University of Maryland Francis King Carey School of Law


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Mark Graber

University System of Maryland Regents Professor

Phone: (410) 706-2767
Fax: (410) 706-6644
mgraber @

Office: 234

AB, 1978, Dartmouth College
MA and PhD, 1986 and 1988, Yale University
JD, 1981, Columbia University Law School

Curriculum Vitae

Biography | Selected Publications

Professor Graber held a faculty position in the Department of Government and Politics at the University of Maryland, College Park from 1993-2007 and taught at the University of Maryland School of Law as an adjunct professor beginning in the fall of 2002. In 2004, he was appointed Professor of Government and Law at the School of Law, a title he held until May 1, 2015 at which time he received an appointment as the Jacob A. France Professor of Constitutionalism. In 2016, he was named Regents Professor, one of only seven Regents Professors in the history of the University System of Maryland and the only Regents Professor on the UMB campus. He served as associate dean for research and faculty development from 2010 to 2013. He has also been one of the organizers of the annual Constitutional Law "Schmooze", which attracts scholars from across the country to the law school.

Professor Graber is recognized as one of the leading scholars in the country on constitutional law and politics. He is the author of A New Introduction to American Constitutionalism, forthcoming in 2013 from Oxford University Press, and co-editor (with Keith Whittington and Howard Gillman) of American Constitutionalism: Structures and Powers and American Constitutionalism: Rights and Powers, both also from Oxford University Press. He is presently working on Forged in Failure, a book that will examine how much constitutional change in the United States has been caused by the failure of constitutional practices to function as expected.

Professor Graber is also the author of scores of articles, including "The Non-Majoritarian Problem: Legislative Deference to the Judiciary" in Studies in American Political Development, "Naked Land Transfers and American Constitutional Development", published in the Vanderbilt Law Review and "Resolving Political Questions into Judicial Questions: Tocqueville’s Aphorism Revisited", published by Constitutional Commentary.

During fall 2013, he was a visiting faculty member at the University of Virginia School of Law.


Constructing Constitutional Politics (forthcoming).

Editor, The Oxford Handbook of the U.S. Constitution (2015) (with Mark Tushnet & Sanford Levinson). [Abstract]

A New Introduction to American Constitutionalism (2013). [Abstract]

American Constitutionalism: Volume II, Rights and Liberties (2012) (with Howard Gillman & Keith E. Whittington). [Abstract]

American Constitutionalism: Volume I, Structures of Government (2012) (with Howard Gillman & Keith E. Whittington). [Abstract]

Dred Scott and the Problem of Constitutional Evil (2006). [Abstract]

Marbury versus Madison: Documents and Commentary (2002) (with Michael Perhac). [Abstract]

Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics (1996). [Abstract]

Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (1991). [Abstract]

Book Chapters

Race and American Constitutional Exceptionalism, in Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., 2018).

Separation of Powers, in The Cambridge Companion to the United States Constitution (Karen Orren & John Compton eds., 2018).

Seeing, Seizing, and Searching Like a State: Constitutional Developments from the Seventeenth Century to the End of the Nineteenth Century, in The Cambridge Handbook of Surveillance Law (David C. Gray & Stephen E. Henderson eds., 2017).

Andrew Jackson, in The Presidents and the Constitution: A Living History (Ken Gormley ed., 2016).

James Madison's Republican Constitutionalism, in Constitutions and the Classics 327 (Denis Galligan ed., 2015).

Almost Legal: Disobedience and Partial Nullification in American Constitutional Politics and Law, in Nullification and Secession in Modern Constitutional Thought (Sanford Levinson ed., 2016).

Constitutional Law and American Politics, in The Oxford Handbook of Law and Politics (Keith E. Whittington et al. eds., 2010). [Full Text]

John Brown, Abraham Lincoln, Dred Scott and the Problem of Constitutional Evil, in The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law 49 (David Thomas Konig et al. eds., 2010).

Foreword: The Banality of Constitutional Evil, in Earl Maltz, Slavery and the Supreme Court, 1825-1861 (2009).

Legal, Strategic, or Legal Strategy: Deciding to Decide During the Civil War and Reconstruction, in The Supreme Court and American Political Development, (Ronald Kahn & Ken Kersch, eds. 2006). [Full Text]

The Right to Vote and Other ‘Anomalies:’ Protecting and Expanding Civil Liberties in Wartime, in At War with Civil Rights and Civil Liberties (John Stack & Thomas Baker, eds. 2006).

From Republic to Democracy : The Judiciary and the Political Process, in The Judicial Branch (Kermit Hall & Kevin McGuire, eds. 2005).

Settling the West: The Annexation of Texas, the Louisiana Purchase and Bush v. Gore, in The Louisiana Purchase and American Expansion 1803-1898 (Sanford Levinson & Bartholomew H. Sparrow eds., 2005).

Bush v. Gore and the annexation of Texas, in The Louisiana Purchase and American Expansion (Bartholomew Sparrow & Sanford Levinson, eds. 2005).

Counterstories: Protecting and Expanding Civil Liberties in Times of War, in The Constitution in Wartime: Beyond Alarmism and Complacency (Mark Tushnet, ed. 2005). [Full Text]

Justice Thomas and the Perils of Amateur History, in Rehnquist Justice: Understanding the Court Dynamic (Earl Maltz, ed. 2003).

The Law and Politics of Judicial Review, in Separation of Powers: Documents and Commentary (Katy Harriger, ed. 2003).

Jewish Voices and Religious Freedom: A Jewish Critique of Critical Jewish Thinking, in Law and Religion: A Critical Anthology (Stephen M. Feldman ed., 2000).


The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, 21 Chapman Law Review 133 (2018).

Teaching the Forgotten Fourteenth Amendment and the Constitution of Memory, 62 St. Louis University Law Journal 639 (2018).

The Collapse of the New Deal Conceptual Universe: The Schmooze Project, 77 Maryland Law Review 108 (2017). [Full Text]

Judicial Supremacy Revisited: Independent Constitutional Authority in American Constitutional Law and Practice, 58 William & Mary Law Review 1549 (2017).

Judicial Supremacy and the Structure of Partisan Conflict, 50 Indiana Law Journal 141 (2016).

Young Jeffersonians and Adult Marshallians: Constitutional and Regime Transitions in Public Schools and Nation States, 1 Constitutional Studies 1 (2016).

The Second Freedmen's Bureau Bill's Constitution, 94 Texas Law Review 1361 (2016). [Full Text]

The Declaration of Independence and Contemporary Constitutional Pedagogy, 89 Southern California Law Review 509 (2016). [Full Text]

State Constitutions as National Constitutions, 69 Arkansas Law Review 371 (2016). [Full Text]

Book Review, 33 Law & History Review 235 (2015) (reviewing J. David Alvis et al., The Contested Removal Power, 1789-2010 (2013).

Foreword: Private and Public Revisited Once Again, 75 Maryland Law Review 135 (2015). [Full Text]

Harperooning, Groeing and Browning the First Amendment, 2015 University of Illinois Law Review Slip Opinions 75. [Full Text]

The Declaration of Independence as Canon Fodder, 49 Tulsa Law Review 469 (2014) (book review). [Full Text]

Beard and Uber-Beard, 29 Constitutional Commentary 293 (2014). [Full Text]

Book Review, 2 American Political Thought 163 (2013) (reviewing Tamara R. Piety, Brandishing the First Amendment: Commercial Expression in America (2012)).

Executive Power: From the Constitutional Periphery to the Constitutional Core, 73 Maryland Law Review 1 (2013). [Full Text]

The Coming Constitutional Yo-Yo?: Elite Opinion, Polarization, and the Direction of Judicial Decision Making, 56 Howard Law Journal 661 (2013). [Full Text]

Redeeming and Living with Evil, 71 Maryland Law Review 1073 (2012). [Full Text]

Subtraction by Addition? The Thirteenth and Fourteenth Amendments, 112 Columbia Law Review 1501 (2012). [Full Text]

Constitutional Democracy, Human Dignity, and Entrenched Evil, 38 Pepperdine Law Review 889 (2011). [Full Text]

Hollow Hopes and Exaggerated Fears: The Canon/Anticanon in Context, 125 Harvard Law Review Forum 33 (2011) [Full Text]

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

Book Review: Selection Biases, 45 Tulsa Law Review 575 (2010) (with Sanford Levinson). [Full Text]

Constitutional Fits, 41 Journal of Social Philosophy 194 (2010).

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

Running Cars, Constitutions and Metaphors into the Ground, 18 The Good Society 35 (2009). [Full Text]

Foreword: Our Paradoxical Religion Clauses, 69 Maryland Law Review 8 (2009). [Full Text]

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

The Price of Fame: Brown as Celebrity, 69 Ohio State Law Journal 939 (2008). [Full Text]

The Countermajoritarian Difficulty: From Congress to Courts to Constitutional Order, 4 Annual Reviews in Law & Social Science 361 (2008). [Full Text]

False Modesty: Felix Frankfurter and the Tradition of Judicial Restraint, 47 Washburn Law Journal 23 (2007) [Full Text]

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

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

Foreword: From the Countermajoritarian Difficulty to Juristocracy and the Political Construction of Judicial Power, 65 Maryland Law Review 1 (2006). [Full Text]

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

Does it Really Matter? Conservative Courts in a Conservative Era, 75 Fordham Law Review 675 (2006). [Full Text]

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

Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching, 3 Perspectives on Politics 135 (2005). [Full Text]

Dred Scott as a Centrist Decision, 83 North Carolina Law Review 1229 (2005).

The Jacksonian Makings of the Taney Court (2005). [Full Text]

Lost and Not Yet Found: The New First Amendment, 14 The Good Society 19 (2005).

Ancients, Moderns, and Guns, 12 William & Mary Bill of Rights Law Review 307 (2004). [Full Text]

Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited (2004). [Full Text]

Establishing Judicial Review: Marbury v. The Judiciary Act of 1789, 38 Tulsa Law Review 609 (2003).

Social Democracy and Constitutional Theory: An Institutional Perspective, 69 Fordham Law Review 1969 (2001). [Full Text]

Thick and Thin: Interdisciplinary Conversations on Populism, Law, Political Science, And Constitutional Change, 90 Georgetown Law Journal 233 (2001). [Full Text]

Naked Land Transfers and American Constitutional Development, 53 Vanderbilt Law Review 73 (2000). [Full Text]

The Jacksonian Origins of Chase Court Activism, 25 Journal of Supreme Court History 17 (2000).

Law and Sports Officiating: A Misunderstood and Justly Neglected Relationship, 16 Constitutional Commentary 293 (1999). [Full Text]

The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio State Law Journal 731 (1997).

Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 Constitutional Commentary 271 (1997). [Full Text]

Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 Constitutional Commentary 291 (1996). [Full Text]

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

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

Judicial Recantation, 45 Syracuse Law Review 807 (1994). [Full Text]

A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", 10 Constitutional Commentary 87 (1993). [Full Text]

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Admissions: PHONE: (410) 706-3492 FAX: (410) 706-1793

Copyright © 2018, University of Maryland Francis King Carey School of Law. All Rights Reserved