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.
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.
by Sara Mayeux
In investigating constitutional history, legal scholars often focus on elite legal actors and Supreme Court doctrine. This article draws upon pop-culture sources to reconstruct the constitutional rhetoric of mob lawyers, drug lawyers, and other icons of the high-priced criminal defense bar, from the 1970s through the 1990s—the heyday of federal organized crime prosecutions and thus, of the lawyers who defended against them.
by Aaron N. Coleman and Adam L. Tate
By exploring the context of Thomas Burke’s words and actions in 1777 to understand better his call for what became Article II of the Articles of Confederation, this article challenges long-held scholarly opinions, allowing Burke to emerge as an important theorist of federalism, rather than a neglected or dismissed member of the American founding.
by David S. Schwartz
The thesis in “The International Law Origins of American Federalism” is mistaken: the Framers consistently and systematically rejected an international law conception of federalism. While Bellia & Clark’s article could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.
by Martin S. Flaherty
The founding history set out in “The International Law Origins of American Federalism” has the potential of influencing, or at least legitimating, major doctrinal trends at the Supreme Court—yet it does so with little to no evidence, at least from historical, rather than legal, scholarly standards.
by Ryan C. Williams
This essay seeks to steer a middle path between the extremes of “The International Law Origins of American Federalism” and Professor David Schwartz’s response piece; while the Constitution of 1787 reflected a clear break with the “pure” treaty model, law-of-nations principles might usefully guide and inform modern under-standings of federalism—at least to some degree.
by Sanford Levinson
To what extent do legal academics, historians, political scientists, and high school teachers actually assign any of the The Federalist?
by Kevin Arlyck
Most accounts of the federal judiciary’s rise to independence tell a story in which the courts consolidated their authority—especially the power of judicial review—by tacitly agreeing to withdraw from partisan politics. But as this article shows, the most insistent assertions of judicial inviolability came not from courts, but instead from the executive branch officials.
by Roderick M. Hills, Jr.
By reducing the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat, the presumption of ambiguity respects contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.