August 23: Seeds of the Second Amendment

A seemingly mundane August 23 debate over who should govern state militias helps to illuminate the purpose of what later became the Second Amendment. The proposition on the table was to empower the national government to “make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-“ Elbridge Gerry immediately objected that enabling the national government to “arm” militias “would be regarded as an instrument of … Continue reading August 23: Seeds of the Second Amendment

Post-Modern Departmentalism: The New Eviction Moratorium as a Constitutional Moment

Benjamin Slomski is Assistant Professor in Political Science at Ashland University. On August 3rd, the Centers for Disease Control and Prevention (CDC) issued a new eviction moratorium to last for sixty days in areas with high levels of COVID-19 infections. … Continue reading Post-Modern Departmentalism: The New Eviction Moratorium as a Constitutional Moment

July 18 in the Constitutional Convention: Judicial Confirmations

The central issue on July 18 was the mode of appointing justices to the Supreme Court. The first motion put to the Convention would have assigned that authority to the Senate alone. Nathaniel Ghorum of Massachusetts thought the accountability of a legislative body would be too diffuse: No one member would feel responsible for a given appointment. He moved that the President appoint judges with the advice and consent of the Senate. The ensuing debate focused on how to obtain what Luther Martin called “a fit choice.” Some thought appointment by the Senate would avoid the concentrated power involved in … Continue reading July 18 in the Constitutional Convention: Judicial Confirmations

Is Judicial Deference Principled?

Greg Weiner articulates a compelling argument for judicial deference—all things considered—to the elected branches of government. As he puts it: judges “can avoid decisions because someone else has already made them: elected officials. A reasonably consistent posture of deference to the elected branches . . . serves dual institutional purposes.”  I want to push the tension between principle and deference a bit more than Greg does. On its face, judicial deference offers a modest institutional role for judges. This understanding rests squarely on a view that decisions made by legislative majorities are preferable to unelected judges. It is a powerful take. And right, … Continue reading Is Judicial Deference Principled?

Roe: Considering the Counterfactual

At The New York Times, Linda Greenhouse notices an under-appreciated aspect of the Supreme Court’s decision to take up a Mississippi case that it could use to overturn or restrict Roe. v. Wade. She writes that legislators in pro-life states, who have been multiplying restrictions on abortion to test Roe, will now be accountable for them: Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from … Continue reading Roe: Considering the Counterfactual

Christopher Scalia on Court-Packing

Christopher Scalia has an excellent piece at USA Today debunking the specious grounds of the Democratic attempt to expand the Supreme Court to 13 justices. The grounds are so implausible as to raise another question: Why bother with the pretense? That is not a rhetorical question, at least not entirely. Expanding or contracting the Court is one of the legitimate tools at Congress’ disposal for constraining judicial behavior of which it disapproves. For a variety of reasons, I would oppose expanding the Court. But I would endorse being open about the reasons for proposing it. The Court’s power is swollen … Continue reading Christopher Scalia on Court-Packing

Expanding the Court

UPDATE: I stand by the concerns about adjusting the size of the Court, but I suspect I was hasty in criticizing the six-month deadline. The membership of the Commission is excellent, and I wish it well. I’m leaving the post in place below. President Biden has announced a 180-day commission that will study reforms of the Supreme Court, including expanding its membership and limiting justices’ terms. There may be good reasons for some of these. The roadblock that conservative justices present to progressive priorities right now is not among them. Consequently, the most revealing and disturbing aspect of the Biden … Continue reading Expanding the Court

Standing and Situational Constitutionalism

Linda Greenhouse has this column at The New York Times this week, aptly observing the significance of Chief Justice John Roberts’ solitary dissent in Uzuegbunam v. Preczewski—but also illustrating exactly the kind of situational constitutionalism he sought to avoid. The case was brought by a plaintiff who was prohibited by Georgia Gwinnett College, a public institution, from sharing his religious views outside, then even inside, a designated free speech area. Once challenged, the college changed the policy, rendering the dispute moot. But the plaintiffs sought a dollar of damages, raising the question of whether they retained standing to sue even after getting what they wanted. … Continue reading Standing and Situational Constitutionalism

Supreme Court Rejecting Texas Case

In his post today about the Supreme Court’s decision to throw out the Texas lawsuit without so much as an explanation, Jeffrey Tulis wishes that the Supreme Court had written a more extensive statement explaining why they threw it out. Tulis cites a similar piece by Tom Goldstein making roughly the same argument. Both Tulis and Goldstein want the Court to have written a more extensive opinion which, to use Goldstein’s words, “decimates” the lawsuit. Although I agree that this lawsuit was not only ungrounded but dangerous, I would suggest that a more lengthy “decimation” would have been a serious … Continue reading Supreme Court Rejecting Texas Case