Recently added articles from Constitutional Commentary:
Why tolerate religion?
Mar 22, 2008; ... I. PRINCIPLED TOLERATION Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices ....
What would Justice Powell do? The 'alien children' case and the meaning of equal protection.
Mar 22, 2008; ... The debate over national immigration policy is at fever pitch. Harsh anti-immigrant rhetoric dominated the discourse during the early Republican presidential primaries. Congressional gridlock has led states and cities, many far from the border, to take matters into their own hands by ...
Really cool stuff: digital searches into the constitutional period.
Mar 22, 2008; ... It is becoming considerably easier to find and organize the documents that have survived from the period of the adoption of our Constitution by electronic searches into digital archives. Research that once took years to accomplish can be pulled together in hours, sometimes even minutes ....
Judging facts like law.
Mar 22, 2008; ... INTRODUCTION The Supreme Court's review of legislative facts found by Congress can make all the difference between enjoying a constitutional right and losing it. The Court's recent decision in Gonzales v. Carhart (1) powerfully illustrates this point. There the Court in an ...
Terror in the Balance: Security, Liberty, and the Courts.(Book review)
Mar 22, 2008; ... TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS. By Eric A. Posner (1) & Adrian Vermeule. (2) New York, Oxford University Press. 2007. Pp. 328. $29.95. This review of Eric Posner & Adrian Vermeule's book Terror in the Balance Security, Liberty and the Courts is ...
Our Undemocratic Constitution: Where the Constitution Goes Wrong and How We the People Can Correct It.(Book review)
Mar 22, 2008; ... OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT). Sanford Levinson. (1) Oxford University Press. 2006. Pp. ix + 233. $28.00 (cloth). Sanford Levinson's latest book, like his previous work, is charmingly written and ...
The Language of Liberal Constitutionalism.(Book review)
Mar 22, 2008; ... THE LANGUAGE OF LIBERAL CONSTITUTIONALISM. By Howard Schweber. (1) Cambridge University Press. 2007. Pp. 386. Hardback. $90.00. Studies of language and its relationship to democratic constitutionalism have yielded a number of insights, but major contributions have been harder to ...
Expounding the Constitution: Essays in Constitutional Theory.(Book review)
Mar 22, 2008; ... EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY. Grant Huscroft, ed. (1) New York, Cambridge University Press. 2008. Pp. ix + 319. $85.00. INTRODUCTION In the first pages of Law and Disagreement, Jeremy Waldron reminds the reader that much of legal and ...
The second convention movement, 1787-1789.
Sep 22, 2007; ... The delegates at the Constitutional Convention of 1787 created an extraordinary document. The issues they confronted during that difficult summer in Philadelphia were complex and divisive. They had to decide the best way to balance power between the individual states and the new federal ...
Common law, civil law, and the administrative state: from Coke to Lochner.
Sep 22, 2007; ... In ... most [states] on the Continent of Europe, the ... rules ... stand, to a large extent, in the form of positive statutes, or Codes, enacted by the arbitrary power of the sovereign, or by the authority of the legislative assembly, where such a body exists ... [codification] is a ...
Scalia's poker: puzzles and mysteries in constitutional interpretation.(U.S. Supreme Court justice Antonin Scalia)
Sep 22, 2007; ... Howard Hawks had some trouble directing The Big Sleep, the 1946 Humphrey Bogart/Lauren Bacall film noir based on Raymond Chandler's classic novel. He once convened a story conference with the film's three screenwriters, a group headed by Nobel Prize-winner William Faulkner. The four were ...
Constitution Day is unconstitutional.
Sep 22, 2007; ... As violations of constitutional law go, this one might seem harmless or insignificant at first. No branch of the U.S. government is seeking to upset the tri-partite balance of power, no person's physical life, liberty or property is being threatened, and no fundamental human rights are ...
Umpires at bat: on integration and legitimation.
Sep 22, 2007; ... INTRODUCTION During his confirmation hearings, Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. "Judges and Justices are servants of the law, not the other ...
Overcoming Dred: a counterfactual analysis.
Sep 22, 2007; ... I. INTRODUCTION Could anything have been done about Dred Scott (1) in its own day, in a Supreme Court remade by Abraham Lincoln? That is, was Dred Scott vulnerable to overrule, even in its own day, even in advance of the Thirteenth and Fourteenth Amendments? Would the power of ...
Dred Scott and the Problem of Constitutional Evil.(Book review)
Sep 22, 2007; ... DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL. By Mark A. Graber. (1) Cambridge: Cambridge University Press, 2006. Pp. xiii + 264. $40.00. I. INTRODUCTION Mark Graber's Dred Scott and the Problem of Constitutional Evil will strike many as one of the more ...
Constitutional Democracy: Creating and Maintaining a Just Political Order.(Book review)
Sep 22, 2007; ... CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER. By Walter F. Murphy. (1) The Johns Hopkins University Press. 2007. Pp. xviii-547. $55.00. In The Federalist, No. 1, Alexander Hamilton, noting that the people were "called upon to deliberate on a new ...
Can a constitutional amendment overrule a Supreme Court decision?
Jun 22, 2007; ... Of course it can, you idiot!, you might well say to me, answering my title question. Why would anyone waste even the minimal time needed to write a short, light article addressing a question with such a ridiculously self-evident answer? Could I slow you down for just a moment, ...
Abortion and original meaning.
Jun 22, 2007; ... I. ORIGINALISM VERSUS LIVING CONSTITUTIONALISM: A FALSE DICHOTOMY In his famous critique of Roe v. Wade, (1) John Hart Ely remarked that if a principle that purportedly justifies a constitutional right "lacks connection with any value the Constitution marks as special, it is not ...
The perpetual anxiety of living constitutionalism. (response to article by Jack M. Balkin in this issue, p. 291)
Jun 22, 2007; ... It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. (1) Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote "we are all living constitutionalists now." (2) But Balkin has ...
Original interpretive principles as the core of originalism.(response to article by Jack M. Balkin in this issue, p. 291)
Jun 22, 2007; ... Abortion and Original Meaning is a powerful article that is sure to have resonance in the field of constitutional interpretation. Professor Balkin undertakes what many previously would have thought a conjuror's trick: he attempts to locate the constitutional right to abortion, the poster ...