University of Wisconsin–Madison

Category: Issue 4 – Fall 2025

Of Guilty Property and Civil/Remedial Punishment: The Implications and Perils of “History” for the Excessive Fines Clause and Beyond

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By Beth A. Colgan. Contrary to the Supreme Court’s historically based determination that in rem forfeitures are nonpunitive, substantial historical evidence—including the Court’s own early opinions—show that in rem forfeitures were understood to constitute punishment.

The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism

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By Austin Steelman. Arthur Machen Jr.’s 1900 Harvard Law Review article “The Elasticity of the Constitution” influenced the long rise of originalism–revealing many of originalism’s now essential features–and helped give birth to a dead Constitution that proved ironically vital and ever-evolving.