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French Constitutionalism, Elisabeth Zoller

Articles by Maurer Faculty

From the Foreword:

We are particularly pleased that this first special issue gives the opportunity to celebrate the sixtieth anniversary of the Fifth Republic’s Constitution. Readers will find an enlightened vision of French constitutionalism, so patiently depicted by our colleague Elisabeth Zoller through a life of teachings and research, both in France and in the United States. Defined as “a political doctrine that aims to guarantee political freedom, i.e. the freedom we enjoy in respect of political power, as opposed to civil liberty, which we enjoy in respect of our peers”, constitutionalism has, in France, a profoundly unique character according …

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

Indiana Law Journal

The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars would allow only the political branches—Congress and the President—to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely affect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural causes of action, arguing that …

Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss

Articles by Maurer Faculty

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …

What's A President To Do? Interpreting The Constitution In The Wake Of Bush Administration Abuses, Dawn E. Johnsen

Articles by Maurer Faculty

President George W. Bush and his executive branch lawyers have earned widespread criticism for extreme positions and practices regarding the scope of presidential authority. The war on terror that followed the September 11, 2001 terrorist attacks provided the context for their most controversial claims of unilateral authority: to override legal prohibitions on the use of torture and cruel, inhuman and degrading treatment; to hold "enemy combatants" indefinitely without access to counsel or any opportunity to challenge their detention; and to engage in domestic electronic surveillance without a court order. Our nation's welfare and integrity depend upon continued evaluation, response, and, …

Lost Constitutional Moorings: Recovering The War Power, Louis Fisher

Indiana Law Journal

For the past half century, Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power that the Framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or at any time thereafter. Similar false claims of authority have been made by Presidents since that time. These constitutional violations have been assisted …

Secularization, Religiosity, And The United States Constitution, Christopher L. Eisgruber

Indiana Journal of Global Legal Studies

This article draws upon leading works in the sociology of religion to assess what I shall call "the secularization claim" regarding the United States. It endeavors, in particular to clarify the possible meanings of "secularization,"and then to use these conceptual refinements to examine what sort of evidence exists that the United States has been secularized. Though it is not possible to falsify every version of the secularization claim, there is little evidence to support it, especially in its most prominent and politically relevant variations. The article then goes on to offer a preliminary analysis of to what extent, if any, …

Should Ideology Matter In Selecting Federal Judges? Ground Rules For The Debate, Dawn E. Johnsen

Articles by Maurer Faculty

A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge's ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including discouraging …

Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen

Articles by Maurer Faculty

Published as part of a Duke Law School symposium on Conservative and Progressive Legal Orders, this article considers the appropriate role of the political branches - Congress and the President - in the development of constitutional meaning, including the extent of presidential and congressional authority to act on constitutional views at odds with judicial doctrine. The article discusses deficiencies in strong forms of both judicial supremacy (such as that behind the Rehnquist Court's recent limits on Congress's section 5 authority) and what is described in the academic literature as departmentalism (which emphasizes near-plenary authority for each branch to act on …

Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen

Articles by Maurer Faculty

This article, published in Law & Contemporary Problems, was presented at a Duke Law School conference, The Constitution Under Clinton: A Critical Assessment. It examines a recurring, unsettled issue of executive power: how the President best fulfills his constitutional responsibilities when confronted with the enforcement of a statute that he believes is unconstitutional. What should the President do if he believes enforcing a statutory provision would violate the Constitution? Should, for example, a President comply with a congressional command that he believes would violate the constitutional rights of individuals or compromise presidential power? The article examines the two prevailing approaches …

Constitutionalism, Democracy And Foreign Affairs, Louis Henkin

Indiana Law Journal

No abstract provided.

The Court V. The Legislature: Rule Making Power In Indiana

Indiana Law Journal

No abstract provided.

Punishment: Its Meaning In Relation To Separation Of Power And Substantive Constitutional Restrictions And Its Use In The Lovett, Trop, Perez, And Speiser Cases

Indiana Law Journal

No abstract provided.

The Original And Exclusive Jurisdiction Of The United States Supreme Court, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.