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The article focuses on the reconstruction of the United States after the Revolutionary War, specifically the roles of statehood and citizenship during the 1780s. The author discusses the book "The Creation of the American Republic, 1776-1787," by Gordon Wood, examines the role of women and Black people in public life, and explores the creation of the constitution.

The U.S. Constitution is profoundly undemocratic, as generations of abolitionists, socialists, labor activists, and Black radicals have loudly proclaimed. Just as it did a hundred years ago, the document creates an infrastructure for minority rule—a specific and very American brand of white authoritarianism. This is because the Constitution organizes representation around states rather than the principle of one person, one vote. And it fragments and undermines popular authority through endless veto points. The consequences today are numerous: presidents elected who lose the popular vote; a Senate that gives vastly more power to voters in Wyoming than in California; an impassible route for constitutional amendments; a tiny, lifetime-appointed Supreme Court that repudiates popular policies, including the right to abortion, and elevates the president above the law—abetting a culture of impunity. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the author discusses articles in the issue on topics including constitutional decline and the need for constitutional reform and a constitutional convention due to the U.S. Constitution's flaws.

The article focuses on defending and clarifying a pluralist approach to constitutional justice in response to critiques of the author's book "A Pluralist Theory of Constitutional Justice". Topics include the challenge of defining constitutional justice within liberal versus populist frameworks; the limitations of applying pluralist theories across global contexts; and the struggle to reconcile pluralism with universal principles of justice in both theory and practice.

The article offers information on the history and persistent influence of constitutional racism in America. Topics discussed include the use of coded racism embedded in the Constitution; the legal and structural entrenchment of anti-Black discrimination; the Supreme Court's role in reinforcing racial hierarchy through "colorblind" interpretations; and the evolution of constitutional interpretations that continue to subjugate African Americans through ostensibly race-neutral language.

The article examines the historical significance of preambles in legislative texts and argues that the Preamble to the U.S. Constitution should play a more prominent role in constitutional interpretation. It critiques the 1905 Supreme Court decision in Jacobson v. Massachusetts for diminishing the Preamble's importance, asserting that eighteenth century Americans would have viewed it as a crucial guide to understanding the Constitution's purposes.

It was once well settled and uncontroversial--reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture--that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries. For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton Act have dramatically limited the role of partisanship in federal employment decisions. Since 1939, the Hatch Act has reflected a related constitutional principle: just as most federal workers should not be selected or terminated on the basis of partisanship, neither should they be permitted to use their positions, once attained, for partisan pursuits. Executive Branch law and practice have long reflected a similar set of principles in the employment realm and beyond. The Supreme Court has also enforced a nonpartisanship principle across a range of cases, including the political patronage cases, in which the Court has announced and elaborated a constitutional requirement that most local government hiring, firing, and other employment decisions be made independent of partisanship. But these settled understandings, across institutions and bodies of law and practice, have come under attack in recent years. Over the course of his term in office, President Donald Trump grew increasingly willing to challenge nonpartisanship principles directly, culminating in his issuance of an executive order that would have given him the authority to reclassify large swaths of the federal workforce as outside of the civil service--an effort he has pledged to revive if given the chance. In perhaps less obvious ways, the nonpartisanship principle has been undermined by recent decisions of the Roberts Court. Across a range of cases--involving gerrymandering, public corruption, campaign finance, and manipulation or abuse of the political process--the Court has begun to evince a degree of sympathy for partisan political motives, either holding or at least suggesting that the Court is limited in its ability to prevent government officials from pursuing partisan ends. At the same time, the Court has increasingly emphasized the importance of presidential control over Executive Branch actors, a growing body of law that may represent yet another threat to long-standing principles of government nonpartisanship. Upending the long-standing constitutional settlement in favor of nonpartisanship could have dramatic consequences for both constitutional theory and constitutional practice--and could radically change the face of American governance. [ABSTRACT FROM AUTHOR]

Legislatures are having their moment. From the independent state legislature theory, to the major questions doctrine, to the potential scrapping of the Chevron doctrine, to efforts to constrain popular initiatives, legislative power today seems to be, or at least seeks to be, ascendant. At the state level, one example of the expansion of legislative power is the reinvigoration of legislative veto mechanisms. Legislative vetoes allow legislative branch actors to nullify duly authorized executive branch actions without enacting new laws. Forty years ago, the U.S. Supreme Court's decision in INS v. Chadha invalidated the federal legislative veto as an unconstitutional end-run around the lawmaking requirements of Article I of the U.S. Constitution. But this decision had no binding effect on state legislative veto mechanisms. Today, legislative vetoes persist in many states, and efforts to enhance these mechanisms have surfaced specifically in response to the COVID-19 pandemic. During the COVID-19 pandemic, state legislatures sought heightened legislative veto authority on matters of public health. The pandemic presented public health authorities throughout the country with unprecedented challenges. But little did public health officials anticipate that one challenge would come in the form of legislative pushback against the deployment of public health expertise, as state legislators in many states objected to mask mandates, vaccination campaigns, and other public health measures undertaken by state agencies. Legislatures in several states either stripped public health agencies of some of their discretionary powers or imposed additional hurdles on the exercise of these powers. Many other states have contemplated similar retrenchments. In inviting closer examination of state legislative veto mechanisms, this Article argues that these mechanisms suffer from several anti-democratic defects. Specifically, these mechanisms erode the legitimacy of legislative power, inhibit transparency in governance, prevent formation of customized administrative policies, and threaten to skew the balance of the separation of powers beyond traditional constitutional parameters. Legislation during the COVID-19 pandemic provides a dramatic example of these democratic flaws inherent to the legislative veto, but state legislative vetoes could also hobble other public policy areas. It thus is time for additional attention to the place of the legislative veto in state government. [ABSTRACT FROM AUTHOR]

The power of the United States government to recognize foreign states and governments is much broader than the authority merely to place a symbolic stamp of legitimacy on that state or government. Recognition allows foreign governments to establish diplomatic relations with the United States and also confers other substantial benefits on those governments. Despite its importance to foreign relations, the recognition power was not enumerated in the United States Constitution or discussed in the Constitutional Convention or ratification debates. A recent decision of the Court of Appeals for the District of Columbia Circuit, Zivotofsky ex rel. Zivotofsky v. Secretary of State, is the first to hold, in the context of a conflict between an act of Congress and an executive decision, that the recognition of foreign states and governments is an exclusive executive power. A seemingly innocuous passport statute created a conflict between executive and congressional policies over a controversial, and as yet unresolved, political issue: the status of Jerusalem. The court relied on post-ratification history, which, it concluded, established that presidents consistently claimed, and Congress consistently acknowledged, that the recognition power was exclusively an executive prerogative. The passport statute was held to unconstitutionally infringe on the Executive's recognition power. This Article provides the first in-depth analysis in nearly a century of the historical relationship of the executive and legislative branches to the recognition power. The Article examines in detail the post-ratification recognition events discussed by the Court of Appeals, beginning with the decisions of the Washington administration during the Neutrality Crisis in 1792-93. The Article also examines events not addressed by the Court of Appeals, most significantly early congressional acts of recognition and the 1979 Taiwan Relations Act. The Article concludes that post-ratification history establishes an authority in the President to recognize foreign states and governments but provides little support for any claim of an exclusive recognition power. However, post-ratification history is not by itself dispositive, and the legal importance of the history is examined through the lens of certain fundamental questions, including the significance of presidential and congressional inactions, acquiescence, and acknowledgement. The Article analyzes these questions through constitutional doctrine and normative values, ultimately concluding that the constitutional text, original understanding, structure, and postratification evidence do not support an exclusive recognition power in the Executive. The President's recognition power is subject to the legislative control of Congress. [ABSTRACT FROM AUTHOR]

The article presents a speech by U.S. Chief Justice William H. Rehnquist, delivered in Philadelphia, Pennsylvania on October 2, 1987. Topics discussed include the courts and the U.S. Constitution, and the tenure of John Marshall as U.S. Chief Justice and his success in molding the U.S. Supreme Court.

Unlike some similarly situated nations, the United States does not recognize the right to shelter. As a result, the country’s homelessness epidemic is exacerbated by anti-homelessness laws that punish homeless people for peddling, dumpster-diving, or sleeping in public encampments. Largely supported by the government, non-profit charities receive funding in order to deliver sheltering services into communities; however, shelters often have restrictions on who they allow to access their services. The U.S. Supreme Court has not held that there is no right to shelter, but federal and state courts have used Supreme Court precedent to carve out an understanding that no such right exists. The U.S. Constitution provides a limited number of enumerated rights, but the Supreme Court has utilized the substantive due process doctrine to find constitutional rights that are not explicit in the text of the Constitution. In 2022, the Court demonstrated a shift in their approach to substantive due process analyses by abandoning their practice of engaging in a balancing test to determine to what extent governments could restrict people’s liberty. Instead, the Court reasoned that for an unenumerated right to be constitutionally recognized, it must be deeply rooted in the nation’s history or essential to ordered liberty. With a change in approach, the right to shelter must be reconsidered. The philosophies of the American Founders acknowledge the importance of assisting the poorest sects of society not only because it fulfills the government’s duty to seek justice, but because it is critical for the legitimacy of a nation. From the Colonial era until the turn of the twentieth century, state and local governments provided sheltering services to their communities’ poorest. These services first came in the form of poorhouses and then via state-run institutions that provided care for people with the highest risk of homelessness, such as abandoned children and people with mental or physical impediments. Throughout the twenty-first century, the federal government stepped into the arena and began providing relief by funding programs that prevent homelessness and by providing grants and contracts to non-profit charities that deliver sheltering services directly to communities. Given the extensive history of government-backed sheltering services, the importance of shelter to the integrity of American justice, and the philosophies of the American Founders, this Article shows that a modern analysis supports the right to shelter despite prior judicial holdings to the contrary. [ABSTRACT FROM AUTHOR]

This article explains how a legal argument for a constitutional right to a universal basic income (UBI) in the United States could be constructed. My aim is to move the idea of a constitutionally-required UBI from the implausible to the plausible, suggesting that it is less far-fetched than it may initially appear to be. In Dworkinian terminology, everyone is entitled to equal concern and respect under the Constitution. Judges can read its abstract language morally when they decide real constitutional cases to make the country more just. In egalitarian liberalism, the quality of a person's life must not depend on financial circumstances that are mostly beyond her control and the government must protect the most vulnerable members of society from financial insecurity to enhance their personal autonomy. I reduce the sharp distinction between positive and negative rights in contemporary constitutional doctrine by elaborating on how the U.S. Constitution, and the case law that has glossed it over time, can establish a constitutional right to a UBI. A constitutional right to a UBI is morally justified and constitutionally possible; it is only implausible inasmuch as the timing is far from ideal. [ABSTRACT FROM AUTHOR]

Why does the law recognize families? Sometimes family recognition serves to foster cooperative communities in which sharing norms, more than the market or the government, determine rights and obligations. These communities often take care of dependents and serve as important sources of individual self-determination and pluralism. At other times, family delineation serves a corrective purpose, when it forces family members who are not sharing with each other to do so. At still other times, family delineation serves a distributive purpose, as when the law uses "family" definition to distribute resources to determine an intended beneficiary. This use of "family" for assumptive purposes helps distribute either public or private resources efficiently and appropriately. In the constitutional jurisprudence of the family, the Supreme Court has rarely acknowledged these different purposes for defining family even as it has adopted, without explaining, different definitions of family in different contexts. This Article argues that the different purposes served by family delineation help explain why the Supreme Court has been so willing to embrace different definitions of family. Contrary to what the Supreme Court has said, whether a statute or program "slices into" or "infringes on" the definition of family is not an important question. All legislation that impacts families does that. The important question is whether a particular definition of family is appropriate in light of the governmental purpose served by family in that context. In explaining why one must consider context before deciding on the appropriate definition of family, this Article shows that the Supreme Court's application of constitutional doctrine in the family context has been confused because it has been premature. One cannot determine what either the equal protection or due process rights of family members are unless one knows what a family member is. How the Court has determined what a family member is can--and this Article argues should--turn on the purpose family delineation is serving in different contexts. [ABSTRACT FROM AUTHOR]

People and governments all over the world are quickly recognizing that cryptocurrency has far-reaching implications for banking, finance, regulation, and related fields. And yet, despite the vast proliferation of cryptocurrencies, the intersection of cryptocurrency and civil litigation has barely been addressed in the academic literature. This includes the question of how cryptocurrency should be analyzed for the purpose of minimum contacts à la personal and in rem jurisdiction. For jurisdiction in connection with cryptocurrency, some of the biggest knots to unravel are the questions of how a minimum contacts analysis should be applied when the court is exercising in rem power over property, and how the situs of an intangible like cryptocurrency should be located. This Article determines that the United States Supreme Court's 1977 decision in Shaffer v. Heitner requires the application of a minimum contacts analysis to in rem and quasi in rem jurisdiction, meaning that the location of property in a forum on its own can no longer serve as the sole basis for jurisdictional power. While a narrow reading of Shaffer would only apply a minimum contacts analysis to quasi in rem exercises of jurisdiction, that interpretation does not comport with the Court's language or subsequent interpretation. This Article then determines that cryptocurrency is best categorized as intangible property for purposes of a Shaffer analysis. As an intangible property that exists entirely on the Internet, cryptocurrency should be sited based on a two-part framework--(1) cryptocurrency is located at the domicile of the owner, as well as (2) anywhere that the relevant blockchain network can be accessed using the Internet. This conclusion dovetails with Shaffer's requirement of a minimum contacts analysis. The Article's proposed rules tell us in which forums the cryptocurrency is "located," but due process will always mandate a finding that there is a connection between the cryptocurrency, the forum, and the claims at issue. This removes any concerns about universal jurisdiction and serves as a potent reminder that presence alone is not enough to create court power. [ABSTRACT FROM AUTHOR]

In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency—double-layer protections or single directorships—for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation of powers scholarship has focused on the division of powers into legislative, executive, and judicial functions. This Article supplies the missing account of separation of structures, and in the process defends the legitimacy of the administrative state against its critics. It argues that an emphasis on an agency’s institutional structure in adjudicating constitutionality is deeply rooted in constitutional design and the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanisms in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation. [ABSTRACT FROM AUTHOR]

We are living in what Professor Jonathan Turley calls an age of rage. However, it is not the first such period. Professor Turley explores how the United States was formed (and the Constitution was written) in precisely such a period. Throughout that history, sedition has been used as the vehicle for criminalizing political speech. This Article explores how seditious libel has evolved as a crime and how it is experiencing a type of American revival. The crime of sedition can be traced back to the infamous trials of the Star Chamber and the flawed view of free speech articulated by Sir William Blackstone. That view continues to resonate in "bad tendency" rationales for criminalizing what Professor Turley calls "rage rhetoric." An advocate for a broader theory of free speech, Professor Turley suggests that the United States should break this cycle and reject a crime that it is not only superfluous in many cases, but the product of the anti-free speech theories extending back to the seventeenth century. The elimination of the crime would fulfill what Professor Turley believes is the original and revolutionary view of free speech articulated by some figures at the start of the Republic. It would finally slay what James Madison called the "monster" lurking in our political and legal systems for centuries. [ABSTRACT FROM AUTHOR]

Diversity jurisdiction is one way civil litigants can find themselves in federal court. Under 28 U.S.C. Section 1332, the federal courts have original jurisdiction over civil actions where the amount in controversy exceeds seventy-five thousand dollars between citizens of different states. The forum defendant rule, codified in 28 U.S.C. Section 1441(b)(2), provides that a suit sitting in diversity may be removed to federal court ifno defendant, properly joined and served, is a citizen ofthe state in which the action is brought. Snap removal is a technique used by defendants whereby removal is sought before an in-state defendant is properly joined and served. Several federal circuits are in a quandary about whether a defendant may remove an action to federal court before an in-state defendant has been properly joined and served. The majority of circuits have relied on the plain language of Section 1441(b)(2), holding that a defendant may properly remove the action to federal court before an in-state defendant is properly joined and served while meeting the statutory requirements of federal diversity and the forum defendant rule. Some jurisdictions have held that a defendant' s race to the courthouse will not cure a lack of complete diversity and the demands of the forum defendant rule. Recently, the Eighth Circuit rejected snap removal as a means to cure incomplete diversity as the court lacked original jurisdiction. This Note addresses the considerations several federal circuit courts analyzed in coming to grips with the validity of snap removal in civil actions sitting in diversity. The impact of the Eighth Circuit's holding in M& B Oil, Inc. v. Federated Mutual Insurance on North Dakota litigants in their race to the courthouse will be explored. Although the Eighth Circuit does not permit snap removal to cure a lack of diversity, there are circumstances where civil actions in North Dakota may be removed via snap removal techniques. Since the federal diversity and removal statutes are interrelated, the United States Supreme Court should address the propriety of snap removal. [ABSTRACT FROM AUTHOR]

Reproductive rights have been repeatedly challenged before the same judge in the Northern District of Texas’ Amarillo Division. In the Western District of Texas, patent litigation boomed in one judge’s Waco courtroom. And several cases involving former President Trump were assigned to the same judge in the Southern District of Florida. When a party steers a case toward a particular judge, the outcome in that case may seem predetermined and therefore unfair. Assigning cases at random is one way to ensure at least the appearance of fairness. Yet there is no right to random case assignment in federal court. This Article offers three unique contributions to understanding federal case assignment. First, it contends that whether a party is entitled to a certain form of case assignment is a question of power, not fairness. The statutes, rules, and orders that determine how federal cases are assigned are creatures of federal procedure. The Constitution assigns the power to create that procedure to Congress, which Congress can delegate to the courts. Second, the Article identifies the procedure that controls case assignment in the federal district courts. A first-of-its-kind review of hundreds of local rules and general orders highlights how often cases are not assigned at random. Third, the Article evaluates the validity of case assignment practices that have impacted reproductive rights and patent litigation in Texas, and cases involving the former President in Florida. If the local rules and general orders that govern case assignment are invalid exercises of the rulemaking power Congress delegated to the courts, then the case assignments they create may be unconstitutional. [ABSTRACT FROM AUTHOR]

The article discusses issues beyond the concept of the U.S. Constitution as a living entity and as a product of common law. Also cited are some cases decided by the Supreme Court on textualism and the rights of citizens beyond constitutional provisions like Brown v. Board of Education, Lawrence v. Texas, and Loving v. Virginia, and the views of Professor David Strauss on the Constitution as a living constitution.

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text. This Article addresses the danger of these zombie provisions that has, thus far, been overlooked--the prospect that zombie provisions may influence the interpretation of still-living constitutional provisions. The United States Supreme Court and the vast majority of states require contextual analysis when interpreting constitutions--requiring that provisions be read in light of the document as a whole rather than in isolation. Many constitutional rights' guarantees are written in an abstract, undefined manner. And numerous state constitutions include broad, non-exhaustive guarantees of individual rights. These provisions demand clarification through context, and it is here that zombie provisions may continue to live on by limiting the scope of equal protection, due process, and individual rights guarantees. For example, how much protection can a set of abstract inalienable rights truly provide to LGBTQ people if it appears alongside a constitutional provision restricting the definition of marriage to a union of one man and one woman? Though removing zombie provisions would best solve this problem, I argue that an alternate rule of avoidance may mitigate these provisions' interpretive impacts. Courts may continue to engage in contextual analysis but should actively exclude zombie provisions from consideration when doing so. Exclusion sheds light on these provisions' invalidity and prevents them from influencing the interpretation of still-living constitutional provisions. [ABSTRACT FROM AUTHOR]

"Meaningful" access to the courts is a fundamental right under the Constitution's Due Process Clause. But for incarcerated persons, this access is severely limited. The Supreme Court has thus required states to provide prisoners with legal assistance for presenting complaints of civil rights violations and challenges to confinement. Because incarcerated individuals often represent themselves pro se, states often have fulfilled this constitutional duty by providing proper law libraries or legal assistance programs. However, the Supreme Court's decision in Lewis v. Casey severely curtailed prisoners' right of access, disclaiming the notion that states must enable prisoners to "litigate effectively once in court." The decision has created a circuit split about the extent of a state's obligations to incarcerated persons after a complaint has survived the pleading stage. While some circuits have found the right of access to include "affirmative assistance" after the pleading stage, others have required that the state merely not engage in "active interference" with the plaintiff's case without mandating that the state facilitate access. This Note argues that lack of affirmative assistance directly violates prisoners' due process right to access the courts. Successful claims often depend on complying with legal technicalities that an incarcerated individual would not know about without affirmative assistance. Therefore, lack of affirmative assistance after the pleading stage causes meritorious lawsuits to fail. To rectify the disparity, this Note proposes reconciling Lewis' existing framework with the need to provide post-pleading stage assistance by introducing the "legal information vs. legal advice" distinction: states must be required to furnish access to legal information after the pleading stage but are not required to provide legal advice. This dichotomy has already become commonplace in thirty-eight states that assist non-incarcerated pro se parties in civil actions, and should similarly apply to the prisoner litigation context. [ABSTRACT FROM AUTHOR]

Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at many moments in U.S. history, including in both the Trump and Biden administrations. We survey examples of restorative constitutionalism both inside and outside the United States and show that it is a powerful and varied mode of change that can facilitate popular and elite consensus and repair damage wrought by anti-democratic political actors. Restoration is not without risks: it may restrict the horizons of constitutional imagination and be abused for authoritarian ends. Nonetheless, progressives would be well-served by engaging with restorative constitutional discourse, rather than treating it as a trap and allowing it to be monopolized by conservative constitutionalists. [ABSTRACT FROM AUTHOR]

In 2022, in Vega v. Tekoh, the U.S. Supreme Court held that individuals interrogated without knowledge of their Miranda rights cannot seek remedy under 42 U.S.C. § 1983. The Supreme Court's rationale for this decision was that the right provided in the 1966 Miranda v. Arizona decision, which ensures that those facing the criminal legal system are provided information on their privileges, was not a constitutional right, and it would therefore be impermissible to seek remedy for a right that does not exist. Instead, the Court labeled Miranda rights as a prophylactic rule: a practice that exists to help protect constitutional rights but is itself not constitutionally required. With this decision, the Court is positioned to soon overturn Miranda. The job of the American judiciary is to create rulings that adhere to and uphold rights afforded under the U.S. Constitution. Prophylactic rules are no different. This Note argues that the decision in Vega v. Tekoh will hinder people--especially those from marginalized communities--from attaining the justice to which they are entitled. This disenfranchisement should be addressed through congressional action or initiatives taken by state legislatures to protect marginalized people from the injustices of the criminal legal system. [ABSTRACT FROM AUTHOR]

The article focuses on the impending repeal of the Chevron doctrine by the Supreme Court, which is viewed as a significant challenge to the administrative state's ability to regulate risks to health and safety. Topics include the potential consequences of repealing Chevron; the broader assault on the administrative state through various doctrines like the Major Questions Doctrine and the Spending Clause; and the implications for regulatory landscape, with significant health & safety regulation.

As the Founding generation understood the word, “Speaker” meant an elected member of the House. Yet modern representatives nominate non-House-members for the speakership—and many argue the practice is constitutional. To correct this constitutional drift, this Article closely analyzes the text of the Speaker Clause, the structure of the Constitution, and 700 years of history and tradition to show that the Constitution requires the Speaker of the House to be a member of the House. It also considers the practicalities of correcting this drift. If, as this Article argues, the Constitution bars nonmembers from the speakership, who can enforce that rule, especially if Congress itself is the one violating it? Though the Speaker Clause likely is not justiciable, Congress has an independent duty—equally important to that of the judiciary—to uphold the Constitution. This Article’s conclusion is significant. It clarifies the procedure and rationale involved in choosing a Speaker of the House. And by excluding nonmembers as candidates for the speakership, this Article’s conclusion promises to make future speakership negotiations and votes smoother, eliminating one avenue for meaningless protest votes. [ABSTRACT FROM AUTHOR]

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction. This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment. First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine. Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach. Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive. Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes. Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes. The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist. Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment. By contrast, existing doctrine narrowly conceives the meaning of the term “punishment.” If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence. In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government. These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment. [ABSTRACT FROM AUTHOR]

The Eighth Amendment of the U.S. Constitution bars excessive bail, excessive fines, and cruel and unusual punishments. The U.S. Supreme Court has determined that the meaning of cruel and unusual punishment is not static, but instead evolves with society. This Note discusses the Cruel and Unusual Punishments Clause generally and its application to prison conditions. This Note will also discuss the current federal circuit split over whether a lack of outdoor recreation time in prison violates the Eighth Amendment, as well as laws on outdoor recreation time for incarcerated individuals. This Note argues that a lack of outdoor exercise and recreation time in prison violates the Eighth Amendment's prohibition against cruel and unusual punishment due to its impact on the well-being of incarcerated individuals. Finally, this Note proposes that Iowa should enact legislation explicitly providing outdoor recreation time for incarcerated individuals. [ABSTRACT FROM AUTHOR]

The powers Of Congress are limited to those enumerated in the Constitution and must not be construed as the equivalent of a general police power. This doctrine of "enumerationism" is the linchpin of a multidecade conservative assault on the broad conception of federal powers recognized by the Supreme Court since 1937. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original public meaning of the Constitution. Indeed, it is difficult to think of a stronger--or broader--consensus on an important question of original meaning. This Article challenges that consensus. Despite its wide acceptance, the originalist case for enumerationism is remarkably weak and undertheorized. At the same time, enumerationists have largely ignored strong arguments that the original public meaning of enumeration was indeterminate. The constitutional text nowhere says that the federal government is limited to its enumerated powers. To the contrary, several provisions--the General Welfare Clause, the Necessary and Proper Clause, and the Preamble--could plausibly be read to support a congressional power to address all national problems. The historical context of the founding era is similarly ambiguous. Many readers certainly understood the Constitution to presuppose some form of enumerationism, but many did not. If these arguments are correct, enumerationism falls into the "construction zone," where history, judicial precedent, and other sources fill the gaps in original public meaning. It is history and precedent, not original meaning, that supply the strongest arguments for enumerationism. Yet the history of enumerationism is complex and fraught with contestation. For most of that history, Congress has routinely legislated as if it possessed the power to address all national problems. The Supreme Court has generally acquiesced, embracing enumerationism in theory while circumventing it in practice. A constitutional construction that followed this traditional approach would pose no substantial obstacle to any important federal legislation. [ABSTRACT FROM AUTHOR]

The article discusses a court case in which the states of Nevada, Illinois and Virginia appealed to the U.S. Court of Appeals for the District of Columbia Circuit regarding the failure of the Archivist to certify and publish the Equal Rights Amendment as the 28th Amendment even after the deadlines for the amending requirement expired. It explores the dismissal of the case by the U.S. District Court, and issues concerning Article V's amendment procedures raised by this case.

The article focuses on the ratification of the Constitution in North Carolina. The author discusses the opposing views of small-state Federalism versus southern Antifederalism, examines how Federalists saw North Carolina as an important shipping location, and explores how the Antifederalists saw North Carolina as a southern state with western holdings.

The article discusses the feasibility of using the federal Indian law as a method to analyze the constitutionality of the acts of the U.S. Congress establishing the favorable or unfavorable treatment toward the Indian people. Also cited are the case Morton v. Mancari to determine whether federal statutes applied solely to Indians do not compromise the anti-discrimination principles of the Constitution and the core principles of federal Indian law.

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. [ABSTRACT FROM AUTHOR]

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 "failled]" to choose on Election Day-did not permit such handpicking after the 2020 election. [ABSTRACT FROM AUTHOR]

The article explores the development and understandings of the probate exception and its relationship to federal questions. Topics discussed include relation of exception to language in the U.S. Constitution and the Judiciary Act of 1789, link of probate exception to the doctrine of prior exclusive jurisdiction, exception in the case Marshall v. Marshall, implications of the congressional acquiescence theory for federal questions, and probate exception as a doctrine of federal common law.

This Note explores the issue of access to adequate education by examining the liberty rights of students at chronically underperforming public schools. The issue was previously considered by the Sixth Circuit Court of Appeals in 2020, in Gary B. v. Whitmer. After delineating positive and negative rights and addressing the dearth of positive rights in the U.S. Constitution, the Note turns to the explicit and implicit adoption of the negative rights framework within federal education jurisprudence, as well as case law on arbitrary confinement. The Note then considers the factual allegations and liberty-based legal argument advanced by the Gary B. plaintiffs: schools that fail to provide a basic minimum level of education are schools in name only. Compulsory attendance laws and truancy policies, in this 'warehousing' context, arbitrarily confine students, infringing upon the right to personal liberty guaranteed by the Due Process Clause. In order to remedy this constitutional violation, plaintiffs argued, the State must provide students with some basic level of educational attainment. This Note argues that the Gary B. plaintiffs strategically sought to mask the goal of establishing a positive right to education in the language and dress of negative rights. Such a strategy exemplifies the weak philosophical and logical underpinnings of the broader negative/positive rights dichotomy. Although this negative rights argument may seem appealing--especially given the Court's rejection of a positive right to education promulgated in San Antonio Independent School District v. Rodriguez in 1973--whether future litigants find success with this approach may require the Court to reconsider or ultimately abandon the negative/positive rights dichotomy. [ABSTRACT FROM AUTHOR]

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship as “lost” or “forgotten,” and summarizes the arguments advanced in prior scholarship for their revival or resurrection. When viewed collectively rather than in isolation, these twelve provisions are more than the sum of their parts. This Article argues that, taken together, these overlooked or neglected provisions constitute a ‘shadow’ constitution within the prevailing one. This article deconstructs the organizational structure and key component elements of the U.S. Constitution and demonstrates how the dormant or neglected provisions interlock and complement to form a coherent but operationally absent constitutional structure. This absence, through disuse and neglect, has not only vitiated our constitutional inheritance, but would, if fully reincorporated into the prevailing constitution and accompanying body of constitutional enforcement and interpretation, afford far greater protection and security to marginalized groups while holding more powerful elements of society to account [ABSTRACT FROM AUTHOR]

The characteristic that made the U.S. Constitution effective is the transcendence of the concepts it embodies. This essay seeks to define transcendence, its relationship to originalism in Constitutional interpretations, its historic origins, the consequences of rejecting them, and provide a truly originalist standard for Supreme Court decision-making. This transcendence has resulted in the U.S. being the only democracy since the Roman Republics to have been sustained over the long-term. Four specific areas are suggested by the Federalist Papers and many federal decisions over the last 50 years in the areas of civil rights, balance of power, public virtue, and judicial restraint. In civil rights, restoring the Constitutional diversity of this extended Republic would reverse the present "diversity, equity and inclusion" and its destructive policy. The recovery of the free exercise of religion from its "sincere personal belief" status would encourage a moral way of thinking and living by restoring Article I in the Bill of Rights to its proper status. [ABSTRACT FROM AUTHOR]

The article examines the U.S. Constitution's relationship with American colonialism and imperialism. It discusses professor Maggie Blackhawk's foreword in the book "The Constitution of American Colonialism" in which she describes the influence of colonialism and imperialism on Americans' constitutional experience. It describes an alternative conception of the American constitutional order. It also explores the central role of slavery in the history of U.S. expansion.

Recently, scholars have uncovered many ways in which our traditional understandings of the U.S. Constitution have failed to grapple with American empire and colonialism. This work has shown that the nation's history of mistreating Indigenous peoples is constitutive of its legal order. In this Article, I provide evidence of a similar kind of imperialistic effect in the realm of statutory interpretation. To the extent there is a conventional understanding about statutory interpretation, it does not attach special significance to the demands of empire. But much like American constitutional design, statutory interpretation has not been neutral with respect to imperial expansion and colonization. To illustrate this dynamic, I reconstruct a contentious debate over the laws of adoption and inheritance in nineteenth century Hawai'i. Judges construed these statutes with the stated aim of imposing civilization on Hawaiians, challenging settled assumptions about the relationship between common law and legislation in America. Empire thus implicated not only an imposed statutory regime, but also interpretive presumptions against relying on Hawaiian customs and practices. In relying on this civilization canon, judges articulated Hawaiians as racialized legal subjects who had to be transformed before courts would presume that the legislature intended to preserve their worldviews and cultural practices in law. [ABSTRACT FROM AUTHOR]

The article discusses the application of the U.S. Constitution at home and overseas and mentions topics including statutory models of determining extraterritoriality, the Supreme Court and lower courts' treatment of claims by citizens and aliens, and conduct as the proper model of constitutional extraterritoriality.

In Crawford v. Washington, the United States Supreme Court held that if statements "were made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial," then a defendant has the right to confront and cross examine the witness. However, the Court's subsequent retreat from this ruling and introduction of the primary purpose test in a later decision, created a flawed federal analysis, as seen in State v. Tsosie. In Tsosie, the New Mexico Supreme Court applied the primary purpose test to determine whether statements of the declarant, recorded in a sexual assault nurse examiner (SANE) report, required confrontation. Because the primary purpose test and federal confrontation clause jurisprudence is flawed, and because the New Mexico Constitution has been interpreted to provide defendants with stronger protections than the United States Constitution, through the interstitial approach New Mexico should adopt Massachusetts' iteration of the Crawford test. [ABSTRACT FROM AUTHOR]