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Full-Text Articles in Law
The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus
The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus
Articles
Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court’s constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives …
The Executive Branch Anticanon, Deborah Pearlstein
The Executive Branch Anticanon, Deborah Pearlstein
Articles
Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …
Getting Past The Imperial Presidency, Deborah Pearlstein
Getting Past The Imperial Presidency, Deborah Pearlstein
Articles
In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned …
Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack
Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack
Articles
No abstract provided.
Bearing Arms In Washington State, Hugh D. Spitzer
Bearing Arms In Washington State, Hugh D. Spitzer
Articles
Article I, Section 24 of the Washington State Constitution directly affects two "hot topics" today: first, the increase in the carrying of weapons by the citizenry (particularly concealed weapons, with or without permits) and, second, the increase in "citizen militias" in various parts of the state. Article I, Section 24 also presents interesting issues from a pure state-constitutional-law standpoint, because it represents one of the striking characteristics of state constitutions: these basic documents of civil society for each state represent centuries of buildup and accretion. State constitutional provisions can often be analyzed in terms of layering. In preparing a state …