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BRITISH JOURNAL of AMERICAN LEGAL STUDIES British Journal of American Legal Studies Birmingham City School of Law BritishBritish JoJournalurnal ofof British Journal of American Legal Studies | Volume 7 Issue 1 7 Issue Legal Studies | Volume British Journal of American British Journal of American Legal Studies | Volume 7 Issue 2 7 Issue Legal Studies | Volume British Journal of American AmericanAmerican LegalLegal StudiesStudies VolumeVolume 77 IssueIssue 21 FallSpring 2018 2018 ARTICLES ARTICLES Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause Robert G. Natelson The Curious Incident of Trump and the Courts: Interbranch Deference Towardin an Age Natural of Populism Born Derivative Citizenship Bruce G.John Peabody Vlahoplus TheFelix U.S. Frankfurter Constitution’s and the Emoluments Law Clauses: How History, Thomas Halper Behavioral Psychology, and the Framers’ Understanding of Corruption Fundamental Rights in Early American Case Law: 1789-1859 Nicholas P. Zinos All Require an End to President Trump’s Conflicts of Interest Don Mayer & Adam Sulkowski The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization Fascism-liteof the Nature in of America Truth (or the Social Ideal of Donald Trump) Ewan McGaugheyJared Schroeder ConstitutionalActs of State, StateCoup: Immunity, The Case and that Judicial Promulgated Review a in New the Constitution United States Zia Akthar for Montana Robert G. Natelson Posner’s Folly: The End of Legal Pragmatism and Coercion’s Clarity Joseph D’Agostino Lying Thomas Halper Adventures in Higher Education, Happiness, and Mindfulness Peter H. Huang BRITISH JOURNAL OF AMERICAN LEGAL STUDIES BIRMINGHAM CITY UNIVERSITY LAW SCHOOL THE CURZON BUILDING, 4 CARDIGAN STREET, BIRMINGHAM, B4 7BD, UNITED KINGDOM ISSNISSN 2049-40922049-4092 (Print)(Print) British Journal of American Legal Studies Editor-in-Chief: Dr Anne Richardson Oakes, Birmingham City University. Deputy Editors Dr Ilaria Di-Gioia, Birmingham City University. Dr Friso Jansen, Birmingham City University. Associate Editors Dr Sarah Cooper, Birmingham City University. Prof Haydn Davies, Birmingham City University. Dr Alice Storey , Birmingham City University Amna Nazir, Birmingham City University. Prof Jon Yorke, Birmingham City University. Seth Barrett Tillman, National University of Ireland, Maynooth. Editorial Team Leader 2017-2018 Mercedes Cooling Birmingham City University Student Editorial Assistants 2018 Matthew Hill Simran Juss Eleni Pavlou Luca Prisciandaro Maira Tariq Editorial Board Hon Joseph A Greenaway Jr, Circuit Judge 3rd Circuit, US Court of Appeals. Hon Raymond J McKoski, Circuit Judge (retired), 19th Judicial Circuit Court, IL, Adjunct Professor of Law, The John Marshall Law School, Chicago, IL. Prof Antonio Aunion, University of Castille-la Mancha. Prof Francine Banner, Phoenix School of Law, AZ. Prof Devon W Carbado, UCLA, CA. Dr Damian Carney, University of Portsmouth, UK. Dr Simon Cooper, Reader in Property Law, Oxford Brookes University. Prof Randall T Coyne, Frank Elkouri and Edna Asper Elkouri Professor, College of Law, University of Oklahoma, Norman OK. Mark George QC, Garden Court Chambers, Manchester, UK. Prof Larry Hammond, Osborne Maledon PA, Phoenix AZ. Prof Carolyn Hoyle, Professor of Criminology, University of Oxford, UK. Prof James Kousouros, CALS Visiting Professor, NY. Prof Ian Loveland, City University London, UK. Prof James Maxeiner, Center for International & Comparative Law, University of Baltimore School of Law, Baltimore, MD. Prof Ruth Miller, University of Massachusetts, Boston, MA. Dr Anne-Marie O’Connell, University Toulouse 1 Capitole. Prof Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College, MA. Dr Stephen W Smith, University of Birmingham, UK. Prof Carrie Sperling, University of Wisconsin Law School. Prof Clive Stafford Smith, Reprieve. Dr Timothy Stanley, Professor of Law & Frank M. Johnson Faculty Scholar, University of Alabama, Tuscaloosa, AL. Prof Russell Wheeler, The Brookings Institution, Washington DC. British Journal of American Legal Studies Volume 7 Issue 21 Spring 2018 Fall 2018 CONTENTS Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause TheRobert Curious G. Natelson Incident ............................................................................................................................................ of Trump and the Courts: Interbranch Deference in an Age of Populism 1 Bruce G. Peabody ............................................................................................................................................237 Toward Natural Born Derivative Citizenship John Vlahoplus .................................................................................................................................................71 The U.S. Constitution’s Emoluments Clauses: How History, Behavioral Psychology, and the Framers’ FelixUnderstanding Frankfurter of and Corruption the Law All Require an End to President Trump’s Conflicts of Interest ThomasDon Mayer Halper & Adam .............................................................................................................................................. Sulkowski .......................................................................................................................257115 FundamentalFascism-lite in Rights America in Early (or the American Social Ideal Case of Law: Donald 1789-1859 Trump) NicholasEwan McGaughey P. Zinos ............................................................................................................................................291137 ConstitutionalThe Holmes Truth: Coup: Toward The Case a Pragmatic, that Promulgated Holmes-Influenced a New Constitution Conceptualization for Montana of the Nature of Truth RobertJared Schroeder G. Natelson ............................................................................................................................................. .........................................................................................................................................317169 Acts of State, State Immunity, and Judicial Review in the United States Posner’s Folly: The End of Legal Pragmatism and Coercion’s Clarity Zia Akthar........................................................................................................................................................ 205 Joseph D’Agostino ..........................................................................................................................................365 Lying Thomas Halper ..............................................................................................................................................401 Adventures in Higher Education, Happiness, and Mindfulness Peter H. Huang ...............................................................................................................................................425 Br. J. Am. Leg. Studies 7(2) (2018), DOI: 10.2478/bjals-2018-0011 The Curious Incident of Trump and the Courts: Interbranch Deference in an Age of Populism Bruce G. Peabody* ABSTRACT Given President Donald Trump’s generally non-deferential posture towards national political and governing institutions, why hasn’t his administration produced greater tension with respect to judges, courts, and established norms of judicial independence? Increased politicization of the judiciary, deepening partisanship, and distinct attributes of the President himself all seem to set up a climate of interbranch confrontation likely to challenge judicial independence norms. But at least in the first two years of this presidency, sustained opposition to courts is not evident. This analysis documents and accounts for this puzzle, ultimately contending that the President’s unexpected (and admittedly fragile) institutional comity can be traced to his personal history of relying on legal safeguards and authority as well as a complex stew of partisan and ideological uncertainty about the future direction of courts. KEYWORDS Comity, Federal Courts, Judicial Independence, Judicial Politics, Partisanship, Populism, Separation of Powers, Trump CONTENTS I. The Recent Context of Interbranch Conflict ............................238 A. The Politicization of Courts .........................................................239 B. The Rise of Hyper-Partisanship ...................................................240 II. Trump and the Courts .....................................................................243 A. Personalization of Politics ...........................................................243 B. The President’s Populist Iconoclasm ...........................................245 III. Accounting for Presidential Deference ....................................246 A. Executive Interests and Independent Courts ................................249 B. Personal Familiarity and Past Reliance ........................................250 C. Partisan Disequilibrium and the Courts .......................................251 IV. Forecasting the Future .................................................................254 * Professor of Political Science, Fairleigh Dickinson University, Madison, New Jersey, B.A., 1991, Wesleyan University, Ph.D., 2000, University of Texas at Austin. This article is based, in part, on a working paper presented at the 2017 American Society of Criminology Annual Conference in Philadelphia; the author thanks Michael Stile for his invaluable research assistance, Sheldon Goldman for sharing research,
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