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Full-Text Articles in Political Science

Is Suspension A Political Question, Amanda L. Tyler May 2015

Is Suspension A Political Question, Amanda L. Tyler

Amanda L Tyler

The article focuses on the Suspension Clause of the U.S. Constitution being a political issue. It says that once suspension is viewed as a nonjusticiable political question, it would turn as a subject on which most of the restraints imposed by the Constitution would not be subjected to judicial enforcement. It is claimed that such thought should be denied because it is at odds of writ of habeas corpus heritage and would only complicate the separation of powers and the institution of judicial reviews.


Three Arguments About War, Robert Tsai Dec 2014

Three Arguments About War, Robert Tsai

Robert L Tsai

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual ...


American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine And Public Opinion To Regulate Political Behavior, James G. Wilson May 2014

American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine And Public Opinion To Regulate Political Behavior, James G. Wilson

James G. Wilson

The concept of nonjusticiability, reflected primarily through the “political question” and the “standing” doctrines, fails to give the Supreme Court (and the rest of us) adequate guidance on how to resolve many constitutional disputes, such as impeachment procedures and standards, congressional expulsions, the scope of federal court jurisdiction, and the use of force abroad. These two doctrines put the Supreme Court on the horns of a false dichotomy. The Court tends to withdraw completely from an issue and from enforcing a textual passage, such as the Republican Guarantee Clause, whenever it makes a determination of nonjusticiability. Conversely, once the Court ...


Altered States: A Comparison Of Separation Of Powers In The United States And In The United Kingdom, James G. Wilson May 2014

Altered States: A Comparison Of Separation Of Powers In The United States And In The United Kingdom, James G. Wilson

James G. Wilson

This Article initially will compare the United States Constitution and the British constitution both to evaluate Young, Morrison, and Misretta, and to develop a sounder approach to all structural issues. Comparative constitutional law provides some of the "experience" needed to decide abstract structural cases. Predicting the reverberations of a proposed change within a system will be easier if one has studied how similar alterations have affected similar organizations. The British constitution is particularly germane because it was a model for the American Constitution. The two countries have a shared legal tradition and frequently generate similar positive law. The British constitution ...


America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai Mar 2014

America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Robert L Tsai

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: "We the People." Robert Tsai's gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion--the defiant groups that refused to accept the Constitution's definition of who "the people" are and how their authority should be exercised. America's Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a ...


Constitutions As Coordinating Devices, Gillian K. Hadfield, Barry R. Weingast Dec 2013

Constitutions As Coordinating Devices, Gillian K. Hadfield, Barry R. Weingast

Gillian K Hadfield

Why do successful constitutions have the attributes characteristically associated with the rule of law? Why do constitutions involve public reasoning? And, how is such a system sustained as an equilibrium? In this paper, we adapt the framework in our previous work on “what is law?” to the problem of constitutions and their enforcement (see Hadfield and Weingast 2012, 2013a,b). We present an account of constitutional law characterized by two features: a system of distinctive reasoning and process that is grounded in economic and political functionality; and a set of legal attributes such as generality, stability, publicity, clarity, non-contradictoriness, and ...


A New Introduction To American Constitutionalism, Mark Graber Oct 2013

A New Introduction To American Constitutionalism, Mark Graber

Mark Graber

A New Introduction to American Constitutionalism is the first text to study the entirety of American constitutionalism, not just the traces that appear in Supreme Court decisions. Mark A. Graber both explores and offers original answers to such central questions as: What is a Constitution? What are fundamental constitutional purposes? How are constitutions interpreted? How is constitutional authority allocated? How do constitutions change? How is the Constitution of the United States influenced by international and comparative law? and, most important, How does the Constitution work? Relying on an historical/institutional perspective, the book illustrates how American constitutionalism is a distinct ...


Don’T Be Silly: Lawmakers “Rarely” Read Legislation And Oftentimes Don’T Understand It . . . But That’S Okay, Brian Christopher Jones Sep 2013

Don’T Be Silly: Lawmakers “Rarely” Read Legislation And Oftentimes Don’T Understand It . . . But That’S Okay, Brian Christopher Jones

Brian Christopher Jones

During the debate over the Patient Protection and Affordable Care Act ("Obamacare"), the reading and understanding of legislation became one of the most controversial issues mentioned in Congress and throughout the media. This led many to state that lawmakers should “read the bill,” and led one academic to propose a read-the-bill rule for Congress, where legislators would not vote or vote “no” if they had not read the full text of the legislation. My essay argues that in contemporary legislatures such proposals are unfeasible, and would ultimately produce lower quality legislation. In doing so, the piece uses interviews with legislative ...


"Simple" Takes On The Supreme Court, Robert Tsai Dec 2012

"Simple" Takes On The Supreme Court, Robert Tsai

Robert L Tsai

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably ...


Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn Dec 2012

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Wilson R. Huhn

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the antebellum United States.


Bad News For John Marshall, David B. Kopel, Gary Lawson Dec 2011

Bad News For John Marshall, David B. Kopel, Gary Lawson

David B Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual ...


A Tale Told By A President, Mark A. Graber Nov 2011

A Tale Told By A President, Mark A. Graber

Mark Graber

Part I of this essay makes the case for symbolic politics. Presidents often have political reasons for subjecting courts to mere words. Part II makes the case for constitutional hardball.


Aryans, Gender, And American Politics, Robert Tsai Dec 2010

Aryans, Gender, And American Politics, Robert Tsai

Robert L Tsai

This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of cultural, legal, and political transformation. It is drawn from "Defiant Designs: America's Forgotten Constitutions" (forthcoming, Harvard, 2012)


Constituent Authority, Richard Kay Dec 2010

Constituent Authority, Richard Kay

Richard Kay

The force of a constitution, like the force of all enacted law, derives, in significant part, from the circumstances of its enactment. Legal and political theory have long recognized the logical necessity of a “constituent power.” That recognition, however, tells us little about what is necessary for the successful enactment of an enduring constitution. Long term acceptance of a constitution requires a continuing regard for the process that brought it into being. There must be, that is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison ...


Don’T’ Know Much About History: Constitutional Text, Practice, And Presidential Power, David A. Schultz Dec 2010

Don’T’ Know Much About History: Constitutional Text, Practice, And Presidential Power, David A. Schultz

David A Schultz

Assertions of presidential supremacy and power in affairs often invoke history, including events during the administration of George Washington, to defend their assertions. This article raises some questions regarding what we can learn from history for constitutional argument. It concedes generally that historical facts can support or buttress constitution argument, but more specifically it contends that acts undertaken by George Washington are problematic assertions for presidential power, especially those that assert “supremacist” or broad if not exclusive claims for presidential foreign policy authority. To do that, this article first describes how history is employed as constitutional argument for presidential power ...


Book Review Of Beau Breslin, "From Words To Worlds: Exploring Constitutional Functionality", Robert Tsai Dec 2009

Book Review Of Beau Breslin, "From Words To Worlds: Exploring Constitutional Functionality", Robert Tsai

Robert L Tsai

This is a review of Beau Breslin's book, "From Words to Worlds: Exploring Constitutional Functionality" (Johns Hopkins, 2009). As an antidote to what he believes to be scholarly marginalization of the "unique" aspects of a written constitution, Breslin focuses attention on seven functions of such a legal text: transforming existing orders, conveying collective aspirations, designing institutions, mediating conflict, recognizing claims of subnational communities, empowering social actors, and constraining governmental authority. This review briefly critiques Breslin's functional approach and discusses two of the more pressing goals of modern constitutionalism: managing social conflict and preserving cultural heritage.


The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder Dec 2009

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for ...


Eloquence And Reason: Creating A First Amendment Culture, Robert L. Tsai Oct 2008

Eloquence And Reason: Creating A First Amendment Culture, Robert L. Tsai

Robert L Tsai

This book presents a general theory to explain how the words in the Constitution become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. "Eloquence and Reason" employs the First Amendment as a case study to illustrate that liberty is achieved through the formation of a common language and a set of organizing beliefs. The book explicates the structure of First Amendment language as a distinctive discourse and illustrates how activists, lawyers, and even presidents help to sustain our First Amendment belief system. When significant changes to constitutional law occur, they are best understood as the results ...


Settling The West: The Annexation Of Texas, The Louisiana Purchase, And Bush V. Gore, Mark Graber Jul 2008

Settling The West: The Annexation Of Texas, The Louisiana Purchase, And Bush V. Gore, Mark Graber

Mark Graber

No abstract provided.


Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber Jul 2008

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Mark Graber

No abstract provided.


Bush V. Boumediene: The Court Is Back, Jay Dratler Jun 2008

Bush V. Boumediene: The Court Is Back, Jay Dratler

Jay Dratler

This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its ...


Sovereignty As Discourse, Robert Tsai Dec 2007

Sovereignty As Discourse, Robert Tsai

Robert L Tsai

This is a review of Howard Schweber's book, "The Language of Liberal Constitutionalism" (Cambridge University Press, 2007). Schweber argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and sufficient condition for constitution making." I critique the power and limits of this reformulated Lockean thesis, as well as Schweber's secondary claims that, for constitutional language to remain legitimate, it must increasingly become autonomous, specialized, and secular.


Democracy's Handmaid, Robert Tsai Jan 2006

Democracy's Handmaid, Robert Tsai

Robert L Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Professor Tsai draws from the two disciplines to reach new insights about the democracy-enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this ...


Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald Kochan Dec 2005

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald Kochan

Donald J. Kochan

From Grotius to Hobbes to Locke to an unconventional modern pop-culture manifestation in Ali G, the concept of “respect” has always been understood as important in human interaction and human agreements. The concept of mutual understanding and obligation pervades human interaction, and, for purposes of this Article, international relations. Almost all basic principles in English, United States, and other country’s laws that value human and individual rights have based, over time, the development of their laws on the philosophical principle of respect. So much of common and statutory law is designed to enforce respect for others. The principle question ...


Sacred Visions Of Law, Robert Tsai Feb 2005

Sacred Visions Of Law, Robert Tsai

Robert L Tsai

Around the time of the Bicentennial Celebration of the U.S. Constitution’s framing, Sanford Levinson called upon Americans to renew our “constitutional faith.” This Article answers the call by explicating the ways in which two landmark constitutional law decisions—Marbury v. Madison and Brown v. Board of Education—have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the Article argues that the legal symbols have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of ...


Book Review Essay: Canada's Constitutional Cul De Sac, Richard Kay Dec 2004

Book Review Essay: Canada's Constitutional Cul De Sac, Richard Kay

Richard Kay

Book reivew of 'Constitutional Odyssey: Can Canadians Become a Sovereign People?', by Peter H. Russell (Toronto, University of Toronto Press, 2004).


The Opacity Of Transparency, Mark Fenster Dec 2004

The Opacity Of Transparency, Mark Fenster

Mark Fenster

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes ...


Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai Oct 2004

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Robert L Tsai

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court’s decision. At the same time, it contends that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories ...


The Secession Reference And The Limits Of Law, Richard Kay Dec 2002

The Secession Reference And The Limits Of Law, Richard Kay

Richard Kay

When the Supreme Court of Canada issued its judgment on the legality of "unilateral" Quebec secession in August 1998 many Canadians did not know what to make of it. The Court held that the only lawful way in which Quebec might depart the Canadian federation was through one of the amendment mechanisms provided in the Constitution Act 1982. It thus affirmed that Quebec could not secede without the agreement of at least the Houses of the federal Parliament and some number of provincial legislative assemblies. Prime Minister Chretien declared the next day that the judgement was a "victory for all ...


The System Worked: Our Schizophrenic Stance On Welfare, Robert Tsai Dec 1995

The System Worked: Our Schizophrenic Stance On Welfare, Robert Tsai

Robert L Tsai

This is a review of Steven M. Teles's book, Whose Welfare? AFDC and Elite Politics (University Press of Kansas, 1996), which argues that welfare policy reflects a dynamic of elite dissensus, in which public policy fails to reflect popular opinion. I make two central points in the review: first, there are reasons to believe that welfare policy does, in fact, reflect a deeply conflicted American electorate; and second, such a conflict may reveal a healthy deliberative order struggling to reconcile changing priorities with enduring values.