Constitutionalism’s Wrong Turn: Legal Rather Than Political Supremacy

Brian Christopher Jones

Constitutionalism has taken a wrong turn: from political to legal supremacy. In doing this, it has allowed an unaccountable and irremovable power to once again become the masters of our constitutional states. It has shed the divine right of kings, only to replace it with a group of unelected and untouchable sovereigns. It has allowed…

“Critical Legal Studies, Again?” “Again and Again!”

Evan D. Bernick

From Parchment to Dust (“FPD”) is a CLS book. More specifically, it is a work of critical constitutionalism that applies to constitutional decision-making characteristically critical insights about the indeterminacy of law, the political nature of legal decision-making, and the disutility of rights. Part I of this Review summarizes Seidman’s argument for constitutionalism skepticism. Part II…

Clause Essentialism and the Third Reconstruction

Anthony Michael Kreis

Reading Constructing Basic Liberties, one greatly appreciates how Fleming’s defense of substantive due process is doctrinally grounded. The book focuses on case law development in the Supreme Court rather than attempting to create some new constitutional theory from the 40,000-foot level to advance common law constitutionalism. The book deftly articulates a defense of a liberal…

Tempering Arbitrary Power: A Moral Theory of the Rule of Law

Brian Z. Tamanaha

Postema’s aim is to respond to threats to and degradation of the rule of law around the world. “These developments represent a grave threat not just to institutions designed to serve the rule of law but to our very understanding of the ideal,” he writes. “To answer fundamental threats to the rule of law we…