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?
Michael Ramsey and Evan Bernick have both posted excellent and challenging ripostes to my argument that conservative judicial engagement is theoretically defenseless against liberal judicial activism. The dispute seems to distill to this question: Can an interpretive theory constrain the courts?
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.
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?
A great deal of ink has been spilled of late on the question what, exactly, it means for someone to be a natural born citizen under the U.S. Constitution. As Senator Cruz was born in Canada, to a mother who was a citizen and father who was not a citizen, the question is on point. The Constitution states in Article II that “no Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”
What, exactly, does that mean?
Donald Trump does not say things that are unpopular. Every time we see him speaking in front of an audience, that audience is clapping. He says things that anger elites and about which, often, events seem to confirm the seeds of his base’s opinions. It should therefore be unsurprising that the elite’s rejection and disdain inflame rather than calm the Trump phenomenon. The contemptuous response is not useful. The Madisonian one is.
The Trump phenomenon—whose latest instantiation is his outright lie about hordes of Jersey City Muslims cheering the collapse of the Twin Towers—is widely thought to be a test of other Republican candidates. It is more than that. With Trump still leading national polls—still?—it is becoming a test of the Madisonian thesis.
Can the U.S. House of Representatives elect a non-member to the Speakership? Disgusted by the dysfunction in Congress, some are suggesting this is constitutionally possible. Connor Ewing, in this space yesterday, asserted the only thing standing in the way is “over two centuries of legislative practice to the contrary.” (Editor’s note: Ewing’s latest, written in reply to Schaub and National Review’s Matthew Franck, is here.)
Conventional wisdom holds that the Speakership of the House is an impossible job because the Republican caucus is ungovernable. On this narrative, compromise is profane, and conservative purists outflank any constructive proposal leadership makes, thus rendering it toxic to the opposition. The purists are the proverbial bidders in Burke’s “auction of popularity”: “If any [leader] should happen to propose a scheme of liberty, soberly limited, and defined with proper qualifications, he will be immediately outbid by his competitors, who will produce something more splendidly popular.”
Alas: What’s a speaker to do?
A while ago, I was driving back to Indiana from the place of my birth and America’s most dysfunctional city, Chicago. As thoughts of Greek-style pensions for public employees, exorbitant property taxes, and sky high murder rates were passing through my consciousness, my car began emitting a strange noise on the expressway. It grew louder, and my stomach sank. It was a flat. The car wobbled onto a nearby exit ramp, and I slowed to the shoulder cursing my lousy luck.
Thankfully I had just renewed my Triple-A membership (after debating to myself whether or not the fee was worth it), so my luck held in the end. The incident led me to ponder the fact that it would not have occurred to me in my distress to try calling a real estate developer, a neurosurgeon, or a former CEO for help. That is to say, anyone lacking a background in auto repair.