David S. Schwartz – Constitutional Commentary

Making Sense of 303 Creative: A Free Speech Solution in Search of a Problem

The 303 Creative decision may have more to do with resolving a specific battle in the “culture wars” than with resolving the tension between free speech and antidiscrimination law or creating a new line of free speech doctrine. Judicial norms push the Court to speak in terms of generalizable principles, and the consumers of Court opinions normally take the Court at its word by seeking to doctrinalize those principles or harmonize the new case with existing doctrine.

Reconsidering the Constitution’s Preamble: The Words that Made Us U.S.

David S. Schwartz[1] Abstract The Preamble to the U.S. Constitution is wrongly dismissed by conventional doctrine as a mere stylistic flourish. But the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style’s final version, demonstrate that…