Thursday, February 23, 2017
Originalism as Old and New, Part II
The Anti Head of State
Gerard N. Magliocca
One fascinating aspect of the Trump Administration is that the President is functioning as the antithesis of a traditional head of state. Think about a country where the head of state and head of government roles are divided (for example, Queen Elizabeth II and Prime Minister May). What does the head of state do there? Basically, he or she acts as a unifying figure who is not partisan. The head of government is responsible for making policy, and the head of state performs ceremonial tasks and offers soothing rhetoric about values that are widely shared. American Presidents act like a head of state some of the time (and some, especially George Washington, did this more often) even though they are both the head of state and the head of government.
Wednesday, February 22, 2017
Will the United States survive the 2016 election (and 2017 Inauguration of Donald Trump)? Continuing
Tomorrow I shall teach Prigg v. Pennsylvania to my class. For non-professors, it is what I think is the worst single decision in our 225 year history. Justice Story not only upheld the constitutionality of the Fugitive Slave Law of 1793, but also declared a constitutional right to "self-help repossession" by slaveowners who could kidnap purported fugitives without recourse to the slightest legal process (inasmuch as Story also declared unconstitutional Pennsylvania's "personal liberty" law that required going before a Pennsylvania court (or a federal court) before purported fugitives could be taken from the state. Enforcement of Fugitive Slave Laws of 1793 and then 1850 helped to contribute to the breakdown of the Union, renting the "mystic chords of memory" that resulted in secession and then the slaughter of 750,000 persons between 1861-1865.
Monday, February 20, 2017
Does New York State Have a Copy of President Trump’s Federal Returns?
Sunday, February 19, 2017
Originalism as Old and New
I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School. There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement. Most of the people in attendance were originalists. I was one of a small but non-trivial number of critics of originalism there, and the fact that we were included also speaks well for the conference, of course. I learned things worth learning and would be delighted to go again.
Saturday, February 18, 2017
Crisis? What Crisis?
Friday, February 17, 2017
Would a Parliamentary System Stop Trump?
The United States has a presidential system. That means that once a president is elected, he or she stays in office for four years, barring death, disability, resignation, or impeachment. The 25th Amendment allows for the Vice President and the Cabinet to displace a president who is unable to perform the duties of his or her office, but we have not yet seen that particular mechanism work in operation to determine how well it would operate.
Wednesday, February 15, 2017
Departmentalism, Judicial Supremacy, and Trump
Tuesday, February 14, 2017
Reciprocal Legitimation in Response to President Trump
In Reciprocal Legitimation in the Federal Courts System, I offer an account of the relationship that the Supreme Court may forge with most lower federal courts in response to perceived threats to the public legitimacy of the federal judiciary. I suggest that a three-stage process of reciprocal legitimation helps explain the path from Brown v. Board of Education to the subsequent per curiams, from Baker v. Carr to Reynolds v. Sims, and from United States v. Windsor to Obergefell v. Hodges.
The 25th Amendment Option: Law and Politics
Monday, February 13, 2017
More on Constitutional Crisis
Over at Vox, Dylan Matthews has a nice round up of the literature on constitutional crisis, constitutional hardball, and constitutional showdowns. All the experts that Matthews interviewed agreed, as I had suggested in a previous essay, that we are not currently in a constitutional crisis, although it might happen at some point in the future if President Trump refuses to obey a direct judicial order.
Not A Suicide Pact. Sad!
Gerard N. Magliocca
You are probably familiar with the line that "The Bill of Rights is not a suicide pact." This phrase is sometimes invoked to justify restrictions of civil liberties in the interests of national security and comes from Justice Robert H. Jackson's dissent in Terminiello v. Chicago, a 1949 case in which the Court held that the First Amendment prohibited the conviction of a speaker for "breach of the peace" because his political comments led to angry protests at the event he was addressing. Justice Jackson stated: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
Saturday, February 11, 2017
Does Jason Chaffetz understand his job?