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Articles written by David Adler

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 By David Adler    Opinion    November 29, 2021 

We the People: Court's creation of Executive Privilege without foundation

The Supreme Court's historic rejection in U.S. v. Nixon (1974) - "The Watergate Tapes Case" - of President Richard Nixon's assertion of an "absolute" and "unreviewable" authority to invoke executive...

 

Executive Privilege: Flimsy historical defenses

Delegates to the Constitutional Convention, as we have seen, did not fail to address the issue of presidential authority to invoke executive privilege. Rather, they chose not to clothe the president with power to withhold information from Congress....

 

We the People: Center stage, again

Former President Donald Trump’s assertion of executive privilege to deny the January 6 Select Committee access to his aides, advisers, documents and memo, brings center stage, once again, the issue of the nature, scope and authority for...

 

Editorial: The Preamble tells our constitutional creation story

The Preamble to the U.S. Constitution, regrettably often overlooked by the citizenry, provides an elegant summation of our nation’s constitutional creation story. It speaks of the work of the sovereign people. It represents a direct act of...

 

Article V: Amendments to Create a "More Perfect Union"

Article V of the Constitution—the Amendatory Clause—provides the constitutionally prescribed means for changing the Constitution to keep it adequate to the needs of the American people. This innovative provision empowers the citizenry and their...

 

We the People: Supreme Court's authority engulfed by storms and polarization

The Supreme Court’s authority, grounded since the dawn of the republic in its prestige and reputation, now faces the storms that have overwhelmed Congress and the Presidency, and diminished the institutional popularity of our political branches. A...

 

We the People: The right to privacy and the road to Roe v. Wade

The Supreme Court’s watershed decision in Griswold v. Connecticut (1965) which, as we have seen, introduced a general constitutional right to privacy, sufficient to protect a married couples’ right to use contraceptive devices, has exerted...

 
 By David Adler    Opinion    October 4, 2021

Griswold v. Connecticut and the right to privacy

The U.S. Supreme Court’s landmark decision in the 1965 case of Griswold v. Connecticut established the right to privacy as a fixed star in our constitutional constellation and, in the process, guaranteed married couples access to contraceptive...

 

Through the mists of time: Origins of the right to privacy

Although not mentioned in the Constitution, the right to privacy has been invoked by its enormous following as thoroughly American and indispensable to our conception of liberty and freedom. Its partisans have expressed numerous reasons for its...

 

We the People: John Marshall and the Need for Judicial Transparency

Whatever you think about the U.S. Supreme Court’s controversial, 5-4 midnight ruling on the Texas statute forbidding most abortions in the state, one thing is clear: the Court bears, in the name of accountability, the great responsibility of explai...

 

We the People: Thinking, constitutionally

Americans typically consider questions about the meaning of the Constitution through the prism of their own political views and values. As a consequence, they tend to defend as constitutional the acts of officials whom they support, and criticize as...

 
 By David Adler    Opinion    August 30, 2021

We the People: American withdrawal from Afghanistan and the War Clause

How many more Americans would have to die before the United States made the inevitable decision to withdraw from war in Afghanistan, after 20 years of war, at the cost of more than $2 trillion, and the loss of 2,500 lives? That was the illuminating...

 
 By David Adler    Opinion    August 23, 2021

We the People: Civic virtue should induce citizens to become vaccinated

The founders believed, as James Madison wrote, that Americans possessed sufficient virtue to summon the courage and conviction to do the right thing in the face of the most trying circumstances. This might mean that citizens would find it necessary...

 
 By David Adler    Opinion    August 16, 2021

We the People: The Senate's Check on Judicial Nominations

The U.S. Senate’s constitutional role in the appointment process for federal judges empowers it to thwart presidential nominations to the bench, including those nominated to the Supreme Court. More than one president in our history has felt the...

 
 By David Adler    Opinion    August 9, 2021

"Abuse and Circumvention of the Advice and Consent Clause"

The framers of the Constitution inserted the Advice and Consent Clause to insure joint decision making between the president and the Senate in the exercise of the treaty making and appointment powers. What happens when the aims, purposes and spirit...

 
 By David Adler    Opinion    August 2, 2021

Advice and consent: Constitutional duty of the Senate

Some readers may remember that their introduction to this ancient phrase came when they picked up a copy of Allen Drury’s 1959 Pulitzer-Prize winning novel, “Advise and Consent,” which described a passionate and energetic U.S. Senate engulfed...

 
 By David Adler    Opinion    July 19, 2021

Congressional term limits: Light from the 22nd Amendment

The debate surrounding proposals for term limits on members of Congress would benefit from a reminder of the reasoning behind the 22nd Amendment, which imposed a two-term limit on the presidency. That amendment, ratified in 1951, is now 70 years...

 
 By David Adler    Opinion    July 12, 2021

Where frequent elections end, tyranny begins

Students of the Constitution often ask for an explanation of the Constitutional Convention’s rationale for distinguishing the length of terms for members of the U.S. House of Representatives, and the U.S. Senate. Why, they wonder, do Representative...

 
 By David Adler    Opinion    July 5, 2021

Ratifying the Constitution: Democracy in action

On June 21, 1788, New Hampshire became the ninth state to ratify the proposed Constitution. This was an act for the ages, because it not only marked the technical implementation of the new law of the...

 
 By David Adler    Opinion    June 28, 2021

We the People: To regulate in the last resort

Does Congress, under the Time, Place and Manner Clause of the Constitution, possess authority to “alter” or otherwise override state laws governing the conduct of congressional elections? That is the central constitutional question at the heart...

 
 By David Adler    Opinion    June 21, 2021

Trump's claimed reinstatement: A Constitutional myth

Former President Donald Trump has been telling people that he expects to be “reinstated” as president, in August. The premise behind this theory, embraced by his MAGA supporters, is that President Joe Biden’s election victory will be...

 
 By David Adler    Features    June 14, 2021

The mystery of the Ninth Amendment

Likely the most mysterious provision of the Bill of Rights, the question of the meaning of the Ninth Amendment, has generated numerous interpretations and theories. Though not invoked by the Supreme Court for the first time in our nation’s history...

 
 By David Adler    Features    June 7, 2021

We the People: The beguiling 10th Amendment

Throughout our nation’s history, the 10th Amendment to the Constitution has been misconstrued for the purpose of advancing state sovereignty, at the expense of the Supremacy Clause. Some have invoked it as a second Supremacy Clause. The language...

 
 By David Adler    Features    May 31, 2021

Nullification: Old wine in new bottles

The doctrine of nullification, a pernicious pillar of southern resistance to the federal government in the 19th and 20th centuries, promotes a constitutional theory that was emphatically rejected by the framers of the Constitution, when they cast the...

 
 By David Adler    Features    May 24, 2021

We the People - Ouster of Liz Cheney: Historic implications for American democracy

If Rep. Liz Cheney (R-Wy.) had been purged from the House GOP leadership simply because of policy differences on matters of domestic and international issues, few in the United States, outside the ranks of party activists, reporters and political...

 

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