Nondelegation and the Unwritten Constitution

George and I had a brief exchange on Twitter (here, here, here and here) about the nondelegation doctrine, and since The Constitutionalist allows more than 280 characters, I thought it might be interesting to continue it here. George wrote, quite correctly, that the nondelegation doctrine depends on understandings of the separation of powers that cannot be found in the constitutional text. (On the “unwritten constitution” generally, see George’s excellent new book of that title and his essay at this site regarding it.) My question was whether structural arguments are separable from textual ones. In other words, there are unwritten understandings, … Continue reading Nondelegation and the Unwritten Constitution

Constitutional Conservatism and the Electoral College

At The New York Times, J. Michael Luttig, formerly a judge on the U.S. Court of Appeals for the Fourth Circuit, makes a compelling conservative case for clarifying the Electoral Count Act. Self-described constitutional conservatives like Senators Ted Cruz of Texas and Josh Hawley of Missouri exploited the Act’s ambiguity to attempt to overturn the 2020 presidential election last January 6, adding oxygen to the fire that Donald Trump had lit and fanned with weeks of falsehoods. Luttig’s conservative case for the Electoral College is firmly rooted in federalism and equally firmly opposed to centralization. He writes: “It should be … Continue reading Constitutional Conservatism and the Electoral College

A 5 mph Speed Limit?

Earlier this week, introducing his plan to reduce roadway deaths, Transportation Secretary Pete Buttigieg declared that “every driver, passenger, and pedestrian should be certain that they’re going to arrive at their destination safely, every time.” This was anodyne rhetoric, and in the scheme of things, it probably actually was harmless. But harmless rhetoric can be revealing, and this statement revealed a continued erosion of our understanding that there are limits and tradeoffs involved in most facets–make that “every” facet–of political life. There is a way to reduce roadway deaths to zero. It is to reduce the speed limit to 5 … Continue reading A 5 mph Speed Limit?

Asymmetrical Illiberalism

Jonathan Rauch and Peter Wehner have a terrific essay in The New York Times today about the asymmetry between left and right illiberalism, the former of which is a serious problem while the latter of which is a direct threat to the constitutional order. The power of the essay lies in the fact that, in concluding that illiberalism on the right is more dangerous, it does not downplay or excuse illiberalism on the left. From the essay: Fears about the left’s increasingly authoritarian, radical tendencies are well grounded; but they have blinded many conservatives to the greater danger posed by … Continue reading Asymmetrical Illiberalism

Recent Writing

I’ve published a couple of recent essays. One was at Law and Liberty and dealt with how conservatives should view January 6. It might be interesting to those who have followed the excellent conversation on January 6 on this blog. The second, which appears in the winter edition of National Affairs, deals with a topic that has interested me for several years: the tension between Enlightenment science and Enlightenment politics. Long story short, the former seeks control while the latter seeks liberty. The essay is called “Liberty and the Conquest of Chance” and is available here. Continue reading Recent Writing

Restraining Judicial Restraint

I agree with George that judicial restraint in and of itself does not provide a standard for judging. It may be worth separating two questions: the scope of judicial authority on the one hand and how it should be used on the other. Left wholly to itself, judicial restraint would be agnostic as to how cases should be decided. It would only care whether they should be decided. In other words, one could be an originalist or a living constitutionalist and still believe judges should be restrained. That is inextricable from a belief that constitutional questions are not the exclusive … Continue reading Restraining Judicial Restraint

Adam White on Court Reform and the Politics of Self-Restraint

Earlier today, the White House released a statement from Adam White, who served on the President’s Commission on the Supreme Court of the United States, outlining why he believes the reforms the panel analyzed are dangerous. It merits careful reading. White puts reforms to a simple test: “Would the changes improve the Court’s capacity to function as a court?” His answer is emphatically no to court-packing. He delivers an compelling rebuttal to term limits for the Court. If these are keyed to presidential terms, White argues, they risk delegitimizing the Court by dragging them further into the rhythms of electoral politics. White’s … Continue reading Adam White on Court Reform and the Politics of Self-Restraint

The Press and the Rights Culture

This headline from Fox News on last week’s arguments in Carson v. Makin—the Supreme Court case deciding whether parochial schools can be excluded from a state program that provides tuition for other private schools—illustrates a problem with the way the media covers rights cases. The headline reads: “Justices offer support for religious rights in Maine education case.” The case for religious rights in Carson v. Makin is reasonable, perhaps strong. But whether religious rights are being violated in the first place is the whole question. The headline’s assertion of ”religious rights” presumes what is actually in dispute. Fox News is … Continue reading The Press and the Rights Culture

Bob Dole’s Summons

Bob Dole’s posthumous op-ed in The Washington Post is a compelling call to restore shared values. From the essay: There has been a lot of talk about what it will take to heal our country. We have heard many of our leaders profess ‘bipartisanship.’ But we must remember that bipartisanship is the minimum we should expect from ourselves. America has never achieved greatness when Republicans and Democrats simply manage to work together or tolerate each other. We have overcome our biggest challenges only when we focused on our shared values and experiences. These common ties form much stronger bonds than … Continue reading Bob Dole’s Summons