Contrary to its critics, Dobbs v. Jackson Women’s Health Organization is not illegitimate or lawless. It is a highly consequential but fundamentally ordinary example of the inextricable connections between morality and constitutional law. If abortion is akin to murder, Dobbs could not—and should not—have come out any other way. If abortion is essential to personal autonomy and equal citizenship, the case was wrongly decided and should be reversed at the earliest opportunity.

The appropriate response to decisions like Dobbs is to criticize the moral judgments underlying them. Depending on the circumstances, institutional responses, such as court packing and jurisdiction stripping, might also be justified. But conflating moral disagreement with lawlessness is both unpersuasive and a distraction from the core issue. It is also a form of crying wolf that risks backfiring when the charge of lawlessness is actually justified.

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship as “lost” or “forgotten,” and summarizes the arguments advanced in prior scholarship for their revival or resurrection.

When viewed collectively rather than in isolation, these twelve provisions are more than the sum of their parts. This Article argues that, taken together, these overlooked or neglected provisions constitute a ‘shadow’ constitution within the prevailing one. This article deconstructs the organizational structure and key component elements of the U.S. Constitution and demonstrates how the dormant or neglected provisions interlock and complement to form a coherent but operationally absent constitutional structure. This absence, through disuse and neglect, has not only vitiated our constitutional inheritance, but would, if fully reincorporated into the prevailing constitution and accompanying body of constitutional enforcement and interpretation, afford far greater protection and security to marginalized groups while holding more powerful elements of society to account.

The United States is a public toilet nightmare. Truly public toilets are a rarity, while the restrooms provided by private businesses are inconsistently available via “customer only” policies and the discriminatory actions of owners and their employees. Some jurisdictions have made tepid attempts at providing more bathrooms, but all have failed. The result: an accumulation of entirely preventable public health harms, including outbreaks of infectious disease, illness, and dignitary harms.

This Article is the first to provide a comprehensive review of U.S. toilet law—the laws and policies that determine where bathrooms are provided and who has access to them—and diagnose its failings. Despite municipal, state, and federal actors’ efforts to expand availability, members of the public are too often forced to rely on the private provision of bathrooms. It is clear that the status quo has failed to address this most basic human biological necessity.

This Article makes the case that recognizing a state constitutional right to public bathrooms is the best way to address this problem. Drawing from recent developments in international human rights, it sets forth the basis on which courts could recognize a right to public toilets as part of a state constitution’s public health provision.

Academic freedom is an essential principle undergirding education in the United States.  Its purpose is to further the freedom of thought and inquiry in the academic profession by advancing knowledge and the search for truth.  Academic freedom goes back more than a century, and is now intertwined with First Amendment doctrine.  Yet today’s academic freedom doctrine suffers from serious problems, some of which perpetuate discrimination in the classroom and systemically in educational institutions.

The definition of academic freedom in theory is misaligned with that in case law.  Courts have done little to analyze what protections academic freedom provides, and case law generally provides too much protection in some cases, and too little in others.  Worse, academic freedom for universities and professors has been hotly debated and thus well-defined and protected in case law, whereas students’ academic freedom has received less attention, making it a “second-tier” academic freedom.  Often, protecting university and professors’ academic freedom comes at the expense of students’ academic freedom, though courts have never truly struggled with multistakeholder academic freedom questions or tried to create a clear process to determine whose academic freedom prevails when the two conflict.  This results in academic freedom being used as a sword to promote discriminatory behavior, and as a shield to protect acts of discrimination from being punished.  Existing constitutional and statutory antidiscrimination protections do not provide adequate support against discrimination, especially for students’ academic freedom.  Constitutional protections for students’ academic freedom often take the back seat to free speech doctrine, and antidiscrimination protections are often parried by using academic freedom to protect problematic behavior.

A few solutions abound: first, the definition of academic freedom is nearly a century old, and needs to be redefined to incorporate antidiscrimination principles to be relevant for the present.  Second, students’ academic freedom rights need to be understood and defined more clearly.  Third, courts must find a way to balance competing stakeholders’ academic freedom interests, ultimately looking to the purpose of academic freedom to advance knowledge.  Finally, universities must play their part by creating systems and structures to ensure that discrimination is remedied as early as possible, and that university processes help clarify the extent of academic freedom definitions and support application of antidiscrimination law.

On April 1st, 1997, Eric Oliver was arrested by the Las Vegas Metropolitan Police Department and detained at the Clark County Detention Center (CCDC). For the first two days of his detention, Oliver was locked in a 404 square foot cell with around fifty other detainees.  On April 3rd, he was transferred to a smaller cell, only 174 square feet, where he was kept with eighteen other people.  For the following three days, Oliver was locked in the cell with no bed and no linens.  He and the other detainees slept on the floors with intense overhead lighting and extreme air conditioning that “chilled [him] to the bone.” Oliver requested medical attention for a back condition, but his request was denied.  After his release from jail, Oliver filed a § 1983 action against the management, Clark County, and the Clark County Sheriff, alleging violations of his Fourteenth Amendment rights.

Since Oliver brought his suit in Nevada, his claim for compensatory damages survived a motion to dismiss, even though he was not able to demonstrate a physical injury. This was notable because § 1997e(e) of the Prison Litigation Reform Act (PLRA) creates a physical injury requirement for incarcerated people who bring § 1983 claims. However, if Oliver had lived in Philadelphia, New York, or a number of other cities across the country, his claim for compensatory damages would have been dismissed. These disparate outcomes would have been the result of the different ways courts interpret the physical injury requirement of the PLRA.  In this particular instance, Oliver’s claim survived because he was in the Ninth Circuit. Claims in Philadelphia or New York would have been governed by the Third and Second Circuits, respectively, both of which have case law that would prevent the award of compensatory damages.