President Trump, whose reflex for pugnacity has its uses, threw a vicious and entirely fair constitutional body check when he named OMB Director Mick Mulvaney acting director of the Consumer Financial Protection Bureau. It is exactly how constitutional conflicts are supposed to be resolved: power checking power.
A commemoration of the Constitution calls for impertinent arguments. Mine is this: Our campaign-finance regime ought to be as unregulated as possible, but not for the reasons commonly supposed.
Constitutions are naturally conserving documents. Their purpose is to say what a society cannot change, or at least cannot change readily. In constitutive moments, polities lash themselves like Odysseus to the mast, not the pilot’s seat.
This is lost on those political commentators, ascendant during the NFL’s anthem controversy, who seek to press the language of the Constitution’s Preamble into the service of Progressivism. We are talking about Progressivism with a capital “P”— the strain that believes in unrelenting progress as the inherent good of man and the inevitable trajectory of events. The phrase in question is an old rhetorical favorite: the Preamble’s quest for “a more perfect union.”
Gordon Lloyd and Steve Ealy make a compelling case for liquidation, what they call “Originalism for the Living Generation,” as the most Madisonian means of settling constitutional meaning. Grounded as it is in Madisonian text and example, from The Federalist to the bank veto, the superb account Lloyd and Ealy offer is difficult to assail exegetically. But if the exegesis is airtight, the source being interpreted might still leak. Whether Madison’s account of liquidation is as persuasive as Lloyd’s and Ealy’s account of Madison requires careful attention. As they note, Madison believed the meaning of the Constitution had ultimately to be…