Current Issue: Winter 2026
Article
Sovereign Power and the Sweeping Clause
by John Mikhail
February 16, 2026
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 respect to each of these categories.
Symposium: A Tribute to Kenneth Kersch
Ken Kersch and the New Legal History: Beyond the Internalist/Externalist Divide
by Dennis J. Wieboldt III
February 16, 2026
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
February 16, 2026
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
February 16, 2026
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 unfolding of political development.Broadening The Terrain of Political and Constitutional Thought, Unmasking Delusional Constitutional Arguments
by Carol Nackenoff
February 16, 2026
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
February 16, 2026
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
February 16, 2026
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 a state declining to fund religious institutions.Five Lessons from Ken Kersch’s Conservatives and the Constitution for the Present Moment
by James E. Fleming and Linda C. McClain
February 16, 2026
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 ideas that have been “hiding in plain sight.”Forgetting Nothing, Learning Nothing: Constitutional Scholarship and the Political Development of the Modern Supreme Court
by Calvin TerBeek
February 16, 2026
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 wrong on the front and back ends.States’ Rights and Civil Rights: Barry Goldwater, Bill Buckley, Richard Nixon, and Southern Realignment
by Sean Beienburg
February 16, 2026
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 remembering state autonomy is a strong presumption but one that has always been checked by the Constitution’s rights guarantees.The Phenomenal Constitution
by Austin Steelman
February 16, 2026
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.Orthodox Originalism and Conservative Identity after Ken Kersch
by Logan Everett Sawyer III
February 16, 2026
Kersch’s Conservatives and the Constitution showed not just that the conservative political movement shaped arguments about the Constitution, but that arguments about the Constitution were key to transforming a varied group of interests disaffected by New Deal and Great Society Liberalism into a coherent political identity and thus a powerful political order.
Recent 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.
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.