Republican Liberty

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.

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.

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)
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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.

THE ANGLOSPHERE IS A BIT POORER:

J G A Pocock: the Antipodean’s view of Europe: John Pocock defended Britain in its broadest sense (Yuan Yi Zhu, 19 December, 2023, The Critic)

[H]e fell under the influence of Sir Herbert Butterfield, who steered him toward the history of historiography, or in other words the history of the history of history. Abstruse though it may seem to laymen, it is, as Pocock put it, nothing less than “the history of all the ways in which men have felt committed to their past”. The result was a brilliant dissertation, published as The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (1957), which examined late Elizabethan and early Stuart lawyers’ belief that there existed an “ancient” constitution of England, dating from time immemorial and therefore immune from interference by the king’s prerogative, not unlike how modern academic lawyers insist that judicial review can never be ousted by Parliament. […]

But it was not long before Pocock made his mark on America. In The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975), he deftly chartered the influence of early modern republican thought of Florence, typified by Machiavelli, and of its preoccupation with how to maintain civic virtue against the inevitability of decay, on English republicans and American revolutionaries. The American Revolution and the framing of the republican constitution were, to Pollock, “the last act of the civic Renaissance”.

THE ESENTIALS OF REPUBLICAN LIBERTY:

‘No Taxation Without Representation’ (JUSTIN STAPLEY, DEC 16, 2023, Freemen News-Letter)

When we think of tyranny, we think of the systems of absolute despotism concocted by the likes of Hitler, Stalin, Un, and Mao. But the definition of tyranny held by the early patriots was any arbitrary government act. The power to tax, in their view, was the power to destroy, and thus taxation must derive from a representative body. Were it to derive from any other place, it would demonstrate a threat to their fundamental rights to life, liberty, and property. The question of tyranny, for them, extended beyond specific acts of tyranny and encompassed a consideration of the legitimacy of government power and how it could be used if the people were subjected to arbitrary authority.

WE ARE OF THE TOGA PARTY:

Philip Pettit on What It Means to Be Free: Yascha Mounk and Philip Pettit discuss small-r “republicanism” and how to make sure people don’t suffer from domination. (Persuasion, DEC 9, 2023)

Yascha Mounk: One thing that I talk a lot about on this podcast is the idea of liberalism and philosophical liberalism. Persuasion understands itself in many ways as a defender of liberal values. Now, you come from a tradition that is related, but subtly distinct, that of republicanism.

Why don’t you explain to readers who may not know what republicanism is, what the core claims of the republican tradition are, and how they, to ask a very undergraduate question, compare and contrast with the tradition of liberalism?

Philip Pettit: The main thing to be said is that they both prioritize the ideal of freedom. The language of freedom is very much to the fore in each way of talking. The first contrast, I think, to make really is historical: what most people will identify now is a continuing republican tradition that goes back to classical Rome, to the Roman Republic. And whereas the liberal tradition, so-called, only identifies itself and appears in a distinctive form from the late 1700s. The contrast, though, in conceptual terms, is mainly a contrast in their way of understanding freedom.

The way that the Romans understood it was that, in order to be free, you basically had to be free of a “boss,” so to speak. It was having a boss, having a master, or having a dominus, in the Latin phrase, that made you unfree. And they made this split visible or salient by a particular image, which was the slave whose master is very kindly, gentle, gives the slave more or less carte blanche, and is very gullible so that the slave can run rings around the master, and for the Romans, that person, though they could act as they wish, almost across a whole range of choices, was not free, because they suffered towards the Romans called dominatio, which meant simply the existence of a master. Of course, the master didn’t actually interfere with them, but he still made them unfree. Because whatever they were free to do, whatever they had a choice of doing, they were free to do only because the master allowed them. It was ultimately the master’s will that remained in charge. And that’s a very important idea in this long Republican tradition, which begins in Rome, as I say, but it continues through, for example, the northern Italian cities of the High Middle Ages, the Renaissance cities, into the Dutch Republic, Polish Republic, the English Republic in the 17th century, and of course, the American republic—in particular, in the American Revolution and the War of Independence of the 18th century, as well as in the French. […]

Pettit: First of all, the American Constitution, written in 1787 or so, does reflect, I think, a very long tradition of republican thinking, as all of the Founders were well aware. When they campaigned, in many cases, they actually wore a toga. They were that aware of the Roman connection, and that that’s where they were coming from.