University of Wisconsin–Madison

Author: jmhanrahan

Finding Meaning in the Congressional Globe: The Fourteenth Amendment and the Problem of Constitutional Archives

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By Rachel A. Shelden. In Punish Treason, Reward Loyalty, Mark Graber takes a comprehensive look at the 39th Congress, that drafted the Fourteenth Amendment, through the Congressional Globe. Yet the Globe was far from an accurate depiction of congressional business, and it ultimately may tell us just as much about the public meaning of the Fourteenth Amendment as it does about legislative intent.

Ida B. Wells’s Train Ride in Memphis and the Dawn of Jim Crow

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By Lee Harris. Most Americans know the story of Rosa Parks; fewer know the story of Ida B. Wells, who contested the nascent Jim Crow laws on the Tennessee railways more than 70 years before Rosa Parks’ famous bus ride. This article profiles Wells’ journey from small-town schoolteacher, to legal challenger in the fight against racial segregation.

Racism, Black Voices, Emancipation, and Constitution-Making in Massachusetts, 1778

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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.

The Democracy Effects of Legal Polarization: Movement Lawyering at the Dawn of the Unitary Executive

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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.

Executive Power, the Royal Prerogative, and the Founders’ Presidency

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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.

Today’s Brandeis Brief? The Fate of the Historians’ Brief Amidst the Rise of an Originalist Court

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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.

Abortion-Eugenics Discourse in Dobbs: A Social Movement History

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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.

The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization

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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.

Dobbs v. Brown

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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.

The Critical Role of History After Dobbs

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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.