Republican Liberty

RETURNING LAWMAKING TO THE LEGISLATIVE BRANCH:

Supreme Court win for Trump in FTC case would restore the Founders’ design (Ilya Shapiro, Dec. 8, 2025, NY Post)

Justice Neil Gorsuch reiterated the need to revive the nondelegation doctrine to stop Congress from handing vast, standardless power to bureaucrats.

Kavanaugh, meanwhile, seemed eager to draw a line between agencies that enforce the law and courts created by Congress that exercise judicial authority.

Given the court’s trajectory, none of this should be a surprise.

Over the last 15 years, the justices have steadily chipped away at Humphrey’s Executor in a string of separation-of-powers cases, while reaffirming Chief Justice William Howard Taft’s principle from Myers v. United States (1926): Because the Constitution vests all executive power in the president, he must be able to remove the officials who exercise that power in his name.

REPUBLICAN LIBERTY REQUIRES UNIVERSAL APPLICATION:

Odyssean Constitutionalism: Good Constitutional rules are designed to resist precisely those situations when leaders feel the urge to break them. (Julia R. Cartwright, 11/10/25, Law & Liberty)

Good constitutional rules are general, abstract, and equally applied with no special favors for friends, no special burdens for enemies. They are framed without reference to named persons or groups, and they do not depend on the virtue of whoever currently holds office. Because, as Hayek emphasizes, none of us knows our future station, we might be a majority today and a minority tomorrow, we have reason to support constraints that protect us in bad situations as well as good. Buchanan and Tullock’s seminal work, The Calculus of Consent, presents the economic logic behind the significance of constitutional rules. They describe how people living under uncertainty seek rules ex ante that make cooperation cheaper than conflict, reduce the opportunity for rent extraction, and limit the scope of high-stakes, winner-take-all politics. Stable, general rules transform zero-sum political contests into positive-sum production by clarifying rights, lowering transaction costs, and letting entrepreneurs mitigate uncertainty. The aim is to channel self-interest not through the hope of benevolent officials, but through institutions that make predation costly and production rewarding.

Constitutional rules, therefore, must be designed to resist precisely those situations when leaders feel the urge to break them. They should be difficult to change, with costly procedures like supermajorities, multiple veto points, judicial review, and federalism, so that no faction can recalibrate the rules in a spasm of partisan passion. Yet they also need orderly adaptability: amendment procedures and interpretive doctrines that allow learning from experience without relying on emergency exceptions. Constitutional law invites citizens to consent to the constraints because they know that, in the long run, the surplus from stability dwarfs the thrill of short-run victories. The general and abstract nature of these known rules makes it possible for millions of strangers to coordinate their plans without central command. Applying this to our First Amendment protection of free speech, a bright-line commitment to protect even offensive, foolish, or hateful expression, paired with narrow, content-neutral limits for truly imminent threats, provides the predictability society needs. Open-ended carve-outs like “misinformation,” “hate,” or “national morale” invite partisans to weaponize enforcement. The reason we do not trust discretionary censorship is not that we deny harm, but that we know human beings cannot wield such discretion impartially.

The Odyssean analogy is apt. We bind ourselves in advance to the mast of free speech, free press, and free exercise because we know the sirens of expediency will sing.

A LITTLE CHAOS IS WORTH A CONSTITUTIONAL ORDER:

Nondelegation Without Chaos : As the Supreme Court works to restore the separation of powers, it should seek a return to the Framers’ vision rather than an outright revolution. (John O. McGinnis, 11/03/25, Law & Liberty)

The Framers recognized that the legislative power was the most important of all the powers delegated in the Constitution, because it was the only federal authority that could directly affect their domestic liberty. Legislative power—prescribing rules that bind private conduct—belongs only to Congress, and for good reasons. That assignment channels lawmaking through a deliberative, laborious, publicly accountable process. Justice Neil Gorsuch’s dissent in Gundy v. United States articulates this structure crisply: Congress must make the policy decisions; the executive may “fill up the details” or find facts that trigger rules Congress has created. That is the Constitution’s path to stable rules, fair notice, and political accountability.

While I cannot fully defend the originalist case for limiting the delegation doctrine here, my frequent co-author, Michael Rappaport, does so in “A Two-Tiered and Categorical Approach to the Nondelegation Doctrine,” proposing a two-tier framework. For domestic regulation of private rights—most of the stuff of administrative law—he proposes a categorical bar on delegating policymaking discretion. In contrast, he proposes a more lenient standard where history and structure counsel executive flexibility, as in appropriations, foreign and military affairs, and territorial governance. He grounds the strict rule for domestic regulatory affairs in text, history, and structure—especially the private/public rights distinction and James Madison’s insistence that laws provide details, definitions, and rules. The executive in the strict tier is limited to genuine interpretation, fact-finding, and application. On this view, the current doctrine abdicates Congress’s duty precisely where liberty most requires legislative judgment.

WE ARE ALL GORSUCHIAN NOW:

Conservative Supreme Court justices appear skeptical of Trump’s sweeping unilateral tariffs (LINDSAY WHITEHURST, November 5, 2025, AP)

Three conservative justices raised questions about whether an emergency law gives Trump near-limitless power to set and change duties on imports, with potentially trillion-dollar implications for the global economy.

THE REVOLUTION WAS A MISTKE:

David Starkey’s Crowned Republic (Clifford Angell Bates Jr., 10/23/25, Law & Liberty)

He presents the English constitutional order as a living organism—shaped not by abstract theory but by centuries of pragmatic adaptation, legal precedent, and civic habit.

The English Constitution, often praised for its continuity and resilience, represents for Starkey a historical evolution rather than a philosophical creation. He offers a trenchant critique of rights-based and universalist narratives of liberty, arguing that England’s constitutional character and its profound influence on the American founding emerged from tradition rather than theory. The liberties embodied in representative assemblies, trial by jury, and the balance of powers, he contends, were not Enlightenment inventions but refinements of England’s deep-rooted constitutional inheritance. For American readers, Starkey’s work serves as a reminder that the republic they built, though revolutionary in form, was grounded in the slow, empirical wisdom of the English political tradition.

For Starkey, the liberties embedded within English law and political practice did not emerge from revolutionary theory but from centuries of habitual negotiation, practical governance, and the incremental development of institutions. To understand this perspective, one must trace the evolution of the English Constitution, examine Starkey’s critique of Hobbesian and Lockean abstractions, and situate the American Founders’ adoption of English republican practices alongside the selective influence of Montesquieu.

David Starkey argues that the English republican tradition originally arose from a monarchial one, where a “crowned republic” blended regal symbolism with republican limits. This view of this blended monarchial tradition arises from three medieval pillars: John of Salisbury’s Policraticus (1159), Sir John Fortescue’s De Laudibus Legum Angliae (c. 1470), and Magna Carta (1215). Salisbury’s “body politic” metaphor portrays the king as the head accountable to law and realm, thereby distinguishing England’s dominium politicum et regale, a hybrid rule under custom and counsel, from France’s absolute dominium regale. Fortescue elaborates on this in praising England’s co-created laws and parliamentary consent, which bars tyranny through shared sovereignty. Magna Carta enacts these ideals, enforcing due process and prohibiting taxation without consent, thereby transforming the feudal pact into a constitutional restraint. Together, Starkey contends, they forge a kingship conditional on the common good, evolving through communal oversight to ensure monarchical stability.

Starkey situates the origins of English liberty in lived historical experience.

George should have just granted us our own parliament so we could enjoy our rights as Englishmen.

BY ANY MEANS NECESSARY:

Abraham and Isaac : John Brown and the question of righteous violence. (Kevin D. Williamson, 10/20/25, The Dispatch)

If you have the right kind of American eyes, it may seem equally preordained that the prophet who came before the Christly figure of that American Abraham just as inevitably bore the name “John,” a fugitive voice crying in the wilderness, wild-eyed and full of holy terror and uncompromising, and marked for a divine appointment with Herod’s executioners. John Brown was, among other things, a former shepherd, for Pete’s sake. But there were complications and limits to the biblical parallels: John Brown’s great long patriarchal beard, familiar from the famous portraits, was a disguise—most of his life, he was clean-shaven, or at least as often as he could be in his vagrant circumstances. And when that American prophet traveled to Harpers Ferry, he did not sign his name “John” while securing accommodations for his holy insurgents—then, he was “Isaac,” presumably after the son of the free woman who ultimately would cast out his half-brother, Ismael, the son of the slave. One suspects that the choice of a nom de guerre was far from accidental. “This is an allegory,” St. Paul wrote to the Galatians. “These women represent two covenants. One covenant is given on Mount Sinai and bears children who are born into slavery … Now you, brethren, are, like Isaac, the children of the promise. … We are the children not of the slave woman but of the free woman.”

Lincoln—who belonged to no church but planned to spend at least part of his retirement in the Holy Land—was too fond of quoting Scripture, at least in Stephen Douglas’ judgment. But Lincoln understood the American context, which begins with understanding that the Declaration of Independence, even authored as it was by the unorthodox Thomas Jefferson, is a fundamentally Christian document and arguably a Puritan one at that, the implications of which for the matter of slavery could be seen as early as the drafting of the Constitution, with its provision for the abolition of the African slave trade. That constitutional settlement, as Lincoln noted in an 1859 speech in Illinois, was the work of:

representatives of American liberty from thirteen States of the confederacy — twelve of which were slaveholding communities. … These communities, by their representatives in old Independence Hall, said to the whole world of men: ‘We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.’ This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. Yes, gentlemen, to all His creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows. They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. The erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages.

Wise statesmen as they were, they knew the tendency of prosperity to breed tyrants, and so they established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and pursuit of happiness, their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began — so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land; so that no man would hereafter dare to limit and circumscribe the great principles on which the temple of liberty was being built.

Fine words. Great words. Important words. Spoken just over a year before the raid on Harpers Ferry, when John Brown had decided that fine words would not do.

Brown had plans for his own kind of constitution, a “Provisional Constitution and Ordinances for the People of the United States,” to govern his insurgent followers until the realization of that “more perfect Union” Lincoln would talk about. He raged against the “heaven-daring laws” of the slaveholding states, echoing abolitionist William Lloyd Garrison’s denunciation of the Constitution as a “most bloody and heaven-daring arrangement” between the decent godly free Christians and the idolatrous slavers.

John Brown’s moral and political reasoning was reasonably straightforward: He wasn’t launching an attack on anybody—slavery was a de facto state of war, a war of conquest launched by one group of people with the aim of oppressing another, and all he proposed to do was to fight back. This was comprehended by Frederick Douglass, who tried to talk Brown out of his program of violent insurgency: “In his eye a slave-holding community could not be peaceable but was, in the nature of the case, in one incessant state of war,” Douglass said. “To him such a community was not more sacred than a band of robbers; it was the right of any one to assault it by day or night.”

THE REST IS LEGISLATION:

Born Equal: Remaking America’s Constitution, 1840-1920 By Akhil Reed Amar (Reviewed by Jonathan Sallet, October 20, 2025, Washington Independent Review of Books)

But atop the mountain stands “Abraham,” the constitutionalist, fusing the broadened ambitions of the Declaration of Independence with the textual provisions of the Constitution. President Lincoln thereby built a foundation for concluding that the principles underlying “a more perfect union” justified the abolition of slavery, the codification of civil rights, and universal voting rights for adult citizens.

Amar takes pains to emphasize his view that the most important originalists in U.S. history are not our right-leaning modern jurists. For example, he details Lincoln’s lawyerly analysis to support a constitutional vision that fulfils the implicit (if not the expressly worded) promise of the Declaration of Independence: moving toward equality for all.

This is inspiring stuff, but here’s the thing: Conservative jurists embrace key conclusions that Amar identifies with Lincolnian originalism — say, that Plessy v. Ferguson’s vindication of racial segregation was wrong (and, although his history does not reach into the 1950s, that Brown v. Board of Education was right). And, for instance, Justice Clarence Thomas’ self-styled originalist opinion in Students for Fair Admission v. Harvard, the case ruling that the university’s race-conscious admissions process was unconstitutional (in which Thomas quoted Amar’s earlier views approvingly).

Which leads to a pressing question in today’s constitutional moment: Does Professor Amar’s Lincolnian originalism differ from the prevailing conservative approach?

No.

THE FOUNDERS COULD NOT HAVE ENVISIONED A SUPINE BRANCH:

How the Framers Made the Presidency with Michael McConnell, (Richard M. Reinsch II, 4/02/21, Law & Liberties Podcast)

Richard Reinsch :

And then Congress seems unwilling or unlikely or too partisan, depending on who’s in the White House, to stand up for its own institutional power.

Michael McConnell:

Yeah, Congress is basically no longer interested in institutional questions. They are only interested in partisan questions. And given that the Congress is pretty divided, Senate’s 50/50, democrats are just barely in control of that. The democrats in Congress are not going to rein President Biden in, just as the republicans when they controlled both houses of Congress under Trump were unwilling to rein Trump in. There was a time not that long ago when Congress cared about its institutional prerogatives, and they would join together on a bipartisan basis to object when presidents did things that they believed cut into a congressional authority. And there is no authority that is intended by our Constitution to be so exclusively congressional as the power over the purse. There are actually two provisions of the Constitution that protects Congress’s exclusive power here. We’ve now had three presidents in a row that rather blatantly have been spending large sums of money on pet projects that Congress disapproved of, and have gotten away with it. Actually, Obama didn’t quite get away with it, because the court stepped in when he spent $7 billion on healthcare subsidies to insurance companies that Congress had refused to appropriate. The court actually stepped in and said that that was illegal.

THE GENIUS OF REPUBLICAN LIBERTY…:

Forging the Chains of Virtue: Aristotle’s Raw Politics of Power (Clifford Angell Bates, 9/20/25, The Miskitonian)

While archē refers to legitimate authority, Aristotle also discusses bia, which refers to power that is exercised through force or coercion. Bia is characterized by the absence of consent and often involves rulers maintaining control through violence, intimidation, or oppression. This form of power is typically associated with tyranny, where the ruler governs through fear and force rather than through the consent of the governed. Aristotle views this type of power as fundamentally illegitimate because it violates the principles of justice and mutual agreement that should underpin political authority.

Aristotle condemns the use of unjust power (bia), arguing that it is corruptive both to the ruler and to the ruled. Power that is exercised through force leads to instability and oppression, as it disregards the common good in favor of the ruler’s self-interest. This form of power is in direct contradiction to natural rule, where authority is based on mutual consent and is directed toward the good of the community. Aristotle believes that legitimate power arises from the willing participation of citizens, and when rulers resort to force, they undermine the very foundations of political life.

Aristotle is clear about the negative consequences of coercive power. Rule by force leads to instability within the political community, as it erodes trust and undermines justice. Citizens who are governed through fear are less likely to feel loyalty to their rulers, and this can result in resistance, rebellion, and ultimately the destabilization of society. For this reason, Aristotle views coercive power as unsustainable in the long run. A ruler who relies on force may be able to maintain control temporarily, but the lack of legitimacy will eventually provoke opposition.

In Aristotle’s ideal political community, citizens play a central role in the exercise of power. In a democracy, power is distributed among citizens through mechanisms such as voting, holding office, and participating in decision-making processes. Citizenship is not simply about enjoying rights and privileges; it is about active engagement in the governance of the polis. Aristotle sees the collective power of citizens as essential to shaping the policies and laws that govern the state. In this way, power is not concentrated in the hands of a few but is shared among the many, creating a more equitable and just society.

For Aristotle, the rule of law is the embodiment of collective power. Laws are the means by which power is distributed and exercised fairly within a community. By adhering to laws, citizens can ensure that power is used to promote justice and prevent the abuse of authority by individuals. Aristotle contrasts the democratic form of power, where the many share authority, with oligarchic power, where a few wealthy elites hold power. In an oligarchy, power is often exercised for personal gain, whereas in a democracy, it is supposed to serve the interests of the community as a whole.

While Aristotle acknowledges the value of citizen participation, he also warns of the dangers associated with excessive collective power. In a democracy, the majority can sometimes use its power to oppress minorities or pursue selfish interests at the expense of justice and the common good. Aristotle refers to this as the “tyranny of the majority.” He emphasizes the need for balance and moderation in the exercise of power, ensuring that no single group dominates to the detriment of others.

…lies in the requirement that the majority bind itself by any laws it adopts.

DEFENDING THE CONSTITUTIONAL ORDER:

John Marshall on the Supreme Court & Universal Injunctions (Matthew A. Pauley, August 13th, 2025, Imaginative Conservative)

The very first Congress created the federal district courts in the Judiciary Act of 1789, shortly after George Washington was sworn in as the first President. Today there are 94 federal district courts, at least one in every state and more in the more heavily populated states.

These courts have statutory jurisdiction to hear cases and controversies “in law and equity.” Equity emerged in England in the Middle Ages when litigants who couldn’t get relief in the ordinary common law courts would petition the king to rectify the injustice. In time, these matters were directed to the king’s right-hand man, the Chancellor, who began to convene courts of equity, where the proceedings were faster and the remedies more flexible.

We do not have separate courts of equity in America today, but when a court sits “in equity,” it can award civil remedies other than money damages, including injunctions, which are essentially court orders prohibiting a certain course of conduct or enforcement of a particular law or policy.

Enforcement of an executive order or law can be enjoined (prohibited) by a court if the law or order is unconstitutional. In the seminal case of Marbury v Madison (1803), Chief Justice Marshall established the Supreme Court’s power of judicial review, the power to declare acts of Congress or the President unconstitutional and void. Since then, it has come to be accepted that all federal courts, including the district courts, may determine the constitutionality of an act of Congress or the President and even issue injunctions stopping their enforcement, although the Supreme Court is always the highest authority on such matters. To whom, however, may these injunctions be addressed? For almost 200 years, the answer was typically only the litigants in the case. In the last few decades, however, federal district courts have begun to issue “universal” or nation-wide injunctions, applicable not only to the litigants in the case but to everyone in the United States.

Supporters of this enhanced judicial authority defend it as necessary to curb what they see as excessive legislative and especially executive power. Critics, however, point out that it leads to a phenomenon known as forum shopping in which potential plaintiffs (people bringing a civil lawsuit) choose a court likely to be favorable to their case.