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...
The Constitution of Our Tribal Republic
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...
Unbundling Populism
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...
Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design
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.
Accountability in the Deep State
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...
(Re)Constructing Democracy in Crisis
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.
A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers
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.
Administrative Law Without Courts
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.