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.
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.
By Logan Everett Sawyer III. 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.
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 to constitute punishment.
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 a dead Constitution that proved ironically vital and ever-evolving.
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, is equivalent to the fixation of constitutional meaning, is another matter entirely.
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 be accurate, but our reasons for caring about historical accounts are reasons of our own.
By Felicia Kornbluh and Marie-Amélie George. 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.
By Joanna L. Grossman. 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.
By Marie-Amélie George. 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.
By Zoe M. Savitsky. 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.