A Clarification on the Separation of Powers

I agreed with Ben’s essential point that within the separation of powers we can expect President Biden to have a somewhat different perspective on executive power than candidate Biden or, especially, Senator Biden. That point was about the institution shaping the occupant of the office. That’s embodied in Madison’s famous line about the interests of the office holder being connected to the “constitutional rights of the place.”  I am skeptical, however, that this understanding of the separation of powers captures our contemporary Congress. Ben takes heart that even while Republicans were reluctant to resist President Trump, the fact that they … Continue reading A Clarification on the Separation of Powers

Separation of Powers? Or Separation of Parties?

I think Greg Weiner’s friendly amendment to Ben Kleinerman’s argument may be more than an amendment. What Greg rightly notes is that the logic of the separation of powers should be institutional, not partisan. It is not particularly odd that President Biden sees things differently than Senator Biden. He occupies a different office with different obligations and responsibilities. This is the constitutionally induced hypocrisy that Ben speaks of. (Having said that, Greg is entirely right that there should be principled limits on what the executive is willing to push.) But when members of Congress are what Greg calls “situational constitutionalists,” … Continue reading Separation of Powers? Or Separation of Parties?

Civic Education and Civic Virtue

An upcoming AEI event, Recovering republican virtue in a fractured age, puts these questions front and center. In the first essay of the “Federalist Papers,” Alexander Hamilton noted that it fell to the American people to decide “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” To secure the former would depend on cultivating a kind of public-spiritedness now commonly referred to as “republican virtue.” But what exactly is republican virtue? How should it intersect with … Continue reading Civic Education and Civic Virtue

Democracy and the Constitution

David Frum has an excellent essay at The Atlantic, The Founders were Wrong about Democracy. The Constitution was meant to cultivate complex majorities rather than empower minority rule. Yet Frum is right to ask whether devices meant to channel and refine popular understandings have empowered minority rule. In many instances, they clearly have. But Frum pushes further, asking whether these devices create disorder and instability. Would we better off with simple majority rule on a host of issues? Frum makes a powerful case that “The United States in the 21st century has reached a point where the best way to attain the … Continue reading Democracy and the Constitution

Congress and Deliberation

Jack Rakove has a good piece in the Washington Post pointing out that the filibuster in the Senate does not induce deliberation. Instead, it has essentially become a supermajoritarian requirement to lawmaking giving us a Senate “that prefers parliamentary obstruction to constructive deliberation — something the “greatest deliberative body in the world” now seems incapable of doing.” This is not what James Madison had in mind. On that, Peter Wehner has a great essay that echoes much of what has been said here about representatives actually reasoning and thinking—deliberating about the public good—rather than simply being the mouthpieces of their constituents. As Wehner writes, … Continue reading Congress and Deliberation

The Rhetoric of Impeachment

At the Bulwark, Bryan Garsten makes a powerful case for how to persuade Republicans at Trump’s Senate impeachment trial:“To have a chance at conviction, the managers will have to . . . focus on the audience they want to persuade. They will have to put themselves in the ‘weak’ Republicans’ shoes and imagine what would allow them to vote for conviction.” This is good advice and likely the best way forward.  I want to believe there are 17 Republicans who would vote for removal. And I think the impeachment managers should attempt to persuade them along these lines. It would be shrewd if Speaker Pelosi would add a few Republicans … Continue reading The Rhetoric of Impeachment

Originalist Judges and Constitutional Distortion

Greg is absolutely right that originalists who supported Trump made an awful bargain in constitutional terms. As I wrote in the fall of 2019 in The Bulwark: “’But Gorsuch!’ That’s the worst of it. The president can trample the Constitution but at least there will be conservative justices! This is a devil’s bargain: It risks politicizing the judiciary (admittedly in the name of restoring judges to their proper role), while allowing gross constitutional malfeasance from the chief executive. Under Article VI, all public officials swear an oath to uphold the Constitution because the promise of constitutional government depends on all the … Continue reading Originalist Judges and Constitutional Distortion

Impeachment is about Preservation not Revenge

Bryan Garsten has a good op-ed in the NY Times arguing that Congress should impeach to defend the separation of powers. “The whole country, indeed the world, is watching Congress to see whether it will allow this unprecedented attack incited by the president to go unpunished. If Congress does not utilize the constitutional means of defending itself and deterring future attacks, this moment will come to be regarded by historians as a decisive capitulation, not just to President Trump, but to a dangerous new mode of presidential action.” Read the whole thing. It’s a fitting read alongside Jeff’s recommendation of Timothy … Continue reading Impeachment is about Preservation not Revenge

Further Thoughts on Congress, Sedition, and Impeachment

I would second much of what Greg said. Impeachment is the best option for the reasons he gives.  But we need to take a moment to recognize how numb we’ve become to the awful and extraordinary. The sitting president, who lost an election, urged his supports to violently storm the Congress. They did so to disrupt Congress’s formal counting of electoral votes that would recognize his opponent as the duly elected president. From news reports, many of those storming the Congress were prepared to murder the sitting vice president because he did not go along with the president’s unconstitutional call … Continue reading Further Thoughts on Congress, Sedition, and Impeachment