Law Commons^™

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to dispose …

How Do We Know When Political Societies Change?, Peter Aschenbrenner

Peter J. Aschenbrenner

Predicates, features, attributes and properties of a system are liable to change. How does the change get marked down? For this purpose what facet of a system should command our attention? Any system worth the name, Our Constitutional Logic argues, is aware of its own standing in civil society. OCL considers the issues raised.

Recovering The Lost General Welfare Clause, David S. Schwartz

William & Mary Law Review

The General Welfare Clause of Article I, Section 8, Clause 1 of the Constitution enumerates a power to “provide for the common defense and general welfare.” A literal interpretation of this clause (“the general welfare interpretation”) would authorize Congress to legislate for any national purpose, and therefore to address all national problems— for example, the COVID-19 pandemic—in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called “Spending Power,” a power only to spend, but not to regulate, for …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Fernanda Giorgia Nicola Dr.

Working Papers

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

A Game Theoretic Analysis Of Marbury V Madison: The Origins Of Judicial Review, Daniel R. Debutts

James Blair Historical Review

The presented research seeks to further our understanding of the Supreme Court’s formation of judicial review through an historical and game theoretic analysis. Marbury v Madison (1803) has long been hailed as a foundational case in which Chief Justice Marshall outfoxed President Jefferson in a duel of wits. Yet, despite this claim, there are surprisingly few papers that apply modern game-theory to what is widely considered a landmark—and rather iconic—supreme court case. In my paper, I review this notion and, in doing so, come to better understand inter-institutional relationships and their corresponding game theoretic strategies. More importantly, however, I suggest …

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Glenn Beck Bad News For Religious Conservatism, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Government Lawyers And The New Deal, Neal Devins

Neal E. Devins

No abstract provided.

Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins

Neal E. Devins

No abstract provided.

Think You Know A Lot About Our Constitution?, Jesse Rutledge, Allison Orr Larsen

Allison Orr Larsen

You may know that it was signed in Philadelphia in 1787, that the oldest signer was Benjamin Franklin and that it doesn’t include the word “democracy.” William & Mary Law Professor Allison Orr Larsen, an expert in constitutional law, can tell you a lot more about it. With Constitution Day (Sept. 17, 2018) upon us, Professor Larsen talks about the document’s strengths and weaknesses and its major misconceptions. And she discusses what she thinks will have to happen before it is amended again.

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler

William & Mary Bill of Rights Journal

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

Table Annexed To Article: The Text Of The Standing Orders Of The Federal Convention: Jackson’S And Madison’S Texts Surveyed, Peter Aschenbrenner

Peter J. Aschenbrenner

Drawing on Farrand’s Records of the Federal Convention of 1787, Vol. 1, Our Constitutional Logic has reconciled the differences between the text of the standing Orders as presented in the text of William Jackson, the convention’s secretary, and James Madison, the convention’s semi-official reporter, both as edited by Max Farrand. This text will appear in Basic Texts in the Founding of Parliamentary Science Originating from the United Kingdom and United States (in MR Text Format), 2 OCL 136_5; in turn, OCL is producing the first concordance of these texts in Founding the Science of Parliamentary Procedure, 1785-1789: Basic Texts in …

Thomas Jefferson’S First Inaugural Address In Mr Text Format (March 4, 1801) With Observations On The Tyranny Of The Majority And Tyranny Of The Minority, Peter Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic presents the 1,724 words of Thomas Jefferson’s First Inaugural Address, delivered March 4, 1801. The table annexed hereto presents this work in MR Text format. For OCL’s present purpose TJ’s invocation of TOM-TOM – the mathematical logic which supplies no convenient repose between the tyranny of the majority and the tyranny of the minority – is drawn to the reader’s attention.

Table Annexed To Article: Basic Texts In The Founding Of Parliamentary Science Originating From The United States (In Mr Text Format), Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic presents basic texts in parliamentary practice searchable in MR Text Format; these texts cover all of the procedural rules and standing orders from September 6, 1774 (the First Continental Congress) through the rules governing the United States Senate as of the publication of Thomas Jefferson’s Manual of Parliamentary Practice (1801).

The Text Of The Standing Orders Of The Federal Convention: Jackson’S And Madison’S Texts Surveyed, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Drawing on Farrand’s Records of the Federal Convention of 1787, Vol. 1, Our Constitutional Logic has reconciled the differences between the text of the standing Orders as presented in the text of William Jackson, the convention’s secretary, and James Madison, the convention’s semi-official reporter, both as edited by Max Farrand. This text will appear in Basic Texts in the Founding of Parliamentary Science Originating from the United Kingdom and United States (in MR Text Format), 2 OCL 136_5; in turn, OCL is producing the first concordance of these texts in Founding the Science of Parliamentary Procedure, 1785-1789: Basic Texts in …

Table Annexed To Article: Delegate Credentialing At The Continental Congress Sampled At The Opening Of Congress On November 3, 1783, Peter J. Aschenbrenner

Peter J. Aschenbrenner

The Continental Congress opened its sessions in November; Our Constitutional Logic has selected the first opening after the Treaty of Paris (September 3, 1783) which is detailed at 25 Journals of the Continental Congress 795-799 on November 3 1783. Credentials were required to be no less than a year old or if of older vintage, the delegate must have presented them to the convention less than a year earlier. OCL supplies notes and comments to the passages keyed in at the table annexed hereto.

Delegate Credentialing At The Continental Congress Sampled At The Opening Of Congress On November 3, 1783, Peter J. Aschenbrenner

Peter J. Aschenbrenner

The Continental Congress opened its sessions in November; Our Constitutional Logic has selected the first opening after the Treaty of Paris (September 3, 1783) which is detailed at 25 Journals of the Continental Congress 795-799 on November 3 1783. Credentials were required to be no less than a year old or if of older vintage, the delegate must have presented them to the convention less than a year earlier. OCL supplies notes and comments to the passages keyed in at the table annexed hereto.

Table Annexed To Article: Twenty-Five Votes That Made The Presidency, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic details the twenty-five votes at the federal convention on August 24 and September 5 and 6, 1787 which resulted in Article II, Section 1, Clauses 1 to 3 (taken as output) from electing the President to making the second-to-the-top vote getter Vice-President. In this table each vote is broken down to show the proposal, the reasoning, the reconciliation between information from Farrand’s Records and the secretary of the convention, William Jackson, and James Madison’s Notes, along with a “rollcall” of those voting in favor or against, individually and by state, and further broken down into Slave_Owners and …

Why Do Political Societies Exist?, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic details three overarching purposes of political societies considered as constructs within civil or bourgeois society: (1) promoting of private wealth (and its counterpart goal: avoiding wealth destruction); (2) disabling hostility to minorities identified as such; (3) setting a threshold by which minorities (in coalition) may block organic change.

Table Annexed To Article: Thomas Jefferson’S First Inaugural Address In Mr Text Format (March 4, 1801) With Observations On The Tyranny Of The Majority And Tyranny Of The Minority,, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic presents the 1,724 words of Thomas Jefferson’s First Inaugural Address, delivered March 4, 1801. The table annexed hereto presents this work in MR Text format. For OCL’s present purpose TJ’s invocation of TOM-TOM – the mathematical logic which supplies no convenient repose between the tyranny of the majority and the tyranny of the minority – is drawn to the reader’s attention.

The Pasha’S ‘Declaration Of Initiative’, Peter J. Aschenbrenner

Peter J. Aschenbrenner

The Pasha has yet more, in this sixth article, to regret, and a Proclamation to his subjects in Far Far Away Sylvania seems in order. With the inestimable assistance of Grand Vizier, one is drafted. By coincidence the text of what we know as the Declaration of Rebellion, August 23, 1775 is at hand. This is has inspired the Pasha to his Declaration of Initiative. King George III isn’t mocked in this article, but the mysteries of text declaring the limits of power sharing, that is, text defining the limits of textual reliability, are surely gored.

Clio At War: The Misuse Of History In The War Powers Debate, John C. Yoo

John C Yoo

No abstract provided.

Table Annexed To Article: Governments I And Ii Govern The Northwest Territories, Peter Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic presents, in both RC text and PDF text format, the legislative output of the Continental Congress and the first federal Congress by which the Northwest Territories were organized and brought within the orbit of the political society governed by the United States.

Details Of Political And Civil Service For Thirty-Five General Officers Serving In The Second War For American Independence, Peter Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has supplied A Census of Thirty-Five General Officers Appointed By Madison Before or During The Second War for American Independence, 2 OCL 915_Generals_Main; that project surveyed the 35 general officers who served in the regular army from June, 1812 through February, 1815, during the Second War for American Independence. The political and civil offices for each officer are named along with years of service and a total for all such civilian service

Table Annexed To Article: Birthing The Michigan Territory As A Nascent State, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic presents, in PDF text format, two statutes of the United States relevant to the founding of the Michigan Territory in 1805.

Details Of Military Service For Thirty-Five General Officers Serving, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has supplied A Census of Thirty-Five General Officers Appointed By Madison Before or During The Second War for American Independence, 2 OCL 915_Generals_Main; that project surveyed the 35 general officers who served in the regular army from June, 1812 through February, 1815 during the Second War for American Independence. The military service for each officer is detailed along with the most previous battlefield experience prior to selection.

A Census Of Thirty-Four General Officers Appointed By James Madison, Peter J. Aschenbrenner

Peter J. Aschenbrenner

An Introduction To Quorum Issues At The Federal Convention, Peter Aschenbrenner

Peter J. Aschenbrenner

The first Standing Order of the federal convention directed voting by states under a ‘one state, one vote’ formula, but without the fatal ‘one state, one veto’ formula which Rhode Island abused in the Confederation Congress. “A House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the greater number of these which shall be fully represented; but a less number than seven may adjourn from day to day.” See A Survey of the Standing Orders of the Federal Convention and the Differences Between Jackson’s and Madison’s Text, …

Calling All Senators: Can A Few States Overthrow The Government?, Peter Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic analyzes the mathematical logic of quorum requirements for the United States Senate in the early American republic. Constitutions I and II provided quorum minimums as counts and proportions; Constitution II set forth a proportional quorum (“majority of members”) requirement for legislative action but its action requirement must be teased out, at least for the Senate. Threats arising from any would-be tyranny of the minority are addressed as an introduction to The Vice-President’s Two Votes: Introducing the Mathematical Logic of TOM-TOM, 17 OCL 185, in which the Tyranny of the Majority and Tyranny of the Minority receive attention.

Details Of Committee Membership At The Federal Convention, Peter Aschenbrenner

Peter J. Aschenbrenner

From May 25 through September 13, 1787 the convention appointed twelve committees of which eleven reported. (The work of the Committee of the Whole House, technically not a committee, is addressed elsewhere.) Our Constitutional Logic calendars the committees by full name, date established and the date on which it reported to the convention. Each delegate’s assignments are then detailed and cumulated; the reader can identify the ‘never serving’ delegates – there are 19 of 55 who never served – and the workhorse delegates: King and Williamson served on five committees apiece, with King taking ‘top committeeman’ honours based on his …