Constitutional Commentary
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The contagion of constitutional avoidance.
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SPECIAL JUSTIFICATIONS.
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Segregation and the original understanding: a reply to Professor Maltz.
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International human rights law perspective on Grutter and Gratz.
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Marbury and the retreat from judicial supremacy.
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If the states had been sovereign.
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VIEWPOINT DISCRIMINATION, HATE SPEECH, AND POLITICAL LEGITIMACY: A REPLY.
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Critical Judicial Nominations and Political Change: The Impact of Clarence Thomas.
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Kent Greenawalt and the difficulty (impossibility?) of religion clause theory.
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The Fourteenth Amendment and Native American citizenship.
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Originalism and its discontents (plus a thought or two about abortion).
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A DUBIOUS EXPEDIENCY: HOW RACE PREFERENCES DAMAGE HIGHER EDUCATION.
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THE REALITY PRINCIPLE.
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Talking It Through: Puzzles of American Democracy.
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The Imperial Republic: A Structural History of American Constitutionalism from the Colonial Era to the Beginning of the Twentieth Century.
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Advocacy in the U.S. Supreme Court: expertise within the appellate bar.
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Judicial interpretive finality and the constitutional text.
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Presidents, preemption, and the states.
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In defense of deference.
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The Article III fiscal power.
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The story of McCulloch: banking on national power.
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The Negotiable Constitution: On the Limitation of Rights.
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Protecting unconscious, medically-dependent persons after Wendland & Schiavo.
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American Constitutionalism: From Theory to Politics.
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Comment on Baker's autonomy and free speech.
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Busting the Hart & Wechsler paradigm.
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What does the Second Amendment restrict? A collective rights analysis.
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The Politics of Principle: The First South African Constitutional Court, 1995-2005.
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A comparative constitutional law canon?
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Trumping precedent with original meaning: not as radical as it sounds.
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Midnight in the courtroom of good and evil.
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Understanding the 2000 Election: A Guide to the Legal Battles That Decided the Presidency.
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The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.
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Originalism as a legal enterprise.
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Stop the fight for women's equality.
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DeFunis, defunct.
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The constitution of Bosnia-Herzegovina.
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The dubious enumerated power doctrine.
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There is no winter in Minnesota.
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Fig leaf federalism and Tenth Amendment exceptionalism.
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The perpetual anxiety of living constitutionalism.
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The whole thing.
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The rhetoric of restraint and the ideology of activism.
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Dedication and foreword.
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Constitutional wish granting and the property rights genie.
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Beard & uber-Beard.
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Judicial Power and American Character: Censoring Ourselves in an Anxious Age.
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"Modest expectations"?: civic unity, religious pluralism, and conscience.
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The civic dimensions of American constitutionalism.
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Commandeering, the Tenth Amendment, and the federal requisition power: New York v. United States revisited.
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Keeping legal history "legal" and judicial activism in perspective: a reply to Richard Pildes.
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Charles Beard & progressive legal historiography.
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Of judicial supremacy and academic inadequancy.
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The future of an illusion: reconstituting Planned Parenthood v. Casey.
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LAW BETWEEN OPTIMALITY AND NORMATIVITY.
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Court-packing and compromise.
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That sick chicken won't hunt: the limits of a judicially enforced non-delegation doctrine.
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You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws.
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HATE SPEECH, LEGITIMACY, AND THE FOUNDATIONAL PRINCIPLES OF GOVERNMENT.
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Corporate speech & the rights of others.
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Me the people.
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On casebooks and canons or why Bob Jones University will never be part of the constitutional law canon.
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Free speech in political philosophy and its relation to American constitutional law: a consideration of Mill, Meiklejohn, and Plato.
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Not the King's Bench.
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La constitucion de los Estados Unidos en espanol: un servicio para el pueblo americano.
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The Brethren: Inside the Supreme Court.
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The Marbury mystery: why did William Marbury sue in the Supreme Court?
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Ordered liberty: a response to three views.
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Washington, Patton, Schwarzkopf and ... Ashcroft?
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Corporate religious liberty.
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There is no First Amendment overbreadth (but there are vague First Amendment doctrines); prior restraints aren't "prior"; and "as applied" challenges seek judicial statutory amendments.
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The passive-aggressive virtues: Cohens v. Virginia and the problematic establishment of judicial power.
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The nomination of Justice Brennan: Eisenhower's mistake? A look at the historical record.
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Brennan and Democracy.
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The Republic According to John Marshall Harlan.
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Necromancing the Equal Rights Amendment.
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Taxes, conscience, and the Constitution.
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Who teaches constitutional law?
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I'm even smarter than Bruce Ackerman: why the President can veto his own impeachment.
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Introduction.
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The office of the oath.
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Constitutional curiosities: a twenty-one question scavenger hunt.
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Why the Supreme Court should not have decided the presidential election of 2000.
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True God of the next justice.
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Coeur d'Alene, federal courts and the supremacy of federal law: the competing paradigms of Chief Justices Marshall and Rehnquist.
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Rational basis "plus".
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Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform.
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Constitutional law haiku.
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An empirical analysis of the confirmation hearings of the justices of the Rehnquist natural Court.
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Abortion and original meaning.
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Be careful what you wish for.
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What would Justice Powell do? The 'alien children' case and the meaning of equal protection.
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Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition.
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Originalism and the Good Constitution.
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"BUT MAYBE EVERYTHING THAT DIES SOMEDAY COMES BACK".
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GLIMPSES OF REPRESENTATION-REINFORCEMENT IN STATE COURTS.
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Eclecticism.
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Should Race Matter? Unusual Answers to the Usual Questions.
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The Federal Impeachment Process: A Constitutional and Historical Analysis.
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SEX, TRUMP, AND CONSTITUTIONAL CHANGE.
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The American Constitution and the Debate over Originalism.
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Grutter or otherwise: racial preferences and higher education.
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Schiavo and Klein.
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Our perfect, perfect Constitution.
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Hamdan's limits and the Military Commissions Act.
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The aggregate harmony metric and a statistical and visual contextualization of the Rehnquist court: 50 years of data.
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Rhetoric and the Rule of Law: A Theory of Legal Reasoning.
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Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.
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To Secure These Rights: The Declaration of Independence and Constitutional Interpretation.
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Terry v. Ohio in hindsight: the perils of predicting the past.
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The Constitution in Congress: The Federalist Period, 1789-1801.
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Political Political Theory: Essays on Institutions.
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The Interpretable Constitution.
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Legal Borderlands: Law and the Construction of American Borders.
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Fundamentally wrong about fundamental rights.
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"ORIGINALIST" JUSTICES AND THE MYTH THAT ARTICLE III "CASES" ALWAYS REQUIRE ADVERSARIAL DISPUTES.
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HATE SPEECH LAWS, LEGITIMACY, AND PRECAUTION: A REPLY TO JAMES WEINSTEIN.
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The apparent inevitability of mixed government.
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UNPRECEDENTED PRECEDENT: THE CASE AGAINST UNREASONED "SHADOW DOCKET" PRECEDENT.
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Abolishing judicial review.
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Parlor game.
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Reconceiving interpretive autonomy: insights from the Virginia and Kentucky resolutions.
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The legislative veto in times of political reversal: Chadha and the 104th Congress.
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Editor's note.
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Resolving political questions into judicial questions: Tocqueville's thesis revisited.
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Justice without justices.
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Puerto Rico and the Constitution: conundrums and prospects.
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The English Constitution.
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AFTER WORDS.
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Symposium foreword.
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Racial inclusion, exclusion and segregation in constitutional law.
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Comment on Shiffrin's thinker-based approach to freedom of speech.
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Revolution by Judiciary: The Structure of American Constitutional Law.
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Reply to critics.
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Justice Scalia and the art of rhetoric.
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American Constitutional Law, vol. 1.
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The interpretation of constitutional history, or Charles Beard becomes a fortuneteller (with an emphasis on free expression).
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Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom.
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Democracy, anti-democracy, and the canon.
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Does Footnote Four describe?
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A thinker-based approach to freedom of speech.
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MOSTLY SETTLED, BUT RIGHT FOR NOW.
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THE RULE OF LAW SOLD SHORT.
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Smokey and the Bandit in cyberspace: the dormant commerce clause, the Twenty-First Amendment, and state regulation of Internet alcohol sales.
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High Crimes and Misdemeanors: The Case Against Bill Clinton.
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Constitutional Law.
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Warren court precedents in the Rehnquist court.
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On being "bound thereby".
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Banning hate speech and the sticks and stones defense.
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THE FREEDOM OF NON-SPEECH: FREE SPEECH BEYOND WORDS.
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Secrecy and dishonesty: the Supreme Court, racial preferences, and higher education.
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On Jim Fleming's anti-originalism.
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Interpretation and philosophy: Dworkin's Constitution.
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Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.
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The Upside-down Constitution.
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Three arguments about war.
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Revenge of the triple negative: a note on the Brandeis brief in Muller v. Oregon.
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True blue.
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Popular constitutionalism contra populism.
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Religious Schools v. Children's Rights.
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Rights and Responsibilities.
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Would you, could you, change a thing?
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Ordered Liberty: Rights, Responsibilities, and Virtues.
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Ackermania or uncomfortable truths?
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ORIGINALISM OFF THE GROUND: A RESPONSE TO PROFESSORS BAUDE AND SACHS.
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The Chemical Weapons Convention: political and constitutional issues.
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WHO'S THE BIGOT? LEARNING FROM CONFLICTS OVER MARRIAGE AND CIVIL RIGHTS LAW.
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The Moral Tradition of American Constitutionalism: A Theological Interpretation.
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The Constitution and the annexation of Texas.
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"Justice delayed, justice denied": the fastest gun in the East (or at least on the Supreme Court).
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Republican constitutionalism.
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Family reunification and the security state.
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POLITICAL TRUST, SOCIAL TRUST, AND JUDICIAL REVIEW.
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Common law, civil law, and the administrative state: from Coke to Lochner.
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When the court has a party, how many "friends" show up? A note on the statistical distribution of amicus brief filings.
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Whose America?
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Court-packing and the Child Labor Amendment.
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Silent concurrences.
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AMNESTY AND SECTION THREE OF THE FOURTEENTH AMENDMENT.
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The Obama Administration, fundamental institutional change, and the constitutional lawmaking system.
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Affirmative refraction: Grutter v. Bollinger through the lens of The Case of the Speluncean Explorers.
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Gaylaw: Challenging the Apartheid of the Closet.
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The construction of original public meaning.
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The philosopher's brief.
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The gospel according to Dworkin.
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AGAINST HISTORICAL PRACTICE: FACING UP TO THE CHALLENGE OF INFORMAL CONSTITUTIONAL CHANGE.
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Rational basis revue.
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Divided suffrage.
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Suicide pact: new readings of the Second Amendment.
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Authorizing constitutional text on the purported Twenty-seventh Amendment.
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So much to rewrite, so little time....
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A Theory of Constitutional Rights.
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Charles A. Beard & the Columbia School of Political Economy: revisiting the intellectual roots of the Beardian thesis.
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Using Beard to overcome Beardianism: Charles Beard's forgotten historicism and the ideas-interests dichotomy.
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Beyond the Formalist-Realist Divide: The Role of Politics in Judging.
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The Committee of Detail.
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Fictional documentaries and truthful fictions: the death penalty in recent American film.
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Our (almost) perfect Constitution.
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Hamdan v. Rumsfeld: the functional case for foreign affairs deference to the executive branch.
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Constructing a new American constitution.
