"Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or..."

"... to shape and constrain the remedies they provide. That has been true for as long as we have had courts and judicial review.... As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue.... To date, all the Trump administration’s responses in court have embodied appeals to these principles. In response to a recent temporary restraining order that seemingly barred all political appointees at the Treasury Department from access to certain internal information, the administration argued in a filing that the work of executive agencies is overseen by the president, and 'a federal court, consistent with the separation of powers, cannot insulate any portion of this work from the specter of political accountability.' That was a straightforward legal appeal to the limits of judicial authority, made within a judicial proceeding as an argument under applicable law. Even where courts have jurisdiction to decide, it is always legally valid to argue that their decisions ought to respect the separation of powers...."

Writes lawprof Adrian Vermeule, in "JD Vance’s Tweet Is No Crisis/Judges also have an obligation to respect the separation of powers. Usually they do so" (Wall Street Journal, no paywall).

"How a Liberal Scholar of Conspiracy Theories Became the Subject of a Right-Wing Conspiracy Theory."

A New Yorker article (by Andrew Marantz) about Cass Sunstein. It begins:

In 2010, Marc Estrin, a novelist and far-left activist from Vermont, found an online version of a paper by Cass Sunstein, a professor at Harvard Law School and the most frequently cited legal scholar in the world. The paper, called “Conspiracy Theories,” was first published in 2008, in a small academic journal called the Journal of Political Philosophy. In it, Sunstein and his Harvard colleague Adrian Vermeule attempted to explain how conspiracy theories spread, especially online. At one point, they made a radical proposal: “Our main policy claim here is that government should engage in cognitive infiltration of the groups that produce conspiracy theories.” The authors’ primary example of a conspiracy theory was the belief that 9/11 was an inside job; they defined “cognitive infiltration” as a program “whereby government agents or their allies (acting either virtually or in real space, and either openly or anonymously) will undermine the crippled epistemology of believers by planting doubts about the theories and stylized facts that circulate within such groups.”

ADDED: Sunstein became the administrator of the Office of Information and Regulatory Affairs in 2009. In 2010, Glenn Greenwald wrote, "The reason conspiracy theories resonate so much is precisely that people have learned—rationally—to distrust government actions and statements. Sunstein’s proposed covert propaganda scheme is a perfect illustration of why that is."

AND: Word I looked for in the text that wasn't there: "dossier."

ALSO: My favorite sentence in the article is: "He grabbed three packets of Splenda, tore them all open at once, and stirred them into his coffee before tasting it." What kind of a man???

Things seen and unseen.

Instapundit linked my post about the morality of affirmative action:

THE MORALITY OF AFFIRMATIVE ACTION: “The students at a university are always the students who were admitted. They feel hurt or outraged if they think the message is that they shouldn’t be here. They’re here, in the room, and the individuals who did not get in are not here to cry out with corresponding outrage. . . . The policy will only affect individuals who are not in the room, who are out there, just as the students who didn’t get in this year are out there. The difficult thing — and the true moral challenge — is to visualize those who are affected who are not in the room to express pain when you hurt them.”

Another case of what is seen and what is not seen. Politicians — among whose number I certainly count university presidents — advance their careers by exploiting the difference between the two.

He links to the essay "What Is Seen and What Is Not Seen," by the 19th century political economist Frédéric Bastiat, who begins:

In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.

There is only one difference between a bad economist and a good one: the bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.

My son John Cohen also quoted my seen-and-unseen comments, and he associated the general principle with the specific problem of capital punishment, quoting an article by Cass Sunstein and Adrian Vermeule called "Is Capital Punishment Morally Required?" In that context, statistics indicate that capital punishment has a deterrent effect, but the people who are not killed are, of course, never identified. What we see is the convicted person, with whom we may feel challenged to empathize, and the dead person, whom it is too late to save.

The phrase "seen and unseen" calls to mind the Nicene Creed:

We believe in one God,
the Father, the Almighty,
maker of heaven and earth,
of all that is, seen and unseen.

I wonder if that was ever intended to refer to things that are unseen because they never happened, the alternate version of reality that would exist if we had made a different decision. But that is the moral problem I want to notice, and I will designate with a new tag "seen and unseen." I have 2 more things I want to talk about under that heading. One has to do with Rick Perry and the other has to do with Dan Quayle. But I'll put these in separate posts.

These 2 books are good at showing "the intellectual bankruptcy of originalism" but not so good at telling us what could replace it.

Says Harvard lawrpof Adrian Vermeule, reviewing "Keeping Faith with the Constitution" and "The Living Constitution":

Keeping Faith with the Constitution [buy it!] is a typical manifesto written by law professors committed to public service and constitutional politics. It breaks no new ground theoretically. Their idea of constitutional fidelity is an old one, rediscovered in each generation.....

Constitutional fidelity appeals to those who wish to square the original Constitution with a commitment to the bien-pensant positions of the day, which can be justified as faithful to the founders’ higher principles, even if not to their specific expectations....

[In The Living Constitution, which you can buy here, David Strauss] says throughout that the common-law constitution not only changes, but “evolves” or “adapts”; and he implies that this evolution results in improvement over time, as morally or pragmatically undesirable features of constitutional law are weeded out...

[Strauss argues that a] common-law constitution works well, or at least better than the alternatives, because it is the work of generations of epistemically humble judges making incremental improvements over time. The common-law approach to constitutionalism thus draws upon the “accumulated wisdom” of the past, embodied in precedents....

One hopes that he will soon provide a more rigorous theoretical treatment of his common-law constitutionalism, which is to date the most promising version of living constitutionalism by far.