At Liberty Law Blog. Richard Reinsch: A Tale of Two Majorities. From the introduction:
A good explanation of the Clinton-Trump clash we are living through, and of Trump’s having taken the Republican Party by storm, is in Eric Posner and Adrian Vermeule’s 2010 brief for executive supremacy as the way we do constitutionalism. The Posner-Vermeule thesis in The Executive Unbound is that the Madisonian philosophy of separation of powers as a constraint on the presidency no longer exists, and good riddance. The more authoritative check on executive power, they say, is majority opinion and the fact that the President must face the voters every four years. This, and not Greg Weiner’s paean to Jemmy Madison, is the only source we have now for safe, effective, and informally limited government. Those wanting Madison on demand, Posner and Vermeule inform us, are whistling past the graveyard of a constitutionalism that no longer fits this American nation.
And in conclusion:
The surest way for us to arrive at a better way for the majority to govern is to recover congressional elections that are about something—shaped by communities of people who can argue with one another, and make a choice among themselves on what they are concretely prepared to favor, tolerate, or oppose. This decision takes the form of choosing a person who will represent the community and is accordingly authorized to deliberate on its behalf. These elections, [Willmoore] Kendall notes [in his essay The Two Majorities], are the surest bridge we still have to the Founders’ Constitution. Thus congressional elections turn not only on policies but on fitness of character—that is, the virtue of the person who is to represent a community and deliberate on its behalf is of greater significance. The judgment of character made by those represented as to who should represent them, then, is the unstated premise of our institutions’ capacity to perform their constitutional functions. It is the virtue that our system requires to fulfill its constitutional end.
I hasten to add that Kendall did not lack for a sense of realism. He didn’t invent the term “flyover country” but Kendall might as well have. He makes the appropriate comparison and realistic judgment that as between presidential and congressional majorities, elite opinion and all its trappings rides with the presidency. In its stead, we get a media-driven politics with soundbite platitudes. Deliberation is something that happens inside federal agencies, participated in by government and corporate elites, and obnoxious activists. Put differently, these are the people who couldn’t live one day in a real town with a real job; they are the last bunch you would want to see at your neighborhood bbq. Their calling, as they see it, is to edify the dark recesses of opinion within insular American communities.
This put-upon group of Americans, for the most part—and this is why the two national parties have fallen into such disrepute—finds only virtual representation in Congress and is commanded by a federal rule-making apparatus composed of judicial and executive officials whose promulgations elude curtailment by Congress. What is needed is the authority to change the terms of the debate, terms that have in some respects not changed appreciably in the 50 years since Kendall’s paper was published. What type of country will we become and whose principles will dominate it through majority rule? Rather than teacher President and pupil Congress, we need a debate over what Kendall called the “destiny and perfection of America and of mankind,” and this, he added, ultimately amounts to a contest “between American conservatism and American liberalism” at its deepest level. One thing that must change is for conservatism to make real the principle of self government. Kendall’s scholarship on the deliberative nature of our institutions must be the cornerstone of that refurbished foundation.
Posted at 6:16 PM