Extralegal Power

Wilson IIIn 1887, when Woodrow Wilson was still a mere academic, he wrote an essay that served as a clarion call for administrative power. Revealingly, one of his themes was that reformers faced greater difficulties in modern democracies than they had in the monarchies of the past:

Once the advantage of the reformer was that the sovereign’s mind had a definite locality, that it was contained in one man’s head, and that consequently it could be gotten at. . . . Now, on the contrary, the reformer is bewildered by the fact the sovereign’s mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign is also under the influence of . . . preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.

Exacerbating this problem was the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes.”

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‘Behind Metaphor, More Metaphor’

Every intellectual likes to believe that he is struggling manfully against the hostile zeitgeist, or else what would be the need for intellectuals? His belief that he is not only in the minority but currently losing the battle against the opposing forces of obscurantism and wrongheadedness allows him the pleasures both of self-pity and self-congratulation. He likes to believe that he has suffered for his views (for can there be better evidence of holding the correct opinions than having suffered for them?), while at the same time making a comfortable living from them.

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A Constitution in Full

The journal Anamnesis has just published my essay on the 19th century political thinker Orestes Brownson. I am attempting in this essay to apply Brownson’s insights on America’s 19th century constitutional dysfunction that produced the Civil War to the problems posed to our constitutional order by progressivism. I do this by focusing on Brownson’s identification of the misunderstanding of American constitutionalism posed by the personalist democracy of the Southerners and the humanitarian centralized democracy of the Northerners. The latter found its clearest expression in the consolidationist approach of the abolitionists. Brownson’s warnings here of the proto-progressives of his day can clearly provide us with resources to addressing the progressives of present day.

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The Progressives’ Creative, Parasitic, and Unsustainable Constitutional Jurisprudence

Today, Professor Rappaport posted the aptly-titled “Originalism for Me, but not for Thee,” concerning Professor Peter Jaworski’s fascinating new article, Originalism All the Way Down: Or, the Explosion of Progressivism.

The article reminded me of the approach to constitutional interpretation that Professor Robert Scigliano at Boston College taught in his class on the American Judiciary: Judges should interpret the Constitution the way they would like their own writings to be interpreted.

Professor Scigliano’s maxim, however, is unworkable for the judge who undertakes to “creatively interpret” the Constitution, an approach expressly celebrated by future Justice Ruth Bader Ginsburg.

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