The Abortion Decision and Civic Literacy

I had the purely coincidental experience of teaching today both Roe and Casey in my Constitutional Experience course required of all Baylor students, so there are 250 of them in my class. That in combination with my browsing of Twitter (I’m on it too much now) convinces me that this decision illustrates well that we have a profound civic literacy problem. Many on Twitter and many in my class (apparently I haven’t taught them well) seemed to think that the decision would mean the immediate stoppage of all abortions nationwide. Some on Twitter worried that this decision would have an … Continue reading The Abortion Decision and Civic Literacy

Problem Judge

Following up on Ben’s post on the Florida District Judge ruling against the national mask mandate for public transportation, here is an illuminating analysis of her decision. This judge, nominated by Donald Trump, was confirmed after after President Biden was elected but before Biden was inaugurated. The ABA had deemed her “not qualified” for the federal bench. Although she held a number of clerkships, including one for Justice Clarence Thomas, she had never tried a civil or criminal case. She was 33 years old when confirmed. She now holds a lifetime appointment. Continue reading Problem Judge

The District Court’s Nationwide Injunction Against Mask Mandates

In a far reaching decision, a District Court in Florida ruled today that President Biden did not have the statutory authority to issue his mask mandate for all travelers nationwide. In doing so, the Court claimed that its ruling had to include an immediate injunction against the nationwide enforcement of the mandate. In other words, its ruling does not just apply to the specific case arising between these plaintiffs who object to the mandate and the government that seeks to enforce it. As the reasoning in the case itself shows, it would have been conceivable for the District Court to … Continue reading The District Court’s Nationwide Injunction Against Mask Mandates

Upcoming Event

An event of interest to readers of The Constitutionalist. h/t Jeremy Fortier On March 30th CCNY will host a forum over Zoom to discuss Danielle Allen’s contributions to scholarship and public life. Speakers are Ryan Balot, Susan McWilliams Barndt, Jamelle Bouie, Simone Chambers, Roosevelt Montás, and Deva Woodly.  Details and registration information are available at this link, in the event that it’s of interest: As the list of speakers hopefully indicates, the objective of the forum could be expressed by The Constitutionalist’s stated aim of “Using expertise in political philosophy, American political development, public law, and political culture and literature… to foster conversation … Continue reading Upcoming Event

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

Nondelegation and the Unwritten Constitution

George and I had a brief exchange on Twitter (here, here, here and here) about the nondelegation doctrine, and since The Constitutionalist allows more than 280 characters, I thought it might be interesting to continue it here. George wrote, quite correctly, that the nondelegation doctrine depends on understandings of the separation of powers that cannot be found in the constitutional text. (On the “unwritten constitution” generally, see George’s excellent new book of that title and his essay at this site regarding it.) My question was whether structural arguments are separable from textual ones. In other words, there are unwritten understandings, … Continue reading Nondelegation and the Unwritten Constitution

Constitutional Conservatism and the Electoral College

At The New York Times, J. Michael Luttig, formerly a judge on the U.S. Court of Appeals for the Fourth Circuit, makes a compelling conservative case for clarifying the Electoral Count Act. Self-described constitutional conservatives like Senators Ted Cruz of Texas and Josh Hawley of Missouri exploited the Act’s ambiguity to attempt to overturn the 2020 presidential election last January 6, adding oxygen to the fire that Donald Trump had lit and fanned with weeks of falsehoods. Luttig’s conservative case for the Electoral College is firmly rooted in federalism and equally firmly opposed to centralization. He writes: “It should be … Continue reading Constitutional Conservatism and the Electoral College

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

A 5 mph Speed Limit?

Earlier this week, introducing his plan to reduce roadway deaths, Transportation Secretary Pete Buttigieg declared that “every driver, passenger, and pedestrian should be certain that they’re going to arrive at their destination safely, every time.” This was anodyne rhetoric, and in the scheme of things, it probably actually was harmless. But harmless rhetoric can be revealing, and this statement revealed a continued erosion of our understanding that there are limits and tradeoffs involved in most facets–make that “every” facet–of political life. There is a way to reduce roadway deaths to zero. It is to reduce the speed limit to 5 … Continue reading A 5 mph Speed Limit?