American Constitutional System Research Articles

The Man of the People: Political Dissent and the Making of the American Presidency

In this fascinating study of early American politics, Nathaniel C. Green uses the presidency as a lens through which to see the development of American national identity, the struggle to establish the authority of the American constitutional system, and the tensions between the emergence of partisan divisions and the desire for national unity. Green eschews the familiar stories about the early American presidency. He does not look at the office of the presidency from the perspective of its occupant. He avoids the momentous early constitutional debates over the scope of the powers of the presidency and the humdrum of presidential administration and policy making. The presidency being “made” in these pages is the presidency of the public imagination. How did people talk about the presidency, and those who aspired to exercise the powers of the presidency, in the early years of the republic? Through a wide-ranging but close examination of...

Inequality, Federalism, and Politics in the U.S.: A Review Essay Donald F.Kettl, The Divided States of America: Why Federalism Doesn't Work(Princeton, NJ: Princeton University Press, 2020). 236pp. (including index) $27.95 (hardback), ISBN: 978‐0‐691‐18227‐8.Thomas E.Mann and Norman J.Ornstein, It's Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism(New York: Basic Books, 2012). 247pp.

Inequality, Federalism, and Politics in the U.S.: A Review Essay Donald F.Kettl, The Divided States of America: Why Federalism Doesn't Work<i>(</i>Princeton, NJ: <i>Princeton University Press</i>, 2020<i>)</i>. 236<i>pp</i>. <i>(including index) $27.95 (hardback)</i>, <scp><i>ISBN</i></scp>: <i>978‐0‐691‐18227‐8</i>.Thomas E.Mann and Norman J.Ornstein, It's Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism<i>(</i>New York: <i>Basic Books</i>, 2012<i>)</i>. 247<i>pp</i>.

LIBERAL FREEDOM, THE SEPARATION OF POWERS, AND THE ADMINISTRATIVE STATE

AbstractContemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of the separation of powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances.

Cyber Operations, Legal Secrecy, and Civil-Military Relations (book chapter in Reconsidering American Civil-Military Relations, Lionel Beehner, Risa Brooks &amp;amp; Daniel Maurer, eds. (2020))

Civil-military relations in cyberspace are under-studied. So too are the roles at their intersection played by law and secrecy. To illuminate the nexus of these matters and to spur additional thought and policy action, this chapter makes several observations and recommendations. First, salient aspects of cyberspace make civil-military relations in the realm of digital national security operations especially challenging, uncertain, and consequential. Second, the two most powerful masters of the military in the American constitutional system – the Congress and the President – have in recent years given the military expansive authority for operations in a realm where it is unusually difficult for civilians and elected officials to monitor and appraise their performance. A reported classified order by President Trump appears to be consistent with his administration’s broader effort to drive responsibility for national security decisions down the chain of command. That is, away from suits and toward uniforms, and away from the Executive Branch’s electorally accountable Commander in Chief and toward agencies. Third, the public record indicates that the military is gaining its greater authority in cyberspace in meaningful part through legal secrecy – via the use of unpublished legal authorities. Such “secret law” is both useful and inherently problematic in a republic, as I have explored in depth elsewhere in my scholarship. Fourth and finally, this chapter argues that Congress is right to be engaged on cyber operations. But Congress should be doing more than delegating authority. It should also exercise its constitutional prerogatives to write rules that govern and regulate cyber operations in ways that expressly account for the challenges in transparency, technical familiarity, and civil-military relationships these operations inevitably raise.

The President in His Labyrinth: Checks and Balances in the New Pan-American Presidentialism

This dissertation presents a theory of the separation of powers centered on the President’s “power to persuade.” To meet the imperial public expectations placed on the office in the modern age, the President will reliably try to supplement his limited formal powers by convincing others to support his agenda, the people, party allies, and courts being the most important. The President’s techniques of persuasion fall into three regular categories. First, there is “going public,” or popular leadership, where the President turns the force of popular majorities into a tool for shaping policy or legislative outcomes. Second is executive law-making, whereby the President presses on party alliances to shape legislative content: drafting legislative proposals, mediating congressional debates, soliciting or taking advantage of broad delegations of authority. Finally, there is emergency management, whereby the President invokes security threats, real or contrived, to press his natural advantages of speed and decisiveness and claim exclusive power over governance. In three case studies from Latin America, I illustrate these techniques and how institutions have adapted in response. Some are success stories, some are not, but all offer evocative lessons in designing solutions to problems the U.S. also confronts. First, on popular leadership, I discuss Venezuelan democracy under populist Hugo Chavez, in which institutions that could be coopted and radicalized (the courts, the legislature) were, while those that could not (opposition governorships and state and local agencies) were duplicated and circumvented by a proliferation of loyalist organizations that effectively created a shadow “parastate.” Second, I give a critical assessment of Brazil’s spin on “cabinet government,” in which the makeup of the President’s Cabinet directly mirrors party balance in the legislature, thereby heightening the risks of quid-pro-quo policymaking, but also drawing a beneficial link between policy and representative democracy. Finally, I describe Colombia’s efforts to “judicialize” war, internal rebellion, and other economic or social crises by subjecting these to judicial review by the Constitutional Court, created in 1991 with a mandate to curb a historical legacy of presidential excess. Bringing these lessons home, I discuss how the American constitutional system is designed to absorb the shocks of populism, de facto presidential legislating, and the abuse of war powers, and how to channel their beneficial tendencies and contain their negative aspects. I argue that the U.S.’ robust civil society prevents the most egregious abuses of the “bully pulpit,” but that sweeping institutional capture can happen, and that the rule of law is threatened where institutions like the EPA or the FBI are not reformed, but tarred as illegitimate and unrepresentative. Second, I treat executive-legislative cooperation in governance and increases in delegated authority as essentially unavoidable, but argue that the concentration of power ought to be met by increased mechanisms of public oversight and participation that go beyond notice-and-comment, to include citizen initiatives. Finally, I argue that the exploitation of presidential war power needs to be made accountable to strict temporal and legal limits, and that in the American constitutional system, this would be most practically achieved by a new jurisprudence abandoning the political question doctrine with regard to invocations of the commander-in-chief power, especially those unsupported by congressional authorization.

Trade and the Separation of Powers

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic economics paradigm dominated in the nineteenth century, and the foreign affairs paradigm from the mid-twentieth century. Since the end of the Cold War, however, trade law and policy has become increasingly divisive and contentious. Trade law and policy entered a new era of liberalization, characterized by international organizations (like the WTO) and a shift to mini-lateral free trade agreements. By 2016, backlash was in full force, with candidates Donald Trump, Bernie Sanders, and Hillary Clinton all coming out against the Trans-Pacific Partnership (TPP). Since taking office, President Trump has instituted high tariffs on solar panels, threatened to withdraw from NAFTA, and sparked concern about a trade war with China. This Article makes three contributions. First, we argue that the current discontent over trade is not just a matter of the distribution of economic gains and losses but a matter of the distribution of constitutional powers. We provide a thorough descriptive account of the two paradigms for trade within our constitutional system and show that trade has migrated from a domestic to a foreign affairs matter – and ultimately that it has becoming unhooked even from specific foreign affairs objectives. As trade drifted further away from the balance struck by our separation of powers and became increasingly rooted in the Presidency, agreements liberalizing trade rules became more viable – but at the cost of the political sustainability that comes with greater congressional involvement. Second, we make a normative case for rebalancing trade within the constitutional structure. We argue that trade shares few similarities with other foreign affairs and national security areas in which the President is seen to have a functional advantage, and perhaps surprisingly given the conventional wisdom, that the parochial interests of Congress present strong benefits to trade policymaking that are widely undervalued. Finally, we apply this rebalanced framework for trade law and policy to a variety of contemporary debates, including the role of fast track authority in negotiating and approving trade agreements, the President’s power to declare trade wars, the scope of the President’s authority to withdraw from trade agreements, the use of unorthodox international agreements in the commercial context, and the increasing conflict between trade agreements and state and local authority, which we term “trade federalism.”

The Development of the Guarantees Against Self-Incrimination in the Latin American Constitutional System: Different Views on a Common Legal and Political Institute

The right to silence, and the broader guarantee against self-incrimination, is a juridical construction that found in Latin America a fertile ground for its development. Considering the common history of authoritarian dictatorships and the subsequent resistance to oppression-based legal culture, most Latin American constitutions provided clauses that protected the criminal defendant against physical or psychic abuse and violent means of proof from the State. Therefore, constructing a dialogue between the jurisprudence of Latin American Constitutional Courts, as well as the Inter-American Court of Human Rights, is utterly important as a means to build a minimal standard of efficacy.

Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for Presidents and Members of Congress

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

Ban on Planned Parenthood Funding is an Unconstitutional Bill of Attainder

The denial of federal or state women’s health care funding for Planned Parenthood and other women’s health care providers that include abortions in the wide array of services that they provide to low-income women is an unconstitutional bill of attainder. A bill of attainder is a trial by a legislature in which the legislature enacts a law that is designed to punish a named person or an identifiable group of persons. It goes back to 16th, 17th and 18th century Great Britain, where Parliament would enact a law finding certain opponents of the Crown guilty of treason and confiscating their property. And during the Revolutionary War, all of the colonial legislatures used bills of attainder to confiscate the property of British loyalists. The Framers of the Constitution were determined to put an end to this pernicious practice and so unanimously and without debate, specifically provided in the Constitution that “no bill of attainder shall be passed by Congress or by any state.” The Supreme Court has interpreted the constitutional prohibition against bills of attainder very broadly, going beyond the imposition of a criminal penalty. Rather the Court has applied a functional test to prohibit legislative punishment of any form or severity against specifically designated persons or groups. Under this test, the denial of a governmental benefit to an organization otherwise eligible to receive it on the ground that the organization enabled women to exercise their fundamental right to have a safe and legal abortion clearly constituted punishment, and by definition, there could be no legitimate non-punitive purpose served by this denial. It is thus an unconstitutional bill of attainder. It has no place in the American constitutional system.

Constitutional Interpretation and Change in the United States: The Official and the Unofficial

This lecture, given at the Institut Villey in Paris, describes the processes of constitutional change in the American political and legal system.The first part of the lecture briefly summarizes the theory of framework originalism featured in Living Originalism.The second part of the lecture explains how the American constitutional system actually changes in practice, emphasizing two kinds of contributions to constitutional development. The first are the official contributions of laws and judicial doctrines. The second are the unofficial contributions of political parties and civil society, expressed through political mobilization, social influence, and cultural change.American constitutional development features a dialectic of legitimation. Efforts by the political branches to build out state functions, and efforts by civil society groups to make constitutional claims spur constitutional controversies. These controversies, in turn, may generate judicial doctrine that legitimates or holds illegitimate what political actors have done. Even when courts strike down particular laws or practices, their decisions may lead to other pathways for achieving political goals that will later be declared legitimate.The dialectic of legitimation explains the point of judicial review in the American constitutional system. Judicial review does not simply constrain or limit state power; rather judicial review legitimates, shapes and redirects political power. Indeed, modern democracies with judicial review are able to project power in ways that earlier states could never have imagined.The third part of the lecture explains why American constitutional theory appears to feature an opposition between living constitutionalism and originalism, an opposition which is actually illusory. Both calls for a return to original meaning and assertions that Americans have a living constitution are responses to the same phenomenon - the recognition that the world that produced the ancient constitution has dissolved. This is the experience of constitutional modernity.Constitutional modernity generates equal and opposite responses, which have been offered by both liberals and conservatives in the twentieth and twenty-first centuries - the need to cleave to the past and its symbols and concrete manifestations, and the need to transcend the past through pragmatic adaptation to a changed world.

The Rejection of Horizontal Judicial Review During America’s Colonial Period

What we now call judicial review in the United States became part of the American constitutional system during the 1780s. There had been an earlier English tradition of review, which subjected the “legislative” enactments of inferior jurisdictions to reevaluation, but this English tradition rested on the idea that review was an inherently “vertical” enterprise. Only a “superior” jurisdiction was entitled to review and void the enactments of another “legislative” body. The great innovation that American state judges introduced during the 1780s was subjecting the enactments of their own legislatures to review, initiating a constitutionally controversial form of “horizontal” review. This article examines an earlier (failed) effort to introduce “horizontal” judicial review into one American colony. The debate that grew out of this attempt reveals a good deal not only about the underlying ideas upon which judges could draw--even at that time--to justify such a practice, but also about the dominant assumptions of English constitutionalism that worked against this form of judicial review. Significant changes would have to take place in political and constitutional conditions before the case for “horizontal” judicial review could succeed in America.

What comparativism tells us about originalism

Defended as a method of constitutional interpretation, originalism is typically thought to reflect uniquely American anxieties about the judicial expansion of rights and the place of popular constitutional culture in judicial review. As such, it has appeared to be of little general interest to constitutional scholars. This paper uses comparative constitutional law to challenge that assumption. Australian constitutionalism lacks the key features thought to make the view distinctively American and yet, the paper argues, originalism not only thrives in Australia but has a firmer foundation in the Australian constitutional system. This has important implications for the application of comparativism to constitutional theory beyond the debate about originalism: the fact that theorists have largely overlooked the possibility that the American constitutional system is not the best fit for originalist interpretation helps show how assumptions grounded in American debates about judicial activism have come to define the aims of interpretive theory.

CONSTITUTIONAL AND LEGAL DEVELOPMENT OF THE REPUBLIC OF THE PHILIPPINES AND PECULIARITGIES OF THE 1987 CONSTITUTION

The article analyzes the stages of constitutional development of the Philippines, the principles and characteristics of the various constitutional acts adopted in the American colonial period and after the country's legal independence. Particular attention is paid to the principles and the specific characteristics of the current constitution of 1987, as well as the constitution of 1935, which was the first basic law, which laid the foundations of western constitutional model and the basic principles characteristic of the constitutions of democratic countries, including progressive for that time legal status of the individual, based on the "Bill of Rights" and directly borrowed from the American constitutional system. The question of the national state of one of the countries in South-East Asia is also analyzed which is of considerable scientific interest in terms of the perception of the Western model of democracy and attempts at planting on alien for these models of socio-economic and political framework. The author mentions how, after the provision of legal independence from the U.S. in 1946, the Philippines went the way of the serious distortion of the principles of "Western democracy". There was a wide gap between the formal democratic constitutional institutions of the Western model and the actual breaking of on the basis of eastern states with traditionally immature social structure, backward productive forces. The author shows that the U.S. attempts to impose its former colony model of American state and legal institutions that would facilitate the establishment of the South- East Asia "window of Western democracy", and could serve as a role model for the layout of other countries, not only in South-East Asia but also in Africa and Latin America, suffered a fiasco.

It's even worse than it looks: how the American constitutional system collided with the new politics of extremism

Hyperpartisanship is as old as American democracy. But now, acrimony is not confined to a moment; it's a permanent state of affairs and has seeped into every part of the political process. Identifying the overriding problems that have led Congress--and the United States--to the brink of institutional collapse, It's Even Worse Than It Looks profoundly altered the debate about why America's government has become so dysfunctional. Through a new preface and afterword, Thomas Mann and Norman Ornstein bring the story forward, examining the 2012 presidential campaign and exploring the prospects of a less dysfunctional government. As provocative and controversial as ever, It's Even Worse Than It Looks will continue to set the terms of our political debate in the years to come.

It's Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism

Journal Article It's Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism Get access It's Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism by Thomas E. Mann. and Norman J. Ornstein. New York, Basic Books, 2012. 240pp. $26.00. Gerald M. Pomper Gerald M. Pomper Rutgers University Search for other works by this author on: Oxford Academic Google Scholar Political Science Quarterly, Volume 128, Issue 1, Spring 2013, Pages 162–163, https://doi.org/10.1002/polq.12022 Published: 29 April 2013

America's unwritten constitution: the precedents and principles we live by

Despite its venerated place atop American law and politics, our written Constitution does not enumerate all of the rules and rights, principles and procedures that actually govern modern America. The document makes no explicit mention of cherished concepts like the separation of powers and the rule of law. On some issues, the plain meaning of the text misleads. For example, the text seems to say that the vice president presides over his own impeachment trial--but surely this cannot be right. As esteemed legal scholar Akhil Reed Amar explains in America's Unwritten Constitution, the solution to many constitutional puzzles lies not solely within the written document, but beyond it--in the vast trove of values, precedents, and practices that complement and complete the terse text. In this sequel to America's Constitution: A Biography, Amar takes readers on a tour of our nation's unwritten Constitution, showing how America's foundational document cannot be understood in textual isolation. Proper constitutional interpretation depends on a variety of factors, such as the precedents set by early presidents and Congresses; common practices of modern American citizens; venerable judicial decisions; and particularly privileged sources of inspiration and guidance, including the Federalist papers, William Blackstone's Commentaries on the Laws of England, the Northwest Ordinance of 1787, Lincoln's Gettysburg Address, and Martin Luther King, Jr.'s I Have a Dream speech. These diverse supplements are indispensible instruments for making sense of the written Constitution. When used correctly, these extra-textual aids support and enrich the written document without supplanting it. An authoritative work by one of America's preeminent legal scholars, America's Unwritten Constitution presents a bold new vision of the American constitutional system, showing how the complementary relationship between the Constitution's written and unwritten components is one of America's greatest and most enduring strengths.

The Constitutional Philosophy of Barack Obama: Democratic Pragmatism and Religious Commitment

ObjectivesThis article examines whether Barack Obama has a Constitutional philosophy and, if so, what those ideas are.MethodsThe article notes contrasting scholarly views on whether Obama's career exhibits consistent ideas and on the content of his ideas. It uses interpretive exposition of Obama's major writings, speeches, and presidential initiatives, based on all of Obama's writings and speeches through 2010, to identify Obama's ideas.ResultsObama generally expresses and acts on views that accord with modern democratic pragmatist philosophic beliefs in deliberative democracy. It has not been fully recognized that Obama interprets the meaning of the U.S. Constitution as embodying these beliefs; that he blends this Constitutional view with egalitarian commitments that he identifies with black church social justice values; and that he sees the American Constitutional system's central goal as building greater public unity without effacing diversity.ConclusionsObama belongs to the modern democratic pragmatist tradition elaborated by American thinkers and political leaders since the Progressive era, but his distinctive Constitutional version of this outlook stresses deliberative democratic processes, black church social justice values, and the contention that the goal of the American Constitutional system is “e pluribus unum,” “out of many, one.”

A Constitutional Right to Judicial Review: Access to Courts and Ouster Clauses in England and the United States

This Article examines legislative attempts to preclude judicial review through statutory provisions that purport to strip courts of their jurisdiction. At bottom, these “ouster clauses” raise serious questions about relationships among organs of government, judicial independence, and constitutionalism. By contrasting the basic principle of English constitutional law, parliamentary sovereignty, with a fundamental structural feature of the American constitutional system, separation of powers, the Article begins by noting that it might seem unremarkable that the sovereign British Parliament would, on occasion, attempt legislatively to oust the jurisdiction of English courts. Correspondingly, the Article notes that it might seem unlikely that the coequal American Congress would ever attempt legislatively to preclude judicial review of federal claims in federal courts. After addressing the distinction between statutory cases (where one might expect to find more judicial deference to legislative ouster) and constitutional cases (where one might not), the Article notes that, somewhat surprisingly, British courts seem loath to permit ouster even in statutory cases while American courts largely tolerate this practice. However, in constitutional cases, both the English courts and the American courts seem unwilling to relinquish their jurisdiction and institutional position in the face of legislative pressure. To explain this unified response, despite apparent or alleged constitutional differences, the Article develops the connection between the fundamental right of access to the courts in England and a similar, but largely unstated, recognition of this right in the United States. The Article challenges commonly offered explanations based on a written I unwritten constitution, assertions about legislative supremacy, and differences in theoretical justification for and exercise of judicial review. Instead, the Article attempts to explore the authentic nature of both nations' overarching commitments to the rule of law and judicial autonomy through the work of contemporary scholars and judicial decisions.

Regulatory Takings: A Chronicle of the Construction of a Constitutional Concept

In the American constitutional system the sovereign has the power to enact regulations which are necessary to the common good and general welfare. But the Fifth Amendment to the United States Constitution proscribes that: No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation. And the question of whether a sovereign regulation has taken private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of regulatory takings sits upon a shaky foundation of split decisions; the Court's construction of the constitutional property remains a work in progress. It finds today's Supreme Court is fundamentally split into two blocs. This Great Divide is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of judicial restraint. Those in the Court's liberal wing are said to be judicial activists who are intent on reconstructing the Constitution's language to meet the exigencies of the times. The Court's constitutional property jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

Reflections on constitutional law

In a trend that disturbs nationally known constitutional scholar George Anastaplo, law schools now place very little emphasis on the study of the United States Constitution as a document. Today, many constitutional law professors spend less than a week teaching the history, philosophical tenets, and legal origins of the Constitution itself and more time on Supreme Court cases. In Reflections on Constitutional Law, Anastaplo emphasizes the continuing significance and importance of the Constitution, by examining the most important influences on the American constitutional system, including the Magna Carta and the Declaration of independence. According to Anastaplo, a rigorous understanding of the Constitution is crucial to comprehending the true meaning of Supreme Court decisions.