Constitutional Commentary articles from June 2005

Constitutional Commentary archives from June 2005

Trumping precedent with original meaning: not as radical as it sounds.
June 22, 2005... Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest (1) and Jeff Powell. (2) Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original...

Originalism, stare decisis and the promotion of judicial restraint.
June 22, 2005... I. INTRODUCTION If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic...

The intrinsically corrupting influence of precedent.
June 22, 2005... Whatever one's theory of constitutional interpretation, a theory of stare decisis, poured on top and mixed in with it, always corrupts the original theory. If one is an originalist--that is, if one believes that the Constitution should be...

Originalism, precedent, and candor.
June 22, 2005... I Some legal principles are purely conventional. Within a wide range of possible rules, it doesn't matter much what the rule is; we just have to have a rule. "Traffic keeps to the right" is a customary example. But other legal principles...

Text, precedent, and the Constitution: some originalist and normative arguments for overruling Planned Parenthood of Southeastern Pennsylvania v. Casey.
June 22, 2005... "It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a...

The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11.(Book review)
June 22, 2005... THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. By John Yoo. (1) University of Chicago Press. 2005. xii + 366 pp. $29.00 War requires strong, centralized and efficient government. But that same sort of...

The American Constitution and the Debate over Originalism.(Book review)
June 22, 2005... THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM. By Dennis J. Goldford. (1) Cambridge University Press, New York. 2005. Pp. xi, 305. $75.00 (hard); $29.99 (paper). "The only jurisprudence that has made it into the public sphere...