Constitutional Showdowns

61 Pages Posted: 26 Jul 2007  

Eric A. Posner

University of Chicago - Law School

Adrian Vermeule

Harvard Law School

Date Written: July 2007

Abstract

A constitutional showdown is a disagreement between branches of government about their constitutional powers that ends in the total or partial acquiescence by one branch in the views of the other and that creates a constitutional precedent. Standard examples of showdowns include disputes over executive privilege, war-making and -funding, and court-packing. Showdowns are costly because they interfere with the normal operation of government, but they also produce important and overlooked benefits. They are an important mechanism of constitutional development, and, among other things, clarify the lines of constitutional authority. We tote up the costs and benefits of constitutional showdowns, show their continuity with other legal phenomena, and criticize the prevailing wisdom that government agents should avoid them as much as possible.

Suggested Citation

Posner, Eric A. and Vermeule, Adrian, Constitutional Showdowns (July 2007). U of Chicago Law & Economics, Olin Working Paper No. 348; Harvard Public Law Working Paper No. 07-16; U of Chicago, Public Law Working Paper No. 173. Available at SSRN: https://ssrn.com/abstract=1002996 or http://dx.doi.org/10.2139/ssrn.1002996

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

Adrian Vermeule

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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