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

Response to Laura Field on William Thro

Personally, I am more appalled and offended than I am perplexed.  The thrust of the piece is to foist a Christian lens onto the very idea of being a constitutionalist.   So constitutions are only for Christians? Second, Mr. Thro foists a Christian lens onto our specific Constitution even though the only mention of a god is the Lord associated with the numbering of years marking the time  the Constitution was proposed by the Philadelphia convention — as in what we now call the common era.  Madison was able to discuss human nature without reference to God or to theology.  … Continue reading Response to Laura Field on William Thro

Judicial Deference, Legislative Motives, and Constitutional Ends

Greg offers a thoughtful response to the tension between judicial deference and constitutional principle. Let me begin with our agreement. I think Greg is altogether correct that protecting liberties is not the task of the judiciary alone. It is, as he puts it, the important work of “civic cultivation” that cannot simply be handed off to the judiciary. And insofar as representatives, citizens, and associations in civil society leave this to the judiciary alone, our liberties are likely to be less secure. As Judge Learned Hand, famous for situating himself in the tradition of judicial deference with James Bradley Thayer, put it … Continue reading Judicial Deference, Legislative Motives, and Constitutional Ends

Profound Weakness

I respectfully disagree with my thoughtful colleague, Greg Weiner, who just posted praise and elaboration for a recent piece by Matt Bai on the purported dilemma that faced Dr. Deborah Birx when she led the pandemic response for President Trump. She is described as wrestling with the problem of working for an incompetent and self-centered president while trying to advance public health and the common good. Her failure to tell the truth to the American people and to resign when sidelined by the president are depicted as a lack of prudence. That is undoubtedly true, but also so tame and … Continue reading Profound Weakness

Mask Mandates are Reasonable

I suppose I understand Ben’s point that a responsible conservatism does not need a state mandate to enforce socially responsible behavior during a pandemic. That individuals and private associations are willing to act in responsible ways and require mask wearing even if the government does not mandate it. And that’s in contrast to “Trumpian” conservatism that emphasizes rebellion against the state. The latter engages in a kind of posturing, which leads supporters to refuse to wear masks even when they are mandated by private entities rather than government agents. It makes masks a partisan issue subject to the performative politics … Continue reading Mask Mandates are Reasonable

Legislative Oversight is Fine

Thanks to Greg Weiner for calling our attention to the recent provocative column by George Will on legislative oversight of the media ecosystem. I am a long time fan and a friend of George Will. The issues he raises here, and almost always, are worth taking very seriously. But there are two serious errors in this column. The first mistake is to stipulate in advance that there is no legislative oversight role for the problem of a polluted media ecosystem because it is hard to envision legislative solutions. Oversight hearings are useful precisely because they help the citizenry understand what … Continue reading Legislative Oversight is Fine

A Clarification on the Separation of Powers

I agreed with Ben’s essential point that within the separation of powers we can expect President Biden to have a somewhat different perspective on executive power than candidate Biden or, especially, Senator Biden. That point was about the institution shaping the occupant of the office. That’s embodied in Madison’s famous line about the interests of the office holder being connected to the “constitutional rights of the place.”  I am skeptical, however, that this understanding of the separation of powers captures our contemporary Congress. Ben takes heart that even while Republicans were reluctant to resist President Trump, the fact that they … Continue reading A Clarification on the Separation of Powers

Separation of Parties, not Powers?

Both George and Greg suggest that my separation of powers argument concerning Biden’s air strikes doesn’t square with the fact that political parties have replaced the separation of powers. I agree with them that this has now become the conventional opinion regarding the separation of powers. And, as they rightly note, the dominance of parties over powers is especially clear during unified control of government. The majority party in Congress doesn’t assert its institutional rights very strongly if it also controls the Presidency. That being said, I think this argument is somewhat overstated. Ultimately, it depends some on thinking of … Continue reading Separation of Parties, not Powers?