Primary elections do not confer democratic legitimacy on a party’s presidential nomination process and the absence of primary elections doesn’t invalidate that legitimacy. Otherwise, no presidential nominee for most of American history — not Jefferson, not Lincoln, not Kennedy — could have been regarded as legitimate. Until 1972, political parties never relied on the outcome of primary elections to choose their nominees. Primaries weren’t even invented until the early 20th century, and they were regarded largely as nonbinding “beauty contests” — a way to gauge public sentiment and generate interest but not to displace the role of party leaders in selecting a nominee.
It was only after the 1968 election, when the Democratic Party changed its rules, that primary results were made binding. But that didn’t affect the democratic quality of the parties’ subsequent nominees. Unlike general elections, which are true democratic public contests, a primary election is no more than a party’s private, internal process. Under our system, political parties have no constitutional status and how a party chooses its nominees — through primaries, caucuses, or the consensus of party leaders — is irrelevant. Only when voters choose between nominees does democratic legitimacy come into play.
This letter by Blaine McCormick, in today’s Wall Street Journal, is excellent:
Karl Rove overlooks one of the few positive outcomes for Mr. Trump during the debate (“A Catastrophic Debate for Trump,” op-ed, Sept. 12). Early on, Ms. Harris announced to her audience that “Donald Trump has no plan for you.” It seemed such an important point that she sent out the line on her social media too.
Her proclamation makes voting for Mr. Trump immensely more attractive. I am thankful for any presidential candidate who has no plan for me. The federal government has tried to manage a retirement plan for me, and it is a horrible mess compared to what I could have done on my own with that same money.
I prefer to make as many of my own plans as possible. The fewer people in Washington who have plans for me, the better.
Jennifer Huddleston reports on the “misguided antitrust investigations in AI.” A slice:
American companies were leaders during the internet era, in part due to our country’s light-touch approach to regulation. By allowing entrepreneurs and consumers to determine the best applications for this technology, both success and failure were determined by the market — not government bureaucrats. America’s leading tech companies became global household names.
Here’s the abstract of a new paper by Randy Barnett and GMU Law alum Josh Blackman:
Is there a “crisis” in teaching constitutional law? In our view, there is not. Still, we can empathize. As libertarian-conservative-ish law professors, for years we taught Supreme Court decisions that we disagreed with. We teach constitutional law as a historical narrative that began at the founding and continues to this day. The narrative approach underscores the contingent nature of what at any given time appears to be fixed and unchangeable. The narrative also remains remarkably stable from year to year even as new cases are added. This approach also makes preparing one’s syllabus relatively easy to do each year, regardless of what the Supreme Court may have decided in its most recent term.
The pedagogy we developed was premised on a Supreme Court jurisprudence we largely disagreed with. Indeed, we still disagree with much of this jurisprudence, especially the cases that were decided right before, during, and after Reconstruction. While some of these cases, like Prigg, Dred Scott, and Plessy are now in the anti-canon, others like Slaughter-House, Cruikshank, and the Civil Rights Cases remain good law. This pedagogy worked before 2016 and it will continue to work no matter what happens in the future. We submit that the time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon.
Part I of this essay focuses on our approach to teaching the constitutional canon. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and previews the forthcoming Fifth Edition. We demonstrate that the narrative about the development of the constitutional canon has remained remarkably stable. Even after accounting for the recent terms, our syllabus will be about 90% the same as it was in 2019. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with. For those professors who are pained by the Supreme Court’s current doctrines, our narrative approach provides succor. Such professors can, for example, teach what they believe to be “the good old days” of the Warren and Burger courts in contrast to what now exists. Students can then decide for themselves which era they prefer.
Jack Nicastro is unimpressed with the USPS’s new vehicles.
GMU Econ alum Adam Michel digs into Harris’s and Trump’s proposals for “tax reform.”
Ian Miller tweets: (HT Jay Bhattacharya)
It’s nice to hear some politicians admit lockdowns were a mistake, but it wasn’t just lockdowns — forcing people to wear masks for years when they don’t work was inexcusable. Vaccine passports were an abhorrent anti-science failure. They were many, many mistakes.
