Things to Read This Week (10/6)

of Presidents and Kings

1. Obviously there’s Caleb Nelson’s short essay questioning the unitary executive theory, Must Administrative Officers Serve at the President’s Pleasure? I called this a “bombshell” on social media and it is notable because anything by the author is notable, but also because it is rare for a prominent and respected originalist to criticize the theory publicly.

2. Also, is it possible I have never before linked to Caleb Nelson, Did I Get Public Rights Wrong? On its face, this might seem like an entry in a narrow scholarly debate — a reply to Gregory Ablavsky’s critique of Nelson’s original article on public rights, as applied to 19th century land grants. But the article is also a detailed and insightful piece on the relationship between public rights, vested rights, judicial cognizability, and treaty self-execution. It’s not every year we get a big new Nelson article and this is a big new Nelson article.

3. Another one I just learned about: The Functions of Constitutional Monarchy: Why Kings and Queens Survive in a World of Republics, by Tom Ginsburg, Daniel Rodriguez, and Barry Weingast:

   Constitutional monarchies are commonly seen as anachronisms, vestiges that are doomed to disappear. Yet one in five countries today is a constitutional monarchy. This paper provides a definition and typology of constitutional monarchy, and explains why constitutional monarchy may be stable in a world in which most countries are republics. Constitutional monarchy, it argues, is a stakes-reducing device, helping to make democratic politics possible in some environments through integrating the polity and providing what we call “crisis insurance.”

4. Jesse Cross, The Amended Statute. Another interesting entry in the field of understanding the statutes at large / U.S. Code / what exactly our legal texts are. “True textualism,” we might call it.

5. I had another roundtable with Kate Shaw and Steve Vladeck in the New York Times last week, where I made very controversial-for-NY-Times-readers claims such as: the Court is basically the same now as it was in July; Chief Justice Roberts should be judged by his ability to call balls and strikes; the Supreme Court’s anti-VRA and unitary executive decisions “are some of the more normal things it is doing in constitutional law.”

   Relatedly, I’m quoted in the L.A. Times saying: “Overall, my reaction is that it’s too soon to tell. In the next year, we will likely see decisions about tariffs, birthright citizenship, alien enemies and perhaps more, and we’ll know a lot more.”