Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?

Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court

The Constitutionality of a National Wealth Tax

Economic inequality threatens America’s constitutional democracy. Beyond obvious harms to our nation’s social fabric and people’s lives, soaring economic inequality translates into political inequality and corrodes democratic institutions and values. The coincident, relentless rise of money in politics exacerbates the problem. As elected officials and candidates meet skyrocketing campaign costs by devoting more and more time to political fundraising—and independent expenditures mushroom—Americans lose faith and withdraw from a system widely perceived as beholden to wealthy individuals and corporate interests. The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and fairness. Tax policy provides one central context in which collective judgments about fundamental values help form national identity. We believe that a national wealth tax (that is, a tax on individuals’ net worth) should be among the policy options under consideration to support vital infrastructure, social service, and other governmental functions. Although not a new concept, a wealth tax may be an idea whose time has come, as inequality soars toward record highs. Our aim in this Essay is to help ensure that a wealth tax is among the policy options available to Congress by challenging a common assumption that has unduly harmed its prospects: the belief that the U.S. Constitution effectively makes a national wealth tax impossible. We believe this conventional wisdom is wrong and its casual repetition has been harmful. Devising a progressive tax system that effectively taxes the wealthy is notoriously difficult, but whether a wealth tax is part of that system should depend upon the policy choices of democratically elected representatives, not faulty constitutional understandings

Foreword to: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century Symposium

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005

Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002

Windsor, Shelby County, and the Demise of Originalism: A Personal Account

Essays on the Implication of Windsor and Perr

Respecting Intent and Dispelling Stereotypes by Reducing Unintended Pregnancy

In “Expectant Fathers, Abortion, and Embryos,” Dara Purvis considers the interests of “expectational fathers,” as she calls them, in the related contexts of abortion and the disposition of pre-embryos in assisted reproductive technologies (ART). Her thought-provoking essay contributes to a subject — men and reproductive decision-making — that is too little studied. I embrace her emphasis on respect for both men’s equal role in parenting and women’s right to decide whether to terminate or continue pregnancy. In this Comment, I examine her central concern that abortion discourse promotes harmful gender stereotypes by minimizing expectational fathers’ interests. I suggest that Purvis’s own analytic focus on intent, properly applied and extended, actually ameliorates her concern and points instead to a more direct, unapologetic acknowledgement of men’s (and women’s) desires to avoid parenthood in particular circumstances and at particular times in their lives.</jats:p