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Originalism and Stare Decisis Amy Coney Barrett Notre Dame Law School
Notre Dame Law Review Volume 92 | Issue 5 Article 2 7-2017 Originalism and Stare Decisis Amy Coney Barrett Notre Dame Law School Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Judges Commons Recommended Citation 92 Notre Dame L. Rev. 1921 (2017) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\92-5\NDL502.txt unknown Seq: 1 5-JUL-17 15:26 ORIGINALISM AND STARE DECISIS Amy Coney Barrett* INTRODUCTION Justice Scalia was the public face of modern originalism. Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution’s meaning as suscepti- ble to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable. The claim that the original public meaning of constitutional text consti- tutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases. But what happens when precedent conflicts with the original meaning of the text? If Justice Scalia is correct that the original public mean- ing is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis? The logic of originalism might lead to some unpalatable results. -
NONDELEGATION and the UNITARY EXECUTIVE Douglas H
NONDELEGATION AND THE UNITARY EXECUTIVE Douglas H. Ginsburg∗ Steven Menashi∗∗ Americans have always mistrusted executive power, but only re- cently has “the unitary executive” emerged as the bogeyman of Amer- ican politics. According to popular accounts, the idea of the unitary executive is one of “presidential dictatorship”1 that promises not only “a dramatic expansion of the chief executive’s powers”2 but also “a minimum of legislative or judicial oversight”3 for an American Presi- dent to exercise “essentially limitless power”4 and thereby to “destroy the balance of power shared by our three co-equal branches of gov- ernment.”5 Readers of the daily press are led to conclude the very notion of a unitary executive is a demonic modern invention of po- litical conservatives,6 “a marginal constitutional theory” invented by Professor John Yoo at UC Berkeley,7 or a bald-faced power grab con- jured up by the administration of George W. Bush,8 including, most ∗ Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit. ∗∗ Olin/Searle Fellow, Georgetown University Law Center. The authors thank Richard Ep- stein and Jeremy Rabkin for helpful comments on an earlier draft. 1 John E. Finn, Opinion, Enumerating Absolute Power? Who Needs the Rest of the Constitution?, HARTFORD COURANT, Apr. 6, 2008, at C1. 2 Tim Rutten, Book Review, Lincoln, As Defined by War, L.A. TIMES, Oct. 29, 2008, at E1. 3 Editorial, Executive Excess, GLOBE & MAIL (Toronto), Nov. 12, 2008, at A22. 4 Robyn Blumner, Once Again We’ll Be a Nation of Laws, ST. -
White House Compliance with Committee Subpoenas Hearings
WHITE HOUSE COMPLIANCE WITH COMMITTEE SUBPOENAS HEARINGS BEFORE THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT HOUSE OF REPRESENTATIVES ONE HUNDRED FIFTH CONGRESS FIRST SESSION NOVEMBER 6 AND 7, 1997 Serial No. 105–61 Printed for the use of the Committee on Government Reform and Oversight ( U.S. GOVERNMENT PRINTING OFFICE 45–405 CC WASHINGTON : 1998 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate Jan 31 2003 08:13 May 28, 2003 Jkt 085679 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 E:\HEARINGS\45405 45405 COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California J. DENNIS HASTERT, Illinois TOM LANTOS, California CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, JR., West Virginia CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York STEVEN SCHIFF, New Mexico EDOLPHUS TOWNS, New York CHRISTOPHER COX, California PAUL E. KANJORSKI, Pennsylvania ILEANA ROS-LEHTINEN, Florida GARY A. CONDIT, California JOHN M. MCHUGH, New York CAROLYN B. MALONEY, New York STEPHEN HORN, California THOMAS M. BARRETT, Wisconsin JOHN L. MICA, Florida ELEANOR HOLMES NORTON, Washington, THOMAS M. DAVIS, Virginia DC DAVID M. MCINTOSH, Indiana CHAKA FATTAH, Pennsylvania MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland JOE SCARBOROUGH, Florida DENNIS J. KUCINICH, Ohio JOHN B. SHADEGG, Arizona ROD R. BLAGOJEVICH, Illinois STEVEN C. LATOURETTE, Ohio DANNY K. DAVIS, Illinois MARSHALL ‘‘MARK’’ SANFORD, South JOHN F. TIERNEY, Massachusetts Carolina JIM TURNER, Texas JOHN E. -
RLB Letterhead
6-25-14 White Paper in support of the Robert II v CIA and DOJ plaintiff’s June 25, 2014 appeal of the June 2, 2014 President Reagan Library FOIA denial decision of the plaintiff’s July 27, 2010 NARA MDR FOIA request re the NARA “Perot”, the NARA “Peter Keisler Collection”, and the NARA “Robert v National Archives ‘Bulky Evidence File” documents. This is a White Paper (WP) in support of the Robert II v CIA and DOJ, cv 02-6788 (Seybert, J), plaintiff’s June 25, 2014 appeal of the June 2, 2014 President Reagan Library FOIA denial decision of the plaintiff’s July 27, 2010 NARA MDR FOIA request. The plaintiff sought the release of the NARA “Perot”, the NARA “Peter Keisler Collection”, and the NARA “Robert v National Archives ‘Bulky Evidence File” documents by application of President Obama’s December 29, 2009 E.O. 13526, Classified National Security Information, 75 F.R. 707 (January 5, 2010), § 3.5 Mandatory Declassification Review (MDR). On June 2, 2014, President Reagan Library Archivist/FOIA Coordinator Shelly Williams rendered a Case #M-425 denial decision with an attached Worksheet: This is in further response to your request for your Mandatory Review request for release of information under the provisions of Section 3.5 of Executive Order 13526, to Reagan Presidential records pertaining to Ross Perot doc re report see email. These records were processed in accordance with the Presidential Records Act (PRA), 44 U.S.C. §§ 2201-2207. Id. Emphasis added. The Worksheet attachment to the decision lists three sets of Keisler, Peter: Files with Doc ## 27191, 27192, and 27193 notations. -
The Constitution in Exile: Is It Time to Bring It in from the Cold?
College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2001 The onsC titution in Exile: Is It Time to Bring It in from the Cold? William W. Van Alstyne William & Mary Law School Repository Citation Van Alstyne, William W., "The onC stitution in Exile: Is It Time to Bring It in from the Cold?" (2001). Faculty Publications. 269. https://scholarship.law.wm.edu/facpubs/269 Copyright c 2001 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs Duke Law Journal VOLUME 51 OcrOBER 2001 NUMBER 1 FOREWORD THE CONSTITUTION IN EXILE: IS IT TIME TO BRING IT IN FROM THE COLD? WILLIAM W. VAN ALSTYNEt Exile n. la: Enforced removal from one's native country by authori tative decree; banishment [from Latin eXili1l11l, from fotlll, one who is exiled].l INTRODUcrION When Professors Christopher Schroeder and Jefferson Powell organized this second annual public law conference at Duke Univer sity, I was three thousand miles away in California, a visitor at the University of California, Los Angeles. Professor Schroeder's invita tion to provide the keynote address for the conference arrived by e mail out of the blue. It identified the general question the conference would examine in two days of panel discussions. The title was to be "The Constitution in Exile," and the question to be addressed was, "Is it time to bring it in from the cold?" Professor Schroeder added some details on the time, place, and possible panel participants but he said little more to elaborate on the subject at hand. -
The Pennsylvania State University the Graduate School College of The
The Pennsylvania State University The Graduate School College of the Liberal Arts CITIES AT WAR: UNION ARMY MOBILIZATION IN THE URBAN NORTHEAST, 1861-1865 A Dissertation in History by Timothy Justin Orr © 2010 Timothy Justin Orr Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy May 2010 The dissertation of Timothy Justin Orr was reviewed and approved* by the following: Carol Reardon Professor of Military History Dissertation Advisor Chair of Committee Director of Graduate Studies in History Mark E. Neely, Jr. McCabe-Greer Professor in the American Civil War Era Matthew J. Restall Edwin Erle Sparks Professor of Colonial Latin American History, Anthropology, and Women‘s Studies Carla J. Mulford Associate Professor of English *Signatures are on file in the Graduate School ii ABSTRACT During the four years of the American Civil War, the twenty-three states that comprised the Union initiated one of the most unprecedented social transformations in U.S. History, mobilizing the Union Army. Strangely, scholars have yet to explore Civil War mobilization in a comprehensive way. Mobilization was a multi-tiered process whereby local communities organized, officered, armed, equipped, and fed soldiers before sending them to the front. It was a four-year progression that required the simultaneous participation of legislative action, military administration, benevolent voluntarism, and industrial productivity to function properly. Perhaps more than any other area of the North, cities most dramatically felt the affects of this transition to war. Generally, scholars have given areas of the urban North low marks. Statistics refute pessimistic conclusions; northern cities appeared to provide a higher percentage than the North as a whole. -
The Clinton Administration and the Erosion of Executive Privilege Jonathan Turley
Maryland Law Review Volume 60 | Issue 1 Article 11 Paradise Losts: the Clinton Administration and the Erosion of Executive Privilege Jonathan Turley Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the President/Executive Department Commons Recommended Citation Jonathan Turley, Paradise Losts: the Clinton Administration and the Erosion of Executive Privilege, 60 Md. L. Rev. 205 (2001) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol60/iss1/11 This Conference is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. PARADISE LOST: THE CLINTON ADMINISTRATION AND THE EROSION OF EXECUTIVE PRIVILEGE JONATHAN TuRLEY* INTRODUCTION In Paradise Lost, Milton once described a "Serbonian Bog ... [w]here Armies whole have sunk."' This illusion could have easily been taken from the immediate aftermath of the Clinton crisis. On a myriad of different fronts, the Clinton defense teams advanced sweep- ing executive privilege arguments, only to be defeated in a series of judicial opinions. This "Serbonian Bog" ultimately proved to be the greatest factor in undoing efforts to combat inquiries into the Presi- dent's conduct in the Lewinsky affair and the collateral scandals.2 More importantly, it proved to be the undoing of years of effort to protect executive privilege from risky assertions or judicial tests.' In the course of the Clinton litigation, courts imposed a series of new * J.B. & Maurice C. -
The Age of Scalia
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2016 The Age of Scalia Jamal Greene Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation Jamal Greene, The Age of Scalia, 130 HARV. L. REV. 144 (2016). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/661 This Essay is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. ESSAY THE AGE OF SCALIA Jamal Greene* During periods of apparent social dissolution the traditionalists, the true believers, the defenders of the status quo, turn to the past with an interest quite as obsessive as that of the radicals, the reformers, and the revolu- tionaries. What the true believers look for, and find, is proof that, once upon a time, things were as we should like them to be: the laws of eco- nomics worked; the streams of legal doctrine ran sweet and pure; order, tranquility, and harmony governed our society. Their message is: turn back and all will be well.1 INTRODUCTION How does an originalist and a textualist, dropped in the middle of a Kulturkampf,2 branded a sophist and a bigot by his detractors,3 grow up to have the nation's first African American President -
Constitution in Exile” As a Problem for Legal Theory
Notre Dame Law Review Volume 89 | Issue 5 Article 10 5-2014 The C" onstitution in Exile" as a Problem for Legal Theory Stephen E. Sachs Duke University School of Law, [email protected] Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons Recommended Citation 89 Notre Dame L. Rev. 2253 (2014). This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\89-5\NDL510.txt unknown Seq: 1 28-MAY-14 8:53 THE “CONSTITUTION IN EXILE” AS A PROBLEM FOR LEGAL THEORY Stephen E. Sachs* ABSTRACT How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible? This objection is overblown. Legal rules don’t always directly reflect common agreement; they can also reflect those agreements indirectly, through conventions that operate at a higher level of abstraction. -
Presidential Files; Folder: 10/26/77; Container 48
10/26/77 Folder Citation: Collection: Office of Staff Secretary; Series: Presidential Files; Folder: 10/26/77; Container 48 To See Complete Finding Aid: http://www.jimmycarterlibrary.gov/library/findingaids/Staff_Secretary.pdf THE PRESIDENT 1 S SCHEDU;LE Wednesday - October 26, 1977 • 8:15 Dr. Zbigniew Brzezinski - The Oval Office. 8:45 Mr. Frank Moore The Oval Office. 10:30 Mr. Jody Powell The oval Office. 11:00 Senator Gaylord Nelson. (Mr. Frank Moore). (30 min.) The oval Oftice. 12:30 Drop-by Octoberfest - The South Grounds. (10. min.) 1:30 Secretary Juanita Kreps~ (Mr. Jack Watson). (15 min.) The Oval Office. 2:00 Congressman Toby Moffett et al. (30 min.) · (l-1r. Frank Moore) - The Cabinet Room. ; •.. ... :'•,' October 26, 1977 ,. I •I . ,'.,..... - ' .. ~ ~ ~- · ., ' I. ~ (,' J, . .. .; . ' • -~ I I i ; :· . To ·sena'tor .Charles.. l'1athias ' I, II • j j I : ~ o ; t '1 .t ; • i ' . , . , ' I I '• ' ', t ~. ~ I apprecla ~~, _;y(~~r ,1 ;ie,t te7 concerning Camp David, and ,ag;t;"ee , Wl. th. your comnien ts about the b~atitt~oi'~he Catoctin Mountains. The years you"hav~·~pent in this area certainly have been exciting and good. I am intt~rosted in learning more about Camp David~ and ·look, fonvard to hearing of your cxperien'ces in Frederick County. Sincerelyi IJ' '. ' t '. I .·~ . 'J~he Honorable Charles ;l'-~'?R~. Na~hias, Jr.· United States Senate ,... r Washington, D.C. 20510. ;· '_,; '··.' ,. ·I ' I ~ )·. ''\' ,. JC/sc . ,;, ' ;I } .. ~' .~.' . CJmADLJI!IIl!l xcc. MA.TEnrAS, J:a. UN:I'Il'BD 18T.A'll"ll!!I!S §BN.ATJBI October 14, 1977 ~~~.,., CONGRESSIONA~ LIAISON Dear Mr. -
Union Calendar No. 471 105Th Congress, 2D Session –––––––––– House Report 105–829
Union Calendar No. 471 105th Congress, 2d Session ±±±±±±±±±± House Report 105±829 INVESTIGATION OF POLITICAL FUNDRAISING IMPROPRIETIES AND POSSIBLE VIOLATIONS OF LAW INTERIM REPORT SIXTH REPORT BY THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT together with ADDITIONAL AND MINORITY VIEWS Volume 1 of 4 NOVEMBER 5, 1998.ÐCommitted to the Committee of the Whole House on the State of the Union and ordered to be printed INVESTIGATION OF POLITICAL FUND-RAISING IMPROPRIETIES AND POSSIBLE VIOLATIONS OF LAWÐ VOLUME 1 OF 4 1 Union Calendar No. 471 105th Congress, 2d Session ±±±±±±±±±± House Report 105±829 INVESTIGATION OF POLITICAL FUNDRAISING IMPROPRIETIES AND POSSIBLE VIOLATIONS OF LAW INTERIM REPORT SIXTH REPORT BY THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT together with ADDITIONAL AND MINORITY VIEWS Volume 1 of 4 NOVEMBER 5, 1998.ÐCommitted to the Committee of the Whole House on the State of the Union and ordered to be printed U.S. GOVERNMENT PRINTING OFFICE 51±332 WASHINGTON : 1998 COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California J. DENNIS HASTERT, Illinois TOM LANTOS, California CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, JR., West Virginia CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York CHRISTOPHER COX, California EDOLPHUS TOWNS, New York ILEANA ROS-LEHTINEN, Florida PAUL E. KANJORSKI, Pennsylvania JOHN M. MCHUGH, New York GARY A. CONDIT, California STEPHEN HORN, California CAROLYN B. MALONEY, New York JOHN L. MICA, Florida THOMAS M. BARRETT, Wisconsin THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington, DAVID M. MCINTOSH, Indiana DC MARK E. SOUDER, Indiana CHAKA FATTAH, Pennsylvania JOE SCARBOROUGH, Florida ELIJAH E. -
Redefining Federalism: Listening to the States in Shaping “Our Federalism”
Redefining Federalism: Listening to the States in Shaping “Our Federalism” Douglas T. Kendall, editor contributing authors: Jay E. Austin Jennifer Bradley Timothy J. Dowling Douglas T. Kendall James E. Ryan Jason C. Rylander Environmental Law Institute Washington, D.C. Copyright © 2004 Environmental Law Institute 1616 P Street NW, Washington, DC 20036 Published November 2004. Printed in the United States of America ISBN 1-58576-086-2 Redefining Federalism: Listening to the States in Shaping “Our Federalism” Table of Contents EDITOR’S NOTE ........................v CONTRIBUTING AUTHORS .................ix CHAPTER 1: Redefining Federalism....................1 ________________ PART ONE CHAPTER 2: Federalism and Environmental Protection ...........9 CHAPTER 3: Federalism as a Neutral Principle ..............21 ________________ PART TWO CHAPTER 4: Federalism as Libertarian Fantasy ..............31 CHAPTER 5: The Rise of Libertarian Federalism .............51 iii REDEFINING FEDERALISM ________________ PART THREE CHAPTER 6: The Voice of the States: An Overview ............61 CHAPTER 7: Overprotecting Federalism Under the Commerce Clause . 65 CHAPTER 8: Limiting State Experimentation Under the “Dormant” Commerce Clause .....................79 CHAPTER 9: Stifling Federalism Under the Supremacy Clause .......95 CHAPTER 10: Sovereign Immunity and the Fourteenth Amendment ....105 CHAPTER 11: Preventing Commandeering Under the Tenth Amendment . 125 ________________ CHAPTER 12: Conclusion ........................137 ENDNOTES .........................139 INDEX ............................173 iv Editor’s Note his book is the result of collaboration in the best sense of the word. I Thave been joined in this enterprise by five contributing authors with enormous talents, each of whom has made an unmistakable and ir- replaceable contribution to the final product. While the contributing au- thors each added ideas to the entire volume, they drafted different por- tions and these drafting accomplishments warrant specific note.