Constitutional Commentary

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

Articles from Vol. 16, No. 2, Summer

Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory
A new consensus on the meaning of the Second Amendment appears to be crystallizing among constitutional scholars.(1) This new model asserts that the Second Amendment protects both an individual and a collective right of the people to bear arms. Proponents...
"Justice Delayed, Justice Denied": The Fastest Gun in the East (or at Least on the Supreme Court)
"Justice delayed, justice denied" is an ancient legal maxim. Its impact has been profound, including upon recent Supreme Court Justices. For example, in Steel Company v. Citizens for a Better Environment,(1) Justice Scalia's majority opinion noted...
Law and Sports Officiating: A Misunderstood and Justly Neglected Relationship
Ronald Dworkin insisted in Taking Rights Seriously that "[r]ules are applicable in an all-or-nothing fashion."(1) "This all-or-nothing," he continued, is seen most plainly if we look at the way rules operate, not in law, but in some enterprise...
Suicide Pact: New Readings of the Second Amendment
"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill...
The Apparent Inevitability of Mixed Government
There are few positions more demonstrable than that there should be, in every republic, some permanent body to correct the prejudices, check the intemperate passions, and regulate the fluctuations, of a popular assembly. --Alexander Hamilton at...
The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process
The view that the due process clauses of the Constitution impose substantive restraints on governmental power has long been a subject of contention. It has become an article of faith in some quarters that due process pertains entirely to matters of...
The Second Amendment in Historical Context
A reading of Saul Cornell's essay brings several things to mind. First, there has been a torrential outpouring of writings on Second Amendment issues for quite some years. I initially became aware of this development sometime in the mid-1980s, but...
To Keep and Bear Arms in the Early Republic
When "The Ideological Origins of the Second Amendment" appeared seventeen years ago, my primary intent was to shed new light on the intellectual life of the early republic--to employ an analysis of the amendment as a window into the political culture...
What If ... Buckley Were Overturned?
On January 30, 1976, the Supreme Court issued its historic decision in Buckley v. Valeo,(1) which has set the constitutional contours of debate about campaign finance reform ever since. Many of those who would like to see the campaign finance laws...