This perfectly connects back to the "Dark Enlightenment" or "Techno-feudal" movement, the cloaked protection of unearned privilege by those who have accomplished nothing on their own and feel "deprived", people whose bullying reveals their deprivation of emotional maturity. Based on our understanding that this is not just another political viewpoint but a degeneration from human progress, we have to muster our deeper values and motivation to correct a culture that is capitulating to bullying, crassness, petulance, and irresponsibility, a protohuman movement that needs to be retired to the dustbin of history.
This isn’t jurisprudence. It’s a hostile takeover in a powdered wig.
Roberts and his robed wrecking crew didn’t interpret the Constitution—they auctioned it. The highest bidders? Heirs of dynasties built on sweat they never shed. The Unitary Executive Theory isn’t originalism. It’s oligarch cosplay. A bedtime story for billionaires who want to dream in unchecked power.
They gutted the New Deal not because it failed but because it worked. It dared to say the public mattered. For that sin, it had to be undone—not by argument, but by architecture. A slow-motion coup disguised in citations and carried out with all the performative solemnity of constitutional kabuki.
Now we are governed by ghosts in velvet chairs, wielding legal fictions like crowbars. And they didn’t kill democracy with tanks. They smothered it in footnotes.
But some of us still remember what justice feels like. And we are not done whispering its name into every courtroom, classroom, and campaign they cannot yet silence.
Blessed be the ones who still feel the tremble when truth knocks.
I read Peter Shane’s piece on Roberts in The Atlantic this morning. At around 0600 with a cup of hot coffee, the birds waking up outside as sunlight peeked over the hill. An excellent read - disappointing (the theme, not Shane’s rigor) but unsurprising. A conservative Catholic upbringing. A meticulous, indefatigable, and gifted student. A clerk for Friendly and Rehnquist. Early member of The Federalist Society where he met kindred jurisprudential spirits like Leonard Leo. A Reagan White House lawyer, then many years of high-priced corporate appellate work for the donor class. A man congenitally enamored with and deferential to power, authority, order, and control was bound to be no advocate of an expansively interpreted Constitution (or even a literal understanding), no advocate for liberalism or the messy inclusivity required in a representative democracy. I can imagine young Roberts and Leo conversing in hushed tones at a Federalist Society social event decades ago, letting the phrase “unitary executive theory” roll languorously off their tongues, philosophically and ideologically in sync on how to remake an America that they absolutely knew with infallible certainty had gone astray, had devolved into an immoral chaos from too many clamoring voices longing to be heard, too many needs struggling to be met. As they sipped cocktails late into the evening, ideas were shared, a plan devised. Their project to remake the federal judiciary, to rewrite and wrangle away the Constitution from its historical and established meanings, was born...
But many, more observant than I, knew he was hiding something all these decades, was keeping a secret in deceit. Not only because they had followed his career, his writings and associations. But because they had also simply read his face and well knew this admonition: “Beware the man with a closed-lip smile…”
Given the corruption of the current court & the overturning of previous rulings, is it possible for new lawsuits challenging the “oligarchy” rulings to be filed & sent up the legal chain to a new SCOTUS and be overturned?
I think much of this gets back to a flaw in the US Constitution itself; I personally think it is a fatal flaw and the death has simply been very, very slow.
When the 1787 convention wrote the current Constitution of the United States to replace the unworkable Articles of Confederation, they had certain important insights. Entrenched federalism, for instance, has inspired governmental systems the world over and, when respected, operates as a check on tyranny.
But what they did not have is the benefit of later constitutional development elsewhere, and other advances in related fields like social choice theory, and in particular the development of parliamentary systems during partisan combat in the 19th century. The Framers in the US assumed that political parties would not arise, and so their system did not provide any means of checking their power. But even this is not what I feel to be the true flaw of the US Constitution.
The insight of parliamentary models, and in particular parliamentary constitutional monarchy, is this: that there must be a roughly inverse relationship between de jure power and democratic legitimacy, and a roughly inverse relationship between de facto power and permanence in office.
We can see this in a modern monarchical system. (To make my biases clear: I am a monarchist, in that I believe parliamentary constitutional monarchy to be the best system of government yet devised. I consider old autocratic and feudal models of monarchy to be abhorrent, and Curtis Yarvin's nattering about "King Franklin" to be idiotic and nonsensical.) The relationship is not perfect, but we can see it still. The monarch, de jure, holds essentially absolute power, but has no democratic legitimacy with which to wield said power, and so does not. (The writers of the US Declaration of Independence were quite right to complain about the King's vetoing colonial legislation, the more so because monarchs hadn't been doing that in the UK for decades!) Parliament has more legitimacy, particularly the lower house, but, legally, only advises the monarch on how to exercise legislative authority. The executive and the judiciary have even less democratic legitimacy (being, functionally, selected by Parliament and appointed by the executive respectively) but still only advise the monarch on exercises of authority and only within the confines of legislative enactments.
Now let us consider the other. The monarch is permanently in office; there is no mechanism to remove him except by voluntary resignation or death. (The former is relatively commonplace in continental European monarchies; the one time it happened in the UK it sparked a Constitutional crisis.) But the monarch's de facto powers are essentially nil. (That is not to say that the monarch does not exercise influence behind the scenes; Elizabeth II was a close foreign policy advisor to many Prime Ministers and also pushed the Scottish Parliament into exempting the Crown from certain environmental regulations.) Upper and lower houses of Parliament are more or less equal on paper (though when the upper house is appointed in some way it typically lacks the authority to originate financial legislation) but the upper house tends to wield less de facto power than the lower, especially when appointments to the upper house are potentially decades long. The executive wields tremendous de facto power (since the confidence mechanism typically means that it can enact whatever laws it pleases) but can be removed from office by a simple majority vote of the lower house (via that same confidence mechanism). The judiciary, as Hamilton noted in Federalist 78, "on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." Even then, while its de facto role has grown, judges can still be removed by a simple majority vote of Parliament. The individual elected legislator, meanwhile, has some amount of permanence in office, but is only one vote of hundreds.
Consider how the US system inverts much of this. The President has substantial de jure and de facto authority, the more so under the "unitary executive" theory, but while the democratic legitimacy of the President is somewhat removed (but he still has some, derived from state legislatures) his permanence in office is significant. (This was likely not what the Framers intended! Benjamin Franklin reportedly said that the standard for removing a President should be upon his having "rendered himself obnoxious", a far step down from "high Crimes and Misdemeanours". And in the Constitutional Convention we have this: "Mr. MADISON thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.")
Senators have more permanence in office than Representatives. It used to be the case that they had less democratic legitimacy, but this was gutted with the 17th Amendment (and developments prior to that enactment). But the Senate arguably enjoys more power than the House. On the one hand, while on paper only the House can originate money bills, the Senate has an unlimited power of amendment which of late they have not been shy about using. (As I recall, the House's version of Affordable Care Act was essentially rejected by the Senate, which proceeded to propose its own version by taking a small spending measure on some minor matter pending before it and tacking on a few thousand pages. When the Senate did not enjoy the House's democratic legitimacy, the Framers thought that they would be too embarrassed to make more than minor modifications to spending legislation.) Meanwhile, the power which the Senate was supposed to hold to counterbalance the House's power over money bills, that of assenting, or not, to executive appointments, is not something where the House has any say (with the exception of appointing a Vice President to fill a vacancy per the 25th Amendment, passed after the 17th). So the Senate can frustrate what is supposed to be the House's primary prerogative (spending and taxation) but the House cannot frustrate the Senate's (appointments).
Judges also have significant permanence in office even as the judiciary has come to exercise ever more de facto power, and with both the judiciary and the executive, the legislature has been reluctant at best to exercise its oversight authority, especially removal. I do not think it is an unreasonable argument that the intent of the Framers would be that the legislature would be willing to remove executive officers and judges over even a perceived lack of adherence to the law, or personal unfitness, or what have you, but the legislature has simply not done this. They've tended to treat impeachment as a criminal matter with the standard of "beyond a reasonable doubt" when it may arguably be that the intended standard was not even "balance of probabilities" but maybe even just "probable cause" or "reasonable suspicion". This has only been exacerbated as more positions have moved to popular election, with legislators being concerned about The People getting angry at them for denying them their choice of who should serve in those roles, particularly the Presidency. (Any civics education that does not explain how passive suffrage is the more fundamental right than active suffrage, in that the latter is inherently limited by the former, is incomplete at best; instead civics as far as suffrage goes is often taught as "you have the right to vote" without any explanation of how that right is limited by restrictions on who you can vote for because of restrictions on who can serve in office, and therefore who can meaningfully run for office in the first place. You can see this in some of the amicus briefs in Trump v. Anderson that can be read as, in my view, "it shouldn't matter if Trump is ineligible to be President; if we can't vote for him we are disenfranchised", which misunderstands the right to vote because you only have a right to vote for people who can serve in office in the first place and every adjudicative body which reached the merits of Trump's eligibility concluded that he was not eligible on account of engaging in insurrection.)
All of this is further exacerbated by partisan politics, which the US Framers did not anticipate (and further thought that nobody would be stupid enough to do), but which every polity other than the very smallest shows us is inevitable. There was an assumption that people in government would be more loyal to their piece of the governance structure than to any ideological faction, but this too has been inverted. The conventions that govern a parliamentary system, meanwhile, evolved around partisan politics and thus inherently serve to corral it somewhat productively.
Instead, through a mix of creative interpretation and treating the current status quo as if it were somehow mandatory (South Carolina's legislature chose its Presidential electors directly right up until about the Civil War, as I recall, putting paid to any claims about the President being directly chosen by the people--never mind the later failures of Samuel Tilden, Grover Cleveland, Al Gore and Hillary Clinton to be elected, in Cleveland's case the second time he ran) the US system has somehow managed to be perverted both from its original design and even further than that design from the proper relationship between power, permanence and legitimacy, through a mix of legislative cowardice and other developments which we now know were inevitable but were not anticipated. (Arguably Bill Clinton should have been removed over the Lewinsky scandal; George W. Bush over the WMD lies about Iraq; Barack Obama over the ACA employer mandate implementation delays and also DAPA and DACA; Donald Trump the first time around over his refusal to divest from his DC hotel; and Joe Biden, if nothing else, over his clear cognitive decline. I have no doubt one could find other examples for all of these, and yet more from previous Presidencies. Perhaps the only time Congress has functioned at all properly in this regard is with the Nixon scandals, once Republican legislators got on board with impeaching and removing him, but even that was only because the electorate was sufficiently energised about the matter to prefer partisan defection over partisan loyalty.)
This perfectly connects back to the "Dark Enlightenment" or "Techno-feudal" movement, the cloaked protection of unearned privilege by those who have accomplished nothing on their own and feel "deprived", people whose bullying reveals their deprivation of emotional maturity. Based on our understanding that this is not just another political viewpoint but a degeneration from human progress, we have to muster our deeper values and motivation to correct a culture that is capitulating to bullying, crassness, petulance, and irresponsibility, a protohuman movement that needs to be retired to the dustbin of history.
This isn’t jurisprudence. It’s a hostile takeover in a powdered wig.
Roberts and his robed wrecking crew didn’t interpret the Constitution—they auctioned it. The highest bidders? Heirs of dynasties built on sweat they never shed. The Unitary Executive Theory isn’t originalism. It’s oligarch cosplay. A bedtime story for billionaires who want to dream in unchecked power.
They gutted the New Deal not because it failed but because it worked. It dared to say the public mattered. For that sin, it had to be undone—not by argument, but by architecture. A slow-motion coup disguised in citations and carried out with all the performative solemnity of constitutional kabuki.
Now we are governed by ghosts in velvet chairs, wielding legal fictions like crowbars. And they didn’t kill democracy with tanks. They smothered it in footnotes.
But some of us still remember what justice feels like. And we are not done whispering its name into every courtroom, classroom, and campaign they cannot yet silence.
Blessed be the ones who still feel the tremble when truth knocks.
https://substack.com/@calbeau/note/c-137477919?r=1pkk6n&utm_medium=ios&utm_source=notes-share-action
I read Peter Shane’s piece on Roberts in The Atlantic this morning. At around 0600 with a cup of hot coffee, the birds waking up outside as sunlight peeked over the hill. An excellent read - disappointing (the theme, not Shane’s rigor) but unsurprising. A conservative Catholic upbringing. A meticulous, indefatigable, and gifted student. A clerk for Friendly and Rehnquist. Early member of The Federalist Society where he met kindred jurisprudential spirits like Leonard Leo. A Reagan White House lawyer, then many years of high-priced corporate appellate work for the donor class. A man congenitally enamored with and deferential to power, authority, order, and control was bound to be no advocate of an expansively interpreted Constitution (or even a literal understanding), no advocate for liberalism or the messy inclusivity required in a representative democracy. I can imagine young Roberts and Leo conversing in hushed tones at a Federalist Society social event decades ago, letting the phrase “unitary executive theory” roll languorously off their tongues, philosophically and ideologically in sync on how to remake an America that they absolutely knew with infallible certainty had gone astray, had devolved into an immoral chaos from too many clamoring voices longing to be heard, too many needs struggling to be met. As they sipped cocktails late into the evening, ideas were shared, a plan devised. Their project to remake the federal judiciary, to rewrite and wrangle away the Constitution from its historical and established meanings, was born...
But many, more observant than I, knew he was hiding something all these decades, was keeping a secret in deceit. Not only because they had followed his career, his writings and associations. But because they had also simply read his face and well knew this admonition: “Beware the man with a closed-lip smile…”
Given the corruption of the current court & the overturning of previous rulings, is it possible for new lawsuits challenging the “oligarchy” rulings to be filed & sent up the legal chain to a new SCOTUS and be overturned?
Lawless by Leah litman is a fantastic book that explains how they did it. Highly recommend
I think much of this gets back to a flaw in the US Constitution itself; I personally think it is a fatal flaw and the death has simply been very, very slow.
When the 1787 convention wrote the current Constitution of the United States to replace the unworkable Articles of Confederation, they had certain important insights. Entrenched federalism, for instance, has inspired governmental systems the world over and, when respected, operates as a check on tyranny.
But what they did not have is the benefit of later constitutional development elsewhere, and other advances in related fields like social choice theory, and in particular the development of parliamentary systems during partisan combat in the 19th century. The Framers in the US assumed that political parties would not arise, and so their system did not provide any means of checking their power. But even this is not what I feel to be the true flaw of the US Constitution.
The insight of parliamentary models, and in particular parliamentary constitutional monarchy, is this: that there must be a roughly inverse relationship between de jure power and democratic legitimacy, and a roughly inverse relationship between de facto power and permanence in office.
We can see this in a modern monarchical system. (To make my biases clear: I am a monarchist, in that I believe parliamentary constitutional monarchy to be the best system of government yet devised. I consider old autocratic and feudal models of monarchy to be abhorrent, and Curtis Yarvin's nattering about "King Franklin" to be idiotic and nonsensical.) The relationship is not perfect, but we can see it still. The monarch, de jure, holds essentially absolute power, but has no democratic legitimacy with which to wield said power, and so does not. (The writers of the US Declaration of Independence were quite right to complain about the King's vetoing colonial legislation, the more so because monarchs hadn't been doing that in the UK for decades!) Parliament has more legitimacy, particularly the lower house, but, legally, only advises the monarch on how to exercise legislative authority. The executive and the judiciary have even less democratic legitimacy (being, functionally, selected by Parliament and appointed by the executive respectively) but still only advise the monarch on exercises of authority and only within the confines of legislative enactments.
Now let us consider the other. The monarch is permanently in office; there is no mechanism to remove him except by voluntary resignation or death. (The former is relatively commonplace in continental European monarchies; the one time it happened in the UK it sparked a Constitutional crisis.) But the monarch's de facto powers are essentially nil. (That is not to say that the monarch does not exercise influence behind the scenes; Elizabeth II was a close foreign policy advisor to many Prime Ministers and also pushed the Scottish Parliament into exempting the Crown from certain environmental regulations.) Upper and lower houses of Parliament are more or less equal on paper (though when the upper house is appointed in some way it typically lacks the authority to originate financial legislation) but the upper house tends to wield less de facto power than the lower, especially when appointments to the upper house are potentially decades long. The executive wields tremendous de facto power (since the confidence mechanism typically means that it can enact whatever laws it pleases) but can be removed from office by a simple majority vote of the lower house (via that same confidence mechanism). The judiciary, as Hamilton noted in Federalist 78, "on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." Even then, while its de facto role has grown, judges can still be removed by a simple majority vote of Parliament. The individual elected legislator, meanwhile, has some amount of permanence in office, but is only one vote of hundreds.
Consider how the US system inverts much of this. The President has substantial de jure and de facto authority, the more so under the "unitary executive" theory, but while the democratic legitimacy of the President is somewhat removed (but he still has some, derived from state legislatures) his permanence in office is significant. (This was likely not what the Framers intended! Benjamin Franklin reportedly said that the standard for removing a President should be upon his having "rendered himself obnoxious", a far step down from "high Crimes and Misdemeanours". And in the Constitutional Convention we have this: "Mr. MADISON thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.")
Senators have more permanence in office than Representatives. It used to be the case that they had less democratic legitimacy, but this was gutted with the 17th Amendment (and developments prior to that enactment). But the Senate arguably enjoys more power than the House. On the one hand, while on paper only the House can originate money bills, the Senate has an unlimited power of amendment which of late they have not been shy about using. (As I recall, the House's version of Affordable Care Act was essentially rejected by the Senate, which proceeded to propose its own version by taking a small spending measure on some minor matter pending before it and tacking on a few thousand pages. When the Senate did not enjoy the House's democratic legitimacy, the Framers thought that they would be too embarrassed to make more than minor modifications to spending legislation.) Meanwhile, the power which the Senate was supposed to hold to counterbalance the House's power over money bills, that of assenting, or not, to executive appointments, is not something where the House has any say (with the exception of appointing a Vice President to fill a vacancy per the 25th Amendment, passed after the 17th). So the Senate can frustrate what is supposed to be the House's primary prerogative (spending and taxation) but the House cannot frustrate the Senate's (appointments).
Judges also have significant permanence in office even as the judiciary has come to exercise ever more de facto power, and with both the judiciary and the executive, the legislature has been reluctant at best to exercise its oversight authority, especially removal. I do not think it is an unreasonable argument that the intent of the Framers would be that the legislature would be willing to remove executive officers and judges over even a perceived lack of adherence to the law, or personal unfitness, or what have you, but the legislature has simply not done this. They've tended to treat impeachment as a criminal matter with the standard of "beyond a reasonable doubt" when it may arguably be that the intended standard was not even "balance of probabilities" but maybe even just "probable cause" or "reasonable suspicion". This has only been exacerbated as more positions have moved to popular election, with legislators being concerned about The People getting angry at them for denying them their choice of who should serve in those roles, particularly the Presidency. (Any civics education that does not explain how passive suffrage is the more fundamental right than active suffrage, in that the latter is inherently limited by the former, is incomplete at best; instead civics as far as suffrage goes is often taught as "you have the right to vote" without any explanation of how that right is limited by restrictions on who you can vote for because of restrictions on who can serve in office, and therefore who can meaningfully run for office in the first place. You can see this in some of the amicus briefs in Trump v. Anderson that can be read as, in my view, "it shouldn't matter if Trump is ineligible to be President; if we can't vote for him we are disenfranchised", which misunderstands the right to vote because you only have a right to vote for people who can serve in office in the first place and every adjudicative body which reached the merits of Trump's eligibility concluded that he was not eligible on account of engaging in insurrection.)
All of this is further exacerbated by partisan politics, which the US Framers did not anticipate (and further thought that nobody would be stupid enough to do), but which every polity other than the very smallest shows us is inevitable. There was an assumption that people in government would be more loyal to their piece of the governance structure than to any ideological faction, but this too has been inverted. The conventions that govern a parliamentary system, meanwhile, evolved around partisan politics and thus inherently serve to corral it somewhat productively.
Instead, through a mix of creative interpretation and treating the current status quo as if it were somehow mandatory (South Carolina's legislature chose its Presidential electors directly right up until about the Civil War, as I recall, putting paid to any claims about the President being directly chosen by the people--never mind the later failures of Samuel Tilden, Grover Cleveland, Al Gore and Hillary Clinton to be elected, in Cleveland's case the second time he ran) the US system has somehow managed to be perverted both from its original design and even further than that design from the proper relationship between power, permanence and legitimacy, through a mix of legislative cowardice and other developments which we now know were inevitable but were not anticipated. (Arguably Bill Clinton should have been removed over the Lewinsky scandal; George W. Bush over the WMD lies about Iraq; Barack Obama over the ACA employer mandate implementation delays and also DAPA and DACA; Donald Trump the first time around over his refusal to divest from his DC hotel; and Joe Biden, if nothing else, over his clear cognitive decline. I have no doubt one could find other examples for all of these, and yet more from previous Presidencies. Perhaps the only time Congress has functioned at all properly in this regard is with the Nixon scandals, once Republican legislators got on board with impeaching and removing him, but even that was only because the electorate was sufficiently energised about the matter to prefer partisan defection over partisan loyalty.)