Volume 3, Issue 4 – Fall 2025
Articles
-
Of Guilty Property and Civil/Remedial Punishment: The Implications and Perils of “History” for the Excessive Fines Clause and Beyond
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
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.
Symposium
-
Queer as U.S. Constitutional History
By Felicia Kornbluh and Marie-Amélie George. Most of queer constitutional history is loss, as well as consolation and survival in the face of devastation. This is a fairly easy conclusion after two decades of the Roberts Court, in the wake of Skrmetti, and amid ongoing efforts to repeal Obergefell.
-
The Tenth Anniversary of Marriage Equality: How Traditional Marriage Law Led to Constitutional Protection for Same-Sex Marriage
By Joanna L. Grossman. Had the history of marriage law been more uneven, it might not have been so relevant to this analysis. But the federal government’s longstanding deference to states in determinations of marital status made clear that this was a case of anti-gay exceptionalism.
-
The Missing History of Romer v. Evans
By Marie-Amélie George. Although the outcome of Romer is well-known, as is its reasoning, the events that produced the jurisprudential turn have largely been forgotten. Uncovering this missing history helps explain how and why the Supreme Court inaugurated a new era in queer rights jurisprudence.
-
Good Plaintiffs: The Women of Marriage Equality
By Zoe M. Savitsky. The early women who sought marriage equality did not look like “perfect plaintiffs.” Neither did many of the successful female plaintiffs in this study. There are, clearly, limits to the current perfect plaintiff tale if we have failed to see these women, intersectionally and multidimensionally.
-
A Queer Constitutional History of Loss: Mayes v. Texas (1974), Privacy, and the Struggle for the Right to Be Trans in Public in the 1970s
By Scott De Orio. The history of privacy and substantive due process rights is usually narrated from the perspective of those cases the Supreme Court decided and that advocates for gender and sexual rights won. But it is also crucial to pay attention to losses, and even cases the Court turned down and to which it declined to grant cert.
-
“I’m Not Sleazy and I Don’t Frequent Bars”: Respectability as a Legal Strategy in Transsexual Employment Discrimination Lawsuits, 1971-1995
By Shay Ryan Olmstead. Transgender workers did more than simply assert their own normativity—they also actively distanced themselves from other gender crossers.
Dialogue
-
Madisonian Liquidation Unliquidated
By Jack RakoveBy Jack Rakove. William Baude’s provocative essay on “Constitutional Liquidation,” published five years ago, is the best treatment of the subject. Whether the liquidation of constitutional indeterminacies, to Madison’s way of thinking, is equivalent to the fixation of constitutional meaning, is another matter entirely.
-
Liquidation, Then and Now
By William Baude. If it is true that liquidation did not “deeply engage Madison’s interest,” as Rakove writes, James Madison’s “interest”-level is not something that binds constitutional lawyers. Our historical accounts should be accurate, but our reasons for caring about historical accounts are reasons of our own.