There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past—like precedent—will constrain it. And that the decisions of the preceding terms—overturning Roe v. Wade, expanding the “right to bear arms,” ending affirmative action, among other extraordinary decisions— are just the beginning of a long and cold jurisprudential winter.

Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the “need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.”

This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court’s originalism has become.

“History is a jangle of accidents, blunders, surprises and absurdities, and so is our knowledge of it, but if we are to report it at all we must impose some order upon it.”

Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the effects of New York State Rifle & Pistol Association, Inc. v. Bruen are already being felt. Several courts, including one circuit court, have already struck down a potpourri of federal firearms statutes. This trend may continue to gain momentum, or it may be stopped in its tracks by a new Supreme Court decision that places limits on Bruen. But it is unlikely to fizzle out on its own.

This article seeks to understand these recent events as distinct modern phenomena. To do so, it creates a holistic, conceptual framework that situates the developments of the last thirty years within the broader, global history of the federal government’s approach to firearms crime. The framework organizes the story of federal firearms policy into a series of conceptual narrative clusters—or acts—each with its own characters, conflicts, and shared views about the role of law in society. Through this framework, themes and trajectories emerge, shedding valuable light on our understanding not only of where we are and where we have been, but also of where we are going in our federal approach to firearms crime. As the first article that paints a comprehensive picture of federal firearms policy in this way, and as one of the first to address the emerging post-Bruen legislation, it will also add structure, focus, and energy to important ongoing scholarly discussions.

In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens’ lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives—e.g., via detention, cross-border shootings, and deportation— explorations have yet to consider the system as a whole from this perspective.

My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking immigrants’ lives. They do so in part by normalizing death as the inevitable cost of upholding the rule of law. And yet, there is nothing normal or inevitable about the myriad policy choices, statutory provisions, and evacuations of constitutional protection that undergird immigration law and enforcement. These choices form an architecture that, in the words of Achille Mbembe, “subjugate(s) life to the power of death.”1 I consider death by design, death by enforcement, death by denial, and death by expulsion—then show how jurisprudence and laws accept and contribute to these deaths. In the final sections of my paper, I consider how we might dismantle the assumptions, laws, doctrines that devalue and take noncitizen life throughout our immigration system.

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.

History reveals that Pennsylvanians had a distinct, original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited the addition of any severity contemporary science deemed unnecessary for those ends. The historical record should thus provide, not prevent, a distinctly Pennsylvanian definition of cruelty.

This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Supreme Court of Pennsylvania interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments.

Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history supplies.

Imagine receiving a letter in the mail from a credit card company, notifying you of your “pre-approved” status. Relief after being exempted from the complicated screening process, happiness at the prospect of an elevated credit score, elation at receiving a shiny new card in the mail. These are all common feelings when receiving an enticing credit card offer. How then would it feel if you applied, but were quickly denied? And afterwards, that your credit score plummeted due to the ensuing credit report inquiries? The parade of horribles does not stop there. Not only must you face the embarrassment of rejection and the unwarranted drop in your credit score, but also the reality of your new credit score negatively impacting future applications. This exact chain of events led to the FTC bringing a complaint against Credit Karma in 2022. While Credit Karma eventually paid upwards of $3 billion to affected consumers, many defrauded consumers are not so lucky. The current state of commercial speech regulations can make recovery difficult, if not impossible, because they center on the speaker’s right to freely promulgate ideas. Advertisements qualify as protected speech under the First Amendment so long as they are not blatantly deceptive. Even if a challenge is brought against deceptive advertising schemes, Unfair and Deceptive Practice Statutes (“UDAP”) are unwieldy in practice and can be riddled with loopholes that allow an advertiser to escape liability.

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.

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.