The Consent of the Governed: Constitutionalism of the Levellers and its Influence on Anglo-American Political Discourse

More fully understanding the Levellers suggests a new framework for understanding Anglo-American constitutionalism and jurisprudence. There was a logical progression in their constitutional thought, by which the exigent developments of the 1640s conflict continually pushed the Levellers to articulate new constitutional propositions. It eventually led them to a fully developed contractual theory for the origins of society based on the continuing consent of the People, including the rights to revolution and resistance, within a natural rights framework. The Levellers argued for limitations on the sovereignty of the government by the People, as opposed to the position of the Monarchists, Independents, and Presbyterians which all agreed that some constitution of the “King in Parliament” ought to be the final sovereign within society. The Whig and Tory traditions of the eighteenth century adopted and have preserved the Independent constitutional interpretation of Leviathan’s sovereignty. Evaluating the English Civil War, Glorious Revolution, American War for Independence, and American Civil War as struggles for popular sovereignty suggests a new framework for understanding the continuity of Anglo-American constitutionalism. When viewed from the Leveller framework, the War for Independence is interpreted as a war of secession, and the Civil War as a revolution to establish an Independent constitutional framework. Within Anglo-American political history, the American War for Independence alone was the conflict which asserted the sovereignty of the People, and in some sense, the only true Leveller revolution

Constitutionalism and the Foundations of the Security State

Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, functioning critically to reinforce and legitimate government power rather than simply to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and civil liberties, making the very worst excesses of the past less likely. But at the same time, public discussion around protecting the Constitution – and with it a distinctively American way of life – has also served as a key justification for strengthening the government’s security infrastructure over the long run. Rana argues that in the late nineteenth and early twentieth centuries, significant popular skepticism actually existed concerning the basic legitimacy of the Constitution. But against the backdrop of World War I and the Russian Revolution, a combination of corporate, legal, and military elites initiated a concerted campaign to establish constitutional support as the paramount prerequisite of loyal citizenship. Crucially, such elites viewed the entrenchment of constitutional commitment as fundamentally a national security imperative; they called for dramatically and permanently extending the reach of the federal government’s coercive apparatus. In the process, defenders of the Constitution reproduced many of the practices we most associate with extremism and wartime xenophobia: imposed deference and ideological uniformity, appeals to exceptionalism and cultural particularity, militarism, and political repression. Moreover, the problem with such World War I origins for today’s constitutional climate is not simply that of a troubling but distant past. Rather, the foundations developed nearly a century ago continue to intertwine constitutional attachment with the prerogatives of the national security state in ways that often go unnoticed – emphasizing the real difficulties of separating the liberal and illiberal dimensions of American constitutional culture.La

The Spirit of ’98: A Defense of Civil or States’ Rights?

The Kentucky and Virginia Resolutions of 1798 and the subsequent Virginia Report of 1800 have created a great deal of controversy since their adoption. Passed in response to the recently enacted Alien and Sedition Acts which collectively extended the naturalization period, gave the president power to expel immigrants, and criminalized criticism of the government, the Resolutions and Report denounced the Acts as unconstitutional

A Study in Sovereignty: Federalism, Political Culture, and the Future of Conservatism

This thesis confronts symptoms of an issue which is eroding at the principles of conservative advocacy, specifically those dealing with federalism. It contrasts modern definitions of federalism with those which existed in the late 1700s, and then attempts to determine the cause of the change. Concluding that the change was caused by a shift in American political identity, the author argues that the conservative movement must begin a conversation on how best to adapt to the change to prevent further drifting away from conservative principles

Korematsu and Beyond: Japanese Americans and the Origins of Strict Scrutiny

The authors examine the role that the Japanese American Citizens League played in the development of the strict scrutiny doctrine partly responsible for the ruling in Brown v. Board of Education. The plight of Japanese Americans during their WWII internment gave them experience in implementing this doctrine, which they passed on to the NAACP

The Perpetual Invasion : Past as Prologue in Constitutional Immigration Law

Donald Trump ascended to the presidency largely on the promise to protect the American people—their physical and financial security, their culture and language, even the integrity of their electoral system—against an invading foreign menace. Only extraordinary defensive measures, including “extreme vetting” of would-be immigrants, a ban on Muslims entering the United States, and a 2,000-mile-long wall along the nation’s southern border could repel the encroaching hordes. If candidate Trump’s scapegoating of unauthorized migrants and refugees was disarmingly effective, it was also eerily familiar to those of us who study the history of immigration law and policy. Indeed, the trope of an immigrant “invasion” has long been a rhetorical mainstay of American political discourse. Much less well understood, however, is the extent to which the invasion trope has also shaped the federal government’s vast, extra-constitutional, and largely unrestrained authority to exclude or expel noncitizens from the United States. This Article describes the origin of that authority in the nativist movements of the late-nineteenth century, including both the virulent anti-Chinese crusade that culminated in the Chinese Exclusion Act, and the decades-long and ultimately successful campaign to severely curtail the immigration of “new” Europeans from Southern and Eastern Europe. The legacy of this history endures to the present, as the Supreme Court continues to account for its broad deference to the political branches on immigration matters in terms of an inextricable connection between immigration regulation and the conduct of national security. This Article concludes by considering whether President Trump’s unusually candid (unusual, at least, during the last half-century) deployment of the invasion trope might have an edifying effect on the Supreme Court in Trump v. Hawaii, the travel ban case, as the justices contemplate the implications of deferring to a President whose campaign-season political demagoguery has now mutated to official United States policy

Exceptional and Universal? Religious Freedom in American International Law

This essay explores the paradoxical claims to exceptionalism and universalism that lie at the heart of the American tradition of religious liberty. In considering how and with what consequences religious freedom has become embedded in the international legal order with the rise of American power, the essay considers three themes linking together this history: first, the ambiguity of religious liberty conceived as internal to and outside of history; second, American efforts forcibly to transform the constitutional orders of foreign states over the last century to include religious freedom; and third, attempts to promote religious freedom through international conventions and extraterritorial domestic legislation