New Year
Here is a sober assessment of the constitutional order in 2022 and advice for 2023 by E. J. Dionne. https://www.washingtonpost.com/opinions/2023/01/01/2022-democracy-ukraine-good-year/ Continue reading New Year
Category: Recommended Reading
A Trump Inventory
Donald Trump’s outrageous misdeeds are so numerous that one tends to lose track of them. Part of his effectiveness as a demagogue stems from the normalization of these deeds and words — a process assisted by the prodigiousness of his malfeasance. So it is useful to occasionally remind ourselves of many of the low points of the Trump era. Jeffrey Isaac does that well in his recent piece here, at The Bulwark. Continue reading A Trump Inventory
Charles Zug on Justice Alito
Here is a useful take on Justice Alito’s extra-judicial speechmaking. Continue reading Charles Zug on Justice Alito
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
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
Getting Traction
Absolutely delighted to see that the idea of a talking filibuster is getting serious attention. Continue reading Getting Traction
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