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: Spring 2024

Article

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    Ida B. Wells’s Train Ride in Memphis and the Dawn of Jim Crow

    by Lee Harris

    Most Americans know the story of Rosa Parks; fewer know the story of Ida B. Wells, who contested the nascent Jim Crow laws on the Tennessee railways more than 70 years before Rosa Parks’ famous bus ride. This article profiles Wells’ journey from small-town schoolteacher, to legal challenger in the fight against racial segregation.

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    Racism, Black Voices, Emancipation, and Constitution-Making in Massachusetts, 1778

    by David Waldstreicher

    Black voices—even disembodied, anonymous, speculative Black voices—were part of the constitutional conversation in Massachusetts in 1777-78. If that isn’t being present at the creation of the American republic, then terms like “founding” and “creation” lose most of their meaning.

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    The Democracy Effects of Legal Polarization: Movement Lawyering at the Dawn of the Unitary Executive

    by Deborah Pearlstein

    In the 1980s, a conservative legal movement began to advance a unitary executive theory of constitutional power inside the Executive Branch; these efforts functioned to kneecap a suite of post-Watergate ethics reforms designed to guard against corruption or other misconduct by government lawyers, which, over time, has led to an increasingly polarized system in which career advancement, not punishment, awaits lawyers willing to place partisan loyalty above professional obligation. This serves as a troubling case study of the range of harms legal polarization poses to constitutional democracy inside court and out.

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    Executive Power, the Royal Prerogative, and the Founders’ Presidency

    by Andrew Kent

    The wide divergence among modern scholars about the meaning of the Executive Power Clause reflects real ambiguity in the text of the Constitution and the historical records. But by far the least plausible original meaning of the Executive Power Clause is the one which sees it as granting an undefined amount of British royal prerogative power to the president.

Recent Issue: Winter 2024

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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.

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

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
    • 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
    • Rogers M. Smith
    • Brad Snyder
    • Clyde S. Spillenger
    • Matthew Steilen
    • Karen Tani
    • George Thomas
    • Mark Tushnet
    • Anne Twitty
    • Michael Vorenberg
    • Rosemarie Zagarri
    • Mary Ziegler