Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government

1937 Redux ? Reflections on Constitutional Development and Political Structures

We have several ways of thinking about the Supreme Court and constitutional change. One method, exemplified often in “end of the Term” commentary, takes the cases as they come to the Court, uses rough categories such as “liberal” and “conservative” or “probusiness” and “pro-consumer” to describe the outcomes, and attempts to identify some trends in doctrine and outcomes. This method focuses alm...

Ordinary Administrative Law as Constitutional Common Law

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constit...

Hiv and Medical Privacy: Government Infringement on Prisoners' Constitutional Rights

The high rate of HIV infection among Americans, the ease with which the virus is transmitted, and the terminal nature of the virus have made its existence a vital national public health issue.' Concern regarding HIV is heightened in U.S. correctional facilities, in which the prevalence of the virus is disproportionately high.2 As of December 31, 2003, 1.9% of the total U.S. prison population wa...

Ensuring Constitutional Authority: Continuity of Government

______________ 1See Appendix A for a list of the Department of Defense Directives (DoDDs) relevant to continuity of government activities. 2See Federation of American Scientists, 1999a. Press interest in federal COG programs increased after the cold war. See Emerson (1989) and Gup (1991, 1992). 3Article IV, Section 4, of the Constitution seems to provide the constitutional authority for milita...

The Impoundment Dilemma: Crisis in Constitutional Government