Thursday, May 26, 2016
Republicanism and the Constitution of Opportunity
On SSRN, I've published a draft of Republicanism and the Constitution of Opportunity.
The article is part of a symposium on the Constitution and Economic Inequality that will appear in Texas Law Review. Here is the abstract:
Monday, May 23, 2016
The Example of Stephen A. Douglas
Gerard N. Magliocca
While Donald Trump continues to use the bully pulpit as a pulpit to bully, Mitt Romney is getting pressure to enter the race as a third-party candidate. Conservatives in the "Never Trump" camp are realizing that Romney (despite his flaws) is the only person with the money and connections to mount a serious campaign. I hope he does.
Is Sanders stupid or simply a coward?
As readers of my previous posts are well aware, I am extremely critical of Senator Sanders for his abject refusal even to suggest that anyone defining him/herself as a "political revolutionary" might do what, say, Hamilton Madiaon, and Jay did when they denounced the existing constitutional order (of the Articles of Confederation) as "imbecilic" and suggested its replacement by something they saw as far better. His notion of a "political revolution" is remarkably undeveloped, to put it mildly.
Will the US survive?
I presume I have your attention with a suitably over-the-top title. That being said, imagine the following altogether realistic situation (because it's the one we're in): The two likely candidates appear to be loathed by most of the opposing party. As I have made clear, I do not think that an honorable person can support the dangerously fascistic and buffoonish Donald Trump, for the same reason that Alexander Hamilton could not support Aaron Burr for the presidency. But, as I've indicated, responses to my op-eds have made clear that many Republicans--and I will assume that many of them are appalled by Donald Trump--feel equally disgusted by Hillary Clinton. I disagree, but that's beside the point, of course.
Sunday, May 22, 2016
Elizabeth Warren and the Progressive Long Game
Thursday, May 19, 2016
The Going Rate is Thirty Pieces of Silver
Gerard N. Magliocca
Last night, Donald Trump appeared on Press Secretary Hannity's program to discuss (among other things) his proposed Supreme Court list. There are many fine judges on the list, but any conservative who believes that Trump will pick any of them is a sucker no different from the folks who think that President Trump will build a wall along our southern border paid for by Mexico.
Voter ID Meets the Voting Rights Act: The Next Big Voting Rights Battle
The Garland Affair
Robin Bradley Kar and I have posted the near-complete draft of our forthcoming essay, The Garland Affair: What History and the Constitution Really Say About President Obama's Power to Appoint a Replacement for Justice Scalia. The abstract is below and the essay is available at this link. We are also putting together a forum for responses and further discussion: if you are a law prof and have an interest in contributing a short commentary (on a necessarily expedited schedule), please contact me at mazzonej[at]illinois.edu.
Tuesday, May 17, 2016
What to expect from the Zubik remand: a possible solution for "church plans," but otherwise no obvious common ground
This much is clear about the Court's per curiam disposition in Zubik v. Burwell yesterday: It does not resolve any of the important, outstanding interpretive questions regarding RFRA. Indeed, the Court was careful to insist that its remand "does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest." The Zubik case, therefore, will not have any impact on the application of RFRA outside the context of the contraception regulation--not yet, anyway. (I discuss some of the more important outstanding issues in this article.)
The Unwritten Constitution and Presidential Authority
Gerard N. Magliocca
Inspired by Sandy's posts, I want to highlight another aspect of the 1800 presidential election that is especially relevant as a point of comparison to 2016. For most of the nineteenth century, presidential candidates did not openly campaign for that office--it was seen as undignified. This was a custom that basically ended in the great clashes between William Jennings Bryan and William McKinley in 1896 and 1900, but there was considerable merit in that practice. The rise of a demagogue was much more difficult if that person could not personally appeal to voters, and presidential authority was far more circumscribed because those leaders were dependent on surrogates to get elected (or reelected).
Monday, May 16, 2016
More on Hamilton and Burr
An interesting side discussion has suggested that Aaron Burr really wasn't so bad as Hamilton suggested in the letters that I quoted (and which, incidentally, were intended to be circulated and thus made known to the relevant publics). Unlike Donald Trump, for example, he had served his country honorably during the Revolution. Burr was also anti-slavery.
Saturday, May 14, 2016
Alexander Hamilton, Aaron Burr, and Donald Trump
I have published in several Texas newspapers an op-ed about Hamilton's decision to support Thomas Jefferson over Aaron Burr as the House of Representatives was voting on how to break the tie vote between them. Whatever one might think of some of Hamilton's particular policies, there can be no doubt that he was a genuine patriot, unsullied by personal corruption. (This is why he chose to write his disastrous "Reynolds pamphlet" about his affair with Maria Reynolds, because private shame was ore easily bearable than accusations of public dishonor. And he clearly believed that patriots committed to the national interest should rally around Jefferson, whatever their doubts, as agains the totally unprincipled and opportunistic and vainglorious Aaron Burr. My essay quotes from several letters he wrote at the time, and I suggest that one could easily substitute Donald Trump for Aaron Burr, with the result being the same. I.e., no serious patriot should be supporting Donald Trump for the presidency, period
Readings of "Taking a Hard Line"
Consistency and Aggressive Liberal Constitutionalism
Thursday, May 12, 2016
Judicial Constraint, Judicial Restraint, and the New Originalism
First Amendment Opportunism: Heads, Facebook Wins; Tails, We Lose
Oft-discussed at Yale's black box conference in April, Facebook bias is now a national news item: a Senate investigation is on the way. Michael Nunez has interviewed former curators at the media/platform/AI/VR behemoth, who say conservative news (and news critical of Facebook itself) was routinely suppressed. Experts are developing proposals to ensure fairer and more transparent social media.
Tuesday, May 10, 2016
Will the courts adjudicate whether Operation Inherent Resolve (against ISIL) is legal?
As most Balkinization readers are likely aware, Army Captain Nathan Michael Smith recently filed suit against President Obama, seeking a declaration that the continuing conflict with ISIL is unlawful. The President introduced U.S. forces into hostilities against ISIL in Iraq and in Syria in the latter half of 2014. Captain Smith believes that the operation “is justified both militarily and morally,” and his participation in it “is what I signed up to be part of when I joined the military.” Even so, he argues that Section 5(b) of the War Powers Resolution (WPR) required the President to withdraw the troops from hostilities after 90 days — an obligation that continues to this day — because Congress had not, and still has not, authorized those hostilities. The President, of course, insists that Congress has authorized the troops’ use of force against ISIL, which, if correct, would mean that the requirement of the WPR is satisfied.
Monday, May 09, 2016
What Does "Taking a Hard Line" Mean?
Sunday, May 08, 2016
Federalist #1 on Donald Trump
Gerard N. Magliocca
"A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."
Saturday, May 07, 2016
Trump and Trust
The key theme of my book Broken Trust (look over to the right!) is the importance of political trust to the maintenance of the constitutional order. I agree with Jack of course re Sibelius and I think Orin Kerr's diagnosis is on the mark. Before developing the trust point a little further I just want to observe that since the 1970s I've seen several distinct upsurges of interest in libertarianism. Somehow, however, the libertarian moment in American politics never seems to truly arrive. There are some hard truths in Trump's ascendancy for those inclined to take libertarianism seriously.
Friday, May 06, 2016
John Roberts Derangement Syndrome
Ilya Shapiro has figured out why Donald Trump has taken over the Republican Party.