Roe and the Possibility of Compromise

This essay by Jon Shields of Claremont McKenna bears reading. Its thesis is that a difficult compromise on abortion can be reached by appealing to how most Americans view the issue: namely, Americans are more comfortable with abortions early in pregnancy and likelier to endorse fetal rights as pregnancy proceeds. Significantly, an atmosphere that is at least riper for compromise coincides with the possible demise of Roe v. Wade. Roe and its progeny are the textbook cases of the Court trying to resolve a social controversy and intensifying it instead. Had the matter been left to legislatures, they would have … Continue reading Roe and the Possibility of Compromise

What the 12th Amendment Presumes

I want to amplify one point in George Thomas’ excellent essay about John Eastman’s attempt to subvert the constitutional will of the public in 2020. Eastman’s reading of the Twelfth Amendment as giving the Vice President wholesale authority over the counting of votes is constitutionally implausible. The only official duty of the Vice President is to open the ballots. The Twelfth Amendment says, in what one can only assume was a deliberately separate sentence, that the ballots “shall then be counted.” To believe the Vice President wields total authority over the counting, one must assume that the separate sentence is, … Continue reading What the 12th Amendment Presumes

Claremont Plays the Victim Card

The Claremont Institute released a statement this morning defending John Eastman against charges that he tried to subvert the 2020 election by giving Vice President Pence a road map for impeding the Electoral College. It lodges two complaints. The first amounts to a claim that the media has misrepresented the precise manner in which Eastman advised Pence to subvert the voters’ constitutional will. This is like a player of the game Clue saying that Colonel Mustard was a good dinner guest because he actually committed the murder in the conservatory with the lead pipe rather than in the conservatory with … Continue reading Claremont Plays the Victim Card

Thoughts on Revisiting New York Times v. Sullivan

I appreciate George’s thoughtful post on Justice Gorsuch’s view that the framework of New York Times v. Sullivan may facilitate the spread of falsehood. I have a handful of questions but few solutions. First, it strikes me that the problem is less the Sullivan standard than the subsequent cases that expanded its coverage from public officials to increasingly hazy categories of public figures. For reasons I suggest below, I do not see libel law as a viable means of ensuring that actual public officials–or aspirants to office–are spoken about truthfully. I would like to hear more about how the “actual … Continue reading Thoughts on Revisiting New York Times v. Sullivan

The Problem with Natural Law Constitutionalism

Hadley Arkes has a characteristically compelling essay at the Wall Street Journal (paywall) arguing that judges should root their rulings in the enduring truths that precede and undergird the law. For example, he writes, an appeal to natural law can resolve the question of abortion on firmer ground than the traditional claim of conservative judges that the Constitution does not speak to the issue. It’s worth the read, as Arkes always is. But it is also problematic. I’ve argued against Arkes’ views more completely here. A couple of brief points are worth noting. One is the issue of authority, which is itself a moral issue … Continue reading The Problem with Natural Law Constitutionalism

When Scholars Subvert Truth to Politics

A while back, I wrote about an accusation that my criticism of Trumpism was poor strategy, since it did not serve the conservative cause. Herewith, what happens when scholars subvert truth to politics: CNN has published John Eastman’s chilling memo outlining how then-Vice President Mike Pence could declare Donald Trump to be the choice of the Electoral College in 2020. Eastman was a law professor when he wrote it, though he resigned shortly afterward. There is a long tradition in Western thought of the scholar-statesman, from Cicero to, more recently, Daniel Patrick Moynihan. It is an admirable tradition. Moreover, no … Continue reading When Scholars Subvert Truth to Politics

August 31: Ratification and Republicanism

Gouverneur Morris suffered a rare defeat, and on a key issue, on August 31. The topic was the mode of ratification for the proposed Constitution, which by then was taking reasonably clear shape as the Convention neared the end of its work. Morris, attempting to expedite ratification, suggested relaxing the draft’s requirement for popular conventions, instead allowing states to ratify as they saw fit. Madison’s response underscores his underlying republicanism. If state legislatures were allowed to drive the consideration of the Constitution, they would manipulate the process to preserve their own power. Then he struck at the heart of the … Continue reading August 31: Ratification and Republicanism

August 23: Seeds of the Second Amendment

A seemingly mundane August 23 debate over who should govern state militias helps to illuminate the purpose of what later became the Second Amendment. The proposition on the table was to empower the national government to “make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-“ Elbridge Gerry immediately objected that enabling the national government to “arm” militias “would be regarded as an instrument of … Continue reading August 23: Seeds of the Second Amendment