A Subjective Jurisprudence

2020 ◽  
pp. 55-92
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Twentieth Century ◽  
Separation Of Powers ◽  
Judicial Power ◽  
Executive Power ◽  
The Political ◽  
Institutional Goals ◽  
Policy Goals ◽  
Power Limit ◽  
Political Right ◽  
The U.S

This chapter examines Justice Antonin Scalia’s jurisprudence dealing with the U.S. Constitution’s two structural axes, separation of powers and federalism. It argues that both constitutional principles are general, largely indeterminate, and easily manipulable and that Scalia construed them in light of his own subjective goals and values. He was determined to use them instrumentally to expand executive power, limit Congress, and severely restrict federal judicial power. The chapter argues that Scalia regarded separation of powers as more critical and important than federalism because it was better suited to serve his political and institutional goals and that, in joining the Rehnquist Court’s “federalism revolution” in the early twentieth century, he contradicted the position he had taken in his Senate confirmation hearing about the propriety of the Court giving special deference to Congress on federalism issues. Finally, the chapter shows that before he went on the Court, Scalia had made it clear that he viewed both separation of powers and federalism as principles that could and should be interpreted to serve the practical policy goals of the political right.

The Borders of Corruption

2016 ◽  
pp. 1-15 ◽  
Author(s):  
Rebecca R. Fiske
Keyword(s):  
Legal Order ◽  
State Of Exception ◽  
Executive Power ◽  
The Political ◽  
Constitutional Rights ◽  
Political Consequences ◽  
Form Of Government ◽  
Politics And Law ◽  
The Relationship ◽  
The U.S

The U.S. has been in a state of exception now for many years, and there appears to be no end in sight. There exists an entire generation who has know life under only this form of government, one that, as Giorgio Agamben explains, takes “a position at the limit between politics and law…an ambiguous, uncertain, borderline fringe, at the intersection of the legal and the political.” In the name of security, the characteristic limiting of constitutional rights, the sanctioning of torture, and the proliferating of NSA surveillance are fast becoming the norm. Recently, much has been written concerning the bio-political consequences of an endless state of exception in which the executive power trumps the judiciary, and a new legal order emerges. This chapter will consider the relationship between corruption and the permanent state of exception.

Independent Authorities: History and Problems

2011 ◽  
Author(s):  
Pierre Rosanvallon
Keyword(s):  
Twentieth Century ◽  
Separation Of Powers ◽  
Government Intervention ◽  
Executive Power ◽  
Traditional Concept

This chapter considers the rise of independent authorities within democratic countries. In most of these countries, the pace of creation of independent bodies charged with regulatory and oversight functions that had previously been entrusted to “ordinary” bureaucratic departments increased in the last two decades of the twentieth century. Although quite diverse in character, all of these organizations share a certain hybrid quality: they have an executive dimension even though they also exercise normative and judicial functions. The traditional concept of separation of powers has had to be stretched to accommodate them. The scope of the change has furthermore been considerable. In many countries vast areas of government intervention have increasingly been entrusted to these new organizations, clearly reducing the scope of administrative-executive power.

Identities in Flux

2016 ◽  
pp. 67-82
Author(s):  
Régine Robin
Keyword(s):  
Twentieth Century ◽  
Global Capitalism ◽  
The Political ◽  
Post Colonial ◽  
Contemporary Politics ◽  
Regine Robin ◽  
Political Right

‘Identities in Flux’, written by Régine Robin, is the first essay in the ‘Contemporary Politics and French Thought’ section and traces the major forces that have impacted post-colonial France: global capitalism, immigration and its resultant multiculturalism, the rise of the political right, and the persistent crises of memory that have occupied the second half of the twentieth century.

An Abandoned Jurisprudence

2020 ◽  
pp. 201-224
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Twentieth Century ◽  
Federal Courts ◽  
Judicial Power ◽  
Warren Court ◽  
Historical Practices ◽  
The U.S

This chapter examines Justice Antonin Scalia’s views on Article III of the U.S. Constitution and the nature of the federal judicial power that it established. One of Scalia’s principal goals was to limit severely the power of the federal courts and to undo many of the decisions of the Warren Court, including their ability to create implied private causes of action, and the chapter argues that in pursuing that goal Scalia departed from originalist views and that the arguments he advanced were themselves self-contradictory. The chapter shows, moreover, that originalist doctrines and historical practices actually contradicted his claims about limits on the federal judicial power. Further, the chapter argues that his views were based not on originalist ideas but on the twentieth-century positivism associated with Erie Railroad v. Tompkins, and that in Sosa v. Alvarez-Machain, he explicitly acknowledged that his positivist ideas were not the ideas of the Founders. The chapter concludes that in this area, Scalia simply abandoned originalism and did so, once again, to achieve his own ideological and political goals

The Curious Origins of Airline Deregulation: Economic Deregulation and the American Left

2019 ◽  
Vol 93 (4) ◽  
pp. 729-753 ◽  
Author(s):  
Reuel Schiller
Keyword(s):  
Twentieth Century ◽  
Political Thought ◽  
New Left ◽  
The Political ◽  
Left Wing ◽  
Regulatory Policies ◽  
Airline Deregulation ◽  
The 1960S ◽  
Political Right ◽  
American Left

This article examines the politics of airline deregulation in the 1970s, and the events that led to the passage of the Airline Deregulation Act of 1978. It links the antibureaucratic, antiregulatory policies of the 1970s to ideas closely connected to the New Left, the counterculture, and other left-wing subcultures that dominated high and low thought in the 1960s. By linking this source of antibureaucratic sentiment to the politics of airline deregulation, this article suggests a new direction for historians who study the American state in the last decades of the twentieth century. As they focus their attention on the rise of market-based, neoliberal regulatory policies, they should look for their origins not only in the growing strength of the intellectual and political right, but also in the political thought and practice of the 1960s left.

Candidate Networks, Citizen Clusters, and Political Expression

2015 ◽  
Vol 659 (1) ◽  
pp. 149-165 ◽  
Author(s):  
Leticia Bode ◽  
Alexander Hanna ◽  
Junghwan Yang ◽  
Dhavan V. Shah
Keyword(s):  
Direct Method ◽  
Tea Party ◽  
The Political ◽  
Election Cycle ◽  
Political Actors ◽  
Political Left ◽  
Twitter Users ◽  
Political Right ◽  
A Direct Method ◽  
The U.S

Twitter provides a direct method for political actors to connect with citizens, and for those citizens to organize into online clusters through their use of hashtags (i.e., a word or phrase marked with # to identify an idea or topic and facilitate a search for it). We examine the political alignments and networking of Twitter users, analyzing 9 million tweets produced by more than 23,000 randomly selected followers of candidates for the U.S. House and Senate and governorships in 2010. We find that Twitter users in that election cycle did not align in a simple Right-Left division; rather, five unique clusters emerged within Twitter networks, three of them representing different conservative groupings. Going beyond discourses of fragmentation and polarization, certain clusters engaged in strategic expression such as “retweeting” (i.e., sharing someone else’s tweet with one’s followers) and “hashjacking” (i.e., co-opting the hashtags preferred by political adversaries). We find the Twitter alignments in the political Right were more nuanced than those on the political Left and discuss implications of this behavior in relation to the rise of the Tea Party during the 2010 elections.

scholarly journals Political Law Regulation of Judicial Institutions in Exercising the Powers of an Independent Judgment: Before and After Amendments to the 1945 Constitution

2020 ◽  
Vol 1 (2) ◽  
pp. 119-128
Author(s):  
Salahudin Pakaya
Keyword(s):  
Supreme Court ◽  
Power Law ◽  
John Locke ◽  
Separation Of Powers ◽  
Judicial Power ◽  
Executive Power ◽  
New Order ◽  
Old Order ◽  
The Supreme Court ◽  
Before And After

The Supreme Court is a judicial institution that has existed since the Indonesian state was formed in 1945. This institution was formed based on the mandate of the constitution in article 24 of the 1945 Constitution, namely "judicial power is exercised by a Supreme Court and other judicial bodies according to law". But in fact, in the course of Indonesia's national and state life from its independence in 1945 to 1998, the judicial power exercised by the Supreme Court was not free and independent, both institutionally and independently of its judges. The influence of the executive power held by the president on the judicial power exercised by the Supreme Court can actually be observed in the politics of regulating judicial power through laws by the executive and legislative bodies during the old order government (President Soakarno 1945-1966) and the new order (President Soeharto 1967-1998). The judicial power law that was formed has actually subordinated the judiciary under the power of the president. This is the result of efforts to form the state of Indonesia as a country based on kinship that does not adhere to a separation of powers (executive, legislative and judicial) as the trias politica concept put forward by John Locke and Montesquie. With the 1998 reforms which in turn succeeded in amending the 1945 Constitution in order to realize the Indonesian state as a democratic legal state, the judiciary has been strengthened as an institution that is truly free and independent from the influence of extra-judicial powers.

Silence Is Consent for the Modern Presidency

2019 ◽  
pp. 97-116
Author(s):  
Jasmine Farrier
Keyword(s):  
Twentieth Century ◽  
Federal Courts ◽  
Executive Power ◽  
Woodrow Wilson ◽  
Modern Presidency ◽  
The Supreme Court ◽  
Almost All ◽  
Franklin Roosevelt ◽  
Private Litigation ◽  
The U.S

This chapter examines the breadth of executive power expansion in the twentieth century. It does this by studying private litigation cases that challenged presidential firings by Woodrow Wilson and Franklin Roosevelt; the landmark “Steel Seizure” case under Harry Truman; financial settlements related to the Iran hostage crisis; the post-9/11 cases of detainee treatment; and the most recent passport case on the U.S. policy toward Israel's capital. In almost all of these private litigation cases, the Supreme Court looked at congressional intention and action to guide their decisions. These precedents help one to understand the most recent legal controversies against President Donald Trump. Wherever federal courts can find Congress's delegation of power, presidents will likely win.

Text and the Separation of Powers

2021 ◽  
pp. 83-108
Author(s):  
George Thomas
Keyword(s):  
Separation Of Powers ◽  
Executive Branch ◽  
Judicial Power ◽  
Executive Power ◽  
War And Peace ◽  
Turn On ◽  
Different Types ◽  
War Power

The text of the Constitution points to the separation of powers in its first three articles, which outlines the three branches of government, but how we understand the nature of the different types of power and how they check one another turns on unwritten ideas and not on the constitutional text. This chapter turns to debates about executive power with regard to the president’s ability to remove officers within the executive branch, and how executive power is constructed in relation to legislative and judicial power based on unwritten ideas. The chapter then turns to the allocation of constitutional power regarding issues of war and peace within the separation of powers to illustrate that disputes about the war power, just like disputes about “the executive power,” turn on unwritten ideas. These debates have been with us since the founding, with remarkably little disagreement about constitutional text but profound disagreement on the unwritten concepts that underlie it.

7. The foreign policy process: executive, Congress, intelligence

2012 ◽  
Author(s):  
Michael Foley
Keyword(s):  
Foreign Policy ◽  
Policy Process ◽  
War On Terror ◽  
American Foreign Policy ◽  
Executive Power ◽  
The Political ◽  
Lead Agency ◽  
Judicial Recognition ◽  
The U.S

This chapter examines the U.S. foreign policy process which encompasses the executive, Congress, and intelligence. It first considers American foreign policy as a primary agency of government adaptation before discussing the role of the executive as the lead agency of systemic evolution in response to foreign policy needs, taking into account the executive prerogative and judicial recognition of inherent executive power. It then describes the political and technical difficulties experienced by Congress in matching the executive in foreign policy. It also explores the ramifications of 9/11 and the war on terror for American foreign policy and concludes with an overview of U.S. foreign policy under Barack Obama.

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