Constitutional Commentary

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

Articles from Vol. 11, No. 1, Winter

A Heterodox Catechism
Let me try to state in a nutshell how I view the work of judging--my approach, I believe, is neither liberal nor conservative.... As Justice Oliver Wendell Holmes counseled, one of the most sacred duties of a judge is not to read her convictions...
Authorizing Constitutional Text on the Purported Twenty-Seventh Amendment
This essay began as a teaching exercise for my first-year class on constitutional law; a version of it begins the 1993 Supplement to Paul Brest and Sanford Levinson, Processes of Constitutional Decisionmaking. The "27th Amendment" is a veritable godsend...
Discrimination against New State Citizens: An Update
Ten years ago, the first article in Volume 1, Number 1, of Constitutional Commentary was my brief analysis of a decade of confusing cases dealing with discrimination against new state citizens.(1) In responding to the editors' request that I participate...
Does Footnote Four Describe?
Does Footnote Four describe? Two of the editors of this, my favorite journal, certainly think so: "Footnote Four encompasses much of the ensuing half-century of constitutional law."(1) They join very esteemed company, from John Hart Ely(2) to the late...
Free Speech in Political Philosophy and Its Relation to American Constitutional Law: A Consideration of Mill, Meiklejohn, and Plato
I. INTRODUCTION The American Constitution's success, according to its Founders, required that the people understand the document. One telling argument for adding a bill of rights to the Constitution was that "if a nation means its systems, religious...
History, Theory and the Constitution
On the occasion of this journal's tenth anniversary, readers may find profit in recalling two seminal essays on the American Constitution that may be thought of as providing an intellectual provenance for the kind of scholarship that Constitutional...
Lani Guinier, Joseph Biden, and the Vocation of Legal Scholarship
It is a pleasure to contribute to this tenth anniversary issue of Constitutional Commentary, which deserves great credit for its support of free-ranging scholarly reflection, unfenced by the razor wire of bluebook citations. In our profession we have...
Leadership and Majoritarianism: A Response
In Dialogue and Judicial Review(1) I sought to replace the prevailing description of the role of judicial review--that of the "countermajoritarian difficulty"--with a description that more accurately portrays the role constitutional courts play in...
Puerto Rico and the Constitution: Conundrums and Prospects
Last November, the people of Puerto Rico went to the polls to indicate their preference on the political status of the island and its relationship to the United States. With almost three-quarters of registered voters participating, the plebescite produced...
Style and the Supreme Court's Educational Role in Government
The Supreme Court, we are told, is--or at least could be--a republican schoolmaster,(1) an educative institution.(2) Through its decisions and, even more, the written opinions that provide the rationales for its decisions, the Court leads the people...
The Forgotten Constitutional Moment
Theory and history have an uncomfortable relation. Sometimes theory derives from history, as an attempt to explain and reconcile events that have taken place. And sometimes history trips up theory, when events stubbornly refuse to conform to the theory...
The Gospel According to Dworkin
The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all ...
The New Rawls and Constitutional Theory: Does It Really Taste That Much Better?
It used to be a major enterprise of philosophers to compete for the most striking way to describe the human differentia. Surely the most famous and long-lasting such effort was Aristotle's "the human being is the rational animal," but there have been...
The Supreme Court, Judicial Review, and the Public: Leadership versus Dialogue
[T]he most interesting thing about the great flag-burning debate of the late 1980s would be how quickly that debate evaporated . . . . . . I can't even remember what my own opinion was on the flag issue, though I remember I had a strong one. ...
Were the Framers of the Constitution PC?
PC has enjoyed an interesting career in the past few years. By popular accounts, pc (political correctness) began perhaps ten years ago as a way one member of the left might criticize a comrade whose views on a certain subject lapsed from the true...
Who Teaches Constitutional Law?
Constitutional Law is a plum teaching assignment. William L. Prosser, then Dean of the University of California School of Law at Berkeley, complained more than forty years ago that "[t]he overwhelming majority" of teaching applicants "have wanted to...