The Constitution's Accommodation of Social Change

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments? The inquiry pursued here concentrates on the views of the framers and ratifiers while they were creating the Constitution rather than the development of their ideas before or after that task

The Permanent Constitution

Did the framers and ratifiers of the U. S. Constitution think that change in American society would require change in the Constitution? Framers and ratifiers tended to assume that constitutions should, by their nature, be permanent. Federalists and Anti-Federalists, however, differed on what they meant by this and that is what this essay explores

Beyond Protection

Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly difficult In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection. This Article explains the principle of protection and its implications for terrorism. Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no obligation to obey American law; moreover, not having protection, he had no rights under such law. This was the principle on which early American law dealt with enemy aliens and other persons who did not owe allegiance, including those who today would be called "terrorists." The principle of protection still provides a valuable model for understanding a wide range of otherwise intractable problems. At a doctrinal level, it resolves important questions about habeas, prisoners of war, the power of the executive over enemy aliens, the jurisdiction of courts over foreigners and foreign lands, and the rights of unauthorized aliens. The principle also provides a framework for understanding more general difficulties, including the legal strategies available to the government, the domain of national law in a multinational world, and the means of reconciling safety and civil liberty. In these ways, as illustrated by terrorism, the principle of protection is an essential foundation for a society that seeks to preserve itself from danger without undermining its liberty

Ingenious Argument or a Serious Constitutional Problem? A Comment on Professor Epstein\u27s Paper

In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.” Yet this conclusion rests on mistaken assumptions – both about the IRB laws and about the constitutional objections – and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies. The first set of mistaken assumptions relates to the IRB laws. Professor Epstein doubts there is any serious constitutional problem with the IRB laws, and certainly if they are understood in accord with popular assumptions about them, the constitutional issues are not as sharp as some of us have suggested. The laws, however, repay careful study

Early Prerogative and Administrative Power: A Response to Paul Craig

This Article is organized around Craig’s three criticisms. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive. My thesis is that administrative power revives the extralegal character of the absolute prerogative – in other words, that both sorts of power have bound subjects through extralegal edicts – and this extralegal power remains a problem regardless of statutory authorization and limits

The New Censorship: Institutional Review Boards

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court