Constitutional Commentary

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

Articles from Vol. 15, No. 2, Summer

A "Uniform and Entire" Constitution; or, What If Madison Had Won?
James Madison is widely regarded as the father of both the Constitution and the Bill of Rights.(1) Yet the constitution-plus-bill-of-rights that we know today differs in significant ways from what Madison proposed to the First Congress in June of...
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Coeur d'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist
In a decade that is witnessing a resurgence of law's development and application to government entities around the world, in newly emerging democracies and in multi-national organizations like the European Union, the United States Supreme Court has...
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Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York V. United States Revisited
In New York v. United States,(1) which articulated the Supreme Court's current approach to the Tenth Amendment,(2) Justice O'Connor's majority opinion relied heavily on original understanding. "[T]he question whether the Constitution should permit...
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Constitutional Oddities
A symposium on the subject of "constitutional stupidities" appeared in these pages a while ago, in which some noted scholars offered their views as to the stupidest provision in the Constitution. But functionality and stupidity do not exhaust the...
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If at First You Don't Succeed, Ignore the Question Next Time? Group Harm in Brown V. Board of Education and Loving V. Virginia
I'm guessing you don't need to be reminded that in Brown v. Board of Education,(1) decided in 1954, the Supreme Court declared segregation of the public schools by race unconstitutional. It may need recalling, however, that aside from reciting the...
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The First Amendment Freedoms, Civil Peace and the Quest for Truth
I. INTRODUCTION Judicial review makes American constitutional law as intellectually engaging a subject of study as it is an important part of American government. By combining particular facts and legal controversies with appeals to principles...
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Where, but for the Grace of God, Goes He? the Search for Empathy in the Criminal Jurisprudence of Clarence Thomas
I. "BUT FOR THE GRACE OF GOD THERE GO I" It was a riveting moment. Asked by a senator "why you want this job,"(1) then-Judge Clarence Thomas volunteered this to the Senate Judiciary Committee and the nation: You know, on my current court,...
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