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Abstract:
Since the time of the Constitution's framing, our intellectual canon has shifted so that the classical era is no longer central to our learning. This shift may impede our understanding of the Framers and their work. We may fail to grasp a historical analogy and, even more, fail to appreciate the full meaning of a core document in our history.

This Article assists today's reader in gaining the knowledge necessary for an informed understanding of The Federalist's references to ancient Rome. The Article explains each significant reference to Rome by providing a richly textured historical background for the reference. The four primary themes are the need for a national government, the need for a single executive, the best way to structure a government, and the need for a standing army. The Article concludes by discussing three issues: were these classical references persuasive to Publius' readers, what do the references tell us about how the Framers viewed ancient Rome, and in light of our fading familiarity with the classical era, on what political references do modern commentators rely.

Constitutional Original Intent, First Congress, Constitution Interpretation

Abstract:
Most of the literature on this country's Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

constitutional law, legal history, First Congress, Original Intent

Abstract:
This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates.

At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for second term, removing the Executive, devising the Executive veto, requiring legislative advice and consent for executive appointments, authorizing the Executive to grant reprieves and pardons, and making the Vice President the President of the Senate.

The Article demonstrates that much of the discussion centered on allocating power between the Legislative and Executive branches and thus really amounted to a struggle over defining the nascent office of the Executive. It thus offers the historical background for today's debates over separation of powers. For the Founders, separation of powers served not as a rigid rule, but as a functional guide, designed to help construct a working constitution with a workable executive branch.

Constitutional Law, Legal History, Public Law and Legal Theory

Abstract:
One way to determine whether consumers understand a document is to use a readability formula to assign it a score. These formulas calculate readability by counting such variables as the number of words and syllables in a passage or document. The idea of readability formulas has been defined as "an equation which combines those text features that best predict text difficulty. The equation is usually developed by studying the relationship between text features (e.g., words, sentences) and text difficulty (e.g., reading comprehension, reading rate, and expert judgment of difficulty)." Even though readability formulas are mechanical and imperfect, they are easy to apply and, therefore, popular.

The Flesch-Kincaid test is one popular readability formula, perhaps because Microsoft Word allows users to apply it easily to documents that are typed or pasted into the program. If Microsoft's readability program is flawed, however, it compromises the results of the many researchers who have relied on it.

readability, Flesch, Flesch-Kincaid, consumer, legal writing, legal drafting, plain English

Abstract:
This article argues that members of the legal profession and other lawmakers cannot fully understand end-of-life directives without experiencing death and dying first-hand. The author provides several short stories about his experiences with a defective heart, cardiac arrest, and subsequent heart transplant to warn readers not to treat end-of-life directives as conclusive statements of a patient's wishes.

organ transplant, heart transplant, death end-of-life directives

Abstract:
In 1649, Charles I, England's second Stuart king, became the only English ruler to be tried and beheaded. His ordeal illustrates what happens when revolutionaries attempt to use the traditional legal process to overthrow the political order. Charles's opponents--Oliver Cromwell's army and its Puritan allies--believed they could not execute a hereditary monarch unless they attempted to follow acceptable legal proceedings. Therefore, they created a kangaroo court that tried Charles by mimicking a formal trial. Their elaborate impersonation of the rule of law resolutely failed. According to Charles, the court's creators wrongfully claimed the power to alter the kingdom's constitutional structure and consequently threatened all English citizens. The king thus correctly identified the impossible predicament of his opponents: they sought consistency with the existing political system and paradoxically claimed that it was illegitimate. The Framers of America's constitution were familiar with Charles' trial and understood that without a constitution, liberty would be in danger. They tried to create a political order that could deal with the dangers arising from civil disruption.