Constitutional Commentary

Faculty-edited law journal provides articles, review essays and book reviews on constitutional law and history.

Articles from Vol. 13, No. 3, Winter

Are Smith and Hialeah Reconcilable?
I In Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court held that the Free Exercise Clause does not mandate religious exemptions from "generally applicable law."(1) In Smith, the law of general applicability...
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Conflicting Representations: Lani Guinier and James Madison on Electoral Systems
Lani Guinier believes "that every citizen has the right to equal legislative influence."(1) For this, she has been assailed as a "Quota Queen" by politically correct conservatives more interested in sowing social discord than in promoting public deliberation...
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Equality, Race Discrimination, and the Fourteenth Amendment
In Job God implies that he, unlike his interlocutor, can catch Leviathan on a hook.(1) Maybe it is presumptuous for mortals to suggest that the actions of government can be disciplined by fine legal distinctions devised by human artifice. Michael McConnell's...
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Is Bill Clinton Unconstitutional? the Case for President Strom Thurmond
Call off the independent prosecutor! Halt the sexual harassment civil suit! Cancel the congressional investigations! This is bigger than Whitewater, Paula Jones, and Travelgate-Filegate-Hillarygate combined: It appears entirely possible that, for the...
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Originalism and the Desegregation Decisions - Response to Professor McConnell
In Originalism and the Desegregation Decisions(1) Professor Michael W. McConnell makes a bold effort to justify Brown v. Board of Education(2) in terms of originalist theory. Unlike commentators who have previously dealt with this issue, Professor...
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Segregation and the Original Understanding: A Reply to Professor Maltz
In Originalism and the Desegregation Decisions,(1) I relied heavily on the prior work of Professors Earl Maltz and John Harrison, two of the most careful, dispassionate, and learned scholars of the constitutional doctrine of the Fourteenth Amendment....
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The Attorney General's First Separation of Powers Opinion
The prominence of judicial review in the history of constitutional interpretation in this republic often overshadows the essential and ongoing role of other institutions in the interpretation of the Constitution of the United States. The finality of...
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The Pariah Principle
The Supreme Court's recent decision in Romer v. Evans(1) has caused both joy and consternation. Among legal scholars, however, it has mostly engendered puzzlement. The Court explicitly avoided the most doctrinally plausible grounds for invalidating...
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