Dobbs v. Jackson Women’s Health Organization undid 50 years of precedent guaranteeing the constitutional right to abortion in the United States. At the one-year anniversary of the decision, and as the devastating consequences continue to play out across the country, this article analyzes Dobbs and its impact. It also charts a way forward for rebuilding a more robust Fourteenth Amendment jurisprudence. It draws on the authors’ individual perspective and expertise, and the Center for Reproductive Rights’ role as lead counsel in the case and as a global human rights organization advancing reproductive rights in the United States and around the world.

[I]t is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, and property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution.

What is the relationship between Reconstruction and the Founding? Conventional wisdom has it that Reconstruction was a fulfillment of Founding ideals. The Founding Fathers, on this account, believed in the ideals embodied in the Fourteenth Amendment—indeed, they stated those ideals in the Declaration of Independence. Because of the institution of slavery, however, they were unable to put those ideals in the Constitution written in 1787. And so the promise of the Declaration went unfulfilled for almost a hundred years, until the Reconstruction Congress wrote it into Section One of the Fourteenth Amendment. Reconstruction marked an enormous change in our constitutional order, the received wisdom acknowledges—we could call it a Second Founding. But the Second Founding is an act of continuity, not revolution: it vindicates the ideals of the first. It represents the triumph of true American values over the deviant institution of slavery and the Confederate society that rejected the principles of the Declaration. Founding America wins the Civil War and is redeemed by its victory.

Or maybe not. The conventional story outlined above, I will argue, is confused in many ways. Most fundamentally, it misunderstands the relationship between Reconstruction and the Founding. Rather than a realization of Founding ideals, Reconstruction is better understood as a rejection of them. Rather than the vindication and triumph of Founding America, the Civil War and Reconstruction are its repudiation and defeat. Founding America did not win the Civil War; it lost. It was not redeemed by Reconstruction; it was destroyed. And while there is some room for pride at the achievements of Founding America, what true patriotism demands of us is pride in its destruction.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . and of the State wherein they reside.”

A White police officer pins his knee against a Black man’s neck. The Black man lies prone. He says he can’t move. He says he can’t breathe. He says he’s through. He pleads for his mama. He moans, gasps, and writhes. Blood runs out of his nose and mouth. After eight minutes and forty-six seconds, George Floyd is dead.

Videos of the killing went viral. All four of the Minneapolis Police Department officers who arrested Floyd for allegedly using a counterfeit $20 bill at a convenience store were fired. Derek Chauvin—who held his knee to Floyd’s neck—was initially charged by the Hennepin County Sheriff’s Office with third-degree murder and second-degree manslaughter with culpable negligence. Minnesota Attorney General Keith Ellison then announced that Chauvin was being charged with second-degree murder and that Tou Thao, Thomas Lane, and J.A. Keung—the cops who stood by while Chauvin killed Floyd—were being charged with aiding and abetting second-degree murder. On April 21, 2021, Chauvin was convicted on all counts.

The newest Associate Justice of the Supreme Court of the United States, Ketanji Brown Jackson, wasted very little time. The day after she was sworn in as an Associate Justice, she set her sights clearly and directly on the prevailing orthodoxy that reigns over the Court’s race jurisprudence. The case was Allen v. Milligan. The plaintiffs, Black voters, sued the state of Alabama alleging that Alabama’s congressional district map diluted their votes in violation of section 2 of the Voting Rights Act of 1965. Alabama responded that Section 2 was unconstitutional because it compelled the state to take race into when apportioning political power. Race conscious decision-making by the government, Alabama argued, was inconsistent with the colorblind command of the 14th Amendment’s Equal Protection Clause.

As the last inquisitor in the last round of questions before Alabama’s solicitor general would leave the rostrum, Justice Brown Jackson flipped the script. She confessed to being “a little confused” as to why Alabama thought the VRA had to be interpreted in a race-neutral way to be consistent with the Constitution. “[G]iven our normal assessment of the Constitution,” she asked, “why is it that you think that there's a Fourteenth Amendment problem?” More specifically, she continued, we should not assume that “just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought.”

For seventy years after the Civil War Amendments were ratified, the Supreme Court sought to nudge Southern courts and legislatures toward racial justice. But the case-by-case messaging was largely lost on the relevant actors. In 1954, the Warren Court struck a systemic blow for racial justice in Brown v. Board of Education. State legal mandates that segregated public schools were unconstitutional. A few years later, the Court sought systemic solutions to racial injustice in the state criminal justice systems. Although reforms like requiring states to provide counsel for indigent defendants would benefit all races, this article argues that the Court saw Black Americans as particularly affected by injustices in state criminal justice system. From 1961 to 1968, the Court decided five landmark criminal procedure cases that sought to advance racial justice. The problem? States found “workarounds” for most of those guarantees. Defendants, including Blacks and other minorities, might be slightly better off today than they were in 1960, but only at the margin. Could the Warren Court have done better? Can courts do better today? The answer is a modest yes, at least as to some protections.

In recent years, Congress has increasingly turned to the courts to challenge executive actions. In these suits, the executive branch has strenuously pressed several distinct doctrinal arguments that interbranch cases are nonjusticiable and must be dismissed. These arguments, though expressed in the relevant language of each individual justiciability doctrine, are all centered on a single fundamental point—the judiciary should not be involved in refereeing a dispute that is solely between the legislative and executive branches. The briefs and judicial opinions explicitly identify a coherent category of cases—interbranch cases. But these cases are treated haphazardly as a matter of doctrine. Within various doctrines, however, the same fundamental argument has been that interbranch suits are exceptional and not appropriate for judicial intervention. Even when that argument has been ultimately rejected, it has largely succeeded in preventing the judiciary from resolving the merits of these interbranch cases before they become moot.

This Article rejects the interbranch exceptionalism that obscures most discussions of these cases and asserts that the judiciary should address—and resolve—interbranch cases on the merits under its equity jurisdiction. It shows that the executive branch has not historically followed the justiciability positions it now asserts, but has in fact accepted and advocated for judicial intervention in the past. The executive branch has strategically adopted justiciability arguments recently to prevent judicial interference as it has asserted more robust and exclusive constitutional authority vis-à-vis Congress. The executive branch is better positioned to engage in constitutional self-help, and these justiciability arguments enable it to retain its constitutional advantage in interbranch disputes. A close analysis of each of these doctrinal justiciability arguments demonstrates that interbranch cases are not exceptional, however. And well-established traditions of equity—which parallel justiciability inquiries related to standing and the political question doctrine—establish the appropriate case-by-case inquiry into the judicial role in an interbranch case. The judicial power extends to all cases in equity arising under the Constitution, including interbranch cases. Courts should not shrink from that responsibility. When appropriate under traditional equitable principles, courts should decide interbranch cases in equity on the merits. Shirking that duty is not a passive virtue but a decision to allow the separation of powers to be determined by constitutional self-help.

The Supreme Court’s landmark 1971 decision in Graham v. Richardson, which declared noncitizens to be a “discrete and insular minority” under the Equal Protection Clause, catalyzed an extraordinary era of litigation in support of the civil rights of noncitizens. Noncitizens and their attorneys succeeded in overturning hundreds of discriminatory laws through court challenge or legislative lobbying, drawing directly on a tradition of Black civil rights advocacy. They transformed the doctrine of equal protection, convincing courts that aliens should be protected from invidious state discrimination. Yet after just a few years, the inclusion of noncitizens in equal protection doctrine took a surprising turn, as the Court backtracked from expansive protections and created an exceptional “dual standard” for alienage discrimination. As a result, noncitizens were pushed outside the fold of robust Fourteenth Amendment protection. Today, states continue to bar immigrants – both documented and undocumented – from a wide range of professions, economic activities, and forms of political engagement, based on their lack of citizenship. This article is the first legal history to examine equal protection doctrine as it relates to noncitizens during this pivotal era. Drawing on extensive primary source material from the archives of advocacy organizations, the papers of Supreme Court Justices, and more, the article looks at the development of doctrine from the standpoint of the litigants and lawyers who made the movement. In so doing, it provides crucial context for understanding the history of the Equal Protection Clause and the continued struggles for immigrant rights today.

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.