Volume 4, Issue 1 – Winter 2026
Articles
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Sovereign Power and the Sweeping Clause
By John MikhailContemporary disputes involving the separation of powers take on a different light when they are framed in terms of powers of the Government of the United States itself. The “all other powers” provision of the Necessary and Proper Clause distinguishes government powers from executive powers and gives Congress distinct legislative authorities with respect to each of these categories.
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Ken Kersch and the New Legal History: Beyond the Internalist/Externalist Divide
For Ken Kersch, developments in twentieth-century American constitutional law could not be adequately explained by either neat doctrinal evolution or the raw exercise of political power.
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Ken Kersch as a Scholar of “The Other”
Ken Kersch’s remarkable scholarship generates profound questions about the difficulties—and even limits—of truly engaging with those who do not share certain ontological or epistemological commitments.
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Ken Kersch and the Meaning of Development: Law, Ideas, and the Politics of Constitutional Change
Ken Kersch showed us that constitutional development is not a story of inevitable progress, but of contested traditions, shifting coalitions, and the discontinuous, non-linear unfolding of political development.
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Broadening The Terrain of Political and Constitutional Thought, Unmasking Delusional Constitutional Arguments
By broadening the terrain of political and constitutional thought, Kersch brilliantly examined how constitutional faiths are forged and “law stories” are woven to create common identities.
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The Roberts Court and the Past and Future of Religion as a Constitutional Concern
By Julie NovkovThe Roberts Court’s reconfiguration of free exercise and anti-establishment doctrine is not a simple conservative backlash. Rather, it creates a viable path for empowering a right-wing religious political project.
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The Roberts Court’s Reconstruction of Church and State
Chief Justice John Roberts’s opinion in Trinity Lutheran v. Comer (2017) breaks with past understandings of the Free Exercise Clause by merging a state discriminating against religious individuals with a state declining to fund religious institutions.
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Five Lessons from Ken Kersch’s Conservatives and the Constitution for the Present Moment
Ken Kersch’s Conservatives and the Constitution helps us see the second Trump Administration, not as an aberration, but as the fulfillment of certain conservative ideas that have been “hiding in plain sight.”
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Forgetting Nothing, Learning Nothing: Constitutional Scholarship and the Political Development of the Modern Supreme Court
The “Lochner Era” was invented decades after the fact, and the 1970s were legal liberalism’s zenith, not its decline. Constitutional law professors’ standard story of legal liberalism gets it wrong on the front and back ends.
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States’ Rights and Civil Rights: Barry Goldwater, Bill Buckley, Richard Nixon, and Southern Realignment
Did invocations of states’ rights by southern segregationists permanently discredit constitutional federalism? A re-examination of the 1960s political realignment suggests Americans can embrace—or re-embrace—this feature of our Constitution, while remembering state autonomy is a strong presumption but one that has always been checked by the Constitution’s rights guarantees.
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The Phenomenal Constitution
In Conservatives and the Constitution, Ken Kersch demonstrated that the continually reimagined Constitution is a “phenomenon” in American life, not an epiphenomenal result of more substantial politics.
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Orthodox Originalism and Conservative Identity after Ken Kersch
Kersch’s Conservatives and the Constitution showed not just that the conservative political movement shaped arguments about the Constitution, but that arguments about the Constitution were key to transforming a varied group of interests disaffected by New Deal and Great Society Liberalism into a coherent political identity and thus a powerful political order.