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
Category: Blog
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?
Asymmetrical Illiberalism
Jonathan Rauch and Peter Wehner have a terrific essay in The New York Times today about the asymmetry between left and right illiberalism, the former of which is a serious problem while the latter of which is a direct threat to the constitutional order. The power of the essay lies in the fact that, in concluding that illiberalism on the right is more dangerous, it does not downplay or excuse illiberalism on the left. From the essay: Fears about the left’s increasingly authoritarian, radical tendencies are well grounded; but they have blinded many conservatives to the greater danger posed by … Continue reading Asymmetrical Illiberalism
Getting Traction
Absolutely delighted to see that the idea of a talking filibuster is getting serious attention. Continue reading Getting Traction
Voting Rights or Bust!
The New York Times reports: “In an embarrassing setback for Mr. Biden, Senator Kyrsten Sinema, Democrat of Arizona, stunned her colleagues just hours before the president was slated to make his case to them in person at the Capitol by taking the Senate floor to declare that she would not support undermining the filibuster to pass legislation under any circumstances.” Senator Sinema disappointed colleagues and citizens who had hoped for progress on passing legislation to protect voting rights. But Sinema “was cheered by Republicans who credited her with nothing less than protecting the Senate.” Why has President Biden and Senate … Continue reading Voting Rights or Bust!