Are Judges Really More Principled than Voters?

Chris Eisgruber\u27s Constitutional Self-Government gives federal judges broad discretion to read what they take to be our moral convictions into the United States Constitution

The Unwritten Constitution for Admitting States

The United States has experimented with several different constitutions for adding states. Of all of these regimes, the shortest lived was also the one selected by the Federalist drafters of the Constitution. Under this regime, Article IV, Section 3 bestowed on Congress broad power to govern new territories as colonies of the original states, allowing Congress to place any conditions that they pleased on their admissions. This regime was created by Federalists, like Gouvernour Morris, who were suspicious of Scots-Irish frontiersmen and eager to settle western territory using land companies who would insure that new settlers were deferential to Federalist leadership back east and loyal to the national government. Whatever its merits in terms of text and original understanding, however, the Federalist constitution of company towns was quickly supplanted by a constitution of popular sovereignty. Initially devised by the Northern Democratic Party between 1845 and the Civil War to overcome intraparty divisions over slavery, the Republican Party preserved the basic structure of popular sovereignty after the Civil War to become the unwritten constitution for adding states today. Our national experience with the constitution of state admissions is that cross-partisan constitutional conventions, not text or original understanding, are the real foundations of durable constitutional rules

Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar\u27s Analysis of Romer

As I first discovered as a law student in Professor Amar\u27s classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar\u27s legal analysis, even when he is attacking one\u27s own arguments. So my pleasure at reading Professor Amar\u27s analysis of the Court\u27s decision in Romer v. Evans was only partly dampened by his disapproval of the respondents\u27 brief that I and other plaintiffs\u27 counsel filed with the Court. According to Amar, this respondents\u27 brief provided the Court with so little help that it had to rely on an entirely different and much sounder argument - an argument rooted in the U.S. Constitution\u27s prohibition on attainder, contained in Article I, sections 9 and 10. Amar maintains that (1) contrary to Justice Scalia\u27s vituperative dissent, the attainder argument provides an intellectually compelling basis for believing that Amendment 2 is unconstitutional, and (2) the Romer decision, correctly interpreted, adopted precisely this argument. Amar\u27s revival of the Attainder Clauses is classically Amaresque: it talces constitutional text and structure seriously and it provides an original and sensitive reading of specific constitutional clauses and a careful understanding of their structural relationships. However, as much as I appreciate his elegant and astute reading of the Attainder Clauses, I think in the end that his application of these clauses to Amendment 2 and his reading of Romer are unconvincing. The difficulty with his argument is that, as Amar notes, the Attainder Clauses prohibit state and federal legislation from naming persons and singling them out for distinctive treatment. As explained below, a law names persons only if it defines a closed class of persons with some fixed characteristic - a class the entire membership of which could be known (at least in theory) by the legislators at the moment when the law is enacted

Truth or Consequences? the Inadequacy of Consequentialist Arguments Against Multicultural Relativism: A Review Essay Of: Beyond All Reason: The Radical Assault on Truth in American Law. by Daniel Farber & Suzanna Sherry.

Truth or Consequences? The Inadequacy of Consequentialist Arguments Against Multicultural Relativism: a review essay of: Beyond all reason: the radical assault on truth in American law. By Daniel Farber & Suzanna Sherry. New York, NY: Oxford University Press. 1997. Pp. 208