By John Mikhail. Contemporary disputes involving the separation of powers take on a different light when they are framed in terms of powers of the Government of the United States itself. The “all other powers” provision of the Necessary and Proper Clause distinguishes government powers from executive powers and gives Congress distinct legislative authorities with respect to each of these categories.
By Beth A. Colgan. Contrary to the Supreme Court’s historically based determination that in rem forfeitures are nonpunitive, substantial historical evidence—including the Court’s own early opinions—show that in rem forfeitures were understood to constitute punishment.
By Austin Steelman. Arthur Machen Jr.’s 1900 Harvard Law Review article “The Elasticity of the Constitution” influenced the long rise of originalism–revealing many of originalism’s now essential features–and helped give birth to a dead Constitution that proved ironically vital and ever-evolving.
By Sanford Levinson. To what extent do legal academics, historians, political scientists, and high school teachers actually assign any of the The Federalist?
By Kevin Arlyck. Most accounts of the federal judiciary’s rise to independence tell a story in which the courts consolidated their authority—especially the power of judicial review—by tacitly agreeing to withdraw from partisan politics. But as this article shows, the most insistent assertions of judicial inviolability came not from courts, but instead from the executive branch officials.
By Roderick M. Hills, Jr.. By reducing the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat, the presumption of ambiguity respects contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.
By Andrew Coan and David S. Schwartz. A proper interpretation of the ratification debates undermines any principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases.
By Risa Goluboff. I have decided to share with you a very new project—about the white supremacist and anti-Semitic violence that took place in my hometown of Charlottesville, Virginia on August 11 and 12, 2017. Those events have come to be called “Charlottesville.”
By Donald A. Dripps. Recent developments suggest that the Supreme Court is poised to reconsider a wide swath of doctrines from originalist premises. For the 2,414 inmates on death row—and for countless more who might join them in the years to come—history may be a matter of life and death.
By Daniel D. Slate. Hebraic republicanism found in rabbinic Judaism a set of sources and ideas that made it possible to argue that constitutional republics, with powers limited by the rule of law, were the only legitimate form of government. It had a profound influence on the founding, in particular in the formulation of the republican government Guarantee Clause of Article IV, Section 4.