The Democrat Progressives Should Blame

I have an essay at The New York Times this morning arguing that James Madison is far more to blame for progressive frustrations than either Joe Manchin or Kyrsten Sinema is. The piece tries to show that the primary test of Madisonian legitimacy is whether a majority has cohered for an interval proportionate to the scale of its desires. According to its own supporters’ boasts, the Build Back Better plan would be a historic, generational change to the social safety net akin to the New Deal or Great Society. In that case, it needs an enduring majority behind it. Instead, … Continue reading The Democrat Progressives Should Blame

The Case for Constitutional Amendments

I have an essay at Law and Liberty today on constitutional amendments. Law and Liberty has a terrific series called “Liberty Forum” that includes an essay and several responses. My essay today is a response to Professors John McGinnis and Michael Rappoport, who made an originalist case for more amendments. The response draws on work Ben Kleinerman and I did several years ago on how Federalist 49’s case for constitutional veneration has been misunderstood to make the Constitution untouchable. Continue reading The Case for Constitutional Amendments

Roe and Public Opinion

The Washington Post published a poll this morning showing that a significant majority of Americans support Roe v. Wade and do not think the Supreme Court should overturn it. That says something about the intrinsic tensions of rights talk at the Court. If broad majorities support access to abortion, there is no reason for the Supreme Court to intervene. Those majorities would be reflected in legislation. The truth, of course, is more complicated: Public opinion varies notably by state. More important, the stark choices the poll offers–which distill to whether abortion should be legal or illegal–do not pick up the … Continue reading Roe and Public Opinion

In Defense of the Enduring: A Reply to Charles Zug

I appreciate Charles Zug’s reply to my post on endurance and the canon. Charles writes, correctly, that ideas can persevere either because they have value or because they serve the interests of powerful groups oppressing less powerful ones. He observes, by way of example, that John C. Calhoun’s and George Fitzhugh’s defenses of slavery were expressions of naked self-interest. That is unquestionably right. But two points are worth noting. One is that the odious “positive good” argument for enslavement did not endure. Calhoun first made it in an 1837 Senate speech. Even fellow southerners like Virginia’s William Cabell Rives found … Continue reading In Defense of the Enduring: A Reply to Charles Zug

Endurance and the Canon

I appreciate, and generally agree with the conclusions of, Ben Kleinerman’s recent post on the universal relevance of great books. But I would take issue with one point. Ben writes: It is insufficiently appreciated that the Western Tradition isn’t simply the preserve of old white men dedicated to the preservation of what’s old merely because it’s what’s old. At its worst, “tradition-preservers” defend it on those grounds. Those grounds, however, are both insufficient as a defense and insufficient even as an explanation for why we should take it seriously. I am unaware of traditionalists who seek to preserve what is … Continue reading Endurance and the Canon

What Was Ever Wrong With Original Intent?

A recent book from Donald Drakeman–The Hollow Core of Constitutional Theory: Why We Need the Framers–addresses a question that has troubled me for some time. As textualists torture text, and advocates of original public meaning go searching for what cannot be objectively ascertained, what was ever wrong with original intent? The originalist case against original intent, in brief, was that the personal intentions of legislators could not control the meaning of law. Allowing individual intentions to determine meaning for everyone was thought to be anti-republican. The solution was original public meaning, the search not for what the lawmaker meant but … Continue reading What Was Ever Wrong With Original Intent?

The Vaccination Order, Executive Overreach and Legislative Abdication

The Fifth Circuit has correctly noted that President Biden’s executive order invoking the Occupational Safety and Health Act to mandate COVID-19 vaccinations for large employers raises “grave constitutional and statutory issues.” Biden’s application of the Act’s provision for “emergency temporary standards”–which pertains to exposure to “substances or agents that are deemed to be toxic or physically harmful or from new hazards”–to COVID-19 is a stretch. The Act’s references to substances generally refer to toxic chemicals, while its uses of “agents” almost always deal with “physical agents” such as excessive noise. “Hazards,” meanwhile, are workplace dangers like equipment that could injure … Continue reading The Vaccination Order, Executive Overreach and Legislative Abdication

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