In my last post, I argued that the original meaning forbids states from passing laws that prohibit faithless voting by the electoral college. But if the original meaning imposes this prohibition, then why does such faithless voting seem problematic even to an originalist like me? One problem is that the practice in this country, for a very long time, has involved electoral college voters being understood as voting for the pledged candidate. But the mere fact of practice cannot be sufficient. There are plenty of unconstitutional practices that I would happily see eliminated. A second problem is that this practice has been…
Archives for December 2016
It’s not difficult to come up with a theory of language. Mine is vaguely Augustinian (if we ignore the scholars’ endless battles over what St. Augustine meant by signs and reference), and it looks like this: All language starts in pain. The first speech of humankind is the newborn’s howl of outrage.
During the Restoration, Charles II traded jibes with his courtiers. None was bolder than the Earl of Rochester who recited this poem in the monarch’s presence:
Charles wittily replied that the last two lines were very true: his words were his own, but his actions were those of his ministers.
Could Donald Trump turn out to be the reverse of Charles II? Many of his tweets have hardly been wise, but his appointments to the Cabinet have been largely good ones for classical liberalism and in any event almost universally men and women of substance. Just read this lovely essay written by a Democrat about Rex Tillerson, Trump’s nominee for Secretary of State, and his service as a juror. You will have the measure of a man who has the measure of the world.
And these appointments have enormous importance for government because the President, like Charles II, must govern largely through his cabinet secretaries and agency heads rather than by Twitter.
I fully expect that Donald Trump will put forward an exceptional nominee to fill the Supreme Court vacancy left by Justice Scalia’s death. Given the composition of the Senate and the bench of judicial talent, it should be hard to get this selection of a new Justice wrong.
What are the prospects for constitutionalism and the rule of law under President Donald Trump?
One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…
Recently, there has been a bit of an originalist debate about the issue of the “faithless elector.” David Post argues that “the original intent of the Constitution, supported by its text and overall structure, not only permits but also ‘requires’ presidential electors to exercise ‘discretion and independent judgment’ in casting their ballots. Mike Ramsey responds that the original meaning of the constitutional text – both the original Constitution and the 12th Amendment – allows the states to select electors “based on the electors' advance pledge to vote for a particular candidate. There is no textual duty to exercise independent judgment.” I…
In an op-ed in the New York Times, two Harvard political scientist professors, Steven Levitsky and Daniel Ziblatt, have sounded the alarm about democracy in America. It is in danger they say mostly because democratic institutions are no longer backed up by the “guardrails of democracy”—deep norms of “partisan self-restraint and fair play.” Sadly, their analysis of the decline of these norms is itself both partisan and shallow. It is partisan because they note only Republican breaches of such norms, when Democrats have engaged in breaches as well. Its shallowness in turn comes from their partisanship. They blame a particular political party rather changes in the nature of our polity, like the growth in the power of government and decline of federalism.
The partisanship of Levitsky and Ziblatt is striking. They claim that one of the informal norms is that legislative votes about matters of “extraordinary importance,” like impeachments, be bipartisan and Clinton’s impeachment by Republicans was not. But the only previous impeachment of the President—that of Andrew Johnson—was also a party-line vote. The norm that creating new entitlements—also actions of extraordinary importance—should be bipartisan, however, is a much more established one: Social Security, Medicare and Medicaid all had bipartisan support. Yet President Obama enacted the Affordable Care Act without the support of even one moderate Republican such as Senator Susan Collins of Maine.
These Harvard professors decry the failure to vote on Merrick Garland, which they characterize in hyperbolic terms as “stealing” a Supreme Court seat.
Jackie, which tells the story of Jacqueline Kennedy and the immediate aftermath of President Kennedy’s assassination, is a moving and socially important film. It’s about grief, but also about how a pliant press allowed a grieving widow to create a powerful myth that was related to reality, but only tenuously. It’s about the media willingly succumbing to manipulation.
In my “Age of Washington” class the other day, I stumbled over the start of his Last Will and Testament. I regard the will as a partly public and partly private document—the last of his great “farewells,” including his farewell to the Virginia Regiment in 1759, his last Circular to the States in 1783, and, of course, his Presidential Farewell Address of 1796.