Constitutional Commentary, Volume 37, Number 3 (Fall 2022)

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    Constitutional Commentary, Volume 37, Number 3 (Fall 2022). Table of Contents
    (University of Minnesota Law School, 2023-11-22)
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    January 6, Ambiguously Inciting Speech, and the Over-Acts Rule
    (2023-11-21) Rozenshtein, Alan Z; Shugerman, Jed H
    A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol. This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This Article is an attempt to make that line clearer.
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    Self-Coup and the Constitution
    (2023-11-21) Hemel, Daniel J
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    The mixed Legacy of the January 6 Investigation for Executive Privilege and Congressional Oversight
    (2023-11-22) Shaub, Jonathan D
    The attack on the Capitol on January 6 was an unprecedented event in U.S. history. Across a wide swath of constitutional law, January 6 will have significant implications and consequences, most of which are likely not yet known. That is particularly true of constitutional doctrines governing congressional oversight and executive privilege. The select committee established by the House of Representatives to investigate the events on and leading up to January 6 has undertaken a monumental task of investigating, collecting, and reporting the facts surrounding the attack, and the January 6 committee has doggedly pursued an exhaustive investigation in furtherance of its originating purposes and functions. That pursuit—undertaken pursuant to Congress’s implicit authority to conduct oversight—has generated numerous important precedents related to the scope of that authority and the constitutional doctrine of executive privilege, the executive branch’s common defense to congressional oversight. This Essay undertakes a first attempt to understand the legacy of the precedents on congressional oversight and executive privilege generated by the January 6 investigation against the backdrop of the constitutional disputes that predated the committee’s inception. Most importantly, perhaps, the committee’s success—alongside several high-profile failures— demonstrates forcefully the extent to which Congress must rely on the executive branch to assert its constitutional authority. The successes of the committee were almost wholly attributable to a politically aligned, sympathetic White House and Department of Justice. Beyond that, the judicial and executive branch precedents generated by the investigation will be particularly impactful in three ways. First, these precedents powerfully affirm a constitutional role for congressional reconstruction and reconciliation of past events, even if no specific legislative action is on the table. Second, they cast significant doubt on the continued validity of the executive branch’s position that Congress acting in its legislative capacity can rarely, if ever, meet the showing of need for specific information necessary to overcome an assertion of executive privilege. Third, they reinforce Congress’s authority to demand information on pain of criminal contempt and restrict available defenses to that contempt. These three affirmations of congressional authority are all tempered somewhat, however, by the underlying need for executive branch support.
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    The Constitution, the Leviathan, and the Common Good
    (2023-11-22) Smith, Steven D
    Book Review: Common Good Constitutionalism. Adrian Vermeule.* Cambridge: Polity Press. 2022. Pp. viii + 241. $59.95 (Cloth), $19.95 (Paperback).