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
George and I had a brief exchange on Twitter (here, here, here and here) about the nondelegation doctrine, and since The Constitutionalist allows more than 280 characters, I thought it might be interesting to continue it here. George wrote, quite correctly, that the nondelegation doctrine depends on understandings of the separation of powers that cannot be found in the constitutional text. (On the “unwritten constitution” generally, see George’s excellent new book of that title and his essay at this site regarding it.) My question was whether structural arguments are separable from textual ones. In other words, there are unwritten understandings, … Continue reading Nondelegation and the Unwritten Constitution
I appreciate Greg’s linking judicial restraint to the primacy of republican self-government. And I especially appreciate his insistence that constitutional issues must be the concern of the political branches and the people, not simply the courts. Indeed, I’ve been perplexed in the last several years by originalists of one form or another who take comfort in the fact that President Trump appointed originalist jurists, while undermining the Constitution in so many other ways. “But Gorsuch” was a perverse embrace of judicial supremacy and a legalized Constitution. So Greg and I are in ready agreement that the Court, despite its claims to the contrary, is not … Continue reading Republican Self-Government and Judicial Restraint
A recent book from Donald Drakeman–The Hollow Core of Constitutional Theory: Why We Need the Framers–addresses a question that has troubled me for some time. As textualists torture text, and advocates of original public meaning go searching for what cannot be objectively ascertained, what was ever wrong with original intent? The originalist case against original intent, in brief, was that the personal intentions of legislators could not control the meaning of law. Allowing individual intentions to determine meaning for everyone was thought to be anti-republican. The solution was original public meaning, the search not for what the lawmaker meant but … Continue reading What Was Ever Wrong With Original Intent?
At National Review, Dan McLaughlin recently had a compelling takedown of the new push for “common good originalism.” That brand of originalism received a fuller explication yesterday in a joint statement at The American Mind from Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker. I’ll try to write about this in more detail in essay form, but the essential complaint against originalism is that it has failed to produce conservative policy ends. Originalism’s focus on text and intent rather than natural law earns its defenders the dreaded epithet of “positivist,” which is loosely, and wrongly, deployed as a synonym … Continue reading Constitutionalism and the Common Good
I agree with George that constitutionalism has eroded in Congress in addition to the presidency. That seems most evident when Congress sues the executive branch, thereby asking the courts to confront the bully on the block as opposed to flexing its own institutional muscle. It is also evident in the House’s decision to attempt to extort Mike Pence into invoking the 25th Amendment before exercising the impeachment power. The threat there seems to be: Do your job or we’ll do ours. Setting aside whether the 25th Amendment is an appropriate solution for the current crisis, impeachment has the advantage of … Continue reading Constitutionalism in Congress
As the Trump Presidency unravels, with the country quite seriously contemplating whether it can endure not another four years but rather another nine days of it, it is worth asking originalists Ronald Reagan’s question: Are you better off today than you were four years ago? The Capitol that represents the republican essence of constitutional government will, for the foreseeable future, be a fortress protecting American leaders from American seditionists. Its windows are smashed, its halls have been desecrated and, most important, the members of Congress who occupy it endured a several-hour siege in which the president of the United States … Continue reading Dear Originalists: Are You Better Off Today than You Were Four Years Ago?