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.
By Scott De Orio. 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.
By Shay Ryan Olmstead. Transgender workers did more than simply assert their own normativity—they also actively distanced themselves from other gender crossers.
By Gerard N. Magliocca. The most remarkable constitutional argument ever forgotten is Representative William Loughridge’s dissent from an 1871 report by the House Judiciary Committee. That Report rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote.
By S. Deborah Kang. New archival research shines a light on the anti-Mexican animus that motivated the authors and agents of the McCarran-Walter Act of 1952 and reveals that racism was a feature, rather than a bug, of the legislation that still impacts today’s immigration debates.
By Sam Erman and Nathan Perl-Rosenthal. In an effort to dismantle the Citizenship Clause and the U.S.’s traditional recognition of “jus soli,” racist opponents to the Fourteenth Amendment set out to establish a practice of “jus sanguinis” with a weaponization of international law. These attempts backfired, and “country by birth” prevailed and more solidly reaffirmed as the Citizenship Clause.