Law Commons^™

Framing The Framer: A Commentary On Treanor’S Gouverneur Morris As “Dishonest Scrivener”, David S. Schwartz

Michigan Law Review Online

Dean William Treanor’s masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding, one that will have a profound impact on how we read and understand the Constitution. Treanor’s keen analyses and his presentation of important-but-overlooked historical details support the article’s central and historically significant arguments. Treanor’s research is at the forefront of emerging scholarship seeking to recover “the Federalist Constitution,” a body of constitutional interpretations favored by those Framers who advocated a strong national government. These nationalist interpretations were subsequently emphasized by …

Akhil Amar’S Unusable Past, Gregory Ablavsky

Michigan Law Review

A Review of The Words That Made Us: America’s Constitutional Conversation, 1760–1840. By Akhil Reed Amar.

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

Articles

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott

Articles

The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.

Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz

Michigan Law Review

Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.

Fixing America's Founding, Maeve Glass

Michigan Law Review

Review of Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.

Saving Originalism, Robert J. Delahunty, John Yoo

Michigan Law Review

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

Constitutional Theology: The Revival Of Whig History In American Public Law, William J. Novak

Articles

One of the things I admire about the profession of history is that there are no admissions requirements. Like being a novelist or a member of Congress, the door is open to almost anyone who wants to try their hand at the art or craft. In a world of an increasingly specialized division of professional labor, that is a relatively rare and special thing. Though I teach in a law school, for example, I would be in trouble if I tried to pass myself off as a lawyer. Though I could perhaps irritatingly refer to myself as a doctor owing …

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …

Executive Power Essentialism And Foreign Affairs, Curtis A. Bradley, Martin S. Flaherty

Michigan Law Review

Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity. It holds no less true for modern constitutions, including the Constitution of the United States. Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism. One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which provides that …

Taking Decisions Seriously, Richard D. Friedman

Reviews

The New Deal era is one of the great turning points of American constitutional history. The receptivity of the Supreme Court to regulation by state and federal governments increased dra- matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became Chief Justice in 1930 was similar in most respects to that of the beginning of the twen- tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in …

How Serious Is The Threat Of Impeachment? And To Whom?, Harold Baer Jr.

Michigan Law Review

While a slender volume, The Federal Impeachment Process offers the reader a variety of different insights on this topic, beginning with the debates at the Constitutional Convention and running to the modem-day practice of impeachment trials by committee rather than by the full senate. Impeachment is valuable reading, not just for those of us interested in American history, or those of us who are public officers of the United States, but for every American who wants to understand his or her morning newspaper better. Not only does it lift the veil of darkness surrounding the impeachment process, it provides a …

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …

The Constitution Besieged: The Rise And Demise Of Lochner Era Police Powers Jurisprudence, C. Ian Anderson

Michigan Law Review

A Review of The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman

Strangers On A Train, Peirre N. Leval

Michigan Law Review

A Review of Make No Law: The Sullivan Case and the First Amendment by Anthony Lewis

The Beginning Of The Constitutional Era: A Bicentennial Comparative Study Of The American And French Constitutions, Rett R. Ludwikowski

Michigan Journal of International Law

This article is intended only to be introductory. The author is quite aware that the period surrounding the creation of the American Constitution has been profoundly studied; thorough analysis has been provided concerning both the origin and historical development of the American Constitution, as well as the intellectual background of the "founding generation." Characteristically, these studies have focused on the "American constitutional tradition," which means that they have been limited to little more than two centuries of colonial experience. This essay follows a different vein of inquiry. The author's purpose is not to add another article to the numerous works …

Reconstituting "Original Intent": A Constitutional Law Encyclopedia For The Next Century, David M. Skover

Michigan Law Review

A Review of Encyclopedia of the American Constitution by Leonard Levy, Kenneth Karst and Dennis Mahoney

The Enduring Constitution: A Bicentennial Perspective, Robert F. Drinan

Michigan Law Review

A Review of The Enduring Constitution: A Bicentennial Perspective by Jethro K. Lieberman

Toleration And The Constitution, Judith L. Hudson

Michigan Law Review

A Review of Toleration and the Constitution by David A.J. Richards

No State Shall Abridge: The Fourteenth Amendment And The Bill Of Rights, Mark A. Grannis

Michigan Law Review

A Review of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights by Michael Kent Curtis

The Rise And Fall Of The "Doctrine" Of Separation Of Powers, Philip B. Kurland

Michigan Law Review

As the Constitution of the United States nears its two hundredth anniversary, there is a frenzy of celebration. However awesome the accomplishment, I submit that it is no slander to recognize that the 1787 document was born of prudent compromise rather than principle, that it derived more from experience than from doctrine, and that it was received with an ambivalence in no small part attributable to its ambiguities. Indeed, its most stalwart supporters doubted its capacity for a long life. It should not be surprising, then, that even today there is disagreement over whether the Constitution of 1787 is now …

Governmental Secrecy And The Founding Fathers: A Study In Constitutional Controls, Michigan Law Review

Michigan Law Review

A Review of Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls by Daniel N. Hoffman

Habeas Corpus: Its History And Its Future, Charles Alan Wright

Michigan Law Review

A Review of A Constitutional History of Habeas Corpus by William F. Duker

Empty History, Erwin Chermerinsky

Michigan Law Review

A Review of Politics and the Constitution in the History of the United States, Volume 3: The Political Background of the Federal Convention by William Winslow Crosskey and William Jeffrey, Jr.

Article V: Changing Dimensions In Constitutional Change, Francis H. Heller

University of Michigan Journal of Law Reform

To anyone raised under the Constitution of the United States, that document's declaration that it is "the supreme law of the land" may appear as a commonplace assertion. In some other nations the constitution is not viewed as law, but is seen as a primarily political document. In fact, some foreign constitutions are formally proclaimed to be "political constitutions." The writers of the American Constitution were well aware that they were engaged in fashioning an arrangement for the exercise of political functions and the peaceful adjustment of political conflict. And, however much validity there continues to be to de Tocqueville's …

Conscription And The Constitution: The Original Understanding, Leon Friedman

Michigan Law Review

The general words of the Constitution-famous phrases such as "due process," "freedom of speech," "interstate commerce," and "raise and support armies"-are not self-evident concepts. As Justice Frankfurter said, "The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?" While the framers obviously could not have foreseen the discovery of electromagnetic radio waves or atomic energy, and had no "intent" concerning …

Emerson: Political And Civil Rights In The United States, T. A. Smedley

Michigan Law Review

A Review of Political and Civil Rights in the United States. 3d ed. 2 vols. by Thomas I. Emerson, David Haber, and Norman Dorsen