Constitutional Commentary

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

Articles from Vol. 20, No. 1, Spring

Decentralizing Constitutional Provisions versus Judicial Oligarchy: A Reply to Professor Koppelman
Professor Koppelman pays me the compliment of responding to my recent article. Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence of Social Discovery. (1) In particular, I am grateful for his kind remark that the article is a "major...
How "Decentralization" Rationalizes Oligarchy: John McGinnis and the Rehnquist Court
"Decentralization" sounds wonderfully democratic. It implies that people are becoming masters of their own destinies, freed from the oppression of distant functionaries who neither know nor care about the particulars of their lives. Strangely, however,...
Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation
Suppose an imperious woman announces that, henceforth, she will construe the sentences of others as completely meaningless unless each sentence is preceded by the obsequious question "Mother May I?" When this domineering woman proceeds to ignore sentences...
On the Waterfront: Cheese-Eating, HUAC, and the First Amendment
The early 1950s were a bleak time for freedom of speech and association in the United States. Witch hunts, black lists, and loyalty oaths were the order of the day. The Supreme Court, in a relatively docile state of mind, went meekly along, acquiescing...
The Federalist Papers and the Bill of Rights
Of all the complaints lodged by the Antifederalists in their campaign to defeat ratification of the Constitution, the failure to attach a bill of rights to the Constitution emerged as the leading and most formidable one. (1) This omission represented...
The Last Man off Standard: A True Story, with Moral
A lone figure stares into the blank blue screen of an Apple IIc. His hand distractedly clicks at the keyboard: D-V-O-R-A-K, D-V-O-R-A-K.... His restless mind is comforted only by the soothing, palindromic perfection of ABBA droning on the 8-track....
The Little Red Schoolhouse: Pierce, State Monopoly of Education and the Politics of Intolerance
If the Oregon School Law is held to be unconstitutional it is not only a possibility but almost a certainty that within a few years the great centers of population in our country will be dotted with elementary schools which instead of being red on...
The Myth of the Neutral Amicus: American Courts and Their Friends, 1790-1890
An amicus curiae ("friend of the court") is, in modern American practice, a non-party to a case who nevertheless has a strong enough interest in the case's outcome to file a brief. Common amici include the federal and state governments, ideological...
True Blue
Constitutional Commentary's decision to abandon The Chicago Manual of Legal Citation in favor of The Bluebook: A Uniform System of Citation should not be construed as a wholesale endorsement of the Bluebook. The editors of Constitutional Commentary...