Constitutional Commentary

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

Articles from Vol. 20, No. 3, Winter

Brilliance Remembered
Twenty years ago Daniel Farber cofounded Constitutional Commentary. (1) Dan's essay on McCulloch v. Maryland, (2) "Banking on National Power," concludes the twentieth volume of this journal. (3) Among his many achievements in twenty-two years on the...
Homage to Clio: The Historical Continuity from the Articles of Confederation into the Constitution
Abstract: The nature of the United States continued even as the Articles of Confederation were replaced by the Constitution. The Constitution is a radical document, but unstated assumptions about political institutions continued from the Articles into...
In Re Hundred Acre Wood
The question came before the Court today: Is the Hundred Acre Wood sovereign, or a mere instrumentality? The justices divided on the question in opinions delivered orally, as follows: Owl, J. The presuppositions of our constitutional schema presuppose...
Recess Appointments and an Independent Judiciary
Presidents Clinton and Bush have revived a quiescent executive power, that of recess appointments to the bench. In the last few days of his presidency Mr. Clinton made one such appointment. Following suit, Mr. Bush has now made two. All three appointments...
The Dimension of the Supreme Court
It is a rare occurrence when the New York Times, (1) Washington Post, (2) NPR, (3) and even Jack Kilpatrick (4) discuss a political science paper. Nonetheless, that is what happened after A Pattern of Analysis of the Second Rehnquist US Supreme Court,...
The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause
The Partial-Birth Abortion Ban Act of 2003 (PBABA), signed into law on November 5, 2003, by President Bush, (1) bans the use of partial-birth abortions throughout the United States except when necessary to save the fife of the mother. Specifically,...
The Story of McCulloch: Banking on National Power
There is no denying the importance of McCulloch v. Maryland. (1) As of April 14, 2004, it had received a total of 7,307 cites in the Westlaw computer base. Many scholars consider it the single most important opinion in the Court's history. Later national...