Republican Liberty

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.

THUS, REPUBLICAN LIBERTY:

Why rabbits?: Towards a better, floofier world. (Noah Smith, Jun 18, 2023, Noahpinion)

A number of my blog readers have been asking me to lay out my broad moral framework. Usually I resist this impulse. As David Hume wrote, humans decide on right and wrong based on a confusing and often mutually contradictory jumble of moral instincts, and attempts to fit those instincts into a rigid, internally consistent moral code are generally an exercise in futility. But if I do have one consistent, bedrock principle about the way the world ought to work, it’s this — the strong should protect and uplift the weak.

Nature endows some people with strength — sharp claws, size and musculature, resistance to disease. Human society endows us with other forms of strength that are often far more potent — guns, money, social status, police forces and armies at our backs. Everywhere there is the temptation for those with power to crush those without it, to enslave them, to extract labor and fealty and fawning flattery. “The strong do what they can, and the weak suffer what they must,” wrote Thucydides; this is as concise a statement as you’ll ever find of the law of the jungle, both the real jungle and the artificial jungles humans create for ourselves. A hierarchy of power and brutality is a high-entropy state, an easy equilibrium toward which social interactions naturally flow.

I believe that it is incumbent upon us as thinking, feeling beings — it is our moral purpose and our mission in this world — to resist this natural flow, to stand against it, to reverse it where possible. In addition to our natural endowments of power, we must gather to ourselves what additional power we can, and use it to protect and uplift those who have less of it. To some, that means helping the poor; to others, fighting for democracy or civil rights; to others, it simply means taking good care of their kids, or of a pet rabbit. But always, it means rolling the stone uphill, opposing the natural hierarchies of the world, fighting to reify an imaginary world where the strong exercise no dominion over the weak.

We will never fully realize that world, of course. And my morality is easier to declare than to put into practice; on the way we will make many missteps. We will make mistakes about who is strong and who is weak, punching down when we self-righteously tell ourselves we’re punching up. Like the communists of the 20th century, we will sometimes invert one unjust hierarchy only to put another in its place. And we will be corrupted by the power we gather, mouthing high principle while exploiting some of those we claim to protect; we will tell ourselves that we’re knights while acting like barbarians (just as actually existing knights often did).

All these things will happen, and yet it is incumbent upon us to do the best we can, to keep fighting the good fight for a gentler, more equal world.

TO BE FULLY A CITIZEN:

Hitting the Doorsteps: There may be no better way to get involved in politics than canvassing – knocking on your neighbors’ doors and taking time to listen. (Daniel Payne, May 12, 2025, Plough)

An MP’s campaign has the feel of a community project, with a shambling cast of characters you might at other times find involved with the local scout troop or running a church fair. For six weeks the office was full and loud with activity. All available space was crammed with the latest batch of leaflets, the windows blocked up with boxes, desks piled with literature or deliveries to be processed. Volunteers piled in to stuff envelopes, expecting to be paid only in cups of tea.
My job was to help arrange the candidate’s schedule and prep him for awkward and difficult questions he could get thrown – anything from his thoughts on China invading Taiwan, to single gender spaces, to unpopular plans for a new housing estate. And, of course, all those of us who could were expected to hit the streets to canvas voters. As someone who had urged other Christians to engage with politics, here was a chance for me to put it into practice. What better way than by canvassing!

Canvassing is simple. An app has the registered voters of an area logged. You knock on a door, tell them you are campaigning for so-and-so, and ask if they have thought yet about how they might be voting. You log their response in the app and move to the next door.

It is exhausting work. Each door is an unknown. One door could be friendly, chatty, open to questions. The next could be utterly uninterested. The next could chew your ear off about proportional representation and the need for voting reform. The next could be coming off the back of a terrible day at work, with the kids acting up and the dinner burnt, before you knock on the door asking for a vote. I had the demoralizing record of waking up sleeping babies two doors in a row.

Canvassing requires good walking stamina and a thick skin. Don’t take a sharp word or a slammed door to heart. Always beware of the dog.

Once you knock on enough doors in communities like these, you start make connections.

After visiting all (then) 106 Superfund sites in NJ on the campain trail in 1985, and canvassing with the candidate (who had first been elected to the NJ Senate by knocking on every door in his district), I went to work for a Naderite organization, the New Jersey Environmental Federation. We raised money to lobby for a bill requiring the polluters to pat to clean up the toxic waste sites they had created (taxing the externalities) by doing door-to-door canvassing. People were rather uniformly courteous and a perhaps surprising percentage supported the effort. It’s one of the most worthwhile experiences you can have, meeting your fellow citizens.

AND YOU WONDER WHY DONALD HATES THE FEDERALIST SOCIETY?:

The great undoing: Trump’s presidency reeled in by courts (Sam Baker, 5/31/25, Axios)

Between the lines: To some extent, this is the system working the same way it always works. The big things presidents do, at least in the modern era, end up in court.

Obamacare was a big thing, done by both the president and Congress. It’s been before the Supreme Court no less than three times.

Forgiving student loans and trying to impose COVID vaccine mandates were, for better or worse, big things President Biden attempted. The Supreme Court said both were too big.

Trump has made no bones about wanting to go as big as possible, all the time, on everything — and to do it mostly through executive action. Everyone knew before this administration began that myriad legal challenges were inevitable. And, well, they were.

Always bet on the Deep State.