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Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber Jan 2007

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

Faculty Scholarship

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 ...


Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib Jan 2007

Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib

Faculty Scholarship

In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Although they claim to want to make originalists and pragmatists friends, nothing about their project is likely to accomplish this matchmaking. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. At the core ...


Mostly Unconstitutional: The Case Against Precedent Revisited, Gary Lawson Jan 2007

Mostly Unconstitutional: The Case Against Precedent Revisited, Gary Lawson

Faculty Scholarship

In Part I of this Article, the author briefly recaps the argument against precedent that the author sketched in The Constitutional Case Against Precedent. Although the author’s purpose here is to refine that argument, the author still believes that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, the author surveys different possible grounds for the practice of precedent. In Part III, the author dismisses the possibility that the Constitution or some other controlling legal source affirmatively commands the use ...


The Perils Of Theory, Peter L. Strauss Jan 2007

The Perils Of Theory, Peter L. Strauss

Faculty Scholarship

This paper is a contribution to a Symposium on Professor Bradford Clark's essay, "Separation of Powers as a Safeguard of Federalism," 79 Tex. L. Rev. 1321 (2001). Clark's essay, focused on original understandings of the Supremacy Clause, gives a cogent account of its politics and the centrality of its language to the most fundamental of constitutional compromises, that between the large states and the smaller states fearing domination in a world of simple democracy. It was not only that they won Senate representation by states, not populations, that could never be changed by amendment; it was also, and ...