Category: Comment

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Dobbs, Civic Education, and Judicial Supremacy

Benjamin A. Kleinerman

The Dobbs decision has divided our nation–perhaps even more than it was already divided. The pro-lifers have celebrated the decision, while the pro-choicers have bitterly denounced it. Many pro-lifers have celebrated a decision that they think has made abortion illegal nationwide; pro-choicers denounce it for the same reason. But the decision hasn’t actually affected the nation, as a whole. Instead, the Supreme Court majority has reversed Roe by returning the decision about the legality of abortion to the states, where, as the dissenters in Roe itself argued, it always belonged. The question in Dobbs is not whether legalizing abortion is … Continue reading Dobbs, Civic Education, and Judicial Supremacy

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Lara Logan’s Brain Disease and the Discrediting of All Opposition

Benjamin A. Kleinerman

I don’t watch all that much television news and I stay even further away from the 24-hour News Stations like Fox and MSNBC, so I didn’t really know who Lara Logan is. This article, by Jeremy Peters, about Lara Logan did recently cross my Twitter feed. Peters chronicles Logan’s “fall from grace.” Once the up-and-coming Mike Wallace or Dan Rather, she now associates herself with Fox News and with far right causes like the denial of the legitimacy of the 2020 election. Although I have strong objections to the election denials and other right-wing causes Logan has associated herself with, … Continue reading Lara Logan’s Brain Disease and the Discrediting of All Opposition

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The Abortion Decision and Civic Literacy

Benjamin A. Kleinerman

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

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The District Court’s Nationwide Injunction Against Mask Mandates

Benjamin A. Kleinerman

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

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Nondelegation and the (Un)Written Constitution

George Thomas

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

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Understanding the Filibuster

George Thomas

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

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A Short Response to Ben Kleinerman on the Republican Party, Jeff Isaac

The Constitutionalist

I appreciate the attention that both Jeff Tulis and Ben Kleinerman have given to my piece! The topic is an important one, and the discussion here is a good one. It is clear that Ben and I have a fundamental difference of opinion on a matter of political judgment: the nature of the current Republican party. We could argue about this for weeks. There is now a substantial body of commentary, by distinguished students of comparative politics, about how the Republican party has become for all intents and purposes an “anti-system party.” I could cite this literature, and explain why … Continue reading A Short Response to Ben Kleinerman on the Republican Party, Jeff Isaac

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Partisanship, the Big Lie, and January 6th

Benjamin A. Kleinerman

Jeff claims that Jeff Isaac’s essay rebuts my arguments regarding Biden’s speech. It seems to me that his essay actually illustrates, rather than rebuts, my claims. Both Jeffs seem to appreciate and admire the speech. Jeff Isaac calls it “terrific” in that it “renew[ed] the fight to defend democracy.” As I said in my previous post, I too want to defend democracy. The question is, however, how we go about doing that. Isaac wants to fight for the Constitution, but, for him, continuing that fight apparently means fighting the entire Republican party. He writes: “The most important of aspect of … Continue reading Partisanship, the Big Lie, and January 6th

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The Partisanship of Biden’s January 6th Speech

Benjamin A. Kleinerman

George: I agree with almost everything you say here about what Biden should have done with yesterday’s speech. I just don’t agree that Biden’s speech accomplished that. The attempt to build a coalition of constitutional patriots must include the acceptance of party differences. Biden’s speech was more aggressively partisan that that. He was not merely a constitutional partisan; he became a partisan of the Democratic party. He equated Republican politics now regarding, for instance, the federalization of elections with January 6th. I think there are reasons to oppose the federalization of elections that have nothing to do with January 6th. … Continue reading The Partisanship of Biden’s January 6th Speech