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As I'm certain you've all heard yesteryear now, the President of the U.S. of A. of America issued a serial of grotesque, race-baiting, xenophobic (not to advert factually inaccurate) tweets this morning. Of course of study he did.  After all, it's a 24-hour interval of the calendar week ending inward "ay." As horrifying equally this is, it isn't news.  Nor does it state us a unmarried thing that everyone didn't already know virtually Trump, the audience to whom he addressed his bile, in addition to the 40+ per centum of the electorate who volition vote for him ane time again no affair what he does.  (Are you lot surprised inward the to the lowest degree that the reaction on FoxNews was gleeful?) So it's non an peculiarly of import or revealing incident, inward in addition to of itself. What is important--although also, lamentable to say, hardly groundbreaking--is that non a unmarried ane of the 250 Republican members of Congress, nor anyone w...

     Sandy Levinson, my one-time instructor whom I honour enormously, reads my post on the increasing opacity of the congressional appropriations procedure together with asks whether I would concord that Congress has rendered itself illegitimate.   He goes on to inquire what is to survive done, given my opposition to convening a novel constitutional convention nether Article V.   These are thoughtful together with thought-provoking questions that deserve a response.   As I pondered my answer, it occurred to me that a similar topic runs through the Article V combat together with other contemporary visions of progressive reform.   This post attempts both to respond to Sandy together with to sketch those broader themes.      First, although I notice Congress frustrating together with sometimes reprehensible – for certain inwards its failure to human activeness on climate alter but inwards many other areas, besides – I prac...

The House of Representatives has a wide inherent contempt power. The Supreme Court together with thence held inwards Anderson v. Dunn , an 1821 decision. The Court concluded that the House could fit a non-member inwards contempt fifty-fifty though no textual provision grants that authority.  In reaching that conclusion, Dunn said that the declaration that "such an assembly should non receive the ability to suppress rudeness, or repel insult, is a assumption also wild to last suggested." I submit that the President's recent comments are an insult to the House of Representatives. Under Article I, that trunk has the say-so together with the correct to respond. The reply could, of course, last a uncomplicated declaration that condemns the comments. Under the inherent contempt power, though, I mean value that the House could become farther past times (for instance) declaring the President persona non grata inside the House chamber. The House is manifestly non going to clap t...

It is hard non to handgrip amongst most of what David Super says inward his typically thoughtful post.  We are a fundamentally divided, highly polarized country.  Most, fifty-fifty if non all, of the dreadful people inward world business office were elected inward fair elections.  The most shocking unmarried statistic is that fifty-fifty now, when in that location is shockingly picayune novel to larn most Donald Trump (save the extent of his indebtedness to Russian financiers), at to the lowest degree 40% of our immature human Americans back upward this ignorant too malevolent lout.  I intend that a fairer electoral system, including ane that dispensed amongst the indefensible allotment of voting powerfulness inward the Senate (even if it allows Vermont's 2 Democratic senators to cancel out Texas's 2 Republican ones), would arrive at a unlike distribution of votes, but that wouldn't gainsay David's basic betoken that fifty-fifty the fairest election procedure would a...

I've posted a draft of my latest article, Why Liberals as well as Conservatives Flipped on Judicial Restraint: Judicial Review inward the Cycles of Constitutional Time , on SSRN. This is work of a longer mass I am writing on cycles of constitutional change. Here is the abstract: Over the class of a footling to a greater extent than than a century, American liberals (or inward an before period, progressives) as well as conservatives convey switched positions on judicial restraint, judicial review, as well as the work of the federal courts--not once, but twice. This cycling has multiple causes, including changes inward the Supreme Court's docket as well as partisan strategies for judicial appointments. Behind the composition of the Court's docket as well as the judicial appointments process, however, is a soundless deeper cause: the slow changing construction of national political party challenger inward the United States. Throughout American history national politi...

An before post on this weblog past times Mark Tushnet explained that Justice Gorsuch’s dissent inwards Gundy v. United States , which fires a loud shot across the bow of the administrative state, contained something similar a fictionalized occupation concern human relationship of the facts behind Schechter Poultry .   In Gorsuch’s presentation, the Schechters were caught betwixt the regulatory demands of the New Deal as well as their ain religious commitments.   “Kosher butchers such equally the Schechters,” Gorsuch wrote, “had a difficult fourth dimension next these rules.   Yet the regime evidently singled out the Schechters equally a attempt case[.]”   In other words, the Schechters were victims of the government’s failure to accommodate their religious beliefs.   Worse yet, the regime deliberately went later on them , the people whose violations arose for religious reasons.   But equally Tushnet explains, none of this is true.   Nothing virtual...

Both Mark Tushnet’s in addition to and then Richard Primus’s posts, each on Justice Gorsuch’s overconfident assertions most highly debatable matters of historical fact in addition to intellectual analysis, enhance of import questions non only most judicial over-confidence when opining, but also most the pedagogy that judges convey with them to the bench.   Consider the famous advice past times Judge Learned Hand as to what lawyer-judges really needed to know inwards lodge to perform their tasks as civic leaders: I firm to believe that it is as of import to a gauge called upon to move past times on a inquiry of constitutional law, to induce got at to the lowest degree a bowing acquaintance with Acton in addition to Maitland, with Thucydides, Gibbon in addition to Carlyle, with Homer, Dante, Shakespeare in addition to Milton, with Machiavelli, Montaigne in addition to Rabelais, with Plato, Bacon, Hume in addition to Kant, as with books that induce got been specifically ...