An introduction to this issue dedicated to the topic of the 2018 UCLA Law Review Symposium, "The Safeguards of Our Constitutional Republic."
In Print: Volume 65, Issue 6
Scholars, judges, and policymakers have observed that American constitutional democracy depends on far more than the constraints imposed by judicially-interpreted formal legal arrangements. Drawing on judicial doctrine, political science, and the history of American institutions since the end of World War II, this article explores what it means to take seriously a more expansive, less court-centric view of the safeguards associated with American constitutional democracy.
The article calls attention to the latent instability of constitutional norms and theorizes the structure of constitutional norm change. It argues that, under certain conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. Thus, President Trump’s flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex norm deterioration underway in other institutions.
Long before there was a U.S. Constitution for the American republic, there were treaties among Indian Nations and between Indian Nations and colonial governments reflecting ideals of consultation and negotiation among self-determining peoples. Using negotiations between the United States and the states a point of comparison, this article works through what it might mean to think about negotiations in Indian Country in constitutional terms.
Populism is primarily defined in our public discussions by the loudest self-identifying populists active in democratic politics at the moment. Populism has therefore often been treated as a concept merging not just antiestablishment sentiments, but also authoritarian and xenophobic sentiments. The article argues the antiestablishment part of populism can be empirically and logically unbundled from its authoritarian and xenophobic dimensions.
The article contemplates how constitutional designers should address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government.
The story behind the resignation of Joel Clement—the head of the U.S. Interior Department’s Office of Policy Analysis—provides a window into the relationship between the political leadership and the civil service at the Interior Department in the first year of the Trump administration. It also serves as a jumping-off point to revisit the value in having a civil service with some independence from politics, and to consider mechanisms to protect that independence.
This article complements academic discourse about democratic backsliding by focusing on two questions: In what ways has democracy been chronically or systemically weakened and prevented, and what kinds of new institutional and organizational forms do we need to realize democratic aspirations in the twenty-first century.
The article explores the role and transformation of civil society groups under the presidency of Donald Trump. It observes such groups face the risk of overlooking injustices that do not involve President Trump, the urge to sharpen tactics against the administration’s lawyers, and the temptation to forget that the country will be better off when, once more, the work of civil society groups is not so urgently needed.
The article explores the approach to administrative law in a period when the executive systematically disregards the expectation of rational, good-faith decision-making and seeks single-mindedly to maximize achievement of its policy objectives.
This article argues that it is a mistake to fixate on courts as the core safeguard in the modern administrative state. The article surveys federal agencies that regulate us in many ways that either evade judicial review entirely or are at least substantially insulated from such review.
After President Trump withdrew the United States from the Paris Climate Accord, California announced its continued commitment to the cause by entering into agreements to control global temperature increases with other subnational governments from around the world. This comment analyzes possible dormant foreign affairs preemption challenges posed by such agreements.
This comment considers the ways in which modern qualified immunity implicates or undermines the Fourteenth Amendment’s Equal Protection Clause. It argues that qualified immunity often deprives victims of police brutality of their only viable remedy. As such, in the context of excessive force claims, qualified immunity violates the Equal Protection Clause and should be overruled.