Constitutional Law

  • History Offers Warning that Some Crises of Civic Virtue are Overblown

    by Bruce Dearstyne

    The American Bar Association's Committee on American Citizenship warned in 1922 of a decline in civic awareness that threatened the very survival of the republic. A century later, it offers a lesson that sometimes warnings of democratic peril are self-serving. 

  • On the Historical Dilettantes Practicing Originalism

    by Joshua Zeitz

    "The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess."

  • Would the Founders Convict Trump and Bar Him From Office?

    by Eli Merritt

    "Today’s Republican senators must at least be willing to break with their party and disappoint some of their constituents — and, yes, perhaps lose their jobs in coming elections — to serve the larger interest of protecting the nation."

  • The Constitution Forbids a Post-Presidential Impeachment Trial

    by William G. Hyland, Jr.

    A biographer of George Mason argues that, by the text and original intent of the Constitutional impeachment power, Donald Trump's exposure to trial ended when he left office and the Senate trial set to start on February 8 is unconstitutional.

  • What the Founders Would Have Done with Trump

    by Frank O. Bowman III

    "The impeachment mechanism written into the American Constitution owes its structure to a set of very specific lessons the Framers drew from British and classical history," writes a constitutional law scholar. Those lessons point to the validity of trying Trump in the Senate even after the end of his presidency.

  • Why Trump Can Be Convicted Even as an Ex-President

    by Steven I. Vladeck

    The historical record of impeachment trials suggests that they treat removal from office and disqualification from future office as separate questions, meaning that the Senate may still vote to disqualify Trump from office even after his term has ended. 

  • The 25th Amendment Should Not Be Invoked Lightly

    by Brian Kalt

    The speed with which presidential power transfers to the Vice President under the 25th Amendment is balanced by the relative ease with which the president can reclaim those powers. Is it an appropriate tool for removing Donald Trump from power (if not from office)? 

  • Was Impeachment Designed to Fail? (Review Essay)

    The Constitution, by design, stacks the impeachment deck strongly in the president’s favor. And it’s those 233-year-old design choices that dictated the Trump impeachment trial’s eventual outcome. Presidential impeachments are never a fair fight, and they weren’t meant to be.