collage of the continental congress, a picture of We the People, a Civil Rights protest, and the logo for Journal of American Constitutional History

Current Issue: Winter 2024

Article

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    Today’s Brandeis Brief? The Fate of the Historians’ Brief Amidst the Rise of an Originalist Court

    by M. Henry Ishitani

    Despite their significantly higher overall citation rates than comparable forms of amicus briefings, historians’ amicus briefs to the Supreme Court have been a surprisingly overlooked and under-studied legal tactic. This article attempts to correct this gap in our understanding of this subgenre of history-based briefing, revealing the hard data and political trends shaping these judicial citations.

Symposium: Dobbs, History, and Abortion Rights

No recent constitutional issue has raised a more significant moment for historical intervention than a woman’s right to obtain an abortion. The following symposium, organized by Professors Mary Ziegler and David Schwartz, takes a hard look at the historical questions surrounding Dobbs v. Jackson Women’s Health Organization.

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    Abortion-Eugenics Discourse in Dobbs: A Social Movement History

    by Reva B. Siegel & Mary Ziegler

    To win over new supporters and counter equality arguments of the abortion-rights movement, the antiabortion movement began to equate the abortion-rights movement with the painful legacy of eugenics perpetrated by the state in the early twentieth century. This essay traces the movement dynamics that led to the creation of this argument, and then follows this abortion-is-eugenics argument from billboards to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

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    The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization

    by Neil S. Siegel

    The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was based upon moral opposition to abortion and gender bias, instead of its stated reasoning—a draconian version of the “history and tradition” test.

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    Dobbs v. Brown

    by Andrew Coan

    The ongoing debate over the Dobbs majority’s attempt to claim the mantle of Brown v. Board of Education has many threads. This Essay will focus on three—stare decisis, the interpretive method, and Herbert Wechsler’s famous “neutral principles” critique— none of which is as clear-cut as the defenders or the critics of Dobbs have supposed.

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    The Critical Role of History after Dobbs

    by Serena Mayeri

    Though the Dobbs majority’s argument relies on a flawed and impoverished account of “history and tradition,” history remains relevant to constitutional law and political discourse about reproductive rights and justice, and is critical to our understanding of our political community today.

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    Before “the Supreme Court Bail[ed] Us Out”: Feminist Claims for Abortion Rights and the Constitutional History of Roe v. Wade

    by Felicia Kornbluh

    With a Supreme Court majority hostile to reproductive rights claims, it is a comfort and perhaps an inspiration to learn from history that there are a variety of other institutions and mechanisms through which people did, and still can, meaningfully advance their rights claims outside the Supreme Court.

Recent Issue: Fall 2023

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    The Mob Lawyer’s Constitution

    by Sara Mayeux

    In investigating constitutional history, legal scholars often focus on elite legal actors and Supreme Court doctrine. This article draws upon pop-culture sources to reconstruct the constitutional rhetoric of mob lawyers, drug lawyers, and other icons of the high-priced criminal defense bar, from the 1970s through the 1990s—the heyday of federal organized crime prosecutions and thus, of the lawyers who defended against them.

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    Thomas Burke and State Sovereignty, 1777

    by Aaron N. Coleman and Adam L. Tate

    By exploring the context of Thomas Burke’s words and actions in 1777 to understand better his call for what became Article II of the Articles of Confederation, this article challenges long-held scholarly opinions, allowing Burke to emerge as an important theorist of federalism, rather than a neglected or dismissed member of the American founding.

Reviews & Responses

In 2020, Professors Anthony J. Bellia and Bradford R. Clark published “The International Law Origins of American Federalism,” in the Columbia Law Review, arguing that the word “state” in the Constitution was widely and tacitly understood to refer to independent, sovereign nation-states, as in European international law theory at the time. The articles that follow re-examine that thesis, with a reply from Bellia and Clark.

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    The International Law Origins of Compact Theory: A Critique of Bellia & Clark on Federalism

    by David S. Schwartz

    The thesis in “The International Law Origins of American Federalism” is mistaken: the Framers consistently and systematically rejected an international law conception of federalism. While Bellia & Clark’s article could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.

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    Peerless History, Meaningless Origins

    by Martin S. Flaherty

    The founding history set out in “The International Law Origins of American Federalism” has the potential of influencing, or at least legitimating, major doctrinal trends at the Supreme Court—yet it does so with little to no evidence, at least from historical, rather than legal, scholarly standards.

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    Federalism, The Law of Nations, and The Excluded Middle

    by Ryan C. Williams

    This essay seeks to steer a middle path between the extremes of “The International Law Origins of American Federalism” and Professor David Schwartz’s response piece; while the Constitution of 1787 reflected a clear break with the “pure” treaty model, law-of-nations principles might usefully guide and inform modern under-standings of federalism—at least to some degree.

Response from Profs. Bellia & Clark

Coming soon.

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
  • Bertrall Ross
  • Rachel Shelden
  • Franita Tolson
  • Robert L. Tsai

Editorial Assistant

  • Jennifer Hanrahan

Editors

    • Gregory Ablavsky
    • Richard Albert
    • Samantha Barbas
    • William Baude
    • Maggie Blackhawk
    • Pamela Brandwein
    • Holly Brewer
    • Tomiko Brown-Nagin
    • Andrew Coan
    • Saul Cornell
    • Mary L. Dudziak
    • Max Edling
    • Laura F. Edwards
    • Sam Erman
    • Daniel R. Ernst
    • 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
    • Christopher W. Schmidt
    • Sarah A. Seo
    • Jed Shugerman
    • Reva Siegel
    • Brad Snyder
    • Clyde S. Spillenger
    • Matthew Steilen
    • Karen Tani
    • George Thomas
    • Mark Tushnet
    • Anne Twitty
    • Michael Vorenberg
    • Rosemarie Zagarri
    • Mary Ziegler