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The Declaration Of Independence As Canon Fodder, Mark A. Graber Oct 2013

The Declaration Of Independence As Canon Fodder, Mark A. Graber

Mark Graber

No abstract provided.


The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, And The Direction Of Judicial Decision Making, Mark A. Graber Apr 2013

The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, And The Direction Of Judicial Decision Making, Mark A. Graber

Mark Graber

This Article offers a more sophisticated account of elite theory that incorporates the crucial insights underlying claims that Justices with life tenure will protect minority rights and claims that the Supreme Court follows the election returns. Put simply, the direction of judicial decision making at a given time reflects the views of the most affluent and highly educated members of the dominant national coalition. The values that animate the elite members of the dominant national coalition help explain the direction of judicial decision making for the last eighty years. During the mid-twentieth century, most Republican and Democratic elites held more ...


Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber May 2012

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Mark Graber

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of ...


Redeeming And Living With Evil, Mark A. Graber May 2012

Redeeming And Living With Evil, Mark A. Graber

Mark Graber

Jack Balkin’s Constitutional Redemption and Sandy Levinson’s Constitutional Faith understand the problem of constitutional evil quite differently than Dred Scott and the Problem of Constitutional Evil. Balkin and Levinson regard constitutional redemption and faith as rooted in the possibility that Americans will eventually defeat evil. Constitutional Evil takes the far more pessimistic view that evil will never be defeated. Constitutional faith and redemption in our permanently fallen state is rooted in the possibility that Americans will find ways of living with each other peaceably knowing that the price of union is the continual obligation to make what the ...


Federalist Or Friends Of Adams: The Marshall Court And Party Politics, Mark A. Graber Apr 2012

Federalist Or Friends Of Adams: The Marshall Court And Party Politics, Mark A. Graber

Mark Graber

No abstract provided.


Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber Jan 2012

Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber

Mark Graber

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to ...


Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber Jan 2012

Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Mark Graber

The consensus that the Fourteenth Amendment incorporates the Thirteenth Amendment has come under sharp criticism in recent years. Several new works suggest that the Thirteenth Amendment, properly interpreted, protects some substantive rights not protected by the Fourteenth Amendment. Some of this scholarship is undoubtedly motivated by an effort to avoid hostile Supreme Court precedents. Nevertheless, more seems to be going on than mere litigation strategy. Scholars detected different rights and regime principles in the Thirteenth Amendment than they find in the Fourteenth Amendment. The 2011 Maryland Constitutional Law Schoomze, to which this is an introduction, provided an opportunity for law ...


A Tale Told By A President, Mark A. Graber Nov 2011

A Tale Told By A President, Mark A. Graber

Mark Graber

Part I of this essay makes the case for symbolic politics. Presidents often have political reasons for subjecting courts to mere words. Part II makes the case for constitutional hardball.


Antebellum Perspectives On Free Speech, Mark A. Graber Oct 2011

Antebellum Perspectives On Free Speech, Mark A. Graber

Mark Graber

Book review of Free Speech: "The People's Darling Privilege": Struggles for Freedom of Expression in American History by Michael Kent Curtis (Duke University Press, 2000).


Foreword: Our Paradoxical Religion Clauses, Mark A. Graber Aug 2010

Foreword: Our Paradoxical Religion Clauses, Mark A. Graber

Mark Graber

No abstract provided.


Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber Dec 2009

Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber

Mark Graber

Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that desperately needs repairs. “[R]elying on the present Constitution.” he writes, “is similar to driving a car with very bad brakes and slick tires.” Much commentary on Our Undemocratic Constitution implicitly challenges the automotive metaphor. The Constitution of the United States, supporters profess, is not really as bad as Levinson would have us believe. The following pages take a road less traveled. Ancient constitutional institutions in the United States are suffering from severe wear and tear. Nevertheless, decisions to drive a comparatively unsafe car are ...


The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber May 2009

The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber

Mark Graber

This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and ...


The Price Of Fame: Brown As Celebrity, Mark A. Graber Apr 2009

The Price Of Fame: Brown As Celebrity, Mark A. Graber

Mark Graber

This essay examines the history of Brown I, Brown II, and Bolling in the Supreme Court of the United States. Enduring precedents, the analysis suggests, go through three stages. In the first stage, they fight for survival. This describes Brown during the first decade after that decision was handed down. No Supreme Court Justice asserted, “Brown should be overruled,” but many citations to Brown came in the context of political efforts to reverse or marginalize that decision. In the second stage, precedents fight for extension. This describes Brown in the later Warren and Burger years. Civil rights activists insisted that ...


Matters Of Judgment: The "Forum Of Principle" Revisited, Mark A. Graber Apr 2009

Matters Of Judgment: The "Forum Of Principle" Revisited, Mark A. Graber

Mark Graber

No abstract provided.


Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber Jul 2008

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Mark Graber

No abstract provided.


Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber Jul 2008

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Mark Graber

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted ...


False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber Jul 2008

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Mark Graber

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in ...


Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber Jul 2008

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Mark Graber

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration ...


Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber Jul 2008

Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber

Mark Graber

No abstract provided.


Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber Jul 2008

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Mark Graber

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally ...


The Jacksonian Makings Of The Taney Court, Mark A. Graber Jul 2008

The Jacksonian Makings Of The Taney Court, Mark A. Graber

Mark Graber

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison ...


Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber Jul 2008

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Mark Graber

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the ...


Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber Jul 2008

Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber

Mark Graber

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech inconsistent with what they believe are basic constitutional values. This claim repudiates a basic principle of American constitutionalism, the faith that "self-evident" constitutional values will triumph in the constitutional marketplace of ideas. The ideological ...


Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber Jul 2008

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Mark Graber

No abstract provided.