Journal of American Constitutional History
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.
Current Issue: Winter 2026
Article
Sovereign Power and the Sweeping Clause
By John Mikhail. Contemporary disputes involving the separation of powers take on a different light when they are framed in terms of powers of the Government of the United States itself. The “all other powers” provision of the Necessary and Proper Clause distinguishes government powers from executive powers and gives Congress distinct legislative authorities with…
Symposium: A Tribute to Kenneth Kersch
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Sovereign Power and the Sweeping Clause
By John Mikhail. Contemporary disputes involving the separation of powers take on a different light when they are framed in terms of powers of the Government of the United States itself. The…
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Ken Kersch and the New Legal History: Beyond the Internalist/Externalist Divide
By Dennis J. Wieboldt III. For Ken Kersch, developments in twentieth-century American constitutional law could not be adequately explained by either neat doctrinal evolution or the raw exercise of political power.
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Ken Kersch as a Scholar of “The Other”
By Sanford Levinson. Ken Kersch’s remarkable scholarship generates profound questions about the difficulties—and even limits—of truly engaging with those who do not share certain ontological or epistemological commitments.
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Ken Kersch and the Meaning of Development: Law, Ideas, and the Politics of Constitutional Change
By Michael A. Dichio and Paul E. Herron. Ken Kersch showed us that constitutional development is not a story of inevitable progress, but of contested traditions, shifting coalitions, and the discontinuous, non-linear…
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Broadening The Terrain of Political and Constitutional Thought, Unmasking Delusional Constitutional Arguments
By Carol Nackenoff. By broadening the terrain of political and constitutional thought, Kersch brilliantly examined how constitutional faiths are forged and “law stories” are woven to create common identities.
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The Roberts Court and the Past and Future of Religion as a Constitutional Concern
By Julie Novkov. The Roberts Court’s reconfiguration of free exercise and anti-establishment doctrine is not a simple conservative backlash. Rather, it creates a viable path for empowering a right-wing religious political project.
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The Roberts Court’s Reconstruction of Church and State
By George Thomas. Chief Justice John Roberts’s opinion in Trinity Lutheran v. Comer (2017) breaks with past understandings of the Free Exercise Clause by merging a state discriminating against religious individuals with…
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Five Lessons from Ken Kersch’s Conservatives and the Constitution for the Present Moment
By James E. Fleming and Linda C. McClain. Ken Kersch’s Conservatives and the Constitution helps us see the second Trump Administration, not as an aberration, but as the fulfillment of certain conservative…
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Forgetting Nothing, Learning Nothing: Constitutional Scholarship and the Political Development of the Modern Supreme Court
By Calvin TerBeek. The “Lochner Era” was invented decades after the fact, and the 1970s were legal liberalism’s zenith, not its decline. Constitutional law professors’ standard story of legal liberalism gets it…
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States’ Rights and Civil Rights: Barry Goldwater, Bill Buckley, Richard Nixon, and Southern Realignment
By Sean Beienburg. Did invocations of states’ rights by southern segregationists permanently discredit constitutional federalism? A re-examination of the 1960s political realignment suggests Americans can embrace—or re-embrace—this feature of our Constitution, while…
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
Recent Issue: Fall 2025
Articles
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Of Guilty Property and Civil/Remedial Punishment: The Implications and Perils of “History” for the Excessive Fines Clause and Beyond
By Beth A. Colgan. 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…
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The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism
By Austin Steelman. 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…
Dialogue
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Of Guilty Property and Civil/Remedial Punishment: The Implications and Perils of “History” for the Excessive Fines Clause and Beyond
By Beth A. Colgan. 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…
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The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism
By Austin Steelman. 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…
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Madisonian Liquidation Unliquidated
By Jack Rakove. 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,…
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Liquidation, Then and Now
By William Baude. 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…
Symposium: Tenth Anniversary of Obergefell-Queer Constitutional History
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Ken Kersch and the New Legal History: Beyond the Internalist/Externalist Divide
By Dennis J. Wieboldt III. For Ken Kersch, developments in twentieth-century American constitutional law could not be adequately explained by either neat doctrinal evolution or the raw exercise of political power.
-
Ken Kersch as a Scholar of “The Other”
By Sanford Levinson. Ken Kersch’s remarkable scholarship generates profound questions about the difficulties—and even limits—of truly engaging with those who do not share certain ontological or epistemological commitments.
-
Ken Kersch and the Meaning of Development: Law, Ideas, and the Politics of Constitutional Change
By Michael A. Dichio and Paul E. Herron. Ken Kersch showed us that constitutional development is not a story of inevitable progress, but of contested traditions, shifting coalitions, and the discontinuous, non-linear…
-
Broadening The Terrain of Political and Constitutional Thought, Unmasking Delusional Constitutional Arguments
By Carol Nackenoff. By broadening the terrain of political and constitutional thought, Kersch brilliantly examined how constitutional faiths are forged and “law stories” are woven to create common identities.
-
The Roberts Court and the Past and Future of Religion as a Constitutional Concern
By Julie Novkov. The Roberts Court’s reconfiguration of free exercise and anti-establishment doctrine is not a simple conservative backlash. Rather, it creates a viable path for empowering a right-wing religious political project.
-
The Roberts Court’s Reconstruction of Church and State
By George Thomas. Chief Justice John Roberts’s opinion in Trinity Lutheran v. Comer (2017) breaks with past understandings of the Free Exercise Clause by merging a state discriminating against religious individuals with…
-
Five Lessons from Ken Kersch’s Conservatives and the Constitution for the Present Moment
By James E. Fleming and Linda C. McClain. Ken Kersch’s Conservatives and the Constitution helps us see the second Trump Administration, not as an aberration, but as the fulfillment of certain conservative…
-
Forgetting Nothing, Learning Nothing: Constitutional Scholarship and the Political Development of the Modern Supreme Court
By Calvin TerBeek. The “Lochner Era” was invented decades after the fact, and the 1970s were legal liberalism’s zenith, not its decline. Constitutional law professors’ standard story of legal liberalism gets it…
-
States’ Rights and Civil Rights: Barry Goldwater, Bill Buckley, Richard Nixon, and Southern Realignment
By Sean Beienburg. Did invocations of states’ rights by southern segregationists permanently discredit constitutional federalism? A re-examination of the 1960s political realignment suggests Americans can embrace—or re-embrace—this feature of our Constitution, while…
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The Phenomenal Constitution
By Austin Steelman. In Conservatives and the Constitution, Ken Kersch demonstrated that the continually reimagined Constitution is a “phenomenon” in American life, not an epiphenomenal result of more substantial politics.
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.