It is my honor to give the Owen J. Roberts lecture in constitutional law, named for a former dean of this law school and for a Supreme Court Justice perhaps most famous for casting the deciding vote in the 1937 case West Coast Hotel v. Parrish, which upheld a state minimum wage law and averted passage of a judicial reform bill to increase the size of the Supreme Court—the so- called “switch in time that saved nine.” Justice Roberts is also known for leading the federal commission that investigated the attack on Pearl Harbor and for being one of three dissenters in Korematsu v. United States, which upheld the relocation and incarceration of persons of Japanese descent during World War II, two-thirds of whom were American citizens.

It is also my honor to give the Provost’s Lecture on Diversity. This topic has long been a matter of personal and professional interest for me. Like many people who grew up in an immigrant family, I’ve had my share of experiences navigating racial and ethnic differences. As a judge, I have seen issues of implicit bias and structural bias play out in areas like jury selection, search and seizure, and the criminal justice system writ large.

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that, contrary to the Madisonian vision, competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty conflict, the Article explains why neither the traditional Madisonian—nor the contemporary party-based—model of the separation of powers accurately characterizes how political parties structure our constitutional framework.

The Article makes several contributions. Descriptively, it argues that intraparty conflict can immunize our constitutional system from the pathologies that arise when partisan warfare is overlayed on the Madisonian model of separated institutions sharing power. Analytically, it argues that public law scholars are wrong to treat partisanship as an identity—a fixed psychological state characteristic of individual officeholders. As the Article makes clear, partisanship is better understood as the product of institutional rules and procedures that empower partisans to join forces or go their own way. Likewise, it argues that there are analytic gains from categorizing decisions on campaign finance, candidate selection, and voter suppression as part of our separation of powers and federalism jurisprudence and explains how doing so might bear on traditional questions of constitutional law. Today, as was true at the Founding, Americans have no great love for intraparty conflict or party factionalism. But fear of the mischiefs of faction have blinded us to their merits. Preoccupied as we are by the pathologies of political polarization, we have failed to understand that the relative porousness of our parties—the very feature that drives internal party conflict—has helped to safeguard our republic and ensure the representativeness of our institutions.

“We are a nation of travelers. You cannot write our history without devoting many chapters to the pony express, the stagecoach, the railroad, the automobile, the airplane . . . . Yet, until 1964, the Federal Government did little or nothing to help the urban commuter.” President Lyndon B. Johnson’s remarks, at the signing of the Urban Mass Transportation Act, memorialized transportation evolution. His remarks also reinforced the role of federal funding to support urban commuters—many who are African American. Yet, disparate transportation funding continues to exclude people of color and people living in poverty from traveling to and benefiting from all services in their cities.

Caroline LeCount, Claudette Colvin, Irene Morgan, and Rosa Parks’ refusal to relinquish their seats and the ghastly beatings of freedom riders also document the legacy of exclusionary transportation practices. Getting on the bus symbolized mobility, access to opportunities, and ending segregated public transportation. In addition to protesting segregated buses, the 381- day Montgomery bus boycott exposed the role of transportation as a valued resource affecting economies, government operations, and employment. Similarly, the Supreme Court’s ruling that separate but equal is inherently unequal did more than integrate buses. The Court’s ruling signaled enhanced regulating of transportation systems and limiting the right to exclude in those systems.

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process.

In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes between 1776-1784, provides needed empirical evidence for linking a constitution’s legitimacy to getting all the right groups “in the room where it happened” and suggests further theoretical links between constitutional process and a constitution’s medium and long-term legitimacy. It also provides the first detailed telling of the moment when the theory of popular sovereignty was made real through the earliest popular constitution-writing and further participatory innovations not repeated for another 200 years in Africa.

This study first reviews relevant extant literature on domestic and comparative constitutionalism before proceeding to an in-depth study of New Hampshire’s five constitutional processes. The first process produced a temporary constitution on January 5, 1776. This crude, 911-word document heralded the first epoch of popular sovereignty- inspired constitution-writing. New Hampshire’s next three attempts were instituted via popular sovereignty innovations of constitutional conventions, supermajoritarian ratification, direct popular participation in constitution drafting via town recommendations, and special issue constitutional referenda, but all were stillborn. This because each excluded the western-most portion of the state. It was not until the process included representatives from this area “in the room [where the constitution] happened” that a draft was finally ratified in 1784.

In the last few decades, the Supreme Court adjudicated three major cases on standing for environmental litigants: Lujan v. Defenders of Wildlife (Lujan II), Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), and Massachusetts v. EPA. Lujan II considers a multitude of questions in this inquiry. There, the Court deliberates on the specificity of injuries alleged to occur in the future, the contours of three nexus theories, and the judicial review of procedural injuries. Thereafter, Laidlaw assesses whether it is reasonable for plaintiffs to be apprehensive of the alleged future injuries. Then, Massachusetts contemplates procedural injury again, where the Court contemplates Congress’s power to influence standing requirements. These cases provide rich discussions on standing for environmental litigants; yet, the Fifth Circuit does not integrate their doctrines.

This Comment focuses on the Fifth Circuit, due to the Circuit’s critical coverage of Texas and Louisiana. These states house the largest petrochemical complexes in the United States, which affect surrounding air and waterbodies through their industrial operations. Water pollution is potent for those living near the Texas Gulf Coast, which is exposed to the nation’s highest level of toxic releases. In terms of air pollution, Texas and Louisiana emit the highest amounts of petrochemical pollutants. These releases pose health risks for nearby residents, as these chemicals are conducive to developmental damage, cancer, and elderly mortality. The influence of environmental law—and its enforcement through litigation—is particularly salient in the Fifth Circuit’s jurisdiction.

This Comment will examine cases where the Fifth Circuit could benefit from the Supreme Court’s analysis of standing in cases arising from pollution. First, the basis for environmental litigation will be outlined; Part I will explore the congressional intent behind citizen suit provisions, and Part II will outline the general requirements of Article III standing. Then, Part III will discuss the Supreme Court’s standing analysis in environmental litigation, focusing on Lujan II, Laidlaw, and Massachusetts. Finally, Part IV will compare these Supreme Court precedents to the Fifth Circuit’s caselaw, wherein missed opportunities to draw factual and logical parallels will be identified. This discussion will be focused on the specificity of injury, the judicial authority to review procedural injury, and the adoption of the nexus theories.

Few figures in American history have faded farther from renown to obscurity than John Taylor of Caroline. John Taylor was not only a widely respected United States Senator and leading member of Thomas Jefferson’s Republican party, but he was also, in the opinion of British political scientist M.J.C. Vile, “the most impressive political theorist that America has produced.” An Antifederalist lawyer and farmer, Taylor made such thoughtful contributions to the development of the Republican party and the philosophy of states’ rights that American constitutional scholar and historian Kevin R. C. Gutzman identified him as “Virginia’s favorite thinker” over the course of the Revolutionary period to the antebellum era. Taylor wrote profusely over the course of his life, devoting most of his attention to expounding the meaning of the American Revolution, the substance of the Constitution, and the principles of the American polity. But despite consensus “[a]mong specialists in the field of American intellectual history and political thought” that Taylor “deserves the status of a major thinker,” Taylor is little known by most audiences today. And even though historians, political scientists, and legal scholars “have often agreed that Taylor was important, they have seldom agreed why.” This Comment highlights one aspect of Taylor’s thought that warrants particular attention because of its relevance to modern discussions of federalism, separation of powers, and states’ rights in hopes of bringing Taylor’s work into the light it merits.