COURTING OBLIVION PART II: HOW TO REVIVE AMERICAN RECONSTRUCTION BY FEIGNING FORGETFULNESS

Abstract

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 following discussion about presidential immunity—a topic that was recently sidelined in the judiciary by the Supreme Court’s “shadow docket.”  The American concept of popular sovereignty is a valuable 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 when the Court fails in its duty to administer the law with prudence and moderation.  It explains how the Supreme Court initially used its shadow docket to dangerously mandate that the matter of Trump’s feudal immunity be resolved by national politics.  It furthermore explains the problematic conceptual underpinnings of Nixon v. Fitzgerald in feudalistic cost-benefit balancing tests that directly presaged the Supreme Court’s error in Trump v. United States.

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 now that the Supreme Court overruled Chevron deference in Loper Bright.

This Article will conclude with an exploration of remembering and forgetting with special focus upon the revolutionary motions of thought discussed by Hannah Arendt.