It is hard to not feel the heavy weight of the US’s current identity crisis. As the nation comes to grip with its past in a way perhaps not seen for over a hundred years, we struggle to understand that past, let alone carve out a way forward for the future. A microcosm of this struggle might be seen in the tension between the 1619 Project and the 1776 Unites project. On the one hand, the 1619 Project was launched in 2019 as an initiative to “reframe the country’s history by placing the consequences of slavery and the contributions of black Americans at the very center of our national narrative.” Its proponents argue that the real foundations of the nation lay not in 1776, or in 1787–88 for that matter, but in 1619, when slavery was first introduced to the continent. The nation’s founding, as such, does not deserve our loyalty or respect given its dark, reprehensible nature. The 1619 Project’s reframing of the nation’s history in terms of slavery and its legacy has influenced the public mind and helped reorient scholarship. The project 1776 Unites, on the other hand, attempts to respond to the 1619 Project by explaining the foundational themes of the American experience as a story of self-determination, equality, and resilience. It was upon these values, 1776 Unites argues, that the US was founded. Among this war of alternative histories, one may find it difficult to come to terms with America’s legacy and what that legacy would mean for political action today.

I appreciate Professor Rebeiro’s thoughtful and generous review, and also the opportunity to respond. The Nation that Never Was makes several different claims. They are of different types: some are historical claims about how certain actors thought or understood certain documents; some are philosophical claims about what the implications of a particular theory are. Some are normative or predictive claims, about what would help us move forward as a nation. And sometimes claims contain elements of more than one of these categories.

I am more confident about some of these claims than others. For some questions I do not think it makes sense to say that there is a single true answer: history often comes down to interpretation. For others I do not think truth is even the right criterion—creating a national story, for instance, mixes art with history and is probably closest to policy choice. And I’m sure there is more to learn about all of them. In this response, I will try to set out the main claims, to clarify what type of a claim each is, and to explain why I find them compelling.

In the 1970s, the British Parliament passed a public safety law that required motorcycle operators to wear helmets. They ultimately provided an exemption for members of the Sikh community, because it was not possible to wear a turban and a motorcycle helmet at the same time. Lord Chief Justice John Widgery, who had opposed this accommodation, argued that because a barrier to riding a motorcycle did not itself impede any religious practice, the law as originally written did not interfere with religion at all: it interfered only with the freedom to ride a motorcycle.

Conventional historical accounts of the Fourth Amendment generally ignore the entire antebellum period. Fourth Amendment scholars of an originalist bent typically look to the three decades from the American Writs of Assistance controversy and the British Wilkesite cases in the 1760s, to the adoption of the Bill of Rights in 1791. Scholarship then jumps to the post-Civil War period and the first two Supreme Court decisions interpreting the Amendment, In re Jackson in 1878 and United States v. Boyd in 1886. Ignoring the entire antebellum period makes some sense given that the Supreme Court did not decide a single Fourth Amendment case during this lengthy period.

Qualified immunity is a frequent target of scholarly criticism. Normative critiques typically argue that qualified immunity is an unjust policy that fails to achieve its purported policy objectives, whereas positive critiques seek to undermine the doctrine’s legal foundations largely by demonstrating that the Supreme Court committed any number of historical and interpretive errors when it created qualified immunity. Typically absent from such critiques, however, is any analysis of whether qualified immunity itself is permissible under the Constitution. This Article seeks to fill that gap and demonstrates that qualified immunity is unconstitutional under both Article III and equal protection principles. Qualified immunity violates Article III by forcing federal courts to choose between forsaking their duty to say what the law is or else issuing advisory opinions in the form of unnecessary constitutional rulings. As for equal protection, qualified immunity affords similarly situated plaintiffs with different substantive rights based only on their respective geographic locations, thereby interfering with the fundamental right of equal access to the courts. Notably, although the Supreme Court read qualified immunity into 42 U.S.C. § 1983, it has never squarely addressed the constitutionality of the doctrine. Thus, unlike other criticisms of qualified immunity, lower courts may permissibly accept the constitutional arguments presented herein and sever qualified immunity from Section 1983.

Democracies die in darkness. And so do the prospects of constitutional tort plaintiffs. Whether on account of chaos, prison bars, uniform dress, or unconsciousness, people who have suffered a constitutional tort (say, police brutality) may have no idea who harmed them.1 These identification issues can hamper or even foreclose section 1983 and Bivens suits that might otherwise lead to the recovery of damages for constitutional violations.2

This Comment will analyze how Pennsylvania courts are applying appellate waiver doctrine, and how excessive application of this doctrine is detrimentally impacting litigants’ exercise of their state constitutional right to appeal. Appellate courts have discretion to determine that litigants have waived their arguments if litigants do not strictly comply with a complicated morass of procedural and technical requirements legally necessary to preserve their arguments. While scholarly articles have engaged with the doctrine of appellate waiver, there is important empirical work that has not yet been done regarding the seemingly disproportionate use of the doctrine in Pennsylvania specifically. Ultimately, this Comment will use empirical findings to put forth three main arguments: (1) Pennsylvania appellate court judges are concluding that litigants have waived their appellate claims too frequently (and far more frequently than are the judges in other Third Circuit states); (2) the rigorous and overly formalistic rules of appellate procedure in Pennsylvania are contributing to the excessive number of cases finding that litigants have lost their rights to appeal; and (3) productive reform can be achieved through: arguing that Pennsylvania is infringing on the constitutional right to appeal, increased judicial restraint regarding the application of waiver doctrine, amendments to Pennsylvania’s formal waiver doctrine, and/or clearer instructions to Pennsylvania litigants regarding the steps they must take to preserve their claims.

In a recent series of articles, William Baude and Stephen E. Sachs have defended originalism on positivist grounds.1 Originalism is the correct theory of constitutional interpretation, they claim, because our law is originalist. If our law is originalist, then originalism is true (for us) neither because of a conceptual truth about written constitutions (e.g., that writtenness implies originalism), nor because of normative considerations (e.g., originalism successfully curbs judicial subjectivity). Rather, originalism is true in virtue of our positive law. Baude and Sachs argue that reflection on our current constitutional practices demonstrates a commitment to a specific version of originalism—what they call inclusive originalism. From a positivist perspective, to ask whether originalism is true just is to ask whether, as an empirical matter, our practices demonstrate a commitment to originalism.2

Alabama is the birthplace of the Voting Rights Act of 1965 (“VRA”).1 In the decades leading up to the passage of the VRA, the State of Alabama and local officials enforced a series of racially discriminatory laws and policies, including literacy tests, good moral character tests, and voucher (identification) requirements, with the intent and effect of locking Black Alabamians out of the political process

When advocates achieve victories for equal rights at the Supreme Court, moments of lively celebration and joyful optimism flow. For those who have long sought such rights recognition, the formal legal acknowledgement of their inherent dignity and right to claim equal social status can be profound: inspirational newspaper editorials are written, powerful and stirring speeches are made, the future looks bright. Yet, as time goes on, these constitutional victories can fail to translate into the sort of significant, on-the-ground social change that would meaningfully raise the status of marginalized groups within the existing polity. The story becomes not one of massive social progression, but instead one of mostly preservation-through-transformation. Enormous legal shifts toward equality occur, but they repeatedly fail to fully dislodge existing hierarchies or create fundamentally equitable legal and social institutions. Instead, in spite of these legal and constitutional developments, old status quos and traditional hierarchies of race, gender, sexuality, and class persist.

We locate the right to education in general international human rights law, addressing how the right to education in its disability-specific context has been considered an expression and continuation of the general right to education as enshrined in international human rights treaties. To do so, we set out to examine the fundamental ingredients of the right to education under the International Covenant on Economic Social and Cultural Rights (ICESCR) and further developments. In addition, we discuss fundamental aspects of the right to education as a social right, focusing on learners with disabilities. First, we examine whether education is a public good and analyze its dimensions within and beyond economic theory. Second, we discuss education as part of the common good in moral and political philosophy. We consider that both the concepts mentioned above — implicitly or explicitly— are the critical sources for the foundations of the right to education as a social right. Third, we explore the scope of the right to education as a social human right in the 21st century. Finally, we discuss in what form education is a human right for learners with disabilities (right to education or right to inclusive education) and the implications of these two different conceptualizations.

At first glance, it follows from a logical point of view that allowing anyone in the street to possess lethal weapons only results in more homicides, assassinations, and general chaos even when initial purchasers meet the arm licensing conditions. In a society where it is not only acceptable, but also constitutional to carry weapons from a pistol to building an assault rifle,1 it becomes extremely difficult to control gun violence.

Think about Andrea Yates’ case. In 2001, Andrea Yates, suffering from postpartum depression, believed that she was possessed by Satan and was causing her children irreparable and eternal damage. Yates drowned her five children in a bathtub, killing them. Yates was initially deemed “sane” at her first trial and sentenced to life in prison with the possibility of parole after forty years. However, on appeal, Yates’ conviction was reversed. On retrial, Yates was found not guilty by reason of insanity (NGRI) and was committed to a mental health hospital, where she has remained ever since.1 If she had pleaded NGRI through a plea bargain earlier, Andrea Yates would have received mental health treatment sooner, rather than incarceration. A NGRI plea bargain would have saved the government time and money and averted her and her family from years of trauma.

The state action doctrine grew out of a series of Supreme Court cases between 1875 and 1883—the collapse of reconstruction—challenging congresses power under Section 5 of the 14th Amendment to fight racial oppression in the South. Most famously, The Civil Rights Cases used the formal state action-private action divide to invalidate the Civil Rights Act of 1875, which had outlawed racial discrimination in public accommodations and public transportation. The Court then built 150 years of state action jurisprudence on the shaky foundation of this formalist public-private divide. But despite being widely ridiculed for its incoherence, the doctrine persists.

Not unlike the Greek god Proteus, a famous shape-shifter, the First Amendment seems to change its form and shape over time, through a process of dynamic judicial construction, to promote and safeguard the ongoing project of democratic deliberation. In fact, the First Amendment’s text plays virtually no meaningful role in protecting expressive freedom in the contemporary United States. Despite containing four distinct clauses (the Speech, Press, Assembly, and Petition Clauses), only the Free Speech Clause seems to do any meaningful jurisprudential work. The Press, Assembly, and Petition Clauses have fallen into desuetude; they generate little constitutional litigation and very few Supreme Court decisions. Textualist jurists, including Justices Neil Gorsuch, Clarence Thomas, Antonin Scalia, and Hugo Black, routinely claim that they must strictly follow the text as written when interpreting the Constitution. Curiously, however, these self-described textualist and originalist jurists do not follow this interpretative approach when applying the First Amendment. Instead, First Amendment interpretation is invariably purposive, dynamic, and of the “living tree” stripe. This phenomenon raises important and interesting questions about the relevance and efficacy of constitutional text in securing both expressive freedom and fundamental rights more generally. In the U.S., and abroad as well, expressive freedom depends much more on social, cultural, and political norms and traditions than on constitutional text. The protean First Amendment strongly suggests that—notwithstanding the vociferousness with which conservative judges, legal scholars, and lawyers advance textualist claims—the process of constitutional adjudication is, in its essence, a common law enterprise. Simply put, text can constrain only insofar as it provides a plausible basis for a judicial decision that accords with the contemporary constitutional sensibilities of We the People.

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third-party ambush. Officers and individuals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country. There is an easier way. The Supreme Court has recently reaffirmed its support for a clear and limited “exigent circumstances” exception to the warrant requirement. Such exigencies originally motivated the Court to create many of the separately-named exceptions that apply today. The Supreme Court should return those separate exceptions to their exigency-based roots, eliminating or reducing many of them while lowering the tension in officer-individual interactions. The Court should follow a simple guiding principle: if officers have reasonable suspicion that an interaction creates an exigent circumstance, a warrantless search is constitutional.

In two seminal cases from the 1960s, the U.S. Supreme Court addressed the extent to which the Eighth Amendment permitted the punishment of status versus conduct linked to status. The splintered decisions and analytical imprecision that resulted from those cases have bedeviled lower courts ever since, and the Supreme Court has refused to clarify the confusion. This uncertainty has manifested most recently in the context of homelessness, as courts have disagreed passionately over whether laws criminalizing “life-sustaining” activities in public are unconstitutional as applied to persons who lack private spaces to perform these activities. The status/conduct debate has also engaged scholars who have argued, at times irreconcilably, that a host of criminal statutes impermissibly punish status, including: the cash bond system (poverty); public bathroom laws (gender identity); fetal exposure to illegal drugs (pregnancy); and driving without a license (immigration status). To lend coherence to this area of law, this Article argues that the meaning of status in criminal law should take account of the insights offered by sociologists who have studied this issue in great detail for decades. Incorporating the sociological perspective is not only important in the creation of a workable framework addressing status and conduct; it recognizes, at the same time, the primacy of status in defining who we are and what access status affords to a host of societal benefits.

In June of 2018, Missouri resident Mike Campbell criticized his state representative Cheri Reisch on Twitter. In response, Reisch permanently blocked Campbell from following or commenting on her Twitter account that she used to communicate with the public about her legislative duties and activities.1 This is a scenario that plays out repeatedly where government officials react to private parties whose speech they dislike by blocking them on social media or deleting their comments. Campbell filed suit against Reisch, alleging violation of his free speech rights.2 The district court agreed. Following a bench trial, the court found that Campbell was entitled to declaratory and injunctive relief.3 But the Eighth Circuit reversed, holding that because Reisch’s Twitter had started as a personal campaign account, and was still a vehicle for promoting her fitness for public office, she was free to block whomever she chose.4

In the 1850s, a slave woman named Celia was raped by her owner and forced to bear his children. The same situation is playing out in present-day abortion prohibition states thanks to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade. In our country, neither a nineteenth-century enslaved woman nor a present day woman of color in many of the former slave states could seek an abortion. This Article argues that anti-abortion laws in the former slaveholding states perpetuate structures of slavery in the form of state control over the Black female body.

This comment explores the current landscape of First Amendment1 free speech protections, specifically comparing the “off-campus” rights of public students in high school versus college.2 The 2022 legal landscape in the United States is such that students’ First Amendment right to free speech is better safeguarded in public high school than in public post-secondary education. The most recent Supreme Court case on the matter, Mahanoy Area School District v. B.L., decided in 2021 in favor of protecting a high school student’s online speech, leaves out college and university students.3 Instead, courts ruling on public higher education students’ speech will likely look to Tatro v. University of Minnesota, decided in 2012, for guidance.4 In Tatro, the Minnesota Supreme Court found a university student’s online posts violative of the program’s policy and gave the university free rein to punish her speech.5 The differing rulings in B.L. and Tatro might have some plausible explanations as to the divergent treatment the students received, but at the end of the day, it leaves courts ruling inconsistently.