The Constitution & The Courts

Our Tragic Constitution
Reviewing Marc DeGirolami’s The Tragedy of Religious Freedom, on a “Burkean” approach to questions of religious liberty and majority rule.


Book Review: Is Administrative Law Unlawful?
The Wall Street Journal
I reviewed Prof. Philip Hamburger’s fascinating book on the roots of administrative law and executive power. Later, I interviewed him for a Federalist Society “teleforum.” He disagreed with one point I made, here.


Kennedy’s Question
The Weekly Standard
At oral argument in Sebelius v. Hobby Lobby, Justice Kennedy posed a challenging, fundamental question to the Solicitor General: “what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? … [W]hen we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency, to determine that this corporation gets the exemption on that one?” This is a question Justice Kennedy has asked throughout his career on the bench: when it comes to the most controversial issues of our time, should Congress be allowed to simply hand the issue off to unelected regulators through vague delegations? Justice Kennedy has once again asked the question — how will he answer it?


“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics
The Liberty Law Blog
I contributed one of several replies to Ralph Rossum’s essay, “Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration.” (In addition to my amateur musings, there were fascinating contributions from genuine legal scholars Keith Whittington and Lee Strang.) Rather than focusing on how Justice Thomas differs from Justice Scalia in their respective willingness to disturb old precedents (or, stare decisis), I focus on Justice Thomas’s understanding of the relationship between the Constitution and the Declaration of Independence, which sets him apart from many traditional originalists. But even more than that, I focus on Justice Thomas’s fundamentally populist approach to constitutional dialogue.


The Senate Does Not ‘Owe’ a Vote to Every Nominee for the Judiciary
The Des Moines Register
The Register‘s editorial page had argued that the Senate “owes” every judicial nominee an up-or-down vote, and criticized Senator Grassley for helping to block certain judicial nominations. I replied with this op-ed, which draws on the 2006 law review article I did on this very subject.

Later, on the Weekly Standard’s podcast, I discussed the Senate majority leader’s decision to use the “nuclear option” to end judicial filibusters.


First Monday in October
The Wall Street Journal
Reviewing In the Balance, Mark Tushnet’s review of the Roberts Court (and, Tushnet suggests, “the Kagan Court”).


Tocqueville’s ‘Most Powerful Barrier’: Lawyers in Civic Society [pdf]
The American Enterprise Institute’s Program on American Citizenship
Considering lawyers’ role in American society, from Tocqueville’s day to today.


The Regulatory Court
The Weekly Standarddccircuit-cover
The D.C. Circuit plays a singular role in American law and policy today — it is primarily responsible for hearing appeals of federal regulatory actions, as well as cases raising constitutional questions. The court itself did not choose that role; that role has been chosen for it, time and time again.


A Liberal Who Preached Restraint
The Wall Street Journal
Reviewing Reason and Imagination, a collection of Judge Learned Hand’s correspondence edited by Hand’s granddaughter, Constance Jordan.


The Blessings of Liberty
The Weekly Standard
On Spielberg’s Lincoln, slavery, and the Thirteenth Amendment. True, as many have pointed out, the movie illustrates an important paradox: in republican government, high principle can be achieved through low politics. But it also illustrates (or ought to illustrate) a second, no less important, paradox: that the presidential powers capable of infringing liberty are also necessary to secure liberty.


‘The Biggest Kiss’ 
The Weekly Standard
As Mitt Romney noted at the first presidential debate, big banks benefit greatly from Dodd-Frank — whether Dodd-Frank’s proponents intended that, or not.


Bork Won
Twenty-five years after Robert Bork’s failed nomination to the Supreme Court, his judicial methodology has enjoyed great success, both in the courts and in the court of public opinion.


Bickel’s Principled Prudence
My contribution to SCOTUSblog’s symposium on the 50th anniversary of Bickel’s The Least Dangerous Branch.


Ideologues in Robes
The Wall Street Journal
Reviewing Judge J. Harvie Wilkinson’s excellent and controversial new book, Cosmic Constitutional Theory.


Obamacare on Trial: A Series
The Weekly Standard Online
Over the course of three days, the Supreme Court heard historic oral arguments in the challenge to Obamacare’s individual mandate.  Throughout the week, I posted updates and commentary:

  • Day One:  On whether the Court has jurisdiction to hear the case at all
  • Day Two:  The big question — is the individual mandate unconstitutional?
  • Day Three:  On the proper remedy, and the coming debate among the Justices
  • Postscript:  After oral arguments ended, the debate continued

Without Precedent
The Weekly Standard
Obamacare’s individual mandate is literally unprecedented: it attempts to change the very structure of government, achieving economic policy not just by proscribing certain conduct but by actually prescribing conduct. Yet the Administration’s defense of the mandate before the Supreme Court and lower courts fails to offer any meaningful limit on future mandates.  For those reasons, the proper frame of reference for the Obamacare litigation is not previous “Commerce Clause” cases but, rather, recent cases in which the Court confronted other unprecedented assertions of government power that threatened to change the very structure of government. In each of those cases, the Court drew a line in the constitutional sand, pressing back against the elected branches’ constitutional innovation.  (My article received generous mentions from the Washington Post’s Robert BarnesNational Review Online’s Ed Whelan, and AEI’s Michael Greve.)


Ahead of His Class
The Wall Street Journal
Reviewing a new biography of Judge Henry Friendly, the most influential lower-court judge of the second half of the 20th Century.


The Lost Greatness of Alexander Bickel
This year marks the fiftieth anniversary of The Least Dangerous Branch, a seminal book of constitutional theory by the late Alexander Bickel.  I briefly discussed Bickel in an article I previously wrote about Justice Samuel Alito; in this article I go further, discussing the book and then Bickel’s subsequent work.  At the outset of his career, he was, unequivocally, a liberal.  Two decades later, after the turmoil of ’60s radicalism, he was the Right’s standard-bearer.  But that shift reflected not a change in Bickel, but a change in his times.


“When the Facts Change, I Change My Mind”
Library of Law and Liberty
The Liberty Fund invited me to join a discussion between Professors Richard Epstein and Paul Salamanca, on the Supreme Court’s recent First Amendment decisions involving video games and funeral protests.  I reiterated many of the points that I previously raised in a profile of Justice Alito, but then went slightly further, comparing Justice Alito’s conservative temperament to the anti-ideological instincts of Judge Benjamin Cardozo.  For all of its vices, Progressive jurisprudence had at least one virtue: an awareness of stretching legal doctrines past the breaking point.


An Unconstitutional Appointment to an Unconstitutional Office
The Weekly Standard Online
President Obama’s decision to “recess”-appoint Richard Cordray to lead the Consumer Financial Protection Bureau was unconstitutional, but even more important is the unconstitutionality of the CFPB itself.  (I followed this post up with a second post highlighting Harvard Law Professor Laurence Tribe’s surprisingly shameless flip-flop on recess appointments, and then one more post analyzing the legal opinion published by the Justice Department’s Office of Legal Counsel.)


Off the Bench, Into the Fray
The Wall Street Journal
A review of Justice John Paul Stevens’s Five Chiefs: A Supreme Court Memoir. Ultimately, a frustrating book by a frustrating judge.  [Followed by a video interview.]


The Tea Party’s Constitution
The Weekly Standard
A recent GOP presidential debate illustrates an interesting constitutional disagreement among Tea Party members: does the Tea Party want federalism, or liberty?

The Burkean Justice
The Weekly Standard
A long profile of Justice Alito, focusing on his recent opinions in three controversial First Amendment cases, and reflecting on some of his apparent influences, especially the late Alexander Bickel.


Circuit Breaker
The Weekly Standard Online
On President Obama’s first (abortive) plan to appoint someone to the D.C. Circuit.


Wilkinson and Posner, Dissenting
The Weekly Standard
Two prominent conservative judges’ criticism of the Supreme Court’s originalist interpretation of the Second Amendment.


Will the Real VP Please Step Forward? [pdf]
The Legal Times
The Vice President’s constitutional roots are in the Legislative Branch, not the Executive.


Justice Jackson’s Draft Opinions in the Steel Seizure Cases [pdf]
Albany Law Review
Reviewing Justice Jackson’s drafts and notes, from the seminal 1950s Supreme Court case on presidential power in wartime.


Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry [pdf]
Harvard Journal of Law & Public Policy
On the Senate’s constitutional power to simply refuse to act on the President’s judicial nominations. Analysis included research into Massachusetts’s original practice of “advice and consent” in the 1780s, a model that the Framers expressly adopted, at the Philadelphia Convention of 1787, as the basis for the U.S. Constitution’s “advice and consent.”

— Cited by the Massachusetts Supreme Judicial Court, Opinion of the Justices to the Governor, SJC-11114 (Mar. 27, 2012).

— Cited by the Third Circuit in striking down President Obama’s “recess” appointment of NLRB membersin NLRB v. New Vista Nursing and Rehabilitation, 719 F.3d 203 (3d Cir. 2013).

— Discussed at length in Matthew C. StephensonCan the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940 (2013).