Constitutional Commentary articles from March 2001

Constitutional Commentary archives from March 2001

Of judicial supremacy and academic inadequancy.(Supreme Court)
March 22, 2001... The ultimate supremacy or exclusivity of the Supreme Court's constitutional interpretations has been a matter of incremental but predictable accretion--a sort of multi-phase leviathan. Almost two centuries after Marbury, the horrifying reductio...

True God of the next justice. (Articles).(relevance of the Religious Test Clause to nomination and confirmation of Supreme Court justices)
March 22, 2001... I. INTRODUCTION For a decade or more, American constitutional discourse has emitted a detectable odor of bigotry toward Roman Catholics who embrace the papal encyclicals of Pope John Paul II. The day after President George Bush nominated...

The virtues of presidential government: why Professor Ackerman is wrong to prefer the German to the U.S. Constitution.
March 22, 2001... I. INTRODUCTION America is a world power, but does it have the strength to understand itself? Is it content, even now, to remain an intellectual colony, borrowing European categories to decode the meaning of its national identity?... When...

The "Bermuda Triangle?" The cert pool and its influence over the Supreme Court's agenda.
March 22, 2001... It has been called a "monopoly," a "swamp," a "Leviathan," and even "the Bermuda Triangle." (1) The culprit: the Supreme Court's cert pool, the system of randomly assigning petitions for review to a single clerk for a recommendation regarding...

Making sense of Dale.(Boy Scouts of America v. Dale)
March 22, 2001... Things are often more complex than they seem, even when they seem complex. In Boy Scouts of America v. Dale, (1) the Supreme Court held that the Boy Scouts have a right under the speech clause to exclude an openly gay man from being a...

Why the Eleventh Amendment always matters, even when transaction costs are zero: a reply to Professor Farber.
March 22, 2001... INTRODUCTION After the Supreme Court's decision in Seminole came down, (1) a number of commentators wrote reassuringly to their distressed colleagues (and probably themselves) to the effect that the legal community should not make too much...

Controlling precedent: congressional regulation of judicial decision-making.
March 22, 2001... Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts. (1) This fascination is not difficult to explain: the question is theoretically profound and raises...

Lawson's awesone (also wrong, some).(Professor Gary Lawson; stare decisis)
March 22, 2001... It is always fun, and a rare treat (for me, at least), to be attacked from the right. Professor Gary Lawson has me down as a stark-raving moderate. According to Professor Lawson, my proposition--that Congress may abrogate the judicial doctrine...

States' Rights and the Union: Imperium in Imperios, 1776-1876. (Book reviews).(Review)
March 22, 2001... STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 1776-1876. By Forrest McDonald. (1) University Press of Kansas. 2000. Pp. vii, 296. $29.95. Much is said about the "sovereignty" of the States; but the word, even, is not in the national...

Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953. (Book reviews).
March 22, 2001... DIVISION AND DISCORD: THE SUPREME COURT UNDER STONE AND VINSON, 1941-1953. By Melvin I. Urofsky. (1) University of South Carolina Press. 1997. Pp. xv, 298. $39.95 cloth; $21.95 paperback. If either a colleague or a student asked me to...

Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America.
March 22, 2001... BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH-CENTURY AMERICA. By Edward A. Purcell, Jr. (1) Yale University Press. 2000. Pp. 417. $40.00. The federal judiciary's...

The Supremes: Essays on the Current Justices of the Supreme Court of the United States.
March 22, 2001... "THE SUPREMES": ESSAYS ON THE CURRENT JUSTICES OF THE SUPREME COURT OF THE UNITED STATES. By Barbara A. Perry. (1) Peter Lang Publishing. 1999. Pp. 159. $24.95. Having pulled this book down off the shelf, I was at something of a...