Claremont Institute Dissembles 

I agree entirely with Greg Weiner’s post on The Claremont Institute. To follow the Clue analogy, the evidence suggests, contrary to the Claremont Institute’s dissembling statement, that Eastman was doing far more than offering legal advice.  Here’s the memo itself. Maybe it could be read as only offering advice to Vice President Pence on his authority under the 12th Amendment.  But here’s Eastman on Jan 6, where he “demands” that Vice President Pence exercise his constitutional “authority” to pause the counting of the state certified EC votes: https://www.c-span.org/video/?c4933578/user-clip-rudy-giuliani-professor-john-eastman Continue reading Claremont Institute Dissembles 

Claremont Institute Dissembles 

I agree entirely with Greg Weiner’s post on The Claremont Institute. To follow the Clue analogy, the evidence suggests, contrary to the Claremont Institute’s dissembling statement, that Eastman was doing far more than offering legal advice.  Here’s the memo itself. Maybe it could be read as only offering advice to Vice President Pence on his authority under the 12th Amendment.  But here’s Eastman on Jan 6, where he “demands” that Vice President Pence exercise his constitutional “authority” to pause the counting of the state certified EC votes: https://www.c-span.org/video/?c4933578/user-clip-rudy-giuliani-professor-john-eastman Continue reading Claremont Institute Dissembles 

Election Subversion and the Real Enemies of Democracy

This conversation with Bill Kristol and U Chicago law prof William Baude on the very real possibility of election subversion is worth watching. It gives us good reasons to be alarmed, without being alarmist. As Baude writes in an essay the conversation is based on, ”The real enemies of democracy . . . are those who try to ignore the rules of the game after they have already lost it. This past election, that means the real enemies of democracy were President Donald Trump and those who fought for him.” What are the chances of successfully subverting the election in … Continue reading Election Subversion and the Real Enemies of Democracy

Justice Gorsuch is Right–We should Rethink “New York Times v. Sullivan”

George Thomas is the Wohlford Professor of American Political Institutions and Director of the Salvatori Center at Claremont McKenna College. Professor Thomas is a regular contributor to The Constitutionalist. Dissenting from a Supreme Court order that declined to take up a … Continue reading Justice Gorsuch is Right–We should Rethink “New York Times v. Sullivan”

The Eviction Moratorium and Constitutional Distortion

Greg Weiner has a good piece at the NY Times about President Biden’s eviction moratorium and Congress’s reluctance to legislate. Biden was right the first time: Congress should act to extend the moratorium if it thinks it’s necessary. Greg captures how constitutionally distorted the system has become, with members of Congress urging the executive to act in their place. Yes, it seems likely that Congress was not going to extend the moratorium, but that does not create executive power to do so. Why not urge state and local governments to take action? But this has become routine, with Congress regularly deferring to the executive … Continue reading The Eviction Moratorium and Constitutional Distortion

January 6th and the Authoritarian Temptation

David Frum in The Atlantic on January 6: “January 6 was the last exit. If you can shrug it off as no big deal, just another incident of Trump talking too much, then you have already signed up for the next incident—and the one after that.” As Frum notes, in the wake of January 6 the authoritarian temptation, with increased calls for violence, has become more evident on the right. “The yearning for a Caesar to repress the woke mob is expressed more and more explicitly, hence the appeal to even the highest-toned of today’s conservative intellectuals of Hungary’s Viktor Orbán, Poland’s Law and Justice … Continue reading January 6th and the Authoritarian Temptation

The Claremont Institute’s Ugly Turn

At The Bulwark, Laura Field has a thoughtful, fair, and painstaking analysis of the Claremont Institute’s ugly and irresponsible turn.  “That Claremont has been unparalleled in its intellectual submission to Trumpism should give us pause. After all, in some respects the Claremont crowd is precisely the sort who should have known better: deeply read in political philosophy and history, and familiar with the many warning signs that Trump would be a damaging and divisive president. There is also a sense, however, in which the Claremont crowd’s submission to Trump was the most predictable thing in the world—the simple culmination of a political … Continue reading The Claremont Institute’s Ugly Turn

Judicial Deference, Legislative Motives, and Constitutional Ends

Greg offers a thoughtful response to the tension between judicial deference and constitutional principle. Let me begin with our agreement. I think Greg is altogether correct that protecting liberties is not the task of the judiciary alone. It is, as he puts it, the important work of “civic cultivation” that cannot simply be handed off to the judiciary. And insofar as representatives, citizens, and associations in civil society leave this to the judiciary alone, our liberties are likely to be less secure. As Judge Learned Hand, famous for situating himself in the tradition of judicial deference with James Bradley Thayer, put it … Continue reading Judicial Deference, Legislative Motives, and Constitutional Ends

Is Judicial Deference Principled?

Greg Weiner articulates a compelling argument for judicial deference—all things considered—to the elected branches of government. As he puts it: judges “can avoid decisions because someone else has already made them: elected officials. A reasonably consistent posture of deference to the elected branches . . . serves dual institutional purposes.”  I want to push the tension between principle and deference a bit more than Greg does. On its face, judicial deference offers a modest institutional role for judges. This understanding rests squarely on a view that decisions made by legislative majorities are preferable to unelected judges. It is a powerful take. And right, … Continue reading Is Judicial Deference Principled?