Law Commons^™

High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck

Faculty Publications

This Article had its genesis in a statement by the authors submitted to the House Judiciary Committee during its proceedings regarding the impeachment of President Clinton. This final much expanded version appears after the conclusion of the Clinton impeachment proceedings in the Senate, and it is certainly informed by the course those proceedings took. Strictly speaking, however, this is not an article “about” the Clinton impeachment. Although this Article draws some conclusions from the treatment by the House and Senate of the fundamental allegations against President Clinton, it does not address in detail the specific facts underlying those allegations. The …

Delegation And The Constitution, Gary S. Lawson

Faculty Scholarship

In 1690, John Locke wrote that legislators “can have no power to transfer their authority of making laws and place it in other hands.” A century later, in 1789, the federal Constitution provided that “all legislative Powers herein granted shall be vested in a Congress of the United States.” A little more than a hundred years later, in 1892, the Supreme Court declared in Field v. Clark: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

In 1989, nearly …

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

Some Realistic Thinking About Secular Effects, Paul E. Salamanca

Law Faculty Scholarly Articles

Notwithstanding complaints about incoherence in Establishment Clause doctrine, courts by and large administer the Clause responsibly. They do so by mediating between a number of powerful considerations, none of which can ever be entirely disregarded. These considerations include, but are not limited to, separation of church and state, the value of religiosity, the imperative of affording equal treatment to religious and similarly situated nonreligious entities, and the proper role of courts in a democratic political system. This is not to say that courts cannot overstep their bounds and provoke an adverse reaction from other powerful elements within the polity. It …

"High Crimes And Misdemeanors": Recovering The Intentions Of The Founders, Gary L. Mcdowell

Law Faculty Publications

Such serious charges by so many distinguished historians demand a careful consideration of what the Founders meant by "high Crimes and Misdemeanors": Were they only indictable crimes or did they include what one of the Framers called "political crimes and misdemeanors?" Were they offenses that a President would commit only in "the exercise of executive power" or did they also include a President's malfeasance committed in his private capacity? Were they subject to a reasonably fixed meaning or were they to be determined simply by the exercise of the "awful discretion" of those in Congress called upon to impeach and …

Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger

Reviews

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. …

Nea V. Finley: A Decision In Search Of A Rationale, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Debate has raged over whether Congress can constitutionally restrict, or at least influence, the ability of the National Endowment for the Arts (“NEA”) to award grants to artists and institutions for the creation or display of art work that a significant segment of the public would consider highly offensive. In the October 1997 Term, the Supreme Court, by an 8-1 margin in NEA v. Finley, upheld section 954(d), a 1991 congressional amendment to the NEA Act that requires the Chairperson of the NEA to ensure that, in establishing regulations and procedures for assessing artistic excellence and artistic merit, “general standards …

Constitutions And Spontaneous Orders: A Response To Professor Mcginnis, Adam C. Pritchard, Todd J. Zywicki

Articles

Professor John McGinnis has written a perceptive and provocative comment on our economic analysis of the role of tradition in constitutional interpretation.1 A brief summary of our areas of agreement and disagreement may help set the stage for this response. It appears that Professor McGinnis substantially agrees with the two central propositions of our article. First, he appears to agree with our definition of efficient traditions as those evolving over long periods of time from decentralized processes.2 Second, he explicitly agrees that Justices Scalia and Souter have adopted sub-optimal models of tradition because they rely on sources that lack the …

United States Supreme Court: 1999 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki

Articles

In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …