Fare Thee Well

U.S. President Barack Obama gives his farewell speech at McCormick Place on January 10, 2017 in Chicago, Illinois. (Photo by Darren Hauck/Getty Images)

If there is any doubt remaining that the slogan “change” had no content when it was proffered as a reason for electing a President, consider this: Barack Obama bid farewell to the nation without calibrating his calls for change to his assertions of having already achieved it. President Obama’s farewell last night—delivered not in the traditional sedateness of the Oval Office but rather at the site and in the manner of a campaign rally—thus served as a primer on the shift from the liberal politics of amelioration to the Progressive politics of historical teleology. It should be said that despite the setting, he…

Read More

No! The Electoral College Was Not about Slavery!

George Washington presiding over the Constitutional Convention of 1787 in Philadelphia.

The American people have learned much about the Electoral College since the November election. Much has been learned about the origins, evolution and contemporary functioning of our system of presidential elections. We have debated the merits of our system versus allowing a simple national popular vote. We have seen an unprecedented campaign to try to get electors to vote against their pledge. And some have tried to instruct us on the nuances of the Founding environment that created our unique electoral system.

But among all the good information and honest debates have arisen a misleading half-truth aimed at undermining the Electoral College.

Law professor Paul Finkelman ominously opines that Americans would be “disgusted” if they knew the real origin of the Electoral College was in protecting slavery.

Read More

US State Constitutions and the American Contribution to the Theory of Bicameralism

Virginia State Capitol complex - old House of Delegates chamber

With the US House of Representatives representing the people, and the US Senate representing the states (more so prior to the adoption of the 17th Amendment, but that’s another discussion), the US Congress is a recognizable extension of the “mixed-government” rationale for legislative bicameralism.

Read More

Rekindling Constitutional Ambition

congress-sup ct

Whatever the outcome of this year’s election, conservatives and other friends of American constitutionalism have our work cut out for us. The Republican candidate for president has not shown much familiarity with or interest in the workings of our constitutional system. And the Democratic candidate (as usual) has evinced a desire to continue, with judicial backing, a transformation of that system—one that further enhances executive and regulatory power while weakening the powers of Congress.

Read More

Why Libertarians Should be Originalists

Richard Primus has argued that it would not make sense for a libertarian to be an originalist. But his arguments impose an unreasonably high standard for a libertarian’s choice of interpretive method, and reflect, like another recent post, a misunderstanding of originalism.

First, he says that the Constitution does not entrench libertarian principles as such.  True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian  who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism.  Instead, the question should be whether an originalist view would move constitutional law today toward  more libertarian results than plausible competing interpretive theories. And here the answer is yes.

First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers.

Read More

The Myth of Rational Legislation

gavel

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?

Read More

They’re Into Masochism

US Capitol dome detail

Among its myriad other mysteries, the 2016 election presents this Madisonian puzzle: Why are so many members of Congress genuflecting before presidential nominees whose platforms include emasculating them?

Read More

Constitutionalism by Word Association: A Reply to Evan Bernick

The doors of the Supreme Court

At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”

This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.

Read More

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?

Read More