United States Constitution Research Articles

Strategic uses of constitutional originalism by conservatives in US gun politics and beyond

ABSTRACT Political scientists have increasingly operationalised ‘Discourse’ as a means through which actors promote their interests. Building on Plehwe (2011, 2014) and Hajer’s (1995, 2006) concept of discourse coalition theory, I explore how actors promote their interests via discourse. I do this through the case of constitutional originalism: the interpretation of the US Constitution in according to its historical provisions, viewing citizens’ rights as determined at the point of its drafting, irrespective of revisions appropriate to modern society. Such a view has become a mainstream philosophy. I show constitutional originalism’s strategic utility for conservatives, as a study of shared ‘flexible discourse’ through which multiple actors pursue differing objectives. In short, actors us the same idea differently and this ‘quid pro quo’ entrenches both the narrative and establishes actors’ goals. This question is the notion that ideology is a coherent thing: rather, it is a convenience that is strategically deployed by different members of the coalition. I develop the framework of Flexible Discourse Theory to this end. ‘Discourse’ is a strategic tool allowing for strength in number, fortifying individual groups’ pursuit of their political ends and the political vehicle which allows differing value sets to be pursued. It is also a means through which diverse coalitions can be built, in which mediating discourses are compatible with diverse values and do not fall between blocs’ ideological faultlines. Flexible discourses’ strategic utility is an important story of political bloc and coalition formation. It elucidates the role of ideation as a deployable tool, through which coalitions are maintained. I explore this theory by analysing constitutional originalism’s political uses for the American right, in the victory case for originalism, D.C. v. Heller (2008) on Second Amendment rights, and how this strategy is deployed towards a variety of other political stances. In brief, this is a study of how actors use ideology strategically and instrumentally to realise their interests.

Plan z Albany i koncepcja brytyjskiej konstytucji imperialnej Benjamina Franklina

The Albany Plan of Union was a plan to create a unified federal government for the British colonies in America at the Albany Congress on July 10, 1754 in Albany, New York. One of its originators was Benjamin Franklin – a delegate from Pennsylvania. The plan called for a general government to be administered by a President-General, to be appointed and supported by the Crown, and a Grand Council to consist of delegates nominated by the colonial assemblies. Proposed powers included treaty-making, and raising army and naval forces and, most significantly, included the right of taxation. The plan was part of the implementation of Franklin’s concept of changing the way British rule in America and creating a federal British Empire. The plan was rejected by colonial assemblies and the Crown but it was a forerunner for the Articles of Confederation and the United States Constitution.

American Constitution and Environmental Policies

American Constitution and Environmental Policies

"Pray Liberty of Conscience to Revive Us": James Madison's Understanding of Religious Liberty in the US Constitution

"Pray Liberty of Conscience to Revive Us": James Madison's Understanding of Religious Liberty in the US Constitution

The Fourth Amendment to the Constitution of the United States of America in the Light of the European Union Data Protection Model

The question of adequacy of data protection model in the United States is one of the most important in transatlantic business and politic relations. The fact that European Commission’s decisions recognizing the adequacy have been annulled twice put relations between EU and US in very difficult phase. In this article I aim to analyse whether basis guarantees for privacy protection in the United States in the shape of the Fourth Amendment to the US Constitution are adequate in the meaning of data protection model in EU. By looking at the practice of interpreting of the Fourth Amendment and art. 8 of European Convention of Human Rights, in line with police directive and GDPR I try to answer the questions if the Fourth Amendment protection gives enough guarantees to ensure respect towards privacy and data protection rights of individuals.

Scope of Amendments in US Constitution under Doctrine of Amendability

Scope of Amendments in US Constitution under Doctrine of Amendability

Data’s Demise and the Rhetoric of SFFA

The Supreme Court’s holding that Harvard College’s and the University of North Carolina’s (UNC) “admissions systems” are invalid under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 was an anticipated result. The Court’s 2016 decision in Fisher v. University of Texas at Austin (Fisher II), left some speculation that race-conscious admissions could eventually be struck down by the Court; however, Fisher II also offered some guidance for future litigants to address challenges. Colleges and universities needed to use data to “scrutinize the fairness of their admissions programs” to satisfy the burden strict scrutiny and narrow tailoring impose. Despite previously touting the importance of data, the current Justices of the Supreme Court disregarded the data presented by both Harvard and UNC. Furthermore, the Court ignored stare decisis by discounting the diversity rationale enshrined by Justice Powell in Regents of the University of California v. Bakke. Since the Supreme Court’s decision on June 29, 2023, scholars and parties to the case have opined about the decision’s impact. Several writings focus on the majority opinion written by Chief Justice John Roberts. Others highlight the dissents written by Justices Sonia Sotomayor and Ketanji Brown-Jackson, but few focus on the concurring opinions. This Article focuses on stare decisis and the data presented by Harvard and UNC in the case. It also posits that rhetoric has been used to falsely frame inclusion practices as racial preferences. As such, this Article explores the origins of rhetoric to evaluate Justice Thomas’s colorblind perspective of the United States Constitution, and more specifically, the Fourteenth Amendment. Finally, this Article conducts a deeper examination of the approach highlighted by Justice Thomas in his concurring opinion.

A "Tyranny Unparalleled in History": Anxious Laughter and Projection of the Nation in the John-Donkey (January–October 1848)

abstract: This article intends to explore the constitutive role of US satirical periodicals in nation-building by focusing on the John-Donkey . In 1848, sixty years after the ratification of the American Constitution, the young United States was imagining itself into a nation. American periodicals were crucial in conveying competing ideas of what America should be, mirroring and amplifying widespread aspirations and preoccupations. In particular, the John-Donkey fostered a discussion with coeval papers on subjects such as mass immigration and the widespread sympathy for Pius IX in the United States. Although maintaining a desecrating attitude toward the papacy, the John-Donkey ridiculed those who deemed such sympathy and the rising number of Catholics (and Catholic voters) in the United States a threat. In doing so, the periodical indirectly expressed and expelled the anxieties fuelled in the readership by the Nativists as much as its editorial staff's preoccupation that those anxieties might result in intolerance and even fanaticism. A detailed analysis of the texts and images related to these themes reveals conflating thoughts on international and domestic policies, indicating to what extent the projection of a specific "America" implied the definition of oneself as opposed to non-Americans and political opponents.

Political Disorientation and Legibility Loss in the Trumpian Years

This essay discusses political disorientation and what I define as a legibility crisis ushered in by the election of Donald Trump in 2016. After defining these concepts, it provides evidence for them and fleshes out how they were expressed in prophecies about Trump in white evangelical communities. A legibility crisis is the realization that some fundamental aspects of the symbolic domain (language, civic values, political practices, and institutions) are no longer binding or recognizable. There is a loss of touch with what was once expected political conduct, but this loss gravitates toward something that is not fully graspable in its conceptual and emotional dimensions. In examining political disorientation, I refer to a three-dimensional condition encompassing the personal, the institutional, and the analytical. This disorientation challenges our expectations about institutional norms and forces us to realize that the respectability and legitimacy of those institutions have been hollowed out. This essay will also address the culture of prophecy in some evangelical groups and how prophetic utterances shape these groups’ understanding of the American Constitution and political reality.

Different Models of the Federal System

There are different types of systems in modern countries and governments. Governments are becoming distinct sub-systems. In a federal system, a state's authority is constitutionally split and governed by lower levels of government. This is opposed to a unitary system, where it is regulated from top to bottom based on law. There are some federal system models in modern countries. At first, the Constitution of United States of America applied federalism to its creation. Central federalism was mandatory for country formation. That is the first contemporary federal system in contemporary governing systems. Despite this, many countries have adopted different federalism models today. Federal systems also have various practices. Since this paper is prepared using the secondary sources of data, it attempts to introduce various models of federal government systems practiced in different countries. It also critically examines the reasons why multiple forms exist within the federal government system.

Insurrection, Disqualification, and the Presidency

Abstract Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States? This Article makes the case that the President is an officer of, and holds an office under, the United States for those purposes. It contributes to the debate over the provision's reach by setting out the broad case for Section 3's application to Presidents and the Presidency, utilizing text, purpose, legislative history, canons of construction, ordinary usage, and contemporaneous judicial and executive interpretations. The Article demonstrates public understandings before and after ratification that Section 3 bars eligibility to the Presidency, both in general and for the most important disqualified rebel—Jefferson Davis. It catalogues descriptions of Presidents as officers of the United States from Washington in 1794 to Jefferson, Jackson, Van Buren, Harrison, Polk, Taylor, Fillmore, Buchanan, Lincoln, Johnson, Grant, and Garfield, many of which occurred in the context of the President's election, constitutional position, and role in preventing domestic violence, preserving the Union, and enforcing the law during Reconstruction. Finally, it ties related Reconstruction statutes, legislative history, and contemporaneous judicial and executive interpretations into the broad case that Section 3 bars faithless Presidents from again taking the oath to “preserve, protect and defend the Constitution of the United States” until Congress permits.

A case for the plausibility of public relations licensing: The carrot of privileged communication

Public relations practitioners and academics have long debated the merits of licensing; however, licensing has not been adopted due to a lack of appetite among practitioners as well as concerns about the First Amendment of the United States Constitution. Using an analogy with the professions that practice therapy, we argue that licensing of public relations can comply with the First Amendment by providing incentives to licensees, as opposed to restricting the practice of the unlicensed. We identify several potential incentives and provide a detailed analysis of a proposed right to legally privileged communication. We conclude with suggestions for next steps toward creation of licensing and resources that may help in this endeavor.

Conservative Thought and American Constitutionalism Since the New Deal. By Johnathan O’Neill. Baltimore: Johns Hopkins University Press, 2022. 398p. $64.95 cloth.

Conservative Thought and American Constitutionalism Since the New Deal. By Johnathan O’Neill. Baltimore: Johns Hopkins University Press, 2022. 398p. $64.95 cloth.

The Problem with a Peremptory Challange – a Tool of Racial Discrimination Within American Jury Selection Process

Jury duty serves as one of the fundamental pillars of American democracy, for it encourages direct citizen participation. Yet, the process of selecting its members is characterised by a flaw in form of a peremptory challenge — a tool with considerable potential for abuse since it permits covert discrimination against members of visible minority groups. Despite not being a procedural right protected by the Constitution of the United States, peremptories have entered the canon of provisions thought to be necessary for preserving the fairness of trial due to their long history of employment in the legal system. In the late 1980s, the Supreme Court in Batson v. Kentucky ruled the exclusion of jurors solely on the basis of their race to be unconstitutional and established the first preventative procedural standard against dubious usage of peremptories in form of the Batson Rule. The effectiveness of the said standard remains questionable, for it did not successfully deal with racial discrimination during voir dire but only enabled to formally object to the questionable juror’s strike. This paper aims to put racial discrimination within the American jury system into a historical perspective, analyze the arguments of both the supporters and the opponents of further peremptory challenge usage and consider probable alternatives that might be implemented to successfully prevent discriminatory practices within the American jury selection process.

The Failed Idea of Judicial Restraint: A Brief Intellectual History

This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of judicial restraint on to Alexander Bickel and others. Today it remains a topic of much academic debate, while Supreme Court Justices occasionally give the idea lip service when it advances outcomes they desire. I propose that the intellectual history of judicial restraint reflects the all-too-human inability to refrain from exercising power. The founders, focused on the need to mitigate the flaws of human nature in designing the executive and legislative branches, failed to sufficiently foresee how the same flaws would affect members of the judiciary. The failed idea of judicial restraint stands as the legacy of the founders’ mistake.

The Shackles of Veto: On the American Parallel of Article 19 TFEU and Its Tension with Procedural Justice

AbstractArticle 19 TFEU's unanimity requirement shares a striking similarity with a two-century old debate on voting and minority rights between the ‘father’ of the US Constitution, James Madison, and the ‘rebellious son’, John C. Calhoun. Madison made majority voting a necessary condition for impartial lawmaking and minority protection in multistate unions. Conversely, Calhoun sought to maintain the racial status quo through advocating for a competing unanimity-based structure. Minority protection in Article 19 TFEU aligns with Calhoun's model. This Article reassesses Article 19 TFEU through the foundational principles of constitutionalism underlying the US debate and shows their continued relevance for contemporary case law and minority protection in the EU. Particularly, it demonstrates, first, that Article 19 offends the impartiality principle of nemo judex in causa sua—no person should judge their own cause—which has long been a leitmotiv in Western constitutional theory. Second, it illustrates that unanimity causes de jure and de facto ramifications for ethnic and religious minorities in the EU. Last, the Article provides a theoretically grounded and comparatively informed argument to aid ongoing attempts for treaty amendment.

Was the Rule of Law the Only Casualty of Polity Design in the New Latin American Constitutionalism?

The objective of this article is to introduce a new concept for grouping all countermajoritarian instruments which became the true casualties of polity design during the New Latin American Constitutionalism (NLAC). This theoretical endeavor, which has not been undertaken until now, will be discussed on the basis of the constitutional upheavals that occurred between 1999 and 2009 in Venezuela, Ecuador, and Bolivia. By addressing a specific theme of this experience, namely its implications for the relationship between democracy and countermajoritarian devices, this article shows why an aggregating concept such as state ataraxy is needed. This concept fills the gap that hinders understanding of what has been institutionally dismantled in the course of these reforms. The article then challenges the claim that with the collapse of countermajoritarian institutions, democracy necessarily collapses. It concludes with a new assessment of the novelty that the NLAC may have brought concerning the tension between democracy and countermajoritarian institutions. The findings contribute to understand one of the most enduring concerns of state theory in general, the tension between democracy and the rule of law.

A More Perfect Union: Meaning in the Preamble of the United States Constitution

A More Perfect Union: Meaning in the Preamble of the United States Constitution

Sub-constitutionally repairing the United States Supreme Court

In December 2021, the Biden Commission — constituted in response to the politics and partisanship surrounding the Supreme Court — released its report analysing proposals for Supreme Court reform. The commission found most reform proposals unrealistic due to the ‘nearly impossible-to-amend American constitution’ or the proposals creating new problems. Given the rigidity of the American constitution, any realistic reform must be implemented through sub-constitutional means. In contemporary discourse, investigations into sub-constitutional reforms have been limited. In most cases, proposals for sub-constitutional reform are merely creative strategies to bypass a constitutional amendment. This only opens a pandora's box of new problems and hinders these proposals’ effective realisation. Sub-constitutional reform must be explored on its own merits in light of the legal landscape. Consequently, this article demonstrates how meaningful reforms can be achieved sub-constitutionally. Through sub-constitutional means, this article's reform proposal seeks to try and ensure that consensus candidates are nominated/appointed to the Supreme Court. This, it contends, can address many problems facing the court today. In propounding its reform proposal, this article hopes to illuminate the broader debate on the reform of apex courts and provide takeaways for jurisdictions facing predicaments similar to America.

Building up the EU Revenue Side: But What Is a Tax in EU Law?

While the US Constitution expressly grants the federation the power to tax, Article 311 TFEU is silent on whether such power exists at the EU level. This contribution argues that the Union has the power to tax, provided that the chosen resources in the basket match the objectives and policies of the Union. Since the achievement of the internal market is a shared competence (Article 4 TFEU), the Union can decide the level of resources tailored to this goal. Although the Union has a broad power to tax under Article 311 TFEU to pursue its objectives and policies, the member states are still the “masters,” able to decide the level of resources under the unanimity rule. To resolve this paradox, this contribution embraces a democratic legitimacy of EU taxes that grant the European Parliament the power to decide the revenue side of the EU budget. EU democratic taxes approved by the European Parliament could reaffirm the redistributive function of taxes, thereby allowing the redistribution of wealth from rich to poor.