• Can Congress Sub-Delegate Legislative Powers? [No. 86]
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    Can Congress Sub-Delegate Legislative Powers? [No. 86]

    The Constitution of the United States divides up powers of government among different institutions. It vests all legislative powers herein granted in Congress; it vests the executive power in the President and through the President and subordinates within administrative agencies. And it vests the judicial power of the United States in Federal Courts. Question is, what are the contours of that power? If Congress gives certain authority, to the President, to administrative agencies, to courts, for that matter, to private citizens or foreign countries, is there a point at which Congress is giving those other entities the legislative power that the Congress is vested with under The Constitution. That question,…

  • Should Courts Defer to Political Branches? [No. 86]
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    Should Courts Defer to Political Branches? [No. 86]

    One popular notion about how to think about the courts is the idea of judicial restraint. The idea here is that when interpreting the Constitution, courts should be restrained and should defer to the judgments of Congress or the President or the state legislatures. I do not think that the courts should defer to the opinions of other branches about the meaning of the Constitution. But this is the way I think it should work is that the legislative branches or the political branches are entitled to govern, unless what they are doing violates the Constitution. And some things that they might do violate the very words, I mean, you…

  • Constitutional Principles
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    Constitutional Principles

    Welcome back, Government students! In Unit 1 you learned about the foundations of American government. Where we came from and how we got started here in the United States. You also learned about our first real attempt at forming a government to unify the colonies— The Articles of Confederation… As you remember, that was a terrible failure. So now we have a brand new nation with a failing government and an outlook that seemed bleak. The Founding Fathers were in desperate need of a constitution—or established principles—to guide our nation and maintain order. It needed to unify the states and establish justice, maintain safety across the nation, provide for the…

  • Constitutional War Powers: Thomas Jefferson and the Barbary Pirates
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    Constitutional War Powers: Thomas Jefferson and the Barbary Pirates

    Immediately after the Revolutionary War, the US lost the protection of the naval forces of Britain and France in the Mediterranean. And the Barbary pirates were the naval forces of the, uh, satellite states of the Ottoman Empire, who essentially demanded tribute or would seize commercial vessels and hold as prisoners and hostages their crews, and sometimes even put them into slavery. Jefferson heard about the seizures of American commerce, and he realized that something had to be done, but he was against paying tribute or ransom. So, when the issue came up in Jefferson’s time, Jefferson did explicitly authorize the naval forces that Congress had provided him to defend…

  • Does the Fourteenth Amendment Guarantee Birthright Citizenship? [POLICYbrief]
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    Does the Fourteenth Amendment Guarantee Birthright Citizenship? [POLICYbrief]

    Before the Civil War, it appears that the people who decided on citizenship were the states because the federal government was not really regulating it at all. Citizenship was done under what we call the common law, the law we inherited from England at the time of the Revolution. No one disagrees that that’s the rule that applied in England at the time of the Revolution. If you were born on English soil, you were English, and so the assumption has always been to the extent we can tell that the states all adopted the birthright citizenship approach. Now, the reason why this became important is because of Dred Scott.…

  • What Kind of Document is the Constitution? [No. 86]
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    What Kind of Document is the Constitution? [No. 86]

    Suppose I hand you three documents. Each one of those documents contains exactly the same words. They could all be photocopies of a single document. Three identical documents. I then tell you, one of them is a poem, one of them is a shopping list, one of them is a secret code. Are you going to read, interpret, those three documents exactly the same way just because the words are identical? I would guess not, because knowing something about what the kinds of documents are tells you something, not everything, but something about how to go about reading them. If I tell you it’s a poem, you’re going to be…

  • Simple Rules v. Regulation [Introduction to Common Law] [No. 86]
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    Simple Rules v. Regulation [Introduction to Common Law] [No. 86]

    When one wants to talk about examples of coordination through simple rules, they’re two kinds of transactions. One of them are sort of outright transfers of goods and the other is cooperative behavior. When you’re dealing with an outright transfer of goods, it’s not as easy as you think. You have to figure out when delivery is going to have to take place. You’re going to have to figure out what conditions have to be satisfied in order for the buyer to take the goods. These will typically involve warranties, having to do with the ownership of the good called warranties of title, or warranties of merchantability. And it’s extremely…

  • The Importance of Structure v. Parchment Barriers [No. 86]
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    The Importance of Structure v. Parchment Barriers [No. 86]

    We cannot underestimate the importance of structure to preserving liberty. As Justice Scalia was fond of saying, “Any tinpot dictator can have a Bill of Rights.” The Bill of Rights for the Soviet Union was extraordinarily capacious, the Bill of Rights for the North Korean regime is extraordinarily capacious. But without structural protections, Bill of Rights are mere “parchment barriers,” in the words of the Federalist. They’re mere parchment barriers because they’re very easy to transgress without structural mechanisms keeping those in power in check. So it’s a structure that allows the different institutions of government to check and balance each other. It’s structure that allows the ambition of members…

  • War on Poverty: What it got wrong | IN 60 SECONDS
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    War on Poverty: What it got wrong | IN 60 SECONDS

    Ready to go! President Lyndon Johnson’s War on Poverty had some important successes, but it got at least one thing very wrong: Its leaders used the language of civil rights to talk about income and poverty. Financial assistance from the government is not a right! It’s not protected by the Constitution like religious freedom or freedom of speech. Using the language of rights led to two big mistakes. First, it told people in need that they had no role in improving their economic situation; the government would take care of everything. And second, it led to a misguided effort to use Congress and federal courts to impose uniform anti-poverty policies…

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    Is It Time to Repeal the Jones Act? [POLICYbrief]

    The Jones Act is the Merchant Marine Act of 1920. It’s named after Wesley Jones, the senator from Washington, and he justified the, his legislation on the grounds that we needed to better sealift capacity and a ship-building capacity. The act comes into being as a direct result of World War I. In 1914 when the world goes to war, the United States finds itself in a very precarious situation. The U.S. does not have a large ocean-going merchant marine. And so, the Merchant Marine Act of 1920 aims to ensure that the United States never finds itself in that position where in time of war or conflict, it’s basically…