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Constitution

Time to End the Filibuster?

Putting aside Trump’s typical garbled formulations—and that his remarks were obviously prompted by his frustration with the lack of success in enacting promised legislation—doesn’t Trump have a point about the problematic centrality of the filibuster in today’s Senate? With few exceptions, very little can be legislatively accomplished unless 60 votes can be mustered there even though nothing in the Constitution requires this super-majority for passing ordinary legislation or appropriation bills. The constitutional system of separated powers and checks and balances is no doubt a complicated one. But it was also designed to allow a representative and refined majority to have its say in the end.

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Imperial Branches

At times, the dispute between the Trump administration and the federal courts over the president’s executive order on immigration feels more like a WWE SmackDown than a considered statutory and constitutional dispute. Partisan critics of both branches leave one to imagine a sign over the entrance to Constitution Hall, reading “Tonight’s Main Match: ‘The Imperial Presidency’ versus ‘The Imperial Judiciary.’ ”

Such a dispute should not come as a surprise. Both branches have for some time been advancing their authority and reach, stretching respectively the meaning of executive and judicial power. It also shouldn’t come as a surprise since both the judicial and executive powers involve the interpretation and application of the laws—a fact that led John Locke, the political philosopher who first gave us the theory of modern separation of powers, to conflate the judicial power with the executive.

Indeed, if the Federalist Papers’ analysis is correct—that maintaining the constitutional order requires one branch’s ambitions to check another’s—then the occasional spat is to be expected and may sometimes be healthy. The push and pull means that each branch should be relatively clear about what its authorities are and be willing to argue in their defense. For the public, it can be a useful civic reminder that we do live in a constitutional republic.

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Constitutional Statesmanship: A New Project of AEI’s Program on American Citizenship

Created by AEI’s Program on American Citizenship, the Constitutional Statesmanship e-curriculum is a rich source of materials compiled to aid both teacher and student in the classroom instruction and learning of American history, government, civics, and social studies. This collection of primary source documents paired with video discussions highlights constitutional themes and challenges as experienced by key statesmen in our history. It seeks to educate both hearts and minds about American political principles, ideals, identity, and national character, and the virtues and aspirations of our civic life.

Abraham Lincoln and the Constitution is the first topic in the ongoing Constitutional Statesmanship series.

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2014 Walter Berns Constitution Day Lecture: The Constitution as Political Theory

ICYMI: Is the Constitution more than America’s primary legal document? The idea of a plan of government being contained in a written document is so taken for granted that it is rarely noted and seldom seen as an innovation, argued Jim Ceaser of the University of Virginia during the 2014 annual Walter Berns Constitution Day lecture. Yet, noted Ceaser, during the founding era, the development of a written constitution was counted as a major innovation of great theoretical import.
Given the centrality of public consent at the time, only by accessing a written text could Americans — assembled in different places at different times — exercise their consent. Nonetheless, continued Ceaser, the significance of a written constitution goes beyond this mere requirement: The Constitution assumed the highest authority because the government’s authority derived from it.

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Slavery and the Constitution: An immoral compromise?

On Tuesday evening, AEI’s Program on American Citizenship hosted the second annual Walter Berns Constitution Day Lecture. Michael Zuckert of the University of Notre Dame spoke on the topic of slavery at the constitutional convention.

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Announcing WalterBerns.org

Tonight, we celebrate the second annual Walter Berns Constitution Day Lecture, which was established by AEI’s Program on American Citizenship to honor Walter’s scholarship on the Constitution and America’s founding principles.

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2012 Walter Berns Constitution Day lecture


On September 13, 2012, Michael W. McConnell, Richard & Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, delivered the 2012 Walter Berns Constitution Day lecture at AEI with an address entitled “Spending, Public Debt, and Constitutional Design.” If you missed the event, you won’t want to miss reading Professor McConnell’s remarks, which have recently been published by the Program on American Citizenship.

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Born in the U.S.A.

Writing earlier this week in the Los Angeles Times in celebration of the 225th anniversary of the signing of the U.S. Constitution, Yale Law Professor Akhil Reed Amar points out just how extraordinary and influential an event the creation of our Constitution was–and is.

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Stolen Valor Act ruled unconstitutional

In addition to releasing its opinion on the Affordable Health Care Act yesterday, the Supreme Court also issued its decision in United States v. Alvarez, deciding that the Stolen Valor Act violated the First Amendment of the Constitution.

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A rather old constitution

As we noted in February, according to a study by David S. Law and Mila Versteeg, the “U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere.” Indeed, when Supreme Court Justice Ruth Bader Ginsburg visited Egypt earlier this year, she remarked that we in America have “a rather old constitution” and that, instead of looking to it for guidance in constitution writing, one might instead look at the constitutions of South Africa or the European Convention on Human Rights.

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ConText: crowd sourcing Madison’s Notes of the Constitutional Convention

On Friday, the Brookings Institution and the Center for the Constitution at James Madison’s Montepelier launched a new project that aims to bring to life Madison’s Notes of the Debates in the Federal Convention of 1787. As Brookings’ Benjamin Wittes explains, “The result is ConText, which launched [on Friday], Madison’s birthday. Organized like the Talmud, ConText surrounds the Notes with layers of commentary—commentary on the history (what was going on in the room), current events (how these events relate to current politics), theoretical and philosophical issues, and subsequent constitutional interpretation and dispute. Like Wikipedia, that commentary will be written by a scholarly community that develops around ConText: historians, constitutional scholars and practitioners, and interested students and lay people. Both the text and the commentary are fully searchable.”

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“The greatest deliberative body known to man”


Earlier this week, Congressman David Dreier (R-California), who has been serving in Congress since 1981, announced that he would retire from the legislative body at the end of his current term. In his five-minute speech on the floor of the House of Representatives, he acknowledged Congress’s “abysmally low approval rating” even as he praised the institution.

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Is the Constitution losing appeal?

Last week, Adam Liptak, writing in the New York Times, reported on a study that found that “the U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere.” The study looked at 729 constitutions adopted by 188 countries between 1946 and 2006 and concluded that “among the world’s democracies, constitutional similarity to the United States has clearly gone into free fall.”

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