Scalia may not have considered foreign statutes or judicial decisions, present-day international law, or global public opinion relevant indicia of constitutional meaning—but he was immensely interested in foreign legal systems.
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It is some of the presidency’s deepest institutional virtues, not its institutional vices, that make it terrifying in the hands of a man like Trump. To make the presidency secure from a man like Trump, you would have to do a lot of things to disable it; you’d have to do things to the presidency that would render it the one thing scarier than a presidency Trump could abuse.
John Adams's famous aspiration is not our reality: We live in a government of men, as well as laws.
One of those men, the most powerful of them all, may soon be Donald Trump.
So as the late Joan Rivers might have said, "Can we talk?"
This has nothing to do with national security, but I have a feeling it will be of interest to many Lawfare readers anyway. Miguel Estrada and I have an essay out in the Washington Post on the judicial confirmation process and the politics of replacing Justice Scalia. We are, shall we say, skeptical of the "principled" arguments of both parties. It opens:
In my view, at least, Justice Scalia's public statements on national security issues and his one majority(-ish) opinion in a "canonical" national security case (in Ashcroft v. al-Kidd) could lead folks reasonably to question just how faithful Justice Scalia was to his first principles where national security was involved. That doesn’t in any way diminish the late Justice’s track record (or Adam’s elegant reflection upon it); it just suggests that, as is so often the case, adding national security-specific considerations to the mix tends to complicate matters.