Constitutional Law

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• 7/8/2022
  

  History Offers Warning that Some Crises of Civic Virtue are Overblown

  by Bruce Dearstyne

  The American Bar Association's Committee on American Citizenship warned in 1922 of a decline in civic awareness that threatened the very survival of the republic. A century later, it offers a lesson that sometimes warnings of democratic peril are self-serving. 

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• SOURCE: Politico
  6/26/2022
  

  On the Historical Dilettantes Practicing Originalism

  by Joshua Zeitz

  "The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess."

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• SOURCE: Made By History at the Washington Post
  12/13/2021
  

  What Justice Kavanaugh Gets Wrong About "Neutrality" on Abortion

  by David Cohen and Maya Manian

  Justice Kavanaugh has joined a long line of jurists who have pretended that the Fourteenth Amendement allows the courts to be neutral when fundamental rights are at issue. 

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• SOURCE: The Atlantic
  4/19/2021
  

  The Two Memos With Enormous Constitutional Consequences

  by Kimberly Wehle

  "Presidential criminal immunity has no grounding in actual law. It’s not in the Constitution or any federal statute, regulation, or judicial decision. It is not law at all."

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• SOURCE: New York Times
  2/9/2021
  

  Would the Founders Convict Trump and Bar Him From Office?

  by Eli Merritt

  "Today’s Republican senators must at least be willing to break with their party and disappoint some of their constituents — and, yes, perhaps lose their jobs in coming elections — to serve the larger interest of protecting the nation."

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• 2/7/2021
  

  The Constitution Forbids a Post-Presidential Impeachment Trial

  by William G. Hyland, Jr.

  A biographer of George Mason argues that, by the text and original intent of the Constitutional impeachment power, Donald Trump's exposure to trial ended when he left office and the Senate trial set to start on February 8 is unconstitutional.

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• SOURCE: Made By History at the Washington Post
  1/17/2021
  

  No, the Constitution Does not Allow President Trump to Pardon Himself

  by Dale Carpenter

  The history of debate over the pardon power in the Constitiution strongly supports the claim that a president's pardon of themselves would be unconstitutional. 

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• SOURCE: Washington Monthly
  1/18/2021
  

  What the Founders Would Have Done with Trump

  by Frank O. Bowman III

  "The impeachment mechanism written into the American Constitution owes its structure to a set of very specific lessons the Framers drew from British and classical history," writes a constitutional law scholar. Those lessons point to the validity of trying Trump in the Senate even after the end of his presidency.

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• SOURCE: New York Times
  1/14/2021
  

  Why Trump Can Be Convicted Even as an Ex-President

  by Steven I. Vladeck

  The historical record of impeachment trials suggests that they treat removal from office and disqualification from future office as separate questions, meaning that the Senate may still vote to disqualify Trump from office even after his term has ended. 

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• SOURCE: The Hill
  1/7/2021
  

  The 25th Amendment Should Not Be Invoked Lightly

  by Brian Kalt

  The speed with which presidential power transfers to the Vice President under the 25th Amendment is balanced by the relative ease with which the president can reclaim those powers. Is it an appropriate tool for removing Donald Trump from power (if not from office)? 

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• SOURCE: New York Review of Books
  10/21/2020
  

  The Gonzo Constitutionalism of the American Right

  by Corey Robin

  "Conservatism has ceased to be a political project capable of creating hegemony through majoritarian means."

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• SOURCE: Washington Post
  10/16/2020
  

  The Framers of the Constitution Didn’t Worry about ‘Originalism’

  by Jack Rakove

  "Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time."

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• 8/9/2020
  

  Reflections from "That Further Shore": A Constitutional Lawyer's Immigrant Family History

  by John Feerick

  John Feerick's work in constitutional law helped create the 25th Amendment, and an unadopted amendment to abolish the Electoral College. His recent family history and memoir shows how his immigrant parents laid a foundation for this success. 

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• SOURCE: Public Books
  8/5/2020
  

  Was Impeachment Designed to Fail? (Review Essay)

  The Constitution, by design, stacks the impeachment deck strongly in the president’s favor. And it’s those 233-year-old design choices that dictated the Trump impeachment trial’s eventual outcome. Presidential impeachments are never a fair fight, and they weren’t meant to be.

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• SOURCE: The Atlantic
  June 2
  

  Trump’s Grotesque Violation of the First Amendment

  by Garrett Epps

  The people own the streets—not the police, not the military, and not Donald Trump.

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• SOURCE: The Atlantic
  5/26/2020
  

  There’s No Historical Justification for One of the Most Dangerous Ideas in American Law

  by Julian Davis Mortenson and Nicholas Bagley

  The delegation of regulatory power to federal agencies is the indispensable foundation of modern American governance. And it is under siege.

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• SOURCE: The Atlantic
  9/8/19
  

  The Electoral College was Terrible from the Start

  by Garrett Epps

  Epps doubts that Alexander Hamilton could foresee the consequences of an electoral college.