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.
By Andrew Coan and David S. Schwartz. A proper interpretation of the ratification debates undermines any principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases.
By Risa Goluboff. I have decided to share with you a very new project—about the white supremacist and anti-Semitic violence that took place in my hometown of Charlottesville, Virginia on August 11 and 12, 2017. Those events have come to be called “Charlottesville.”