The Reconstruction Congress
- Share The University of Chicago Law Review | The Reconstruction Congress on Facebook
- Share The University of Chicago Law Review | The Reconstruction Congress on Twitter
- Share The University of Chicago Law Review | The Reconstruction Congress on Email
- Share The University of Chicago Law Review | The Reconstruction Congress on LinkedIn
The Editors of The University of Chicago Law Review wish to acknowledge the passing of Professor Currie while this Article was being prepared for press. We offer our condolences to his family, friends, and colleagues.
This article is a sequel to The Civil War Congress, which appeared not long ago in The University of Chicago Law Review. Both are elements of a continuing study of extrajudicial interpretation of the Constitution, with an emphasis on the debates in Congress. The present installment begins where the preceding one left off: with the accession of Andrew Johnson to the presidency upon the assassination of President Lincoln in April 1865.
For helpful feedback, I thank Will Baude, Kathy Bradley, Adam Cox, Ashley Deeks, Kristen Eichensehr, Jean Galbraith, Alex Loomis, Hiroshi Motomura, Gerald Neuman, Farah Peterson, John Parry, Eric Posner, Joe Schottenfeld, Neil Siegel, Ed Swaine, participants in a faculty workshop at the University of Chicago Law School, and participants in a conference at the University of Chicago Law School on “Sovereign Power and the Constitutional Text.” I would also like to thank the staff of the University of Chicago Law Library for their assistance in tracking down materials.
This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. The Article also complicates the dominant narrative of a unilateral “imperial presidency” in foreign affairs by showing that, because of the liberty interests involved, extradition authority evolved and remained as a shared power, requiring a treaty-based or statutory foundation as well as judicial involvement.
For helpful feedback, I thank Will Baude, Kathy Bradley, Adam Cox, Ashley Deeks, Kristen Eichensehr, Jean Galbraith, Alex Loomis, Hiroshi Motomura, Gerald Neuman, Farah Peterson, John Parry, Eric Posner, Joe Schottenfeld, Neil Siegel, Ed Swaine, participants in a faculty workshop at the University of Chicago Law School, and participants in a conference at the University of Chicago Law School on “Sovereign Power and the Constitutional Text.” I would also like to thank the staff of the University of Chicago Law Library for their assistance in tracking down materials.
This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. The Article also complicates the dominant narrative of a unilateral “imperial presidency” in foreign affairs by showing that, because of the liberty interests involved, extradition authority evolved and remained as a shared power, requiring a treaty-based or statutory foundation as well as judicial involvement.
Thanks to participants at the University of Colorado, University of Texas, and University of Chicago Workshops for thoughtful feedback, to my First Amendment discussion group for helping refine my thinking on the topic, and to Evelyn Douek for all her ideas and edits.
For decades, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates an “informal system of censorship.” Lower courts have been deeply divided about what kinds of government actions create this kind of informal system. The Court’s recent NRA v. Vullo decision holds that officials engage in informal censorship whenever they intentionally use informal power to evade First Amendment constraints on their formal powers. Vullo clarified that the rule against informal censorship is categorical: officials may never evade constitutional constraints by threatening harm or promising benefits to private parties, no matter how they attempt to do so. This Article argues that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is very good and comes at a critical time. The Article examines the doctrine prior to the decision, the significance of Vullo’s intervention, and its implications.