The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions

In this Article, Professor Turley explores the concept of social harm in the context of two recent cases in the United States and Canada over the criminalization of polygamy. The cases not only resulted in sharply divergent conclusions in striking down and upholding such laws respectively, but they offered strikingly different views of the concept of harm in the regulation of private consensual relations. Professor Turley draws comparisons with the debate over morality laws between figures like Lord Patrick Devlin and H.L.A. Hart in the last century. Professor Turley argues that the legal moralism of figures like Devlin have returned in a different form as a type of ¿compulsive liberalism¿ that seeks limitations on speech and consensual conduct to combat sexism and other social ills. The alternative, advocated in this Article, is the adoption of a Millian approach to harm that requires a more concrete form of injury or harm to justify individual choice. In what he calls the ¿Loadstone Rock¿ of constitutional analysis, the definition of harm continues to dictate the outcome of the conflict between individual choice and social mores

Senate Trials and Factional Disputes: Impeachment as a Madisonian Device

In this Article, Professor Turley addresses the use of impeachment, specifically the Senate trial, as a method of resolving factional disputes about an impeached official\u27s legitimacy to remain in office. While the Madisonian democracy was designed to regulate factional pressures, academics and legislators often discuss impeachments as relatively static events focused solely on removal. Alternatively, impeachment is sometimes viewed as an extreme countermajoritarian measure used to reverse or nullify the popular election of a President. This Article advances a more dynamic view of the Senate trial as a Madisonian device to resolve factional disputes. This Article first discusses the history of impeachment and demonstrates that it is largely a history of factional or partisan disputes over legitimacy. The Article then explores how impeachment was used historically as a check on the authority of the Crown and tended to be used most heavily during periods of political instability. English and colonial impeachments proved to be highly destabilizing in the absence of an integrated political system. The postcolonial impeachment process was modified to convert it from a tool of factional dissension to a vehicle of factional resolution. This use of Senate trials as a Madisonian device allows for the public consideration of the full record as the foundation for a vote of true consent. In this unique forum, an impeached official is subject to a decision of the public-through the cipher of the Senate-as to his legitimacy in carrying out constitutional duties. As such, Professor Turley concludes that, properly utilized, the Senate trial represents the quintessential Madisonian moment

Rage Rhetoric and the Revival of American Sedition

We are living in what Professor Jonathan Turley calls an age of rage. However, it is not the first such period. Professor Turley explores how the United States was formed (and the Constitution was written) in precisely such a period. Throughout that history, sedition has been used as the vehicle for criminalizing political speech. This Article explores how seditious libel has evolved as a crime and how it is experiencing a type of American revival. The crime of sedition can be traced back to the infamous trials of the Star Chamber and the flawed view of free speech articulated by Sir William Blackstone. That view continues to resonate in “bad tendency” rationales for criminalizing what Professor Turley calls “rage rhetoric.” An advocate for a broader theory of free speech, Professor Turley suggests that the United States should break this cycle and reject a crime that it is not only superfluous in many cases, but the product of the anti-free speech theories extending back to the seventeenth century. The elimination of the crime would fulfill what Professor Turley believes is the original and revolutionary view of free speech articulated by some figures at the start of the Republic. It would finally slay what James Madison called the “monster” lurking in our political and legal systems for centuries