The Bipartisan Bayh Amendment: Republican Contributions to the Twenty-Fifth Amendment

It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important provisions were based on work done during the administration of President Dwight D. Eisenhower, and Eisenhower and his Attorney General, Herbert Brownell, played important roles in supporting Bayh’s proposal as did other Republicans in and out of Congress. Republicans like Representative Richard Poff pushed ideas and provisions that found their way into the Amendment, helped create important legislative history, and contributed in the legislative process. Bayh’s legislative contribution included the inclusive manner in which he operated, and many Republicans deserve credit for participating constructively in a process they could not direct. In describing the bipartisan character of the Bayh Amendment, this Article seeks to fill a void in scholarly writing since no prior work has this focus. It also uses the Twenty-Fifth Amendment as a case study of the sort of bipartisan effort on which any constitutional amendment depends. And it suggests that the dispositions that produced the Twenty-Fifth Amendment—in particular, communal problem solving based on a recognition of the need for interested parties to build from areas of agreement—would contribute to addressing other social problems

Calling Them as He Sees Them: The Disappearance of Originalism in Justice Thomas\u27s Opinions on Race

During his first two decades on the Court, Justice Clarence Thomas has been associated with originalism and is often viewed as its leading judicial proponent. Justice Thomas has linked originalism with the effort to limit judicial discretion and to promote judicial impartiality. In cases dealing with many constitutional provisions, Justice Thomas has shown his commitment to originalism by often writing solitary concurrences and dissents advocating an originalist analysis of a problem. Yet in constitutional cases dealing with race, Justice Thomas routinely abandons originalism and embraces the sort of constitutional arguments based on morality or consequentialism that he often discounts. These opinions in race cases are often powerful and impassioned, just not originalist. Justice Thomas’s behavior in these race cases indicates that he is less committed to originalism than often suggested or than he claims. In these cases, he has often provided a distinctive, and personal, perspective to the Court. In doing so, however, he departs from the originalism that he has otherwise advocated as the route to judicial impartiality

Canonical Typicality

It is well known that a system, S, weakly coupled to a heat bath, B, is described by the canonical ensemble when the composite, S+B, is described by the microcanonical ensemble corresponding to a suitable energy shell. This is true both for classical distributions on the phase space and for quantum density matrices. Here we show that a much stronger statement holds for quantum systems. Even if the state of the composite corresponds to a single wave function rather than a mixture, the reduced density matrix of the system is canonical, for the overwhelming majority of wave functions in the subspace corresponding to the energy interval encompassed by the microcanonical ensemble. This clarifies, expands and justifies remarks made by Schr\"odinger in 1952.Comment: 6 pages LaTeX, no figures; v2 minor improvements and addition

Can the Vice President Preside at His Own Impeachment Trial?: A Critique of Bare Textualism

Turn the clock back for a moment to August 1973. In the midst of the burgeoning Watergate scandal, the nation discovered that Vice President Spiro T. Agnew was being investigated for allegedly accepting bribes from contractors, and for committing tax fraud while Governor of Maryland and Vice President. The investigation, by attorneys in the United States Attorneys Office in Maryland, ultimately gathered sufficient evidence to present to a grand jury. To avoid the spectre of likely indictment and prosecution, Agnew elected to resign his office and plead nolo contendere.[1] But suppose Agnew had decided not to go quietly.[2] Instead of resigning and pleading, imagine he decided to go to Congress, to challenge the House to impeach him and, if it did, the Senate to convict him. Although this possibility may seem far-fetched now, Agnew did at one point appear headed in that direction.[3] Suppose the House had charged Agnew with committing impeachable crimes that, if proven, justified his removal. As the House considered impeaching President Nixon, the Senate would have faced a trial to determine whether Agnew, the person first in line to succeed Nixon, must be removed

Assuming Responsibility: Thomas F. Eagleton, The Senate and the Bombing of Cambodia

The past has a way of repeating itself. Events may not reoccur in the precise manner previously experienced; yet, the pattern often is sufficiently familiar to resemble one encountered before. For those who experienced the Vietnam years, the war in Iraq carries some feeling of “déjà vu all over again.”[1] There are differences, to be sure, yet a familiar pattern emerges—a failed discretionary war on foreign shores, executive use of manipulated intelligence to build support, the parade of shifting rationales offered to replace those exposed as unconvincing, the presidential deceit and dissembling, the legislative abdication.Thomas F. Eagleton spent the last years of his life preoccupied with the war in Iraq. From the outset, he recognized it as an ill-conceived mission which could not be accomplished, as a disaster waiting to happen. He witnessed from afar the executive overreaching and the congressional surrender. He had seen it all before, during the 1960s and 1970s, in Vietnam. Eagleton was not part of the political leadership that blundered into Vietnam; instead, he went to the Senate in 1968 as an avowed dove anxious to extricate America from that debacle. That effort became a central commitment of his extraordinary first term in the Senate. The Eagleton Amendment to end the bombing of Cambodia was a significant event in that term