Current Issue: Spring 2026
Articles
Constructing the Constitutional Legitimacy of the Administrative State: Congress and the Settlement of 1946
In a crucial moment in the history of the administrative state in 1946, Congress played a central legitimizing role by enacting the Employment Act, the Administrative Procedure Act (APA), and the Legislative Reorganization Act (LRA).
The Civic Order of Progressive America: The Fitter Families Ideal and the Acquisition and Loss of U.S. Citizenship
In the first third of the twentieth century, American leaders affiliated with both political parties and the broader Progressive movement restructured the nation’s “legal civic order” to advance a Fitter Families ideal of American citizenship.
Dialogue: The Oliver Wendell Holmes Devise History of the Supreme Court
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The Oliver Wendell Holmes Devise: an Introduction
Professor Marcus offers a short account of the checkered progress of the Holmes Devise.
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Reflections on the Two Most Recent Holmes Devise Histories of the Supreme Court (Including Mine)
I believe that Post addresses concerns about how judges worked the ideas into their opinions by seeing the Justices as proto-philosophers (or proto-legal-academics), who have a deep commitment to developing coherent schemas.
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Writing for the Holmes Devise
The essential ambition of the Taft Court volume was to invite legal historians to once again conceptualize judges and their courts as cultural actors who respond to the same sets of tensions and challenges as those that spur all cultural actors to give meaning to their times. Tushnet is off base to dismiss this approach as a form of “conceptualism.”
Recent Issue: Winter 2026
Articles
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Sovereign Power and the Sweeping Clause
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
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Ken Kersch and the New Legal History: Beyond the Internalist/Externalist Divide
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”
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
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.
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Broadening The Terrain of Political and Constitutional Thought, Unmasking Delusional Constitutional Arguments
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
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
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.
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Five Lessons from Ken Kersch’s Conservatives and the Constitution for the Present Moment
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.”
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Forgetting Nothing, Learning Nothing: Constitutional Scholarship and the Political Development of the Modern Supreme Court
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.
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States’ Rights and Civil Rights: Barry Goldwater, Bill Buckley, Richard Nixon, and Southern Realignment
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.
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The Phenomenal Constitution
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.
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Orthodox Originalism and Conservative Identity after Ken Kersch
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.
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
- Donald Dripps
- 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
- Craig Green
- 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.