Constitutional Commentary articles from December 22 1999

Constitutional Commentary archives from December 22 1999

But cf ... In re J.S. (mock court opinion concerning constitutional rights)
December 22, 1999... 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...

Introduction.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Clear and present dangers: the importance of ideas and the bowels in the cosmos.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Terry v. Ohio in hindsight: the perils of predicting the past.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Midnight in the courtroom of good and evil.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Be careful what you wish for.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

The variola variation.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

The trouble with Tarble's: an excerpt from an alternative casebook.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Would you, could you, change a thing?(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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,...

Farewell Madison Avenue.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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,...

The school prayer decisions.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Justice without justices.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

So help me God: religion and presidential oath-taking.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

If the states had been sovereign.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Must Joe Robinson die? Reflections on the 'success' of court packing.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

5 U.S. (1 Cranch) 137, 175.(Marbury v. Madison)(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Plus Ca change ... or if hard cases make bad law, what do bad cases make? (The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

The remand that made the Court expand.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... (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...

The future of an illusion: reconstituting Planned Parenthood v. Casey.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

Two phone calls.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

The myth of superiority.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... 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...

What the wall separates: a debate on Thomas Jefferson's "wall of separation" metaphor.(The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies)
December 22, 1999... [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...

The Problematics of Moral and Legal Theory.(Review)
December 22, 1999... THE PROBLEMATICS OF MORAL AND LEGAL THEORY. By Richard A. Posner.(1) Harvard University Press. 1999. Pp. 310. $29.95. "The fox knows many things, but the hedgehog knows one great thing." So holds a proverb made famous by Isaiah Berlin....

All the Laws but One: Civil Liberties in Wartime.(Review)
December 22, 1999... ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME. By William H. Rehnquist.(1) New York: Alfred A. Knopf, Inc., 1998. Pp. 254. $26.00. What! will you never cease prating of laws to us that have swords by our sides? Pompey Magnus(3) ...