Law Commons^™

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.

Table Annexed To Article: Calling All Senators, 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.

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Josh Chafetz

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable. In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the …

The Conventional Option, Gregory Koger

Gregory Koger

Congress Misses Twice With The Community Character Act: Will Three Times Be A Charm?, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Steven E Art

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides for the first time a comprehensive interpretation of the Seventeenth Amendment based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional provision. Among other …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Steven E Art

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides for the first time a comprehensive interpretation of the Seventeenth Amendment based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional provision. Among other …

Избирательное Право Как Институт Конституционного Права Соединенных Штатов Америки, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Extracting Lessons From Illinois’ 2010 Special Election Fiasco: A Closer Look At The Seventh Circuit’S Decision In Judge V. Quinn And The Special Election Requirement Of The Seventeenth Amendment, Furqan Mohammed

Furqan Mohammed

This Note discusses the recent Seventh Circuit decision in Judge v. Quinn, in which the Seventh Circuit unanimously set aside Illinois’ Election Code under the Seventeenth Amendment because of the manner in which they filled vacant seats for U.S. Senator. This issue arose when then-Senator Barack Obama resigned from the Senate in November, 2008, to become President. When he resigned, Roland Burris was appointed to fill the seat. Illinois was not planning to hold a special election to fill Obama's seat because under Illinois Election Code, a special election to fill a vacant senate seat could only occur with the …

Rational Treaties: Article Ii, Congressional-Executive Agreements, And International Bargaining, John C. Yoo

John C Yoo

This paper examines the continuing difference between the Constitution’s Article II treaty, and the congressional-executive agreement’s statutory process, to make international agreements. Rather than approach the problem from a textual or historical perspective, it employs a rational choice model of dispute resolution between nation-states in conditions of weak to little enforcement by supranational institutions. It argues that the choice of a treaty or congressional-executive agreement can make an important difference in overcoming various difficulties in bargaining that arise from imperfect information and commitment problems.

The Senate Filibuster: The Politics Of Destruction, Emmet J. Bondurant

Emmet J Bondurant

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the constitutionality …

Testimony On Prostitution Bill, Senate Judiciary Committee, Oct 2009, Donna M. Hughes Dr.

Donna M. Hughes

Senate Prostitution Bill Weakens Law, Jim Meyen, Donna M. Hughes Dr.

Donna M. Hughes

No abstract provided.

Senators' Prostitution Bill Is A Sham, Donna M. Hughes Dr.

Donna M. Hughes

The Obstructionism Of Senator Paul Jabour, Donna M. Hughes Dr.

Donna M. Hughes

Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman

Seth Barrett Tillman

In a few months, "We the People" will go to the polls and elect the electors who will elect (or, at least, have an opportunity to elect) the next President of the United States. Short of an act of God or an act of war, it is more likely than not that the next President will be a sitting United States Senator. The expectation is that a Senator/President-elect resigns his or her legislative seat some time prior taking the presidential oath of office. It is widely believed in large and influential academic circles and among the educated public generally that …

Textualist Hedgehogs And Structuralist Foxes: A Reply To The Critics Of My Incompatibility Clause Jurisprudence (Not Yet Drafted, Planned For 2011-2012 Publication), Seth Barrett Tillman

Seth Barrett Tillman

This is a placeholder for my future reply to Professor Saikrishna Bangalore Prakash's response, along with some related further responses to arguments put forward by Professor Steven G. Calabresi.

The Calabresi-Tillman exchange appears below under "Related Files".

This paper is not yet drafted.

[June 2, 2010]

Opening Statement: Why President-Elect Obama May Keep His Senate Seat After Assuming The Presidency, Seth Barrett Tillman

Seth Barrett Tillman

In a few months, "We the People" will go to the polls and elect the electors who will elect (or, at least, have an opportunity to elect) the next President of the United States. Short of an act of God or an act of war, it is more likely than not that the next President will be a sitting United States Senator. The expectation is that a Senator/President-elect resigns his or her legislative seat some time prior taking the presidential oath of office. It is widely believed in large and influential academic circles and among the educated public generally that …

Closing Statement: An "Utterly Implausible" Interpretation Of The Constitution: A Reply To Professor Steven G. Calabresi, Seth Barrett Tillman

Seth Barrett Tillman

In a few months, "We the People" will go to the polls and elect the electors who will elect (or, at least, have an opportunity to elect) the next President of the United States. Short of an act of God or an act of war, it is more likely than not that the next President will be a sitting United States Senator. The expectation is that a Senator/President-elect resigns his or her legislative seat some time prior taking the presidential oath of office. It is widely believed in large and influential academic circles and among the educated public generally that …

Senate Termination Of Presidential Recess Appointments, Seth Barrett Tillman

Seth Barrett Tillman

I argue that as a simple straight forward textual matter the Senate majority can terminate a presidential recess appointment by terminating their session, i.e., the session that meets following a presidential intersession recess appointment. If the president makes an intrasession recess appointment (assuming such things have any constitutional validity at all), the Senate can terminate that appointment too - by terminating the current session, immediately reassembling, and then terminating the new session!

I do not argue that American history or the Constitution's structure support this position, nor do I feel inclined to do so, where as here, the text is …

Terminating Presidential Recess Appointments: A Reply To Professor Brian C. Kalt, Seth Barrett Tillman

Seth Barrett Tillman

This article replies to Professor Kalt's response to my opening article, "Senate Termination of Presidential Recess Appointments."

I argue that as a simple straight forward textual matter the Senate majority can terminate a presidential recess appointment by terminating their session, i.e., the session that meets following a presidential intersession recess appointment. If the president makes an intrasession recess appointment (assuming such things have any constitutional validity at all), the Senate can terminate that appointment too - by terminating the current session, immediately reassembling, and then terminating the new session!

I do not argue that American history or the Constitution's structure …

“Statistical Judo”: The Rhetoric Of Senate Inaction In The Judicial Appointment Process, E. Stewart Moritz

E. Stewart Moritz

This article first briefly summarizes the issues that arise in the lower-court judicial confirmation process, and examines how the issues differ from those that arise during the confirmation of Supreme Court justices. The article considers constitutionally-based differences as well as practical differences in Senate and Executive behavior that have developed during more than two centuries of judicial confirmations. The body of the article offers a chronological history and critique of the rhetoric of both Republican and Democratic senators in discussing lower-court confirmations during the 107th Congress. This congressional session, spanning the years 2001 to 2002, was a particularly interesting one …

The Senate Power Of Advice And Consent On Judicial Appointments: An Annotated Bibliography And Research Guide, Michael J. Slinger, Lucy S. Payne, James L. Gates

Michael J. Slinger

No abstract provided.