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The Parts We Skip: A Taxonomy of Constitutional Irrelevancy

A “Version” of the Constitution On January 6, 2011, for the first time in the history of Congress, the Constitution was read out loud on the House floor.[1] “We hope,” said Rep. Bob Goodlatte, who organized the event, “this will inspire many more Americans to read the Constitution.”[2] There are millions of pocket-sized Constitutions in…

McCulloch v. Marbury

Some are born great, some achieve greatness, and some have greatness thrust upon them. —William Shakespeare, Twelfth Night, II.V Introduction: Marbury’s Greatness Marbury v. Madison is a great case.[1] That much is undeniable. It is “widely regarded today as the most important case in American constitutional history.”[2] Some enthusiasts go farther; in 1901, an Arkansas…

Originalism Off the Ground: A Response to Professors Baude and Sachs

Eric J. Segall* Professors Will Baude and Stephen Sachs are a legal realist’s worst nightmare. In their Northwestern Law Review essay “Grounding Originalism,”[1] they continue their Arthurian quest to convince the legal world that originalism has been and currently is our law. They denote this effort a “positivist” account of our legal practices and claim…

How “Commerce Among the Several States” Became “Interstate Commerce,” and Why it Matters

Conrad J. Weiler, Jr.* Introduction Outline This Introduction briefly discusses the significance of the Constitutional “[p]ower . . . [t]o regulate [c]ommerce . . . among the several states” and argues that this, the actual language of the Constitution, was understood to have and has a broader meaning than the nearly universally accepted but quite unoriginal substitute language, “interstate…

In Honor of a Simple-Minded Originalist

Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander. Edited by Heidi M. Hurd.[1] Cambridge University Press. 2019. Pp. xxvi + 463.  $110.00 (Cloth). James Allan[2] In May, 2017 the Yale Law School’s Center for Law and Philosophy, together with the University of Illinois’ Program in Law and Philosophy, co-hosted a conference…

Justice Holmes’ Logic of Force

OLIVER WENDELL HOLMES JR. AND LEGAL LOGIC. Frederic R. Kellogg.[1] Chicago, IL: University of Chicago Press, 2018. Pp. 229. $45.00 (Hardcover). Benjamin Patrick Newton[2] FORCE OF LOGIC Skepticism is a defining characteristic of the jurisprudence of Oliver Wendell Holmes Jr.; but is it one born of deduction or induction? Induction, argues Frederic R. Kellogg, compelled…

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