One of the stunning developments in recent days is the rush to embrace the notion that because Donald Trump is no longer in office, he cannot be tried for abuse of office for which he was successfully impeached during his time in office. This idea has been attractive to GOP Senators who do not wish to confront the assault on the constitutional order directly for fear of offending their supporters — including many supporters who are just fine with insurrection and violence. The conservative constitutional scholar Keith Whittington has detailed why original intent, original meaning, and the structure and values …
I had this essay at National Review last weekend. It’s a foray into the populism/conservatism wars. I remain unconvinced that populism is conceptually compatible with conservatism, but the alternative doesn’t have to be either aristocratic elitism or technocratic expertise. Madison’s republicanism, which uses public opinion as raw material but “refine[s] and enlarge[s]” it, is a middle ground.
Constitutionalism depends on seeing politics not as two adversaries lined up in the field against one another ready to go to war. Instead, it depends on seeing why the other side might hold its opinions and not assuming the worst of them. Although it’s not necessary to agree with the other side, it is necessary to accept that they are legitimate partners in the business of governing and seeking the common good. People engaged in a war don’t respect constitutional processes. To respect constitutional processes, we need to learn again how to respect the other side. Ultimately, constitutionalism, which is in such peril right now, depends on both sides lowering the temperature.
For those readers of The Constitutionalist who do not already know Thomas Dumm, you need to begin reading his extraordinary contributions to American political thought. Here is his latest, a powerful reflection on the meaning of American loss in the pandemic. A must read.
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