Constitutional Commentary

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

Articles from Vol. 27, No. 3, Winter

Abolishing Judicial Review
PROPOSED CONSTITUTIONAL AMENDMENT: The constitutionality of acts of Congress shall not be reviewed by any court in the United States. (2) COMMENTARY 1. Source: The proposal is adapted from Article 120 of the Constitution of the Netherlands:...
Constitutional Hypocrisy
INTRODUCTION My legal realist inclinations leave me largely agnostic about the particular provisions that happen to be included in any particular constitution. That is because both written and unwritten constitutions seem more likely to reflect...
Four Constitutional Limits That the Minimum Coverage Provision Respects
JUSTICE O'CONNOR: If this is covered, what's left of enumerated powers? What is there that Congress could not do, under this rubric, if you are correct? GENERAL DAYS: Justice O'Connor, that certainly is a question that one might ask, but this Court...
On Being "Bound Thereby"
I propose revising Article VI, paragraph 2, of the United States Constitution to read as follows (my amendments noted in italics): This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties...
Our Perfect, Perfect Constitution
I suffer from a peculiar and aggressive strain of Stockholm syndrome, the psychological tendency of kidnapping victims to identify with, and even come to adore, their captors. The strain with which I am afflicted is unique to teachers of constitutional...
Should We Have a Liberal Constitution?
Here is a modest proposal: If I had the power to rewrite the United States Constitution, I would first take some time to think hard about the sort of country I wanted to live in. Having done my homework, I would then draft language that, to the best...
So Much to Rewrite, So Little Time
Like other participants in this symposium, I've been charged with answering the following question: "If you were rewriting the U.S. Constitution, what would it say?" I am faced with a dilemma: I have written a book, Our Undemocratic Constitution: Where...
The Constitution and the Political Community
The history of constitutional change in the United States is in substantial part a history of expanding the political community. Although the state property qualifications for voting that were common at the Founding were abandoned without the need...
The Extraterritorial Constitution and the Rule of Law
Amendment: When acting outside the sovereign territory of the United States, the U.S. government, its officials, employees, and agents shall not deprive any person of life, liberty, or property without due process of law. The federal courts shall have...