clause, Federalist 49, Federalist 51, Federalist 76, John Adams

The Course of the Confirmation Process Isn’t Supposed to Run Smooth

by James Wallner|Leave a Comment

The debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.

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February 28, 2017|Congress, Executive Power, Federalist 51, Separation of Powers, Unitary Executive

Free Riding Hobbles Congress’s Ability to Stop Expansion in Presidential Power

by James R. Rogers|5 Comments

U.S. Capitol Dome: Washington DC

James Madison famously sketched an invisible-hand theory of institutional competition in The Federalist No. 51.

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November 1, 2016|Federalist 51, James Bradley Thayer, Judicial Review, The Origin and Scope of the American Doctrine of Constitutional Review

Judicial Review as Moral Hazard for Legislators and Citizens

by James R. Rogers|5 Comments

Most people think of judicial review in the way that Justice Owen Roberts described it in a 1935 Supreme Court decision:

The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.

It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”

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July 27, 2016|Federalist 51, James Madison, Majority Rule, rational basis test, Williamson v. Lee Optical, zoon politikon

The Myth of Rational Legislation

by Greg Weiner|29 Comments

The ongoing debate between libertarian and more traditional constitutionalists is about something more fundamental than what standards of review to apply to which cases. What’s at stake in this disagreement is politics—its very survival, and in what form. Is this institution that is, or at least was, enlivened by argument among citizens to be replaced by a desiccated vision of rational claims adjudicated by courts?

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July 18, 2014|Federalist 10, Federalist 51, James MacGregor Burns, James Madison, Majority Rule, Separation of Powers

James MacGregor Burns’ Transformative Constitutionalism

by Greg Weiner|4 Comments

Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.

Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.

The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.

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Book Reviews

The Ford Restoration

by Kirk Emmert

Occupying the White House in unfavorable circumstances can make a President fall back on his best friend: the U.S. Constitution.

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John C. Calhoun, Madisonian Manqué

by Thomas W. Merrill

His institutional innovations were geared toward preserving slavery.

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Podcasts

The Solid Ground of Mere Civility: A Conversation with Teresa Bejan

A discussion with Teresa M. Bejan

Teresa Bejan discusses with us how early modern debates over religious toleration are an example of how we can disagree well.

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Leading a Worthy Life in a Scattered Time: A Conversation with Leon Kass

A discussion with Leon Kass

Leon Kass discusses Leading a Worthy Life.

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Eric Voegelin Studies: A Conversation with Charles Embry

A discussion with Charles Embry

What did "Don't immanentize the eschaton!" really mean? An intro podcast on the formidable mind of Eric Voegelin.

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Republican Virtue, Interrupted: A Conversation with Frank Buckley

A discussion with F.H. Buckley

The real conflict in our politics centers on reforming massive levels of public corruption.

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About

Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

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