The Jerusalem Embassy Act

The Jerusalem Embassy Act of 1995 (“Act”) was introduced to move the U.S. Embassy in Israel to Jerusalem. In addition to policy issues, which have been the subject of considerable debate, the Act raises interesting questions concerning the scope of congressional and executive authority in the conduct of foreign affairs, and the extent to which Congress can use its appropriations power to influence executive action in this area. President Clinton opposed the Dole-Kyl Bill on policy grounds and the Justice Department prepared a memorandum (“Memorandum”) arguing that the Dole-Kyl Bill is unconstitutional. Essentially, the Memorandum argued that the Bill: (1) interfered with the President\u27s power to conduct foreign affairs and make decisions pertaining to recognition, and (2) is an inappropriate exercise of Congress\u27 appropriations power because it includes an unconstitutional condition. The issue is whether Congress can enact legislation that may effect U.S. foreign policy interests, and whether it can do so by use of the appropriations power. Long established practice, the writings of scholars and statesmen, and judicial decisions, all indicate that the answer to both is clearly yes

Toward a New Constitutional Anatomy

There is an important sense in which our Constitution\u27s structure is not what it appears to be--a set of activities or functions or geographies, the \u27judicial or the executive or the legislative power, the truly local and the truly national. Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In this article, the author contends that the deep structure of the Constitution is not a set of functions or geographies, but rather a political economy of relations between the governed and the governing. Based on standard assumptions common in institutional economics, she argues that these relations create incentives that can help us predict real (rather than simply theoretical) risks to structural change in actual cases involving both the separation of powers and federalism. By considering the risk from shifting relations not to activity-description but instead to majorities and minorities, we may come closer to understanding real risks to shifting power, from states to nation and from one national department to another. To this end, against the backdrop of constitutional law, the author brings to bear the converging meanings of history, political science, and lost constitutional text, all of which reveal that the canonical view of our Constitution is quite partial to courts and provides an incomplete picture of our Constitution as a whole

Taking State Constitution Seriously

Article published in the Cornell Journal of Law and Public Policy

Direct Democracy and Civic Maturation

Should American government make greater use of direct democracy, whereby citizens make laws through plebiscites? Roughly half the states utilize some form of direct democracy, and there is an ongoing debate over whether this form of lawmaking should be introduced in other states and even to the federal government. Many of the arguments against direct democracy are unconvincing, but advocates of direct democracy have not made a sufficiently compelling argument on its behalf. This article explores a new argument for direct democracy - that it is necessary to promote the civic maturation of America\u27s polity. The founders considered a virtuous citizenry crucial for democratic government, since only such a citizenry could be counted on to perform its various functions (jury duty, voting, militia service) effectively. However, the means of inculcating virtue envisioned by the founders have faded from view. This article argues that greater citizen involvement in lawmaking could help fill that void. The article also considers one particular blueprint for introducing direct democracy to every jurisdiction in America (to supplement, not replace, legislation by elected officials) in a way that would promote deliberation and debate. The article concludes that the proposed model has some merit, though it would make sense to experiment with it in some states in order to evaluate whether its nationwide implementation would be desirable