Legal History
The Unabridged Fifteenth Amendment
The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providing an unabridged accounting of the Fifteenth Amendment’s adoption.
Deciphering the Commander-in-Chief Clause
At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping authority over the military and its operations.
The Modern State and the Rise of the Business Corporation
This Article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. Corporate technologies require the support of a powerful state with the geographical reach, administrative power, and legal capacity necessary to enforce the law uniformly among a corporation’s various owners.
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.
What We Ask of Law
This Book Review asks what comprises a well-functioning legal system in light of new evidence of how law operated across a wide historical panorama. Such contextualization has implications for a sound working definition of law, understanding law’s relation to the rule of law, and law’s role in emancipatory projects.
The Separation-of-Powers Counterrevolution
The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in representative institutions authority to constitute the separation of powers by statute.
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.
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.
Truer U.S. History: Race, Borders, and Status Manipulation
Daniel Immerwahr’s How to Hide an Empire rewrites U.S. history with empire at the core. Building on that accomplishment, this Review sketches a U.S. legal history of indigeneity, race, slavery, immigration, and empire in which legal “status manipulation” accomplished and hid the myriad wrongs done.
Expounding the Constitution
This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary debates about how to interpret statutes and expound the Constitution.
Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination
This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community entitled to self-governance.
Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis
Current crises of economic inequality and eroding democracy require us to move beyond legal orientations that prioritize efficiency, neutrality, and apolitical governance. This Feature suggests new orientations and questions for scholarship on “law and political economy” that instead foreground realities of power, aspire toward equality, and are committed to democracy.
Island Judges
Tracing the evolution of territorial courts over the last half century, this Note argues that prevailing justifications for withholding life tenure from federal judges in U.S. territories are now obsolete. It foregrounds the central role that the Judicial Conference has played in preserving two separate castes among federal district-court judges.
Plessy Preserved: Agencies and the Effective Constitution
Federal officials enforced a “separate but equal” framework for public housing long after Brown invalidated that principle. This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that path—and what it teaches about administrative constitutionalism.
Twenty-First-Century Contract Law Is a Law of Agreements, Not Debts: A Response to Lewinsohn
Jed Lewinsohn’s excellent article on consideration offers groundbreaking work on the concept of exchange but errs in seeing the motivational account of consideration as a bad fit with doctrine. I argue that the motivational account provides a more natural justification for both consideration and for contract law as a whole.
Paid on Both Sides: Quid Pro Quo Exchange and the Doctrine of Consideration
The doctrine of consideration in contract is home to the law’s only substantial account of quid pro quo exchange—one that withers under philosophical scrutiny. By fleshing out the idea that exchange involves reciprocal payments, this Article offers both an original theory of exchange and a reconceptualization of consideration.
Sex in Public
This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to signify equal access, freedom from sexual norms, and institutional transformation.
Empire States: The Coming of Dual Federalism
In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quasi-sovereigns into the hands of only two legitimate sovereigns.