Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one that has both seduced and vexed scholars and Justices alike for generations: constitutional statesmanship. When wrestling with the statesmanship ideal, theorists are often inclined to simply shrug their shoulders, concede that a precise definition is impossible, and suggest that we often know statesmanship when we see it. We can do better. In this Article, I define constitutional statesmanship for our age of constitutional revolution. Drawing on a diverse set of theorists and methodological approaches—most notably, Ronald Dworkin’s famous concept of “fit”—I argue that constitutional statesmanship is best understood as the balance between three modes of analysis: (1) legal fit (relying on conventional legal materials and arguments); (2) popular fit (drawing on concrete indicators of current public opinion); and (3) pragmatic fit (factoring in predictions about public responses, policy consequences, and assessments by legal elites).

This Article identifies a radical transformation in constitutional law methodology: the central project of constitutional analysis has changed from offering value-neutral theories of interpretation to observing and critiquing conservative forces that undermine popular self-rule. This is most apparent in scholarly reactions to the Roberts Court’s refusal to strike down legislation that promulgates voter suppression, partisan gerrymandering, and abortion restrictions. Scholars treat these decisions to leave legislation standing as a direct assault on democracy, a distinction previously reserved for decisions that struck down legislation (such as Lochner v. New York). This new paradigm indicates a radical realignment in academic evaluation of judicial review, with a focus on substance rather than procedure. This Article illuminates this shift by observing scholars’ novel invocation of the ‘countermajoritarian difficulty.’ Widely recognized as the obsession of law professors for the past century, the countermajoritarian difficulty traditionally queries, why do non-accountable judges have authority to interdict decisions by elected representatives? The threat of far-right extremism has inspired constitutional law scholars to use countermajoritarianism to denote any political influence – the conservative-dominated judiciary, Republican legislatures, or polarized right-wing voters – that is perceived as exacerbating democratic backsliding. This changing use of countermajoritarianism portends a wider shift in constitutional theory. The classical approach to the countermajoritarian difficulty aspires to use general principles of constitutional analysis to reconcile independent judicial review with popular self-determination. This approach provides abstract explanations of constitutional interpretation and avoids openly committing to ideological or policy positions. Conversely, the new trend defines any threat to legitimate democratic self-governance as countermajoritarian. PCM constitutional theory thus takes as its starting point a set of substantive moral commitments. Polarized countermajoritarianism has a dramatic effect on doctrinal analysis. Traditionally, scholars invoke countermajoritarianism when courts strike down legislation. The new trend identifies it where courts allow legislation to stand but such inaction fails to protect democratic process against attacks from the far right. This Article posits that this radical shift in doctrinal analysis is a response to the loss of civic unity and democratic consensus in American politics. Polarized countermajoritarianism highlights the fragile condition of contemporary democracy but linquishes the analytic clarity of classical countermajoritarianism—a tradeoff scholars and jurists must incorporate into future analysis.

The 2020 presidential race was hard fought—before Election Day, and after. The loser, Donald Trump, spent weeks pressuring state legislatures to overturn his defeats. His arguments hinged on Article II of the U.S. Constitution, which, his lawyers insisted, permitted legislatures to intervene. While no legislature did so in 2020, the specter of postelection legislative interference still threatens our elections and risks a constitutional crisis.

This Article explains why Article II permits no such thing. Specifically, it argues that Article II’s grant of power—whatever its content—must be read as directed only toward pre-election legislatures, not postelection ones. This claim fills major gaps in the literature. First, previous scholarship assumes that Article II is silent, or ambiguous, on postelection interference. Blocking interventions would then depend on other authorities—like the Due Process Clause or state-constitutional provisions—ill-suited for the job. This Article shows, however, that Article II itself unambiguously bars postelection interference. Second, this Article sidesteps the debate about “independent state legislature” (ISL) theory—the focus of most scholarship on the 2020 election. Its argument holds, that is, regardless of what one believes about ISL doctrine. At the same time, this argument remains vital even after the Supreme Court snubbed ISL logic in Moore v. Harper. That decision leaves ample room, this Article argues, for Bush v. Gore-style debacles that foil state courts in constraining rogue legislatures.

To support its position, this Article advances four separate contentions, each sufficient to compel the above conclusion. The first contention analyzes Article II’s text according to intratextualist principles. The second unpacks the Framers’ original understanding of Article II. The third examines the original understanding behind Congress’s election-timing statute, which gives effect to Article II, Section 1, Clause 4. The fourth analyzes constitutional purpose. Finally, this Article also explains why the original understanding of Congress’s election-day statute—which let legislatures handpick presidential electors if their state “fail[ed]” to choose on Election Day—did not permit such handpicking after the 2020 election.

When the U.S. Supreme Court in the 2019 case of Franchise Tax Board v. Hyatt held that the Constitution bars private suits against a state in another state’s courts, it endorsed a surprisingly shallow conception of state sovereign power. But the doctrinal alternative from the now-overruled Nevada v. Hall is no better. Where Hyatt gives too much constitutional protection to would-be defendant states, Hall gives too little. And both approaches mistakenly conceive of interstate sovereign immunity as an on/off switch that the Constitution locks in one position.

Finding neither Hyatt III nor Hall satisfactory, I offer a third view. The Full Faith and Credit Clause was meant to ensure that states extend to each other dignity and respect for their sovereign duties. In the case of private suits against a defendant state in another state’s court, these sovereign duties conflict, and it is impossible for a forum state to preserve the sovereign duties of another state without impairing its own. To ensure full faith and credit, the Constitution, I argue, requires that states extend sovereign immunity to their sister states only when doing so maximizes the total sovereign power available to both states. In my view, this approach to interstate sovereign immunity is more consistent with the crucial value precipitated by the Constitution and enshrined in our federal system: states respect each other.

Congress passed the National Voter Registration Act of 1993 (NVRA) to maximize voter registration opportunities and correct a century of discriminatory and overly complicated State voter registration laws. Section 7 of the NVRA was designed to increase voter registration among low-income and minority citizens by requiring States to provide voter registration services at public assistance agencies. However, a three-decade campaign by state governments to resist implementing the NVRA has undermined its effectiveness.

As a part of this campaign, States interpret Section 7 narrowly to limit its scope. Under Section 7, each State must designate as Voter Registration Agencies (VRAs) “all offices in the State that provide public assistance.” Congress used this broad language out of a concern that states would limit the number of Voter Registration Agencies. However, this is exactly what States have done. Notably, no State has ever designated Public Housing Authorities (PHAs) as Voter Registration Agencies.

Public Housing Authorities are state agencies that administer housing aid programs funded by the U.S. Department of Housing and Urban Development (HUD). PHAs serve millions of low-income and minority citizens who are least likely to be registered to vote. Providing voter registration services at PHAs would effectively increase democratic participation and diversify the electorate. This paper argues that the plain text and legislative intent of the NVRA require States to designate Public Housing Authorities as Voter Registration Agencies.

This paper uses prior case law and statutory interpretation techniques to demonstrate that PHAs are “offices in the State” that “provide public assistance.” These are the only requirements under Section 7. Therefore, States are out of compliance with the NVRA for failing to designate PHAs as VRAs. This paper recommends that the U.S. Department of Justice and private citizens use the statutory right of action included in the NVRA to force State compliance.