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Constitutionalism 2030
\"Constitutionalism is in crisis. And the crisis unfolds not only on a national or a regional level. It is a global phenomenon: Democracy is no longer on the rise, the Rule of Law appears weakened, political cohesion seems to erode. Human Rights Protection finds itself questioned, International Criminal Law struggles for broad recognition, international trade may have lost some of its appeal. Institutional actors find their authority questioned, established political parties are threatened by ever-changing popular movements. But where to does the charted road lead? How will the \"Crisis of Constitutionalism\" unfold in the years to come? Nobody knows, of course. But at the same time: Nobody is too keen to make an educated guess either. This volume remedies that. By giving nine eminent scholars in law and political science the opportunity to make their predictions, where the constitutionalist project will stand ten years from now, it creates a forum of deliberation that will not only aim at anticipating the developments in question but at the same time shape academic discourse on constitutionalism alongside it\"-- Provided by publisher.
BOOK
The Myth of the “Weak” American State
Novak attempts to explain, critique, and ultimately displace the long-standing historiographical and theoretical tendency to view the American state as somehow \"weak.\" He reviews the histories that have constructed and reinforced the myth of American statelessness and in- troduces the key texts in an emerging historical revision. Given present-day realities as well as a new generation of work on American state power, nationally as well as internationally, the article argues for a new historical appreciation of the rise of a global hegemon.
Journal Article
The United States Constitution : one document, many choices
\"The U.S. Constitution: One Document, Many Choices is designed to provide an understanding of the document both by explaining its origins in Western political thought and by describing the institutions it created. It further compares these institutions to possible alternatives (e.g., how Congress differs from a Parliament, the President differs from a monarch, and the Supreme Court differs from a bevy of Platonic Guardians). The text explains that institutions within the national government and the division of powers between the nation and the states were designed, like limits of governmental power in the Bill of Rights and other amendments, to protect liberty. The volume is particularly suitable for students who are examining the Constitution for the first time, and it focused only on key Supreme Court decisions that have interpreted the Document. \"-- Provided by publisher.
Book
The Federal Common Law of Nations
Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much ofthat history enforced certain rules respecting other nations' \"perfect rights\" (or close analogues) under the law of nations as an incident of political branch recognition of foreign nations, and in order to restrain the judiciary and the states from giving other nations just cause for war against the United States. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches 9 Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history. This Article does not attempt to settle all questions of how customary international law interacts with the federal system. It does aspire, however, to recover largely forgotten historical and structural context crucial to any proper resolution of such questions.
Journal Article
Fidelity & constraint : how the Supreme Court has read the American constitution
\"The fundamental fact about our Constitution is that it is old--the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution over time of the translation process. In every new era, judges understand their translations as instances of \"interpretive fidelity,\" framed within each new temporal context. Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls \"fidelity to role.\" In each of the cycles of translation that he describes, the role of the judge--the ultimate translator--has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates\"-- Provided by publisher.
Book
Customary International Law as Federal Common Law: A Critique of the Modern Position
In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal common law. Professors Bradley and Goldsmith label this consensus the \"modern position.\" Courts have endorsed the modern position primarily to support their conclusion that international human rights lawsuits between aliens \"arise under\" the laws of the United States for purposes of Article III of the Constitution. Scholars have pushed the consequences of the modern position further by arguing that customary international law preempts inconsistent state law under the Supremacy Clause, binds the President under the Take Care Clause, and even supersedes prior inconsistent federal legislation. In this Article, Professors Bradley and Goldsmith challenge the modern position. They question the modern position's historical validity, and they show that its recent rise to orthodoxy has been accompanied by little critical scrutiny. They then question contemporary arguments for the modern position and show how these arguments depart from basic understandings about American representative democracy, federal common law, separation of powers, and federalism. Professors Bradley and Goldsmith conclude that, in the absence of authorization by the federal political branches, customary international law should not have the status of federal law. This conclusion requires less change in judicial practice than might commonly be thought. Nonetheless, the story of the modern position's rise and continued influence presents cautionary lessons for a democratic society increasingly governed by international law.
Journal Article
Federal intervention in American police departments
\"For much of American history, the federal government has played a limited role in local police regulation. That all changed in 1994, when Congress passed a little known statute that permitted the US Attorney General to reform troubled police department. Since then, many of the nation's largest police departments - including those in Los Angeles, Chicago, Seattle, Washington, DC, Seattle, New Orleans, Pittsburgh, Cincinnati, Cleveland, and Albuquerque - have been subject to federal oversight. But until recently, we've known little about how this federal process works. Drawing on original interviews, court documents, statistical data, and media reports, this book provides the first comprehensive account of federal intervention in American police departments. It shows that, under the right circumstances, federal intervention is uniquely effective at combating misconduct in police departments. However, federal intervention is far from perfect. This book concludes by arguing that Congress should expand and improve federal oversight of policing\"-- Provided by publisher.
Book
SOME CLAIMS ABOUT LAW'S CLAIMS
Our paper has three parts. In Part 1, we discuss John Gardner's thesis that the non-elliptical ascription of agency to law is a necessary and irreducible part of any adequate explanation of the activities of legal officials. We consider three explananda which might conceivably necessitate this ascription, and conclude that none in fact does so. In Part 2, we discuss two other theses of Gardner's: (a) that it makes no sense to ascribe to law the claim that there are legal obligations (rights, permissions, and so on), and (b) that law's claim is the claim that there are moral obligations (rights, permissions, and so on). We take issue with Gardner's arguments for (a), and suggest that (b) is unwarranted in the absence of an argument that law makes any claims at all. In Part 3, we briefly argue that, insofar as it issues requirements, there are certain claims that law cannot but make. We conclude that if Gardner is right that law's claims are those of certain of its officials, it is law-making and not law-applying officials who make law's claim.
Journal Article