Roe and the Possibility of Compromise

This essay by Jon Shields of Claremont McKenna bears reading. Its thesis is that a difficult compromise on abortion can be reached by appealing to how most Americans view the issue: namely, Americans are more comfortable with abortions early in pregnancy and likelier to endorse fetal rights as pregnancy proceeds. Significantly, an atmosphere that is at least riper for compromise coincides with the possible demise of Roe v. Wade. Roe and its progeny are the textbook cases of the Court trying to resolve a social controversy and intensifying it instead. Had the matter been left to legislatures, they would have … Continue reading Roe and the Possibility of Compromise

Election Subversion and the Real Enemies of Democracy

This conversation with Bill Kristol and U Chicago law prof William Baude on the very real possibility of election subversion is worth watching. It gives us good reasons to be alarmed, without being alarmist. As Baude writes in an essay the conversation is based on, ”The real enemies of democracy . . . are those who try to ignore the rules of the game after they have already lost it. This past election, that means the real enemies of democracy were President Donald Trump and those who fought for him.” What are the chances of successfully subverting the election in … Continue reading Election Subversion and the Real Enemies of Democracy

The Problem with Natural Law Constitutionalism

Hadley Arkes has a characteristically compelling essay at the Wall Street Journal (paywall) arguing that judges should root their rulings in the enduring truths that precede and undergird the law. For example, he writes, an appeal to natural law can resolve the question of abortion on firmer ground than the traditional claim of conservative judges that the Constitution does not speak to the issue. It’s worth the read, as Arkes always is. But it is also problematic. I’ve argued against Arkes’ views more completely here. A couple of brief points are worth noting. One is the issue of authority, which is itself a moral issue … Continue reading The Problem with Natural Law Constitutionalism

Thunder on the Mountain

For reasons I don’t quite understand myself, the current controversy at the American Political Science Association brought to mind this Bob Dylan song. The APSA meets this week in Seattle with many members attending remotely online. Among the panels on the preliminary schedule are some sponsored by outside organizations given affiliated status. For many years the Claremont Institute has been among these groups. This year Claremont advertised a panel that included the insurrectionist and vile minor league law professor John Eastman. As readers of The Constitutionalist will know, Eastman delivered an incendiary speech at Trump’s insurrection rally, and had planned … Continue reading Thunder on the Mountain

A Must Read Essay in the Washington Post

Robert Kagan has written an extraordinary essay in the Washington Post detailing the danger that Donald Trump and his followers pose to the viability of the American constitutional order. One point that deserves attention is that the many sophisticated academic and journalistic arguments that seek to trace the roots of Trump in conservatism, in the modern Republican party, or in the pathologies of the constitutional order itself unwittingly contribute to the demise of democracy today. It is not that there is no truth to those sophistications. It is rather that the truthful elements pale in comparison to the ways in … Continue reading A Must Read Essay in the Washington Post

When Scholars Subvert Truth to Politics

A while back, I wrote about an accusation that my criticism of Trumpism was poor strategy, since it did not serve the conservative cause. Herewith, what happens when scholars subvert truth to politics: CNN has published John Eastman’s chilling memo outlining how then-Vice President Mike Pence could declare Donald Trump to be the choice of the Electoral College in 2020. Eastman was a law professor when he wrote it, though he resigned shortly afterward. There is a long tradition in Western thought of the scholar-statesman, from Cicero to, more recently, Daniel Patrick Moynihan. It is an admirable tradition. Moreover, no … Continue reading When Scholars Subvert Truth to Politics

January 6th and the Authoritarian Temptation

David Frum in The Atlantic on January 6: “January 6 was the last exit. If you can shrug it off as no big deal, just another incident of Trump talking too much, then you have already signed up for the next incident—and the one after that.” As Frum notes, in the wake of January 6 the authoritarian temptation, with increased calls for violence, has become more evident on the right. “The yearning for a Caesar to repress the woke mob is expressed more and more explicitly, hence the appeal to even the highest-toned of today’s conservative intellectuals of Hungary’s Viktor Orbán, Poland’s Law and Justice … Continue reading January 6th and the Authoritarian Temptation

More on July 17

Greg Weiner’s very useful post on Madison’s efforts to advance a national veto over state legislation offers a good opportunity to make a larger point about the Convention and the Constitution. It is striking how nationalist Madison is in the convention compared to his later efforts as a partisan within Jefferson’s party — a party that can be understood as an heir to the anti-federalist tradition. In the convention debates, as recorded in his Notes, Madison is more forthrightly nationalist than he is in The Federalist, where his argument is more circumspect and iterative. Recently we learned that Madison’s Notes … Continue reading More on July 17

The Claremont Institute’s Ugly Turn

At The Bulwark, Laura Field has a thoughtful, fair, and painstaking analysis of the Claremont Institute’s ugly and irresponsible turn.  “That Claremont has been unparalleled in its intellectual submission to Trumpism should give us pause. After all, in some respects the Claremont crowd is precisely the sort who should have known better: deeply read in political philosophy and history, and familiar with the many warning signs that Trump would be a damaging and divisive president. There is also a sense, however, in which the Claremont crowd’s submission to Trump was the most predictable thing in the world—the simple culmination of a political … Continue reading The Claremont Institute’s Ugly Turn