1. The Fourteenth Amendment imposes its willful blindness to racial disparities upon the Fifteenth Amendment (don’t worry that the Fifteenth Amendment guarantees that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race”).

2. And because, according to City of Boerne v. Flores, Congress may not add to the substantive contours of rights (including the right to vote), if the Fifteenth Amendment takes no note of racial disparities absent discriminatory intent, neither may the Voting Rights Act.

3. Thus, Congress’ 1982 amendment to Section 2, which for fifty years has targeted proscribed—regardless of intent—racial disparities in voting, no longer does.

Add to this the Court’s laundry list of plausible (to your racist uncle’s ear) “non-racial” explanations for disparities in voting, today, a vote dilution claim requires nigh-impossible proof (again, to uncle’s ear) of discriminatory intent. So, Section 2 remains constitutional, if only because Section 2 now means next-to-nothing. It’s only a hair shy of proclaiming that the Fifteenth Amendment’s reference to, and thus cognizance of, race violates the Fourteenth’s Colorblind Equal Protection Clause.

Suffice it to say, Alito gets it wrong on the text, the law, and the history. But on that morass we need not linger. A graver concern draws our attention. For Justice Kagan, in dissent, nevertheless (and unnecessarily) concedes that “The Fifteenth Amendment, all agree, prohibits only purposeful discrimination.” Indeed, to hear Kagan tell it (if you can survive the academic slog), Section 2’s Effects Test (the prohibition of disparate impact, “results in,” that is)—does not reflect the meaning of the Fifteenth Amendment. Rather, Section 2—though it steps out ahead of the Amendment itself—reflects an “appropriate” means for Congress to enforce the prohibition of discriminatory intent in voting.

One wonders where the hell Elena Kagan has been for the last thirty years. Simply put, (unless I’m very much mistaken as to where she’s getting her Constitutional exposition from) Kagan is adhering to the delusion that the Court (and the Court alone) tells us what the Constitution means. But why shouldn’t Congress’ judgment that the Supreme Court erred in City of Mobile v. Bolden (that the pre-1982 Section 2 did not cover disparate impact), and subsequent amendment of the statute “enforc[ing]” the Fifteenth Amendment, inform our judgment of the Amendment’s scope in the first instance? Very rarely in our American experience of dueling Constitutional interpretations between the Court and Congress has history vindicated the Court. On the contrary, numerous examples damning the Court come readily to mind: Dred Scott v. Sandford (interpreting the Constitution as inextricably an enslaver’s document); the Civil Rights Cases (circumscribing the Fourteenth Amendment to only cover State action); Hammer v. Dagenhart (ruling child labor conditions outside of the Commerce Clause); Shechter Poultry (ruling wage and hour laws outside of the Commerce Clause); National League of Cities v. Usury (ruling wage and hour laws outside the Commerce Clause when applied to States); City of Boerne v. Flores (asserting complete judicial ownership of individual rights); United States v. Morrison (applying Boerne to strip American women of protection again sexual assault); and, why not, Shelby County v. Holder (interpreting the Voting Right Act’s Preclearance Regime to violate the made-up principle of equal state dignity). It’s high time the liberals on the Court recognize that the solution to an out of control Court isn’t an out of control Court on our side, it’s a Court that doesn’t have the opportunity to get out of control in the first place—because Congress is the first branch of government.

Moreover, if the institution as Constitutionally unreliable as the United States Supreme Court is responsible for the notion that “The Fifteenth Amendment, all agree, prohibits only purposeful discrimination,” oughtn’t we not engage in a little bit of long-delayed self-reflection? Why should the Fifteenth Amendment only prohibit purposeful discrimination in voting?

Well, why shouldn’t the Fifteenth Amendment prohibit racialized disparities in voting? Does the Thirteenth Amendment prohibit only purposeful enslavement? Did millions of Black Americans labor and die in bondage, building this nation so that one day their progeny might be accidentally or inadvertently denied the right to vote?

Democracy requires so much more than the simple demand that we not intentionally harm one another—that we merely refrain from enslaving one another out of the Jeffersonian fear of retribution. It requires more than even Lincoln’s early phrasing that “as I would not be a slave, so I will not be a master.” Democracy requires, as Lincoln urges in his First Inaugural, and as Jaffa teaches in his New Birth of Freedom, that we submit ourselves to the votes of others—to those we’ve never met, to those of different colors, religions, and backgrounds we share little more in common with than the shared nationality, to those we treated only five minutes previously as our utmost adversaries.

Angels could perhaps run a democracy on a theory of equality that looks only to purposeful discrimination. Humans cannot. We require practice and treats to cultivate our better halves. A theory of equality, of the Reconstruction Amendments, that ignores racial disparities (or any other disparity relating to a historically subordinated group) grants the imprimatur of the law to our scorn for others—so long as we didn’t personally contribute to their condition. But just as no racist in the sheets may become a racial egalitarian in the streets, no one who can look with contempt at a fellow citizen’s plight can hope to submit herself to the vote of the other. Racial disparities in daily life reify until they inure us to racial disparities in voting, and to disparities in the requirement of democratic consent itself. The road from opposition to Brown, to Shelby County, to Students for Fair Admissions, to Louisiana v. Callais this week, makes this all too clear.

Not only may we interpret the Fourteenth and Fifteenth Amendments to abjure racial disparities, we must. Our democracy depends on it.

In 1818, Maryland enacted an annual tax on all banks operating within the State that had not been chartered by the legislature. In both purpose and effect, the law had one target: the Second Bank of the United States. Second because, although President Washington and the First Congress had chartered the Bank of the United States in 1791, James Madison had let it lapse in 1811 only to come to his senses five years later, signing the Second Bank charter in 1816. Anyway, J.W. McCulloch, the Maryland-branch cashier refused to pay, Maryland sued and prevailed in Maryland courts, and so McCulloch appealed to the Supreme Court, presenting a deceptively simple question: “has Congress power to incorporate a bank?”

1. The First Aside.

Chief Justice Marshall could have decided the case on the historical record alone. The matter, he noted, could “scarcely be considered as an open question.” On the contrary, “[t]he principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department.” One almost wonders whether age and maturity or golf schedules prompted the newfound moderation, so contrasted with the John Marshall of 1803’s Marbury v. Madison: “it is emphatically the province and duty of the judicial department to say what the law is.” Whatever the reason, here in 1819, Marshall evinces a good dose of judicial humility: “An exposition of the Constitution, deliberately established by legislative acts . . . ought not to be lightly discarded.”

2. The Underlying Issue: Federal Sovereignty.

But Marshall did not leave it at that. “The[ above] observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the constitution.” McCulloch is no more about what Congress had done than about a Bank. This Maryland’s argument quickly makes clear:

[T]he counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion.

Simply put, Maryland doesn’t just deny Congressional authority to make a bank—it denies Federal sovereignty, and thus Congressional authority, in toto.

Marshall, to be sure, makes short work of the argument. For one, “We the People” framed, established, and ratified the Constitution (the division of ratifying conventions by State being just a not to practical reality). For another, the Declaration itself rejected the notion that the People could not withdraw sovereignty from the States and re-vest it in a general government (“whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”). Thus, “The government of the Union, then, is, emphatically [same word as the judiciary’s duty to “say what the law is,” mind you] and truly, a government of the people.”

Yet as seemingly final and conclusive as this statement might appear, Marshall has the good sense to not leave the job half finished. Because, as any good lawyer will know, establishing something in principle does not necessarily instantiate it in practice. That is, proclaiming the sovereignty of the Federal government does little good without a framework for putting that national supremacy into effect. This explains why Marshall does not decide McCulloch merely on the historical record, but instead proceeds to explain how we ought to read and comprehend the United States Constitution as a document enabling the Federal government to take all measures reasonably calculated to advance the welfare of “We the People.”

3. The Practical Issue: Constitution of Experience.

In McCulloch, John Marshall propounds reason and experience as the touchstone of Constitutional interpretation. The Constitution ought to be read reasonably in light of the purposes for which it was established, permitting neither textual pedantry nor past mistakes to shackle present and future generations. Some examples will bear this out.

a) Reason & Context.

Marshall begins on the topic of Federal supremacy, illustrating his notion of reason. He acknowledges that “[t]his government is . . . one of enumerated powers.” But enumeration is one thing; Federalism another. And the Federal government’s bounds cannot be read to defeat its capacity. “If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action.” This follows naturally, not from any specific Constitutional text, but from basic democratic principles. The Federal government “is the government of all; its powers are delegated by all; it represents all, and acts for all . . . The nation, on those subjects on which it can act, must necessarily bind its component parts [the States.]” Or, in other words, Federal law preempts State law because the Federal government represents all of us. We act with the greatest democratic weight not via the States, but via the United States. The Supremacy Clause (“this constitution, and the laws of the United States, which shall be made in pursuance thereof . . . shall be the supreme law of the land”) confirms this principle, but it does not establish it.

b) Experience.

Marshall further develops this line of reasoning to explain Congress’ authority to charter a national bank. True enough, Marshall admits, “[a]mong the enumerated powers, we do not find that of establishing a bank.” Now, to require all powers of government to be enumerated would require a self-defeating level of detail. “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means in which they may be carried into execution, would partake in the prolixity of a legal code, and could scarcely be embraced by the human mind.” But that’s not really Marshall’s point.

Far more important than feasibility, however, requiring a total enumeration of means and ends would deprive Congress of the the ability to learn from experience. The Articles of Confederation had attempted precise Congressional enumeration, reserving to the States “every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States.” Of course, that attempt at government imploded when Congress could not even raise money to fund a militia to see off Shays’ rebellion. Thus the Philadelphia Constitution contains “no phrase, like the articles of confederation, excludes incidental or implied powers.” The Tenth Amendment, notably, “omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United States . . . are reserved to the States.” The Founders had learned their lesson, Marshall explains, “[t]he men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word [expressly] in the articles of confederation.” A self-defeating constitution is not merely a bad constitution, Marshall tells us, it is no constitution at all. “Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves”—“In considering this question, then, we must never forget, that it is a constitution we are expounding.”

At this point, Marshall does mention the various ends which a national bank would serve: Congress’ power to tax, borrow, and spend; regulate commerce; and to raise and support the armed forces. Marshall, good Federalist that he remains, does not mean to imply from all the foregoing that Congress can invent new substantive ends beyond those enumerated in Article I, Section 8. Rather, he means that Congress “must . . . be entrusted with ample means”—enumerated or not—to accomplish those ends. But perhaps grasping the delicacy of the situation (which we will flesh out at the end), besides mentioning that Congress needs a Bank to be able to effectively move capital around, Marshall leaves most of the reasons why Congress might need a Bank unstated. Instead, he focuses (and will continue to focus) on Congress’ authority to choose appropriate means to serve its ends: “The government which has a right to do an act, and has imposed on it the duty of performing the act, must, according to the dictates of reason, be allowed to select the means.”

c) Putting it all Together: Necessary & Proper.

Only then does Marshall finally reach the Constitutional text which most law students think (erroneously, as we have seen) McCulloch is all about: the Necessary & Proper Clause. But Marshall’s analysis here only re-illustrates the points of his constitutional interpretation already established.

Maryland argued that the Necessary & Proper Clause (which gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”), first, merely granted Congress the power to legislate, and, second, limited Congress to means without which the ends could not be achieved (“without which the power would be nugatory”). Marshall dispatches both with ease. The first he found scarcely worth responding to. “That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned.”

The second required little more explanation. “Is it true, that this [without which the power would be nugatory] is the sense in which the word ‘necessity’ is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without the other?” Of course not. “A thing may be necessary, very necessary, absolutely or indispensably necessary” (indeed, the Constitution recognizes as much, prohibiting States from enacting tariffs unless “absolutely necessary” to cover the cost of inspection laws). Maryland’s construction violated a simple corollary of Marshall’s rule of reason: don’t be a pedant. “It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense—in that sense which common usage justifies.” Thus, “we find that “necessary” “frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ means necessary to an end, is generally understood as employing any means calculated to produce the end.” Indeed, Maryland’s construction contravened not merely the ordinary usage of the term, but the structure of the the Constitution. The Necessary & Proper Clause, after all, rests in Article I, Section 8’s recitation of things Congress may do—not in Section 9’s list of things it can’t. “If, then, the[ Framers’] intention had been, by this clause, to restrain the free use of means which might otherwise have been implied,” this would have have been a pretty poor way to communicate it.

And yet, again, all of that textual machination simply lays the foundation. At bottom, Maryland’s constitutional interpretation would deny Congressional resort to experience. The Necessary & Proper Clause “is made in a constitution intended to endure for ages to come.” “To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” Marshall’s Constitution of Experience looks to Congress’ “discretion”—

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

About a Bank, McCulloch is not.

4. Maryland’s Worry.

Marshall’s explanation, and his strategic omissions, make so much sense, one would not be amiss to wonder why Maryland spent all that effort trying to shackle Congress? There’s an immediate and concrete answer, and a more conceptual, longer term answer. Both, however, answer: because of the shackle.

a) Insurrection.

To the first, let’s go back to the very beginning. Why does Congress need a Bank? It certainly aids Congress’ ability to regulate commerce. It certainly aids Congress’ ability to tax, borrow, and spend. But perhaps Maryland was right, couldn’t Congress accomplish those ends, however roughly, by other means? Consider the opposite result in McCulloch. What if Congress couldn’t charter a Bank?

If Congress could not charter a Bank, the States still could. So Federal deposits would have to be held by banks chartered by the States. In the event of internal disruption or rebellion, either sanctioned by or with the sympathy of the local State legislature, Federal funds would be subject to impoundment. And thus, Congress—just as it found itself during Shays’ Rebellion—would find itself unable to levy troops. No sovereign will suffer (if it can help it) its deposits being in a bank chartered by another. Or, as Marshall puts it, “[n]o trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the States.”

But could not Congress still store funds for procurement of local militias in local treasuries? But that would require storage in some form reasonably guaranteed to hold its value during civil strife, that is, specie. Such local stocks of Federal specie, of course, would require Federal guards—a daily reminder of the waiting Federal jackboot, stripped of the local stimulus (that is, goodwill) bought by local Federal deposits. So Congress can either assuage the causes of insurrection while negating its capacity to respond; or maintain its capacity to respond while stoking the causes. It’s no coincidence, then, that Marshall notes, “[t]he exigencies of the nation may require that the treasure raised in the north should be transported to the south.” And so it will.

b) Experience & the Specter of Abolition.

But response to insurrection is the just the immediate consequence of letting Congress charter a Bank. Yet McCulloch, we have said, isn’t really about the Bank. It’s no coincidence (if I may be allowed the phrase again so soon) that Maryland—a slave State—contests Congress’ authority in McCulloch. To see why, just consider what the Constitution of Experience means for slavery.

To start, “[t]he government proceeds directly from the people . . . ‘in order to form a more perfect union, establish justice, ensure domestic tranquility, and secure the blessings of liberty to themselves and their posterity.’” “Its powers are granted by [the People], and are to be exercised directly on them, and for their benefit.”

True, there is no abolition clause. But neither is there a clause rejecting that power. And why would there be? The Federal government derives its legitimacy from the “consent of the governed,” and its supremacy from the fact that it “is the government of all”—the most democratic one we have. If McCulloch seeks to cement Federal sovereignty, human chattel bondage would undermine the whole venture.

True, the Constitution does instantiate slavery for some time. The Three-Fifths Clause pads Southern representation in the House and Electoral College. The Fugitive Slave Clause commits the North to return “fugitives.” And the Importation Clause forbids the abolition of the slave trade before 1808. But, of course, none of these clauses uses the word “slave”—just as the Tenth Amendment omits the term “expressly,” that can’t be written off as mere coincidence.

And if we’re playing textualism, many more Constitutional provisions contradict bondage. We’ve already mentioned “We the People,” an obvious reference to the Declaration and its doctrines of equality and consent. Article I sketches a legislature embodying the vote (consent), references the elections in which ordinary Americans will vote, and even populates the House of Representatives directly from those votes. The Electoral College again considers the consent of the governed. Article IV committs the Federal government to “guarantee to every State in this Union a Republican Form of Government.” And Article VII provides for the Constitution’s ratification by the consent of the governed. This before we even mention that the Import Clause implies, and the Commerce Clause confirms, Congress’ power to abolish the international slave trade (they did). The Commerce Clause also plainly covers the interstate slave trade. The Territorial Clause confirms Congress’ authority to abolish slavery in the territories (see the Northwest Ordinance).

But most of all, Marshall’s Constitution of Experience lets us learn from our mistakes, be it the five year “embarrassments” of lacking a national Bank, or the two-hundred fifty year embarrassment of human chattel bondage. What did experience make of human chattel bondage? What had slavery made of our national claim to self-government? What had slavery done to wages? What had slavery done to assuage the fears (or causes) of insurrection? What had slavery done for the cause of Republican government and Jefferson’s dream of yeoman farmers in the South, concentrating land, wealth, and power in the hands of a few oligarchic plantation owners? In another year after McCulloch, President Monroe would sign both a law declaring the slave trade to be piracy and the Missouri Compromise, banning slavery in the Louisiana territory north of Missouri’s southern border.

What would slavery do during the next forty years? Prompt South Carolina’s first call for secession in 1833? Render international embarrassment after embarrassment as Southern ports mistreated foreign sailors of color? Prompt the Trail of Tears? Annex Texas on spurious grounds? Engage the United States in a war of agression to conquer more land for enslaver’s plantations? Embroil the United States government in the continual indiginity of being called to account for ludicrous Southern “filibuster” schemes to conquer new overseas territory for slavery? Intrude upon Northern daily life ever more to “recover” free people of color living in the North? Foist an even more odious Fugitive Slave Act on the Nation? Rescind the Missouri Compromise in bad faith, reject the Constitutional interpretation of Thomas Jefferson and George Washington and the first Congress in Dred Scott v. Sandford, and threaten the expansion of slavery across the Continent north and south? Embroil us in a bloody civil war for a cause which has lingered, undead, for another century and a half?

Whether Marshall anticipated it or not, his Constitution of Experience permits Congress to take reasonably claculated, yet often-drastic, measures to advance the Constitution’s general ends, so long as the means are not otherwise prohibited. And no practice of ours better designed to undermine the legitimacy and welfare of the United States existed but slavery. If Marshall didn’t see it squarely in the crosshairs, Maryland did. Calhoun did, when he promulgated his doctrine of the concurrent majority. The South did, when they threatened to secede any time a vote went against them—until they did. Enslaver’s Constitution my ass.

McCulloch v. Maryland presents a trove of wisdom we ought not forget. Most law students grasp the Bank, and the Necessary & Proper Clause. There’s also the pragmatism, reliance on context and reason, and judicial humility—letting Congress, too, shape our Constitution’s meaning. But we disserve ourselves when we ignore the foundation of Marshall’s decision: the Constitution of Experience, which would have let Congress actually legislate a more perfect Union.

It should come as no surprise that Roger Taney would eschew John Marshall’s Constitution and instead espouse a recognizable form of modern originalism when the question of slavery’s continued western expansion arose in Dred Scott v. Sandford, declaring the Constitution irreparably a document of bondage merely because our historical practice in 1789 included slavery. Today’s Supreme Court shackles us to past generations’ errors by much the same doctrine. We can, of course, meet today’s originalism on the merits—for its failure to distinguish “between the Constitution’s compromises and its principles,” as Harry Jaffa would put it in New Birth of Freedom (2000). For its concession that slavery was ever, really, constitutional. For its inattention to equal citizenship for women or people of color.

For all these reasons, and many more, originalism is evil (or ideological neutrality that distinguish between force and principle—pick your demon). But all of those reasons are sort of beside the point in McCulloch v. Maryland. That we may learn from our mistakes “is a proposition too self-evident to have been questioned.” We ought to. And, if this Constitution is to endure, we must. In light of McCulloch, originalism isn’t just evil, it’s also dumb.

Late in the evening of February 18, one Hector Organ negotiated the purchase of “111 hogsheads of tobacco” from a Francis Girault, of Peter Laidlaw & Co. Overnight, after negotiations had concluded, some “Messrs. Livingston, White, and Shephard brought from the British fleet news that a treaty of peace had been signed at Ghent” and, by extension, the cessation of the blockade which, to that point, had suppressed prices. White, apparently party to “one-third” of Mr. Organ’s expected profits, communicated this news to him directly, before it became public by handbill at 8:00 a.m. on the 19th.

Thus Organ called on Girault “soon after sunrise” that morning to perfect his bargain. According to trial testimony, “Girault asked if there was any news which was calculated to enhance the price.” Organ offering no reply, “the said purchase was then and there made.” By about 9:00 a.m., the price of tobacco in New Orleans “had risen from 30 to 50 per cent.” Laidlaw, understandably, refused to honor the sale. Organ sued. And, reasoning that “[T]here being no evidence that plaintiff had asserted or suggested any thing to the said Girault, calculated to impose upon him with respect to said news, and to induce him to think or believe that it did not exist,” the trial court in New Orleans “charged the jury to find for the plaintiff.”

On appeal to the United States Supreme Court, Chief Justice John Marshall reversed. While, in the ordinary course, Organ “was not bound to communicate” his special news to Girault, “at the same time, each party much take care not to say or do anything tending to impose on the other.” Having been directly asked, a jury could reasonably have construed Organ’s silence as deception, particularly given his gross windfall. 15 U.S. (2 Wheat.) 178 (1817). Or, as more simply put by one of the leading Contracts textbooks to this day: “Laidlaw teaches that by asking a question, one party can create for the other a duty to disclose.” Ian Ayres & Gregory Klass, Studies in Contract Law (Foundation Press 8th 2012).

As a matter of contract law, Laidlaw v. Organ strikes most students as no more than a routine and reasonable proposition of law, made memorable by some cute facts (oh, and the added quirk that Francis Scott Key (yes, that one) argued for Organ at the Supreme Court). But as a Constitutional matter, Laidlaw is astounding. What the hell is this case doing in Federal Court? It’s a routine contract case—that’s supposed to be a matter of State law. After all, the States govern our daily lives. There’s no Federal law involved in Laidlaw (sure, I guess we can call the Treaty of Ghent Federal news—but it doesn’t decide the case). So what gives?

The short answer, sufficient for contracts students, is that the Constitution grants the Federal Courts what is known as “diversity” jurisdiction. “The judicial Power shall extend . . . to Controversies between . . . Citizens of different States.” Art. III, sec. 2. (see also, 28 U.S. 1332). When citizens of different states sue each other, we don’t make them take it to some local state court, with a “judge” (aka, the sheriff’s cousin) who’s never crossed state lines and toothless, twangy (and smelly) jurors who’ve never been outside the county. Instead, we let these “diverse” parties litigate in Federal court, in the big city, before a learned Judge who has, of course, honed his wisdom and traveled the county.

Yet diversity jurisdiction doesn’t really provide a sufficient answer here. It tells us what the case is doing in Federal court, but it doesn’t tell us why the United States Supreme Court has assumed to “teach[]” a lasting point of contract law. If the States govern your daily life, as we are so often reminded, why is the Supreme Court making law instead of just parroting some established point of Louisiana law? Because, it’s worth emphasizing here, as far as I can tell, no one cites Louisiana statute or case law in Laidlaw. Chief Justice Marshall just lays down a rule of conduct for Americans going about their daily lives and occupations—again, the hallowed reserve of the States—on the basis of some technical jurisdictional point.

A few weeks back, we discussed the Supreme Court’s curtailment of the Congressional Commerce Power in United States v. Morrison. Chief Justice Rehnquist struck down the Violence Again Women Act not so much because sexual assault in the workplace wasn’t “economic” activity—by that logic, neither was refusal to sell wheat in Wickard or refusal to serve on the basis of race in Heart of Atlanta—but because:

The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted.

Rehnquist’s (and the Court’s continual) denial of Appomattox certainly deserves its own treatment (and will, eventually), but let’s tackle the easy points first. Unless we are willing to accept the absurd “synthesis” that under James Madison’s watchful eye the Federal Government may stop a McDonald’s frycook from misleading a woman about the price of her burger but cannot stop him from sexually assaulting her, Laidlaw puts the lie to Rehnquist’s assertion that “our Federalism” had always left “truly local” issues to the States.

And Laidlaw is hardly an outlier. Over the first 150 years of our nation, the Federal courts, and in particular the United States Supreme Court, promulgated as a matter of course what was known as the “general law”—a law of commerce including contract, property, and torts—under the remit of the courts’ “diversity jurisdiction.” The Court itself ratified this practice in 1842’s Swift v. Tyson, going so far as to say that Federal courts sitting in diversity did not have to follow State court decisions in the Federal judiciary’s exercise of its own independent judgment of this “general” commercial law. The analogy between this “general” law and Wickard’s modern commerce clause should be clear. Whether we called it “diversity jurisdiction” or the Commerce Clause, Federal law in some form has basically always governed where otherwise-local action causes interstate ripples.

Of course, the Court overruled Swift in 1938’s Erie Railroad v. Tompkins in a proclamation of State sovereignty eerily reminiscent of Morrison (it do come around like that, don’t it). And it hardly needs to be said that most Antebellum and pre-New Deal commentators would, a) not have considered Swift to be indicative of an inchoate Congressional power, and b) have had a slew of explanations squaring Swift with “our Federalism.” But, to the former, I suspect Erie will be better understood as the Court stepping aside for the New Deal Congress. And to the latter, whatever excuses would have been given at the time, they do not overcome the fact that John Marshall, Chief Justice of the United States, wielded Federal authority to construct rules of conduct for your daily life. Rules which, in fact, we still inflict on new law students.

But that’s enough for today. I’ll be perusing random cases across the early Federal reports over the next few weeks to see what other interesting Swiftian examples I find. I’ll also read Swift v. Tyson and Erie v. Tompkins in the original reports (not just my textbooks) to see what else we can learn. And, don’t worry, I will also survey the objections or potential responses to my thesis to see where this all goes. More to come.

In 2022’s Dobbs v. Jackson Women’s Health, nixing Roe’s right to abortion, Justice Alito explained:

[O]ur decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government, but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. The second category-which is the one in question here-comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” [cue several paragraphs detailing the rigorous analysis for discerning such “unenumerated” rights]

In other words, stuff in that quick and dirty list James Madison scrawled out in 1791, the “Bill of Rights,” gets prime status; everything else, not so much. But that division is horseshit. Historically, there are no enumerated rights.

Now, before getting stuck in, two points are worth mentioning. First, the whole notion of “enumeration” does run headlong into the Ninth Amendment, where James Madison covers his ass and tell us: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Second, and more disturbingly, Alito’s reasonable sounding “history and tradition” and “ordered liberty” devolve to a total rejection of experience, and thus reason, according to his originalist “interpretation” of the Constitution. When Alito equates the inquiry to determining “what the Fourteenth Amendment means by the term ‘liberty,’” he means specifically shackling our understanding of the Amendment to precise historical practice at ratification. If that strikes you as re-legalizing racially-segregated schools and recriminalizing interracial marriage—two unquestioned practices at the Fourteenth’s ratification—well . . . yes.

But put all that to the side. Because Sam, oddly enough, sort of admits that the “enumeration” thing is made up, even if he doesn’t really acknowledge the import of his own words. Recall those favored “rights guaranteed by the first eight Amendments”—

Those Amendments originally applied only to the Federal Government, but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States.

Stop and read that again. The Bill of Rights originally applied only to the Federal Government. Not to the States. For most of our history those special, preferred, enumerated rights that we’re supposed to care so much about did not apply to your daily life.

At the Founding, the Bill of Rights did not apply to the States.

It really cannot be overemphasized: the primary tenet of the American Political Tradition is the States’ primacy in the governance of your daily life. Teddy Roosevelt, for example, would take this tenet for granted in his 1904 speech, more famous for articulating the Roosevelt Corollary to the Monroe Doctrine. “As long as the States retain the primary control of the police power the circumstances must be altogether extreme which require interference by Federal authorities . . . .”

This tradition of State primacy manifest early in the Supreme Court’s 1833 decision: Barron v. Baltimore. The City did some construction on the harbor that diverted a stream and that made the water around Barron’s wharf shallow so boats couldn’t sail up anymore and he got pissed and sued or whatever angry landowners do. (I wouldn’t know. I’m still $150k in student debt for all of this selfless public service I’ve performed.) But as much as the Supreme Court loves property rights, the Justices tossed Barron’s claim. The Fifth Amendment, which prohibits the taking of private property without just compensation, did not apply to the States. In fact, neither did any of the Bill of Rights:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided sch limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power; if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

The rest of the decision proves just about as repetitive and circular. The Bill of Rights doesn’t apply to the States because it applies to the Federal government, because the Bill is contained in the document that creates the Federal government, which the States all agreed to, and which is the supreme law of the land, but only applies to the Federal government, which it creates, and not to the States which agreed to it, because it applies to the Federal government instead. Frankly, Barron v. Baltimore doesn’t make a lick of sense unless you recognize that the decision means not to tell us anything new but rather to illustrate the primary tenet of our Federalism: the States govern your daily life. So much so, it turns out, that the Bill of Rights does not constrain the States’ control over that daily life. And if that doesn’t scare you (um . . . get help?) this will. Who argued and won Baltimore’s case? Roger mother-“no rights which the white man was bound to respect”-fuckin’ Taney.

Reconstruction Foiled

While you’d be outing yourself as a brand new reader here, you’d otherwise be forgiven for imagining that Reconstruction changed all that State primacy and unfettered control over your daily life. To be sure, Congress really did try, with the Civil Rights Acts of 1866, 1871, and 1875 (which I’ve explained some here and here). But the Court swung back hard (see previous). Even before striking the 1875 Act down in the Civil Rights Cases, even before the Act, the Court had gutted Reconstruction at the first opportunity, 1872’s Slaughterhouse Cases.

In brief, the newly-integrated Louisiana State legislature proposed to relocate all of New Orleans’ butcheries from upstream to a new spot downstream of the City because, well, as Prof. Kennedy taught me in Fluid Mechanics: blood, guts, and shit flow downstream. The largely-white butchers, incensed at being regulated by Black men, sued, claiming that the regulation infringed their right to ply their trade, secured by the Fourteenth Amendment guarantee of “privileges and immunities” of United States citizens. This should have been a forgotten case decided upon routine citations to Blackstone or Coke excoriating us that “a Manne hath notte the right to cause, by his toile in trade, howevere usefulle, the spoiliation of the watercourse to the detrimente of the commonweale.” Instead, the Supreme Court took a blowtorch to Reconstruction. The Fourteenth Amendment did not apply to the case.

Citing Dred Scott v. Sandford (which I’d sworn the Fourteenth Amendment overturned) for the “distinction between citizenship of the United States and citizenship of a State,” Justice Samuel Miller explained that the Privileges & Immunities Clause—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—protected only the rights incident to U.S. Citizenship, not the rights incident to State citizenship, that is, those involving your daily life.

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

. . .

[S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights . . . We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

Simply put, even after Barron’s Federalism led to Civil War, the Court still adhered to the States’ primacy over your daily life. True, Reconstruction brought some limits. But that’s all they would be: limits. State authority to pass Black Codes in the first instance remained. Federal intervention to protect due process and equal protection would come after the fact, as mere correction, not affirmative guarantee.1

The Backdoor Bill of Rights

Today most of the Bill of Rights does apply to the States, but not because it was written down. Even once the Court admitted in 1908’s Twining v. New Jersey that “it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action,” the actual application of those rights to the States took place via the process of “incorporation” of the Bill of Rights, component by component, via the Fourteenth Amendment’s Due Process Clause (if this sounds backasswards, that’s because it is). And even then, significant resistance remained.

In 1937 the Court declined to incorporate the Fifth Amendment’s protection against double jeopardy against the States. Justice Cardozo conceded that the Due Process Clause included “principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty.” He just didn’t think double jeopardy ranked as that important. Similarly, in 1947’s Adamson v. California, Justice Reed dismissed a claim that the Fifth Amendment protected criminal defendants against self-incrimination in State criminal trials. Justice Frankfurter concurred:

For historical reasons a limited immunity from the common duty to testify was written into the Federal Bill of Rights . . . But to suggest that such a limitation can be drawn out of “due process” in its protection of ultimate decency in civilized society is to suggest that the Due Process Clause fastened fetters of unreason upon the States.

Barron—alive and kicking in the Nuclear Age.

Ultimately the incorporationists won out and all but the Third Amendment, Sixth’s grand jury, and Seventh’s guarantee of a civil jury now bind the States. The most recent addition to the list of incorporated rights came in 2018’s Timbs v. Indiana, where Justice Ginsburg explained that the Eighth Amendment’s guarantee against excessive fines “is ‘fundamental to our scheme of ordered liberty,’ with ‘deep roots in our history and tradition.’” But it really has to be repeated: today the Bill of Rights applies to the States not because they are “enumerated” but because the Justices consider them to be really, super-duper important.

In many regards, Justice Alito’s reliance on certain rights’ “enumeration” in the Constitution counts against their being more important or legitimate than a right to abortion, or contraception, or interracial marriage, or integrated schooling. So far from reflecting a list of rights the Founders thought truly fundamental to American citizenship, the Bill of Rights rather reflects a list of rights the Founders (and many subsequent generations) considered and determined inapplicable to the contours of your daily life. Better to be unenumerated, then, than to be so devalued.

But perhaps we don’t have to go that far. Justice Alito tells us in Dobbs that claimed rights must be “deeply rooted” in our “history and tradition,” as evinced by historical practice at ratification. Suffice it to say that, if “history and tradition” have any meaning, there are no such things as “enumerated rights.” An originalism that rejects the right to abortion on such grounds must necessarily reject application of the Bill of Rights to the States. But if we yet demand those “enumerated” rights, and if the only reason that those rights of speech, assembly, guns, and all aspects of criminal procedure apply to the States today is that those rights have been separately determined fundamental to our history, tradition, collective conscience, and notions of ordered liberty, then the test applicable to the first Eight Amendments ought to be applicable to the Ninth and the Fourteenth. Perhaps I’ve become a broken record on this point, but . . .

A fun question, amenable to goodhearted debate for the entirety of the fifteen-week academic semester, but ultimately the wrong one. Law, and politics for that matter, either work, or they don’t. Or, as Leo Strauss taught, justice is either durable, or is no justice at all. There is no categorical command but justice, the common good. Principles, even timeless ones, offer only general guidance, because justice lies in the particular. Rules beget exceptions, and “the exceptions are as just as the rules.”

For it is not possible to define precisely what constitutes an extreme situation in contradisctinction to a normal situation. Every dangerous external or internal enemy is inventive to the extent that he is capable of transforming what, on the basis of previous experience, could reasonably be regarded as a normal situation into an extreme situation. Natural right must be mutable in order to cope with the inventiveness of wickedness.

To be sure, the exception must be recognized as such—not as license to depart from our usual norms, as a measured, even reluctance, responsibility to. And so, practical judgment always requires both our good sense and no small degree of critical self-reflection, “the objective discrimination between extreme actions which were just and extreme actions which were unjust is one of the noblest duties of the historian.” Thus we grapple with our incapacity to bring back four millions human lives, and even tragedy of adding another to the count, as we deliberately and carefully snap Hans Frank’s neck to ensure: never again. In short, if there be justice, we must by extraordinary means eradicate fascism. If not, we may choose to. Either way, hang the fuckers.

Yesterday, by a six-to-three vote, the Supreme Court of the United States permitted President Donald Trump to move forward with an executive order purporting to strip many of the blessings of birthright citizenship guaranteed by at least the Fourteenth Amendment and the blood of more than six hundred thousand Americans on the logic that the courts of the United States Federal Judiciary lack the authority to enjoin the full effect of unlawful action by the Executive. I may in future posts unpack the errors of constitutional interpretation, historical literacy, and basic civil procedure contained within Friday’s ruling in Trump v. CASA. But those must be seen as secondary.

Even assuming the accuracy of Justice Amy Coney Barrett’s opinion regarding the history, tradition, and general rules surrounding “universal” injunctions, the case asked a simpler question: what is more important to us? Birthright citizenship or civil procedure. Shall the promise of multiracial democracy and the blessings of equal justice under law triumph or bend to the minutiae of numerosity, commonality, typicality, and adequicity and their accompanying notes of decision prescribed in little pamphlets that only truly sick people carry in their pockets? Shall the contravention of our greatest declaration, that “all men are created equal” be subjected to the arcane writs and bills cognizable before the Hanoverian King’s Court of Chancery? Once we might have trusted the Court to know better. Even the arch-conservative Justice Lewis Powell recognized in 1973’s Chambers v. Mississippi, that even so foundational and respected law as the prohibition against hearsay “may not be applied mechanistically to defeat the ends of justice”—affording a defendant the right to present a full and cogent defense. Today, according to this Court—according to this mother of naturalized citizens—for the sake of the red hand illuminated on the pedestrian walk sign we may step not one foot into the street to aid a child.

It is the domain of the charlatan to present the law as theory instead of practice, as pure reason rather than real-world effects. A law student can check boxes on “settled” law; a jurist is expected to possess the judgment to recognize and resolve extraordinary cases. No tribunal which subordinates bedrock Constitutitonal principles to formalist hurdles on account of racial animus—and make no mistake, that is again the driver here—is entitled to institutional respect or personal obedience. In the coming months and years, as has already begun, the dignity of our fellow Americans, citizens or not, will rest ever more on our individual and communal action and our unreserved dedication to the principle of birthright citizenship. “[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased[] to be their own rulers.” Amy has made her decision. Now let her enforce it.

While diving headlong into conservative political tracts might strike most as dull labor, I find fantasy to be an engaging and freeing genre in these troubled times. The then-late Willmoore Kendall and George Carey’s 1970 work, The Basic Symbols of the American Political Tradition, proved just the delight I needed. I laughed. I cried. I hummed, once or twice, at a cogent remark. I laughed again. Actually I laughed quite a bit. And most of all, I learned, once more, that some people are still pretending they weren’t conclusively defeated in the Civil War.

If nothing else, Kendall and Carey offer a clever methodology (apparently borrowed from some conservative eminence, Eric Voegelin, whom I’ve never read): taking seriously as politically revealing the stories, myths, yarns, or tales—symbols as they term them—with which America inculcates its children. For example, what does the myth of young George Washington and the cherry tree reveal about, say, our national need for a secular (dare we say political?) morality, aside from the Commandments? What does the demonstrably-false (for anyone having ever set foot between the 1500-mile expanse from the Sierra Nevada mountains to the Missouri River) claim that a squirrel could once jump branch-to-branch from coast-to-coast without once touching the ground reveal about American land use and resource-extraction policy? Why do so many pasty-white Americans claim native heritage? And what the hell was the point of Paul Bunyan’s blue cow?

Yes, all these, like history, are just lies we tell our children to justify the present. But what do they reveal about that present? That, one must admit, poses a worthy question. Now Kendall and Carey turn this methodology toward somewhat less colorful topics: America’s political charters. But they nevertheless begin where most of our childhood pageantry also began: the Mayflower. And, were one to squeeze her eyes shut and suppress all thought or imagination, Kendall and Carey’s retelling of the American political tradition just about works. Just about.

The American political tradition, Kendall and Carey tell us, begins in the saloon of the Mayflower in 1620 where the Pilgrims, finding themselves somewhat beyond the effective reach of London, have to recreate the King’s peace for themselves. Being good scripturalists they, naturally, put their plan to the page: the Mayflower Compact. Five aspects of the document warrant our attention. The drafters (1) begin with an invocation, “In the name of God,” suggesting their self-conscious deliberation. Remember that, it will be important. They continue, (2) identifying, themselves—though at this stage still as loyal subjects of the Crown. They (3) state their purposes, beginning with the usuals: glory to God, Advancement of the Faith, King and Country; and then more importantly: to combine into a body politic for their better ordering. Not best or perfect, but in good Puritan humility, just better—an ongoing commitment to improved interrelations. The (4) oath, we “solemnly . . . covenant,” reaffirms the self-conscious deliberation already noted, and (5) addendum quickly delineates some procedures and duties to live by: “to enact . . . just and equal laws . . . as from time to time shall be thought . . . convenient for the general good,” along with “all due Submission and Obedience.”

Funny hats and weird accents aside, for a first attempt at a written constitution, Mayflower isn’t half bad. From now on, most American political charters will follow its structure: invocation, identification, purposes, constitutive oath, and an addendum specifying the duties and procedures of the polity. Of course, things will develop. In about twenty years, the Fundamental Orders of Connecticut (1639) will flesh out the “general good” and “better ordering” as maintaining peace and union, maintaining and preserving liberty and the purity of the gospel, and orderly and decent government. And, curiously enough, the Connecticutians won’t even bother specifying the word “covenant” in their oath; Kendall and Carey tell us it’s already implied. Two years further on, the Massachusetts Body of Liberties (1641) will add an important adjective to the oath: “unanimously.” We can’t just form a new state by majority vote; this is too important. Everyone’s got to agree! Skip ahead to the eve of revolution and the Virginia Bill of Rights (1776) gives us the separation of church and state. Not a secular society, mind you. Virginians are still expected to practice mutual Christian love and charity, if given freedom to pick their preferred Rite. But they, like Pope and Emperor long before, have recognized the value of separating spiritual and temporal governance.

Perhaps most important, what Kendall and Carey call just an “addendum” in Mayflower will become the major part of those later documents, including the Constitution itself. Rather quickly, the Connecticutians recognized the need for some procedures of governance beyond the Mayflower’s sparse “play nice together,” giving us the first delineation of a legislative body and its accompanying governor and magistrates. Massachusetts next offered the first “Bill of Rights,” mostly what we would term criminal procedure—and not equal rights yet, mind you, merely those “due to every man in his place and proportion.” But hey, baby steps. Moreover, just because the colonial legislature doesn’t have any formal or legal limits doesn’t mean it’s all powerful. The bounds of humility, civility, and Christianity still apply, obviously. And the Virginia bill raised the first instance of a right (press freedom) which perhaps, in the modern sense, limits legislative power. But this, according to Kendall and Carey, is phrased less as a limitation on the Virginia legislature and more as a maxim of good governance.

The basic symbol should be clear enough by now. Throughout, Americans (well, white, male Americans of certain property) seek by communal self-government to improve their lives. They don’t need extravagant lists of what their legislature can or can’t do. They’re all good, pious men. Christian virtue and consensus will ensure the justice of their lawmaking. Simply put, as Kendall and Carey posit, the supreme symbol of the American political tradition is the virtuous people deliberating under God. Oh say, can you see. Eagle screech.

Thus far (still squinting, remember), Basic Symbols presents as a perfectly acceptable piece of white, conservative, mid-twentieth century political thought. Yes, questions linger. What gave early Americans the notion they were entitled to democratic self-governance? Sure, as Kendall and Carey note, the Puritans just modeled the Covenant on Sinai, and for a biblical textualist, that might be enough—even if it doesn’t really explain why this particular group of upstarts considers itself excepted from the unbroken command to “render unto” from Saul to James (or Charles); nor does it really explain why Virginia’s papaly-curious and presumably less-scripturally-retentive Anglicans would follow the same path. Though, jumping off of that, we’ve discussed precisely three colonies so far. Where’s the rest of the country? Why are we so concerned with an exclusive, home-grown political tradition that we spend half the Virginia chapter scrubbing Locke from the list of influences? Why does our concern with New England legislative supremacy lead to a half-baked diatribe about the hypothetical Mrs. Murphy’s right to choose (read, exclude Black people) her boarders?1 But, hey, this is all just historical curiosity, right? How much of this tradition will actually survive the Revolution, Reconstruction, or experience? Surely we’ll find out. Baby steps, right?

So it comes as somewhat of a shock when Chapter 5 implodes into a gripe fest about the Declaration of Independence and Abraham Lincoln. Apparently, the Declaration of Independence, yes, that Declaration of Independence—Jefferson, Adams, Franklin, George Washington crossing the Delaware, 1776 and all that!—should be viewed neither as a constitutive document, nor as the founding of a nation, but merely as the explanation for revolt; not an organic step in the American political tradition—but a deviation. Founding of a nation? Hogwash! The States were “united” only in lower case, “free and independent” all on their own! (Never mind that they declared independence together, in one Congress, that no state achieved that independence alone, and that they concluded the peace together, Adams, Franklin, & Jay representing not individual but “United States.”) The Declaration can’t rise to the stature of the Mayflower Compact! It gives “no guidance” how to construct a government! (Apparently, we ought to ignore the Declaration’s fundamental guidance, that just government rests on the “consent of the governed,” leaves us but one choice: democracy). And “all men are created equal?” Heresy. Never before mentioned in our political tradition. A single phrase, ripped from context. How does liberty square with equality, after all? Besides, Jefferson obviously didn’t mean it, since he didn’t free the slaves (paging Roger Taney). The best that can be said for the Declaration, Kendall and Carey tell us, is that it correctly notes the King’s interference with the American tradition of self-governance, and that those governments ought to secure men’s rights and consent. More seriously, they say, the Declaration severs our political inheritance in two: one tradition of communal deliberation for the common good; the other of extreme, Lincolnian equality.

Thank God the Philadelphia Constitution returned us to sound five-part tradition. Okay, so we skipped the invocation. But “We the People” is a great identification; “in Order to form a more perfect Union . . . ” (and so on), an excellent purpose; “do ordain and establish this Constitution for the United States of America,” see the “covenant” is still implied! And then, seven articles of addenda. No mention of newfangled individual or unalienable rights or, shudder, equality. Just detailed procedures for slow and methodical deliberation to consensus—who’s to say the majority view isn’t just another faction? The only way to be sure that something is in the public interest is to get the minority on board as well. We’re back! A virtuous people indeed deliberating under God.

And, don’t worry, the Bill of Rights didn’t change any of this. Some people (none of whom were in Philadelphia) were concerned, and consensus-building James Madison convinced the First Congress that it couldn’t hurt to jot down a few aspects of criminal procedure, searches and seizures and trials and whatnot, to ensure their lasting respect. Oh and something about guns, and freedom of speech, within the common law boundaries of sedition and libel, of course. None of this required much debate, because it didn’t much change anything. As always in our tradition, rights only run against executive or judicial overreach; they don’t limit legislative supremacy because they don’t need to. Remember, slow, steady, approaching unanimity. A virtuous people deliberating under God don’t oppress each other.

With a single chapter remaining for Kendall and Carey to both reveal the modern derailment of this tradition and get us back on track, one’s lingering questions can no longer be suppressed. Have Kendall and Carey just dropped us off in 1791 and called tradition accomplished? What about the Civil War? What about Reconstruction? Jim Crow? Civil Rights? For that matter, isn’t it odd that we haven’t once mentioned slavery? And wait a minute, why are we so against equality anyway? Did I mention we haven’t talked about slavery yet?

At last Kendall and Carey reveal their perceived derailment of the American political tradition. The pair likely could not have foreseen how well their framing of the matter would resonate with future audiences living under the aggressively-unintelligent judicial oligarchy of the Roberts Court. Why, they ask, does Congress so regularly defer to the Supreme Court? Don’t blame the Constitution. The Court’s present role as supreme constitutional arbiter finds no basis in the text. On the contrary, the Constitution empowers Congress as first among the branches, wielding both the purse and impeachment. The notion of three coordinate branches comes not from Philadelphia, but from The Federalist. So, they repeat to a cheering audience, why does Congress bend over backwards to the Court?

Except that, to Kendall and Carey, The Federalist is precisely why Congress ought to back down. The Constitutional morality of consensus building between coordinate branches counsels the avoidance of “showdowns.” Congress should wait for wayward justices to eventually die. Congress should, presumably, respect the veto power. In fact, Congress should respect every bit of delay, minoritarian check, and procedural mire. That is, Kendall and Carey have resurrected Congress not in glory, but still crucified! Incapable by design! Our Constitutional morality calls not for majority rule, but for rule “by the deliberate sense of the community.” That majority, to be sure, “has its role in the system; but that role, as we begin to understand, is that of midwifing.” Consensus demands, more or less, “unanimity, obeying the basic rule: The majority must carry the minority along with it, because all men are created equal, as they were in the saloon of the Mayflower, in their capacity to give or withhold consent” (148–49). Oh, now they care about equality.

It is then that one realizes, Kendall and Carey have not, in fact, been unwittingly missing one crucial symbol of the American political tradition. They have, rather, just like the Philadelphia Constitution, been elaborately, obviously dancing about it. The genius of the American Constitution and of the American political tradition lies not the recognition of human equality, the concomitant demand for consent, and the inherent justice of majoritarian democratic rule but in the Constitution’s byzantine tapestry of checks and balances by which the supposedly supreme legislature is beholden not to the majority, but to that disciplined minority that best and most doggedly asserts itself—by which that minority, with due paeans to conciliation and consensus, subjects the majority to its will. The supreme symbol of the American political tradition is not, we discover, the virtuous people deliberating under God. It is the shackle.

In the end, Kendall and Carey might be forgiven for never actually grappling with Lincoln’s teachings because, despite it all, Lincoln’s teachings emerge entirely unscathed: equality, recognized in the moment or not, undergirded the only parts of our tradition worth keeping. So occupied with “identifying the traditional with the good,” Kendall and Carey forget that Jefferson too discerned and distilled the wisdom of his inheritance: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed?” What else lies beneath the American claim by right to self-governance and independence? Kendall and Carey never say.

Yet it is worth noting that if we take seriously the scriptural basis for Mayflower Compact, the original Covenant, we still reach the remarkable revelation that just as God humbled himself unto death on Golgotha, he had already humbled himself to rule the Hebrews just as man might rule man: by consent. And just as Christ commands us to love another as we love ourselves, so too no man may rule over another without his consent. The virtuous people shall deliberate.

Either way you cut it, then, all men are created equal. Majoritarian communal deliberation is our best and most just form of decisionmaking. And the bounds of that deliberation are precisely the principles that grant its moral legitimacy: equal human dignity. We need not play out here the theological consequences of denying human equality. For our purposes it suffices to say, deny man’s equality, and recourse to the Covenant resolves to no more than the claim, by some lonely group of radicals on a beach in Massachusetts and their progeny, to divine favor evidenced by force of arms alone. That at least explains why, even today, denials of human equality seem to go hand in hand with denials of Appomattox.

JD, of course, isn’t actually complaining about Federal courts telling Donald that he can’t fire Pam Bondi, or how to conduct military operations. He’s complaining about Federal judges telling Donald, Elon, and their cronies to stop violating actual Federal law, like this one in which U.S. District Judge Paul A. Engelmayer “blocked Elon Musk's Department of Government Efficiency”—which, to be clear, is not actually (or lawfully) a Federal agency, “from accessing Treasury Department records that contain sensitive personal data such as Social Security and bank account numbers for millions of Americans.”

You can set aside the argument that individual district judges should not be able to issue nationwide injunctions. Intelligent commentators on the left have been noting that for years, and Republicans didn’t care when it was Matt “I’m the FDA now” Kacsmaryk in Amarillo screwing with women’s access to mifepristone nationwide, among all the other ways Republicans have used the courts to foul up Democratic Presidents attempts to, you know, be the President. None of this is in good faith. Judges are admirable defenders of democracy when they go off the rails for Republican purposes, but raging Marxist activists when they enforce the rule of law against Republicans. That story isn’t new. What is new is the sweeping notion that Federal judges have no authority to enjoin Presidential misconduct. As I mentioned already, yes, they do. They always have.

In an act of petty for the ages, and in an attempt to stack the Federal judiciary with Federalists against the incoming Jefferson administration, the outgoing John Adams spent the last night of his Presidency signing judicial commissions.[1] But like all deadline labor, some stuff got left on the printer. Several commission letters, including for one William Marbury, bore Adams’ signature, but in the midnight rush hadn’t been sent out by the outgoing Secretary of State (and brand new SCOTUS Chief Justice) John Marshall. Without it, Marbury couldn’t actually take his seat on the bench. When James Madison assumed the Secretary of State’s desk, Jefferson directed him to place those forgotten commission letters (including Marbury’s) into a drawer to languish. So Marbury waited. And waited. Finally fed up, he sued Madison, demanding delivery of his commission letter.[2] And either in hubris or ignorance, he sued directly in the United States Supreme Court. And the rest, as they say, is the first instance of the United States Judiciary striking Congressional legislation for its inconsistency with the Constitution.

As my second-year Federal Courts textbook put it—and yes, I’m using my little itty-bitty baby lawyer learning book to make absolutely clear how easy and settled this stuff is—

Typically, one thinks of the case that follows—Marbury v. Madison—as establishing conclusively the federal courts’ authority to invalidate Acts of Congress as unconstitutional. It did that, to be sure.[3] But Chief Justice Marshall’s opinion for the Court also grappled with another question that we take as a given today: judicial authority to judge the legality of actions taken by the officer of a coordinate branch of government and to direct that office to comply with federal law.

We don’t need to get into the specifics—they’re really not particularly interesting. But we can follow along with Marshall’s logic. If the law tells someone to do something and they don’t do it, the law provides recourse. “[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems . . . clear that the individual who considers himself injured, has the right to resort to the laws of his country for a remedy.”[4] It really is that simple.

True enough, some things are committed to the Presidents’ discretion. You can’t sue for his choice of Attorney General, even if he’s a moron credibly accused of sexually assailing minors. And the President can fire cabinet secretaries for any reason—or none at all! And of course the President as Commander in Chief basically gets to decide whether or not it’s more important to defeat Germany first even though Japan bombed Pearl Harbor. These things (and more) are all, by tradition, or statute, or a little of both, understood to be less a matter of Congressional directive and more of Executive judgment. If you don’t like it, vote him out.

But, of course, that does not mean that the President gets to lock up people without due process just because of their ethnicity; or nationalize the steel mills without Congress’s permission; or shut down agencies Congress has created, funded, and staffed. None of this means the President gets to just ignore the law. Where Congress directs, the President had better act. Of particular note for John Roberts and his coterie of Presidential immunity dimwits, Marshall explained:

[W]hat is there is the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights . . . It cannot be pretended that [Executive] office alone exempts him from being sued in the ordinary mode of proceeding . . .

[W]here [an executive officer] is direct by law to do a certain act . . . it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department.[5]

That is, the Founders themselves established that if Congressional legislation tells the Executive to do something, he had better do it, and if he tries not to, the Federal judiciary has not just the power but the duty to order him to do it.

The Founders would have been familiar with an old illustration of law taken from James Harrington’s 1656 imagining of an ideal democratic-ish state, The Commonwealth of Oceana: two girls, sharing a cake, divide the roles between themselves. One cuts, the other picks. Naturally, she who cuts does so down the middle, lest she receive a smaller slice. Without relying on either’s generosity, both receive an equal share. No academic division of the girls’ labor into legislative, or executive, or judicial buckets. No appeals to natural law. Just make it work.

As we muddle through the next four years, Republicans will have their nerdy theories for why we have to do this heinous act, or why the law doesn’t protect that disfavored minority. Harrington’s parable cuts through the crap. At bottom, law and politics aren’t about theory, they’re about results. Our separation of powers either constrains Donald Trump and his cronies to follow the law, or it doesn’t. Our government either works, or it doesn’t.

[1] Richard H. Fallon et. al., Hart & Wechler’s The Federal Courts & the Federal System 26 (7th ed. 2015).

[2] Erwin Chemerinsky, Constitutional Law 1–2 (7th ed. 2024).

[3] Well . . . not quite. Marbury v. Madison illustrates a much softer form of judicial review than this quote makes out. But more on that . . . someday.

[4] Hart & Wechsler’s at 61.

[5] Id. at 62–63.

Of course I filled it out, and did my best to enlist my brain in the great patriotic struggle—kampf, if you will. After all, Hillsdale College President Larry Arnn—student of the master himself, Harry Jaffa!—sent a lengthy introductory lecture for my education. Who is my enemy? What is my grievance? To whom do I owe my loyalty?

Dear Friend of Liberty—that’s me!

You’re a concerned American who keeps up with current events. Exactly. I am concerned, and deeply informed. Tell me more! That means you know something is seriously wrong in our nation’s schools. I’ll say! I’m sitting in the woods instead of professing at some storied institution.

You know that a fierce ideological battle is raging in classrooms all across the country, and our children are at risk. That I do know!

This is no accident. Of course not. Who’s to blame?

The far-Left, driven by a Marxist vision of a radically transformed society, has strategically targeted education. Those ungrateful bastards! After all America gave them. They probably tried to get me!

The takeover of our schools is a crucial objective in the campaign to erase the principles that form the foundation of American freedom and prosperity. These radicals have successfully infiltrated our educational system and infected it with destructive and anti-American ideologies. Vermin! If you don’t like America, leave! I’ll show you the door!

Schools across America indoctrinate their students with these ideologies, including critical race theory, socialism, and transgenderism—all of which undermine your liberty. Leave. My. Liberty. Alone. You. Rat. Bastards!

Arnn’s pamphlet goes on and on, so I jumped ahead to the survey. That too proved . . . excessive. So here are just the prime cuts.

1. Critical race theory has a divisive effect in our schools, increasing race consciousness and racial division in the name of “anti-racism.”

“Strongly Agree” box vigorously checked. Scrawled “Our Constition is COLORBLIND!!!” in the margin.

2. Do you think using federal or state tax dollars to teach critical race theory in American schools is wrong?

Hard “No.” “Public education belongs to the States {quadruple underline}.”

4. Do you believe schools in [insert State here] should defend the free and open exchange of ideas, including ideas opposed to far-Left ideas like socialism?

Big red X over “No.” Violently circled “open exchange of ideas” and scribbled “I don’t want my kids exposed to Leftist filth.”

6. Do you think schools should be allowed to refer students for gender transition treatment without their parents’ knowledge?

This one had me unsure. But I decided on “Yes” and wrote “Fix them sissy liberal boys into real American MEN!”

7. Should schools teach their students about America’s founding principles and require them to study the Declaration of Independence and the Constitution?

Ecstatic “Yes.” “Shall not be infringed!”

In 2012, Hillsdale College began producing FREE online courses, such as “Constitution 101: The Meaning and History of the Constitution,” “The Great American Story: A Land of Hope,” and “Marxism, Socialism, and Communism.” [WHAT??????] Today, more than 40 FREE online courses are available to anyone who wishes to learn, and more than 4 million Americans have enrolled in one or more.

9. To what extent do you support the production of additional FREE online courses about America’s great heritage of liberty?

“Strongly oppose.” Circled the offending “Marxism, Socialism, and Communism” and added in the margin “I don’t want my kids learning this.”

And to close out:

11. To what extent do you support the continuing distribution of FREE copies of the Declaration of Independence and the Constitution to teachers and students at K–12 students nationwide?

“Strongly oppose.” Free? Hell no. “No Handouts!”

Okay. Was this the most gracious way to spend my morning? Absolutely not. Will Hillsdale staff immediately toss my survey-form and remove me from the mailing list? Probably (hopefully). But we’re all entitled to a good laugh while America descends into this proto-fascist nightmare, especially at the expense of the morons who stand to benefit from it.

Make no mistake, these people are morons. Looking back on this series, that’s my first takeaway. Maybe I’m a sucker? I just foolishly continue to believe—hope?—that the world still maintains some semblance of meritocracy to which I can aspire? That these established, well paid, happily employed, often tenured “intellects” of the right (or center) do, in fact, merit their reward. That someday my efforts will pay off instead of just winding up continually unemployed. I really did read Barron & Co.’s entire volume expecting some vigorous intellectual dialogue. But, wow, was I ever disappointed.

It was historically illiterate. From Barron ranking Calhoun among America’s “greatest statesmen,” or Worner’s assertion that Allied soldiers faced “overwhelming odds” storming the beaches of Normandy akin to Henry V’s men at Agincourt, to Petrusek’s confident declaration that Catholicism is democracy’s best friend—without once grappling with the Church’s long held opposition to it—and Krause’s conclusion that Christianity comprised the single greatest distinction between the courses of the American and French Revolutions.

It was bad Christianity. Ignore the continual exhortations to throw up our hands and “pray on it” rather than knuckle down and get to work changing the world. Are we really supposed to just accept that the Christ who taught us “blessed are the poor” would just throw up his hands like Kaczor and accept that the material legacy of enslavement—the racial wealth, education, and health gap—is just the way the world works? What might Christ think of poor, embattled Hoopes’ efforts as a young Congressional staffer to strip healthcare from the poor? Even Krause and Cooper’s dives into the Puritan roots of American democracy couldn’t be bothered to recognize that Christ’s first command—love your neighbor as yourself—provided the bedrock? They were too busy justifying Christian nationalism, too steeped in the emperor’s creed to recall that the State crucified Christ (I’m not even ready to poke dangerous antisemitism evoked by the deliberate amnesia about who really killed Christ).

Surely, I’d thought, Arnn would give me something to think about. But he didn’t boldly pick up Jaffa’s banner with a great intellectual defense of Lincoln’s equality as a conservative principle! He just blathered on about State’s Rights so that Kaczor could bitch about Federal school integration.

Throughout, Barron & Co. simply betrayed a purely aesthetic concept of the world. Everything of import vindicates them; everything contrary may be discarded. So confidently they claim Jefferson’s Declaration for Christianity. Democracy is a playground popularity contest. Celebrate the adherence to history and tradition when it reaches your preconceived morals, damn it as relativism and the road to serfdom when it doesn’t—don’t worry about actually thinking through whether equal recognition of human dignity and capacity recognizes women’s bodily autonomy. The inherent dignity of human life begins at conception only to prohibit abortion—not to prohibit wasting human lives to war, poverty, or famine; not to guarantee provision of healthcare, housing, or education to our fellow children of God. Slavery is prohibited as a theoretical matter, not a material one. Elevate the embattled Thomas Mores and Jefferson Smiths—don’t probe their principles. Limited government can do anything we want, nothing we don’t! Recall lovingly Athenian democracy—ignore the rampant slavery upholding the whole venture—and St. Augustine’s imperium—ignore its anti-democratic totalitarianism. Christian nationalism is an absurd insult when liberals use it. But the Puritans went to Church, so America is a Christian nation. Don’t think about it too hard.

This series proved exhausting. By far, the most difficult part of my criticism was organizing Barron & Co.’s word vomit into a halfway coherent manner so I didn’t feel so stupid writing it. At the end, there could be no other takeaway. These people are morons. But wading through the bullshit, over and over I found myself asking, who falls for this shit?

Scared people. That’s the real takeaway of this series. Credit the Hillsdale survey for prompting, because Arnn doesn’t hide it—battle, risk, strategically targeted, infiltrated, infected, destructive, anti-American, indoctrinate. But everything vulgar and obvious in the Hillsdale crap is right there in Word on Fire. Flipping through the magazine one last time, Barron’s “nice old bishop” routine barely conceals the terror throughout.

“Christians,” Fr. Andrie tells us, “know that the most significant battleground is not the political or legislative landscape but rather begins within the individual soul—the center of battle between the kingdom of God and that of the evil one” (143). Salvation a “battle???” As though Christ did not triumph to save all? At least there’s some consistency—all does not mean all. Yeah—I was raised in this crap. Hell is real, and populated! The Conservative “God” is an asshole who dropkicks his supposed children (made without their consent, by the way) into overwhelming circumstances beyond their control, beholden to an arbitrary and unquestionable moral code which they’ll naturally fail to live up to, and then—unless they perform precisely the correct battery of purifying rights throughout their life and up to their moment of death—damns them to eternal abandonment and punishment. Because, remember, you’d deserve it! Americans “cling to the idea that evil and crime are merely responses to flawed social conditions, whereas they are an essential part of being human . . . Evil goes all the way down” (Dr. Gary Saul Morson, Solzhenitsyn at Harvard, 99–100). God creates evil men and then punishes them for it!

Don’t try to reason your way out of this. After all, reason isn’t really a viable option if questioning God gets you eternal hellfire. So not only are racial and gender disparities simply how the world works, as Kaczor pretty clearly implies by the structure of his essay, trying to fix them is the sin of hubris! “There are certain things forbidden whatever consequences threaten . . . moral evil harms the evildoer” (46–47). Besides, not only will you face damnation for trying too hard to fix the world, you’ll probably just break this world trying! Remember, Worner tells it, “modern sophisticated democrac[ies]” (like the Weimar Republic, lol) can devolve into totalitarian and Nazi horrors at a moment’s notice (5–6). “There is no crime,” Dr. Morson warns, “that cannot be justified by ideology, principles, or the latest enlightened ideas. ‘Revolution,’ ‘social justice,’ and other magic words confer license to indulge or applaud our basest impulses” (99–100).

But none of this means you can sit still and just be content with what little you’ve got. You’re always under fire. This world is “full of hatred” (Paolelli, 34), “relativism[,] and secularism” (Interview with WoF Member Manny Marquez, 138). Remember Worner’s Jeremiad? “We’ve devolved to a point where a bill serving almost any interest or appetite (no matter how heinous) can be passed into law without dispute if there are enough votes and an abstaining veto pen” (9). Just turn on the news, Krause and Cooper say. Some liberal somewhere is yelling about the America’s Christian origins transformed into the “bogeyman” of Christian nationalism, “wielded as a partisan weapon for political gain against conservative Christians” (23–24, 74). You will be rejected and discriminated against for your beliefs (Marquez 132, 139). Christianity is the singular bulwark between the American Revolutionary virtue and the wanton French violence. “Yet the new totalitarians want us to forget exactly that” (26). The “[s]ocial justice warriors” are coming (45). So are the “pro-abortion femini[sts]” (54). Will you have the courage to die for your faith like St. Thomas More? (Angela Jendro, St. Thomas More, Lessons on Integrity & Allegiance, 18).

And when’s the last time you weren’t scared? Job could be lost at a moment’s notice. Happened to a friend. Boss’s mistakes are always your fault. Stay awake. Bills piling up. Rent/mortgage. Put on a good face for the kids. Student loans, credit card from the last car trouble. Name-brand prescription. Stay awake. Groceries getting expensive. Nine hours. Boss coming by. Forty-five minute drive. Stay awake.

Of course, neither Barron & Co. nor Hillsdale care. They didn’t ask. That survey didn’t include any write-in lines, except for your billing information. They don’t offer solutions. Your fear is leverage. Scared people make scared decisions, look for scary causes; they can be convinced of anything. Conservatives don’t care what you fear. They’re glad you are. And they’ll tell you what else to be scared of, thank you very much. Stagnant wages? Immigrants coming for your jobs. Taxes? Welfare queens and lazy immigrants. Job worries? DEI hires. Need healthcare? It’s going to immigrants and trans kids. Expensive groceries? Rampant crime. Your little cut of America is under threat. They’re coming.

For those who will suffer the consequences, reactionaries’ political program isn’t based on a coherent ideology, it’s based on fear. Republican voters are meant to be running from their most recent fright to the first strong parental figure presented to them. Much, perhaps most, of it is made up. But the underlying fears are real. Call it mercy or call it politics. I don’t care. Stop pretending they intelligibly voted for this, that the racism and sexism is innate rather than inflicted on vulnerable minds, that it’s deliberate and not just flailing, that the looming consequences are somehow self-inflicted. When Americans told us they were scared, one party told us the economy was doing just fine; the other listened and leveraged it. Barron & Co. understand at least that about democracy.

Yesterday evening by executive order, The Leader gutted the Constitution’s guarantee of birthright citizenship, prohibiting Federal agencies from recognizing the citizenship of Americans born not just to undocumented immigrants but to parents holding less than permanent lawful status. Anyone who tells you this is just about better interpreting the Amendment’s text is full of shit. It risks gratifying the argument to even note that the “jurisdiction” of the United States includes (at least) all the land literally and actually controlled by the United States and makes no distinction of how someone got there—except in very specific historically recognized (and pragmatic) circumstances: the murky Federal recognition of Native American tribal sovereignty; diplomats; and hostile occupation—that is, control—of U.S. soil. Might the Court’s sense of stare decisis quash this? Some think so (this is probably the best argument). I doubt it. Long-standing precedent didn’t save the administrative state or LGBTQ+ civil accommodations, among many others. But for now the point is this: anyone telling you that the Courts will block this crap, because at least unlike racial and gender equality, this one’s actually in the text of the Amendment, is full of shit. The text doesn’t matter.

It didn’t matter this past Presidential Election when everyone from the Supreme Court to Democrats rolled over to hand the office to a man textually prohibited from holding it by Section 3 of the Fourteenth Amendment: “No person shall . . . hold any office, civil or military, under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . .”

It certainly didn’t matter this past summer when the Supreme Court declared Donald Trump to be our sovereign god-king, appointed to make law but not be subject to it. After all, no bit of the Constitution actually declares the President to be above the law (which would be weird considering (s)he takes an oath to uphold it, Article II, Section 1, Clause 8), Article I, Section 3, Clause 7 tells us plainly: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

This is no MAGA innovation. Bill Clinton’s Democratic Party rolled over in 1997 when the Supreme Court announced its modern scorched-earth policy against the Reconstruction Amendments. But we have to backup a step. After the Court rejected brown peoples’ claims of religious discrimination in Employment Division v. Smith (the peyote case), Congress realized, holy crap, this reasoning might apply to white people! So they passed the Religious Freedom Restoration Act (and back then, the Catholic Bishops were the holdouts—worrying that religious freedom would let Jewish women get abortions; my, how times change). RFRA essentially overruled Smith and reimposed heightened scrutiny of laws imposing a substantial burden on religious practice. In a nutshell, it amounted to a Congressional declaration of the substantive contours of Americans’ right to religious exercise.

The test case, City of Boerne v. Flores, should never have made it to the Supreme Court. Burdened religious practice really had nothing to do with it. When the City rejected San Antonio Archbishop Flores’ petition to expand a historic landmark church, Texas state courts should have smacked the City Attorney upside the head. How else would the good Archbishop ensure continued funding for the upkeep of the edifice but by expansion and cultivation of tithes from a vibrant parish community? And if we can trust the Catholic Church to do anything well, it would surely be a singular focus on preserving beautiful old churches. Did that stop the Supreme Court from making a Constitutional case out of a local zoning dispute? Of course not. (Reader, do not channel your inner U.S. District Judge and exasperatedly ask students “why the fuck is this case in Federal court?” It will get you called into the Dean’s office.).

To liberal-favorite Justice Anthony Kennedy, RFRA exceeded Congress’s authority. No matter that the Fourteenth Amendment declares that “Congress shall have power to enforce” the grant of citizenship to all. No matter that Congress overtly drafted the Fourteenth Amendment to provide firm foundation for the Civil Rights Act of 1866—which explicitly delineated the first round of rights which Congress believed necessary to United States citizenship, including, rights to transact, hold, and inherit property, and to contract, sue, and give testimony. Oh, and no matter that the Great Emancipator himself had proclaimed that if the Supreme Court alone could decide Constitutional questions, the United States would cease to be a democracy. Nope. Something something, congruence and proportionality (ahem, States’ Rights). According to Kennedy, only the Supreme Court may declare or modify substantive rights. History be damned. Text be damned.

Boerne was bad (and gave us equally brainless decisions like Shelby County v. Holder {freeing states to suppress the Black vote} and Trump v. Anderson {hamstringing Congress’s ability to enforce Section 3 of the Fourteenth Amendment}), but if we’re being serious, we have just about never interpreted the Fourteenth Amendment to mean what it literally says. It had a decent fifteen years. The Civil Rights Act of 1866 really was just the first round. Congress then divvied the South into military districts and conditioned Southern States’ readmission to the Union on their ratification of the Fourteenth Amendment (something Republicans are beginning to bitch about again). The Civil Rights Act of 1871 gave President Grant sweeping powers to wield the Union Army in defense of the Freedmen’s civil rights and cut Southern State courts out of the equation altogether by extending immediate Federal jurisdiction to civil rights claims (plaintiffs would no longer have to sue in state court first and then finagle their way to Federal court via “removal” jurisdiction). And the Civil Rights Act of 1875 extended equal civil accommodations (service at restaurants, hotels, pubs, theaters, railroads and other transportation—anything held open to the public) to African Americans, ninety years before President Johnson would have to do it again. Because in 1883, the Supreme Court decided that the Fourteenth Amendment did not mean precisely what it says.

The Civil Rights Cases are generally taught (if at all) in Constitutional Law courses as the origin of the “state action” doctrine: the invention that the Fourteenth Amendment limits State, not private, action. Set aside the Court’s laughable dismissal of the Thirteenth Amendment as Congress’s basis for civil accommodations legislation: “It would be running the slavery argument into the ground to make it apply to every act of [racial] discrimination . . . When a man has emerged from slavery . . . there must be some stage . . . when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.” How did the bright sparks of the United States Supreme Court cage the Fourteenth Amendment as a mere “prohibition” of State interference with citizens’ privileges and immunities, due process, and equal protection? By ignoring the first sentence of the Amendment: “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.” What does it mean to be a citizen of the United States? According to Section 5: whatever the hell “Congress” says its means. Highlighting the idiocracy, Justice Bradley remarked that such a plain reading of the Fourteenth Amendment would violate the Tenth Amendment’s reservation of powers to the States. Yes, Reader. The Supreme Court blinked at the notion that the Amendment totally reconstructing the balance of State-Federal authority contradicted the original balance.

Since at least 1868, Congress has had the textual Constitutional authority to delineate and enforce the substantive contours of American citizenship: sustenance, education, housing, healthcare, bodily autonomy and protections from gendered violence, criminal procedure, environmental preservation, and anything else Congress can imagine! But if you try making that argument at any law school in the country, you’ll almost certainly get laughed out. The State Action Doctrine is so engrained in the American legal psyche that we cannot even bring ourselves to read the plain words of the Fourteenth Amendment. And there’s the rub.

That doesn’t mean we should give up, or that we should celebrate too much if by some miracle birthright citizenship survives. The Courts can do a lot of harm by digging into Dred Scott v. Sandford’s never-actually-overruled distinction between Federal and State citizenship, by stripping the procedures that enable Americans to prove their birth here, or by further stratifying the racial and wealth tiers of citizenship we already have. But it’s time to get acquainted with reality: Text has never mattered to reactionaries with guns. Welcome to the big time.

In this (likely final) episode, we tackle a growing danger: Christian Nationalism, which we may distill as the notion that the default (read: preferred) American citizen is a Christian—all others relegated to varying degrees of secondary or subsequent tiers of citizenship or belonging. Of course, the folks at Word on Fire display the good sense to serve this garbage indirectly. So, strictly speaking, they never come out directly for Christian Nationalism. Rather, they dismiss it as cause for alarm and muddy the waters. But the simple takeaway is that Christian nationalism isn’t a problem because America is (and should be) already a Christian nation. Naturally, given all the preceding, the bases for that conclusion paint a disturbing picture of both America and Christianity. Let’s dive in.

As usual, Barron & Co. shroud the ball, but they don’t delay it. The Vogelin Review’s Paul Krause comes out swinging in his essay, The Spirit of Religion & the Spirit of Liberty: Remembering Tocqueville’s Democracy in America, with this dismissal: “Turn on the news at any hour on any day, and you are likely to find someone opining about the danger of growing authoritarianism and the threat of ‘Christian Nationalism’ to the future of democracy” (23–24). The University of Tennessee’s Kody Cooper agrees that we shouldn’t worry about Christian nationalism, that “fashionable term of opprobrium” usually “wielded as a partisan weapon for political gain against conservative [curious admission] Christians” (73-74). Why not?

In what seems merely a page-long digression within his essay, On the Christian Origins of American Politics, Cooper pretends to engage with some political scientists’ “Christian nationalism scale.” In fact, he cleverly shifts the field of play. Pay no attention to those who would agree that the “[F]ederal government should declare the United States a Christian nation” with all the “evo[cations of] an establishmentarian, exclusivist vision in which non-Christians are excluded or relegated to second class citizenship.” No, no. Christian Americans’ adherence to the various other propositions on the survey scale—that God has ordained the United States’ role in the world, or that the government should advocate Christian values, not enforce the separation of church and state, publicly display religious imagery, and allow prayer in public schools—evince not an invidious bid to subjugate others. Rather they illustrate the dedication of Americans of all stripes, colors, and creeds to a moral code that underlies our democracy. Who could forget Delaware Democratic Senator Tom Carper’s vote against confirmation of Tom Price as Donald Trump’s Health & Human Services Secretary in 2017 reasoning that Price’s opposition to the Affordable Care Act contradicted Christ’s command to care for the needy. Could he be accused of Christian nationalism? Besides, Cooper assures us, separation of church and state is a Christian doctrine. “So much for [that] bogeyman” (74).

Now, the adroit reader might grasp a few…uh…quirks in the argument. For one, prayer has never been prohibited in school. The Supreme Court has merely prohibited teachers from leading, and thereby inculcating, students of varying creeds in the teacher’s preferred rite (in violation of both the students’ free exercise and their parents’ right to direct their upbringing—which I’d sworn was a right conservatives liked). For another, early-American Puritan minister Roger Williams (dm me for an exact page in Chemerinsky’s Con Law textbook) premised his advocacy for a strict separation of church and state on the protection of religion from secular interference (paging the Council of Nicaea?). Though, the Supreme Court has never actually adopted such a view, which would prohibit states and localities from providing fire, police, and basic utility services to religious institutions, let alone let government institutions recognize the religious diversity and even secular-meaning of the holidays—unless I’m just imagining all the manger scenes, lights, and Christmas trees in front of city halls my entire life. But leave all that aside. Let’s try to take Cooper seriously on his own terms: Christian nationalism isn’t a problem because Christian values breathe life into American democracy. What does that mean?

In one sense, democracy’s dependence on Christianity is the running theme of the volume. Recall, Barron’s own introduction observed:

Now, if one peruses the history of political philosophy prior to the emergence of Christianity—consulting, say, the works of Plato, Aristotle, and Cicero—one would be hard-pressed indeed to find any ringing affirmations of equality and human rights.

Democracies . . . are founded in moral absolutes . . . [a]nd these nonnegotiable truths in turn are logically correlative to a belief in a Creator God.

(1) (set aside that Barron’s concept of political philosophy spans only the Western Canon—to be fair, so does mine, but at least we know that). And Word on Fire’s Director, Dr. Petrusek, added:

Where, then, can we locate all three of the fundamental principles [human dignity, human equality, the common good] that are necessary for a just democracy? Catholic social thought saves the day again . . . Catholicism not only supports democracy. It is, in fact, democracy’s greatest friend—and like all good friends, it’s there to offer firm corrective guidance when needed.

(3). The hypothesis that Democracy and Christianity share several substantive tenets strikes me as entirely reasonable. But that’s not really the direction Krause and Cooper take.

Both begin with Alexis d’Tocqueville’s Democracy in America, though they approach it from slightly differing angles. As Krause frames it, Tocqueville’s “real thesis” was that “the genius of American democracy was its birth from an explicitly Christian spirit” (24). He focuses on centrality of religious practice in early America, that is, the church as the locus both of communal life and of congregational decisionmaking, both spiritual and temporal. Cooper focuses more on Christian morals “as the essential condition of freedom.” The Massachusetts Bay Colony’s Old Testament-based law code (the classics: murder, rape, adultery, lying, slander, theft, etc.) provided the footing for its “explicit social compact” theory of government, the Mayflower Compact. “There is a liberty of corrupt nature, which is affected both by men and beasts to do what they list…But there is a civil, a moral, a federal liberty, which is the proper end of authority; it is a liberty for that only which is just and good.” (70). And both rightly note the belief in human equality, Krause “in Catholic doctrine” (brought by early 1800s immigrants) (25), Cooper emphasizing the Puritans’ belief (70).

To be sure, the centrality of religion in early America cannot be doubted. And the Puritan notion of governance by covenant and century of experimental self-rule surely offered American democracy surer footing. But these are supposed to be ideological foundations to flesh out. Neither author addresses how the Puritan notion of the covenant with God led to the compact theory of government, how it converged with the Catholic (or Puritan) notion of human equality in the democratic tenet of the consent of the governed, or (in Cooper’s framing) what substantive moral tenets of Christianity offer the “surest pledge of freedom” (71). Rather than intellectual strains upon which democracy might develop, Krause and Cooper appear to view these religious bases as incantations heralding a fully formed democracy’s genesis from John Winthrop’s head, because they jump to some wild—and telling—conclusions.

Krause’s digressive first leap sets out the pair’s aesthetic notion of both history and religion:

[Tocqueville’s Democracy in America] explicitly explains the uniqueness of American democracy and why the totalitarian revolution that swept France didn’t sweep America: Christianity.

(26). To be sure, one could fairly and intelligently center Christianity in a comparison of the two revolutions without resorting to rank Christo-American exceptionalism. One might contrast the prior century of American Puritan experimentation with government by compact—man ought to rule man just as God covenanted with the Hebrews—under Stuart benign neglect with Bodin’s Catholic absolutism—all legitimate authority flows from God to Pope to anointed monarch—ruling France (Montesquieu and Rousseau merely theoreticians at this point), though I suppose that would tend to criticize Catholic thought leading up to both Revolutions. And it might also prompt an inquiry into driving material conditions, setting the relatively cushy American ideological resistance to Hanoverian-Parliamentary reassertion of authority (e.g., the Proclamation of 1763 and the various intolerable taxes) against with the abject material collapse of both the necrotic French bureaucracy—which (unless I’m very much forgetting the Rest is History podcast episode from last summer) had forgotten how to call the Estates General—and economy following several bad harvests. Thus Americans, already relatively acquainted with democracy, enjoyed several decades of relative material prosperity and geographic insulation from European affairs while the French attempted to cut their democracy from whole cloth, hemmed on all sides by skeptical-to-hostile neighbors (and, oh yeah, have we mentioned the perennial bad harvests?).

This aesthetic worldview infects Krause and Cooper’s more relevant conclusions. For his part, Cooper (skipping past his deeply unserious page on the Declaration and Constitution’s adoption of ordinary Anglo-American, and necessarily Christian, idiom—e.g., the Gregorian Calendar and Sunday as the customary rest day) contrives the Declaratory Act—Parliament’s assertion of legislative supremacy over the Colonies—as some sort of heretical pretense to unbounded Parliamentary positivism. Set as aside that the basic justice of democracy does dictate a limited positivism, Cooper would recast a tax and land policy revolt nominally (if justly) based in the argument “no taxation without representation” as a theological freedom fight from the boot of Anglican tyranny (is it irony for a Catholic to trumpet this cause?). Of course, really following the theological thread—that “[s]upreme or unlimited Authority can with fitness belong only to the sovereign of the universe”—would lead us to the substantive bases of democracy. If no man may wield God’s authority to rule without consent, what alternative form of government might man justly enact over man? (Hint: democracy).

Meanwhile, Krause meditates on famed equality of our burgeoning slave empire because Americans sort of welcomed Christian immigrants from other parts of Europe:

[A]s Tocqueville’s magisterial work shows, it was the belief in human equality, with human being made in the image and likeness of God, and the quality of human capacity that permitted inclusive [wait isn’t this a bad word for conservatives?] politics to extend to people of a different nation and different language to help build the United States of America.

(26) Ah yes, the transcendent diversity and inclusion of 1830s America. Compared to the Puritans’ penchant for banishing each other for every minor theological difference (squinting, of course, between the chattel slavery plantations, huddled masses driven along the Trail of Tears, and the distinct lack of women in the public sphere) the Jacksonian concept of universal white-male suffrage must have looked a wondrous accomplishment for equality indeed!

The point here should be peaking through. Christianity and democracy do substantively overlap. Historians (Tom Holland of the Rest is History podcast comes to mind) have illuminated the fundamentally Christian roots of Western thought, particularly in the notions of mercy and pity embodied in the beatitudes—“blessed are the poor.” The Greco-Roman tradition did grasp some basic universal human dignity. But, at least in the Western canon, the notion that we should cherish the poor in and of themselves, that the greatest should lay themselves down for the least, is a distinctly Jewish and Christian tenet. Indeed, it is from this Golden Rule that Harvard (and for once I don’t mean that as an indictment) historian James Kloppenberg draws one of his primary tenets of democracy: reciprocity—or, in Jaffa’s phrasing, the mutual recognition of equal human dignity upon which citizens submit to each others’ votes (Kloppenberg, Toward Democracy 22, 40–41 (2016)).

Krause and Cooper’s seeming failure to draw this thread isn’t accidental, it’s precisely the point. They’re not seriously grappling with the substantive overlap between Christianity and democracy. Never once do they address the Puritans’ utterly exclusive notion of a small congregation of the faithful deliberating under God (70). Never once do they grapple with Christian (Doctrine of Discovery anyone?) justifications of genocide or enslavement. Never once do they consider how the tenets of equality and reciprocity and the covenant converged into democracy. Never once do they consider how those universal Christian tenets applied to anyone other than their preferred American citizen. And perhaps most telling, never once do they consider how Christ’s command to treat your neighbor as yourself contradicts the exclusive notion of nationalism in the first instance. For Krause and Cooper, then, the Christian-roots of democracy are not really the human equality (and corollary consent/covenant) that mark democracy as the only just form of government by man and the reciprocity that extends it to all but rather an American Christian aesthetic which betrays an exclusive notion of nationality limited to the “Godly” and punitive adherence to the Church’s rigid (and democratically unaccountable) moral dictate. Cooper gives away the ballgame: “[I]nstitutions of tyranny and despotism would be necessary to hold an irreligious and immoral people in check” (72).

While Krause and Cooper’s justification for American Christian nationalism are purely aesthetic, their ramifications are anything but. According to the Supreme Court, corporations claiming religious exemption can decline to provide women the healthcare coverage otherwise demanded by businesses operating in the public sphere. Little Sisters of the Poor v. Pennsylvania (2020); Burwell v. Hobby Lobby (2014). Religious schools can openly fire teachers for disability or other disfavored medical reasons, exempted from basic workplace civil rights legislation. Our Lady of Guadalupe School v. Morrisey-Berru (2020). High school football coaches can lead their players in prayer on the field, making roster decisions based on whether children participate. Kennedy v. Bremerton School District (2022). Religious business owners can discriminate against LGBTQ folks, claiming exemption from basic civil rights legislation. 303 Creative v. Elenis (2023). Irish Catholics funded violent insurgent activity in Ireland for decades of the last century, that one didn’t even require a court case! The list goes on. Conservative Christians justify all of this as no more than their right to free exercise under the First Amendment. But one can’t miss that this “free exercise” usually rests on someone else’s subordination. Make no mistake, these privileges belong distinctly to Christian and Jewish Americans. Try rolling out your prayer mat on the 50-yard line. Try denying service to a gay couple on some other (brown person) religious basis. Try sending funds to a mutual aid society in the Middle East (actually, don’t—you’ll get a prompt and unpleasant visit from the FBI).

Perhaps the irony here is the substance of the aesthetic. Barron & Co. are entirely correct. America is a Christian nation. Christian doctrine ordered America’s discovery. Christians colonized it. Christians eradicated the native population. Christians enslaved the men and women who built it. Christians flocked to it. Christians reaped the bounty. Christians have always made this nation’s law. And Christians have always ruled it. Our form of democracy began in churches. Our money proclaims, “In God we trust;” our pledge, “One nation, under God.” Our default citizen is Christian. Our favorite holiday is Christmas. And our law prizes Christian practice over all others. We deride any deviation from calcified Christian moral, social, and economic norms as satanic, aesthetic, or secular. And Christianity provides the greatest rebuke to our founding principle: If God creates but one man destined for eternal damnation, then all men are not created equal. If God condemns any to eternal damnation, then all men are not equal objects of Gods’ love. So why should we submit ourselves to their vote? Spare me the theological nitpicking. We who recite the emperor’s creed (which ignores Christ’s ultimate command and instead focuses on the minutiae of his substance) every week at mass have no ground to dismiss any of this nationalism as “un-Christian.” Christians enacted every aspect of America’s inequity.

So again, at bottom, America is a Christian nation. The question for us then is whether, despite that fact, it can ever really be democratic.

Following the apparently surprising political, social, and economic turmoil of the last decade or so, Harvard’s Professor Danielle Allan seeks to “revisit our understandings of current realities with fresh eyes” and to offer a new vision of Justice by Means of Democracy (Chicago Press 2023, 233 p.) (4). Unfortunately, instead of “a detailed set of rules for action” (12), Allan mainly, between bouts of exhaustive nomenclature and self-aggrandizing meta-discourse, succeeds in illustrating mainline liberalism’s continued lack of answers.

As usual, disappointment comes wrapped in promise. With reasonable brevity, Allan sets human equality as democracy’s polestar (4) and rightly rejects a grave error in traditional political theory—the primacy of negative liberties (freedoms from government intrusion) over positive liberties (freedom to engage in civic life) (21). As I distill it, democracy’s natural justice inheres not in speech or property but rather in our equal human dignity and capacity, the recognition that each is entitled to vote based on whether she can put food on the table (9). To Allan, political equality not only soothes the intrusions into autonomy necessitated by communal life. One’s active practice of political equality, by participating in civic life, constitutes the highest form of personal autonomy (27, 35). And skipping over Allan’s five facets of democracy we reach another important lesson, that democracy carries a bug: freedom encourages diversity, which can tend toward subordination. The line between freedom of association and discrimination is easily traversed. Allan’s notion of “difference without domination” reemphasizes the necessity of positive political rights as the primary guarantor of equality in our everyday lives (48).

Within pages, though, the reader will find herself bombarded by terminology fit for a company-wide pep rally by the new VP, MBA, of Strategy & Vision: we need a “connected society,” “power sharing liberalism,” and—shudder—an “empowering economy” (51, 55). At first written off as the academic’s wont to mistake novel nomenclature for new substance (as so, so many do), the reader soon discerns that each barrage screens serious substantive omissions. For one brief example, the chapter on “social connectedness” offers vague proposals to encourage deep, cross-cutting social interaction, such as multi-income housing, renewed investment in transit, liberal focus groups and committees, without meaningfully addressing the underlying issue: racial and gender animus.

The obfuscation by taxonomy metastasizes in forty pages on the “ideal . . . market-based economy,” which will somehow secure rights to “property, private contract, and association” (160). Allan’s concept of “free labor” (facet no. 1), embodied in the McKinsey-esque mantra “Invest in people!” (168), ignores that our economy coerces labor by condemning “unproductive” bodies to death via starvation, exposure, or illness. Nor does her vision of “[d]emocracy-supporting firms” (facet no. 2)—shedding “shareholder capitalism” for “stakeholder capitalism” (173)—address how capital exploits that fundamental coercion to recapture surplus labor value. By the tract on “good jobs” (facet no. 3), lauding “technology driven opportunities,” public-private ventures, investment, and experimentation (177–78), one just waits with gritted teeth for the first appearance “synergies” and “dynamism” (181).

Allan’s faith in productivity—inclusive firms will outcompete (175); “put behind us . . . political fights over redistribution. Let’s instead choose a path that integrates all sectors of society into productivity” (179); and “[T]he goal with the successful production of good jobs and inclusive bridge building is to take the economy to its productive limits” (183)—boggles the mind. Set aside that the proposals don’t actually explain how to allocate the wonders of production and instead tackle the unreflective assumption of its inherent good. What has unrestrained productivity given us? iPhone replacement every two years? Giant trucks, assault rifles, and missiles designed to murder children? Food and household products that poison us? How much shit do we need? Unrestrained productivity hasn’t given us affordable medication, guaranteed access to clean water, adequate public transit, environmentally sustainable industry, or many of the goods and services necessary for the health and prosperity of all. How’re we going to synergies and dynamism our way out of that?

By this point, one realizes that Allan has forgotten that democracy is not merely a happy little philosophical exercise in self-actualization but a practical solution to people’s pressing problems—inability to put food on the table, to make rent or mortgage payments, to escape student or medical debt, or an abusive job. What does “human flourishing” mean to the parent who can’t afford to send her child to school with an EpiPen; to the kid wondering if the police will beat him or murder him on the way home from school; to the migrant laborer waiting for the knock in the night to send him to a concentration camp. Allan’s reduction of Lincoln from constitutional expositor to mere economic policymaker (132) naturally misses that his vision of democracy manifested first and foremost in freeing those in bondage.

Beyond ignoring the immediate subordination facing ordinary people, Allan also ignores the realities plaguing our institutions. When does a minoritarian check on deliberation transform into a shackle (the Senate) or, worse, minoritarian seizure of power (the Electoral College)? Does not minority rule contradict the notion of consent? Allan offers no answer, instead confining herself to a modest expansion of the House of Representatives to rebalance Congress and the College (78). Elsewhere, in a desperately bipartisan criticism of pretty-clearly President Obama’s use of the executive order (93), Allan utterly misdiagnoses the causes of Congressional gridlock and abdication: the Supreme Court’s arrogation of power, national-security aggrandizement of the Presidency, Republicans’ decisive turn against effective governance since the 90s, and (of course) the original trigger for fear of Congressional authority generally: abolition. And her criticism of expert administrative agencies, that Congress should not abdicate to “technocrats” both echoes a Republican-manufactured specter—Congress already retains complete oversight over all such agencies—and completely fails to distinguish between more politically-driven agencies like the Federal Trade Commission, the FBI, Equal Employment Opportunity Commission, or National Labor Relations Board, and the more cut-and-dry expert ones like the Federal Aviation Administration (185).

At bottom, this failure to grapple with bad actors in the system compromises the entire notion of democracy. It begins with the usual meaningless lesson: “Compromise” in the face of faction and polarization “is what allows us to stay together in the space we share” (97–98). What do we do when someone pulls a gun out in that shared space? Allan’s vision of citizenship doesn’t answer:

Fair fighters seek to best their opponents within the scope of agreed-upon rules by mobilizing noncommitted groups to their side. They do not seek to obliterate their adversaries, nor to alter those rules to present subsequent competition. ‘Fair fighting’ is characterized by the dignity and rights of ones’ rivals  . . . and by norms of forbearance and tolerance.

[C]ivic education needs to foster development of the skill of civil disagreement, perspective-taking, and bridging relationships . . . norms of fair-fighting and nonviolence . . . .

(224-26). One has to wonder what world Allan lives in, we’re not even four years out from the January 6 coup attempt. We need a model of democratic justice that can survive the antidemocratic and subordinative tendencies of a surprisingly cohesive plurality of the American population. Most readers will surely join the appeal to ballots over bullets in the first instance. But letting Preston Brooks walk free didn’t avoid the Civil War. A theory of democratic justice incapable of preserving itself is illusory. Rawls erred when he prized negative liberty over positive, but one doubts he erred in drawing a baseline to defend. Allan’s focus on what we might hope for in democracy, at the expense of what we must demand of freedom, leaves the entire project exposed.

Shall government by, of, and for the people perish from the earth? Shall we compromise women’s bodily autonomy in the name of unity? Shall we compromise black voting rights in the name of unity? Shall we, Senator Douglas, compromise freedom in the name of nonviolence? Of course not! Political compromise rests upon and serves the fundamental democratic principle of consent—the recognition of our equality, that no man is good another rule over another without first soliciting and achieving his agreement—it is not an end in itself. That is, ironically, political compromise rests on an uncompromising baseline. Ignoring this, in an increasingly typical liberal incapacity to distinguish between principle and politics, and between that which might be compromised in service of a goal and that which cannot be without sacrificing the whole endeavor, Allan effectively recasts the Emancipator himself as anathema to her democratic vision of justice. Toss another nickel on Jaffa’s gravestone.

Now Barron & Co. repave the road to a politics of subordination by attacking the legitimacy of Federal power and by papering over this nation’s malingering racial disparities.

The first point can come across as innocuous. Several contributors emphasize the “limited” nature of the Federal government. Barron makes the point himself with Worner (36). Dr. Kody Cooper, writing primarily to rehabilitate Christian nationalism, makes the point in passing, “Our Constitution, which enacts a limited government of enumerated (not plenary) powers . . . .” (72). The primary argument, though, comes from Hillsdale College’s Dr. Larry Arnn. The dutiful student of Jaffa appropriately echoes the Declaration’s import and proclamation of man’s equality before turning to his thesis: “The Constitution describes a government that is limited” (83). He even imbues a sacral nature, “To invest human beings with the powers that only God properly exercises is dangerous” (85).

The ordinary reader might fairly wonder: who cares? Of course government is limited. No earthly power—though it perpetrate the most heinous punishment on my body—can force me to like Ravel any more than it can make a Pro Bowl tight end of me. The question when constitutional commentators throw around the descriptor “limited” is always the same: with respect to whom? Traditional American constitutional discourse holds the Federal government’s authority as limited to the various powers enumerated within the original Constitution, in contrast to the States’ generally topically-unbounded authority. Indeed, Arnn repeats just this dogma: “More things are left to the state governments than the federal, and most are reserved to the people” (83). It would be a cute story, were it not a lie perpetrated by liberal rubes and reactionaries.

Consider the dog that hasn’t barked. For a Catholic intellectual journal discussing democracy in the United States, which topic of constitutional import to American democracy has apparently warranted no discussion? Which topic barely warrants mention, let alone substantive grappling, in Dr. Geoff Bakewell’s glowing description of Athenian democracy (91)? Slavery. This is no mistake. Opposition to broad Federal authority, in practice, has always stemmed from a reactionary fear of Congressional abolition. To this day, most challenges to Federal legislation ask whether they narrowly enough fall within Congress’s Commerce and Spending Powers. Yet beyond hamstringing the natural development of Congressional authority under the original Constitution, the trope of “limited” Federal authority more importantly erases the Reconstruction Amendments. The Thirteenth Amendment abolishes slavery, the Fourteenth grants equal citizenship, and the Fifteenth guarantees equal voting rights. Each expressly grants Congress the power to enact implementing legislation, upending the original state-Federal divide decisively in Congressional favor in at least the realms of civil rights, racial equality, and voting. Simply put, even the most literal or original reading of the Reconstruction Amendments grants Congress plenary authority over the contours of free personhood and citizenship in this nation. Protestations of “limited” Federal authority, rolled out against every Federal policy of social, political, or economic equity, shackle us to an antebellum society with its gradations of free and, more importantly, unfree peoples.

Why, if Almighty God created all men of equal dignity, should American Catholics fear Congressional authority to root out racial animus and remedy the still unaddressed legacy of chattel enslavement—this nation’s racial disparities in wealth, education, and education? Because, Loyola Marymount’s Dr. Christopher Kaczor tells us, those disparities are not a moral wrong but rather a reflection of how the world works. “Consider the utopian fantasy of perfect equality . . . Unless 50 percent of coal miners are women and 50 percent of kindergarten teachers are men, then we have injustice that should be corrected by any means necessary.” Never mind that none on the left actually advocate perfect equality, let alone by any means, just an attempt to do as best we humanly can (or hell, just do better). Kaczor graciously admits that “[s]tatistical disparities are sometimes caused by unjust discrimination. But,” he promptly all but recants, “there are other explanations.” Undeniably true. Not all gender and race disparities are invidious. But in celebrating our diversity, we must eliminate disparities resulting from subordinative animus or that tend to subordinate in practice. So what natural and inoffensive basis does Kaczor find beneath the fact that “99 percent of those working in deep sea fishing are men?” None other than the classic gender stereotype of the meek, domestic woman: “[m]ore men than women are willing to take dirty and dangerous jobs” (46). Perhaps my privilege is showing, but Kaczor’s laughable (and oddly historicist, given the volume’s supposed focus on unchanging moral precepts) defense of slavery’s unremedied legacy—a $135,000 gap in white versus black household wealth as of 2019; black underrepresentation in higher education and professions (5% of lawyers despite 13% of the population); double the childhood lead levels; and four times the maternal mortality rate, among many others (SFFA v. Harvard, 143 S. Ct. 2141, 2270 (2023) (Jackson dissenting))—proves less offensive than embarrassing.

The consistently white supremacist opposition to Federal authority underlying Kaczor’s open defense of racial and gender disparities must inform our interpretation of a seeming throwaway line down the page. “[L]ocal communities should determine what is taught in schools” (46). Yet even without the immediate context, we should be able to discern Kaczor’s point. Who most famously preached local authority over matters both large and small but Senator Stephen A. Douglas, whose version of localized popular sovereignty vested individual communities with the authority to enslave their fellow humans? And what marked the great intrusion of Federal authority upon local education policy? Brown v. Board of Education. With immediate context, the point cannot be missed. “[L]ocal communities should determine what is taught in schools.” And who may teach. And who is welcome. And who is not. Welcome back, Plessy v. Ferguson.

Beyond undermining faith in democracy generally, Barron & Co. undermine faith in American politics in particular. Beside ignoring abortion, they also largely avoid any salient matter presently facing the United States. True enough, not all issues touch on the meaning of democracy. But many current ones do. How should Catholic social teaching inform our approach to white supremacy and the malingering effects of chattel enslavement? (One commentator does briefly address this, and we will discuss later.) How should the teachings of a child refugee inform our views on this nation’s fundamental hostility to immigrants of color? How do we reconcile the Prince of Peace’s command to suffer the little children while spending several times more than what is needed to eradicate poverty on the military-industrial complex annually? The good Bishop doesn’t say. Rather, his commentators sow the perverted notion of politics’ futility.

We have already touched on the editor’s dismissal of modern American politics as catering to “any interest or appetite” (9). There’s more! Dr. Gary Morson’s bit on Alexander Solzhenitsyn’s (in)famous Harvard Commencement Address tells us that humans are inherently evil and that efforts to mitigate the material conditions driving people to evil leads simultaneously to the camps and to decadence (99–101). And Tom Hoopes’ Is Democracy Ethical? recounts his travails and disillusionment as a young Catholic Republican House staffer aiming to gut Medicaid in the early 90s. “I was a true believer. Democracy wasn’t just not as bad as other systems of government; it was a positive good . . . I headed to Washington, DC, to be part of the scene . . . Then reality set in” (50). After the exuberance of the 1994 election, Republicans failed, more or less inexplicably in Hoopes’ telling, to deliver on their Contract with America. “Making sausage is never as clean as you planned it” (53). To be sure, Hoopes offers some nice words, “just because the game is human and messy doesn’t mean good can’t come of it, and it doesn’t mean good Catholics should refuse to play it” (54). But, without an account of how Catholics ought to play the game, steering between the parallel seductions of evil and decadence, the words ring hollow.  

The primary blow lies in Matt Paolelli’s discussion of the 1939 film, Mr. Smith Goes to Washington—the heartwarming tale of the naïve Jefferson Smith (Jimmy Stewart) who, appointed to serve out a vacancy in the United States Senate, finds himself embattled on all sides by money-grubbing politicians and insatiable interest groups, but who through righteousness ultimately triumphs in his successful filibuster of a corrupt dam-building deal. Paolelli adopts wholesale the portrait of politics as a nest of lies and deceit. (Set aside whose policies presently encourage the proliferation of money in politics, the obvious anti-government symbolism of Mr. Smith’s first name, “Jefferson,” or Paolelli’s praise of Smith’s supposed moral use of the “filibuster”—slavery and white supremacy’s favored crutch in the Senate.) We are told Smith’s corrupt governor desires it, so it must be wrong! (Oh, and also ignore the Hitler Jugend overtones of Smith’s wish to set aside the land as a “national camp for boys” in 1939) (29). “Like Smith, we must fend off the corrupt temptations of power, money or influence when they compromise our principles” (31). What principles? How does a dam compromise them? What great evil flows from providing infrastructure, irrigation, and electricity (don’t worry, no one is discussing environmental concerns yet) from those who plainly cannot afford it themselves? And why should Mr. Smith’s individual notion of right and wrong unquestioningly carry the day? Look, flawed humans make politics a dirty business, just glance through Lincoln’s debates with Douglas. But look at the ultimate results of those debates! And obviously the other side in the movie is presented as bad; it’s a story. But by adopting this framing wholesale, Paolelli casts off the entire business of political compromise, that is, building consensus through deliberation and passing legislation for the public good, as categorically immoral livestock trading in the Temple. The solution to corruption in politics is sunlight, not shutting it down (as Paolelli’s filibuster would), or abandoning the game to the corrupt.

To be sure, wholesale Catholic abandonment of American politics does not seem the volume’s goal. But it doesn’t have to be. Why disenfranchise when you can disaffect? Same end; less work. As usual, the point seems innocuous: when politics dissatisfies, go home and pray on it. Dr. Michael Hanby’s discussion of Augustine’s City of God—the empire-justifying trauma dump of (as my father put it) an old man who’d never seen (nor wanted to see) a ballot box in his life—concludes with the lesson that our ultimate goal lies utterly outside the temporal realm and exhortation to find repose in faith no matter what happens here (111). More pointedly, Fr. Leonard Andrie offers a masterful hedging on the state of American politics, warning that “[d]evotees of secular movements unfortunately often express their hope to change the world entirely in the political arena and therefore believe and act as if politics is the most important and primary activity of humanity.” Is he warning against reactionary Catholics’ idolization of Donald Trump? Is he dismissing “secular” liberals and leftists for putting faith in politics and rather than Christ? The text permits either, and Andrie doubles down! “As the general election approaches in November, you are challenged to participate in the electoral process by prayerfully and courageously voting for those political candidates who best espouse God’s will as express in the teachings of Christ.” Set aside that, as more knowledgeable Catholics tell me, Church teaching directs us to vote in accord with the “common good,” rather than pretending to divine “God’s will.” Andrie’s approach is not merely equivocation between the gathering storms of fascism and socialism (just pretend for the moment), but ambivalence:

The most significant battleground is not the political or legislative landscape but rather begins within the individual human soul.

It is not the political ballot box that will save us and our country but rather divine love.

(143–44). Oh yes! As Molotov-Ribbentrop collapses around us, let us remember: “His will be done!” How cheap is personal salvation attained as my neighbors are rounded up for the camps.

Good Catholics ought to know that the solution to disappointment in all things, big and small, personal and political, is not just to pray on it, but to pray on it while working as hard as ever! No wonder Augustine’s polemic against the Romans (here let’s give the old man his due) ignored their manifestations of faith and focused on the material:

What concerns us is that we should get richer all the time, to have enough for extravagant spending every day, enough to keep our inferiors in their place. It is all right if the poor serve the rich, so as to get enough to eat and to enjoy a lazy life under their patronage; while the rich make use of the poor to ensure a crowd of hangers-on to minister to their pride . . . It is a good thing to have imposing houses, luxuriously furnished, where lavish banquets can be held, where people can, if they like spend night and day in debauchery, and eat and drink till they are sick: to have the din of dancing everywhere, and theatres full of fevered shouts of degenerate pleasure and every kind of cruel and degraded indulgence.

(109). As Marx said “show me your means of production and I will show you your ideology,” so Augustine said “show me the world you have built and I will show you your god.” Augustine rightly collectivizes and institutionalizes Christ’s challenge: did you feed me when I starved; clothe me when naked; care when I lay ill? So look not into your hearts, American Catholics, but out your windows. Do we grow enough food to feed all? Do we produce enough to clothe all, to house all, to care for all? If so, how do we instead expend our resources? War. Genocide. Environmental destruction. Border walls and concentration camps. Women bleeding out in parking lots. Children bleeding out in schools. Those are your gods. At least the pagans admitted it.

Barron’s assault on the fundamental justice of democracy manifests in three practical points. First, naturally, he seeks to place the Church’s moral agenda beyond democratic reproach.

Democracies . . . are rooted in certain conditions that are not themselves the object of deliberation. They are founded in moral absolutes—among which are liberty, equality, inviolability of life [you catch it?], and the right to pursue happiness. And these nonnegotiable truths are in turn logically correlative to a belief in a Creator God.

Take out of consideration the Creator. . . and individuals become, in very short order, the objects of political manipulation and domination.

(1). Petrusek roots his three “pre-democratic” values, human dignity, human equality, and the common good, in “Catholic social thought” (3). As above, Worner says that the Church’s moral teaching “solidly rebut[s]” “majoritarian rule and legal positivism” (9). And Tom Hoopes, in a piece primarily dedicated to undermining faith in politics, praises John Paul II’s words, “[T]he Declaration of Independence, the Constitution, the Bill of Rights . . . are grounded in and embody unchanging principles of the natural law whose permanent truth and validity can be known by human reason, for it is the law written by God in human hearts” (54). In fact, by proclaiming the Church’s moral teachings among the otherwise undefined principles antecedent to democratic lawmaking, each of these writers also place Church teaching above deliberation—communal determination of whether these teachings do actually manifest the prodemocratic principle of equal human dignity.

No wonder, despite several pointed hints, the Bishop does not actually explain how the principles embodied in the Declaration prohibit abortion. So much for democracy. American Catholics deserve an explanation of how the principle of women’s natural moral and political equality, dignity, and “capacity for self-rule” vests neither in the women herself, nor in the woman in deliberation with her partner, doctor, and closest confidants and advisors (perhaps including, God-willing, a sensible priest), but rather in a second-rate hack (more commonly called a “district attorney”) the authority to decide when and whether the woman’s personal and familial health, happiness, and wellbeing justify the termination of a pregnancy. American Catholics deserve an explanation how that equal dignity compels women to bleed out in parking lots across the nation, fearful doctors denying care until death seems sufficiently imminent to satisfy the caprice of some scientifically illiterate judges years on. American Catholics deserve an explanation how that equal dignity happily grants the State the categorical authority to conscript women’s bodies for childrearing. And American Catholics deserve an explanation how denying a woman’s capacity for such constitutive personal decisionmaking does not merely deny her capacity to join in our communal decisionmaking as an equal citizen but more so her basic capacity for personal self-governance as a free person.

One suspects the omission deliberate—that Barron recognizes the existential threat a mature concept of democracy poses not merely to the Church’s moral teachings but to its constitutional legitimacy. Where is the voice of the laity in the academic circus of unmarried men of varying degrees of unhealthy sexuality? Where is the voice of women? Whatever expertise the clergy brings, such expertise aids deliberation, it does not grant legitimacy to rule over other men, or women! If every other instance of man’s rule of another without his consent constitutes sinful hubris, why should the Church be excepted? If communal deliberation by all the governed comprises the best means of decisionmaking by man, why should the Church’s be special? Divine favor doesn’t really answer. Hubris is hubris. God rules us—not the Church. And more importantly, if the Church wishes to argue Almighty mandate for minority rule without consent, clergy over laity, men over women, then the Church has abandoned any pretense to the proposition that all men are created equal. And if that be so, then the notion that democracy rests on the Church’s moral teachings, or that the Church “is, in fact, democracy’s greatest friend,” is revealed as a would-be tyrant’s lie.  

Until somewhat recently, a gracious observer could, with effort, still place the American Catholic Church in Burke’s camp. Just. Between one party dedicated to multiracial democracy and one clamoring to strip voting rights, end affirmative action, and defend racialized police violence; between one party defending immigrants and the other calling them rapists and murderers fit only for cages and mass deportation; between one party taking climate change seriously and the other putting all its efforts into the ballooning military budget; between one party defending labor rights and social welfare and the other gutting firearms regulations before children’s bodies cooled—priests and bishops hemmed and hawed (we don’t take positions . . . vote your conscience) all while preaching the fire and brimstone threat of abortion! Good men, perhaps, doing nothing against the party of war, poverty, and white supremacy.

Good-faith sideliners no more. This past month, Word on Fire, pulpit of America’s most prominent Catholic evangelist, Bishop Robert Barron, published its quarterly Evangelization & Culture magazine on the topic of: democracy. However artfully presented, the issue’s purposes are clear: 1) to undermine faith in democracy; 2) to pave the way for Christian (Catholic) Nationalism; and 3) to assuage the consciences of its Trump-voting readers. One hundred fifty three pages as unreflective as they were unintelligent. And, for my sins, I read damn near every word.

There’s a lot to unpack over the next few posts. Today I’ll start with Word on Fire’s simplistic, dictionary definition of democracy.

Barron & Co. might try to hide the ball, but credit where it’s due, they don’t delay it. Underneath the platitudes (“Catholicism not only supports democracy. It is, in fact, democracy’s greatest friend.”) (3), Word on Fire Institute Director Dr. Matthew Petrusek introduces the volume’s shallow, dictionary concept of democracy: “power to the people”—dismissing the form of governance as a mere “procedural system” prone to transform “naked self-interest” into “majoritarian domination,” lacking “any moral validity at all” unless “grounded in pre-democratic values that exist prior to, and out of the reach of, voters’ whims” (3). Dr. Tod Worner, the magazine’s managing editor, adds that “democracy occasionally yields a well-honed product,” before charging (without offering specifics) that American democracy has “devolved to a point where a bill serving almost any [really?] interest or appetite (no matter how heinous) can be passed into law without dispute [again, really?] if there are enough votes and an abstaining [paging E. Burke on line 3] veto pen” (7, 9) (let’s try to ignore him pegging the “horror of” “the Nazi experiment” on “democracy gone wrong” while lauding the adolescent Weimar Republic as “a modern, sophisticated democracy”) (5–6).

In a transcribed conversation with Worner, Bishop Barron echoes the simplistic dictionary definition before contributing two jabs of his own. First, Barron attributes the Civil War to an inherent flaw in democracy:

Because say what you want about the Civil War, one thing it meant was that the democratic system fell apart . . . .

[I]f the Founders were such geniuses and our system so good, why did it fall apart tragically and catastrophically.

(39, 41) (I don’t have time to deal with this here. Go read my essay on the Lincoln-Douglas Debates). Second, bookending a good natured (and dare one say, relativist?) recounting of democracy’s skeptics, Barron begins and ends with overt denunciations:

And everyone knows Churchill’s famous quote: “Democracy is the worst form of government except for all those other forms that have been tried from time to time.” With typical Churchillian wit, he starts with the recognition that democracy is a limited, deeply problematic system.

In Rome, you had some very bright people who never thought what we’re calling liberal democracy was a good idea. And the same is true around the world today . . . Democracy as we’re describing it would strike them as a very bad idea . . . .

In sum, for all kinds of reasons, people—ancient, medieval, modern, contemporary—have said, “I’m not so sure about democracy. Does it really work?” I don’t want to be entirely dismissive of the half of the world that doesn’t quite see things this way, even as I remain, like Churchill and Lincoln, a singer of the song of democracy. It does have a shadow side.

(41) (and let’s try also to set aside Barron ranking John C. Calhoun, principal ghoul of American Slavery, among America’s “greatest statesmen”) (39).

The primary assault, however, comes from Worner’s misapprehension of Jaffa’s Crisis of the House Divided (and you all thought we were past him!). He distills the argument against slavery thus, “Without making an appeal to my Catholic faith, Lincoln made a brilliant case: majoritarian rule and legal positivism were solidly rebutted by a moral acknowledgement with religious roots found in a Founding document [the Declaration]” (9). The gist cannot be mistaken. Democracy, as a purely procedural device of counting votes, holds no inherent moral value, rarely accomplishes just results, and depends utterly on one’s a priori moral agenda for its validity. That is, democracy is fine, so long as it reaches my preferred outcome.

Barron & Co. ignore democracy’s fundamental justice. Man’s natural moral equality (whether rooted in a vague “Creator” or in the Catholic “God” as Barron puts it) (1, 36) implies political equality: no man is good enough to rule another without their consent. Alone among forms of human government, democracy rests on that consent, manifest in the popular will. Monarchy and aristocracy are not merely impractical for the difficulty of identifying the philosopher king or the best men. Rather, they (just as slavery does) deny the need for any consent of the governed. Or, as Barron should but fails to recognize, they commit the sin of hubris by seeking to rule man as God does. Democracy is no mere procedure for majority rule—by its recognition of human equality, it is both the only legitimate form of human governance and an incarnation of justice toward which we ought to aspire.

This is not to say that the majority will should always prevail. Clearly, from the above, democracy must have substantive guardrails. But the principles whose validity do not depend on the popular will are precisely those which impart moral value to the popular will: primarily, the equal human dignity and purposive capacity which enable democracy in the first instance. Only the unreflective mind contrives the arrogance to place its moral agenda beyond communal reproach. Put differently, the popular will carries moral weight because man has devised no better method for decisionmaking than the messy debate and compromise of communal deliberation. (Don’t just take it from me. Justice Robert Jackson famously concluded his concurrence in Youngstown Sheet & Tube v. Sawyer, “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” 343 U.S. 579 (1952)).

More to come.

The Court tells us that “enduring principles” of Constitutional law absolve the President absolutely from criminal prosecution within his core constitutional remit and absolve him presumptively (and probably absolutely) for official action unless prosecution presents no “dangers of intrusion on the authority and functions of the Executive Branch.”  We are apparently to celebrate his continued liability for unofficial acts.  Much has been written already; I will endeavor unique points. 

1.  Spare me the formalism—so often reactionaries’ favorite plaything.  Let us masquerade logician while ignoring practical consequences.  Recall the Ecstasy of Saint Antonin, “It is the proud boast of our democracy that we have ‘a government of laws and not of men’”—demanding that the Court insulate the Reagan Administration from the consequences of lying to Congress.[1]  The President can fire any prosecutor Congress can appoint.  Won’t someone think of the enduring formal classifications of executive and legislative power!  Or, in plain English: absolute criminal immunity for sitting (Republican) Presidents.  Unsurprisingly, principle divorced from reality proves no principle at all.[2] 

2.  Even indulging the Chief’s theory, formalist distinctions make little sense here.  Find me a scenario in which the President of the United States acts without implicating, at least implicitly, the inherent authority and coercive power of the office. So please excuse my disagreement with Justice Sotomayor, op. at 3; the President’s core constitutional authority is absolutely relevant to this case and I’m not sure how it couldn’t be.  When anyone storms the Capitol because the President told them to it will have been precisely because the President, the Commander-in-Chief and Chief Law Enforcement Officer, told them to.  If our analysis of the propriety of a criminal prosecution of a former President turns on formalist categorization, whether he directed the Marines, the FBI, ICE, or a hitman to assassinate a political rival, our Constitutional safeguards have already failed. 

3.  But that’s the point, isn’t it?  Law is practice first, theory second—ask the women fleeing Republican States for life-saving medical care.  As Justice Robert Jackson recognized in the Youngstown Steel Mill case (and as the Court mis-cites over and other), we enact either a functional separation of powers, or none at all.  The Court eschews the former.  Yet its formalist bounds prove so self-defeasibly malleable that one must presume it deliberate; no one’s that stupid, right? 

Consider the facts really driving the matter.  Surely wielding the military or FBI in a coup or to otherwise quash electoral results falls outside the President’s constitutional purview (isn’t that the point of electing presidents?).  A good-faith interlocutor may do much reason with shoddy tools.  But this court is not a good-faith actor.  Before we even consider the Court’s decades long voter suppression (how democratic), its bending over backwards to defend President Trump’s unlawful policies (remember the Muslim ban?), or the fact that it has already by mere delay exculpated the man, that it does not answer “yes” to the actual question—can a former-President be criminally prosecuted for a coup—tells us all we need to know about its allegiances.    

This Court will analyze a Republican coup d’état not as unprotected unofficial action but as the President’s untouchable core Commander-in-Chief and law enforcement powers.  Same goes for assassinating or imprisoning a rival or troublemaker.  Or for engaging other actors, outside of the President’s core Article II control, if either of their official duties are vaguely involved.  Hell, even the President’s use of the bully pulpit must fall within the realm of immunity.  Don’t fall for the Court’s faux remand of that issue.  If the Court cared to rule that a President did not enjoy immunity for inciting a mob to storm the Capitol, it would have said so.  Op. 19–23.

3.  The Chief’s dysfunctional notion of the separation of powers appears predicated on a teenage dream of the President as a rugged man (and reading this decision, it is a man) in uniform, who gets results precisely because he doesn’t play by the rules.  Why should the President need criminal immunity?  Well, the duties require his “unrivaled gravity and breadth.” “[C]ommanding” in wartime, generous in peace, adept in ambassadorial “relations,” his authority “stems” both from Congress and his own Constitutional remit.  Indeed, “energetic, vigorous, decisive, and speedy,” yet still capable of “sensitive and far-reaching” thoughtfulness, he “deal[s] fearlessly” with our nation’s troubles.  At bottom, his “singular importance” and “sheer prominence” must “arouse the most intense feelings” by all of his subjects.  Op. at 6–11. 

Steamy.  If you are among the many Americans—of whatever sexual orientation—who favor expanding Presidential immunity, by all means celebrate this decision.  Celebrate the achievement of a desired goal.  Celebrate the opportunity for a new expression of commitment to an overlord.  Celebrate the availability of new benefits.  But do not celebrate the Constitution.  It had nothing to do with it.[3] 

I hesitate to engage much further lest I give the impression that this decision contains a modicum of serious intellect.  It does not.  Yet a few more issues bear discussion. 

4.  Multiple commentators have already noted how the Court’s ruling that official action may not be used in evidence entirely exculpates the President for bribery.  Payment for what?  That’s official action.  The jury can never know.  It likely gets worse.  Living in official housing, surrounded by advisors at all hours, spouse (and even other family) holding official duties, working on official phones, computers, and emails, and recorded by official tapes, the President lives in an official bubble.  What meaningfully and only private evidence can escape?  Can we really trust this Court not to find that a subpoena of a (Republican) President’s text messages does no injury to the prestige of the office? 

5.  Recall again that the Chief never addresses the specific question presented.  His belabored legal formulation hovers in the clouds with formal classifications of Presidential action, discussions of civil damages immunity, and the need for, ahem, vigorous executive action.  He neither asks nor answers, as a matter of law, whether our Constitutional tradition tolerates a President’s exhaustive and violent subversion of electoral results—a coup.  True, he fondly recounts softened allegations, but only for cover.  In the next breath vague abstractions return: discussions with the Attorney General regarding law enforcement proceedings, discussions with the Vice President regarding his electoral duties, etc. 

Now set aside the merits.  This is bad just legal writing.  Answer the damn question.  That is the lawyer’s job.  It’s also bad judging—some might say activist.  Whether framed as judicial humility or adherence to our long-tradition against advisory opinions (pontifications on potential future issues), judges should answer the question presented or close their mouths.  Yet across 42 pages, the Chief evades it. 

6.  Reading, it appears, is hard.  After decades wielding irrational textual myopia to impose reactionary policy—who could forget Biden v. Nebraska, where the Chief reasoned that President Biden couldn’t “waive” student loans because Congress wrote “waive or modify” and “modify” is such a small word, or, even most recently, Justice Thomas’ strained and ammosexual reading of the National Firearm Act quashed the bump-stock ban in Garland v. Cargill—the Court now trots out an overwhelming Presidential immunity predicated on vibes.  Not only does the Constitution contain no Presidential Immunity Clause, it commands otherwise:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The Chief somehow grasps that the clause separates impeachment and criminal proceedings (historically, impeached ministers had a nasty habit of losing their heads upon conviction) and achieves the bare minimum of rejecting the laughable notion that a President must be impeached and convicted before he can be indicted.  Yet despite the plain language directing that Officers of the United States—of which the President stands as the highest—may be criminally indicted for behavior regardless of impeachment proceedings, the Chief reaches the opposite conclusion: broad criminal immunity.  The decision leaves no doubt how the Chief reached that conclusion.  His entire discussion extending the President such broad immunity ignores this Constitutional text—never once citing it (proof).  Thus, John Roberts, famed institutionalist, delivers us unto a reality in which official action, for which the President may have been impeached and removed from office, is now immunized from further criminal liability.  Sotomayor op. at 22.

7.  Who’s in office?  The Chief details the paramount important of deference to Presidential authority.  But for some reason, this always weighs in favor of the former-President seeking to avoid prosecution and not in favor of the current-President bringing the charges.  Of course prosecuting a former-President impairs the dignity of the office.  But so do the former-President’s misdeeds.  Who wields the prosecutorial discretion to decide whether to charge or not?  “[E]nduring principles” of constitutional law answer: prosecutorial (executive) authority rests with the current-President.  John Roberts now answers: me.  So too with sensitive information that might be revealed in the course of prosecution.  Who has nearly unreviewable discretion to classify or declassify sensitive information on behalf of the United States?  The sitting President.  Who now gets to balance the need for secrecy against the need for uniform application of the criminal law to a former-President?  John Roberts again answers: me. 

8.  Reasonable people have asked whether the Court’s broad remand at least demonstrates a degree of trust in the District Court’s discretion.  Not at all.

Set aside the Court’s recent troubling trend of ignoring District Court’s findings of fact in voting rights cases.  See, e.g., Alexander v. South Carolina NAACP.  Jones v. Clinton illustrated the Court’s genuine former trust for United States District Courts.  There, the Supreme Court both empowered the trial court on remand to hold trial during President Clinton’s term of office and committed the general direction to avoid interfering with effective functioning of the Executive branch to the trial court’s “broad discretion.”[4]  Here, in contrast, the Court utterly rejects even the notion that the District Court might ably handle the delicacies of jury trials involving any official evidence.  Op. at 31. 

This proves all the more galling considering that it displays substantially less trust in the Federal trial courts than Congress has enacted via state.  The Classified Information Procedures Act of 1980, for example, directs District Judges to review invocations of the State Secrets privilege in criminal proceedings to determine both its relevance to the matter and whether an adequate synopsis or concession of fact can be provided to the defense and jury.[5]  Except, now, when the sitting President determines that a former-President’s crimes warrant such possible revelation.  Such trust.  John Roberts, institutionalist.    

9.  One final point.  Readers of any of these opinions would be excused for believing history started in 1789, or perhaps 1776, as no justice really (Clarence’s irrelevant fan fiction doesn’t count) grapples with our constitutional tradition.  Eight-hundred-odd years of that tradition illustrate even the King’s limits at law.  As arbitrary and capricious as it could be, the King’s governance historically required the advice and consent of his magnates, then the Lords, and ultimately the whole of Parliament, who, by the way, controlled taxation—where else did the notion of no taxation without representation come from?  Long ago Parliament exercised a soft electoral prerogative, ratifying Henry IV, Edward IV, and Henry VII’s deposition of their priors.  And in the century leading up the American Revolution, Parliament had executed one king (Charles), tried a weird Puritanical military interregnum (Cromwell), tried a few others from the family (Charles II, James II) including inviting a foreigner who’d married in (William & Mary), tossed the entire family (after Ann), and invited an entirely new foreign family in to rule (the Hanoverians).  A rough sketch to be sure; not everything lines up perfectly.  The Founders sought to standardize much of these informal checks via elections and by separating impeachment from criminal law.  But it should be clear enough—a point event the dissents entirely miss—it’s no fair calling John Roberts’ conception of the President a “king” because even in our tradition, the King was never really above the law. 

So—where do we go from here?  As I’ve already written, Democrats—Joe Biden—in particular bear as much blame for this decision as John Roberts does.  Trust your enemy; demand of your supposed ally.  Donald Trump’s January 6th Putsch marked an inflection point, either to normalize the Right’s political violence or to decisively quash it.  Despite the consistent lesson of history, and the Constitutional prerogative to do so, Biden did not arrest the insurrectionist former-President by noon on January 21.  And atop the lack of meaningful personal consequences, Joe Biden and the Democrats have enacted no institutional consequences.  Despite the sterling precedent of the December 1865 Congress, insurrectionist Republicans have been allowed to remain in Congress.  Apparently content with the Supreme Court’s vendetta against voting rights, Biden and the Democrats have passed no comprehensive voting rights legislation—legislation which would hobble the antidemocratic Republicans for a generation—and have left the enslaver’s filibuster untouched in the already minoritarian Senate. 

With gratitude for the good that President Biden has done, particularly with the NLRB, he has eschewed efforts protect and entrench that good, and has instead sleepwalked himself into a contested election.  In short, Joe Biden’s (and the Democrat’s) fear of governance has given John Roberts all the confidence he needed to extend more-or-less absolute criminal immunity to Presidents.  That is why Joe Biden should be considered a failed President.  That is why I expect him to lose to Donald Trump this November.  Oh, and apparently you all finally realized his brain turned to mush years ago. 

It only seems worn out cliché until it happens.  Some decades contain weeks.  Some weeks contain decades.  Republicans have proclaimed an antidemocratic and antigovernment project for decades.  These past few weeks, in gutting administrative agencies, exculpating an insurrectionist, and promising him immunity, they achieved much that they have waited so long for.  And Democrats watched. 

[1] Morrison v. Olson, 487 U.S. 654, 665–66 (notice whose original (mis)conduct triggered Congress’s curiosity: EPA Administrator Anne Gorsuch Burford—yes, Neil’s mom), 697 (Antonin’s death screech) (1988). 

[2] Or, as Jaffa quotes Churchill in Crisis of the House Divided, “The only way a man can remain consistent amid changing circumstances is to change with them while preserving the same dominating purpose.”

[3] Obergefell v. Hodges, 576 U.S. 644, 713 (2015). 

[4] 520 U.S. 681, 706–08 (1997). 

[5] United States v. Song, No. 21-cr-00011, 2021 WL 1164843 (N.D. Cal., Mar. 26, 2021). 

So the Supreme Court’s rejection of former-President Trump’s immunity claim should (already) read.  Yet so wrote Justice Antonin Scalia, arguing that Congress could not appoint a prosecutor whom the President could not fire, effectively immunizing a sitting President from criminal investigation.[1]  There’s the rub.  Even under the guise of the rule of law, Republicans believe Republican presidents stand above it.  Right now, by its deliberate delay, the Supreme Court has immunized former-President Trump from criminal liability for instigating a coup d’état.  Even a correct decision now comes too late.  Trump will not be tried, let alone convicted and sentenced, before the 2024 election.  Law is practice, not theory.  In America, now, an insurrectionist may run for President. 

But don’t just blame Republicans.  The rule of law means not only that Presidents are subject to the law, it means that they are subject to the same law governing us all.  Set aside your squishy morals for the moment for pure politics.  Among the best guarantors of the rule of law is the common law’s old adage: sauce for the goose is sauce for the gander.  Voters are fickle, political winds always change, and a tyrannical majority eventually finds itself a tyrannized opposition.  In politics, meet hardball with hardball.  Of course, if John Roberts even halfway suspected that Joe Biden would effectively wield a SCOTUS-approved absolute executive immunity, he would already have rejected former-President Trump’s claim for it.  But he doesn’t.  And so here we wait, hoping for the Supreme Court to rule that a President can be criminally prosecuted for instigating a coup d’état.  That’s not Roberts’ fault—that’s Biden’s. 

From day one—from engaging with Republicans’ shenanigans in the January 6 hearings, to waiting nearly two years to appoint Jack Smith to indict Trump for the coup, to the battery of secondary indictments (looking at you New York, Georgia, and classified documents)—Democrats have failed to rise to Republicans’ existential threat to our democracy.  And that threat makes their passivity all the more galling, because this isn’t just a matter of base politicking.  Our constitutional tradition authorizes and directs Democrats to play hardball here. 

Start with the baseline.  Presidents are not kings.  Washington established this by stepping down, Adams by getting voted out.  They are subject to court orders.  Chief Justice Marshall made Jefferson turn over evidence in Burr’s treason trial.  Monroe had to answer written questions in an 1818 court martial.  Nixon had to turn over the Watergate tapes.  And Clinton had to give both criminal testimony and sit for a civil deposition.[2] 

Spare me protest that the Supreme Court has held Presidents immune from civil damages.  That aberration of reasoning is best defended by the pragmatic rule that the U.S. Treasury should be on the hook for Presidential screwups.  But no matter.  Our tradition makes crystal clear: even kings suffer the law’s consequences.  Parliament not only ratified each of Henry IV’s, Edward IV’s, and Henry VII’s deposition and killing of their prior, it ordered Charles’ execution.  And, to my recollection, even the great conservative Cicero—contrary to the general Roman right of appeal (provocatio) against capital sentences—held that anyone who commits a crime of existential nature against the state, e.g., a coup d’état, could and should be executed immediately.  If we can lawfully depose and kill an anointed king, we can criminally charge a President. 

So, by noon on January 21, 2022, Donald Trump should have been locked away in an unmarked Federal prison cell.  Simultaneously, Democrats in both Houses of Congress should have—just as the Reconstruction Congress did to the insurrectionist ex-Confederates in December 1865—expelled any member who failed to ratify the election, supported the coup, or failed to impeach or convict its leader.  Assuming he were still alive (which I tend to believe the prudent course), after an unimpeded month of Congressional investigation, President Trump could be re-impeached, convicted, barred from office, indicted, convicted, and incarcerated.  And, for good measure, Congress could have debilitated the party of insurrection for generations by passing comprehensive voting rights legislation and packing the Supreme Court when it inevitably attempts to strike the legislation.

Democrats’ indecision has given John Roberts all the assurance he needs to hold another Republican president above the law.  If Donald J. Trump retakes the Presidency in 2025 and pardons himself, don’t only blame Republicans.  Caesar, after all, didn’t remove himself from the proscription list. 

[1] Morrison v. Olson, 487 U.S. 654, 697 (1988). 

[2] Clinton v. Jones, 520 U.S. 681, 703–05 (1997). 

To be sure, the bill does what it says.  It “provide[s] a clear and comprehensive right to contraception” to be enforced against State interference by either Federal or private suit.[1]  The drafters even remembered to include an express abrogation of State sovereign immunity (an arcane realm not relevant here) to allow such private action.[2]  But this competent start leads nowhere: as the Supreme Court presently interprets it, Democrats have drafted a hopelessly unconstitutional law.

Recall high-school civics.  Congress must peg every piece of legislation to some Constitutionally enumerated power.  For civil rights legislation (ignore voting), Congress usually picks among three: the Spending Clause, the Commerce Clause, or the Fourteenth Amendment.  None avail Democrats here. 

The first—Spending—we can toss easily.  While Congress can attach conditions to Federal funds, this bill does neither. 

The Commerce Clause should provide a sufficient basis for the bill.  Congress’s power over the channels and means of interstate commerce has historically included authority over public accommodations, places open to the public generally (restaurants, bars, hotels, or hospitals and medical offices).  Additionally, Congress can regulate commercial activity that in aggregate substantially impacts the national economy.  Purchasing contraceptives certainly constitutes a commercial transaction.  And women’s modern access to the American workforce and public sphere rests substantially on contraceptive access.  But in 2000’s Morrison v. United States, the Court ignored similar justifications for Congress’s attempt to curb violence against women in public.  So, the Court will deem contraceptive use to be a non-commercial activity and strike the law. 

The Fourteenth Amendment, which guarantees both due process and equal protection, should also provide easy support for the bill.  Current case law (primarily Griswold v. Connecticut and Eisenstadt v. Baird) recognizes an individual’s right to contraceptives under the Due Process Clause.  Women’s bodily autonomy and access to the public sphere certainly implicate the gender equality guaranteed by the Equal Protection Clause.  And the Enforcement Clause names Congress as the Amendment’s primary guarantor.  Indeed, the Reconstruction Congress legislated various rights of freedmen and citizens—including contract, property, jury service, testimony, and court access—and passed the Fourteenth Amendment specifically to authorize such action.    

But this won’t work.  For one, if (when) the Court overrules the individual right to contraceptives, the Due Process basis will fall away.  For another, as the Court reiterated in Dobbs, gendered-medical issues like pregnancy and contraception don’t trigger Equal Protection concerns (check your reason at the door).  Atop that, since the early 1990s, heralded by City of Bourne v. Flores, the Court has asserted its constitutional supremacy and has permitted Congress to legislate only in defense of Court-recognized rights.  That is, now when the Court takes away, Congress can’t give back. 

Simply put, a Court willing to quash contraceptive access—and thereby threaten our rights to interracial and same-sex marriage and intimacy—will not hesitate to brush aside remedial legislation passed by a long-chastened Congress.  Senate Democrats know their bill is a charade. 

In a better world, this bill should be solid.  But to win back its Commerce and Enforcement powers, Congress will have to grow up and play hardball with the berobed.  Serious moves toward impeachment, Court expansion, term limits, and at the very least budget hearings are long overdue.  Sure, outside of impeachment, the Justices’ jobs and pay can’t be touched.  But cushy offices and law clerks can be.  Make them beg. 

I supposed a savvy political operative wielding majorities in both Houses might have advanced a similar bill in February 2021, deliberately luring the Supreme Court to strike it down.  The resulting uproar might have enabled meaningful reform.  Yet here we are.  If Democrats want to govern contraception, they’ll have to govern the Court first.

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[1] Section 3: The purposes of this Act are—(1) to provide a clear and comprehensive right to contraception; (2) to permit individuals to seek and obtain contraceptives and engage in contraception, and to permit health care providers to facilitate that care; and (3) to protect an individual’s ability to make decisions about their body, medical care, family, and life’s course, and thereby protect the individual’s ability to participate equally in the economic and social life of the United States.

[2] Section 7(f): Abrogation Of State Immunity.—Neither a State…nor a government official…shall be immune under the Tenth Amendment to the Constitution of the United States, the Eleventh Amendment to the Constitution of the United States, or any other source of law, from an action in a Federal or State court of competent jurisdiction challenging that limitation or requirement.

Modern medicine has increased lifespans drastically since the Founding.  Where elected and appointed officials once met their Maker in their fifth, sixth, or seventh decades, the same today now regularly achieve their eighth or ninth—concomitant cognitive decline be damned. 

This raises the pressing question: are we to live under the dictate of the senile?  According to the Founders, no. 

This article proceeds in six parts.  Following this introduction, Part II reviews the Constitutional text and precedent governing judicial tenure to determine that “life” tenure naturally concludes at “death.”  Part III reviews the history and original public meaning to conclude that “death” includes artificial, human causes.  Part IV looks to tradition and history, tracing the employment of human-caused death to terminate one’s tenure in constitutional office at Common Law and circumstances at the Founding, to conclude that the President wields what may be termed “involuntary-retirement authority” over Federal judges.  Part V considers the scope of Legislative authority necessary for lawful Presidential use of the involuntary-retirement authority. Part VI concludes. 

II.

Article III of the United States Constitution directs: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”—language interpreted (correctly or not) to guarantee Federal-judicial life tenure.[1]  By natural corollary, Federal judges serve until retirement or death. 

Common experience illustrates a variety of terminal circumstance.  Some judges die in hospital.[2]  Some prefer the comfort of their home.[3]  Some, in the vein of Louis Vierne, famed organist at the Cathedral d’Notre-Dame de Paris,[4] might even prefer a poetic expiration on the bench.[5]  In the ordinary course, these forms would be termed “natural.”  But nothing in the Constitutional text requires the conclusion of judicial tenure to be so.  Thus, we must look to the original public meaning, alongside our history and tradition, for guidance. 

III.

That several of the States prohibited one to cause the death of another, absent some justification, at the Founding illustrates an understanding that the term “death” included artificial, that is human, causation.[6]  Many of the Founders themselves, having served both during the American front of the Seven Year War (known to them as the French & Indian War)[7] and in our own War for Independence,[8] would have been well acquainted with the concept of one causing the death of another.  Indeed, several Founder’s later conduct during the Nation’s first generation illustrate their understanding of the term “death” to include human causes.[9]

IV. 

History and tradition ground our employment of human-caused death to constitutional ends.  Certainly, the Founders would have understood it to be so, having so recently achieved independence from Great Britain by causing the deaths of others.[10]  So too, President Lincoln employed the human-caused deaths of several hundred thousand Americans[11] in furtherance of what has been termed the “Second Founding” by eminent historians[12]—Reconstruction and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. 

Yet still more deeply rooted in our history and tradition than the employment of human-caused death to structural-constitutional change is its employment to the specific end of terminating the tenure of a Constitutional officer, thus Parliament’s involuntary retirement of Charles I by the axe in 1649.[13]   

This is not to claim lawful all human-caused deaths to the meanest ends of State.  For one, the minimum quanta of executive authority and legislative approval required remain unclear in the historical record.  Both the King’s death and the wartime slaughters enjoyed legislative mandate.  And for another, while criticism of Vice President Burr’s unilateral killing of Secretary Hamilton may have stemmed either from the lack of legislative approval or from the inadequacy of his office,[14] concern may also have stemmed from the more political rather than Constitutional ends of the killing.[15]  In this light, mere political purposes, as opposed to fundamental constitutional ones—such as dramatically restricting sovereign prerogative or reconstituting the state entirely—may detract from the substantive lawfulness of the act. 

Nevertheless, for present purposes, two inescapable conclusions may be discerned.  First, the death concluding a Federal judge’s tenure includes artificial, i.e., human, causation.  Second, such involuntary retirement should further an important constitutional end. 

Some may consider this conclusion uncouth.  But it is a proud boast of this nation that we are one of laws and not of men.[16]  The rule of law does not permit us to reform the Constitution at a whim to conform to fleeting moral and social sensibilities.[17]  Article V prescribes the method of amendment.[18]

V. 

Charged with execution of the law, the Constitution necessarily vests the involuntary-retirement power in the President.[19]  But, as hinted, the quantum of legislative approval required to wield this power remains unclear.  Following the example of Charles I, bicameral Congressional legislation might seem required.[20]  However, our Constitutional text and precedent indicate otherwise. 

To begin, even if executed by the President, a Congressional directive to involuntarily-retire a Constitutional officer would appear to be an expressly-prohibited bill of attainder.[21]  But the Founders appear to have grasped this tension, given the Constitution entrusts the appointment and removal of Officers of the United States to the President.[22]  To be sure, appointment requires the advice and consent of the Senate.[23]  But long-standing precedent recognizes the President’s unilateral removal authority.[24]  Thus, the Founder’s wisdom revealed: a unilateral involuntary-retirement power vested in the President traverses the prohibition against a bill of attainder.  This by no means grants unconstrained power.[25]  It is, as in many other cases, to consign legislative oversight of the matter to its impeachment authority.[26]  

VI.   

In sum, no—neither the Constitutional text regarding judicial tenure nor its original public meaning compel us to live under the senile dictate of the octogenarian.  To important constitutional ends, the Constitution vests the President with a unilateral involuntary-retirement authority over the judges and justices of the Federal bench. 

Future scholarship should delve into the scope of important Constitutional ends justifying such presidential action.  Additionally, given the Burr-Hamilton precedent, such scholarship should also consider Presidential competence to delegate of involuntary-retirement authority to other Officers of the United States and, perhaps, inferior officers, especially in light of the newly developed Major Questions Doctrine.[27] 

Last, as hinted above, the involuntary-retirement authority raises certain tensions with modern sensibilities.  Future scholarship might consider and propose language for constitutional amendment modifying the authority, authorizing other means of judicial removal, or ending life tenure altogether.

[1] Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 89 (2006); Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 669 (1969); N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955). 

[2] Emily Langer, Gladys Kessler, federal judge in landmark tobacco lawsuit, dies at 85, Wash. Post (Mar. 22, 2023), https://www.washingtonpost.com/‌‌obituaries/2023/03/22/gladys-kessler-tobacco-judge-dead/.

[3] Tom McGhee, U.S. District Judge Walker Miller dead at 74, Denver Post (Mar. 26, 2013), https://www.denverpost.com‌‌/‌2013‌/03/26‌/u-s-district-judge-walker-miller-dead-at-74/.

[4] Christina Foerch et al., A beautiful stroke? A side note on the 75th anniversary of the spectacular death of the French organist and composer Louis Vierne (1870-1937), 34 Cerebrovas. Dis. 322 (2012). 

[5] As one Federal judge has indicated to the author. 

[6] People v. Pettit, 3 Johns. 511 (N.Y. 1808); Respublica v. Mulatto Bob, 4 U.S. 145 (Penn. 1795). 

[7] Among them, George Washington.

[8] Washington again, Alexander Hamilton, Aaron Burr, etc.

[9] Burr v. Hamilton (Weehawken, N.J., 1804). 

[10] David McCullough, 1776 (Simon & Schuster 2005).

[11] Statistics on the Civil War & Medicine, Ohio State Univ., Dept. History, eHistory, https://ehistory.‌osu.‌edu/‌exhibitions/‌cwsurgeon/‌‌‌‌‌cwsurgeon/statistics (last accessed July 28, 2023). 

[12] Eric Foner, The Second Founding (Norton 2019).

[13] UK Parliament, Death Warrant of King Charles I (1649).

[14] Putatively offered the post of vice president to Zachary Taylor, Senator Daniel Webster reportedly, though likely-enough apocryphally, remarked “I do not propose to be buried until I am really dead and in my coffin.”  Colleen Shogan, The Vice-Presidency, White House Hist. Ass’n (Aug. 25, 2021), https://www.whitehousehistory.‌org/‌the-vice-presidency.

[15] To Alexander Hamilton from Aaron Burr, 21 June 1804, Nat’l Archives, Founders Online, https://‌founders‌.‌arch‌‌ives‌.gov‌‌ /documents‌/Hamilton‌‌/01‌-26-‌02-‌0001-0207.

[16] Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (quoting Part the First, Article XXX, of the Massachusetts Constitution of 1780, apparently unaware that the Massachusettans had in turn borrowed the phrase from Harrington’s Oceana). 

[17] Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting). 

[18] “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.”  U.S. Const., art. V.

[19] “The executive Power shall be vested in a President of the United States of America.”  Id., art. II, § 1. 

[20] See supra, note 13.

[21] U.S. Const., art. I, § 9, cl. iii.

[22] Id., art. II, § 2, cl. ii.

[23] Ibid.

[24] Seila Law LLC v. CFPB, 591 U.S. ___, 140 S. Ct. 2183 (2020); Myers v. United States, 272 U.S. 52 (1926). 

[25] James Madison, Federalist No. 51 (1788).

[26] Morrison, 487 U.S. at 697.

[27] West Virginia v. EPA, 597 U.S. ___, 142 S. Ct. 2587 (2022). 

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