Against Historical Practice: Facing Up to the Challenge of Informal Constitutional Change

Stephen M. Griffin* Contentious disputes over war powers and judicial nominations in the Obama and Trump administrations as well as recent Supreme Court cases have drawn increased attention to the use of historical “practice” in American constitutional law. The use of governmental practice to inform legal analysis has a long pedigree in the American constitutional…

The Structure of Interpretive Revolutions

A. Jeremy Telman[1] Introduction According to Lee Strang, “[o]riginalism’s promise is to make sense of our constitutional practice while, at the same time, painting it in its best light” (p. 2). Professor Strang’s book thus strives both to persuade his readers that originalism is our law (p. 2) and that interpreting the Constitution in accordance with…

Originalism Is a Successful Theory (in Part) Because of Its Complexity: A Response to Professor Telman

Lee J. Strang* Introduction Professor Telman’s review of Originalism’s Promise: A Natural Law Account of the American Constitution[1] is thoughtful—it identifies positive contributions made by Originalism’s Promise and offers pointed criticisms where Professor Telman believes its arguments fall short. Professor Telman’s review is also an excellent example of the genre because it goes further and…

Courts and Foreign Affairs: “Their Historic Role”

Michael D. Ramsey[1] In a November 2019 address to the Federalist Society’s National Lawyers Convention, U.S. Attorney General William Barr declared (among other things) that U.S. courts have taken on too great a supervisory role over the President, especially in foreign affairs.[2] Coincidentally, a book published two months earlier argued the exact opposite. In Restoring…

Liberalism and the Distinctiveness of Religious Belief

Abner S. Greene[1] Introduction Every person reading this Review will have pondered, and perhaps resolved, his or her religious identity. Some are devout, and their relationship with and faith in God—in a higher power, an extrahuman source of generative and normative authority—is of central importance to who they are as human beings. Others are still…

Who Is to Be Master: Accounting for How the Supreme Court Reads the American Constitution

André LeDuc[1] “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” Lewis…