A Pitfall of Constitutional Analysis

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. Ken Rhodes says:

    Mr. Bagehot wrote “The difficulty is that the object is in constant change. An historical writer does not feel this difficulty…etc.”

    In a brief paragraph, Mr. Bagehot gives short shrift to both the scholars of history and the legal scholars and the courts of today. Even the hardest of the hard sciences, physics, is in constant flux. The historian can tell you with surety what Galileo wrote about planetary motion, but trying to figure out how the universe was thought to work at any moment in time is challenging. The reason we still have historians (scholars, that is, not simply pop writers) is that things were never so simple as we wish they were.

    And why would we need SCOTUS if “the Constitution worked in such a manner” at a given moment in time, where the moment could be chosen to be NOW? Once we know for sure “how the Constitution works,” we could simply agree to let it KEEP working that way for a while, and the nine elders could take a nice long vacation. But only in our dreams is the world so nice and simple that we can say we know how it works. Meanwhile, we have honest and true advocates on opposite sides of important issues, each making sound and well-supported arguments for their view, and we are left in doubt, wondering “how is the Constitution really supposed to work?”

    Our world is vastly complex, and it didn’t just get that way recently.