Law Commons^™

Epilogue: The Elephant In The Room, Jamal Greene

Faculty Scholarship

This chapter explores the contrasting role of proportionality discourse in the USA and in Latin America. Although the USA provided an important constitutional model for Latin American countries, the latter does not share the former’s disinterest in the proportionality framework, which is considered foreign to the legal tradition of the country despite the fact it is arguably harmonic with the approach to law creation in the common law tradition. The chapter seeks possible explanations for the contrast in four elements: the importance in Latin America of centralized, specialized constitutional jurisdiction; the tradition of borrowing constitutional jurisprudence from abroad; the openness …

America’S Relation To World Order: Two Indictments, Two Thought Experiments, And A Misquotation, Philip C. Bobbitt

Faculty Scholarship

The State is undergoing a crisis of legitimacy owing to its inability to cope with novel problems of weapons proliferation, transnational threats including climate change, a fragile global financial infrastructure, cultural influences carried by electronic communications, and an undemocratic regime of human rights law. These fatal inadequacies are summoning forth a new constitutional order, the latest in a series of century-spanning archetypal regimes that have arisen since the Renaissance and the collapse of feudalism. A backlash against the harbingers of this new order, however, is crippling the development of those modes of action that are required to deal with the …

Presidential Human Rights Talk, Margaret E. Mcguiness

Faculty Publications

In response to Professor Harold Hongju Koh's March 2017 keynote at Washburn University, "The Trump Administration and International Law," this essay examines the diplomatic and political rhetoric deployed by past presidents in support of human rights to argue that such "presidential human rights talk" represented an important element of U.S. human rights policy and promoted the transnational transmission of human rights norms. President Trump's complete abandonment of presidential human rights talk signals an end to what remains of American "human rights exceptionalism." Combined with Trump's "America First" approach to foreign policy, which rejects the value of the international institutions the …

The Administrative State In America, William J. Novak

Book Chapters

The purpose of this contribution is to examine the idea of the Continental State in a common-law context. To that effect, the focus of this essay is the American state. Typically, in comparing the American regime to the Continental idea of the state, much has been made of a so-called tradition of ‘American exceptionalism’. Alexis de Tocqueville perhaps started this trend when he observed in the United States distinctive qualities of individualism, associationalism, localism, and decentralization, but not many inklings of a modern state. ‘The federal government of the United States’, he mistakenly surmised in the early nineteenth century, ‘is …

The Separation Of People And State, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The subject of American exceptionalism, about which much has been written, is extremely complex. There is no simple way to describe all the ways in which America differs from the other nations of the world.

The United States Constitution is a central part of the creed that defines, creates, and preserves American exceptionalism. The American vision of constitutionalism includes at least four distinctive elements:

• the belief in adherence to a founding document: a written Constitution;
• the belief in constitutionally limited government;
• the legal enforcement of these limits by an independent judiciary, and the invocation of these limits by the Congress, …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

Publications

No abstract provided.

We The Exceptional American People, James E. Fleming

Faculty Scholarship

I. INTRODUCTION: "AMERICAN EXCEPTIONALISM" There is an academic movement afoot-one with a long historical pedigree-to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.2 He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).3 Only dualists have the "strength" to declare our American independence from British …