Courting Oblivion Part II: How to Revive American Reconstruction by Feigning Forgetfulness
SchroederLaw, Working Paper No. 102, 2023
76 Pages Posted: 10 Jul 2023 Last revised: 24 Jan 2024
Date Written: September 4, 2023
This is the second part of the three part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness usually to predicate a second chance, a restart, or even an era of reconstruction. This Article demonstrates how to apply the “right to move on” described in Part I to the law in the United States through acts of oblivion and amnesty. It describes the general uses of acts of oblivion and amnesty to the general framework of government in the United States, leading to the final discussion in Part III about the specifics of Chelsea Manning’s unjust trial and punishment as a meaningful premise upon which to base these reforms.
The Article opens with a gender-based concept of American popular sovereignty and power. This concept is used to frame the Article’s forthcoming discussions about presidential immunity that are presently being challenged by former president Donald J. Trump in court. The American concept of popular sovereignty is used to draw a through line from Lord Coke’s earlier description of treason in his Institutes to the counter-feudal definition of treason in the U.S. Constitution that remains the law today.
After distinguishing the United States as an anti-feudal government, the Article explains the practical origins and uses of acts of oblivion and amnesty in times of political upheaval and crisis. It uses D.C. District Judge Tanya S. Chutkan’s recent holding about presidential immunity in United States v. Trump as a baseline to illustrate how Congress can assist the federal courts to adjudicate former presidents like Trump. It furthermore explains the problematic underpinnings of cost-benefit balancing tests in feudal law, and the facilitation of this law in America through Nixon v. Fitzgerald, a case firmly distinguished in the criminal context by Judge Chutkan.
The remainder of the Article explains how acts of oblivion and amnesty can reform sedition-like statutes to create meaningful legal distinctions between whistleblowers, irresponsible parties, and spies. It explains how Congress can simultaneously address and reform the shadow docket. And it explains how Congress can guide the Court to better adjudicate non-delegation doctrine cases especially in light of the Court’s possible decision to overrule Chevron deference in Loper Bright Enterprises this term.
This Article will conclude with an exploration of remembering and forgetting with special focus upon the revolutionary motions of thought discussed by Hannah Arendt.
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