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?

The Confederacy Resurgent?

The Governor of Texas, Greg Abbot, just signed a law establishing the 1836 Project to promote patriotic education and Texas values. In 1836 Texas declared itself an independent republic. In doing so, Texas not only sanctioned slavery (which had been prohibited), but made clear the subordinate position of Blacks. Sections 9 and 10 of the 1836 Constitution prohibited individuals from emancipating enslaved Blacks, denied citizenship to those of African descent, and prohibited free Blacks from residing in the state. Here’s Section 9 in full:    SEC. 9. All persons of color who were slaves for life previous to their emigration to Texas, and who are now … Continue reading The Confederacy Resurgent?

Noah Webster, Critical Race Theorist?

While Republican controlled legislatures have passed a slew of laws that prohibit the teaching of Critical Race Theory, it’s not entirely clear just what they are prohibiting. That’s a real concern. Will such laws have a chilling effect on how race is taught in the classroom? Will it prohibit teaching race in a way that might make students uncomfortable? Will it force teachers to white-wash American history when it comes to race?  Republicans, meet Noah Webster, forgotten founding father. Webster, America’s great lexicographer, is famous for his American Dictionary of the English Language. But his dictionary, the work of a lifetime, was only … Continue reading Noah Webster, Critical Race Theorist?

Anti-Democratic Conservatism

Over at The Bulwark, Jonathan Tait has an excellent piece, “Anti-Democratic Conservatism Isn’t New.” Tait reminds us how divisions about democracy and racial equality were central in the forging of modern conservatism.  Here’s a short excerpt that focuses on William Buckley: “The central question,” Buckley argued, was not merely one of rights. It was whether “the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically? The sobering answer is Yes.” Through high-minded and principled-sounding language, Buckley insisted that white southerners could suppress the black … Continue reading Anti-Democratic Conservatism

A January 6th Commission

Will January 6th be the new norm? More pointedly, will efforts to overturn the results of close elections become an ordinary feature of American politics? In close elections, will state legislatures refuse to certify elections results if a candidate from the other party won? Will the House and Senate refuse to acknowledge the counting of electoral votes if the candidate of the other party won?  Such questions go to the heart of American democracy.   Liz Cheney is right that we should have a January 6th commission to fully understand the events the culminated in the attack on the Capitol. As she writes in … Continue reading A January 6th Commission

The GOP and Constitutional Democracy

The late political scientist E.E. Schattschneider famously said that “modern democracy is unthinkable save in terms of the parties.” Two healthy political parties committed to the constitutional order, even while disagreeing in powerful ways, are essential to maintaining constitutional democracy. While it is true that both parties on occasion have factions that are less committed to constitutional democracy than would be ideal, the GOP has taken a particularly dangerous turn in recent years as these forces have largely taken over the party.  As Peter Wehner writes in The Atlantic: “All Americans should hope the Republican Party regains its philosophical bearings and moral … Continue reading The GOP and Constitutional Democracy

Calhoun, Madison, and Minority Rule

Adam Jentleson has an essay at The Atlantic on the problems of minority rule and the filibuster. The filibuster is often justified as fostering deliberation, requiring the building of broad and complex majorities that cross the partisan divide. It might be particularly defensible when it comes to the appointment of judges—requiring 60 senators to approve of such lifetime appointments. But that’s no longer the case. In point of fact, as Jentleson shows, the filibuster really serves to empower a minority veto on routine lawmaking. It owes far more to the thinking of John Calhoun than James Madison:  “In his Disquisition on Government, Calhoun complained … Continue reading Calhoun, Madison, and Minority Rule