GAR: Against the “Lost Cause” and in Favor of Holding Traitors Responsible

This is a a fascinating article mostly focusing on the GAR (The Grand Army of the Republic), a Civil War veterans’ organization that focused a great deal of energy on arguing and lobbying against the post-Civil War attempt by the South to change the narrative of the Civil War so as to include themselves in the memorials to it. About this attempt, the Department Commander for the Indiana GAR wrote in 1914: “While I have long since forgiven my ex-Confederate brother for the terrible mistake he made in trying to destroy this Union of ours…you should remember and never forget … Continue reading GAR: Against the “Lost Cause” and in Favor of Holding Traitors Responsible

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?

The Problem with Symbolic Legislation

This essay by Ronald J. Krotoszynski Jr. makes the relatively uncontroversial point that the laws recently passed in Idaho and Oklahoma banning the teaching of critical race theory in public colleges and universities are unconstitutional. Both a veritable mountain of Supreme Court precedent along with constitutional common sense suggest that this would be the case. A serious commitment to public education is simply incompatible with legislation that directs what can and cannot be taught. Although Krotoszynski cites a long history of Supreme Court precedent suggesting that’s the case, I think most of us would know this simply by consulting our … Continue reading The Problem with Symbolic Legislation

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

Science, Trump, and the Culture War

David Frum has an article in The Atlantic examining what he calls the “pro-Trump culture war on American scientists.” As he notes, Anthony Fauci has become the object of hate by pro-Trump supporters even more than any Democratic politicians. Underlying Frum’s article seems to be the assumption that scientists are merely scientists and that the pro-Trump contingent has wrongly focused their blame on them. Moreover, although Frum recognizes that the Chinese lab-origin story turns out to have more truth than anti-Trumpers want to admit, Frum suggests that we should focus less on that and more on Trump’s mishandling of the … Continue reading Science, Trump, and the Culture War

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 Illiberalism of Speech Apologies

Matthew J. Mayhew recently posted this essay in Inside Higher Ed. It is an earnest and exceedingly odd sequel to his first essay, “Why America Needs College Football.” He has learned that there was an implicit racism in his initial essay that has “deepened the pain experienced by my ignorance related to Black male athletes and the Black community.” He has learned his lesson and the sequel apologizes for the “hurt, sadness, frustration, fatigue, exhaustion and pain this article has caused anyone.” He expresses so much contrition about the “deep ache for the damage I have done” that it feels … Continue reading The Illiberalism of Speech Apologies