What Are the Antifederalists to Us?

Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution presents us with a paradox. Author William J. Watkins, Jr. recognizes, on the one hand, that we cannot get out of our 21st century difficulties with the omnipotent Administrative State by appealing to the Federalist. Alexander Hamilton, in particular, was a good government type who was willing to concentrate power in the general government as far as republican and federal principles would permit. It should come as no surprise that he accused the Antifederalists—those who opposed adoption of the Constitution outright, as well as those who wanted the inclusion of…

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The Liquid Constitution

Water

Legal historian Mary Sarah Bilder’s op-ed in the Boston Globe means to level originalism. Her effort has produced responses from Lawrence Solum and from John McGinnis and Mike Rappaport on this site. The criticisms sum to the notion that Bilder is shooting scattershot rounds at a defined scholarly target.

Bilder’s argument is that the members of the Constitutional Convention did not have “the luxury of even imagining that each and every word possessed an invariable, sacred meaning.” Who said they did?

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This Realm, This England

Northern England

I sure hope the Brits vote “Leave” on June 23. That would be the first thing to go right in global politics this year.

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Complicating Greg Weiner’s Take on the Nomination Imbroglio

Greg Weiner argues, in a much-discussed Law and Liberty post, that “constitutional conflict is not a sign of constitutional crisis. It is, rather, a sign of constitutional health.”

However, if this is the case, why are Americans so quick to do exactly what Weiner argues is deeply problematic for our constitutional order: namely, elevate disputes between the branches to the level of crisis rather than seeing them as the generator of substantive arguments on behalf of institutional and partisan positions?

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A Sanctions Shell Game

There “is a role for Congress,” says a spokeswoman for the White House’s National Security Council, “in our Iran policy.” This is big of her, seeing as how “our” Iran policy consists largely of sanctions imposed by the legislative authority of Congress. A great deal hangs on the spokeswoman’s cavalier use of the word “our.” The suggestion is that the nation’s disposition toward other nations is a constitutional plaything, belonging solely to “us,” which is to say to the executive, and to be shared at “our” discretion. Imagine a comparable audacity—or is it to be called magnanimity?—from a congressional spokesperson: “There…

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Twilight of the American Republic

Twilight of the Republic

This next Liberty Law Talk is a conversation with Justin Litke on his new book, Twilight of the Republic. Our conversation focuses on the book's attempt to situate twentieth century claims of American Exceptionalism within the context of the political symbols and public meanings that are revealed in significant political documents stretching back to the Mayflower Compact and forward to Albert Beveridge's 1900 Senate speech "In Support of American Empire." Along the way, we discuss the Declaration of Independence, Federalist Papers, the Constitution, and the presidency of Abraham Lincoln in order to better understand Litke's powerfully argued claim that the…

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Federalism, Congressionalism, and an Appeal For a Renewed Constitutional Morality

Why are we still talking about federalism in 2012?  Wasn’t it mortally wounded with the passage of the 16th and the 17th Amendments?  At least, that is what I hear a lot of Conservatives moaning about.   Surprisingly, then, we are still talking about federalism.  And, I trust, doing something about it.  Here is a preliminary answer to the question about the fate of federalism: federalism is a conservative principle that over the last 100 years has restrained the development of the Administrative State. My mind wanders to the Progressives with their national prohibition of intoxicating liquors, FDR’s New Deal spiritual crusade against Mammon and “the money changers in the temple,” LBJ’s Great Society “war on poverty,” and our current national debate over individual health care coverage.  These various Prohibitionists are very spiritual and remind me of the spiritual Colonialists and their love of good government to make us good people.  Good government is also big government.

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Missing the Significance of Cass Sunstein

The news that Cass Sunstein returns to Harvard Law School from his position as policy chief at the Office of Management and Budget provoked a divided response. On his policy legacy, the left and right clashed, with partisans both attacking and praising his policies. For many Beltway leftists Sunstein had done “untold damage” by the number of health and safety rules his office killed. (See Reagan biographer Steven Hayward for his gleeful observations.)

This mirrors the reaction of conservative legal scholars I had asked years ago about his work at OMB, which they faintly praise.  

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We the People, Part II: Constitutions, Competition, and Cartels

Providence has been pleased to give this one connected country, one united people; a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.

John Jay, Federalist 2.

Yesterday’s post discussed Adam Liptak’s New York Times piece on the decline of the U.S. Constitution as a global model, entitled “’We the People’ Loses Appeal With People Around the World.” Today’s post is dedicated to the proposition that Liptak’s title is right on the money, although quite probably not in the intended sense: the “We the People” of the Constitution encapsulates a constitutional model that is simply not available to many countries, under modern conditions. Their constitutions don’t look like ours because they can’t, and any discussion as to whether they should or shouldn’t is a silly distraction. As always, The Upside Down Constitution contains a more extensive version of the argument.

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End the State Tax Deduction

My colleague Alex Brill has come up with a revenue-neutral plan to make the tax code more progressive and pro-growth. Among his six proposals: phase out the federal deduction for state and local taxes. Read on to find out why this is a good idea.