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Constitutionalism represents America's greatest gift to human freedom, yet its story remains largely untold. For over 200 years, its ideals, ideas, and institutions influenced different peoples in different lands at different times. American constitutionalism and the revolutionary republican documents on which it is based affected countless countries by helping them develop their own constitutional democracies. Western constitutionalism—of which America was a part along with Britain and France—reached a major turning point in global history in 1989, when the forces of democracy exceeded the forces of autocracy for the first time. This book traces the spread of American constitutionalism—from Europe, Latin America, and the Caribbean region, to Asia and Africa—beginning chronologically with the American Revolution and the fateful “shot heard round the world” and ending with the conclusion of the Cold War in 1989. The American model contributed significantly by spearheading the drive to greater democracy throughout the Western world, and this book tells a story that will change the way readers view the important role American constitutionalism played during this era.

American college campuses, where ideas are freely exchanged, contested, and above all uncensored, are historical hotbeds of political and social turmoil. In the past decade alone, the media has carefully tracked the controversy surrounding the speech of Iranian President Mahmoud Ahmadinejad at Columbia, the massacres at Virginia Tech, the dismissal of Harvard's President Lawrence Summers, and the lacrosse team rape case at Duke, among others. No matter what the event, the conflicts that arise on U.S. campuses can be viewed in terms of constitutional principles, which either control or influence outcomes of these events. In turn, constitutional principles are frequently shaped and forged by campus culture, creating a symbiotic relationship in which constitutional values influence the nature of universities, which themselves influence the nature of our constitutional values. This book uses the American university as a lens through which to view the Constitution in action. Drawing on landmark cases and conflicts played out on college campuses, it demonstrates how five key constitutional ideas—the living Constitution, the division between public and private spheres, the distinction between rights and privileges, ordered liberty, and equality—are not only fiercely contested on college campuses, but also dominate the shape and identity of American university life. The book demonstrates that the American college community, like the Constitution, is orderly and hierarchical yet intellectually free and open, a microcosm where these constitutional dichotomies play out with heightened intensity.

This book presents the fourth collection of the James Madison lectures delivered at the New York University School of Law, offering thoughtful examinations of an array of topics on civil liberties by a distinguished group of federal judges, including Justice Stephen Breyer of the Supreme Court. The result is a fascinating look into the minds of the judges who interpret, apply, and give meaning to the U.S. “embattled Constitution.” This book explores wide-ranging issues. Are today's public schools racially segregated? To what extent can the federal courts apply the Bill of Rights without legislative guidance? And what are the criteria for the highest standards of judging and constitutional interpretation? The book also discusses how and why the U.S. Constitution came to be embattled, shining a spotlight on the current polarization in both the Supreme Court and the American body politic and offering careful and informed analysis of how to bridge these divides.

The United States is in the midst of a heated conversation over how the Constitution impacts national security. In a traditional reading of the document, America uses military force only after a full and informed national debate. However, modern presidents have had unparalleled access to the media as well as control over the information most relevant to these debates, which jeopardizes the abilities of a democracy's citizens to fully participate in the discussion. This book targets this issue of presidential dominance and proposes an ambitious solution: a First Amendment that makes sure the voices of opposition are heard. It argues that the First Amendment's goal is to protect the entire structure of democratic debate, even including activities ancillary to the dissemination of speech itself. Assessing the right of political association, the use of public streets and parks for political demonstrations, the press's ability to comment on public issues, and presidential speech on national security, the book examines why this democratic model of free speech is essential at all times, but especially during the War on Terror.

It is generally assumed that pro-trade laws are not good for human rights, and legislation that protects human rights hampers vibrant international trade. In a bold departure from this canon, this book makes a case for reaching a middle ground between these two fields, acknowledging their coexistence and the significant points at which they overlap. Using actual examples from many of the thirty-five nations of the Western Hemisphere, the book carefully examines human rights policies throughout the world, never overlooking the very real human rights problems that arise from international trade. However, instead of viewing the two kinds of law as isolated, polar, and sometimes hostile opposites, the book makes powerful suggestions for how these intersections may be navigated to promote an international marketplace that embraces both liberal trade and liberal protection of human rights.

From the Justice Department's memos defending coerced interrogation to Alberto Gonzales's firing of U.S. Attorneys who did not fit the Bush administration's political needs, this book paints an alarming picture of the many detours that George W. Bush and his allies created to thwart transparency and undermine the rule of law after September 11, 2001. Pursuing those detours, Bush officials set up a law-free zone at Guantánamo, ordered massive immigration raids that separated families, and screened candidates for civil service jobs to ensure the hiring of “real Americans.” While government needs flexibility to address genuine risks to national security—which certainly exist in the post-9/11 world—the Bush administration's use of detours distracted the government from urgent priorities, tarnished America's reputation, and threatened voting and civil rights. In this comprehensive analysis of Bush officials' efforts to stretch and strain the justice system, the book canvasses the costs of the administration's many legal detours, from resisting accountability in the war on terrorism to thwarting economic and environmental regulation. The book maps these aberrations, surveys the damage done, and reaffirms the virtues of transparency and dialog that the Bush administration dismissed.

This book addresses whether and how to tell the story of the law’s infamy. Who tells that story? And for what purpose? Is it a consoling story of progress and redemption, or a piercing story of law covering the tracks of its complicity with evil? Law’s Infamy examines when and why the word “infamy” should be used to characterize legal decisions or actions taken in the name of the law. It does so while acknowledging that law’s infamy is by no means a familiar locution. More commonly, the stories we tell of law’s failures talk of injustices not infamy. Labelling a legal decision “infamous” suggests a distinctive kind of injustice, one that is particularly evil or wicked. Doing so means that such a decision cannot be redeemed or reformed; it can only be repudiated.

Habeas corpus, known as the Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account. Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes. This book, heavily based on primary sources from the colonial period and the early national period and significant research in the New Hampshire State Archives, seeks to illuminate the past and draw lessons for the present. It expands the definition of habeas corpus from a formal one to a functional one; traces the role of the writ as one element in an overall system for restraining government power; and explains how understanding the writ as an instrument for the enforcement of checks and balances illuminates a range of current issues including the struggle against terrorism and detentions at Guantanamo Bay, curbing domestic violence, the requirements for Brexit, and many others.

This book draws on neoconservative writings to explore the rise of the neocons and their influence on the Supreme Court. Neocons burst onto the political scene in the early 1980s via their assault on pluralist democracy's ethical relativism, where no pre-existing or higher principles limit the agendas of interest groups. Instead, they advocated for a resurrection of republican democracy, which declares that virtuous citizens and officials pursue the common good. Yet despite their original goals, neocons quickly became an interest group themselves, competing successfully within the pluralist democratic arena. When the political winds shifted in 2008, however, neocons found themselves shorn of power in Congress and the executive branch. But portentously, they still controlled the Supreme Court. The book explains how and why the neoconservatives criticized but operated within pluralist democracy, and, most important, what the entrenchment of neocons on the Supreme Court means for present and future politics and law.

Reorganizing Government seeks to transform how policymakers and scholars understand relationships between government institutions, and offers a pioneering model for constructing and assessing government authority. Regulation is frequently less successful than it could be. This is at least partly because the relationships among regulatory institutions are poorly understood and regulatory structures are routinely poorly designed. The book advances a framework for assessing how governmental authority may be structured along three dimensions-centralization, overlap, and coordination-and demonstrates how differentiating among these dimensions and among particular governmental functions (e.g., standard setting, enforcement) better illuminates the tradeoffs of organizational alternatives. It illustrates these neglected dimensional and functional aspects of interjurisdictional relations through six in-depth explorations involving securities and banking regulation, food safety, environmental protection, and terrorism prevention. In each case study, the authors explore how differentiating among dimensions, and among particular governmental functions, better illuminates the advantages and disadvantages of available structural options. (Re)Organizing Government thus offers a way for officials and scholars to evaluate both adopted and contemplated allocations of authority and to structure intergovernmental authority more effectively. It uses the lens of climate change, an emerging and vital global policy challenge, to illustrate the practical value of applying the book's novel analytical framework to future reorganization efforts. The book concludes by proposing an "adaptive governance" infrastructure that provides a way for policymakers to embed the creation, evaluation, and adjustment of the organization of regulatory institutions into the democratic process itself.

The book attacks the output of the Roberts Court based on its implications for the breakdown of democracy. Part I explores traditions concerning the preservation of democracy here and abroad. Efforts to nurture democracy were pioneered by the founding generation, picked up by the Supreme Court in the era of Nazi Germany and Stalinist Russia, adapted by the international community after World War II, and then interpreted by foreign constitutional courts. Part II examines postwar scientific studies of why democratic government survives or breaks down. These studies focus on constitutional guarantees, disparities in resources, the polarization of America, and the weakening of institutions that once formed the American melting pot, unifying us as a people, and the risks from the threat of force, public or private. Part III focuses on the legal issues. The postwar science provides the basis for a critical evaluation of the Roberts Court’s impact on the future of democracy in America. The book concludes by making the case that constitutional interpretation is incoherent and illogical absent concern for the future of democracy in America. The Roberts Court should have behaved differently by constitutional injunction.

Recent controversies surrounding the war on terror and American intervention in Iraq and Afghanistan have brought rule of law rhetoric to a fevered pitch. While President Barack Obama has repeatedly emphasized his administration's commitment to transparency and the rule of law, nowhere has this resolve been so quickly and severely tested than with the issue of the possible prosecution of Bush Administration officials. While some worry that without legal consequences there will be no effective deterrence for the repetition of future transgressions of justice committed at the highest levels of government, others echo Obama's seemingly reluctant stance on launching an investigation into allegations of criminal wrongdoing by former President George W. Bush, Vice President Dick Cheney, Secretary Donald Rumsfeld, and members of the Office of Legal Counsel. Indeed, even some of the Bush Administration's harshest critics suggest that we should avoid such confrontations, that the price of political division is too high. Using this debate, this book takes an interdisciplinary approach to the legal challenges posed by the criminal wrongdoing of governments. The chapters take distinct positions for and against the proposition, offering revealing reasons and illuminating alternatives. The question of whether any Bush administration officials violated the law is not asked, but rather the procedural, legal, political, and cultural questions of what it would mean either to pursue criminal prosecutions or to refuse to do so. By presuming that officials could be prosecuted, the chapters address whether they should.