Why a Republican Senate Would Be Best for the Rule of Law

There has been a lot of discussion in the blogosphere about what candidate would be better for the rule of law—Hillary Clinton or Donald Trump. At City Journal I recently pointed out that both candidates pose some legal dangers.

But whoever is elected President, there can be no doubt that a Republican Senate would be best for originalism and thus the long-term prospects of the rule of rule. Begin with the election of Clinton, because that is the far more probable outcome and thus should be counted most heavily in the calculus.  She would nominate justices who are outright hostile to the meaning of the Constitution.  At the Presidential debate she said nothing about wanting justices who would follow the law, just judges who have empathy and who would follow her litmus tests of being in favor of Roe and against Citizens United. That latter comments were too much even for the Washington Post.

Even more importantly, she comes from a progressive movement that is dedicated to transforming the Constitution without going through the amendment process. As I said in my City Journal essay:

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Scalia Failed to Create a Rule of Law for Precedent

My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence.  I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.

In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the  original meaning of the Constitution was one in which he argued for following precedent:  “I am an originalist, not a nut.”  Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule.  It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.

And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule.  As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.

Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn.

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The Descent Into Quasi-Law

Lawyer And The Law

“Stroke of a pen . . . law of the land. Kind of cool.” That insouciant comment, made by Paul Begala when he worked in the Clinton White House, raised controversy when Begala said it back in 1998, but it hardly would today.

After all, just in the past few weeks we have discovered that President Obama plans to sign, on his own authority, an international “climate change” treaty. He calls it an executive agreement and so claims he needs no congressional approval, even though his administrators will use the treaty to impose new policies and rules binding American individuals, governments, and businesses to change their behavior on pain of federal sanction.

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The Decline of Constitutional Morality: A Conversation with Bruce Frohnen

const moralityIs America in a constitutional crisis or is the country already post-constitutional and merely adjusting to a regime of quasi-law? Bruce Frohnen joins this edition of Liberty Law Talk to discuss this question and his latest book, coauthored with the late George Carey, Constitutional Morality and the Rise of Quasi-Law.

A Campaign for a Seamless Rule of Law

Justice Statue

In this year’s presidential campaign, it would be a wonderful contribution to the republic and perhaps a winning move to run credibly on a rule of law platform. This kind of platform is to be distinguished from a “law and order” one, because it emphasizes that in a well-ordered republic that government must enforce order only through law.  And this slogan also underscores that the problem we face is not simply or indeed mainly lawlessness on the streets, but lawlessness in government. Respect for law must begin at the top.

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Modern Progressives as the New Iconoclasts

Progressivism was born in no small measure from opposition to the rule of law, because it wanted to overthrow the Constitution by means other than the amendment process, if necessary.  But today progressivism’s opposition to the rule of law is not confined to the Constitution.

The latest example comes from Yale, a bastion of progressivism.  There a dining hall employee purposely destroyed a stained glass window that depicted African Americans picking cotton, because he found it offensive. Initially, Yale fired him and referred him for prosecution. But after protests from professors and students, Yale declined to prosecute and is in negotiations to reemploy him. The protesters celebrated his act of “civil disobedience.”

The support for this act of vandalism and Yale’s pusillanimous climb down are misguided on many levels.

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Progressivism Is a Long-Term Threat to the Rule of Law

Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s.  Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times.  The rule of law is under threat, whoever wins.

Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.

And today we see all across a society a renewed progressive disdain for the rule of law.

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The Court’s Last Shreds of Legitimacy

U.S. Supreme Court Justice Clarence Thomas  (Photo by Alex Wong/Getty Images)

Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of rational, intermediate, and strict scrutiny tiers of review used in evaluating different constitutional rights. Justice Clarence Thomas has written two significant opinions concerning abortion.  Seventeen years ago in his lengthy dissent in Stenberg v. Carhart (2000), he denied that there is a constitutional right to abortion; he called Roe v. Wade (1973) “grievously wrong” and insisted that nothing in the Constitution “deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of…

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When Innovation Collides with Rules, Which Should Prevail?

Businessman drawing on a paper next to green paint splash with blue sky on the background

Regulating cyber-commerce is controversial. The advent of smart phones and web-based interfaces has facilitated many new consumer services. Customers using these digital platforms often insist that existing regulatory models are outmoded and simply shouldn’t apply to new technologies.

As do the companies. When residents of Austin, Texas recently rejected Proposition 1—an ordinance proposed by Uber and Lyft—it generated national attention around this important question: How should a free society deal with innovative new technologies? Should existing regulations apply, should exceptions be made, or should the collision between existing rules and innovation cause us to re-examine the existing rules altogether?

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Ornery Lion of the Law

Leo McKern as Rumpole of the Bailey

“How does a lawyer sleep?”

“—First he lies on one side and then on the other.”

Ugh what an unfunny joke, you say. Well we non-lawyers have to vent our feelings about lawyers somehow.

Actually there’s at least one lawyer who conquers the layman’s cynicism about the profession. He isn’t an American or even a real person. He is Rumpole of the Bailey, the creation of the late British writer John Mortimer. A new audiobook edition of Rumpole is out, with the wonderful actor Tony Britton reading the stories in Mortimer’s 2001 collection, Rumpole Rests His Case.

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