Reva B. Siegel
Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It
This Article offers the first legal history of the Comstock Act from its enactment to its post-Dobbs reinvention. From conflicts over Comstock’s enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free-speech law and the law of sexual and reproductive liberty.
The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism, history and tradition, and “levels of generality.”
The Nineteenth Amendment and the Democratization of the Family
Women’s claim to vote advanced a broader effort to democratize the family. This Essay recovers debates over the family connecting the Reconstruction Amendments and the Nineteenth Amendment, and considers how this lost history might guide the Constitution’s interpretation in courts and politics today.
Equality’s Frontiers: How Congress’s Section 5 Power Can Secure Transformative Equality (as Justice Ginsburg Illustrates in Coleman)
Before (and After) Roe v. Wade: New Questions About Backlash
120 Yale L.J. 2028 (2011). Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as...
From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases
120 Yale L.J. 1278 (2011). For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on...
Introduction: The Constitutional Law and Politics of Reproductive Rights
118 Yale L.J. 1312 (2009).
Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart
117 Yale L.J. 1694 (2008). This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe—exploring strategic considerations that lead advocates to favor incremental restrictions...
Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act
112 Yale L.J. 1943 (2003) The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separation of powers in which the Court alone can interpret the Constitution,...
Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel
110 Yale L.J. 441 (2000) Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, the Court concluded that Section 5 did not give Congress the power to...