Federalism & Separation of Powers

Subscribe in a reader

Executive Committee Contact Information

Practice Group Newsletters 1996-2000

Subcommittees

  • Congressional-Executive Powers
  • Federalism
  • Role of the Courts
  • Scholarship and Academic Affairs

Upcoming Events

   Second Annual Executive Branch Review Conference

Recent Publications

   Do State Attorneys General Have a Duty to Defend State Laws? - Podcast

state flags

Recently U.S. Attorney General Eric Holder, citing the Supreme Court's 5-4 decision in United States v. Windsor, urged the members of the National Association of Attorneys General to exercise their discretion to decline to defend state-level Defense of Marriage Acts (DOMA). State attorneys general of California, Pennsylvania, and Virginia, among others, have followed the Justice Department's lead in declining to defend such state laws. Colorado Attorney General John Suthers urged state attorneys general not to employ a "litigation veto" to nullify popularly enacted laws with which state attorneys general might disagree. What is the scope of a state attorney general's power to decline to execute or enforce state law on the basis that the law is or is thought to be unconstitutional and inconsistent with the oath to uphold the U.S. Constitution? What lessons, if any, may properly be drawn from the federal context and any Presidential authority to decline to enforce federal statutes that he views as unconstitutional? Do such instances of executive non-defense and non-enforcement amount to executive arrogation of legislative prerogative? Colorado Attorney General John Suthers and William & Mary Professor Neal Devins discussed these questions and engaged with the audience's comments and questions.

Featuring:

  • Prof. Neal E. Devins, Professor of Law, Professor of Government, and Director of the Institute of Bill of Rights Law, William and Mary Marshall-Wythe School of Law
  • Hon. John W. Suthers, Attorney General, State of Colorado

[Listen now!]

 
   Originalism and the Good Constitution - Podcast

Originalism and the Good Constitution

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities — both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. The authors of Originalism and the Good Constitution, Prof. Michael B. Rappaport and Prof. John O. McGinnis, discussed the book along with commentary from Prof. Michael Greve on a live Teleforum conference call.

Featuring:

  • Prof. Michael S. Greve, Professor of Law, George Mason University School of Law
  • Prof. Michael B. Rappaport, Darling Foundation Professor of Law, University of San Diego School of Law
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law

[Listen now!]

 
   Can the South Carolina Legislature Pass a Law to “Nullify” Obamacare?
 
   The Conscience of the Constitution - Podcast

The Conscience Constitution: The Declaration of Independence and the Right to LibertyIs liberty or democracy the primary constitutional value? At a time when Americans are increasingly facing violations of their civil liberties, Timothy Sandefur's insightful new book explains why the Declaration of Independence, with its doctrines on the primacy of liberty, the natural rights of man, and the limits on legitimate government, should serve as the guidepost for understanding the Constitution. The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty argues that modern legal doctrines, which value democracy over liberty, are endangering individual rights and corrupting our civic institutions. Mr. Sandefur discussed his new book followed by commentary from Mr. Clark Neily of the Institute for Justice.

Featuring:

  • Timothy Sandefur, author, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, and Principal Attorney, National Litigation Center, Pacific Legal Foundation
  • Commentary by: Clark Neily, Senior Attorney, Institute for Justice

[Listen now!]