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Constitutional Commentary

Constitutional Commentary was founded in 1984 and is one of the few faculty-edited law journals in the country. It enjoys a wide following among legal scholars, historians, political scientists and others interested in constitutional law and history. Part of its popularity is due to the editors’ preference for “shorter and less ponderous articles” as opposed to the more lengthy and heavily footnoted articles found in traditional law reviews.

Submissions from 2006 2006

Farewell to Social Nostalgia. Book Review Of: Beyond Camelot: Rethinking Politics and Law for the Modern State. by Edward L. Rubin., Peter E. Quint

Federalist No. 78 and Brutus' Neglected Thesis on Judicial Supremacy, Shlomo Slonim

Taxes, Conscience, and the Constitution, Steven D. Smith

Deduction, Legal Reasoning, and the Rule of Law. Book Review Of: Rhetoric and the Rule of Law. a Theory of Legal Reasoning. by Neil McCormick, Spaak Torben

Fundamentally Wrong About Fundamental Rights, Adam Winkler

Submissions from 2005 2005

When Government Must Pay: Compensating Rights and the Constitution, Kenneth Agran

Judging the Schiavo Case, Samuel R. Bagenstos

Trumping Precedent with Original Meaning: Not as Radical as It Sounds, Randy E. Barnett

Family Conflict and Family Privacy: The Constitutional Violation in Terri Schiavo's Death, Robert A. Burt

Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania V. Casey, Steven G. Calabresi

Schiavo and Klein, Evan Caminker

The Protestant Revolutions and Western Law. Book Review Of: Law and Revolution Ii: The Impact of the Protestant Reformations on the Western Legal Tradition. by Harold J. Berman, William B. Ewald

Protecting Unconscious, Medically- Dependent Persons After Wendland & Schiavo, Clarke D. Forsythe

The Contagion of Constitutional Avoidance, Scott E. Gant

Terri Schiavo: A Right to Life Denied or a Right to Die Honored?, Robert P. George

Congress Clears Its Throat, Edward A. Hartnett

The Dubious Enumerated Power Doctrine, Calvin H. Johnson

From Cruzan to Schiavo: Similar Bedfellows in Fact and at Law, Edward J. Larson

Fig Leaf Federalism and Tenth Amendment Exceptionalism, Nelson Lund

A Criminal Procedure Regime Based on Instrumental Values. Book Review Of: About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure. by Donald A. Dripps, Tracey Maclin

Originalism, Stare Decisis and the Promotion of Judicial Restraint, Thomas W. Merrill

Killing Terri Schiavo, Michael Stokes Paulsen

The Intrinsically Corrupting Influence of Precedent, Michael Stokes Paulsen

Undue Process: Congressional Referral and Judicial Resistance in the Schiavo Controversy, Adam M. Samaha

Constitutional Contortion? Making Unfettered War Powers Compatible with Limited Government. Book Review Of: The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. by John Yoo, Gordon Silverstein

The (Surprising) Truth About Schiavo: A Defeat for the Cause of Autonomy, O. Carter Snead

The (Surprising) Truth About Schiavo: A Defeat for the Cause of Autonomy, O. Carter Snead

Revenge of the Triple Negative: A Note on the Brandeis Brief in Muller V. Oregon, Clyde Spillenger

Originalism, Precedent, and Candor, David A. Strauss

Elizabeth Cady Stanton on the Federal Marriage Amendment: A Letter to the President, Tracy A. Thomas

The Constitutionality of States Extending Personhood to the Unborn, Alec Walen

Let's Call the Whole Thing Off? Book Review Of: The American Constitution and the Debate Over Originalism. by Dennis J. Goldford, Keith E. Whittington

Whose America? Book Review Of: Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands. by Lindsay G. Robertson; How the Indians Lost Their Land: Law and Power on the Frontier. by Stuart Banner, Judith T. Younger

Submissions from 2004 2004

Grutter or Otherwise: Racial Preferences and Higher Education, Larry Alexander and Maimon Schwarzschild

Racial Integration as a Compelling Interest, Elizabeth S. Anderson

After Grutter V. Bollinger - Revisiting the Desegregation Era from the Perspective of the Post-Desegregation Era, Kevin D. Brown

Affirmative Refraction: Grutter V. Bollinger Through the Lens of the Case of the Speluncean Explorers, Paul L. Caron and Rafael Gely

Jim Crow's Long Goodbye, Gabriel J. Chin

Progressive Political Theory and Separation of Powers on the Burger and Rehnquist Courts, Eric R. Claeys

Democracy as Civic Conversation: Book Review Of: Talking It Through: Puzzles of American Democracy. by Robert W. Bennett, Louis R. Cohen

Book Review: Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. by Geoffrey R. Stone, Michael Kent Curtis

Reynolds V. United States: The Historical Construction of Constitutional Reality, Donald L. Drakeman

The Conceptual Jurisprudence of the German Constitution. Book Review Of: A Theory of Constitutional Rights. by Robert Alexy Trans., Julian Rivers, William Ewald

In Defense of Deference, Luis Fuentes-Rohwer and Guy-Uriel E. Charles

The Constitutionality of the Filibuster, Michael J. Gerhardt

Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited, Mark A. Graber

Being Proportional About Proportionality. Book Review Of: The Ultimate Rule of Law. by David M. Beatty, Vicki C. Jackson

Interpreting the Sixteenth Amendment (By Way of the Direct-Tax Clauses), Erik M. Jensen

Fixing the Constitutional Absurdity of the Apportionment of Direct Tax, Calvin H. Johnson

The Last Twenty Five Years of Affirmative Action?, Kevin R. Johnson

Shards of Citizenship, Shards of Sovereignty: on the Continued Usefulness of an Old Vocabulary. Book Review Of: Semblances of Sovereignty: The Constitution, the State, and American Citizenship. by T. Alexander Aleinikoff, Sanford Levinson

Constitutional Law as "Normal Science", Toni M. Massaro

(So) What If It's All Just Rhetoric? Book Review Of: for the Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief. by Eugene Garver, David McGowan

The Political Battle for the Constitution, H. W. Perry and L. A. Scot Powe

Tacking Left: A Radical Critique of Grutter, Daria Roithmayr

The Dark Side of Grutter, Girardeau A. Spann

Secrecy and Dishonesty: The Supreme Court, Racial Preferences, and Higher Education, Abigail Thernstrom and Stephan Thernstrom

Tahoe's Requiem: The Death of the Scalian View of Property and Justice, Laura S. Underkuffler

International Human Rights Law Perspective on Grutter and Gratz, David Weissbrodt

English Constitutionalism Circa 2005, Or, Some Funny Things Happened After the Revolution. Book Review Of: Public Law. by Adam Tomkins., Ernest A. Young

Submissions from 2003 2003

The Little Red Schoolhouse: Pierce, State Monopoly of Education and the Politics of Intolerance, Paula Abrams

Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury V. Madison and the Case for Judicial Supremacy, Larry Alexander

Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation, Larry Alexander and Saikrishna Prakash

The Myth of the Neutral Amicus: American Courts and Their Friends, 1790-1890, Stuart Banner

Judicial Supremacy and Its Discontents, Dale Carpenter

The Court and the Empire. Book Review Of: The Imperial Republic: A Structural History of American Constitutionalism from the Colonial Era to the Beginning of the Twentieth Century. by James G. Wilson, Michael Kent Curtis

How Many Spouses Does the Constitution Allow One to Have? Book Review Of: The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America. by Sarah Barringer Gordon, David R. Dow and Jose I. Maldonado Jr.

The Dimension of the Supreme Court, Paul H. Edelman

The Importance of Being Final, Daniel A. Farber

The Office of the Oath, Patrick O. Gudridge

Not the King's Bench, Edward A. Hartnett

The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause, Allan Ides

Homage to Clio: The Historical Continuity from the Articles of Confederation into the Constitution, Calvin H. Johnson

How "Decentralization" Rationalizes Oligarchy: John McGinnis and the Rehnquist Court, Andrew Koppelman

Marbury and the Retreat from Judicial Supremacy, Larry D. Kramer

Interpretative Equality as a Structural Imperative (Or "Pucker Up and Settle This!"), Gary Lawson

What Are the Facts of Marbury V. Madison?, Sanford Levinson and Jack M. Balkin

Recess Appointments and an Independent Judiciary, William Ty Mayton

Decentralizing Constitutional Provisions Versus Judicial Oligarchy: A Reply to Professor Koppelman, John O. McGinnis

Telling Stories for Liberty. Book Review Of: You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws. by David Bernstein, David McGowan

American Democracy: A Model Oxymoron or Who Knew the Constitution Enshrined Affirmative Action for States? Book Review Of: How Democratic Is the American Constitution? by Robert A. Dahl., Miranda Oshige McGowan

The Lame Ducks of Marbury, John Copeland Nagle

Marbury's Wrongness, Michael Stokes Paulsen

Searching for the Peaceable Kingdom. Book Review Of: Emblems of Pluralism: Cultural Differences and the State. by Carol Weisbrod, Mark D. Rosen

On the Waterfront: Cheese-Eating, Huac, and the First Amendment, Jeffrey M. Shaman

The Federalist Papers and the Bill of Rights, Shlomo Slonim

The Marbury of 1803 and the Modern Marbury, Sylvia Snowiss

Judicial Sovereignty: The Legacy of the Rehnquist Court. Book Review Of: Narrowing the Nation's Power: The Supreme Court Sides with the States. by John T. Noonan, Jr., E. Thomas Sullivan

"Sir, Yes, Sir!": The Courts, Congress, and Structural Injunctions. Book Review Of: Democracy by Decree: What Happens When Courts Run Government. by Ross Sandler and David Schoenbrod, Mark Tushnet

Submissions from 2002 2002

Executive Power in Youngstown's Shadows, Patricia L. Bellia

Practical Judging. Book Review Of: Implementing the Constitution. by Richard H. Fallon, Jr., Brian H. Bix

Youngstown: Pages from the Book of Disquietude, Philip Bobbitt

Against (Constitutional) Settlement. Book Review Of: Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review. by Louis Michael Seidman, Brannon P. Denning

Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-First Amendment, and State Regulation of Internet Alcohol Sales, Brannon P. Denning

The Steel Seizure Case: One of a Kind?, Neal Devins and Louis Fisher

The Law and Large Numbers. Book Review of Political Numeracy: Mathematical Perspectives on Our Chaotic Constitution. by Michael I. Meyerson, Paul H. Edelman

Playing Without a Referee: Congress, the President, and Foreign Affairs. Book Review Of: The President's Authority Over Foreign Affairs: An Essay in Constitutional Interpretation. by H. Jefferson Powell, Daniel A. Farber

The Steel Seizure Case and Inherent Presidential Power, David Gray Adler

Keeping Legal History "Legal" and Judicial Activism in Perspective: A Reply to Richard Pildes, Charles A. Heckman

Washington, Patton, Schwarzkopf and ... Ashcroft?, Michael Herz

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