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Full-Text Articles in Legal History
Who Decides On Security?, Aziz Rana
Who Decides On Security?, Aziz Rana
Cornell Law Faculty Publications
Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of "security" has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas …
The Two Faces Of American Freedom: A Reply, Aziz Rana
The Two Faces Of American Freedom: A Reply, Aziz Rana
Cornell Law Faculty Publications
No abstract provided.
Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz
Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz
Cornell Law Faculty Publications
Do members of the House of Representatives have a constitutional right to resign their seats? This Article uses that question as a window onto broader issues about the relationship between legislators and citizens and the respective roles of liberalism and republicanism in the American constitutional order. The Constitution explicitly provides for the resignation of senators, presidents, and vice presidents, but, curiously, it does not say anything about resigning from the House of Representatives. Should we allow the expressio unius interpretive canon to govern and conclude that the inclusion of some resignation provisions implies the impermissibility of resignation when there is …
Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff
Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff
Cornell Law Faculty Publications
The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does not …
The Place Of Form In The Fundamentals Of Law, Robert S. Summers
The Place Of Form In The Fundamentals Of Law, Robert S. Summers
Cornell Law Faculty Publications
The author explains that there is scope for a general theory about the nature and place of form in the fundamentals of law. Form organizes the institutions, rules and other varieties of law, and the system as a whole. All such constructs have non-formal elements, too, but form unifies each construct and provides its criteria of identity. Appropriate form makes a system of law possible. It also tends to beget good content in the law. It is indispensable to the basic needs of a legal system, and when such an end is organizational, as with democracy, liberty, and the rule …