Constitutional Commentary

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

Articles from Vol. 17, No. 1, Spring

Against Diversity
"Diversity" is a concept that has outgrown its origins and outlived its usefulness. In the end, it is really just a code word for preferential treatment. With little analytic basis, it was originally designed as a remedy for vague and undocumented...
Dworkin as an Originalist
I. INTRODUCTION Ronald Dworkin is regarded as one of the leading critics of originalism in constitutional interpretation. But he has recently undergone something of a conversion, and now apparently endorses a version of originalism. In his latest...
Is the Miranda Caselaw Really Inconsistent? A Proposed Fifth Amendment Synthesis
In Miranda v. Arizona(1) the Supreme Court held that custodial interrogation amounts to unconstitutional compulsion to be a witness against oneself, unless the interrogation is preceded by the famous warnings or "equally effective" measures to reduce...
Measuring First Amendment Value: Rebraf's First Chronicle
"Professor," a voice whined, "may I have a few minutes of your time?" With difficulty, I tore my eyes away from the latest work of Habermas. (Or was it Derrida? Some arcane European anyway.) I could hardly believe my eyes. There, before me, was...
That Sick Chicken Won't Hunt: The Limits of a Judicially Enforced Non-Delegation Doctrine
INTRODUCTION Since the resolution of the New Deal constitutional crisis, the non-delegation doctrine has lived a "fugitive existence at the edge of constitutional jurisprudence."(1) Advocates of the doctrine argue that legislative delegation of...
The Day After: Do We Need a "Twenty-Eighth Amendment?"
Having decided on a fixed term presidency and quadrennial electoral assessment of a president's performance, and having all but abandoned the parliamentary model of a "president" beholden to Congress for his power, the framers of our Constitution decided...