A Progressive Vision of Constitutional Interpretation

Today, we had the pleasure of hosting two of country’s most respected legal scholars, Erwin Chemerinsky (of Duke) and Pamela Karlan (of Stanford). The event was a kickoff of sorts for the school’s annual Supreme Court Preview and these two speakers didn’t disappoint. The event was entitled, “A Progressive Vision of Constitutional Interpretation,” and both speakers offered views on the ways in which liberals can interpret the constitution and constitutional text.


Published in: on September 14, 2007 at 8:35 pm Comments Off on A Progressive Vision of Constitutional Interpretation

Surprise! VP is Not Part of Executive

Surprise! The office of the Vice President is not part of the executive.

Or perhaps not. But this is the startling constitutional argument being put forth by the Vice President in an effort to avoid compliance with an executive order which requires all “agencies and any other entity” of the executive branch to report the number of documents which it classifies and declassifies each year. To prevent such disclosure, the Vice President’s office is arguing that the Vice President does not meet the definition of an “agency” of the executive branch and furthermore, the vice presidency is not an “entity” of the executive branch. The office has reached this rather interesting conclusion by arguing that because the Vice President of the United States is also the President of the Senate, he occupies the “unique position” of “straddling” the executive and legislative branches.

While this is a creative argument, I am not sure it is a compelling one. Article II, section I, creating the executive, clearly establishes the offices of President and Vice President, with identical terms of office and election procedures for both. Furthermore, Article II states that “in case of removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President…” Thus, the Vice President is – crudely stated – sort of a “backup President.” It stands to reason, therefore, that because the Vice President could potentially become the President at any moment, the Vice President must fulfill the same requirements and occupy the same political branch as the President himself.

Article I, section 3 does in fact place the Vice President of the United States as President of the Senate. However, the entirety of this appointment fills only 23 words out of the 2,245 words that make up Article I. In addition, Article I, section 3 seems to contemplate the Vice President as essentially a mere tiebreaker in those rare occasions where the Senate is evenly spit, stating that “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.”


Published in: on June 26, 2007 at 10:25 am Comments (1)

Re-Cap: A Pretentious President or a Cavalier Congress?

On Wednesday April 4th in room 119 students gathered for the annual American Constitution Society/Federalist Society debate. The topic for this year was, “A Pretentious President or a Cavalier Congress?: The Separation of Powers During Wartime.” Representing the American Constitution Society was Neil Kinkopf, an associate professor of law at Georgia State University, and representing the Federalist Society was Michael Lewis, an assistant professor of law at Ohio Northern University.

Prof. Kinkopf opened the debate by discussing the two competing frameworks for understanding separation of powers conflicts. The first model was a model articulated by Justice Jackson in his concurrence in Youngstown Sheet & Tube Company v. Sawyer, also known as the steel seizure case, where President Truman issued an order to seize all American steel mills in order to prevent a strike. Jackson, in his concurrence, described three situations of presidential power and activity. The first was when the president acts with congressional authority. Here, the president’s power is the highest. Next, was when the president acts without congressional authority, contrary to the will of Congress. Here, the president’s power is lowest. The third is when the president acts and Congress has been silent. Here, the president claims an inherent power to act, and an analysis of that power is necessary. This is the framework used in cases like Hamdi and Hamdan.

The second model, according to Kinkopf, is that articulated by the Bush administration. In this model, categories two and three merge. The underlying theory is that all inherent power is preclusive power, and if the president has power, Congress can’t interfere. This is the approach used to justify the NSA wiretappings, and other similar actions.

Professor Lewis opened by going into detail regarding the Geneva Convention, as applied in the Hamdan case, as an example of how the Convention has been made excessively broad by the Supreme Court, far beyond the means it was originally intended. First, according to Lewis, we must determine what type of war we are engaged in under the Convention. In Hamdan, Justice Stevens recognizes that the conflict with Al Qaeda does not fall under the category of an Article II war, a typical war between two countries. As this isn’t an Article II war, the protections given to defendants are not Article II protections found under Protocol I, but rather, the protections are Article III protections given under Protocol II. To Lewis, this is important, because Article III protections are much fewer than Article II protections. However, the court in Hamdan ignored this distinction, claiming Hamdan wasn’t provided with adequate rights, rights he would only have been afforded under Article II and Protocol I. This then is just one example of how the laws are being stretched and warped to govern more than they were ever intended. (more…)

Published in: on April 7, 2007 at 1:18 pm Comments Off on Re-Cap: A Pretentious President or a Cavalier Congress?

Steve Jobs: “Stay Hungry, Stay Foolish”

This post does not concern current events, law, or public policy per se. Rather, it is something that I read (and then watched) over the weekend that resonated with me.

What I am referring to is the 2005 Stanford University commencement address delivered by Steve Jobs, CEO of Apple Computer and Pixar Animation Studios.

The text of Mr. Jobs’s remarks are here.

During his short speech, Mr. Jobs tells three stories about his life. The first story is about connecting the dots–which he says you can’t do looking forward. You can only do so looking backwards.

Mr. Jobs says that you have to trust in certain things in life, whether it’s your gut, destiny, karma, or whatever. He believes that when you do so, following your heart and doing things that interest you deeply, it completes a person and things will work out in the end.


Published in: on April 2, 2007 at 9:01 am Comments Off on Steve Jobs: “Stay Hungry, Stay Foolish”

It’s Called Checks and Balances

Vice President Cheney delivered some remarks on Friday to the Federalist Society regarding the domestic surveillance eavesdropping program.  You can click on the link to read the remarks for yourself, but some of the highlights included:

In addition, the entire program undergoes a thorough review approximately every 45 days. After each review, the President personally has to determine whether to reauthorize the program. And he has done so more than 30 times since September 11th – and he has indicated his intent to continue doing so as long as our nation faces a threat from al Qaeda and related organizations.

So the President is the only check on the program he initiated and while he does review the program, he knows in advance that he will continue the program as long as he is the President.  Fine, but ours is a system of actual checks and balances and this action has not been voted on by the legislature.  In fact, most Congressmen did not even have knowledge of this activity for the first several years of its existence.  And it is at least arguable that this bill contravenes the FISA domestic surveillance bill passed in the 1970s (or so our very own William Van Alstyne would argue).  So it is undeniable that for the past five years we have had US citizens whose phones have been listened to without any legislative oversight.

Perhaps this is what we should be doing to fight the war on terror.  Who knows, I don’t.  But I do know that this smacks of a violation of the separation of powers.  It is one thing to allow the Executive certain liberties in exercising the War Powers when the war is a short-term affair.  But with the war on terror, there is no end in sight.  And quite frankly, I’m surprised that an organization whose members traditionally have attempted to divine the original intent of the Framers would applaud such an expansion of the Executive power.  After all, despite John Yoo’s argument to the contrary, the American executive was NOT intended to be anything like a monarch.  In fact, the Framers were so repulsed by this notion that they almost left the Executive out of the Constitution.


Published in: on November 20, 2006 at 1:07 am Comments Off on It’s Called Checks and Balances

Geoffrey Stone discusses “Liberal Values”

Noted legal scholar Geoffrey Stone recently posted an interesting article over at the national ACS blog.

Professor Stone writes that:

For most of the past four decades, “liberals” have been in retreat. Since the election of Richard Nixon in 1968, Republicans have controlled the White House 70% of the time and Republican presidents have made 86% of the Supreme Court appointments. In many quarters, the word “liberal” has become a pejorative. Part of the problem is that liberals have failed to define themselves and to state clearly what they believe. As a liberal, I find that appalling. In that light, I thought it might be interesting to try to articulate ten propositions that seem to me to define “liberal” today.

His post is not very long, so if you have a moment, it’s worth taking a look at.

But, here are a few of his propositions of what defines liberals: (more…)

Published in: on October 12, 2006 at 8:00 pm Comments Off on Geoffrey Stone discusses “Liberal Values”