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.
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.
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.
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.
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.
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.
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.
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.