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Volume 8 Issue 3 8 Issue Volume 2019 Fall 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 8 Issue 3 8 Issue Legal Studies | Volume British Journal of American AmericanAmerican LegalLegal StudiesStudies VolumeVolume 87 IssueIssue 31 FallSpring 2019 2018 ARTICLES SPECIAL ISSUE MERICAN OLITICS ISTORY AND AW ROSS ISCIPLINARY IALOGUE AFounding-Era P Socialism:, H The Original L Meaning: A C of the -Constitution’sD Postal D Clause Robert G. Natelson PapersToward presentedNatural Born to a Derivative conference Citizenship hosted by the Centre for American Legal Studies, BirminghamJohn Vlahoplus City University and the Monroe Centre, Reading University with the support of the Political Studies Association (PSA) ECN NetworkFelix Frankfurter and the American and the Law Politics Group and held at Birmingham City University on Monday,Thomas 30th HalperJuly 2018. SpecialFundamental Issue Editor:Rights Drin EarlyIlaria AmericanDi-Gioia, BirminghamCase Law: 1789-1859 City University Nicholas P. Zinos The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth Jared Schroeder Politics and Constitutional Law: A Distinction Without a Difference Robert J. McKeever Acts of State, State Immunity, and Judicial Review in the United States Zia Akthar A Legacy Diminished: President Obama and the Courts Clodagh Harrington & Alex Waddan A Template for Enhancing the Impact of the National Academy Amelia Shooter & of Science’s Reporting on Forensic Science Sarah L. Cooper The International Criminal Court, Sitting Heads of State Prosecutions Mattia Cacciatore and the Paradox of the Balance of Power The Environment, A Bipartisan Issue?: Partisanship Polarization Valentina Dotto & and Climate Change Policies in the United States Anne Richardson Oakes 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 Prof Julian Killingley, Birmingham City University Dr Amna Nazir, Birmingham City University Dr Alice Storey, Birmingham City University Seth Barrett Tillman, National University of Ireland, Maynooth Prof Jon Yorke, Birmingham City University Editorial Team Leader 2019—2020 Amelia Shooter Birmingham City University Student Editorial Assistants 2019—2020 Shena Briscoe Denisa Bucioaca Thomas Kidney Thomas Nicklin Melisa Oleschuk Kate Waterfield 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, Rothermere American Institute, University of Oxford, UK. Prof. Adam N. Steinman, 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 87 Issue 31 FallSpring 20 120189 CONTENTS Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause PoliticsRobert G. and Natelson Constitutional ............................................................................................................................... Law: A Distinction without a Difference? .............1 Robert J. McKeever ........................................................................................................................................401 Toward Natural Born Derivative Citizenship John Vlahoplus .................................................................................................................................................71 A Legacy Diminished: President Obama and the Courts FelixClodagh Frankfurter Harrington, and Alexthe Law Waddan .................................................................................................................419 Thomas Halper .............................................................................................................................................. 115 A Template For Enhancing The Impact of The National Academy of Sciences’ Reporting on Forensic Science FundamentalAmelia Shooter, Rights Sarah in L.Early Cooper American ................................................................................................................... Case Law: 1789-1859 441 Nicholas P. Zinos ............................................................................................................................................ 137 The International Criminal Court, Sitting Heads of State Prosecutions, and the Paradox of the Balance of Power MattiaThe Holmes Cacciatori Truth: ............................................................................................................................................. Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth 465 Jared Schroeder ............................................................................................................................................. 169 The Environment, A Bipartisan Issue?: Partisanship Polarization and Climate Change Policies in the United States Acts of State, State Immunity, and Judicial Review in the United States Valentina Dotto, Anne Richardson Oakes .......................................................................................................483 Zia Akthar ........................................................................................................................................................ 205 Br. J. Am. Leg. Studies 8 (Special Issue) (2019), DOI: 10.2478/bjals-2019-0007 Politics and Constitutional Law: A Distinction without a Difference? Robert J. McKeever* ABSTRACT This article examines the relationship between Politics and Law in U.S. Supreme Court decision-making. It argues that three major developments in recent decades have combined to undermine the Court’s status as a legal and judicial institution, and instead define it as political actor, motivated by ideology and the personal policy predilections of the Court’s Justices. The first of these elements is the increasingly political and partisan nature of the Supreme Court appointment process, as witnessed by the recent Gorsuch and Kavanaugh nominations. The behaviour of the President and Senators in these controversial appointments conclusively demonstrates that the country’s leading politicians view the Court as primarily a political body rather than a legal one. The second element of the assault on the Court’s status as a judicial institution is the rise in influence of the behaviouralist school of Supreme Court analysis. Beginning with the work of academics such as Glendon Schubert, the behaviouralists employed new methods and theories in an attempt to debunk the Legal Model of Supreme Court decision-making and to replace it with what is known today as the Attitudinal Model. It forcibly argues that Supreme Court Justices are political in intent and decision, with legal language and arguments being no more than judicial camouflage to disguise their true nature. This applies equally to both conservative and liberal justices. The article identifies the third element of the assault on the status of the Court as a legal institution as coming from Originalist scholars, activists and judges who accuse liberal Justices of having abandoned traditional interpretive methods in favour of redefining the language of the Constitution to suit their progressive political agenda. Originalists acknowledge that their own interpretive methods may lead to results deemed unacceptable to contemporary Americans, but argue that it the duty of the political branches of government, not the courts, to modernise policy and practice. This article concludes that while Originalism has genuine appeal as a theory of interpretation, it is nevertheless both impractical and undesirable. Moreover,
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