As recent trade agreements such as NAFTA and the Uruguay Round of GATT illustrate, it has become common for Presidents to submit major international agreements to both Houses of Congress for simple-majority approval, even though Article II, section 2 of the Constitution provides for the President to submit treaties to the Senate for approval by two thirds of the Senators present. In a recent article in the Harvard Law Review, Professors Bruce Ackerman and David Golove recounted the rise of the "congressional-executive agreement" as an alternative to the treaty form. In addition to arguing that use of the congressional-executive agreement is consistent with constitutional text, Professors Ackerman and Golove asserted that political events in the 1940s so altered the proper understanding of the Constitution that, despite the absence of any amendment in accord with Article V, the Treaty Clause of Article II became purely optional. In this Article, Professor Tribe challenges both of those conclusions and the free-form method of constitutional analysis that underlies them. He suggests that modes of argument that regard the Constitution's instructions for treatymaking and for constitutional amendment as merely optional are not genuinely constrained by what the Constitution says or by how its parts fit together. Such modes of argument instead embody major errors in what Professor Tribe describes as the "topology" of constitutional construction - errors that, in his view, disqualify approaches like those of Professors Ackerman and Golove from serious consideration as legitimate forms of interpretation. Focusing particularly on Professor Ackerman's notions of "constitutional moments" and "higher lawmaking" outside of Article V, Professor Tribe seeks to show that resort to extraordinary theories of constitutional change threatens to undermine genuine inquiry into the meaning of the Constitution's text. Accordingly, Professor Tribe calls for an unabashed return to rigor and precision in the interpretive process - for a commitment to take text and structure seriously.
The Harvard Law Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. Each issue also contains pieces by student editors. Published monthly from November through June, the Review has roughly 2,000 pages per volume. All articles--even those by the most respected authorities--are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone. The November issue contains the Supreme Court Foreword (usually by a prominent constitutional scholar), the faculty Case Comment, twenty-five Case Notes (analyses by third-year students of the most important decisions of the previous Supreme Court Term), and a compilation of Court statistics. The February issue features the annual Developments in the Law project, an in-depth treatment of an important area of the law.
Founded in 1887 by future Supreme Court Justice Louis D. Brandeis, the Harvard Law Review is an entirely student-edited journal that is formally independent of the Harvard Law School. Approximately ninety student editors make all editorial and organizational decisions and, together with a professional business staff of four, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review is designed to be an effective research tool for practicing lawyers and students of the law. The Review also provides opportunities for its members to develop their own editing and writing skills. All student writing is unsigned, reflecting the fact that many members of the Review, in addition to the author and supervising editor, make a contribution to each published piece.
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