Below is a round-up of the latest from the “Battle for the Constitution:” a special project on the constitutional debates in American life, in partnership with The Atlantic.
The Disintegration of the American Presidency
By Susan Hennessey, Executive Editor, Lawfare and Benjamin Wittes, Editor in Chief, Lawfare
Susan Hennessey and Benjamin Wittes look at the theory of the unitary executive and describe how Donald Trump is breaking the normal constitutional structure, and the problem it—and resistance to it—poses.
By Garrett Epps, Professor of Constitutional Law, University of Baltimore
Garret Epps argues that a recent gun rights rally in Virginia impeded the First Amendment rights of other people and that carrying a gun should not be understood as protected free speech activity.
The Necessity of the Indian Child Welfare Act
By Leah Litman, Assistant Professor of Law, University of Michigan, and Matthew L.M. Fletcher, Professor of Law, Michigan State University
Leah Litman and Matthew L.M. Fletcher explain how a series of Supreme Court cases from the late 1800s and early 1900s giving Congress expansive control over Native American tribes were initially abused, but how the cases have come to allow Congress to fight discrimination against those tribes more powerfully than usual. They also discuss how a case before the U.S. Court of Appeals for the Fifth Circuit concerning the Indian Child Welfare Act (ICWA) threatens to undo that and change the shape of American federalism.
An Impeachment Trial Without Witnesses Would Be Unconstitutional
By Paul Savoy, Former prosecutor, Manhattan District Attorney’s Office
Paul Savoy contends that key legal precedents including Justice Byron White’s concurring opinion in Nixon v. United States (1993), The Federalist Papers, and a Justice Department memo prove that not allowing witnesses in an impeachment trial would be unconstitutional.
Abuse of Power Is a Dangerous Standard for Democrats to Play With
By Mario Loyola, Senior Fellow, Competitive Enterprise Institute
Mario Loyola asserts that impeachment is a political process and so what constitutes an impeachable offense is a political decision, not a legal standard. He also warns that the “elevation of abuse of power to an impeachable offense puts this and future presidents on notice that if they fail to live up to standards that Americans broadly expect of their leaders, they may be impeached even if they commit no crime.”
The Troubling Ideals at the Heart of Abortion Rights
By Erika Bachiochi, Fellow, Fellow, Ethics and Public Policy Center
Erika Bachiochi contends that cases like Roe v. Wade and abortion rights do not promote women’s equality—and in fact harm it.
