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
George Thomas makes an excellent case that there is more tension between judicial deference and constitutional principle than my essay on the topic acknowledged. The Constitution, he correctly notes, does not rest on a simple principle of majority rule. Legislatures might violate rights on what, like election security, would otherwise be legitimate pretexts. Let me push back, for the sake of clarifying my original point and asking George for his thoughts: First, the Constitution may not operate on a principle of simple majority rule, but neither does it have a provision for what James Madison said was ultimately the only … Continue reading Do Legislatures Have Discernible Motives?
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
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
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
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
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?
Ben Kleinerman has made a compelling case that the partisan reversal on constitutional authority for U.S. airstrikes in Syria shows the separation of powers at work. I have a friendly amendment, or at least one to propose: Ben’s case is true with two qualifications. First, the reversal should be institutional, not partisan. That is, members of Congress should question presidential authority as members of Congress, not based on partisan alignments for or against President Biden. If Democrats and Republicans who stay in Congress across changes in presidential administrations are situational constitutionalists based on who occupies the White House, Madison’s case … Continue reading Syrian Airstrikes: A Friendly Amendment to Ben Kleinerman’s Post?
Milikh’s message might still make Laura uncomfortable but, to the extent that it is political rather than doomsday-ish, I think it a very important advancement. Our democracy depends on an intelligible conservatism that isn’t flirting every four years with rhetoric about the death of all civilization. Continue reading The Danger of All-or-Nothing Elections and the Claremont Message
Ben Kleinerman recently posted a link to an article about the Jack Miller Center, its programs, and its grants which include funding for this publication. The organization is a wonderful success story for American civic education and I am delighted to be affiliated with it and pleased that Ben has highlighted it. However, I don’t think that Ben does justice to the excellence of the Jack Miller Center effort or to our aspirations for this site. Ben’s description would likely resonate well with many affiliated with these efforts — so my criticism is not of Ben, personally, but of the … Continue reading On Civic Education