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Professed Values, Constructive Interpretation, And Political History: Comments On Sotirios Barber, The Fallacies Of States' Rights, David B. Lyons
Professed Values, Constructive Interpretation, And Political History: Comments On Sotirios Barber, The Fallacies Of States' Rights, David B. Lyons
Faculty Scholarship
Our barely functioning Congress seems to embody the issues that this conference on constitutional dysfunction is meant to address. At this moment, however, congressional disarray may result less from institutional design than from our lasting heritage of white supremacy. Republican control of the House owes much to the party's Southern Strategy, which has exploited widespread dissatisfaction with the Democrats' official renunciation of racial stratification. That challenge to the American Way is exacerbated by the idea, outrageous to some, of a black President. That context has some bearing on this Symposium's topic of federalism. For, as Professor Larry Yackle reminds us, …
Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler
Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler
Faculty Scholarship
The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …
One(?) Nation Over-Extended, Gary S. Lawson
One(?) Nation Over-Extended, Gary S. Lawson
Faculty Scholarship
The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased …
Fletcher V. Peck And Constitutional Development In The Early United States, Gerald F. Leonard
Fletcher V. Peck And Constitutional Development In The Early United States, Gerald F. Leonard
Faculty Scholarship
One hundred years after Charles Beard’s An Economic Interpretation of the Constitution of the United States, few scholars attend actively to that book or its specific claims. Yet it has become conventional wisdom that the movement for a new Constitution in 1787 was no democratic movement but a conservative effort to rein in the allegedly reckless policy impulses of the state governments. Power would be transferred substantially to the center, where an elite might better control the direction of policy. This conservative movement had important, Beardian economic dimensions, particularly its determination to secure the rights of the propertied against the …