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How to Think Constitutionally About Prerogative: A Study of Early American Usage
Get PDFThis Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as Locke defined it. Instead, the early American understanding of “prerogative” appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis, Americans based their claims to enjoy rights of self-taxation on their colonial charters, which were issued by the King’s prerogative. The primary connotations of “prerogative” for Americans were thus self-government and the benefits of government, principally the protection of property and liberty. Drawing on this view, the Article proffers several principles for constructing the powers of the President. It argues that the Article II Vesting Clause should be treated as a substantive grant of executive power, but conceived narrowly as the power to carry out the law and not as a grant of prerogative. It is the enumerated powers in Article II that establish presidential prerogatives. These powers should be treated as defeasible” in the sense that they may be regulated by statute and judicial decision, within limits reflecting the independence of the presidential office. This framework is consistent with the series of modern statutes regulating presidential emergency powers, including the War Powers Resolution and the National Emergencies Act
Law\u27s Underdog: A Call for Nonhuman Legalities
Get PDFQuestions pertaining to the role of nonhumans in law shed light on some of the most fundamental assumptions and constructions of contemporary modern law. I start by reviewing the traditions of animal welfare and animal rights in legal studies and by discussing the constitutional frameworks that contend with the animal. Then, I move beyond the individual-based discourse of much existing animal law to contemplate ecological traditions that consider nonhuman populations and species as well as land ethics and ecosystem management. Next, I review the rich literature that has emerged in the last two decades in critical theory, mainly posthumanism and its subtraditions of animal geographies and multispecies ethnography. Finally, I sketch visions of more-than-human legalities that push beyond the limitations of existing (neo)liberal legal traditions, pausing to consider what ocean, or blue, legalities might look like. Throughout, I argue that we need to move toward a dynamic and pluralistic approach that acknowledges the myriad ways of being in the world, their significance to law, and, in turn, law\u27s significance to these other modes of existence
Trends to Note in Alcoholic Beverage Trademark Law That Can Impact the Decision Making Process for Businesses At Critical Points in the Alcoholic Beverage Product Life Cycle
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Informal Constitutional Change
Get PDFIn response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017)
Quasi-Constitutional Change Without Intent—a Response to Richard Albert
Get PDFIn response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017)
