Current Issue: Fall 2025
Articles
Of Guilty Property and Civil/Remedial Punishment: The Implications and Perils of “History” for the Excessive Fines Clause and Beyond
by Beth A. Colgan
November 13, 2025
Contrary to the Supreme Court’s historically based determination that in rem forfeitures are nonpunitive, substantial historical evidence—including the Court’s own early opinions—show that in rem forfeitures were understood to constitute punishment.The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism
by Austin Steelman
November 13, 2025
Arthur Machen Jr.’s 1900 Harvard Law Review article “The Elasticity of the Constitution” influenced the long rise of originalism—revealing many of originalism’s now essential features--and helped give birth to a dead Constitution that proved ironically vital and ever-evolving.
Dialogue
Madisonian Liquidation Unliquidated
by Jack Rakove
November 13, 2025
William Baude’s provocative essay on “Constitutional Liquidation,” published five years ago, is the best treatment of the subject. Whether the liquidation of constitutional indeterminacies, to Madison’s way of thinking, is equivalent to the fixation of constitutional meaning, is another matter entirely.Liquidation, Then and Now
by William Baude
November 13, 2025
If it is true that liquidation did not “deeply engage Madison’s interest,” as Rakove writes, James Madison’s “interest”-level is not something that binds constitutional lawyers. Our historical accounts should be accurate, but our reasons for caring about historical accounts are reasons of our own.
Symposium: Tenth Anniversary of Obergefell—Queer Constitutional History
Queer as U.S. Constitutional History
by Felicia Kornbluh and Marie-Amélie George
November 13, 2025
Most of queer constitutional history is loss, as well as consolation and survival in the face of devastation. This is a fairly easy conclusion after two decades of the Roberts Court, in the wake of Skrmetti, and amid ongoing efforts to repeal Obergefell.The Tenth Anniversary of Marriage Equality: How Traditional Marriage Law Led to Constitutional Protection for Same-Sex Marriage
by Joanna L. Grossman
November 13, 2025
Had the history of marriage law been more uneven, it might not have been so relevant to this analysis. But the federal government’s longstanding deference to states in determinations of marital status made clear that this was a case of anti-gay exceptionalism.The Missing History of Romer v. Evans
by Marie-Amélie George
November 13, 2025
Although the outcome of Romer is well-known, as is its reasoning, the events that produced the jurisprudential turn have largely been forgotten. Uncovering this missing history helps explain how and why the Supreme Court inaugurated a new era in queer rights jurisprudence.Good Plaintiffs: The Women of Marriage Equality
by Zoe M. Savitsky
November 13, 2025
The early women who sought marriage equality did not look like “perfect plaintiffs.” Neither did many of the successful female plaintiffs in this study. There are, clearly, limits to the current perfect plaintiff tale if we have failed to see these women, intersectionally and multidimensionally.A Queer Constitutional History of Loss: Mayes v. Texas (1974), Privacy, and the Struggle for the Right to Be Trans in Public in the 1970s
by Scott De Orio
November 13, 2025
The history of privacy and substantive due process rights is usually narrated from the perspective of those cases the Supreme Court decided and that advocates for gender and sexual rights won. But it is also crucial to pay attention to losses, and even cases the Court turned down and to which it declined to grant cert.“I’m Not Sleazy and I Don’t Frequent Bars”: Respectability as a Legal Strategy in Transsexual Employment Discrimination Lawsuits, 1971-1995
by Shay Ryan Olmstead
November 13, 2025
Transgender workers did more than simply assert their own normativity—they also actively distanced themselves from other gender crossers.
Recent Issue: Summer 2025
Articles
“Right in Theory, Wrong in Practice”: Women’s Suffrage and the Reconstruction Amendments
by Gerard N. Magliocca
August 13, 2025
The most remarkable constitutional argument ever forgotten is Representative William Loughridge’s dissent from an 1871 report by the House Judiciary Committee. That Report rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote.Creating a “Mass Production Technique”: Anti-Mexican Racism and the McCarran-Walter Act of 1952
by S. Deborah Kang
August 13, 2025
New archival research shines a light on the anti-Mexican animus that motivated the authors and agents of the McCarran-Walter Act of 1952 and reveals that racism was a feature, rather than a bug, of the legislation that still impacts today’s immigration debates.Jus Soli Nation to Jus Soli Evasion: International Lawyers for White Supremacy and the Road through Wong Kim Ark
by Sam Erman and Nathan Perl-Rosenthal
August 13, 2025
In an effort to dismantle the Citizenship Clause and the U.S.’s traditional recognition of “jus soli,” racist opponents to the Fourteenth Amendment set out to establish a practice of “jus sanguinis” with a weaponization of international law. These attempts backfired, and “country by birth” prevailed and more solidly reaffirmed as the Citizenship Clause.
Book Review
The Constitution of the War on Abortion
by Katherine Shaw
David Pozen’s The Constitution of the War on Drugs reveals how constitutional law and values have largely been absent from the arguments surrounding the war on drugs—in an interesting contrast to the constitution’s central place surrounding the debates on abortion and reproductive freedoms.
Editorial Board
Editor-in-Chief
- David S. Schwartz
Senior Editorial Advisors
- Mary Sarah Bilder
- Jud Campbell
- Jonathan Gienapp
- Risa Goluboff
- Alison L. LaCroix
- John Mikhail
- Farah Peterson
- Richard Primus
- Aziz Rana
- Bertrall Ross
- Rachel Shelden
- Franita Tolson
- Robert L. Tsai
Managing Editor
- Jennifer Hanrahan
Editors
-
- Gregory Ablavsky
- Richard Albert
- Jack M. Balkin
- Samantha Barbas
- William Baude
- Maggie Blackhawk
- Pamela Brandwein
- Holly Brewer
- Tomiko Brown-Nagin
- Christine Kexel Chabot
- Andrew Coan
- Saul Cornell
- Mary L. Dudziak
- Max Edling
- Laura F. Edwards
- Sam Erman
- Daniel R. Ernst
- William B. Ewald
- Martin S. Flaherty
- Matthew L.M. Fletcher
- William E. Forbath
- Maeve Glass
- Sarah Barringer Gordon
- Mark A. Graber
- Joanna Grisinger
- Ariela Gross
- Roderick Hills
- Daniel Hulsebosch
- Martha S. Jones
- Laura Kalman
- Andrea Scoseria Katz
- Andrew Kent
- Michael J. Klarman
- Heinz Klug
- Felicia Kornbluh
- Anna O. Law
- Thomas H. Lee
- Sanford Levinson
- Gerard Magliocca
- Jane Manners
- Maeva Marcus
- Julian Davis Mortenson
- Cynthia L. Nicoletti
- Victoria Nourse
- William J. Novak
- James E. Pfander
- Jack N. Rakove
- Gautham Rao
- Noah A. Rosenblum
- Christopher W. Schmidt
- Sarah A. Seo
- Jed Shugerman
- Reva Siegel
- Rogers M. Smith
- Brad Snyder
- Clyde S. Spillenger
- Matthew Steilen
- Karen Tani
- George Thomas
- William M. Treanor
- Mark Tushnet
- Anne Twitty
- Michael Vorenberg
- Rosemarie Zagarri
- Mary Ziegler
About the Journal of American Constitutional History
Who We Are
The Journal of American Constitutional History is a peer-reviewed web-based journal publishing high-quality scholarship on U.S. constitutional history. Our editorial board includes over 60 leading scholars in the field.
Why We're Here
We seek to promote inter- and multi-disciplinary scholarly dialogue on constitutional history at a time when law office history is increasingly casting its shadow over both scholarship and jurisprudence. Our Journal provides a space for scholarship that tries to understand the past, rather than to distort it to influence present controversies.
With a rapid and hassle-free publication process, the Journal of American Constitutional History offers an attractive alternative to both student-edited law reviews and print peer-review journals.
What We Publish
We seek articles from the disciplines of law, history, or political science that focus on historical questions touching on the American Constitution or constitutional development, or that contain a substantial element of historical analysis in addressing contemporary issues of U.S. constitutional law.
We accept articles of varying lengths and allow authors to conform to the norms and citation styles of their disciplines.