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Wednesday, May 16, 2018

New Constitutional Law Jot: "#Resistance, With Candor"

Jotwell, of which I am a co-editor of the Constitutional Law section, specializes in calling attention to new articles we "like lots." I liked Sandy Levinson and Mark Graber's recent article, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, lots. And here is my "jot" discussing that article, titled #Resistance, With Candor

Liking an article lots is not the same thing as agreeing with it completely or not having serious questions and potential objections to it. In the jot, I set out Levinson and Graber's recommendations for courts dealing with actions of this administration and their reasons for those recommendations (which are virtue-based!--I'm happy to see so many people are now interested in aretaic questions in law), commend them for the candor of those recommendations, and raise broader questions about what their approach means and how it would be applied. An obvious question is how we can distinguish acceptably "Publian" presidents from unacceptably "anti-Publian" presidents. But I am more interested in another question, which I have said and continue to think deserves more attention: What's the goal or end game? Here's an excerpt from the jot:

Another important question, one I have noted here before, is what the precise goal of extraordinary skepticism toward anti-Publian presidents in general, and Trump in particular, should be. Should it be one of total resistance? Or should it be to nudge such a president into a more “Publian” mode—to “normalize” that president—and then return to the standard, deferential approach to routine executive action? . . . 

This question deserves more attention than it has received. It matters greatly—both to law and judges, and to politics—whether the goal of resistance to Trump is total resistance, or simply ensuring that his administration is not tyrannical, arbitrary, or chaotic. Levinson and Graber argue that there is an important distinction between “bad” presidents and anti-Publian ones. If our general assumption is that constitutional law and politics make “merely” bad policies a matter for political debate, then our choice of goal matters for both healthy politics and the legitimacy of the legal and judicial #Resistance. . . . [A] resistance needs a clear goal and stopping point. It should be able to distinguish between fighting ordinary bad policies by ordinary means, and using extraordinary measures to counter extraordinary “breakdowns” in political and constitutional norms. Similarly, an argument for extraordinary legal responses to anti-Publian presidents demands a clear goal for courts. Rendering an anti-Publian president more Publian seems like an appropriate goal, and suggests that when judges succeed in doing so, they should revert to more ordinary forms of judicial review. There is room for disagreement about this. But discussion is essential.

There's more, of course, including an application to the travel ban case and some thoughts about so-called constitutional "settlements." It's long for a jot--of course; I wrote it--but short by legal academic standards. Enjoy! 

Posted by Paul Horwitz on May 16, 2018 at 09:04 AM in Paul Horwitz | Permalink

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