Constitutional Crisis and Constitutional Rot

No one could accuse Donald Trump\u27s presidency of being boring. The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Because Donald Trump is very unpopular, and because he regularly does things that his opponents consider outrageous, his critics have begun to describe his actions as creating or precipitating a constitutional crisis, especially following his first executive order limiting entry into the United States, and again after his firing of FBI director James Comey

The Distribution of Political Faith

The original title of Constitutional Redemption—which my publisher prevailed on me not to use—was “Agreements with Hell.” The phrase comes from a famous statement of the abolitionist William Lloyd Garrison—himself drawing on the words of the prophet Isaiah—that the United States Constitution was “a covenant with death, and an agreement with hell.” By agreeing to protect slavery, the Framers had embedded evil in the constitutional system, and Garrison believed that the only remedy for this original sin of constitutionalism was to dissolve the Union, and for the North to secede from the South

The Use that the Future Makes of the Past: John Marshall\u27s Greatness and its Lessons for Today\u27s Supreme Court Justices

John Marshall’s greatness rests on a relatively small number of Supreme Court opinions, of which the most famous are Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden. Beyond these are a number of less famous but also important cases, including his opinions in the Native American cases, Fletcher v. Peck, and Dartmouth College v. Woodward.What makes Marshall a great Justice? One feature is certainly his institutional role in making the U.S. Supreme Court much more important to American politics than it had been previously. That is a function, however, of the sorts of cases that were brought before the Court, and of the opinions he chose to write. Marshall was also important as an early intellectual leader of the Court, as opposed to being merely its Chief Justice. That, too, is a function of the opinions he wrote

Race and the Cycles of Constitutional Time

The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal

Korematsu as the Tribute that Vice Pays to Virtue

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed to actually utilize” strict scrutiny. “In each instance the Justices glossed over key facts before them, ignored pertinent information, and were, quite possibly, blinded by their own prejudices and precedents.

History, Rights, and the Moral Reading

James Fleming\u27s book, Fidelity to Our Imperfect Constitution, offers a moral reading of the Constitution, which he also calls a philosophic approach to interpretation. By this, Fleming means that we should view the Constitution as embodying abstract moral and political principles. To interpret the Constitution, we must make normative judgments about how [these principles should be] best understood. This, in turn, will require more than merely historical research to discover relatively specific original meanings

Would African Americans Have Been Better Off Without Brown v. Board of Education?

Suppose that the United States Supreme Court had reaffirmed Plessy v. Ferguson in Brown v. Board of Education and strictly enforced its separate but equal doctrine. What would have been the subsequent history of educational opportunity for African-Americans? Charles Hamilton Houston’s original strategy was to persuade courts to enforce Plessy strictly, assuming that southern states would not be able to afford a truly separate but equal school system. If southern states wanted quality education for their white children they would be forced to integrate to save money. So it is interesting to speculate whether African American children would have been better off with strict enforcement of Plessy. Perhaps black parents might have gotten integrated schools anyway, or if not integrated schools, then equal schools

Lawyers and Historians Argue about the Constitution

1 online resource (PDF, page 345-400

Commerce

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a pragmatic exception to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified commerce with the trade of commodities; originalists defending broad readings of federal power have identified commerce with all gainful economic activity. In the eighteenth century, however commerce did not have such narrowly economic connotations. Instead, commerce meant intercourse and it had a strongly social connotation. Commerce was interaction and exchange between persons or peoples. To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity. But the idea of commerce-as-intercourse was broader than economics narrowly conceived-it also included networks of transportation and communication through which people traveled, interacted, and corresponded with each other. Understanding commerce in its original sense of intercourse is consistent with all of the evidence offered by rival theories of commerce as trade or economic activity; but it better explains the source of Congress\u27s powers over immigration and foreign affairs. It also better explains Congress\u27s broad powers over transportation and communications networks, whether or not these networks are used for purposes of business or trade. Congress\u27s power to regulate commerce among the several states is closely linked to the general structural purpose behind Congress\u27s enumerated powers as articulated by the Framers-to give Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action. Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state. This basic structural principle explains why Congress\u27s commerce power inevitably expanded with the rise of a modern integrated economy and society, and it explains and justifies most if not all of modern doctrine. This approach justifies the constitutionality of federal regulation of labor law, consumer protection law, environmental law, and antidiscrimination law; it even shows why a federal mandate for individuals to purchase health insurance is constitutional. Finally, this approach shows why there are still areas where federal commerce power does not extend-these are areas where Congress cannot reasonably claim that an activity produces interstate spillovers or collective action problems, and does not involve networks of transportation and communication