Constitutional Commentary articles from June 2004

Constitutional Commentary archives from June 2004

Fixing the constitutional absurdity of the apportionment of direct tax.
June 22, 2004... The Constitution requires that direct taxes be apportioned among the states according to population. (1) Before the abolition of slavery, the formula for apportionment counted each slave as three-fifths of a free person. Indeed, apportionment...

Interpreting the Sixteenth Amendment.
June 22, 2004... Readers of Constitutional Commentary may have missed the brouhahas, but Professor Calvin Johnson and I have been arguing for several years about the meaning of the Direct-Tax Clauses of the Constitution (1) and the Sixteenth Amendment to that...

Progressive political theory and separation of powers on the Burger and Rehnquist Courts.
June 22, 2004... INTRODUCTION The Rehnquist Court is widely believed to be the most conservative Court in recent memory. Especially in the legal academy, the Rehnquist Court has a reputation as being conservative in its politics, (1) originalist in its...

The constitutionality of the filibuster.
June 22, 2004... INTRODUCTION Ignorance about the filibuster is almost universal. What many people might know about the filibuster is based on the climax of the classic film, Mr. Smith Goes to Washington, when Jimmy Stewart's character launches a...

Resolving political questions into judicial questions: Tocqueville's thesis revisited.
June 22, 2004... Americans throughout the Jacksonian era bitterly disputed the proper use of the President's veto power. Whigs insisted that Democratic Presidents were abusing an authority to reject legislation originally intended to be confined largely to...

Constitutional law as "normal science".
June 22, 2004... An enduring feature of equal protection and substantive due process review of government action is being lost in much contemporary discourse: these challenges usually fail. Claims that the current Court is exceptionally activist are belied by...

A Theory of Constitutional Rights.(Book Review)
June 22, 2004... A THEORY OF CONSTITUTIONAL RIGHTS. By Robert Alexy, (1) trans., Julian Rivers. (2) Oxford University Press. 2002. Pp. 1iii + 462. $110.00. This welcome work is a scrupulous translation of Robert Alexy's Theorie der Grundrechte, (4) a work...

Semblances of Sovereignty: The Constitution, the State, and American Citizenship.(Book Review)
June 22, 2004... SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE, AND AMERICAN CITIZENSHIP. By T. Alexander Aleinikoff. (1) Harvard University Press. 2002. ix + 301 pp. $48.00. (2) I agreed to review this excellent book some two years ago, shortly...

Talking It Through: Puzzles of American Democracy.(Book Review)
June 22, 2004... TALKING IT THROUGH: PUZZLES OF AMERICAN DEMOCRACY. By Robert W. Bennett. (1) Cornell University Press. Pp. 223. $29.95. This elegant book seems more important at the moment than its author is willing to claim. Professor Bennett argues that...