Constitutional Commentary

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

Articles from Vol. 12, No. 2, Summer

A Constitutional Accident Waiting to Happen
In the category, Most Mistaken Part of the Current Constitution, I nominate the electoral college. The ingenious scheme of presidential selection set up by Article II and refined by the Twelfth Amendment was a brilliant eighteenth century invention that...
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Always under Law?
INTRODUCTION This essay is adapted, with some stylistic and organizational but little material change, from my Dewey Lecture entitled "Layers of Law," given at the University of Minnesota Law School on November 14, 1994.(1) In a prior work, I had argued...
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A Natural Aristocracy?
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained...
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"Clause and Effect": An Imagined Conversation with Sanford Levinson
LC: Good to hear from you. I'm honored to join such good company for Farber, Frickey, and Sherry. Please send the details. SL: There is no written description. The basic idea is to select your least favorite clause of the current US constitution and,...
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Criminal Procedure as the Servant of Politics
Any assessment of what the Constitution is bad at must be grounded in a theory of what it is good for. So let me begin with a brief statement of such a theory: The Constitution is mostly good for providing a platform external from our ordinary politics...
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Divided Suffrage
The biggest constitutional mistake? As the recent wave of constitution-making in Eastern Europe suggests, future Solons and Lycurguses aren't likely to be very interested in quibbling over the details of a Bill of Rights. Instead, the critical question...
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How to Violate the Constitution without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment
Shortly before the proposed Balanced Budget Amendment went down to defeat by a single vote in March 1995,(1) Kansas Senator Nancy Kassebaum explained her reason for dropping her previous opposition to that much-debated but still-undelivered change in...
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Introduction
What follows is the aftermath of a conference on "Constitutions and Constitutionalism," sponsored by the Murphy Institute of Political Economy at Tulane University in March of 1994, focusing on problems of constitutional design. Walking back to our hotel,...
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"Neither Force nor Will." (Life Tenure for Federal judges)(Constitutional Stupidities: A Symposium)
If we are to choose which provision of the constitution has turned out to be the stupidest, we must be allowed to use hindsight. In the beginning, there were provisions that made good sense in their day, but time has been hard on them. With the use of...
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Old People and Good Behavior
Just what was wrong with the Nine Old Men? Their votes? Not taken as a whole, for those included Brandeis.(1) That their judicial philosophies were without redeeming social value? Again it can't be, for those philosophies ran the gamut from Brandeis...
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Our (Almost) Perfect Constitution
I doubt that we would write the Constitution in quite the same way if we were to undertake the task afresh. Would anyone today actually propose giving the Providence metro area the same representation in one branch of the legislature as half the West...
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Our Unconstitutional Senate
In the race to the bottom that characterizes this Symposium, I cast my vote for Article I, section 3: "The Senate of the United States shall be composed of two Senators from each State...." Indeed, were this provision not unequivocally enshrined in the...
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Parlor Game
The Constitution is not perfect. Indeed I don't know what 'perfection' is in a constitution, since it is an instrument for human hands and thus must bear within its possibilities all the potential for misuse that comes with the user. What I am sure of...
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Presidential Elections and Constitutional Stupidities
Amendment XII: The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest...
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The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone
We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.... Rehnquist, C.J., for the majority in Dolan v. City...
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The Constitution as a Box of Chocolates
What makes a constitutional provision stupid? To answer this question, we might turn to an acknowledged expert on stupidity: Forrest Gump. Mr. Gump is an expert on stupidity because he is the most famous stupid person ever to be the subject of a top...
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The Constitution of Fear
At various places along the Massachusetts Turnpike, a limited access toll road with a speed limit (in most places) of 65 miles per hour, there are signs cautioning drivers not to back up on the turnpike if they have missed their desired exit. These signs...
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The Dangers of the Union
From May to August 1821, Henry Wheaton published The Dangers of the Union, a series of eight essays defending the Supreme Court and Chief Justice John Marshall's then recent decision in Cohens v. Virginia.(1) Wheaton's essays appeared under the pseudonym...
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The Last Centrifugal Force
The Constitution of 1787 was debated against a backdrop of rebellion, defiance, and factionalism. Disintegration seemed almost a law of nature: ... [I]n every political association which is formed upon the principle of uniting in a common interest a...
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The Nominee Is ... Article V
In any list of least favorite constitutional provisions, we should not ignore the provisions protecting slavery, such as Article I [sections] 9 cl. 1 (providing that the slave trade could not be prohibited prior to 1808) and Article IV [sections] 2 cl....
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The One Senator, One Vote Clause
Article I, section 3, clause 1 provides that the Senate "shall be composed of two Senators from each State, * * * and each Senator shall have one Vote." The requirement that each state have two Senators was part of the "Great Compromise" reached in Philadelphia,...
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The Whole Thing
The question seems to me badly posed, for two reasons. It assumes that constitutional provisions "are" something-or-other, which can be laid against the metric by which we measure stupidity. But, as that allusion to United States v. Butler suggests,...
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Unnecessary and Unintelligible
No constitution produced after much deliberation by reasonably intelligent persons is likely to contain passages that are "stupid" in the sense of being "foolish; dull in intellect; nonsensical."(1) Many constitutional provisions quickly outlived their...
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What Is the Constitution's Worst Provision?
I confess that when Sandy Levinson asked me to contribute to this Symposium I had a momentary flash of panic, the same searing sense of stammering inadequacy that always seems to well up whenever my ten-year-old daughter Amelia asks such pointed questions...
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