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Showing papers by "Nelson Lund published in 2007"


Posted Content
TL;DR: The ABA's position is analytically untenable and irresponsibly hyperbolic, but also raises a more interesting set of questions about the similarities and differences between the ways that courts and presidents do and should go about the task of interpreting the Constitution and laws as mentioned in this paper.
Abstract: Presidential signing statements that object to putatively unconstitutional statutory provisions, or interpret them to avoid constitutional difficulties, have long been common, and occasionally controversial. After an outburst of sensational journalism last year, the American Bar Association followed up with a report accusing President Bush of using these statements to threaten what it called "the rule of law and our constitutional system of separation of powers." In this brief symposium contribution, I hope to indicate why the ABA's position is analytically untenable and irresponsibly hyperbolic, but also to raise a more interesting set of questions about the similarities and differences between the ways that courts and Presidents do and should go about the task of interpreting the Constitution and laws.

2 citations


Posted Content
TL;DR: The D.C. Circuit recently held that the District of Columbia's law does not satisfy the Second Amendment as discussed by the authors, which was not adequately refuted in Judge Silberman's opinion for the U.S. Supreme Court.
Abstract: The District of Columbia forbids almost all civilians to possess handguns in their own homes. Rifles and shotguns are permitted, but they must be kept unloaded and either disassembled or secured with a trigger lock, making them useless for self defense. The D.C. Circuit recently held that this statute violates the Second Amendment.One way to attack the D.C. Circuit decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment?This superficially plausible defense of the District's statute was not adequately refuted in Judge Silberman's opinion for the D.C. Circuit. This article demonstrates, largely but not exclusively on the basis of a careful linguistic analysis of the Second Amendment, that such a defense of the District's statute is untenable.

2 citations


Journal Article
TL;DR: The ABA report as mentioned in this paper argued that the President has a "constitutional obligation to veto any bill that he believes violates the Constitution in whole or in party" and pointed out that when a President signs a bill but announces that he regards some provision in it as unconstitutional and unenforceable, or interprets the provision in a manner inconsistent with what the authors call "the will of Congress," the Report contends that he is exercising an unconstitutional line-item veto.
Abstract: Presidential signing statements that object to putatively unconstitutional statutory provisions, or interpret them to avoid constitutional difficulties, have long been common and occasionally controversial. After an outburst of sensational journalism last year,1 the American Bar Association (ABA) followed up with a report accusing President Bush of using these statements to threaten what it called "the rule of law and our constitutional system of separation of powers."2 In this brief symposium contribution, I hope to indicate why the ABA' s position is analytically untenable and irresponsibly hyperbolic, and also to raise a more interesting set of questions about the similarities and differences between the ways that courts and Presidents do and should go about the task of interpreting the Constitution and laws. I. THE ABA REPORT The key conclusion in the ABA Report is that the President has what the authors call a "constitutional obligation to veto any bill that he believes violates the Constitution in whole or in party3 When a President signs a bill but announces that he regards some provision in it as unconstitutional and unenforceable, or interprets the provision in a manner inconsistent with what the authors call "the will of Congress," the Report contends that he is exercising an unconstitutional line-item veto.4 The authors accuse President Bush of engaging in this lawless behavior on a massive scale.5 The Bush administration counters that the President is obliged to defend the Constitution against Congress and stresses its claim that Bush is not behaving differently in any significant way from many of his predecessors, including Bill Clinton.6 This claim appears plausible, and it may well be true, but it is not easy to assess exactly how much continuity actually exists.7 Comparing the Bush record with that of previous Presidents is a laborious undertaking, and some important data may not be publicly available. Absent a detailed study of the evidence, one might be tempted to dismiss the Bush administration' s protestations as a lot of patently self-serving rhetoric, especially when one looks at the ABA Report's star-studded roster of signatories: the dean of the Yale Law School; a former dean of Stanford Law School; a former chief judge ofthe United States Court of Appeals for the District of Columbia Circuit; a former Director of the FBI, who is also a former chief judge of a federal district court; a Harvard Law School professor; a professor from the George Washington University Law School; and a lecturer at Princeton University; along with a number of prominent practitioners and pundits.8 Could so many highly regarded representatives of the elite legal establishment be completely off base? If so, is it perhaps possible that the ABA Report was driven primarily by political animus against Bush rather than by any real study of the Constitution or concern for the rule of law? Maybe.9 It is not just Bush administration spokesmen and their conservative allies10 who have disputed the ABA Report. A number of prominent Democrats have attacked the Report as well - including Laurence Tribe and several former Clinton administration officials, the most prominent of whom is Walter Dellinger.1 x According to these critics, the ABA is fundamentally misguided in its claim that no President is permitted by the Constitution to declare that he will refuse to enforce unconstitutional provisions in bills that he signs into law. These critics regard the ABA Report's focus on signing statements as an attack on what Professor Tribe calls a "phantom target."12 So far as I am aware, the signatories of the ABA Report have not pointed out any flaws in the arguments of these Democratic critics. And I think it is safe to say that when Professors Tribe and Dellinger feel obliged to denounce an attack on the Bush administration, that attack probably occupies a region of ideological space populated by very few self-evident truths. …

2 citations