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Articles 1 - 8 of 8
Full-Text Articles in Law
The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson
The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson
Faculty Scholarship
The Constitution creates very few federal offices. It creates the House and Senate,1 the Speaker of the House2 and the President pro tempore of the Senate,3 the President,4 the Vice President,5 and the Supreme Court6--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission7 and who Congress may impeach and remove,8 but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power9 and the Vice President's modest voting …
Toward A More Democratic Congress?, James E. Fleming
Toward A More Democratic Congress?, James E. Fleming
Faculty Scholarship
There is considerable talk of failure in the air these days - including constitutional failure, moral failure, political failure and institutional failure - and criticisms of Congress figure prominently in this discourse. First, I shall ask whether talk about Congress being "the broken branch," the topic of the first panel in this symposium, is talk of constitutional failure or failure of some other sort. Second, to link the topic of that panel to the topic of the panel in which I participated, I will ask whether some call Congress the broken branch because it is not adequately or appropriately democratic. …
The Constitution's Congress, Gary S. Lawson
The Constitution's Congress, Gary S. Lawson
Faculty Scholarship
In order to know whether Congress is (as the title of this panel wonders)1 "the broken branch,"'2 one needs a baseline describing how a normallyfunctioning Congress would look.3 Congress is a creation of the Constitution, and so the Constitution seems to be the obvious place to look for this baseline: what sort of people does the Constitution expect to serve in Congress and how does it expect those people to behave once they arrive?
The Place Of History And Philosophy In The Moral Reading Of The American Constitution, James E. Fleming
The Place Of History And Philosophy In The Moral Reading Of The American Constitution, James E. Fleming
Faculty Scholarship
Dworkin argues that commitment to interpretive fidelity requires that we recognize that the Constitution embodies abstract moral principles rather than laying down a particular historical conception, and that interpreting those principles requires fresh judgments of political theory about how they are best understood. This interpretive strategy — Dworkin's ‘moral reading’ of the Constitution — stands in opposition to the narrow originalists' claim that interpretive fidelity requires following the rules laid down by the framers of the Constitution. Some theorists have responded to the originalists by attempting to carve out an intermediate theory between narrow originalism and the moral reading. Dworkin …
Constitutional Theory And The Future Of The Unitary Executive, Sotirios Barber, James E. Fleming
Constitutional Theory And The Future Of The Unitary Executive, Sotirios Barber, James E. Fleming
Faculty Scholarship
In The Constitution in Wartime: Beyond Alarmism and Complacency, Mark Tushnet distinguishes two voices: "alarmists who see in every action taken by the Bush [A]dministration a portent of gross restrictions on the civil liberties of all Americans, and administration shills who see in those actions entirely reasonable, perhaps even too moderate, accommodations of civil liberties to the new realities of national security."1 Tushnet's volume contains essays, including one by us,2 which he judges to lie "beyond alarmism and complacency" (or perhaps between alarmism and complacency). But critics of the Bush Administration's theory of the unitary executive may be alarmed by …
The Shrunken Power Of The Purse, Alan L. Feld
The Shrunken Power Of The Purse, Alan L. Feld
Faculty Scholarship
The Constitution places control of the federal government's funds in the hands of Congress. This article examines Congress' exercise of discretion in connection with expenditures, impoundments, debt and taxation. It concludes that its actual control over the government's funds has become limited over time and makes recommendations for more robust exercise of its traditional authority.
The Constitutionality Of Decolonization By Associated Statehood: Puerto Rico's Legal Status Reconsidered, Robert D. Sloane, Gary S. Lawson
The Constitutionality Of Decolonization By Associated Statehood: Puerto Rico's Legal Status Reconsidered, Robert D. Sloane, Gary S. Lawson
Faculty Scholarship
International and constitutional law arguably collide in the legal arrangement between the United States and Puerto Rico. As a matter of international law, it is unclear that this arrangement conforms to customary international and treaty obligations. As a matter of national law, it is unclear that the Constitution permits an arrangement between Puerto Rico and the United States—short of separation (independence as a State) or integration (admission to the Union as a state)—that could conform to these international obligations. In particular, the Appointments Clause and the Constitution’s voting provisions may well be in tension with contemporary international law relative to …
Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza
Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza
Faculty Scholarship
Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …