The Constitution at War with Itself
My review of Noah Feldman’s The Broken Constitution: Lincoln, Slavery, and the Refounding of America at The Bulwark. Continue reading The Constitution at War with Itself
Author: George Thomas
Nondelegation and the (Un)Written Constitution
Thanks to Greg for his thoughtful comments—and especially for his generous praise of the book and essay. I agree with him that text and structure very often go together and that unwritten constitutional claims that are rooted in text and structure merit greater deference. Or, as I think I’d put it, are simply more powerful claims. On this, let me highlight the book’s title, which should matter to textualists: It’s the (Un)Written Constitution, because the written text is primary; it is what we are interpreting. But because the written text does not always explain itself, we read the text based on underlying ideas. This … Continue reading Nondelegation and the (Un)Written Constitution
Understanding the Filibuster
The National Constitution Center has a great new We the People podcast on the filibuster. The discussion between Josh Chafetz and Jay Cost sheds an incredible amount of light on the history of the filibuster—including that something like it was first used in the House, not the Senate. It’s also just a fascinating discussion of the development of the filibuster, how it fits within American institutions more broadly, and how it functions today. While Chafetz and Cost disagree about the filibuster in today’s politics, they both agree with Jeff Tulis that the “talking filibuster” is much better than the current filibuster, … Continue reading Understanding the Filibuster
The Meaning of the Fourteenth Amendment
There’s a terrific symposium on an important new book by Randy Barnett and Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, at Law and Liberty. It’s especially interesting because much of the focus of Barnett and Bernick’s book is rightly on the Privileges or Immunities clause, which should have pride of place in Section 1 of the amendment. Yet it’s been neglected by the Court, and even dismissed by Justice Scalia as the “darling of the professoriate” (an odd move for a putative originalist). The essays engaging the book—especially by Christopher Green, Julia Mahoney, and Ilan Wurman—are really … Continue reading The Meaning of the Fourteenth Amendment
Avoiding the Chaos of a Another Jan 6
There’s a great We the People podcast, from the National Constitution Center with Jeffrey Rosen, on reforming the Electoral Count Act: https://constitutioncenter.org/debate/podcasts It clearly outlines the problems with the Act and how it could be reformed to avoid the sort of ambiguities that were exploited in the 2020 election. It’s with Ned Foley and Brad Smith who co-authored an op-ed in the Washington Post along with Michael McConnell and Richard Pildes: “to avoid a repeat of Jan. 6, or worse, Congress must rewrite the Electoral Count Act, the outmoded 1887 law that governs the certification of the presidential vote. There is a pressing need … Continue reading Avoiding the Chaos of a Another Jan 6
Is January 6 Partisan?
I appreciate Ben’s thoughts on political exhaustion and largely agree with what he has to say about debates around school curriculum in this post. I’m much less certain about his take on January 6. He’s right that many fellow citizens voted for and supported Trump. We should want to know why they supported him. And we should take some of those reasons seriously. But if we are, as Ben says, to think through founding principles, an essential one—the essential one—is the peaceful transfer of power. That principle was rejected by a sitting president and his party has largely lined up behind him on … Continue reading Is January 6 Partisan?
Political Exhaustion and Democratic Collapse
I think Ben misses the point of Charlie Sykes’s piece on exhaustion, and especially Jeff’s thought that exhaustion ought to be studied alongside other political phenomena. The Sykes essay recognizes Ben’s point that in many ways there’s been “too much politics.” As Sykes notes: “The world is too much with us, of course, but the real problem it is that it so dumb, so infused with mind-numbing bad faith, and a grinding sense of futility that anything will matter or change.” We’re exhausted by the persistent assaults on the public mind by the likes of the Big Lie. We’re exhausted by Republicans gaslighting … Continue reading Political Exhaustion and Democratic Collapse
Republican Self-Government and Judicial Restraint
I appreciate Greg’s linking judicial restraint to the primacy of republican self-government. And I especially appreciate his insistence that constitutional issues must be the concern of the political branches and the people, not simply the courts. Indeed, I’ve been perplexed in the last several years by originalists of one form or another who take comfort in the fact that President Trump appointed originalist jurists, while undermining the Constitution in so many other ways. “But Gorsuch” was a perverse embrace of judicial supremacy and a legalized Constitution. So Greg and I are in ready agreement that the Court, despite its claims to the contrary, is not … Continue reading Republican Self-Government and Judicial Restraint
Court Reform and Judicial Self-Restraint
Like Jeff Tulis, I admire Adam White’s work. I appreciate both his skepticism of court-packing and his case for self-restraint. And I certainly appreciate Greg Weiner’s point that political actors should not push their constitutional power to the limit. That institutional restraint can be a virtue. Though, if anything, Congress often seems too restrained. But two points are in order. First, White is right to worry about whether court-packing and terms limits might cause the Court to be more politicized. In the current environment, he points to some important problems with 18 year term limits for the justices oriented around … Continue reading Court Reform and Judicial Self-Restraint
More on January 6th
The January 6 Committee continues to uncover extraordinarily valuable information. It is putting together a comprehensive picture of the disturbing events that led up to that day. And Liz Cheney has been exquisite. She has been clear that the attack on the Capitol was part of a larger effort by President Trump to overturn the election. She’s made the case that he was attempting to hinder Congress in carrying out its constitutional duties in an effort to disrupt the peaceful transfer of power. Watch her here. And here. She’s also clear-eyed that Trump’s elections lies continue to be a threat to the future … Continue reading More on January 6th