Gary Lawson

The constitution of empire : territorial expansion and American legal history

The Constitution of Empire offers a constitutional and historical survey of American territorial expansion from the founding era to the present day. The authors describe the Constitutions design for territorial acquisition and governance and examine the ways in which practice over the past two hundred years has diverged from that original vision. Noting that most of Americas territorial acquisitions - including the Louisiana Purchase, the Alaska Purchase, and the territory acquired after the Mexican-American and Spanish-American Wars - resulted from treaties, the authors elaborate a Jeffersonian-based theory of the federal treaty power and assess American territorial acquisitions from this perspective. They find that at least one American acquisition of territory and many of the basic institutions of territorial governance have no constitutional foundation, and they explore the often strange paths that constitutional law has travelled to permit such deviations from the Constitutions original meaning.

Territorial Governments and the Limits of Formalism

For much of this nations history, the governance of American territories, such as the island of Guam, was one of the most significant and oftlitigated problems ofAmerican constitutional law. In modern times, however, issues of territorial governance have been reduced to the status of constitutional arcana. Professor Lawson maintains that this frequently neglected problem of territorial governance is an ideal context in which to conduct the resurgent modern debate concerning separation ofpowers theory. Accordingly, Professor Lawson undertakes a formalist analysis of the principal institutions of American territorial governance, finding all of them incompatible with a formalist understanding of separation ofpowers. He then critically discusses the constitutional history of these territorial institutions-a history that represents the Supreme Courts most consistent, and perhaps earliest, rejection of formalist methodology. Finally, he argues that the political consequences of applying formalism to territorial administration need not be as profound as a straightforward analysis might suggest.

The PPACA in Wonderland

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

The Origins of the Necessary and Proper Clause: Necessity, Propriety, and Reasonableness

1. Raiders of the lost clause: excavating the buried foundations of the Necessary and Proper Clause 2. Discretionary grants in eighteenth-century English legislation 3. An ocean away: eighteenth-century drafting in England and America 4. The legal origins of the Necessary and Proper Clause 5. The framing and adoption of the Necessary and Proper Clause 6. Necessity, propriety, and reasonableness 7. The corporate law background of the Necessary and Proper Clause.