Targeting Americans: The Constitutionality of the U.S. Drone War focuses on the legal debate surrounding drone strikes, the use of which has expanded significantly under the Obama Presidency as part of the continuing war against terror. Despite the political salience of the legal questions raised by targeted killing, the author asserts that there has been remarkably little careful analysis of the fundamental legal question: the constitutionality of the policy. From a position of deep practical expertise in constitutional issues, Prof. Powell provides a dispassionate and balanced analysis of the issues posed by U.S. targeted killing policy, using the killing of Anwar al-Awlaki in September 2011 as a focus for discussion. While Powell concludes that the al-Awlaki strike was constitutional under 2001 legislation, he rejects the Obama administration's broader claims of authority for its drone policies. Furthermore, he argues, citizens acting as combatants in al-Qaeda and associated groups are not entitled to due process protections: by due process standards, the administration's procedures are legally inadequate. A fundamental theme of the book is that the conclusion that an action or policy is constitutional should not be confused with claims about its wisdom, morality, or legality under international norms. Part of the purpose of constitutional analysis is to draw attention to these other normative concerns and not, as is too often the case, to occlude them.

Targeting Americans: The Constitutionality of the U.S. Drone War

Powell, H. Jefferson

Foreign & International Law

Oxford University Press

H. Jefferson Powell offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? Powell argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth. Combining history and theory, Powell analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms. Powell then takes his conclusions one step further, claiming that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time. No matter what the particular political disputes of the day might be, constitutional argument has provided a shared language through which our political community has been able to fight out its battles without ultimately fracturing. A Community Built on Words will be must reading for any student of constitutional history, theory, or law.

A Community Built on Words: The Constitution in History and Politics

Constitutional Law

University of Chicago Press

H. Jefferson Powell offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? Powell argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth. Combining history and theory, Powell analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms. Powell then takes his conclusions one step further, claiming that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time. No matter what the particular political disputes of the day might be, constitutional argument has provided a shared language through which our political community has been able to fight out its battles without ultimately fracturing. A Community Built on Words will be must reading for any student of constitutional history, theory, or law.

While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approach—one that eschews ideology but still values personal perspective—H. Jefferson Powell makes a compelling case for the centrality of individual conscience in constitutional decision making. Powell argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, he goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what Powell calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. Constitutional Conscience concludes that the need for these qualities in judges—as well as lawyers and citizens—is implicit in our constitutional practices, and that without them judicial review would forfeit both its own integrity and the credibility of the courts themselves.

Constitutional Conscience: The Moral Dimension of Judicial Decision

Rules & Procedures

The authors of this book share a concern for the state of law and democracy in our country, which to many seems to have deteriorated badly. Deep changes are visible in a wide array of phenomena: judicial opinions, the teaching of law, legal practice, international relations, legal scholarship, congressional deliberations, and the culture of contemporary politics. In each of these intersections between law, culture, and politics, traditional expectations have been transformed in ways that pose a threat to the continued vitality and authority of law and democracy. The authors analyze specific instances in which such a decline has occurred or is threatened, tracing them to "the empire of force," a phrase borrowed from Simone Weil. This French intellectual applied the term not only to the brute force used by police and soldiers but, more broadly, to the underlying ways of thinking, talking, and imagining that make that sort of force possible, including propaganda, unexamined ideology, sentimental cliché s, and politics by buzzwords, all familiar cultural forms. Based on the underlying crisis and its causes, the editors and authors of these essays agree that neither law nor democracy can survive where the empire of force dominates. Yet each manages to find a ground for hope in our legal and democratic culture. H. Jefferson Powell is Frederic Cleaveland Professor of Law and Divinity at Duke University and has served in both the federal and state governments, as a deputy assistant attorney general and as principal deputy solicitor general in the U.S. Department of Justice and as special counsel to the attorney general of North Carolina. His latest book is Constitutional Conscience: The Moral Dimension of Judicial Decision. James Boyd White is Hart Wright Professor of Law emeritus and Professor of English emeritus, at the University of Michigan. His latest book is Living Speech: Resisting the Empire of Force."An extraordinary collection of provocative, insightful, and inspiring essays on the future of law and democracy in the twenty-first century."---Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago"These thoughtful essays diagnose democracy's perilous present, and---more importantly---they explore avenues to democracy's rescue through humanization of law."---Kenneth L. Karst, David G. Price and Dallas P. Price Professor of Law Emeritus, UCLAContributorsMartin Bö hmer, Universidad de San Andres, Buenos Aires, ArgentinaM. Cathleen Kaveny, University of Notre DameHoward Lesnick, University of PennsylvaniaThe Honorable John T. Noonan Jr., Ninth Circuit Court of AppealsH. Jefferson Powell, Duke UniversityJedediah Purdy, Duke UniversityJed Rubenfeld, Yale UniversityA.W. Brian Simpson, University of MichiganBarry Sullivan, Jenner and Block LLP, ChicagoJoseph Vining, University of MichiganRobin West, Georgetown UniversityJames Boyd White, University of Michigan

Law and Democracy in the Empire of Force

White, James Boyd

University of Michigan Press

No Law: Intellectual Property in the Image of an Absolute First Amendment

The original text of the Constitution grants Congress the power to create a regime of intellectual property protection. The first amendment, however, prohibits Congress from enacting any law that abridges the freedoms of speech and of the press. While many have long noted the tension between these provisions, recent legal and cultural developments have transformed mere tension into conflict. No Law offers a new way to approach these debates. In eloquent and passionate style, Lange and Powell argue that the First Amendment imposes absolute limits upon claims of exclusivity in intellectual property and expression, and strips Congress of the power to restrict personal thought and free expression in the name of intellectual property rights. Though the First Amendment does not repeal the Constitutional intellectual property clause in its entirety, copyright, patent, and trademark law cannot constitutionally license the private commodification of the public domain. The authors claim that while the exclusive rights currently reflected in intellectual property are not in truth needed to encourage intellectual productivity, they develop a compelling solution for how Congress, even within the limits imposed by an absolute First Amendment, can still regulate incentives for intellectual creations. Those interested in the impact copyright doctrines have on freedom of expression in the U.S. and the theoretical and practical aspects of intellectual property law will want to take a closer look at this bracing, resonant work.

Lange, David

Law Practice

Stanford Law Books

Debate over the relationship between morality and the law characterizes the contemporary discussion of American constitutionalism. Many theorists equate constitutionalism with the social morality of the American community; others deny the existence of such a community and identify constitutionalism simply as the positive law of the state. In this thoughtful and innovative book, H. Jefferson Powell presents a theological interpretation of the connection between constitutionalism and morality. Powell locates the origins of constitutional law in the Enlightenment attempt to control the violence of the state by subjecting power to reason. He then traces constitutionalism's rapid evolution into a tradition of rational inquiry centered in the practice of adjudication and embodied in a community of lawyers and judges. Finally, Powell shows how the tradition's nineteenth-century presuppositions about the autonomy and rationality of constitutional argument have been undermined in the twentieth century, within the constitutional community itself, by the acceptance of a positivist and "democratic" understanding of law.Powell shows how the continued willingness of the courts to resolve moral questions by invoking "the Constitution" has thrown the constitutional tradition into an epistemological crisis. He critiques the work of many major theorists—John Hart Ely, Bruce Ackerman, Frank Michaelman, Rogers Smith, Michael Perry, Mark Tushnet, Robert Bork, Sanford Levinson—who, he claims, persist in attempting to resolve the crisis by redefining constitutionalism as American social morality. With reference to Alasdair MacIntyre's concepts of moral tradition and social practice and John Howard Yoder's theological account of the state, Powell places his analysis of current constitutionalism within a contemporary Christian theological critique of Western liberalism. With certain exceptions, Powell concludes, there are theological grounds in the United States to prefer decision making by elected officials to decision by constitutional courts. Despite the controversial implications for judicial practice and legal argument, Powell ultimately argues that the liberal tradition of rational inquiry--American constitutionalism--be renounced by the Christian community in favor of the majoritarian political process.

The Moral Tradition of American Constitutionalism: A Theological Interpretation

Politics & Social Sciences

Sociology

Duke University Press Books

Taft's 1916 publication, written from the unique vantage point of a former president who was later to become Chief Justice, is one of the most insightful descriptions of the presidential office ever written. In contrast to the views of his predecessor, Teddy Roosevelt, and his successor, Woodrow Wilson, the presidency as Taft envisioned it is decisively shaped by the president's duties to the law. Taft firmly rejected Roosevelt's and Wilson's assumptions that a law-governed presidency need be weak or unable to respond to national needs. This classic work is once again available, with new material by constitutional scholar H. Jefferson Powell. Powell's extensive introduction places Taft's thinking in its original context and explicates the major themes in his discussion of the president and of the relationship between law and politics in American government. Endnotes by Powell supply commentary and bibliographical information to specific points in Taft's text.

Our Chief Magistrate and His Powers: William Howard Taft with Foreword, Introduction and Notes by H. Jefferson Powell (Legal History Series)

History

Taft, William Howard

Americas

Carolina Academic Press

Debate over who has authority to make foreign policy for the United States has been a constant feature of our political and constitutional history. In the modern era, the debate has come to be both shrill and stale: the proponents of presidential autonomy and the advocates of congressional supremacy start from mutually incompatible premises and come to predictable, and antagonistic, conclusions. This book argues that the best interpretation of our Constitution's distribution of foreign affairs authority resolves this seemingly irresolvable stand-off. Powell presents a traditional legal argument and concludes that the Constitution vests the President with the clear authority to formulate and implement foreign policy. At the same time, the Constitution vests Congress with powers that enable it to exercise a near-absolute veto - not on the president's foreign policy choices, but on his or her ability to carry out those choices. The resulting system of interlocking constitutional powers is faithful to the Constitution's text and to the purposes that are embodied in it. In making this argument, a variety of hotly contested issues are addressed and Powell shows how constitutional interpretation enables us to reach satisfactory answers to many of our political questions.

The President's Authority over Foreign Affairs: An Essay in Constitutional Interpretation

Since the beginning of the Republic, the President's chief advisor in the interpretation of the Constitution has been the Attorney General. The opinions of the Attorneys General on constitutional topics are official statements of the executive branch's views, and in many circumstances where a constitutional question cannot come before a court, their opinions provide the final answer. 
This book offers the most important constitutional opinions of the Attorneys General and the Department of Justice from Edmund Randolph (President Washington's first Attorney General) to Janet Reno. Powell's commentary provides biographical and historical context to enhance the reader's appreciation of the opinions, which cover such topics as the separation of powers, the authority of Congress and the President over matters of war and peace, the nature of citizenship, and the executive's responsibilities with respect to statutes that the President believes unconstitutional. 
The opinions are presented in full text and with original pagination, making The Constitution and the Attorneys General a fully independent research tool. A variety of indices and tables give the reader full access to the executive branch's two-century-long tradition of construing and applying the Constitution.

The Constitution and the Attorneys General

See the best price to sell, buy, or rent books by Powell, H. Jefferson. BookScouter helps to compare book prices from 25+ online bookstores and 30+ buyback vendors with a single search.

Books by Powell, H. Jefferson

See the best price to sell, buy, or rent books by Powell, H. Jefferson. BookScouter helps to compare book prices from 25+ online bookstores and 30+ buyback vendors with a single search.

Targeting Americans: The Constitutionality of the U.S. Drone War

A Community Built on Words: The Constitution in History and Politics

A Community Built on Words: The Constitution in History and Politics

Constitutional Conscience: The Moral Dimension of Judicial Decision

Law and Democracy in the Empire of Force

No Law: Intellectual Property in the Image of an Absolute First Amendment

The Moral Tradition of American Constitutionalism: A Theological Interpretation

Our Chief Magistrate and His Powers: William Howard Taft with Foreword, Introduction and Notes by H. Jefferson Powell (Legal History Series)

The President's Authority over Foreign Affairs: An Essay in Constitutional Interpretation

The Constitution and the Attorneys General