Law Commons^™

Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz

Josh Chafetz

No abstract provided.

Multiplicity In Federalism And The Separation Of Powers, Josh Chafetz

Josh Chafetz

By highlighting multiplicity in the federalism context, Alison LaCroix’s new book does constitutional scholarship a great service. Her tracing of the federal idea in the 1760s and 1770s, as well as her tracing of jurisdictional ideas in the early Republic, is thorough and insightful. But it is unclear why her focus suddenly narrows from the federal idea—the idea that multiplicity in levels of government was a virtue rather than a vice—to federal jurisdiction. Certainly, as this Review has endeavored to show, her claim that federalism discourse after 1787 reduced entirely (or even primarily) to jurisdictional debates cannot stand. And this …

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 Unconstitutionality Of The Filibuster, Josh Chafetz

Josh Chafetz

This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional.

After a brief introduction in Part I, Part II describes the current operation of the filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate.

Part III presents a structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" …

Impeachment And Assassination, Josh Chafetz

Josh Chafetz

In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly - and rightly - condemned for suggesting that the murder of the President might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, Benjamin Franklin had made the same linkage over two hundred years earlier, when he noted at the Constitutional Convention that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal - impeachment - would be preferable. …

The Phenomenology Of Gridlock, Josh Chafetz

Josh Chafetz

Assertions that our legislative process is gridlocked — perhaps even "hopelessly" so — are endemic. So many more of our problems would be fixed, the thinking goes, if only our political institutions were functioning properly. The hunt for the causes of gridlock is therefore afoot. This brief Essay, written for the Notre Dame Law Review's 2012 "The American Congress: Legal Implications of Gridlock" Symposium, argues that this hunt is fundamentally misguided, because gridlock is not a phenomenon. Rather, gridlock is the absence of phenomena; it is the absence, that is, of legislative action. Rather than asking why we experience gridlock, …

Cleaning House: Congressional Commissioners For Standards, Josh Chafetz

Josh Chafetz

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all. This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it …

The Political Animal And The Ethics Of Constitutional Commitment, Josh Chafetz

Josh Chafetz

In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality—an account that was influential among the Framers of the U.S. Constitution and that remains influential today — Chafetz suggests that at least some of …

'In The Time Of A Woman, Which Sex Was Not Capable Of Mature Deliberation': Late Tudor Parliamentary Relations And Their Early Stuart Discontents, Josh Chafetz

Josh Chafetz

The English Civil War is one of the seminal events in Anglo-American constitutional history. Oceans of ink have been spilled in debating its causes, and historians have pointed to a number of salient divisions along economic, social, political, and religious lines. But a related, and equally important, question has gone largely ignored: what allowed the House of Commons, for the first time in English history, to play the lead role in opposing the Crown? How did the lower house of Parliament develop the constitutional self-confidence that would allow it to organize the rebellion against Charles I? This Article argues that …

It's The Aggregation, Stupid! [Book Review], Josh Chafetz

Josh Chafetz

This Comment reviews James Surowiecki's book, The Wisdom of Crowds (2004). It first situates Surowiecki's arguments with respect to traditional ideas of crowd stupidity, on the one hand, and Hayekian arguments about spontaneously ordering systems, on the other. Surowiecki notes that crowds can be both much smarter and much stupider than their component parts. The Comment examines Surowiecki's criteria for distinguishing smart crowds from stupid ones. It then applies those criteria to juries and theories of deliberative democracy, and makes several suggestions as to how we can structure deliberative institutions so as to make them wiser than their members.

Whose Secrets?, Josh Chafetz

Josh Chafetz

No abstract provided.

Congress's Constitution, Josh Chafetz

Josh Chafetz

No abstract provided.

Curing Congress’S Ills: Criminal Law As The Wrong Paradigm For Congressional Ethics, Josh Chafetz

Josh Chafetz

No abstract provided.

Executive Branch Contempt Of Congress, Josh Chafetz

Josh Chafetz

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

Josh Chafetz

No abstract provided.