Professor Adrian Vermeule speculates on Lawfare on the results of Trump appointing large numbers of judges, who are approved by a Senate that may no longer take notice of blue slips. His first point:
At the level of large constitutional abstractions, courts will point to the Preamble to the Constitution, observing that it is enacted by and in the name of “the People of the United States,” not anywhere else, and that it aims to promote the “general Welfare, and secure the Blessings of Liberty to ourselves and our posterity.” This will be taken to provide background principles that inform the reading of all other constitutional and statutory texts, and that shape and constrain legislative and executive authority in an indefinite range of areas.
In other words, legal provincialism. While it’s easy to build a visceral case for such readings of the law, these ignore a basic fact of today’s existence – even if maps show us as nearly alone on a very large island, it doesn’t matter anymore – we interact on a moment-to-moment basis with other nations, and we inevitably interface our legal systems with others, sometimes on a friendly basis, sometimes on a hostile basis. Even more importantly, our actions are so magnified by our technology that it is wholly appropriate to ask if our actions in, say, Gary, Indiana, are injuring the inhabitants of Bangladesh – and, if so, require compensation as appropriate. It is not, of course, just to injure a foreign national and then not compensate; down that path lies bitter conflict, even wars, if not necessarily declared.
It’s better to admit the reality on the ground and modify the legal system and realities simply as good policy. To that extent, those new judges of Trump’s selection who disagree with this philosophy may be condemning the United States to armed conflicts of various sorts, assuming they achieve a legal ascendancy – and refuse to learn, change, and grow in their new jobs. That capacity to learn, etc, may be our best hope.
BTW, Adrian, I think, is torn between withering sarcasm and startling fear.
