Constitutional Law

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American Constitutionalism: Structures of Government (with Howard Gillman and Keith E. Whittington), Book Gallery (2012)

Constitutionalism in the United States is not determined solely by decisions made by the Supreme...

 

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Hollow Hopes and Exaggerated Fears: the Canon/Anticanon in Context, 125 Harvard Law Review Forum 33 (2011)

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional...

 

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Constitutional Democracy, Human Dignity, and Entrenched Evil, 38 Pepperdine Law Review 889 (2011)

The following essay pays tribute to Sandy Levinson's thoughts on constitutional compromises by paying tribute...

 

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Plus or Minus One: The Thirteenth and Fourteenth Amendments, 71 Maryland Law Review 12 (2011)
 

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A Tale Told by a President, 28 Yale Law & Policy Review: Inter Alia 13 (2010)

Part I of this essay makes the case for symbolic politics. Presidents often have political...

 

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Foreword: Our Paradoxical Religion Clauses, 69 Maryland Law Review 8 (2009)
 

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Running Cars, Constitutions and Metaphors into the Ground, 18 The Good Society 35 (2009)

Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that...

 

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Encyclopedia of the Supreme Court of the United States (with David S. Tanenhaus, Kay P. Kindred, Felice Batlan, and Alfred L. Brophy), (2008)

This 5-volume set focuses on the substance of American law, the processes that produce its...

 

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False Modesty: Felix Frankfurter and the Tradition of Judicial Restraint, Washburn Law Journal (2008)

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public...

 

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Matters of Judgment: The "Forum of Principle" Revisited, 2008 JD Alumni Magazine 42 (2008)
 

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The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 Annual Review of Law and Social Science 361 (2008)

This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from...

 

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The Price of Fame: Brown as Celebrity, 69 Ohio State Law Journal 939 (2008)

This essay examines the history of Brown I, Brown II, and Bolling in the Supreme...

 

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Foreword: Making Sense of an Eighteenth-Century Constitution in a Twenty-First-Century World, 67 Maryland Law Review 1 (2007)

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive...

 

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Looking off the Ball: Constitutional Law and American Politics, Oxford Handbook on Public Law (2007)

“Looking Off the Ball” details how and why constitutional law influences both judicial and public...

 

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"No Better Than They Deserve:" Dred Scott and Constitutional Democracy, 34 Northern Kentucky Law Review 589 (2007)
 

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Constitutional Theory Goes to Market, Schmooze 'tickets' (2006)
 

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Does it Really Matter? Conservative Courts in a Conservative Era, 75 Fordham Law Review 675 (2006)

This essay explores the likelihood that conservative federal courts in the near future will be...

 

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Dred Scott and the Problem of Constitutional Evil, Book Gallery (2006)

Dred Scott and the Problem of Constitutional Evil concerns what is entailed by pledging allegiance...

 

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Enumeration and Other Constitutional Strategies for Protecting Rights: the View from 1787/1791, 9 University of Pennsylvania Journal of Constitutional Law 357 (2006)

This paper interprets the constitution of 1791 in light of the constitution of 1787. The...

 

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From the Countermajoritarian Difficulty to Juristocracy and the Political Construction of Judicial Power, 65 Maryland Law Review 1 (2006)
 

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Legal, Strategic or Legal Strategy: Deciding to Decide during the Civil War and Reconstruction, The Supreme Court and American Political Development (2006)
 

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Popular Constitutionalism, Judicial Supremacy, and the Complete Lincoln-Douglas Debates, 81 Chicago Kent Law Review 923 (2006)
 

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Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching, 3 Perspectives on Politics 135 (2005)
 

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Counter-stories: Maintaining and Expanding Civil Liberties in Wartime, The Constitution in Wartime: Beyond Alarmism and Complacency (2005)
 

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Settling the West: The Annexation of Texas, The Louisiana Purchase, and Bush v. Gore, The Louisiana Purchase and American Expansion 1803-1898 (2005)
 

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Introduction: Ancients, Moderns and Guns, 12 William & Mary Bill of Rights Law Review 307 (2004)
 

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Clarence Thomas and the Perils of Amateur History, Rehnquist Justice: Understanding the Court Dynamic 70 (2003)
 

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Marbury versus Madison: Documents and Commentary (with Michael Perhac), Book Gallery (2002)

Marbury versus Madison combines documents and analytical essays timed for the bicentennial year (2003) of...

 

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Social Democracy and Constitutional Theory: An Institutional Perspective, 69 Fordham Law Review 1969 (2001)
 

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Thick and Thin: Interdisciplinary Conversations on Populism, Law, Political Science, and Constitutional Change, 90 Georgetown Law Journal 233 (2001)
 

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Naked Land Transfers and American Constitutional Development, 53 Vanderbilt Law Review 73 (2000)

The constitutional prohibition on naked land transfers, laws granting to B property that belonged to...

 

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Law and Sports Officiating: A Misunderstood and Justly Neglected Relationship, 16 Constitutional Commentary 293 (1999)
 

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Federalist or Friends of Adams: The Marshall Court and Party Politics, 12 Studies in American Political Development 229 (1998)
 

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Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 Constitutional Commentary 271 (1997)
 

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Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 Constitutional Commentary 291 (1996)
 

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Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics, Book Gallery (1996)

Mark Graber looks at the history of abortion law in action to argue that the...

 

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Old Wine in New Bottles: The Constitutional Status of Unconstitutional Speech, 48 Vanderbilt Law Review 349 (1995)

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common...

 

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The Passive-Aggressive Virtues: Cohen v. Virginia and the Problematic Establishment of Judicial Power, 12 Constitutional Commentary 67 (1995)
 

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Judicial Recantation, 45 Syracuse Law Review 807 (1994)
 

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A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", 10 Constitutional Commentary 87 (1993)
 

Political Science

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Redeeming and Living with Evil, Maryland Law Review (2012)
 

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A Tale Told by a President, 28 Yale Law & Policy Review: Inter Alia 13 (2010)

Part I of this essay makes the case for symbolic politics. Presidents often have political...

 
Introduction to Law's Allure Symposium: Law and Politics - An Old Distinction, New Problems, 35 Law & Social Inquiry 1025 (2010)
 

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Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching, 3 Perspectives on Politics 135 (2005)
 

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Settling the West: The Annexation of Texas, The Louisiana Purchase, and Bush v. Gore, The Louisiana Purchase and American Expansion 1803-1898 (2005)
 

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Thick and Thin: Interdisciplinary Conversations on Populism, Law, Political Science, and Constitutional Change, 90 Georgetown Law Journal 233 (2001)
 

Legal History

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American Constitutionalism: Structures of Government (with Howard Gillman and Keith E. Whittington), Book Gallery (2012)

Constitutionalism in the United States is not determined solely by decisions made by the Supreme...

 

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Hollow Hopes and Exaggerated Fears: the Canon/Anticanon in Context, 125 Harvard Law Review Forum 33 (2011)

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional...

 

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Plus or Minus One: The Thirteenth and Fourteenth Amendments, 71 Maryland Law Review 12 (2011)
 

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James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25, 88 Oregon Law Review 95 (2009)

James Buchanan is often credited with being the unlikely savior of judicial review in early...

 

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Encyclopedia of the Supreme Court of the United States (with David S. Tanenhaus, Kay P. Kindred, Felice Batlan, and Alfred L. Brophy), (2008)

This 5-volume set focuses on the substance of American law, the processes that produce its...

 

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Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited, 21 Constitutional Commentary 485 (2004)

This paper explores whether national political questions during the second party system were resolved into...

 

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Federalist or Friends of Adams: The Marshall Court and Party Politics, 12 Studies in American Political Development 229 (1998)
 

Civil Rights

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Transforming Free Speech; the Ambiguous Legacy of Civil Libertarianism, Book Gallery (1991)

Contemporary civil libertarians claim that their works preserve a worthy American tradition of defending free-speech...

 

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The Jacksonian Makings of the Taney Court, (2005)

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional...

 

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Antebellum Perspectives on Free Speech, All Faculty Publications (2002)

Book review of Free Speech: "The People's Darling Privilege": Struggles for Freedom of Expression in...

 

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The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 Studies in American Political Development 35 (1993)