Constitutional Commentary

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

Articles from Vol. 21, No. 1, Spring

Affirmative Refraction: Grutter V. Bollinger through the Lens of the Case of the Speluncean Explorers
What can a fifty year-old hypothetical about human cannibalism concocted by the late Lon Fuller (1) teach us about the Supreme Court's recent foray into the affirmative action debate in twenty-first century America? (2) Indeed, what can a tax law professor...
After Grutter V. Bollinger - Revisiting the Desegregation Era from the Perspective of the Post-Desegregation Era
In what Justice Scalia called the Supreme Court's "split double header" (1) in the summer of 2003, the Court upheld the affirmative action plan adopted by the University of Michigan Law School in Grutter v. Bollinger, (2) but rejected the plan adopted...
From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality
INTRODUCTION None other than Alexis de Tocqueville, upon his travels around the young American republic, incisively remarked in 1835 that "[t]he most formidable evil threatening the future of the United States is the presence of the blacks on their...
Grutter or Otherwise: Racial Preferences and Higher Education
The Supreme Court decisions on affirmative action have arrived. (1) They are dubious as constitutional law, bringing to mind what John Hart Ely said of Roe v. Wade: "it is not constitutional law and gives almost no sense of an obligation to try to...
In Defense of Deference
For my part, as I went away, I reasoned with regard to myself: "I am wiser than this human being. For probably neither of us knows anything noble and good, but he supposes he knows something when he does not know, while I, just as I do not know, do...
International Human Rights Law Perspective on Grutter and Gratz
There is an international human rights law aspect to Grutter v. Bollinger (1) and Gratz v. Bollinger (2) that might be missed by many lawyers and scholars who rarely consider any legal domain beyond the limits of the U.S. Constitution. Indeed, Grutter...
Jim Crow's Long Goodbye
I. INTRODUCTION Most judicial discussions of affirmative action and racial justice are unsatisfying because they omit a fundamental category of evidence: Information which would provide a basis for evaluating the scope of Jim Crow and its systematic...
Racial Integration as a Compelling Interest
The premise of this symposium is that the principle and ideal developed in Brown v. Board of Education (2) and its successor cases lie at the heart of the rationale for affirmative action in higher education. The principle of the school desegregation...
Secrecy and Dishonesty: The Supreme Court, Racial Preferences, and Higher Education
One should never count on the U.S. Supreme Court to think and write clearly--or even to tell the whole truth and nothing but. Its most famous decisions involving racial equality in the last half century, starting with Brown v. Board of Education, (1)...
Tacking Left: A Radical Critique of Grutter
[R]ace conscious policies must be limited in time ... We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today. Justice O'Connor in Grutter v. Bollinger (1) INTRODUCTION...
The Dark Side of Grutter
I. INTRODUCTION Liberals have generally cheered the Supreme Court's decision in Grutter v. Bollinger (1) as validating the continued use of affirmative action in the struggle against racial injustice. (2) But the Supreme Court's modern race cases...
The Last Twenty Five Years of Affirmative Action?
In a pair of much-watched cases decided by the Supreme Court in 2003, affirmative action has been vindicated, if not declared alive and well. (1) The decisions, at least for a time, put to rest a controversy that raged over the 1990s. (2) Since the...