SLevinson at MAIL.LAW.UTEXAS.EDU
Sat Oct 26 14:43:54 PDT 2002
Marty Lederman asks:
>Sandy: Is the same list that you no doubt intended to submit in response
>to Mark T.'s post about constitutional "hardball"?
I'm not sure this is the same list. I interpreted "hardball" to be the
invocation of barely plausible (if that) arguments that suggests a
completely instrumental, take-no-prisoners approach to winning one's
objectives. For many of us, the Article II argument in Bush v. Gore was an
example (in a way that the Equal Protection argument was not, even if one
ultimately rejects its cogency as well). With regard to the examples
below, perhaps the best examples of "hardball" would be Lincoln's
unilateral suspension of habeas corpus. One of the things that interests
me about the Louisiana Purchase, for example, is that Jefferson never
seemed to agree with his Secretary of the Treasury Albert Gallatin that
there were no constitutional problems at all, that the Treaty Clause allows
*anything* to be legal so far as the process of the Clause is
followed. So he's really defending "extra-constitutional" conduct rather
than reaching to justify an action as "constitutional."
>>I offer the following chestnuts to begin the discussion. I do not
>>necessarily believe that all of them represent examples of "how various
>>presidents have violated the constitution," but I certainly believe that
>>all of them are live examples of *possible* violations:
>>1) Jefferson's purchase of Louisiana in spite of the fact that he believed
>>it was unconstitutional;
>>2) Andrew Jackson's disdain for precedent expressed in his Bank Veto
>>Message (written, of course, by Taney);
>>3) John Tyler's decision to "change the rules in the middle of the game"
>>after the treaty by which Texas would enter the Union failed of
>>ratification in the Senate, so that he suddenly decided that Texas could be
>>admitted through the "Admissions Clause" of Article IV;
>>4) Lincoln's refusal to call Congress back into session prior to July 4,
>>5) Lincoln's unilateral suspension of habeas corpus;
>>6) Lincoln's emancipation of the (or at least, some) slaves;
>>7) FDR's decision to approve "lend-lease" without congressional approval;
>>8) Truman's decision to seize the steel mills prior to going through the
>>I leave it to others to give their favorite examples with regard to Ike,
>>JFK, LBJ, and their successors.
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