Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Founding and Refounding: On Constitutional Moments and Mini-Moments on SSRN. Here is the abstract:
The original Constitution was rooted in identifiable principles and commitments, including (1) a repudiation of monarchy in favor of republicanism; (2) deliberative democracy; (3) separation of powers; and (4) firm restrictions on self-dealing, a product of a belief in the public interest and the common good. With those principles and commitments in mind, a future administration might consider seven constitutionally inspired ideas, to be explicitly embodied in executive orders or presidential memoranda: (1) a broad commitment to freedom of speech and the press, building on constitutional requirements; (2) a firm commitment not to interfere with the prosecutorial decisions of the Department of Justice; (3) a clear commitment to the independence of the Federal Reserve Board, certainly with respect to monetary policy; (4) new and voluntary restrictions on the pardon power, designed to regularize relevant processes; (5) reasonable (not excessive or purely expressive) restrictions on conflicts of interest and self-dealing, applicable to executive branch officials and the president personally; (6) a presumption against suits brought by the president in his personal capacity (a voluntary presidential disability, meant to parallel and accompany presidential immunity); (7) perhaps most controversially, a presumption (not a rule) against prosecution, by the current administration, of members of the previous administration. Taken as a whole, these initiatives might be seen to constitute the kernel of a new constitutional moment, or at least a constitutional mini-moment.
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