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

August 9, 10 and 11: Republican Nationalism

Today is catchup day: reflections on the debates of August 9, 10 and 11. On August 9, the delegates discussed an issue with contemporary resonance: immigration. The question was how long senators should have to have been citizens before serving. The proposition on the table was four years. Gouverneur Morris, fearing foreign agents as senators—or at least foreign intrigues to influence the Senate—moved to extend it to 14 years. That sparked firm responses from Madison, Franklin and Wilson. Madison felt the restriction involved “a tincture of illiberality” that might affect all immigrants, not just senators. If the Constitution succeeded, “men who … Continue reading August 9, 10 and 11: Republican Nationalism

Legal Authority and the Eviction Moratorium

The Washington Post reports that progressive Democrats have “erupt[ed] in fury” at the Biden Administration because the Centers for Disease Control did not renew its moratorium on evictions. The Administration’s critics may be right on the policy, but they are wrong on the law. The difference matters. The CDC imposed the moratorium as a public health measure, worrying that a wave of evictions resulting from the economic devastation of the early pandemic would trigger community spread of the coronavirus. The Supreme Court has indicated the executive branch has no further authority. The CDC has no free-ranging economic power, nor should … Continue reading Legal Authority and the Eviction Moratorium

July 25: Who Wrote the Virginia Plan?

On July 25, as the Convention moved gradually toward an Electoral College as the mode of choosing Presidents, Madison took a stand against appointment by Congress:  Election by the legislature was, he said, liable to insuperable objections. Besides the general influence of that mode on the independence of the Executive, 1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with … Continue reading July 25: Who Wrote the Virginia Plan?