Constitutional Commentary

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

Articles from Vol. 16, No. 3, Winter

5 U.S. (1 Cranch) 137, 175
What an assignment! Select one moment from constitutional history, extinguish it from memory, and then describe all the consequences, desirable and not, that flow from the destruction of that legal moment. Talk about legal indeterminacy. Of course,...
Be Careful What You Wish For
Constitutional law, like law generally, is hardly autonomous. It largely reflects past political events as well as past and present material and social conditions. Thus, to trace the driving forces in our constitutional history, we should pay less...
But Cf ... in Re J.S
This is a case about Constitutionalism. We distinguish once again the rights actually granted by the Constitution from those that exist only in the mind of a litigant. Appellant J.S. was convicted and sentenced to death for the felony murder of...
Clear and Present Dangers: The Importance of Ideas and the Bowels in the Cosmos
I wonder if cosmically an idea is any more important than the bowels. Yours ever, O.W.H.(1) Wednesday, June 19, 1918 -- an otherwise unremarkable day in history -- was the morning of a chance meeting between Justice Oliver Wendell Holmes, Jr.,...
Farewell Madison Avenue
The myth is that the First Amendment constructs the marketplace of ideas and expression.(1) Standing behind the Supreme Court's free speech jurisprudence like the shadow behind Alfred Hitchcock (always there and always substantial),(2) though, are...
If the States Had Been Sovereign
As is generally known, the latter part of Article IV, clause 3 of the Constitution originally read: "no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States,...
Introduction
Time travel and chaos theory are staples of science fiction. In Ray Bradbury's "The Sound of Thunder," for example, a big-game hunter travels back 100 million years to bag a Tyrannosaurus rex but inadvertently stomps a butterfly on re-entering his...
Justice without Justices
My proposal for constitutional erasure is simply to eliminate the position of Supreme Court Justice. This notion is not as radical as it initially sounds. It would not stamp out judicial review, the supremacy of federal law, or even the Supreme Court...
Midnight in the Courtroom of Good and Evil
Degeneracy, like beauty, is in the eye of the beholder. What the Nazis thought entartet, the civilized world now calls Kunst. So it is with abortion in American constitutional law. For some, the constitutional protection of abortion has facilitated...
Must Joe Robinson Die? Reflections on the 'Success' of Court Packing
History may be radically contingent or it may be overdetermined. Crushing a small creature may have drastic results,(1) as may saving the life of a person meant to die.(2) On the other hand, shooting a Tyrannosaurus rex may have no discernible effect...
Plus Ca Change ... or If Hard Cases Make Bad Law, What Do Bad Cases Make?
Excerpts from Ex parte Young, 209 U.S. 123 (1908) Mr. Justice HARLAN delivered the opinion of the Court: In this case, the court below issued an order enjoining Edward T. Young, the Attorney General of Minnesota, from enforcing certain state...
So Help Me God: Religion and Presidential Oath-Taking
President Bill Clinton underwent impeachment and courted conviction and removal from office for having violated, in the words of his accusers, the religious sanctity of the oath. Representative Henry Hyde (R., Illinois) was especially unwilling to...
Terry V. Ohio in Hindsight: The Perils of Predicting the Past
Making a hit list of wrongly decided cases is fun and easy: mine includes Ex parte McCardle, the Slaughter-House Cases, Younger v. Harris, McCleskey v. Kemp, DeShaney v. Winnebago County, City of Los Angeles v. Lyons, Bowers v. Hardwick and others...
The Future of an Illusion: Reconstituting Planned Parenthood V. Casey
On Thursday, February 28, 1985, a 9 mm bullet pierced the window of Justice Harry Blackmun's high-rise apartment. Whether by chance or design, the bullet that missed a mark took on symbolic importance--Roe v. Wade(1) was still very much under attack....
The Myth of Superiority
Get a group of civil rights lawyers together and there is at least one thing they would agree upon--they prefer to litigate in federal, not state, court.(1) Writing in 1977 from his decade-long experience as a civil liberties litigator, Burt Neuborne...
The Remand That Made the Court Expand
(In a large law school lecture hall, Fall 1999 term) In today's class, we will focus on a Supreme Court decision that many of you undoubtedly studied in history or in an undergraduate course in Constitutional Law. That case is West Coast Hotel Co....
The School Prayer Decisions
Shortly after the school prayer decisions,(1) the crime rate escalated and the counter-culture blossomed. This is not, I have been told, a simple coincidence. After all, how could anybody mug a pedestrian, smoke marijuana, or enjoy promiscuous sex...
The Trouble with Tarble's: An Excerpt from an Alternative Casebook
Chief Justice O'CONNOR delivered the judgment of the Court and an opinion joined by Justices REHNQUIST, THOMAS, and KENNEDY, and by Justice SCALIA except for footnote 1. [The Gun Control Act, 18 U.S.C. [sections] 921 et seq., prohibits firearms...
The Variola Variation
Modern civil liberties law is the result of a virus. I mean that literally, and with the aid of the time machine we can perceive the truth of my assertion. Suppose that on a certain sunny afternoon in the Spring of 1823, a Bowdoin College student named...
Two Phone Calls
June 16, 2036 Dearest Helen: Here you are, about to graduate from law school, and your old grandfather is awfully proud of you. I remember the day you were born--yes, yes, as if it were yesterday, it's true. And I remember the first day--were...
What the Wall Separates: A Debate on Thomas Jefferson's "Wall of Separation" Metaphor
[A]greement, in the abstract, that the First Amendment was designed to erect a "wall of separation between church and State," does not preclude a clash of views as to what the wall separates. Justice Felix Frankfurter(*) No word or phrase is...
Would You, Could You, Change a Thing?
This game has two parts: pick some aspect of constitutional law or constitutional history and change or erase it; then explain what difference it makes. The first part of the invitation is irresistible. Gone with a blink are Dred Scott, Korematsu,...