Constitutional Commentary articles from March 2005

Constitutional Commentary archives from March 2005

Moving the supremes to the heartland: the case for Omaha.
March 22, 2005... Justice Scalia recently proclaimed that the "proudest thing" he has done on the Court was to refuse to recuse himself from a case involving Vice President Cheney, with whom he had recently been duck hunting. (1) Views will no doubt differ as to...

Revenge of the triple negative: a note on the Brandeis brief in Muller v. Oregon.
March 22, 2005... The legal brief filed by Louis D. Brandeis and Josephine Goldmark in the case of Muller v. Oregon (1)--the original "Brandeis brief"--remains a landmark in American constitutional lawyering. Of course, the brief, like the U.S. Supreme Court's...

Fig leaf federalism and Tenth Amendment exceptionalism.
March 22, 2005... The Supreme Court's jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, (1) Justice Scalia proposed an approach that...

The dubious enumerated power doctrine.
March 22, 2005... Abstract: The enumerated power doctrine maintains that Congress may undertake only the activities specially mentioned in the text of the Constitution. Even the necessary and proper clause at the end of article I, section 8 and the tax clause at...

The dubious enumerated power doctrine.
March 22, 2005... C. GENERAL WELFARE WITHIN AND OUTSIDE OF TAX Both Jefferson and Madison contended in their battles with the Federalists that the Constitution did not authorize tax and spending justified only by the common defense and general welfare. The...

The constitutionality of states extending personhood to the unborn.
March 22, 2005... In 1992, Ronald Dworkin made a provocative argument that states cannot be given the liberty to declare fetuses to be persons. (1) The argument can be represented as follows: Federal constitutional law recognizes a fundamental liberty interest...

Law and Revolution, vol. 2, The Impact of the Protestant Reformations on the Western Legal Tradition.(Book review)
March 22, 2005... LAW AND REVOLUTION II: THE IMPACT OF THE PROTESTANT REFORMATIONS ON THE WESTERN LEGAL TRADITION. By Harold J. Berman. (1) Harvard University Press. 2003. xii + 522 pp. $49.95. What are the defining characteristics of the Western legal...

About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure.(Book review)
March 22, 2005... ABOUT GUILT AND INNOCENCE: THE ORIGINS, DEVELOPMENT, AND FUTURE OF CONSTITUTIONAL CRIMINAL PROCEDURE. By Donald A. Dripps. (1) Praeger Publishers. 2003. xix + 295 pp. $85.95. INTRODUCTION To listen to those who teach and study American...

Whose America?(Indian land transfer)
March 22, 2005... CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESSED INDIGENOUS PEOPLES OF THEIR LANDS. By Lindsay G. Robertson. (1) Oxford University Press. Pp. 272. $29.95. HOW THE INDIANS LOST THEIR LAND: LAW AND POWER ON THE FRONTIER. By Stuart...

Treatise writing during constitutional moments.(response to Laurence Tribe, Green Bag, vol. 8, p. 291, 2005)
March 22, 2005... Having written what in the legal academy counts as a notorious review of the first edition of Laurence Tribe's treatise, (2) I found intriguing Professor Tribe's account of his decision to suspend indefinitely the development of the treatise's...

When government must pay: compensating rights and the constitution.
March 22, 2005... INTRODUCTION In November 1993, Republican political consultant Ed Rollins, the architect of President Reagan's 1984 landslide re-election victory, had good reason to gloat after his latest political triumph. He'd just guided Christine Todd...