Republican Liberty

BEEN HERE/DONE THIS:

Surviving Bad Presidents: What the Constitution asks of us.: a review of The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It by Corey Brettschneider (George Thomas, May 16, 2025, The Bulwark)

Corey Brettschneider’s The Presidents and the People illuminates how John Adams, James Buchanan, Andrew Johnson, Woodrow Wilson, and Richard Nixon all acted in ways that overtly challenged core features of constitutional democracy: using the power of the state to silence and punish political critics, acting against the clear purpose of the Civil War amendments and their promise of equal citizenship with regard to race, and disregarding the rule of law by refusing to recognize any limits on executive power. While they did not all threaten constitutional democracy in the same manner, let alone to the same extent—a vast gulf separates John Adams and Andrew Johnson—Brettschneider’s argument is a timely reminder that America’s most powerful political office has not only been occupied by the unworthy before, but that more than once in our history the immense power of that office has been wielded in a manner that imperiled American democracy.

Yet this power was resisted. Not always by courts or Congress, but by citizens acting, speaking, writing, and organizing to defend the Constitution. Ordinary citizens—or, more aptly, extraordinary citizens who held no official or prominent office—helped build political coalitions that worked to secure constitutional government against presidential overreach. Brettschneider’s five case studies are compulsively readable, bringing vividly to life some of the lower moments of America’s history, while offering hope by spotlighting the citizens who fought for constitutional democracy.

Always bet on the Deep State.

NOT ACTUALLY DEBATABLE:

The Originalist Case for Birthright Citizenship (John Yoo & Robert Delahunty, Spring 2025, National Affairs)

While the original Constitution required “citizenship” for federal office, it did not define the term until 1868, when the 14th Amendment was ratified. That amendment’s Citizenship Clause provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The provision effectively constitutionalized the British common-law rule of jus soli, under which, as 18th-century English jurist William Blackstone explained, “the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”

The common-law rule of jus soli derives from a 1608 English decision known as Calvin’s Case, which arose when King James VI of Scotland ascended to the throne of England as King James I. This union between England and Scotland through a single monarch was purely personal and dynastic; it did not represent the legal or political integration of the two kingdoms, which remained distinct until they were united by the Acts of Union in 1707. Calvin’s Case asked whether persons born in Scotland under King James VI — his subjects in Scotland — were to be considered aliens in England or subjects of King James I.

The lead opinion in the case, which was widely accessible to American lawyers of the founding, was Edward Coke’s. As Coke explained:

Every one born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of — therefore, according to our common law, owes allegiance to — the King and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman.

One became a natural-born English subject, therefore, upon being born within any of the king’s dominions. The birth of a subject created a reciprocal relationship between the subject and the king whereby the subject had a right to the king’s protection while the king had a right to the subject’s allegiance. Calvin’s Case embodies this doctrine, known today as jus soli.

American courts’ and commentators’ embrace of jus soli traces back to the early days of the republic. Gardner v. Ward, for instance, was an 1806 Massachusetts case involving a merchant born in the American colonies before the Revolution. Local officials contended that the merchant’s absence from his birthplace and residence in the British colonies for part of the Revolutionary War’s duration meant that he was an alien who could not vote in a local election. The court disagreed, deciding instead in the merchant’s favor:

I take it then to be established, with a few exceptions not requiring our present notice, that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance, which is claimed and enforced by the sovereign of his native land; and becomes reciprocally entitled to the protection of that sovereign and to the other rights and advantages, which are included in the term citizenship. The place of birth is coextensive with the dominions of the sovereignty, entitled to the duty of allegiance.

Justice Joseph Story’s dissent in the 1830 case Inglis v. Trustees of Sailor’s Snug Harbor further elucidated jus soli. Story wrote that two conditions “usually concur to create citizenship — first, birth locally within the dominions of the sovereign, and secondly birth within the protection and obedience, or in other words within the ligeance of the sovereign.” Both conditions are met when the child is “born within a place where the sovereign is at the time in full possession and exercise of his power” and when the child “at his birth derive[s] protection from, and consequently owe[s] obedience or allegiance to the sovereign as such, de facto.” Again, the parents’ legal status had no bearing on the citizenship of a baby born on American territory.

Even shortly before the 14th Amendment was ratified, American judges affirmed the jus soli doctrine.

WE ARE ALL GORSUCHIAN:

Make Congress Great Again: We need to unite around our Constitution, not be divided by party politics. (Mickey Edwards, Apr 17, 2025, American Purpose)

The real danger of this moment is not about any individual policy but the accretion of unchecked power in the hands of a single man. The essence of American constitutional government is twofold: the balance of powers between the federal government and the states; and the division of federal powers between equal and competitive branches, of which the greatest power—because it is most representative of the will of the people—rests in the people’s Congress. This power structure rests on both norms of behavior and a framework of institutions designed to ensure a continuing commitment to the nation’s foundational principles, including liberty, justice, security, and equality—all of which are currently under attack.

Breaching of due process (searches without warrants, arrests without charges, criminalization of speech, the elimination of Congress as a meaningful participant in government decisions) eliminates many of the core freedoms that lured our parents and grandparents to come to America, often at high risk—to be part of this land of promise, this land that men and women have died to protect on battlefields from Bunker Hill to Berlin.

Here is how we think outside the box.

First, recognize that the courts alone cannot stop the flood of constitutional breaches flowing from the White House: the judicial process is slow and limited in its powers. The one force equal to that of the presidency is the Congress of the United States. But both parties are executive-centric and focus their political strategies primarily on the election of a president who mirrors their own beliefs and goals. Members of both parties have long records of acquiescing to presidents of their own party and stretching the limits of constitutional permissibility to achieve a desired political goal. In the end, it is one party—its agenda, and its desire for political dominance—that supersedes the constitutional separation of powers that was designed to protect against exactly the kind of dictatorial threat we now face.

The primary focus now needs to be on reasserting Congress’s Article One role as maker of laws, decider of policies, distributor of funds, designer of taxation—and ensuring the election to Congress of men and women who recognize their constitutional obligations to check the ambitions of would-be kings.

Actually, that is the box.

THERE IS NO PRO-LIFE PARTY:

Jens Ludwig on American Gun Violence (Social Science Bites, April 1, 2025)

Jens Ludwig: Yeah, let me start off by acknowledging the first part of the question, which the data suggests, is very true, that the 400 million guns that the United States has for a country of 330 million people is without question part of the story. You know, we have state level data on a proxy for household gun ownership. And we can see that over a decades-long period, the household gun ownership rate between the northern part of the United States the southern part of the United States have been converging over time, and we can see over that same time period that murder rates have been converging across these regions as well. So it’s a nice sort of natural experiment that points to something that’s suggestive of a causal relationship between overall gun availability and murders. And so, if you had a wand that one could wave, that would get rid of the 400 million guns in the United States, I think it is very much true that the United States would become much, much safer. But as you say, that’s not the whole story.

David Edmonds: America is not the only country awash with guns. My elder brother lives in Switzerland, where almost everybody has a gun, but they don’t have the murder rate that you have. So it seems like guns alone can’t be the answer.

Jens Ludwig: Yeah, gun violence is really the product of two things, not just one thing. My little cartoon equation for this in the book is gun violence equals guns plus violence. What you can see in the data is that, for instance, that Switzerland and Canada have almost identical levels of gun ownership, and yet, the murder rate in Canada is multiple times what you see in Switzerland. And I think the explanation there is that the rate of violent crime is substantially different between Switzerland and Canada. And so I think what the data seemed to suggest is that guns don’t cause violent behavior, cause violent crime. Guns make the violence that happens much more deadly. So you can have lots of guns and not many murders, lots of violent crime without guns and not many murders, but if you have lots of guns and lots of violence together, that’s the thing that leads to lots of murders.

WE ARE ALL GORSUCHIAN NOW:

The only national emergency is the law that empowers a mad king (Will Bunch, Apr. 6th, 2025, Philadelphia Inquirer)

The sad reality is that we gave him this power.

In the fall of 1976 — ironically, America’s Bicentennial year — Congress passed the International Emergency Economic Powers Act, or IEEPA, which grants the White House authority to take strong economic measures against foreign nations without either an investigation or seeking prior approval from Congress. Like a lot of laws passed in the years immediately after Richard Nixon’s Watergate scandal, Congress thought that IEEPA was a way to reign in an imperial president, when in reality it did the exact opposite.

The idea behind the law was to end a raft of ongoing emergencies declared by Nixon and other past presidents and create a better-spelled-out, more democratic process for any future ones. Instead, the declaration of national emergencies has expanded under every president, Democrat or Republican, over high-profile events like the 1979 Iran hostage crisis or the Sept. 11, 2001, terror attacks.

In the bigger picture, Americans have become way too numb to sweeping uses and, arguably, abuses of presidential powers, whether that’s dropping bombs on Yemen with little more debate than an emoji-laden Signal chat, or imposing economic sanctions or, before last Wednesday, more targeted tariffs. This development is completely the opposite of the version of America sought by its founders, who envisioned a republic in which Congress — a large deliberative body, elected by the citizenry — would have the power to declare war or levy taxes, including tariffs. […]

Even some conservatives who were presumably elated over Trump’s victory last November are appalled over his abuse of the emergency law, including the New Civil Liberties Alliance, a conservative legal outfit supported by the likes of industrialist Charles Koch and Supreme Court influencer Leonard Leo. This week, the group filed a complaint against the president’s new tariffs. But this moment should serve as a much bigger wake-up call for how far America has gone down the wrong track.

If Congress wants to listen to the more than 1 million people in the streets — and it should, if it wants to cling to any lingering claim on legitimacy — then it should first act immediately to use the power it has under the 1970s law to reverse the taxation-without-representation of a mad king, as soon as possible. Then it should repeal IEEPA and draft new legislation that severely restricts a president’s emergency-declaration powers, since we’ve now seen how badly these can be misused and abused by a power-hungry dictator.

HE TRIED TO WARN US:

Legalism Threatens Our Rule of Law: a review of Over Ruled by Neil Gorsuch (Larry P. Arnn, Law & Liberty)

Over Ruled is replete with harrowing, true tales like this one. It also explains how laws and prosecutions have grown in number and size, like metastasizing tumors. Today most of our “laws” (or rules and regulations with the full force and effect of law) come from administrative agencies that work like somnambulant beavers; half asleep, but numerous enough in their swarms to dam up the flow of society. The authors document that such laws and the agencies that make them are uncounted, or at least that their number is controversial, even among defenders of this regulatory swamp.

A bitter irony emerges: The sheer quantity of the laws and prosecutions negates the rule of law. Gorsuch quotes Publius: “If the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood … or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow”—then justice is dead. In other words, if citizens cannot know the law, they cannot obey it. Conversely, those who enforce the law may do what they please, and they will get used to it.

The one benefit of Trumpism: he’s made us all Gorsuchian.

WALLS ARE ANTI-TEXTUAL:

Church and State Unseparated: Why Protestants should take their foundational role in American society seriously again. (David Hein, October 8, 2024, Modern Age)

“What this volume proposes,” Smith writes, “is that the United States Constitution’s disestablishment did not secularize society, nor did it remove institutional Christianity” from the realms of education, law, and politics. That displacement “occurred nearly a century later.”

Informed by both the English Whig and late-eighteenth-century American republican traditions, this voluntarist order, which recognized that religious belief and membership must be the products of the individual’s untrammeled will, was, therefore, liberal in respect of the establishment of religion but conservative in its grasp of the role of Christianity in American society. Smith ably demonstrates how Americans by and large accepted this continuing role for Christian institutions, “perpetuating . . . Christianity through federal and state courts, state colleges and institutions, state legislatures, and executive proclamations from governors and presidents,” as well as “through state cooperation with religious institutions.”

Both church and state, he says, were united in working to achieve a common goal: fostering a moral realm that embraced “historically Christian conceptions of virtue.” The cultural weight of these institutions, which incorporated conservative understandings of ethics and social order, countered irreligious tendencies to moral radicalism. Christians believed that religious faith had a beneficial impact on law, politics, and education. Thus, it warranted the support of civil magistrates. At the same time, Christians believed in religious liberty. In Democracy in America, Alexis de Tocqueville memorably depicts the benefits of the entanglement of religion and liberty. Unforgettably, too, Samuel Francis Smith highlights these themes in his patriotic hymn “My Country ’tis of Thee.”

Particularly valuable is this volume’s chapter on Thomas Jefferson, who aimed to do more than merely end the privileges of state churches; he also wanted to see Christianity removed from the civil sphere. The author makes it clear that Protestants in the early republic embraced freedom of religion but generally rejected the Sage of Monticello’s wish to remove institutional Christianity’s influence from civic life; they declined to join what Smith calls his “personal war against churchly authority.”

Among the most important spokesmen for religious institutions and their continuing influence were New England Federalists, intellectuals in colleges and universities, and religious and judicial elites: they generally upheld the fundamental role of Protestantism in American culture. Smith points out that they and their like-minded Protestant brethren would have agreed with most of the Framers, who did not endorse a wall of separation between church and state. Many Protestants in the early republic believed that American society needed the efforts of practicing Christians in order to prosper; good Christian men and women fortified the Republic.

At the same time, disestablishment had a positive impact on religion, strengthening Christianity in the public sphere. It prevented an Erastian subordination of the Church to the state. It reduced political interference with religion and avoided the negative reputation that came with state control.