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Full-Text Articles in Law

Presidential Constitutional Interpretation, Signing Statements, Executive Power And Zivotofsky, Henry L. Chambers, Jr. Oct 2016

Presidential Constitutional Interpretation, Signing Statements, Executive Power And Zivotofsky, Henry L. Chambers, Jr.

Law Faculty Publications

This Article explores whether the President should interpret the Constitution aggressively and, if so, whether the President should act on such aggressive interpretations. Part I examines whether the presidential oath and other constitutional duties obligate the President to interpret the Constitution. Part II considers constitutional signing statements as the manifestation of an aggressive approach to presidential constitutional interpretation. Part III considers whether the Constitution is a legal document or a political document, and how that determination might affect how aggressive the President should be when interpreting the Constitution. Part IV considers how the Supreme Court's and Congress's constitutional ...


Reflections Of An Empirical Reader (Or: Could Fleming Be Right This Time?), Gary Lawson Jul 2016

Reflections Of An Empirical Reader (Or: Could Fleming Be Right This Time?), Gary Lawson

Faculty Scholarship

Professor Jim Fleming’s new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, purports to critique all forms of originalism from the perspective of Professor Fleming’s “moral reading” of, or “philosophic approach” to, the Constitution. I propose a somewhat different opposition: empirical reading versus moral reading. Empirical reading is necessarily originalist, but it focuses directly on the need to ground interpretation in theories of concepts, language, and communication. In this short comment, I outline the research agenda for a theory of empirical reading, explore the extent to which empirical readings and moral readings of the ...


Is The Constitution Special?, Christopher Serkin, Nelson Tebbe Jan 2016

Is The Constitution Special?, Christopher Serkin, Nelson Tebbe

Cornell Law Faculty Publications

“[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find ...


How Presidents Interpret The Constitution, Harold H. Bruff Jan 2016

How Presidents Interpret The Constitution, Harold H. Bruff

Articles

No abstract provided.


Why Enumeration Matters, Richard A. Primus Jan 2016

Why Enumeration Matters, Richard A. Primus

Michigan Law Review

The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen ...


Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh Jan 2016

Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh

Journal Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law ...


Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy Kessler, David Pozen Jan 2016

Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy Kessler, David Pozen

Faculty Scholarship

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that ...


Constitutional Bad Faith, David E. Pozen Jan 2016

Constitutional Bad Faith, David E. Pozen

Faculty Scholarship

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse.

This Article investigates these points and ...


Explication Du Texte: "I'M An Originalist; I'M A Textualist; I'M Not A Nut.", D. A. Jeremy Telman Dec 2015

Explication Du Texte: "I'M An Originalist; I'M A Textualist; I'M Not A Nut.", D. A. Jeremy Telman

D. A. Jeremy Telman

This short piece commemorates the passing of Justice Scalia. The piece highlights Justice Scalia's ability to appeal to different audiences. His embrace of originalism gave him popular appeal. His embrace of textualism appealed to academics and practitioners. He distinguished his originalism from that of others with his "faint-hearted originalism," cabined by stare decisis and a dose of prudence.