Constitutional Law
Reconstruction State Constitutional Conventions and the Rebirth of American Schooling
In the state constitutional conventions of the Reconstruction South, biracial coalitions of delegates constitutionalized universal public-school systems and kept their constitutions free from mandatory segregated schooling. These oft-overlooked constitutional actors illuminate the true legal relationship between our nation’s history and the current educational landscape.
Piety Police
This Note uncovers the history of how the Brigham Young University Police Department blurred the boundaries between criminal law and church doctrine. These practices included sting operations that used students as undercover agents to target morals offenses. Such tactics illustrate the risks of religiously affiliated policing as it spreads nationwide.
The Proper Role of Equality in Constitutional Adjudication: The Cathedral’s Missing Buttress
This Feature argues that constitutionally unenumerated yet nonetheless fundamental rights require judicial protection, but only from unequal infringements. Because these infringements often result from nondiscriminatory motives, particularly the desire for benefits without cost, current law doesn’t provide protection. This Feature explores a novel proposal for judicial protection for these rights.
Resurrecting the Trinity of Legislative Constitutionalism
From 1919 to 1969, the Offices of the Legislative Counsel in the Senate and House drafted precedential opinions to advise lawmakers on constitutional and subconstitutional questions. This Article lifts the curtain on this institution, revealing a hidden system that worked to reify congressional power and stymie a rising juristocracy.
To Be Given to God: Contemporary Civil Forfeiture as a Taking
Civil asset forfeiture was once a law-enforcement tool. Today, however, police and prosecutors use forfeiture to fundraise, not to fight crime. This Note challenges the constitutionality of these profit-motivated government confiscations. It argues that these “contemporary civil forfeitures” are not forfeitures at all—they are compensable takings.
Disestablishment at Work
After several decades, the Supreme Court has revised its interpretation of employment-discrimination law requiring religious accommodations, creating waves of new litigation. Latent in the doctrine, principles of nondisparagement, reciprocity, and proportionality can guide courts in resolving these claims while also anchoring nonjudicial strategies to protect employees’ basic rights.
Intersex, Trans, and the Irrationality of Gender-Affirming-Care Bans
This Article provides a comprehensive legal analysis of gender-affirming-care bans, concluding that their internally inconsistent treatment of trans-affirming care and coercive intersex-normalizing interventions renders them irrational and thus unconstitutional under even rational-basis review. We further provide a normative vision for bodily self-determination to support both trans and intersex interests.
Race, the Academy, and The Constitution of the War on Drugs
David Pozen’s new book chronicles the constitutional arguments that American litigants once deployed to protect a “right” to use drugs. This Review supplements and critiques Pozen’s important contribution, situating his findings within a broad backdrop of race, crime, and the judiciary’s eagerness to just say “yes” to the drug war.
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.
Equal Standards for Equal Protection: Revisiting Race Discrimination in Jury Selection After SFFA
In its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard, the Supreme Court appeared to take a new approach to what constitutes a Fourteenth Amendment violation. This Essay argues that the new standard should be applied to reduce race discrimination in jury selection.
Guaranteeing Honesty: Rewiring Honest Services Fraud Under the Guarantee Clause
Honest services fraud is a vital anticorruption statute used by federal prosecutors to police state and local corruption. However, the statute’s undefined terms and perceived intrusions on federalism have invited scrutiny from the Supreme Court. To redress these concerns, courts should interpret the statute to require a predicate state-law violation.
Scalia and the King: The Ancient Writ of Habeas Corpus and the Missing Legitimacy Core of Modern Habeas Law
This Essay argues for reconceiving habeas corpus as a meaningful avenue for judicial power to push back against arbitrary executive power, and proposes a surprising source for this revival: Justice Scalia’s attack on the Sentencing Guidelines. Texas’s capital murder statute is proposed as ripe for such reinvigorated habeas review.
The New Standing Doctrine, Judicial Federalism, and the Problem of Forumless Claims
The Supreme Court’s new standing cases have further narrowed the class of claims justiciable in federal court. Some state courts have followed suit, leaving valid federal claims without any viable forum. We argue that the Supremacy Clause requires state courts to vindicate federal rights by hearing some of these claims.
The Invention of Immigration Exceptionalism
Everyone believes that immigration law has been exceptional since its late nineteenth-century birth—insulated from judicial review by the Court’s creation of the “plenary power doctrine.” But early immigration law was actually ordinary public law. Recovering this reality has profound implications for scholars of immigration and public law alike.
Between a Rock and a Gun
The Roberts Court has methodically expanded the scope of Second Amendment rights. But in its first Second Amendment case involving a criminal defendant, United States v. Rahimi, the Court blinked. This Essay explores the implications of that decision.
The Second Amendment’s Second Sex
This Essay explores how the Supreme Court’s Second Amendment doctrine perpetuates gender hierarchies and a male monopoly on lethal self-defense. It critiques the narrow “true man” framing that ignores women’s experiences and advocates for a justice-centered framework that incorporates power and privilege into the gun-rights discourse.
The Eyes-On Doctrine
Across the germinal period of American constitutional and penological history, a ubiquitous, cohesive body of law gave force to the following view: the judicial power includes supervisory authority over prison government and conditions of confinement. This Note argues for a witting revival of that commonsense regime.
Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era
Relying on insights from Critical Race Theory and feminist legal theory, this Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. The Note argues that our shared constitutional memory has been artificially narrowed by underconsideration of freedpeople’s constitutional theories and claims.
History and Tradition’s Equality Problem
This Essay identifies a key feature of the Court’s new history-and-tradition doctrine that has not yet attracted significant attention: outcomes in history-and-tradition cases (involving guns, abortion, etc.) are often driven by hidden, contemporary judgments about equality—judgments whose implications may extend far beyond these cases.
Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical errors dwarf those in Bowers.