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

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

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

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

Recent Writing

I’ve published a couple of recent essays. One was at Law and Liberty and dealt with how conservatives should view January 6. It might be interesting to those who have followed the excellent conversation on January 6 on this blog. The second, which appears in the winter edition of National Affairs, deals with a topic that has interested me for several years: the tension between Enlightenment science and Enlightenment politics. Long story short, the former seeks control while the latter seeks liberty. The essay is called “Liberty and the Conquest of Chance” and is available here. Continue reading Recent Writing

More on January 6

After his superb speech, President Biden was asked questions by reporters in the hallway of the Capitol. Some had questions born of Ben Kleinerman’s perspective. Ben praised the end of the speech where Biden called for unity and healing. A reporter asked whether that was inconsistent with the bulk of the speech. How can you ask people to heal and unify after you had skewered the former President? Biden’s response was that before one can heal one has to face up to the wound. The January 6 investigation in Congress, the Vice President’s speech, the President’s speech, the Attorney General’s … Continue reading More on January 6