Vol. 119 No. 5

Constitutional Law
CLR Forum

EVALUATING CONSTITUTIONAL HARDBALL: TWO FALLACIES AND A RESEARCH AGENDA

Joseph Fishkin * & David E. Pozen **

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein’s response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often “takes two” to play, both sides must be playing it in a similar manner. Shugerman’s response, on the other hand, helps combat the common fallacy of equating[...]

Census
Essay

COUNTING CHANGE: ENSURING AN INCLUSIVE CENSUS FOR COMMUNITIES OF COLOR

Janai Nelson*

The constitutionally mandated decennial enumeration of the U.S. population is indispensable to the equitable distribution of political and economic resources. As we approach the 2020 Census, however, several factors converge that both undermine how we count change in commu­nities of color and conflict with shifting demographics and power dynamics, making accurate accounting especially urgent. Among these, perhaps most notable is the threatened[...]

Administrative Law
Essay

CITIZENSHIP AND THE CENSUS

Justin Levitt *

In early 2018, the federal government announced that it would ask every person in the country about their citizenship status on the 2020 Census. Controversy immediately followed. The Constitution makes the decennial census the federal government’s very first express responsibility; it drove existential questions about represen­tation and funding in 1790 and has become no less important in the centuries since. Many observers, including several[...]

Executive Power
Article

ARTICLE II VESTS THE EXECUTIVE POWER, NOT THE ROYAL PREROGATIVE

Julian Davis Mortenson*

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presi­dential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional original­ists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it[...]