Donald L. Horowitz— Suppose you were advising a constitutional assembly chosen to produce a new constitution for a troubled country. Most constitutions are created because some trouble has occurred: the fall of an authoritarian regime, a civil war, mass discontent with the performance of a government. There is a good
Robinson Woodward-Burns— The federal framers signed the Constitution in Philadelphia on September 17, 1787. The following July 4, Philadelphians celebrated the Constitution’s ratification with a mile-long “Grand Federal Procession,” led by a six-horse coach ornamented by a thirteen-foot gilded copy of the Constitution held by an eagle bearing the phrase
Richard Butterwick— The ancient Roman historian Sallust pronounced, “It is better to live in perilous liberty than in tranquil servitude.” But on May 3, 1791, a path beyond the Sallustian dilemma of perilous liberty or tranquil servitude was offered to old Poland, otherwise known as the Polish-Lithuanian Commonwealth. Their parliament,
Thomas P. Crocker— One of the intriguing developments during the COVID-19 crisis is how absent claims about presidential power to solve national security crises have been. There have been no calls for exercising unilateral and exclusive presidential power to engage in possible extralegal action deemed necessary to save American lives
Mark Tushnet— On June 15, 2020, the Supreme Court decided Bostock v. Clayton County. Dividing 5-4, the Court held that the ban on employment discrimination “because of sex” in Title VII of the 1964 Civil Rights Act extended to discrimination against gays, lesbians, and transgender people. Remarkably, both Justice Neil
Gary Jeffrey Jacobsohn— Recently a United States Senator, reflecting on the terrible crisis we all now face, recalled an earlier time when the nation confronted an existential threat to its governing institutions. Said Senator Edward Markey of Massachusetts: “I do think there’s an FDR moment.” Presumably what he meant was
Paul W. Kahn— Project and system are two competing narrative forms that organize the way we imagine the nature of legal order. A project gains its principle of order from the intentional act of a free subject. A system gains its principle of order immanently and spontaneously. To write a
George C. Edwards III— Can the intentions of the framers justify the violation of majority rule in the twenty-first century? Most of the motivations behind the creation of the electoral college are simply irrelevant today and can be easily dismissed. Legislative election is not an option, there is little danger
Many who declare that Americans in 2018 should stick to the original words of the United States Constitution, ratified in 1788, fail to acknowledge that in reality the nation has been ruled by a substantially different Constitution for the past 150 years. The Union victory in 1865, and the amendments
Robert A. Burt— The judicial task is not mechanistic but properly and necessarily involves judgment. In particular, judges must understand themselves as ultimately promoting equal deliberation among conflicting parties rather than imposing their own calculus of equality on the parties. This understanding is not alien to the judicial function; it