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The original text of the Constitution grants Congress the power to
create a regime of intellectual property protection. The first
amendment, however, prohibits Congress from enacting any law that
abridges the freedoms of speech and of the press. While many have
long noted the tension between these provisions, recent legal and
cultural developments have transformed mere tension into conflict.
"No Law" offers a new way to approach these debates.
H. Jefferson Powell offers a powerful new approach to one of the
central issues in American constitutional thinking today: the
problem of constitutional law's historicity, or the many ways in
which constitutional arguments and outcomes are shaped both by
historical circumstances and by the political goals and commitments
of various actors, including judges. The presence of such
influences is often considered highly problematic: if
constitutional law is political and historical through and through,
then what differentiates it from politics per se, and what gives it
integrity and coherence? Powell argues that constitutional theory
has as its (sometimes hidden) agenda the ambition of showing how
constitutional law can escape from history and politics, while much
constitutional history seeks to identify an historically true
meaning of the constitutional text that, once uncovered, can serve
as a corrective to subsequent deviations from that truth.
Americans often think about constitutional law in terms of high-profile decisions by the Supreme Court - decisions that divide the justices by ideology, not law. This focus often leads to the erroneous conclusion that constitutional law arguments are, and can only be, political in substance. In The Practice of American Constitutional Law, H. Jefferson Powell demonstrates that there is a longstanding, shared practice of constructing and evaluating constitutional law claims that transcends current political disagreements. Powell describes how lawyers and judges identify constitutional problems by using a specifiable method of inquiry that enables them to agree on what the questions are, and thus what any plausible answer must address, even when disagreement over the most persuasive answers remains. Rather than being simply politics by other means, constitutional law is the successful practice of giving substance to the Constitution as supreme law.
Americans often think about constitutional law in terms of high-profile decisions by the Supreme Court - decisions that divide the justices by ideology, not law. This focus often leads to the erroneous conclusion that constitutional law arguments are, and can only be, political in substance. In The Practice of American Constitutional Law, H. Jefferson Powell demonstrates that there is a longstanding, shared practice of constructing and evaluating constitutional law claims that transcends current political disagreements. Powell describes how lawyers and judges identify constitutional problems by using a specifiable method of inquiry that enables them to agree on what the questions are, and thus what any plausible answer must address, even when disagreement over the most persuasive answers remains. Rather than being simply politics by other means, constitutional law is the successful practice of giving substance to the Constitution as supreme law.
Targeting Americans: The Constitutionality of the U.S. Drone War focuses on the legal debate surrounding drone strikes, the use of which has expanded significantly under the Obama Presidency as part of the continuing war against terror. Despite the political salience of the legal questions raised by targeted killing, the author asserts that there has been remarkably little careful analysis of the fundamental legal question: the constitutionality of the policy. From a position of deep practical expertise in constitutional issues, Prof. Powell provides a dispassionate and balanced analysis of the issues posed by U.S. targeted killing policy, using the killing of Anwar al-Awlaki in September 2011 as a focus for discussion. While Powell concludes that the al-Awlaki strike was constitutional under 2001 legislation, he rejects the Obama administration's broader claims of authority for its drone policies. Furthermore, he argues, citizens acting as combatants in al-Qaeda and associated groups are not entitled to due process protections: by due process standards, the administration's procedures are legally inadequate. A fundamental theme of the book is that the conclusion that an action or policy is constitutional should not be confused with claims about its wisdom, morality, or legality under international norms. Part of the purpose of constitutional analysis is to draw attention to these other normative concerns and not, as is too often the case, to occlude them.
The authors of this book share a concern for the state of law and
democracy in our country, which to many seems to have deteriorated
badly. Deep changes are visible in a wide array of phenomena:
judicial opinions, the teaching of law, legal practice,
international relations, legal scholarship, congressional
deliberations, and the culture of contemporary politics. In each of
these intersections between law, culture, and politics, traditional
expectations have been transformed in ways that pose a threat to
the continued vitality and authority of law and democracy. The
authors analyze specific instances in which such a decline has
occurred or is threatened, tracing them to "the empire of force," a
phrase borrowed from Simone Weil. This French intellectual applied
the term not only to the brute force used by police and soldiers
but, more broadly, to the underlying ways of thinking, talking, and
imagining that make that sort of force possible, including
propaganda, unexamined ideology, sentimental cliches, and politics
by buzzwords, all familiar cultural forms. Based on the underlying
crisis and its causes, the editors and authors of these essays
agree that neither law nor democracy can survive where the empire
of force dominates. Yet each manages to find a ground for hope in
our legal and democratic culture. H. Jefferson Powell is Frederic
Cleaveland Professor of Law and Divinity at Duke University and has
served in both the federal and state governments, as a deputy
assistant attorney general and as principal deputy solicitor
general in the U.S. Department of Justice and as special counsel to
the attorney general of North Carolina. His latest book is
"Constitutional Conscience: The Moral Dimension of Judicial
Decision. "An extraordinary collection of provocative, insightful, and
inspiring essays on the future of law and democracy in the
twenty-first century." "These thoughtful essays diagnose democracy's perilous present,
and---more importantly---they explore avenues to democracy's rescue
through humanization of law." Contributors
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