Still Naked After All These Words

Abstract

This Reply concentrates on three points which are emblematic of more general problems in The Structural Constitution, Structure With
out Foundation, and The Vesting Clauses as Power Grants. First, Professor Calabresi and Mr. Rhodes seem to believe that their method of interpretation is apolitical and precise, when in fact it is overly formalistic, inconsistent at times, and vague at a critical point. Second, while Professor Calabresi's latest formulation of the "executive Power" is more detailed and perhaps less expansive than The Structural Constitution's, it is also circular, allowing courts and commentators unfettered discretion to define the "executive Power" at will. Third, the authors indulge in rhetorical excess, exaggerating the dangers of rooting federal jurisdiction in Article III, Section 2 and misstating the arguments in The Imperial Presidency's New Vestments. Space constraints and concern for the reader's patience limit this Reply to but a few examples of each of these problems. New Vestments must in most cases be left to speak for itself. I am confident that it does.

Keywords: Structural Constitution, vesting clauses, Constitution, constitutional law, executive power, presidency