Constitutional Law
Antisubordinating the Second Amendment
Racial-justice claims have played an enduring role in the movement and jurisprudential history of the contemporary Second Amendment. This Note argues that, far from a source of equal freedom, our modern expansionist Second Amendment—which reasons in the register of history and tradition—reinforces conditions of racial subordination.
Equity’s Constitutional Source
This Article uncovers the federal equity power’s constitutional source. It argues that, as originally understood, Article III vests the federal courts with inherent power to grant equitable remedies and to adapt the federal system of equity in ways beyond what the Supreme Court’s current cramped, statute-based equity jurisprudence permits.
The Constitution as a Source of Remedial Law
This Essay responds to Owen Gallogly’s Equity’s Constitutional Source. It argues that it is implausible to locate the federal courts’ authority to afford equitable relief in Article III, but it defends a constitutional default rule applicable to legal as well as equitable remedies having its source in the Supremacy Clause.
The Fourth Amendment and General Law
This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s underlying values better than competing theories.
The Illusory Promise of General Property Law
This Essay criticizes using “general” or federal property law to define constitutional rights, including protections against unlawful search and seizure. Federal property law is an ahistorical and indeterminate concept. Its ascendance in Takings Clause opinions illustrates its flaws and the risks it poses for beneficial variation in state property rules.
General Citizenship Rights
This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older constellation of ideas about federalism and fundamental law.
Interconstitutionalism
Drawing on practice and convention from America and abroad, this Article documents the surprisingly robust role that past constitutions play in the interpretation of extant constitutions, and assesses what this pervasive practice tells us about theories of constitutional meaning, processes of constitutional drafting, and exercises of popular sovereignty.
The Neglected Port Preference Clause and the Jones Act
The Constitution’s Port Preference Clause restricts Congress’s ability to favor “the Ports of one State over those of another.” This Note argues that the Jones Act, which prohibits foreign vessels from transporting goods between U.S. ports, violates the Clause by favoring West Coast ports over those of Alaska and Hawaii.
Partisanship, Remedies, and the Rule of Law
This Essay responds to Don R. Willett and Aaron Gordon’s Review of The Collapse of Constitutional Remedies. I show that Willett and Gordon inaccurately describe Collapse’s main argument; offer an internally inconsistent critique; and fail to understand key terms such as judicial independence and the rule of law.
Rights, Structure, and Remediation
In The Collapse of Constitutional Remedies, Aziz Huq contends federal courts exacerbate societal inequities by overzealously enforcing constitutional limits on government regulation while neglecting individual-rights violations. Though some of Huq’s criticisms are spot-on, others are overstated, and his confessed “redistributive goals” —exalting certain constitutional protections over others—imperil rule-of-law principles.
Schoolhouse Property
Since the Supreme Court’s 1975 decision that students enjoy constitutionally protected property interests in education, most states have passed laws and regulations requiring schools to provide meals and health services to students. These services arguably constitute entitlements, requiring schools to afford heightened procedural protections to students subject to exclusionary discipline.
The Emergence of Neutrality
This Article traces the origins of the content and viewpoint neutrality principles in First Amendment law. It argues that these ideas emerged later than scholars have previously appreciated and that their development was tied to a broader Twentieth Century transformation in constitutional rights jurisprudence.
Writing About the Past That Made Us: Scholars, Civic Culture, and the American Present and Future
This Review assesses the arguments made in Akhil Amar’s The Words That Made Us about the impoverished nature of our current discourse on our constitutional system of government.
Felon Re-Enfranchisement and the Problem of “Lost” Rights
Courts have upheld laws conditioning felon re-enfranchisement on financial repayment by reasoning that disenfranchised citizens lack the rights and protections of political equality. Drawing on legal and democratic theory, this Essay challenges that view. Because disenfranchised citizens retain cognizable interests in political participation, financial-repayment conditions are unconstitutional poll taxes.
The Constitutional Right of Self-Government
The Assembly Clause today serves little purpose. But long before the First Amendment’s drafting, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This Article argues that this right can be interpreted as a right to meaningfully participate in enacting needed legislation.
A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s
The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indicates Congress in the 1790s found such delegations constitutional.
Nondelegation at the Founding
Several current Supreme Court Justices have signaled a renewed interest in resurrecting the nondelegation doctrine, but numerous scholars have portrayed the doctrine as ahistorical and unoriginalist. This Feature systematically reviews the evidence and concludes there is much more historical support for a revived nondelegation doctrine than recent scholars have argued.
Supreme Court Reform and American Democracy
The current crisis of the Supreme Court is inextricable from the question of the Court’s role in our democracy. We identify three strategies for ensuring the Court maintains its proper role—internal restraint, external constraints, and structural reform—and argue that internal restraint and external constraints suffer from serious drawbacks.
The Race-Blind Future of Voting Rights
The world of voting rights could soon be turned upside down. A conservative Supreme Court might insist that minority voters' existing representation be compared to the representation they would receive if the redistricting process were race blind. This Article is the first to explore the potential consequences of this dramatic shift.
Spinning Secrets: The Dangers of Selective Declassification
Presidents often engage in what this Note calls selective declassification: the practice of declassifying documents that help advance a presidential agenda while keeping conflicting documents secret. This Note shows how selective declassification distorts public perceptions and policy choices, and offers reforms to mitigate these harms.