Constitutional Commentary

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

Articles from Vol. 24, No. 3, Fall

Common Law, Civil Law, and the Administrative State: From Coke to Lochner
In ... most [states] on the Continent of Europe, the ... rules ... stand, to a large extent, in the form of positive statutes, or Codes, enacted by the arbitrary power of the sovereign, or by the authority of the legislative assembly, where such a...
Constitution Day Is Unconstitutional
As violations of constitutional law go, this one might seem harmless or insignificant at first. No branch of the U.S. government is seeking to upset the tri-partite balance of power, no person's physical life, liberty or property is being threatened,...
Overcoming Dred: A Counterfactual Analysis
I. INTRODUCTION Could anything have been done about Dred Scott (1) in its own day, in a Supreme Court remade by Abraham Lincoln? That is, was Dred Scott vulnerable to overrule, even in its own day, even in advance of the Thirteenth and Fourteenth...
Scalia's Poker: Puzzles and Mysteries in Constitutional Interpretation
Howard Hawks had some trouble directing The Big Sleep, the 1946 Humphrey Bogart/Lauren Bacall film noir based on Raymond Chandler's classic novel. He once convened a story conference with the film's three screenwriters, a group headed by Nobel Prize-winner...
The Second Convention Movement, 1787-1789
The delegates at the Constitutional Convention of 1787 created an extraordinary document. The issues they confronted during that difficult summer in Philadelphia were complex and divisive. They had to decide the best way to balance power between the...
Umpires at Bat: On Integration and Legitimation
INTRODUCTION During his confirmation hearings, Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. "Judges and Justices are servants...