The first constitutional test of the new era will be answered less by Donald Trump than by Mitch McConnell (R-Ky.) and Paul Ryan (R-Wis.): namely, whether the congressional leadership delivers to the chief magistrate the news that Capitol Hill is not a subsidiary of the White House.
Sandy Levinson joins this edition of Liberty Law Talk for a conversation about his latest book, An Argument Open to All: Reading The Federalist in the 21st Century.
To gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.
That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”
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…
It is a close contest which recent assertion of executive authority crowns the rest, but the Administration’s potential skirting of the Senate’s treaty power in negotiating an international agreement on climate change ranks high in the running. The Constitution’s explicit partnering of the Presidency and the Senate in binding the nation in global agreements, combined with the two-thirds majority needed in the upper chamber of Congress to affirm them, points to the unique dangers of cutting one institution out of the process. President Obama is not the first to do this.
There is not the slightest constitutional pretext for deferring enforcement of unworkable provisions of the Affordable Care Act. By all accounts it is reasonable policy to do so. But the constitutional precedent is profoundly troubling. Congress’ craven capitulation to it is even more so.
No one has noticed in the present case because Congress and the President seem generally to agree on this course. Republicans do not want the law enforced at all, and most Democrats appear to concur in President Obama’s conclusion that more time is needed before certain parts of it should be enforced.
Editor’s Note: This is the first of two posts that will offer contrasting opinions on the NSA electronic surveillance programs. Angelo Codevilla’s essay will appear tomorrow.
On July 24th, 2013, the United States House of Representatives defeated an amendment to the Defense Department’s Appropriations bill for fiscal year 2014 that called for greater restrictions on the National Security Agency’s ability to gather electronic information, including phone records of American citizens. Ninety-four Republicans and 111 House Democrats voted in favor of the amendment, while 134 Republicans and 83 Democrats voted against it. The amendment’s sponsors shared very little in common, other than the fact that they are both from Michigan. Republican Justin Amash, a devotee of free markets and limited government, joined forces with John Conyers, a perennial opponent of American foreign and defense policy since he was first elected to Congress in 1964.
A friend from high school, distressed by the results of Tuesday’s balloting, circulated a prayerful plea that President Obama’s re-election indicates “our nation is in a sinful state” whose consequences we must “suffer” until we repent our “wicked ways.”
This is what Robert Dahl identified as the phenomenon of intensity in politics. Willmoore Kendall and George W. Carey identified its solution: the constitutional regime delineated in The Federalist—which means, Houston, we have a problem.
In this next edition of Liberty Law Talk, I discuss with Gregory Weiner, author of Madison's Metronome: The Constitution, Majority Rule, and the Tempo of American Politics, James Madison's understanding of how popular sovereignty, federalism, and separation of powers provide the bulwark of protection for a free and vibrant political and social order. Madison, Weiner observes, considered the constitutional architecture provided by these concepts facilitated the necessity of majority rule, and unlike modern theorists of judicial review, also served as the best guardian of minority rights.
Coming after the first progressive wave of Theodore Roosevelt and Woodrow Wilson, Calvin Coolidge’s White House tenure boldly challenged their expansive ideas about executive power specifically and federal power generally. Coolidge’s presidency was marked by an understanding of the power and limits to the federal government in terms more congenial to those of the Framers. Instructive in this regard are Coolidge’s fiscal and agricultural policies, and his attempts at federal restraint in the face of regional flood disasters that were marked by repeated calls for bold government action.