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.
Martial Law Would Sweep the Country Into a Great Legal Unknown
By Stephen Dycus, Professor of Law, Vermont Law School and William C. Banks, Emeritus Professor, Syracuse University College of Law
Stephen Dycus and William C. Banks look at some of the history of martial law in the United States and say that, while unlikely, it is not impossible that a president facing the situation we now find ourselves in would declare martial law—but it would be wrong to do so.
Vote-by-Mail Can Save the 2020 Election
By Ronald J. Krotoszynski, Jr., John S. Stone Chairholder of Law and Director of Faculty Research, University of Alabama School of Law
Ronald J. Krotoszynski, Jr. writes that, because of COVID-19, Congress must pass a law allowing all people to vote by mail in the November election so that no one has to choose between voting and their health.
Delaware’s Weird—and Constitutionally Suspect—Approach to Judicial Independence
By Garrett Epps, Professor of Law, University of Baltimore School of Law
Garrett Epps discusses an upcoming Supreme Court case, Carney v. Adams, which centers on a Delaware law that says the state’s courts must have a partisan balance and that judges must belong to one of the two major political parties—and says that the latter part is likely unconstitutional.
How Donald Trump Could Steal the Election
By Jeffrey Davis, Professor of Political Science, University of Maryland, Baltimore County
Jeffrey Davis describes how Donald Trump could steal the election by persuading states with Republican controlled legislatures not to hold popular elections, but instead just choose electors who will back him.
By Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School
Adrian Vermeule argues that we should abandon originalism for a new constitutional vision, which he deems “common-good constitutionalism,” that does not focus on individual liberty and instead allows for an extremely powerful executive branch focused on a moral vision of the common-good, even if that understanding conflicts with how the citizenry sees it.
Why There’s No National Lockdown
By Lawrence Gostin, University Professor and Director of the O’Neill Institute for National and Global Health Law, Georgetown University and Sarah Wetter, Fellow, O’Neill Institute for National and Global Health Law
Lawrence Gostin and Sarah Wetter contend that, because of the United States’ federalist system and certain constitutional guarantees such as freedom of association, it would be difficult and legally questionable for the president to impose a nationwide lockdown to fight COVID-19.
Innocent Prisoners Are Going to Die of the Coronavirus
By Barbara Bradley Hagerty, Contributing Writer, The Atlantic
Barbara Bradley Hagerty writes that as COVID-19 spreads through prisons, innocent people who are wrongly imprisoned will die as a result.
Trump Shouldn’t Be Able to Fire Fauci for Contradicting Him
By Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law
Peter M. Shane asserts that Congress should pass a law allowing the directors of the National Institutes of Health’s centers to be removed only for cause, not political differences, so that public health officials can do their jobs without interference.
Authoritarian Populists Have Six Classic Moves. Trump’s Response to COVID-19 Uses Five of Them
By Kristy Parker, Counsel, Protect Democracy and Yascha Mounk, Contributing Writer, The Atlantic
Kristy Parker and Yascha Mounk argue that throughout the COVID-19 crisis Donald Trump has continued actions used by authoritarian rulers—such as spreading disinformation, threatening to use powers not constitutionally provided to him, and weakening the independence of key institutions—that threaten democracy and centralize power.
By Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
Randy E. Barnett responds to Adrian Vermeule’s piece, “Beyond Originalism,” saying that common-good constitutionalism is wrong, and is a threat to both progressive living constitutionalists and conservative originalists.
Common-Good Constitutionalism Is an Idea as Dangerous as They Come
By Garrett Epps, Professor of Law, University of Baltimore School of Law
Garrett Epps responds to Adrian Vermeule’s piece, “Beyond Originalism,” writing that Vermeule’s theory disregards the Constitution and advocates authoritarianism.
