An excellent article and important exercise in these illiberal times. Reading this series helps me connect data points that previously seemed to exist in separate alternate realities, let alone on different planes. It strikes me as impossible that my conservative grandmother could simultaneously claim to venerate the founding fathers while belonging to a political movement treats Madisonian separation of powers with outright contempt. Given that she married someone whose parents died in the holocaust, it is similarly galling that she would support a philosophy that originated with Carl Schmitt. Such are the times we live in I guess.
It's remarkable how much of postliberalism horseshoes into leftism:
-Claims that there's no such thing as neutral rules, therefore it's acceptable to ignore them and openly act solely in the interest of your favored groups.
-Holds that people are members of collectives first and individuals second.
-Economics is fake and was invented to turn the people against them, which is why their populist movement is inexplicably unpopular.
-Deflects criticism by demanding that all comment come from people who have read a vast and vaguely-defined body literature.
For a defense of originalism as a form of liberalism, read any book by Professor Akhil Reed Amar. I recommend: Born Equal: Remaking America's Constitution, 1840–1920 published 2026
Professor Amar makes the case that Lincoln was the greatest originalist Constitutional scholar who used his originalist skills to make the case against slavery.
If you get the audio book version, the introduction is narrated by comedian John Mulaney who is a big Constitutional law fan and sometimes sits in on SCOTUS oral arguments.
Considering the most thoughtful and committed originalist to ever serve on the Supreme Court is Ketanji Brown Jackson, I think one can make a solid case for that.
I was wondering where you would ever have gotten this take and then I googled it and apparently there's a huge amount of progressive stuff (Slate, Constitutional Accountability Center) pushing this. TIL!
I think KBJ is a good originalist but the most thoughtful and committed? I would genuinely like to see a case made for that. Kagan is a pretty good originalist too!
The short version is that the conservative legal movement does “originalism” as _lawyers_, picking and choosing bits of history to suit their current argument. KBJ does originalism like a _historian_, seriously trying to get the big picture.
Thanks to Mr. Magness for this post. It's very clarifying. On first reading I'm spotting two root themes: (1) The post 9/11 exploitation of the "state of exception," which gives the Executive exclusive powers to be deployed at times of its own choosing; (2) The targeting of Lockean individualism as a fatal flaw in the American founding framework.
I think it's crucial to recognize that both these illiberal themes are facially cogent and reasonable. It is not hard to imagine a "state of exception" so dire that citizens would overwhelmingly approve an unconstitutional exercise of power when there was no realistic alternative for preserving the State. And Locke's portrait of the person is indeed incomplete in essential ways, as the communitarian implications of modern social science have amply demonstrated and as the Founders themselves would have granted, given the social and religious experiences common in the 18th century.
Philosophically speaking, the 20th century American response to these defects in Constitutionalism (if "defects" they are -- better to call them "limits") was to approach them in the spirit of American Pragmatism, acknowledging that there can be no perfect and frozen blueprint for human government, but that a robust and generally successful framework can be protected from its defects through conservative concessions to the need to respond to constantly emerging stresses presented by a changing world. Those concessions would be enshrined with close to Constitutional force as legal precedents, ultimately (if necessary) set by and overturnable by Supreme Courts. This approach was, for a time, recognized as "Legal Realism," and (if I recall) was inspired by both the philosophy of John Dewey and the jurisprudence of Oliver Wendell Holmes Jr.
We are getting a very clear lesson today in the defects of the Schmittian approach of Vermeule's legal theories -- so far, our only blessing is that the sickness of our Chief Executive is largely expressed through personal whim on the scale of Mussolini, rather than of Hitler, but the door has been opened for an unlimited and ongoing descent. As for the communitarian emergencies that Deneen identifies (which have been amply documented by sociologists such as Robert Putnam Anne Case, Angus Deaton, Jonathan Haidt, and many others), these do not seem to me to be the products of the limits of our Lockean Constitution at all -- the communitarian structure of American life flourished side by side with legal individualism for two centuries. They are products of increasingly rapid social and technological change in a capitalist system and need to be addressed through personal, community, local, and larger governmental policies within the framework of a Constitution that protects our ability to figure out these issues organically, rather than by fiat from an Executive, which could (just to offer a hypothetical) be composed of venomous sociopathic fools.
Late edit to an overlong post: I should have prolonged this by saying that I think the "beauty" of Originalism for illiberal post-Constitutionalism, is that if you adopt the theory you can demonstrate the inadequacy of the Constitution and promote its effective overthrow. That's why seeding the Supreme Court with Originalists and then bringing cases to it to overthrow pragmatic precedents has been effective in transforming America into a dysfunctional State.
Re: " That's why seeding the Supreme Court with Originalists and then bringing cases to it to overthrow pragmatic precedents has been effective in transforming America into a dysfunctional State."
I think the pragmatic precedents on Constitutional issues are what has made the court dysfunctional. It just leads to all sorts of political shenanigans as both parties use all means fair and foul to pack the court with justices that will make the pragmatic decisions that their party wants. Before progressives availed themselves of this "pragmatic" style of jurisprudence to make progressive adjustments in the law, conservative justices used it in the 19th century and early 20th to give us the Dred Scott case and to strike down one piece of progressive legislation after another, find that corporations have the same rights as natural persons, etc.
A better way is to put restrained originalists on the court and if the law needs changing, the use the legislative process or the constitutional amendment process. Changes to the law this way have more democratic legitimacy and have proven more durable (e.g. 14th amendment, 19th amendment and the Civil Rights Act of 1964).
Justices just making new law according to their personal policy preferences are usurping the legislative power that the Constitution grants solely to Congress. Oliver Wendell Holmes would agree - read his excellent dissent in the infamous Lochner case. When talking about Legal Realism, Holmes was talking more about common law cases, not Constitutional law cases.
In a comment above I recommend books by Professor Akhil Reed Amar who makes the case that originalism works better for progressives as well as conservatives.
BTW - Thomas and Alito are not originalists. They are legal realists who decide on the result they want first and they justify it with language that looks originalist.
Thank you for steering me (us) to Amar's work, F&H. It looks very interesting (as does Amar).
I think your objection concerning the reach of the Legal Realism is correct; on reflection, I'm only familiar with the concern of self-styled Legal Realists of the New Deal era with its application to commercial law. In the case of Originalists, I probably should have referred to them as "Originalists." You are certainly correct that Thomas and Alito are distortions of any model of what originalism would look like in theory. I would not, however, call them Legal Realists because the essential nature of legal realism, which was so heavily influenced by American Pragmatism, was that it did not use the cover of conveniently re-imagined authority to justify its arguments. (By the way, my understanding is not that Holmes considered himself a Legal Realist, but that the school of thought drew heavily on a view of his jurisprudential approach.)
Personally, I believe that in most cases pragmatic application is inescapable. Our historical context is so dramatically different from that of the eighteenth century that no matter which way a justice leans politically it requires acts of imagination to capture the relevance and application of the Constitution in any case complex enough to warrant Supreme Court review. I believe that relativist statement is an objective fact (note that "I believe"), and will always be true moving forward. The difference between a pragmatic view of the Court's role and an Originalist view seems to me pretty much the difference between intellectual honesty and dishonesty, although there may always be cases where a justice (or their clerks) cite offer insightful readings of the Constitution and surrounding documents that reflect responsible legal scholarship. Your "restrained originalism" may not be far from what I mean by "legal realism."
I can only agree that it's better to use legislation and the amendment process in consequential cases. However, legislation is subject to Court reversal and the amendment process, except for trivial purposes, has not been practicable for a half century. I think the Court will be acting like latter day Founders for a long time, unless we devolve to something worse.
Courts that reverse legislation based on their personal preferences instead of the original public meaning of the constitution should be impeached and removed. I am in favor of an amendment to lower the removal threshold from 2/3 of the Senate to a simple majority. This will not only make courts more cautious about overstepping their authority than they have been for the past 175 years, but will make presidents more cautious as well. The Founders intended Congress to be the dominant branch, but the President and the Judiciary have usurped a lot of Congress's power. This will give Congress the tools to claw it back.
I think we should pass a constitutional amendment to make constitutional amendments more easy. I would drop the congressional ratification from 2/3 to simple majority but still require 3/4 of states to pass by simple majority. I would also require a constitutional convention to be automatically held every 20 years.
That said, the amendment process "has not been practicable for a half century" because after the Roe decision in 1972, social activists found it is far, far easier and least costly to convince 5 people in black robes to make your policy preferences into constitutional law by judicial fiat than to convince 2/3s of congress and 3/4 of state legislatures to do the same. Hopefully this super easy and cheap way of changing the Constitution is closed forever. Social activists are going to have to really work hard and diligently for years to achieve their goals. The suffragettes took almost a century of effort before the 19th amendment was passed. This is good. Major social change should not be done unless there is solid support for it or there will be backlash.
I'm not sure these ideas are promising, F&H, or even, at points, coherent. Here are some initial thoughts.
Lowering the Senate threshold for conviction and removal would allow an extremist party (MAGA would be an example) to sweep the Court clear of diverse viewpoints once it achieves narrow majorities in both Houses. Given gerrymandering and the implicit inequities of Senate representation this move to Congressional priority would, I think, introduce a far more socially and politically destabilizing element than the abuse of judicial bias. Moreover, if you are concerned that social advocacy in court appointments is too easy a way to effect change, then the removal by majority standard would only create an easier route. (The history of Roe v Wade seems to me to indicate the difficulty, rather than the ease, of achieving a reversal of Court ruling by activist advocacy.)
I would not support mandated periodic constitutional conventions because there would be no political common ground to ensure that successor constitutions would represent viable frameworks. The conditions of the 1787 convention were exceptional in the like-mindedness of the participants as a result of the war's outcome and the generally recognized inadequacy of the initial confederacy framework, and this created conditions that permitted compromise. Sharp differences in outlook were not associated with partisanship because there were no organized parties and the educational sophistication of the leading framers was exceptionally high. The result was a blueprint that was in most respects sufficient, one that became a global model in many respects.
Partisanship has created an entirely different set of incentives and the social communication environment has greatly enhanced the leverage of simplistic extremism. So long as there is a standoff between the extremes and the 3/4 state-ratification was in place conventions might prove to be only futile exercises. But if political conditions (or electoral manipulation) were sufficient, a partisan extremist result could allow ratification of an entirely new and untested framework with a very large percentage of the general population opposed. In the 2024 election, Trump won 62% of the states with <50% of the vote, and was over 45% in 74% of the states. It would not take a great deal of change to create a 55/45 split in the country that would allow a 75/25 split in state legislatures (I recognize that state legislatures are a different animal from state popular votes, but they do move in tandem). A new constitution that was opposed by 45% of the population would be a governing framework without a hint of enduring authority, and it would, moreover, require an entirely different type of jurisprudence to responsibly enforce in reviewing legislation.
As I said, these are first thoughts. If we were talking over coffee with access to relevant print/online resources we might go several rounds productively and then rethink everything after a week's time (rinse and repeat). But I worry that if we try to go too deep in this online format we'll just dig a rabbit hole and forfeit a lot of time we could use by being out enjoying spring weather (which at the moment here means high winds and rain, but . . .). My sense is that you've thought more about this than I so I'd like to give you the final word.
Busy with work so don't have much time lately, but here is a quick final word:
You have a point about that simple majority impeachment removal for the judicial branch may not be wise. While not perfect, the federal judiciary has has resisted Trump's authoritarian take over attempt fairly well. With simple majority impeachment removal, the current toady for Trump Congress would have removed the entire judiciary except for Thomas and Alito.
A lot of people are afraid of Article V conventions, but I am not. Even if there is a runaway convention and they propose crazy ideas, three quarters of the states are not likely to ratify. The convention of 1787 got away with a Constitution probably only had the positive support of only about 1/3 of "We the People." There was enough reluctant support to ratify because the Articles of Confederation had led to a crisis and there was no time to try again.
Another factor that causes fear of Article V conventions is that the Constitution does not provide rules on how they would work and does not authorize congress to make rules for them. So they presumable would make their own rules like 1789. Amending Constitution to authorize congress to do so may reassure people.
As far as a requirement for an Article V convention every twenty years, I think most of the time they will not propose anything that can get ratified or anything at all.
I do worry, though, that... well. it *does* sorta seem like the legislature has become incapable of fulfilling its constitution-granted duties and obligations. If we want to counter this new postliberal political doctrine, we need an actual solution to this problem.
The Constitution already has a mechanism for emergency powers - the president can usurp the powers needed if he thinks is it warranted and Congress can then impeach and remove him if they think it was not. The DOJ then prosecutes the former president for any crimes committed. If the president won't usurp emergency powers because he is uncertain that Congress will ratify his decision and forgo impeachment and trial, then it is probably not that much of an emergency.
To make presidents more cautious about usurping powers, we should amend the Constitution so that the removal threshold is lowered from 2/3s of the Senate to a simple majority. If the removal threshold was a simple majority then Trump would have been removed in 2021 and we would have been spared the crisis we are in now. Trump was more cautious in his first term because he was uncertain that he could survive a 2/3 removal vote. Now he knows there is not the votes for that so he is restrained only by "My own morality. My own mind. It's the only thing that can stop me."
If the impeachment removal threshold was only a simple majority, President Andrew Johnson would have been removed, Congress would likely have gotten its way on Reconstruction and we may have avoided the Jim Crow era and the civil rights era may have arrived a century earlier.
The one worry with impeachment by simple majority is that it could too easily be abused - would the 2010 election have produced a House and Senate that would pretextually impeach Obama and Biden to replace them with Paul Ryan? Would the 2006 election have produced a House and Senate that would have impeached Bush and Cheney to produce President Pelosi?
I don't mean to dismiss your point, F&H, but when you include "any other parliamentary democracy" and say, "Not such a bad fate," I think you're not thinking about the full range of parliamentary democracies (which would include, for example, the Weimar Republic).
I was arguing that if our system devolved into a parliamentary democracy that would not be so bad. I was not arguing that parliamentary democracies are immune to an authoritarian take over. Probably less vulnerable, but no democracy is immune.
BTW - The Weimar Republic was a parliamentary democracy from 1919 until 1930. President Hindenburg invoked article 48 of the weimar constitution which granted the president emergency powers to govern by decree with the approval of the chancellor that the President appointed. Parliamentary democracy effectively ended in 1930, not in 1933 when Hitler became chancellor.
Thanks for this excellent work of intellectual garbage collection
An excellent article and important exercise in these illiberal times. Reading this series helps me connect data points that previously seemed to exist in separate alternate realities, let alone on different planes. It strikes me as impossible that my conservative grandmother could simultaneously claim to venerate the founding fathers while belonging to a political movement treats Madisonian separation of powers with outright contempt. Given that she married someone whose parents died in the holocaust, it is similarly galling that she would support a philosophy that originated with Carl Schmitt. Such are the times we live in I guess.
It's remarkable how much of postliberalism horseshoes into leftism:
-Claims that there's no such thing as neutral rules, therefore it's acceptable to ignore them and openly act solely in the interest of your favored groups.
-Holds that people are members of collectives first and individuals second.
-Economics is fake and was invented to turn the people against them, which is why their populist movement is inexplicably unpopular.
-Deflects criticism by demanding that all comment come from people who have read a vast and vaguely-defined body literature.
-Frequently blames the Koch brothers for things.
https://chicagounbound.uchicago.edu/journal_articles/10391/
Unrelated, would be interesting to see a full-throated defense of originalism as a form of liberalism. People would love that
For a defense of originalism as a form of liberalism, read any book by Professor Akhil Reed Amar. I recommend: Born Equal: Remaking America's Constitution, 1840–1920 published 2026
Professor Amar makes the case that Lincoln was the greatest originalist Constitutional scholar who used his originalist skills to make the case against slavery.
If you get the audio book version, the introduction is narrated by comedian John Mulaney who is a big Constitutional law fan and sometimes sits in on SCOTUS oral arguments.
I'm a bit more partial to the Baude/Sachs stuff myself, particularly "Is Originalism Our Law" and "Originalism and the Law of the Past"
Considering the most thoughtful and committed originalist to ever serve on the Supreme Court is Ketanji Brown Jackson, I think one can make a solid case for that.
I was wondering where you would ever have gotten this take and then I googled it and apparently there's a huge amount of progressive stuff (Slate, Constitutional Accountability Center) pushing this. TIL!
Read her opinions! She writes more like an actual historian than any of the conservative cherry-pickers.
I think KBJ is a good originalist but the most thoughtful and committed? I would genuinely like to see a case made for that. Kagan is a pretty good originalist too!
The short version is that the conservative legal movement does “originalism” as _lawyers_, picking and choosing bits of history to suit their current argument. KBJ does originalism like a _historian_, seriously trying to get the big picture.
Thanks to Mr. Magness for this post. It's very clarifying. On first reading I'm spotting two root themes: (1) The post 9/11 exploitation of the "state of exception," which gives the Executive exclusive powers to be deployed at times of its own choosing; (2) The targeting of Lockean individualism as a fatal flaw in the American founding framework.
I think it's crucial to recognize that both these illiberal themes are facially cogent and reasonable. It is not hard to imagine a "state of exception" so dire that citizens would overwhelmingly approve an unconstitutional exercise of power when there was no realistic alternative for preserving the State. And Locke's portrait of the person is indeed incomplete in essential ways, as the communitarian implications of modern social science have amply demonstrated and as the Founders themselves would have granted, given the social and religious experiences common in the 18th century.
Philosophically speaking, the 20th century American response to these defects in Constitutionalism (if "defects" they are -- better to call them "limits") was to approach them in the spirit of American Pragmatism, acknowledging that there can be no perfect and frozen blueprint for human government, but that a robust and generally successful framework can be protected from its defects through conservative concessions to the need to respond to constantly emerging stresses presented by a changing world. Those concessions would be enshrined with close to Constitutional force as legal precedents, ultimately (if necessary) set by and overturnable by Supreme Courts. This approach was, for a time, recognized as "Legal Realism," and (if I recall) was inspired by both the philosophy of John Dewey and the jurisprudence of Oliver Wendell Holmes Jr.
We are getting a very clear lesson today in the defects of the Schmittian approach of Vermeule's legal theories -- so far, our only blessing is that the sickness of our Chief Executive is largely expressed through personal whim on the scale of Mussolini, rather than of Hitler, but the door has been opened for an unlimited and ongoing descent. As for the communitarian emergencies that Deneen identifies (which have been amply documented by sociologists such as Robert Putnam Anne Case, Angus Deaton, Jonathan Haidt, and many others), these do not seem to me to be the products of the limits of our Lockean Constitution at all -- the communitarian structure of American life flourished side by side with legal individualism for two centuries. They are products of increasingly rapid social and technological change in a capitalist system and need to be addressed through personal, community, local, and larger governmental policies within the framework of a Constitution that protects our ability to figure out these issues organically, rather than by fiat from an Executive, which could (just to offer a hypothetical) be composed of venomous sociopathic fools.
Late edit to an overlong post: I should have prolonged this by saying that I think the "beauty" of Originalism for illiberal post-Constitutionalism, is that if you adopt the theory you can demonstrate the inadequacy of the Constitution and promote its effective overthrow. That's why seeding the Supreme Court with Originalists and then bringing cases to it to overthrow pragmatic precedents has been effective in transforming America into a dysfunctional State.
Re: " That's why seeding the Supreme Court with Originalists and then bringing cases to it to overthrow pragmatic precedents has been effective in transforming America into a dysfunctional State."
I think the pragmatic precedents on Constitutional issues are what has made the court dysfunctional. It just leads to all sorts of political shenanigans as both parties use all means fair and foul to pack the court with justices that will make the pragmatic decisions that their party wants. Before progressives availed themselves of this "pragmatic" style of jurisprudence to make progressive adjustments in the law, conservative justices used it in the 19th century and early 20th to give us the Dred Scott case and to strike down one piece of progressive legislation after another, find that corporations have the same rights as natural persons, etc.
A better way is to put restrained originalists on the court and if the law needs changing, the use the legislative process or the constitutional amendment process. Changes to the law this way have more democratic legitimacy and have proven more durable (e.g. 14th amendment, 19th amendment and the Civil Rights Act of 1964).
Justices just making new law according to their personal policy preferences are usurping the legislative power that the Constitution grants solely to Congress. Oliver Wendell Holmes would agree - read his excellent dissent in the infamous Lochner case. When talking about Legal Realism, Holmes was talking more about common law cases, not Constitutional law cases.
In a comment above I recommend books by Professor Akhil Reed Amar who makes the case that originalism works better for progressives as well as conservatives.
BTW - Thomas and Alito are not originalists. They are legal realists who decide on the result they want first and they justify it with language that looks originalist.
Thank you for steering me (us) to Amar's work, F&H. It looks very interesting (as does Amar).
I think your objection concerning the reach of the Legal Realism is correct; on reflection, I'm only familiar with the concern of self-styled Legal Realists of the New Deal era with its application to commercial law. In the case of Originalists, I probably should have referred to them as "Originalists." You are certainly correct that Thomas and Alito are distortions of any model of what originalism would look like in theory. I would not, however, call them Legal Realists because the essential nature of legal realism, which was so heavily influenced by American Pragmatism, was that it did not use the cover of conveniently re-imagined authority to justify its arguments. (By the way, my understanding is not that Holmes considered himself a Legal Realist, but that the school of thought drew heavily on a view of his jurisprudential approach.)
Personally, I believe that in most cases pragmatic application is inescapable. Our historical context is so dramatically different from that of the eighteenth century that no matter which way a justice leans politically it requires acts of imagination to capture the relevance and application of the Constitution in any case complex enough to warrant Supreme Court review. I believe that relativist statement is an objective fact (note that "I believe"), and will always be true moving forward. The difference between a pragmatic view of the Court's role and an Originalist view seems to me pretty much the difference between intellectual honesty and dishonesty, although there may always be cases where a justice (or their clerks) cite offer insightful readings of the Constitution and surrounding documents that reflect responsible legal scholarship. Your "restrained originalism" may not be far from what I mean by "legal realism."
I can only agree that it's better to use legislation and the amendment process in consequential cases. However, legislation is subject to Court reversal and the amendment process, except for trivial purposes, has not been practicable for a half century. I think the Court will be acting like latter day Founders for a long time, unless we devolve to something worse.
Courts that reverse legislation based on their personal preferences instead of the original public meaning of the constitution should be impeached and removed. I am in favor of an amendment to lower the removal threshold from 2/3 of the Senate to a simple majority. This will not only make courts more cautious about overstepping their authority than they have been for the past 175 years, but will make presidents more cautious as well. The Founders intended Congress to be the dominant branch, but the President and the Judiciary have usurped a lot of Congress's power. This will give Congress the tools to claw it back.
I think we should pass a constitutional amendment to make constitutional amendments more easy. I would drop the congressional ratification from 2/3 to simple majority but still require 3/4 of states to pass by simple majority. I would also require a constitutional convention to be automatically held every 20 years.
That said, the amendment process "has not been practicable for a half century" because after the Roe decision in 1972, social activists found it is far, far easier and least costly to convince 5 people in black robes to make your policy preferences into constitutional law by judicial fiat than to convince 2/3s of congress and 3/4 of state legislatures to do the same. Hopefully this super easy and cheap way of changing the Constitution is closed forever. Social activists are going to have to really work hard and diligently for years to achieve their goals. The suffragettes took almost a century of effort before the 19th amendment was passed. This is good. Major social change should not be done unless there is solid support for it or there will be backlash.
I'm not sure these ideas are promising, F&H, or even, at points, coherent. Here are some initial thoughts.
Lowering the Senate threshold for conviction and removal would allow an extremist party (MAGA would be an example) to sweep the Court clear of diverse viewpoints once it achieves narrow majorities in both Houses. Given gerrymandering and the implicit inequities of Senate representation this move to Congressional priority would, I think, introduce a far more socially and politically destabilizing element than the abuse of judicial bias. Moreover, if you are concerned that social advocacy in court appointments is too easy a way to effect change, then the removal by majority standard would only create an easier route. (The history of Roe v Wade seems to me to indicate the difficulty, rather than the ease, of achieving a reversal of Court ruling by activist advocacy.)
I would not support mandated periodic constitutional conventions because there would be no political common ground to ensure that successor constitutions would represent viable frameworks. The conditions of the 1787 convention were exceptional in the like-mindedness of the participants as a result of the war's outcome and the generally recognized inadequacy of the initial confederacy framework, and this created conditions that permitted compromise. Sharp differences in outlook were not associated with partisanship because there were no organized parties and the educational sophistication of the leading framers was exceptionally high. The result was a blueprint that was in most respects sufficient, one that became a global model in many respects.
Partisanship has created an entirely different set of incentives and the social communication environment has greatly enhanced the leverage of simplistic extremism. So long as there is a standoff between the extremes and the 3/4 state-ratification was in place conventions might prove to be only futile exercises. But if political conditions (or electoral manipulation) were sufficient, a partisan extremist result could allow ratification of an entirely new and untested framework with a very large percentage of the general population opposed. In the 2024 election, Trump won 62% of the states with <50% of the vote, and was over 45% in 74% of the states. It would not take a great deal of change to create a 55/45 split in the country that would allow a 75/25 split in state legislatures (I recognize that state legislatures are a different animal from state popular votes, but they do move in tandem). A new constitution that was opposed by 45% of the population would be a governing framework without a hint of enduring authority, and it would, moreover, require an entirely different type of jurisprudence to responsibly enforce in reviewing legislation.
As I said, these are first thoughts. If we were talking over coffee with access to relevant print/online resources we might go several rounds productively and then rethink everything after a week's time (rinse and repeat). But I worry that if we try to go too deep in this online format we'll just dig a rabbit hole and forfeit a lot of time we could use by being out enjoying spring weather (which at the moment here means high winds and rain, but . . .). My sense is that you've thought more about this than I so I'd like to give you the final word.
Busy with work so don't have much time lately, but here is a quick final word:
You have a point about that simple majority impeachment removal for the judicial branch may not be wise. While not perfect, the federal judiciary has has resisted Trump's authoritarian take over attempt fairly well. With simple majority impeachment removal, the current toady for Trump Congress would have removed the entire judiciary except for Thomas and Alito.
A lot of people are afraid of Article V conventions, but I am not. Even if there is a runaway convention and they propose crazy ideas, three quarters of the states are not likely to ratify. The convention of 1787 got away with a Constitution probably only had the positive support of only about 1/3 of "We the People." There was enough reluctant support to ratify because the Articles of Confederation had led to a crisis and there was no time to try again.
Another factor that causes fear of Article V conventions is that the Constitution does not provide rules on how they would work and does not authorize congress to make rules for them. So they presumable would make their own rules like 1789. Amending Constitution to authorize congress to do so may reassure people.
As far as a requirement for an Article V convention every twenty years, I think most of the time they will not propose anything that can get ratified or anything at all.
This is a really important piece.
I do worry, though, that... well. it *does* sorta seem like the legislature has become incapable of fulfilling its constitution-granted duties and obligations. If we want to counter this new postliberal political doctrine, we need an actual solution to this problem.
The Constitution already has a mechanism for emergency powers - the president can usurp the powers needed if he thinks is it warranted and Congress can then impeach and remove him if they think it was not. The DOJ then prosecutes the former president for any crimes committed. If the president won't usurp emergency powers because he is uncertain that Congress will ratify his decision and forgo impeachment and trial, then it is probably not that much of an emergency.
To make presidents more cautious about usurping powers, we should amend the Constitution so that the removal threshold is lowered from 2/3s of the Senate to a simple majority. If the removal threshold was a simple majority then Trump would have been removed in 2021 and we would have been spared the crisis we are in now. Trump was more cautious in his first term because he was uncertain that he could survive a 2/3 removal vote. Now he knows there is not the votes for that so he is restrained only by "My own morality. My own mind. It's the only thing that can stop me."
If the impeachment removal threshold was only a simple majority, President Andrew Johnson would have been removed, Congress would likely have gotten its way on Reconstruction and we may have avoided the Jim Crow era and the civil rights era may have arrived a century earlier.
The one worry with impeachment by simple majority is that it could too easily be abused - would the 2010 election have produced a House and Senate that would pretextually impeach Obama and Biden to replace them with Paul Ryan? Would the 2006 election have produced a House and Senate that would have impeached Bush and Cheney to produce President Pelosi?
When caught between the Scylla and Charybdis, steer away from the greater danger even if it means getting closer to the lesser danger.
This would just mean that the US would be like the UK or any other parliamentary democracy. Not such a bad fate.
I don't mean to dismiss your point, F&H, but when you include "any other parliamentary democracy" and say, "Not such a bad fate," I think you're not thinking about the full range of parliamentary democracies (which would include, for example, the Weimar Republic).
I was arguing that if our system devolved into a parliamentary democracy that would not be so bad. I was not arguing that parliamentary democracies are immune to an authoritarian take over. Probably less vulnerable, but no democracy is immune.
BTW - The Weimar Republic was a parliamentary democracy from 1919 until 1930. President Hindenburg invoked article 48 of the weimar constitution which granted the president emergency powers to govern by decree with the approval of the chancellor that the President appointed. Parliamentary democracy effectively ended in 1930, not in 1933 when Hitler became chancellor.
When caught between the Scylla and Charybdis, steer away from the greater danger even if it means getting closer to the lesser danger.