Showing papers by "Keith E. Whittington published in 2019"

A Formidable Weapon of Faction? The Law and Politics of Impeachment

Abstract: This essay draws on recent studies of the federal impeachment power and the issues swirling around the presidency of Donald Trump to consider the law and politics of impeachments. The impeachment process is inescapably political, but that does not mean that there are not constitutional rules, standards and considerations that can and will shape how the politics plays out. The most challenging constitutional questions surrounding the impeachment power relate to the scope of impeachable offenses. It is possible to rule out some possible interpretations of the constitutional language of “high crimes and misdemeanors,” but the standard for impeachable offenses that we are left with will still require contestable political judgment to apply in any particular case. Knowing whether a given act could be regarded as an impeachable offense is only the first step in determining whether an individual should be impeached and removed from office.

Judicial Review of Congress Database Codebook

Abstract: The Judicial Review of Congress Database catalogs all the cases in which the U.S. Supreme Court has substantively reviewed the constitutionality of a provision or application of a federal law. The database currently includes 1308 cases decided by the Court from its founding through its October 2017 term and related pieces of information about those cases. This document includes a description of the variables found in the Judicial Review of Congress Database, a description of how the cases were selected, and a link to the publicly accessible database.

The Value of Pluralism in the Academy

Abstract: Sustaining a climate that encourages free speech and free inquiry is a persistent challenge in the university setting, just as it is in society more broadly. Appropriate institutional protections and policies can help protect against the censorious suppression of unorthodox views, but the problem of self-censorship by faculty and students alike might be a harder problem to solve. Creating safeguards so that dissenters from local orthodoxies do not fear reprisals is only a first step toward reducing the temptation to self-censorship. Constructing a pluralistic intellectual environment and nurturing a culture of critical dialogue and skeptical inquiry will help draw out a more robust exchange of ideas.

Free Speech and the Diverse University

Abstract: The values of free speech and inclusivity have often been pitted against one another in recent debates about the future of higher education. This is an unfortunate and damaging framing. Modern universities are deeply committed to both values, and the challenge is to find ways to reconcile them and to examine their requirements with an eye toward reconciling them. Both values are related to the central mission of the university to advance and disseminate human knowledge. If universities are to be productive in pursuit of their scholarly mission and welcoming to diverse array of individuals and groups, then they will need to nurture cultures that are supportive of the mission of the university as well as design policies that are consistent with that mission. This article argues that better realizing these twin values in modern universities requires a three-step process of reform. First, university faculty need to build agreement about a core set of principles to which they are committed and to memorialize those principles. Second, universities need to take active measures to socialize individuals joining the campus community into the principles, values and commitments that animate those communities. Third, universities need to adopt policies, rules and practices that effectively implement and administer those principles, ranging from robust protections for scholarly inquiry and teaching to mechanisms to insure the campus public sphere is open to all members of the campus community to freely discuss and debate matters of general concern.

Academic Freedom and the Scope of Protections for Extramural Speech

Abstract: Advocates for faculty have long argued that "extramural speech" - off-campus speech by professors about matters of general concern - should be immune from punishment by university officials as an aspect of academic freedom. Extramural speech seems to be becoming even more prominent and more controversial in the age of social media, and so faculty members have a growing stake in its protection. But extramural speech fits uneasily alongside the other traditional components of academic freedom - the freedom to teach and to engage in scholarly inquiry. I argue that extramural speech is best understood not as an aspect of academic freedom per se, but it should nonetheless be fully protected as an aspect of campus free speech. The best rationale for protecting extramural speech is that doing so in a necessary prophylactic rule for securing the core components of academic freedom that are essential to the core mission of a university.