Constitutional Commentary

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

Articles from Vol. 17, No. 2, Summer

A Comparative Constitutional Law Canon?
I. INTRODUCTION Some ten years ago we began to put together a coursebook in American constitutional law for senior undergraduates. In the initial proposal we sent to West Publishing, we wrote, "It takes a measure of audacity to produce yet another...
Aim Globally
INTRODUCTION Recently, the Hong Kong judiciary dealt with a case that could not be more foreign nor more familiar. In HKSAR v. Ng Kung Siu, two dissidents were convicted of, among other things, desecrating the national flag in violation of local...
Capturing the Canon
INTRODUCTION In this paper I have reflected on the nearly twenty-five years I have been involved in editing a constitutional law casebook. In the process of examining the various editions of the casebook to the present, I realize, more than I otherwise...
Chasing the Cannon: A Tail's View of, and Requests to, the Dog
My admiration for the late Fred Rodell gives me an excuse, if not a reason, for keeping the number of footnotes in this document as small as possible.(1) Otherwise I would, of course, have footnote references to the other articles in this Symposium,...
Constitutional Law's Loose Canon: Are We Running Software without the Operating System?
The canon of constitutional law, like any fundamental principle, is a function of the values that inspire it. If a meaningful learning experience is the overarching concern, the common denominators of constitutional law casebooks should reveal the...
Democracy, Anti-Democracy, and the Canon
Democracy is the Banquo's ghost of American constitutionalism. Appearing evanescently in vague discussions of process-based theories of judicial review, or in isolated First Amendment cases involving political speech, or in momentary Equal Protection...
Does "Practicality" Have a Place in the "Canon of Constitutional Law"?
In this article, I talk about a hodge-podge of things that I do in my constitutional law classes and books. I am not sure that they rise to the lofty title of "The Canon of Constitutional Law," but I view them as worthwhile and worth discussing. ...
Is There a Canon of Constitutional History?
My contribution to this discussion is purely empirical. I ask whether a canon exists, not among constitutional law casebooks, a question addressed elsewhere,(1) but rather in documentary collections in American constitutional history.(2) I begin...
Looking for a Model Answer: May Congress Prohibit Sex-Selective Abortions?
I have put what I think are the best student answers for my Constitutional Law exam on reserve, but my students are still not satisfied: What's the right answer to Question 1, Professor Paulsen? Alas, the question itself shows that I am a failure as...
On Casebooks and Canons or Why Bob Jones University Will Never Be Part of the Constitutional Law Canon
Here is a hard sell: making a plausible--let alone convincing--case that Bob Jones University v. United States(1) is one of the canons of constitutional law. As a matter of constitutional doctrine, Bob Jones was never that important to begin with and...
Sovereignty Studies in Constitutional Law: A Comment
Constitutional law casebooks are based on an unstated, and perhaps unrecognized, set of assumptions that link constitutional law to a strong conception of the nation-state. This is the explicit message of the periodicization of constitutional law into...
The Canon and the Constitution outside the Courts
What would it mean for "the canon of constitutional law" if we were to take seriously "the Constitution outside the courts"? What would happen to the canon if we were to distinguish (as Cass Sunstein and Larry Sager do) between the partial, judicially...
The Canon of Constitutional Law for Undergraduate Teaching: The Melding of Constitutional Theory, Law and Interpretive Empirical Political Science
As a teacher of undergraduates, I want to make the argument that courses in American Constitutional Law should emphasize a wide range of topics, including constitutional theory, the process of Supreme Court decision-making, and how the Supreme Court...
The Canon(s) of Constitutional Law: An Introduction
Any discipline has a canon, a set of themes that organize the way in which people think about the discipline. Or, perhaps, any discipline has a number of competing canons. Is there a canon of constitutional law?(1) A group of casebook authors met in...
The Canons of Constitutional Law: Teaching with a Political-Historical Framework
In my writings on constitutional law, I make an effort to provide a broad context so that readers and students can better appreciate and understand a court decision. I want them to understand the conditions that give rise to a court case and how those...
The Case for Including Marks V. United States in the Canon of Constitutional Law
I. INTRODUCTION A. THE PROPOSAL In this essay, I would like to suggest adding a single case, with appropriate commentary, to the canon of constitutional law, as presented in introductory casebooks. Specifically, I suggest including Marks v. United...
The Constitutional Canon: The Challenge Posed by a Transitional Constitutionalism
How does a transitional constitutionalism challenge the constitutional canon? My recent book, Transitional Justice (Oxford University Press, 2000), discusses constitutional theory in periods of radical political upheaval, and offers a transitional...
The Integration of Theory and Practice in Teaching Structural Issues in Constitutional Law
For fifteen years and four editions, our casebook(1) has differed from the mainstream canon(2) in two respects. First, we give relatively greater emphasis to the structure of government issues of federalism and separation of powers. Constitutional...
The Parsimony of Libertarianism
I want to begin by congratulating Randy Barnett on writing The Structure of Liberty,(1) one of the most radical and provocative works of political and legal theory that I have ever read. I consider myself to be a liberal who prizes liberty. Barnett...
Why the Canon Should Be Expanded to Include Insular Cases and the Saga of American Expanionism?
I. INTRODUCTION: THE "CANON" All disciplines are constituted by their canons--that series of "set texts" that comprises the core materials of any given academic area. As Jack Balkin and I have written elsewhere, debates about the canon are rife...