THE LEGISLATIVE BRANCH CAN NOT DEFER:

Getting Deference Right (Ronald A. Cass, Winter 2024, National Affairs)

Federal agencies generate rules at the rate of 3,000 to 5,000 per year, compared to the roughly 150 to 500 laws enacted by Congress. The compilation of rules in the Code of Federal Regulations now exceeds 180,000 pages. Agencies also adjudicate millions of matters annually, dwarfing the caseload of the federal courts.

These rules and decisions dictate where people can build their homes, whom they can hire to do jobs for them, how their savings can be invested, and thousands of other issues large and small that shape our lives. Some decisions concern minor technical matters necessary to implement statutory instructions. Others determine important matters affecting private conduct with only the vaguest direction from the people’s representatives in Congress.

Because judicial deference gives greater power to unelected administrators, the rules for when and how much to defer to administrative decisions are central to effectively allocating authority among government branches and officials — central, that is, to who’s really in charge of the powers government wields and the functions it performs.

WITH A SMALL “r”:

Recovering the Republican Sensibility (Andy Smarick, Winter 2024, National Affairs)

There is not an agreed-upon definition of “republicanism.” Indeed, views on republicanism have evolved over two millennia. It can, however, be generally understood to begin with a sensibility, a way of seeing citizens and public life. Five principles outline this sensibility.

First, citizens of a republic are self-ruling and equal. In a republic, the government’s legitimacy flows from its citizens. Republican citizens are on equal footing before the law; they have equal duties and powers to shape the state.

Second, citizens of a republic should demonstrate “republican virtue.” When rulers have near-total power, individuals are expected to be passive while their rulers govern; when the people have power, they have a duty to be engaged in matters affecting the community. Active, constructive participation in public life is thus essential to republican government. Citizens must behave in ways that help the community succeed, including acting with honesty and civility, avoiding corruption and self-dealing, and putting public benefit ahead of private gain.

Third, democracy is the primary means of reaching decisions in a republic. Citizens may vote directly on public matters, or they may vote for representatives who in turn vote on such matters. Republicanism allows for non-elected administrators and judges, but these officials exercise the authority delegated to them by the people, and must operate within the rules the people establish.

Fourth, citizens of a republic must advance the common good. Issues affecting the community are public, not private matters. Republicanism does not tolerate nepotism or cronyism; a citizen should never see a community issue as an opportunity to advance his personal interest or the cause of his family or friends. Similarly, community decisions are not the concern of just the elite; all citizens contribute to the community’s good. This work is the substance of citizenship and the glue that bonds a community together.

Fifth, republicanism requires an active but limited government. Republicanism intends for the state to play a role in advancing the common good, but the state isn’t authorized to do anything and everything. The state can be limited via enumerated powers, individual liberties, and rights to procedures like due process. Republicanism does not emphasize expansive negative rights, but the state cannot rule arbitrarily and cannot dominate individuals or society.

These five pillars do not amount to a formula, or even quite a formal definition. But they describe the contours of republicanism as the founders of the American system of government understood it, and as we might understand it now.

DECLARATIVE:

Why America Is Both Democracy and Republic: Jay Cost speaks with Ben Klutsey about America’s identity as a democratic republic and the value of building consensus (BEN KLUTSEY, JAN 26, 2024, Discourse)

KLUTSEY: Now, going back to the earlier part of this conversation: When I asked you about who this book is for, you mentioned the critics on the left. The question here is, Is the Constitution too old and anachronistic? It gets a lot of criticisms from those on the left who seek changes to advance justice from their perspective. I think we’re getting a lot of criticisms from the right as well. You have the emergence of the post-liberals, who seek to abandon some aspects of our tradition.

Ultimately, I wanted to ask you to reflect a little bit on that critique about whether the Constitution is too old and anachronistic. Basically, what do the authors of the 1619 Project get right about the critiques of the Constitution?

COST: Yes, that is a good question. I do think that when people complain about the age of the Constitution, they’re being selective in their complaints. There are lots and lots and lots and lots and lots of things that are very old that they like. A good example of this is how many critics of the Constitution are operating from within the university system. The university system is a holdover from the medieval—they have professorships. That’s a holdover from medieval guilds.

I think to say that something is bad because it’s old or outdated, in and of itself, is specious reasoning. I don’t think anybody wants to play that game because, sooner or later, there’s going to be something old that they really like. Likewise, the idea of a jury of your peers: Everybody likes a jury of your peers. Nobody’s got a problem with a jury of your peers. The phrase “a jury of your peers” traces back to Magna Carta, which is quite a bit older than the Constitution, right? So just identifying the age of the Constitution as inherently being problematic, I think, is specious reasoning.

I do think, with respect to the 1619 Project, I do think that there is a tendency among conservatives … The post-liberal right, let’s put a pin in them for a minute. I’ll get back to them in a minute. I think that there is a tendency among conservatives to turn the Constitution into a kind of American version of the Ten Commandments, issued on high from God Almighty and is fundamentally flawless and things like that.

I think it is important to acknowledge—and not just to give lip service to it, but to really acknowledge the failures of the founding generation, and in particular the failures of men of the midpoint in the Enlightenment in their definition of civil society as having been too narrow. I think that is one thing that the 1619 Project gets correct, which is that there was an exceedingly narrow definition of civil society.

Now, by the standards of the age, the United States of America had a shockingly small-d democratic civil society because land was cheap. Landowners being able to participate in politics meant a very, very broad franchise, much broader than England, which at the time was broader than anything else in Europe.

Nevertheless, the rhetoric that Jefferson lays out in the Declaration of Independence is a sweeping call for universalism. The country was fundamentally founded on universal principles of human freedom. And self-determination as well—because that’s really what the Declaration is saying, right? It’s that people, being born naturally free, have a right to self-determination. That was something they knew, and that was something they did not follow through on because it was inconvenient to their economic interests. At the end of the day, it was inconvenient to their economic interests. They just crossed their fingers and hoped that the problem would melt away.

That critique, I think, is a very fair one. I’ll give you an example of this. If you go to James Madison—there’s been complaints about the change at James Madison’s Montpelier. But if you go and see it, what they’ve really done is they’ve really brought in the story of the enslaved community on the grounds. I think that’s a very important thing for people to understand: that James Madison, who was really the architect of our system of ordered liberty, was ordering that liberty among people who were not free, and he was enjoying their labor.

We need to keep that close in mind when we’re thinking about these men and to appreciate that they made mistakes. However, just because they made mistakes, this is not the fruit of the poison tree. That’s not how these things work. They’re men. Like all human beings, they have flaws, and they were men of their age, and their age had flaws. But they still had good ideas.

I think ultimately what we need to do is, we need to evaluate their ideas. We need to take what they say at face value and then consider the wisdom of what they say. We don’t accept what they say dogmatically because they’re the Founders. Likewise, we don’t reject what they say because they came from an age where human bondage was still an acceptable thing.

Instead, the spirit in which I think that we should take them is the one that I tried to take them in the book: is that these are Enlightenment men, very well educated, with a thorough grounding in the history of Western civilization, and were faced in it with a very big problem and put together a very brilliant system of government that, in my opinion, has held the test of time.

I would argue we don’t follow the Constitution because James Madison told us to. It’s that we follow the Constitution because James Madison and the other Founders put together a series of arguments that make sense, that it’s a sensible system and it’s a defensible system. The genius of the system is not that it’s old. The genius of the system is that it’s genius. It’s just brilliant.

And it really is. If you were to think about it as somebody who’s not an American, even as a critic of the Constitution, just as a historical—even if we were to decide like, “OK, well, we’re done with the Constitution”—it’s remarkable. The United States of America was the first country in the world to figure out a sustainable way in which a broad population could govern itself without an external monarch or nobility or something like that, and they actually pulled it off. It’s remarkable.

The French tried the same thing a decade later: turned into a disaster. It really wasn’t repeated in a meaningful way until really the 20th century in many respects. You just have to hand it to them for that, if for nothing else: that clearly, they were onto something.

Properly understood, the universal application of laws is the republican guarantor of rights. So long as you and I are bound equally our rights are realized.

Of Insurrections and Republics: Considering the plausible constitutional theory behind Sec. 3 of the 14th Amend., as well as wrestling with whether January 6th was an insurrection & if Donald Trump offered aid & comfort to the same. (JUSTIN STAPLEY, JAN 19, 2024, The Freemen Newsl-etter)

Like most of the American founders, I strongly distrust pure democracy. As John Adams once wrote, “Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide. It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy.”

I view democracy from a very utilitarian perspective, in that democratic processes are indispensable to a functioning constitutional republic but no more indispensable, and arguably less indispensable, than other aspects of republicanism, such as meritocracy, the rule of law, liberty, etc. I’m, therefore, less inclined to herald democracy as a principle or ideal, one that holds value and virtue in and of itself. As the quote from Adams suggests, every majoritarian democracy in history has ended in tyranny. In such attempts, the unvarnished will of the people inevitably empowered demagogues who played off the anxieties of the people toward achieving unchecked power. That’s why the American founders crafted a republic, one with checks and balances upon every exercise of power, including the voice of the people.

We often think of constitutions as limits on governing power and protections for the rights of the people. And they are that. But in the broader context of constitutional theory, the function of a constitution extends to purposes conducive to wrestling with the realities of human nature. Consider that, in any form of representative government, a limit placed on governing authority is a limit placed on the majoritarian will of the people and that protections for rights and liberties are, once again, limits placed on what a political majority can do to a political minority. A constitution is nothing more and nothing less than a circumscription of power—all avenues and repositories of power, including the people themselves.

Clearly, the purpose of a constitution’s circumscription of power is not to enable the unvarnished voice of the people. The very idea of limited governance is counter to the idea of democracy as an unadulterated good. To the contrary, the basic theory of constitutional governance recognizes pure democracy as one of the great evils to be avoided and democratic processes as, to at least a certain extent, a necessary evil. Constitutional theory, then, is not dedicated to establishing democracy as its ultimate aim but utilizes democratic processes as an ingredient toward the ultimate aim of establishing and preserving the sovereignty of a people.

What is the sovereignty of a people? That can prove to be a complicated question to answer. But the easiest and most straightforward way to understand popular sovereignty is Abraham Lincoln’s conception of a government “of the people, by the people, for the people.” Under the concept of popular sovereignty, the people, as a whole and not simply a majority of the people, are the reservoir of ultimate and supreme power in society. The authority of any form of government under such a scheme derives from the consent of the governed (by the people), and its legitimacy is maintained through representation (of the people) whose responsibility is to provide for the common good (for the people).

While democratic processes help provide a framework that assures government of the people and by the people to a reasonable degree, history has demonstrated that democracy is ill-suited to provide the common good for all people in a society. The unavoidable development of factions, the inevitable spirit of party, and the inescapable shortfalls of majority rule all guarantee that the effects of pure democracy cannot ever be conducive toward the common good. There must be auxiliary precautions enshrined in a political compact, a constitution, that checks and balances majoritarian power if the common good of the people can even become a possibility. Further, even government of the people and by the people is impossible through majoritarian democracy, because, once again, we’re talking about all of the people, not simply government by whichever faction or interest can cobble together a 50+1 majority.

Sovereignty, not democracy, is the ultimate aim of constitutional governance, and sovereignty, as I’ve demonstrated above, is aided by democratic processes but only secured through a strong and well-constituted form of limited government. The sovereignty of a people relies upon a constitution that is maintained as the supreme law of the land and effectively checks and balances the exercise of all power, especially the power of majorities. And this is my crucial point: the sovereignty of a people is assaulted, rather than preserved, if the provisions of a constitution are discarded or defenestrated in the name of democracy.

The Right frets about liberalism lacking a “common good” but the requirement of republican liberty that laws be applied universally enforces one.

DENYING CONSENSUAL GOVERNANCE:

The Constitution’s Overlooked Road Map for an Accountable Bureaucracy (Alison Somin, 1/18/24, Discourse)

Today there are hundreds, if not thousands, of officials in the federal government who exercise expansive power who are not confirmed by the Senate, are not accountable to the president, or both. To fix this broken system, it’s necessary to revitalize the president’s powers to appoint and remove executive officials.

In the late 19th and early 20th centuries, the progressive movement grew increasingly critical of the original constitutional design. The progressives wanted to move power away from the democratically elected president and direct appointees into the hands of supposedly impartial, nonpolitical experts.

Their moment came in the 1930s, when the crisis of the Great Depression led to demand for extraordinary measures. Congress created a slew of new executive agencies and made it impossible for the president to fire many of the officials who populated those agencies except for cause. And over the ensuing decades, as these agencies pushed the bounds of their own power, decision-making power accumulated with officials who were never constitutionally appointed.

Early progressives and contemporary defenders of the administrative state have defended removal protections for federal officials because they allow those officials to be “insulated from politics.” But put another way, this is ultimately an attempt to wrest the levers of government power away from the people. It’s incompatible with the Constitution’s promise of self-government, the beating heart of the American experiment. The people deserve the government they choose, whether it comports with the preferences of the “experts” or not.

There is value to having the executive branch staffed by experts with technical knowledge. But technical knowledge is only one part of the puzzle that is policymaking. Values also matter, and the ability to make tradeoffs among competing values is one of the most important parts of governing. Those tradeoffs must be made by the people’s representatives or, at the very least, officials who are directly accountable to them.

Unlike the intentional spread of removal protections, the plethora of federal officials who wield government power without being vetted by the Senate developed as much by default as by design. The New Deal and the Great Society vastly expanded the footprint of government interference in the lives of everyday Americans. All those rules and enforcement actions overwhelmed the capacity of officials who had been appointed by the president and confirmed by the Senate. Rather than appointing more of these officials, the executive branch devolved lots of power to employees who were never appointed in an accountable manner.

Regulatory overreach by officials who are not constitutionally appointed appears to be all too common. One Pacific Legal Foundation study found that 71% of rules issued by the Department of Health and Human services were unconstitutional because the officer signing them was never appointed by the president and confirmed by the Senate.

GET WOKE:

The lessons of Martin Luther King’s life should give us hope today (Janice Ellis, JANUARY 15, 2024, NH Bulletin)

If we, like King, truly believe that the words of the Constitution and Declaration of Independence are meant for all Americans, then zealously embrace them and put them into practice by letting them govern and guide our actions in both our public and private lives.

That fundamental belief inspired and motivated King and lit the path he chose to fix policies and practices to make life in America as it was intended to be.

This was made abundantly clear in his “I Have a Dream” speech during the historic march on Washington in the summer of 1963: “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, Black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.”

King did not ignore, nor seek to discredit or dismantle, the basic tenets of our democratic republic. He embraced them instead.

Republican liberty denies Identitarianism.

THE TEXT IS A STUBBORN TASKMASTER:

Is Donald Trump Disqualified from the Presidency? (Matthew J. Franck, 1/11/24, Public Discourse)

I doubt that any academic article on the law has moved so rapidly from its circulation among scholars to the adjudication of the merits of its argument as “The Sweep and Force of Section Three,” by William Baude and Michael Stokes Paulsen. Initially posted to the Social Science Research Network in mid-August 2023—with publication still forthcoming in the pages of the University of Pennsylvania Law Review—Baude and Paulsen’s 126-page case for Donald Trump’s disqualification from the presidency has been downloaded more than 100,000 times and figures prominently in the reasoning of the Colorado supreme court’s decision of December 19 that Trump’s name cannot appear on the state’s primary election ballot. (It is not cited in the December 28 ruling by Maine’s secretary of state to the same effect, but one might say that Baude and Paulsen’s fingerprints are visible.) Other scholars reached the same conclusion both before and since their article’s appearance—and still others vehemently disagree with their conclusion. Some states have considered the question and permitted Trump to remain on primary ballots. The question is now headed to the U.S. Supreme Court.

The “Section Three” of Baude and Paulsen’s title is the third section of the Fourteenth Amendment, crafted by the Thirty-ninth Congress after the Civil War and ratified in 1868:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The case against Trump, then, is that, having sworn the oath of office as president on January 20, 2017, he then on January 6, 2021 “engaged in insurrection or rebellion” against the constitutional order that was the subject of that oath. Thus, he is now ineligible for any office, state or federal, in the United States, or for service in Congress or any state legislature or as a presidential elector.

ALL BEES ARE cREATED EQUAL:

Can the centre hold? From Mandeville’s bees to artificial intelligence (David Howell, 1/03/24, The Article)

Not many people nowadays read Bernard de Mandeville’s allegorical Fable of the Bees, first published in 1705. This described to a shocked world at the time how a large and successful beehive colony stayed bound together and prospered, so long as the bees all pursued their own interests within the law and their relationships one to another, as both individual and essentially social creatures, even if untidily, and with some backsliders. Each creature, by going about its reciprocal business, contributed, even if unintentionally, to the cement of society.

But once they stopped working for themselves and their individual and mutual needs, focussing instead on higher and more perfect state design for general welfare and behaviour, their precious equilibrium was rapidly lost. The framework of society, which no one had planned but in which not only bees but humankind too had always existed, fell apart. Without that glue, a cohesive society, which all the millions of their individual actions had created, crumbled and their relatively stable and balanced society disintegrated into chaos, division, grievance and immiseration.

So things would also turn out, went Mandeville’s thinly disguised message, where in human affairs states spent too much time and effort trying to iron out social blemishes, intervening to insist on virtuous conformity to blueprints of perfection and putting the interests of an increasingly separate and distanced state ahead of people’s daily lives and needs. It would all end badly, if ever it ended at all. […]

Coming from the global to the national level, the societal divisions, like deep flesh wounds, must be held with plaster strips and stitched together, not salted with more tired ideology from a past age and a partisan spectrum of beliefs and aims that now barely connect with the real issues before us. The heart of the matter is not race or gender or class, but reaching with new determination towards a capitalist system that shares, that is democratic, that is fair and spreads dignity and security to millions of households and financial literacy to an entire population, starting in the schools. This was the old dream of the Conservatives. The digital revolution brings a dream of genuinely widened ownership and financial justice to the edge of reality.

THANKS, MITCH!:

Brett Kavanaugh Could Strike Killer Blow Against Donald Trump (Ewan Palmer, 12/21/23, Newsweek)

In a 7-2 vote, the Supreme Court said that former Manhattan District Attorney Cyrus Vance Jr.’s office can be allowed to request Trump’s financial records as part of an investigation into the former president’s real estate company, The Trump Organization.

“Pop quiz: Which sitting SCOTUS justice wrote this in a 2020 case? ‘In our system of government, as this Court has often stated, no one is above the law. That principle applies, of course, to a President,'” Vance posted.

“Would it stun you to learn the answer is…Brett Kavanaugh, concurring in the judgment, in then-Manhattan DA Cy Vance’s bid for Trump’s tax and financial papers?”

No. The Federalist Society is conservative, not MAGA.

THE TEXT IS A STUBBORN TASKMASTER:

How Gorsuch made the case for banning Trump from the ballot (LISA NEEDHAM, DEC 21, 2023, Public Notice)
·

The Colorado Republican State Central Committee (CRSCC) intervened in the lawsuit, arguing that any determination about Trump’s qualifications to be on the ballot interfered with the party’s First Amendment right of association to choose its candidates. However, putting aside the whole insurrection issue, the United States Constitution sets out several conditions that have to be met for a person to be qualified to run for president. You must be a “natural born citizen,” at least 35, and have lived in the United States for at least 14 years. The CRSCC’s position, the Colorado Supreme Court pointed out, would allow them to place anyone on the ballot even if they didn’t meet these constitutional qualifications.

Trump also tried to argue that he is not barred from running for office because he’s an insurrectionist but only from holding office as an insurrectionist. This is absurd on its face, and the Colorado Supreme Court was able to dispose of that argument thanks to Justice Neil Gorsuch.

Really.

Back in 2012, Gorsuch was a judge on the United States Court of Appeals for the Tenth Circuit. In that capacity, he wrote the panel opinion in Hassan v. Colorado. Hassan, a naturalized citizen, sued Colorado, arguing it was required to put him on the presidential ballot even though he was not a natural-born citizen and was therefore not constitutionally qualified to run for president. The Tenth Circuit ruled against him, with Gorsuch writing that states have “a legitimate interest in protecting the integrity and practical functioning of the political process” and that because of that, they can “exclude from the ballot candidates who are constitutionally prohibited from assuming office.” It’s that quote that makes its way into the Colorado Supreme Court opinion.