<abstract xmlns="http://www.w3.org/1999/xhtml">

By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion” and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state war power cases.
</abstract>

The Constitution, Invasion, Immigration, and the War Powers of States

What Court (if any) Decided <italic>Ex parte Merryman?</italic>—A Correction for Justice Sotomayor (and others)

<abstract xmlns="http://www.w3.org/1999/xhtml">

This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law.
The article explains how a mysterious metaphorical device, the “reasonable observer” (a descendant of the common law's “reasonable man”) has been subjectively applied in a confusing and inconsistent manner in judicial disqualification cases. The unexamined approach has unwittingly undermined the plain text and the mandatory ethical obligation of recusal (i.e., a judge must disqualify when his or her impartiality might reasonably be questioned).
The discussion: (a) analyzes the theoretical underpinnings of the reasonable person-observer analytical tool (“heuristic”); (b) explains how American jurisprudence has glibly transmogrified the appearance-recusal precept; (c) provides a unique and starkly contrasting analytical perspective demonstrating how select common law-based jurisdictions (Australia, Canada, Singapore, South Africa, United Kingdom) have painstakingly examined and applied the widely-recognized norm of appearance-based impartiality; and (d) synthesizes the preceding theoretical and jurisprudential information to support a proposal for a recalibrated metric and a pragmatic, clarifying heuristic. The article concludes with a model provision, in the form of a guiding “commentary,” that summarizes the essential aspects of the appearance of bias precept. The article provides an interpretative approach that attempts to be faithful to the letter and spirit of the foundational judicial ethic.
</abstract>

Magical Thinking and Appearance-based Recusal

<abstract xmlns="http://www.w3.org/1999/xhtml">

The state secrets privilege is the most formidable evidentiary privilege available to the United States government. Available only to the executive branch, it is used to protect national security information from disclosure during litigation, and is habitually acquiesced to by courts. Once invoked, the privilege prevents covered material from being put into evidence that touches sensitive matters of national security. It is apparent that this privilege is subject to abuse by the executive branch to shield activities and personnel from judicial scrutiny and legal inquiries for reasons other than to protect national security. The privilege derives from British and Scottish doctrines of Crown Privilege that allow government to withhold evidence from legal proceedings to protect the public interest. The derivation of the state secrets privilege from the tradition of Crown Privilege has never been thoroughly explored. This article traces the influence of Crown Privilege in the development and evolution of the state secrets doctrine in the United States.
</abstract>

From Crown Privilege to State Secrets<xref ref-type="fn" rid="j_bjals-2023-0010_fn_001">1</xref>

<abstract xmlns="http://www.w3.org/1999/xhtml">

How to determine whether fundamental unenumerated constitutional rights exist, and if so, what they are? The questions are of obvious enormous importance—witness the current controversy over abortion—and yet courts have generally been content to address the issues superficially, sometimes, cavalierly. Their treatment of the most common rationale, an historical/traditional consensus, exemplifies this shallow approach. The underdeveloped character of the argumentation on this topic stubbornly remains one of the most glaring shortfalls of modern constitutional law.
</abstract>

Lear's Daughters? Unenumerated Fundamental Rights and the Constitution

<abstract xmlns="http://www.w3.org/1999/xhtml">

Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?
This Article makes the case that the President is an officer of, and holds an office under, the United States for those purposes. It contributes to the debate over the provision's reach by setting out the broad case for Section 3's application to Presidents and the Presidency, utilizing text, purpose, legislative history, canons of construction, ordinary usage, and contemporaneous judicial and executive interpretations.
The Article demonstrates public understandings before and after ratification that Section 3 bars eligibility to the Presidency, both in general and for the most important disqualified rebel—Jefferson Davis. It catalogues descriptions of Presidents as officers of the United States from Washington in 1794 to Jefferson, Jackson, Van Buren, Harrison, Polk, Taylor, Fillmore, Buchanan, Lincoln, Johnson, Grant, and Garfield, many of which occurred in the context of the President's election, constitutional position, and role in preventing domestic violence, preserving the Union, and enforcing the law during Reconstruction. Finally, it ties related Reconstruction statutes, legislative history, and contemporaneous judicial and executive interpretations into the broad case that Section 3 bars faithless Presidents from again taking the oath to “preserve, protect and defend the Constitution of the United States” until Congress permits.
</abstract>

Insurrection, Disqualification, and the Presidency

AHEAD OF PRINT

Volume 13 (2024): Issue 1 (February 2024)

Volume 12 (2023): Issue 2 (September 2023)

Volume 12 (2023): Issue 1 (July 2023)

Volume 11 (2022): Issue 2 (November 2022)

Volume 11 (2022): Issue 1 (June 2022)

Volume 10 (2021): Issue 3 (December 2021)

Volume 10 (2021): Issue 2 (August 2021)

Volume 10 (2021): Issue 1 (April 2021)

Volume 9 (2020): Issue 3 (December 2020)

Volume 9 (2020): Issue 2 (August 2020)

Volume 9 (2020): Issue 1 (May 2020)

Volume 8 (2019): Issue 3 (December 2019)

Volume 8 (2019): Issue 2 (December 2019)

Volume 8 (2019): Issue 1 (May 2019)

Volume 7 (2018): Issue 2 (December 2018)

Volume 7 (2018): Issue 1 (May 2018)

Volume 6 (2017): Issue 2 (December 2017)

Volume 6 (2017): Issue 1 (May 2017)

Volume 5 (2016): Issue 2 (December 2016)

Volume 5 (2016): Issue 1 (April 2016)

British Journal of American Legal Studies

 The British Journal of American Legal Studies is the premier American legal studies journal in Europe. This peer reviewed, cross-disciplinary journal is a bridge between American and European legal scholarship focused on American legal issues. The journal has a theoretical focus, but will occasionally publish articles with a doctrinal or empirical focus that cast light on important issue within the journal's remit. The journal highlights scholarship examining shared intellectual traditions between America, Britain and Europe. Authors whose work draws connections between American, British and European constitutional, political, historical, intellectual ideas and materials informing legal studies are particularly welcome to submit articles to the journal.　   Submissions/information for authors:  Submissions may be made through Scholastica and are typically but not exclusively between 10 - 15, 000 words excluding footnotes. The journal uses Bluebook referencing format.　  The journal does not have article processing charges (APCs) nor article submission charges.  Archiving  Sciendo archives the contents of this journal in Portico - digital long-term preservation service of scholarly books, journals and collections.  Plagiarism Policy  The editorial board is participating in a growing community of Similarity Check System's users in order to ensure that the content published is original and trustworthy. Similarity Check is a medium that allows for comprehensive manuscripts screening, aimed to eliminate plagiarism and provide a high standard and quality peer-review process.  Target Group   academics and practitioners in the field of constitutional law having relevance to the United States, including human rights, legal and political theory, socio-legal studies and legal history 

British Journal of American Legal Studies

Volume 13 (2024): Issue 1 (February 2024)

The Constitution, Invasion, Immigration, and the War Powers of States

What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others)

Magical Thinking and Appearance-based Recusal

From Crown Privilege to State Secrets¹

Lear's Daughters? Unenumerated Fundamental Rights and the Constitution

Insurrection, Disqualification, and the Presidency

Buscar

Todos los volúmenes y ediciones en esta revista

British Journal of American Legal Studies

Volume 13 (2024): Issue 1 (February 2024)

The Constitution, Invasion, Immigration, and the War Powers of States

What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others)

Magical Thinking and Appearance-based Recusal

From Crown Privilege to State Secrets1

Lear's Daughters? Unenumerated Fundamental Rights and the Constitution

Insurrection, Disqualification, and the Presidency

Buscar

Todos los volúmenes y ediciones en esta revista

From Crown Privilege to State Secrets¹