Brilliance Remembered

By Chen, Jim | Constitutional Commentary, Winter 2003 | Go to article overview

Brilliance Remembered


Chen, Jim, Constitutional Commentary


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 faculty of the University of Minnesota Law School, Dan helped secure Constitutional Commentary's place as one of America's preeminent law journals. As of 2004, Dan will be teaching full-time at the University of California at Berkeley. Once again, glitzy California has snagged one of gritty Minnesota's best. (4) Though we hope that Dan will continue writing for Constitutional Commentary, "Banking on National Power" represents the last time he will appear in these pages as a member of the Minnesota law faculty and as an editor of this journal. As much as we wish we could travel back in time, change history, and thereby prevent Dan's departure, (5) we must accept the truth. Adios amigo, y viva Las Vegas: Elvis has left the building.

It is altogther fitting and proper that Dan's farewell to Constitutional Commentary and to Minnesota should address the enduring legacy of a decision that is arguably the most important case in American law. At least one empirical study of citation counts ranks McCulloch the most influential Supreme Court decision of all time. (6) McCulloch's relative importance is fiercely contested, of course. Some observers consider Brown v. Board of Education (7) "the most important decision in the history of the Court." (8) The iconic Marbury v. Madison (9) has its fans, (10) too, but Dan casts his favor elsewhere. By his own admission, Dan has reached the "unromantic" conclusion that judicial review "thrives by default because none of the alternatives are palatable." (11) Earlier in this volume of this journal, Dan provided a characteristically sober and witty assessment of Marbury and its legacy: "[T]he judiciary's views of constitutional doctrine are not final because the judiciary is supreme. Rather, its doctrines are supreme because its decisions are final." (12)

Whatever its competition, McCulloch stands tall. That case reminded us, after all, that "it is a Constitution we are expounding." (13) This benediction is "the single most important utterance in the literature of constitutional law." (14) Even scholars who begrudge Marbury's reputation as a "masterwork of indirection" (15) concede "that every major issue of constitutional interpretation and institutional power is instantiated in the forty-year-long debate about the constitutionality of the Bank" of the United States and its climax in McCulloch. (16)

McCulloch described the Constitution as a durable document "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." (17) As Liz Phair would put it, "good flaw] never dies." (18) Throughout his career at Minnesota and over the course of his affiliation with this journal, Dan Farber has been no less "comprehensive and ... comprehending." (19) Dan's work has appeared in eighteen of Constitutional Commentary's twenty volumes to date. (20) As befits the overall oeuvre of one of America's most versatile and productive scholars, Dan's contributions to this journal have spanned the full range of issues in constitutional law. He has applied economic analysis and humor--two tools rarely found in combination--to subjects as diverse as abortion, (21) the Eleventh Amendment, (22) and the inherent tendency of legal scholarship to devalue all constitutional doctrine. (23) From a tongue-on-teeth look at legal scholarship from a dental perspective (24) to thoughtful contemplation on the true meaning of equal protection, (25) Dan s contributions have ranged from the playful to the profound. In all, he has written no fewer than thirty-six items for this journal. (26) As an editor, a colleague, and a writer, he has been invariably--dare we use the word?--brilliant. (27) But for his decision to leave us for California, Dan Farber would be Constitutional Commentary's (almost) perfect founder. …

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