Law Commons^™

Canadian Constitutional Law, Fourth Edition, Patrick Macklem, Carol Rogerson, Joel Bakan, Jean Leclair, John Borrows, Ian Lee, Sujit Choudhry, Richard Moon, Robin Elliot, R. C. B. Risk, Jean-François Gaudreault-Desbiens, Kent Roach, Donna Greschner, Bruce Ryder, Patricia Hughes, David Schneiderman, Lorraine Weinrib

Bruce B. Ryder

In its 4th edition, Canadian Constitutional Law continues to offer a truly national perspective — drawing on an editorial team that is rich with regional, linguistic, and scholarly diversity. This edition remains true to the structure and purposes of previous editions, especially with regard to the editors’ commitment to the idea that understanding constitutional history is critical to comprehending the present and future of Canadian constitutional law.

A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla

Rod Smolla

Not available.

Saving Originalism, Robert J. Delahunty, John Yoo

John C Yoo

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, …

Rethinking The New Deal Court: The Structure Of A Constitutional Revolution, Barry Cushman

Barry Cushman

This book challenges the prevailing account of the Supreme Court of the New Deal era, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In the conventional view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New …

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, …

Federalism, Anthony Bellia

Anthony J. Bellia

This exciting new book by A.J. Bellia is a unique collection of legal and scholarly materials intended for use in a range of courses, including Constitutional Law, Federalism, Federalism History, Federalism Theory, and Comparative Federalism. The first book of its kind, Federalism spans traditional subject areas, which allows a deeper and richer treatment of the subject of federalism.

What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson

Robert G. Natelson

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized. The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that …

The Clerks Of The Four Horsemen (Part Ii, George Sutherland And Pierce Butler), Barry Cushman

Journal Articles

The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …

The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan

Ruth Buchanan

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …

The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

Conservative and libertarian constitutional writers have often pined for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would …

Federalism As A Constitutional Principle, Ernest A. Young

Faculty Scholarship

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and …

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …