Toussaint on Du Bois, Afrofuturism, and Constitutional Renewal

Etienne C. Toussaint, University of South Carolina School of Law, has published After the Comet: Du Bois, Afrofuturism, and Constitutional Renewal at 101 NYU Law Review 1120 (2026). Here is the abstract.

American constitutional development has long followed cycles of crisis and restoration, resisting linear narratives of progress. This pattern is especially evident in the interplay between Black protest movements and constitutional interpretation, where transformative possibilities emerge during periods of social rupture but are later constrained by institutional restoration. This Essay argues that W.E.B. Du Bois’s 1920 speculative fiction, The Comet, offers a framework for understanding these cyclical dynamics. The short story’s three-part structure—normalcy, rupture, and restoration—reveals how genuine equality surfaces during catastrophic disruption yet proves unsustainable once hierarchical “normalcy” returns. Using interdisciplinary analysis that combines legal theory, historical inquiry, and literary criticism, this Essay traces “comet cycles” within major Black protest movements from abolition to contemporary struggles. It demonstrates that literary imagination can illuminate constitutional dynamics that conventional doctrinal analysis cannot reach. Specifically, this Essay argues that Black protest movements function both as catalysts of constitutional rupture and as interpreters of constitutional possibility during suspended moments of normalcy. Examining the abolitionist era, the Civil Rights Movement, and present-day struggles through Du Bois’s framework highlights how social movements advance foundational promises of liberty and equality while revealing the fragility of constitutional gains. Even radical critiques of constitutional legitimacy often arise because movements have taken these promises seriously, exposing the inadequacy of conventional reform. This approach offers strategic insight for contemporary movements, clarifying when transformative possibilities emerge and how restoration dynamics undermine them. By centering Black lived experiences as integral to constitutional interpretation, this Essay reframes American constitutionalism as shaped fundamentally by those historically excluded from legal discourse, yet central to its most transformative moments.

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Tarar and Tarar on Constitutional Ghosts: Myth, Metaphysics, and the Afterlife of the Framers

Jalal Tarar, Independent Scholar, and Shahbaz Tara, University of London, have published Constitutional Ghosts: Myth, Metaphysics, and the Afterlife of the Framers. Here is the abstract.

This paper examines the paradoxical role of the constitutional framer in judicial reasoning. While courts invoke the figure of the framer to legitimise constitutional interpretation, they systematically exclude actual framers from interpretive authority. The framer is constructed as a mythic origin, sacralised but silenced, a legitimating figure whose historical presence is evoked to anchor doctrine, yet whose interpretive claims are denied to preserve judicial autonomy. Drawing on hermeneutics, political theology, and semiotics, the paper argues that this exclusion is not a contradiction but a structural necessity of constitutional democracy. Through case studies from the United States, Pakistan, India, Iraq, and South Africa, the paper illustrates how figures such as James Madison, Abdul Hafeez Pirzada, and Albie Sachs are invoked as symbols but denied operative authority. The analysis critiques originalism by demonstrating that framers often disagreed with each other, evolved ideologically, or repudiated their own positions, rendering authorial intent an unstable foundation for legal meaning. The judiciary's refusal to yield interpretive control is shown to be essential for the law's adaptability and coherence over time. Constitutional meaning is not inherited but constructed; the framer functions as a judicial artefact, invoked rhetorically but displaced institutionally. This performative logic reveals that constitutional law sustains itself not by preserving the framer's voice but by ritualising his absence. The framer, in this sense, is a constitutional ghost, essential to the mythos of legitimacy, yet exiled from the terrain of interpretation.

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Charles and Gelbach on Bruen's Tenth Amendment Problem

Jacob D. Charles, Pepperdine University School of Law, and Jonah B. Gelbach, University of California, Berkeley, School of Law, have published Bruen's Tenth Amendment Problem. Here is the abstract.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court applied a novel history-and-tradition framework to Second Amendment claims. That test keys the validity of modern gun laws to their similarity with historical analogues. Although scores of commentators have critiqued that approach, this Article identifies a critical constitutional flaw that has escaped focused attention: if Bruen’s test is not recalibrated, it violates the Tenth Amendment. The Tenth Amendment preserves to States all powers the U.S. Constitution did not divest from them. This Article argues that a crucial reserved power is the power of legislative choice—the States’ second-order power to choose whether to act or not, including whether to change course. Bruen’s requirement that each modern law match a historical precursor infringes on this reserved power, because it impermissibly removes from today’s legislatures a whole vista of choices available to their Founding-era predecessors. It withdraws a reserved State power that was woven into the Constitution when the Second Amendment was ratified: the power to do things differently today than before. In light of this conflict, the Article urges the Court to clarify that judges must implement any historical test in a way that respects the power of legislative choice. First, the Court should accord historical silence contextually appropriate weight. It can do so by recognizing and adopting a principle from the law of evidence, which deems silence in the face of an accusation probative only if the circumstances called for contradiction (what we label “the 3C test”); historical silence should be probative only if circumstances otherwise called for regulation. Second, at the same time it devalues silence, the Court should simultaneously expand the universe of historical evidence relevant to the inquiry. Both moves would better serve the end of respecting constitutionally-guaranteed State prerogatives while safeguarding individual rights.

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Shugerman and Handelsman on Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority

Jed H. Shugerman, Boston University School of Law, and Zach S. Handelsman, McGill University, Department of Political Science, have published Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority.

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.” Balkin appropriately connects the memory wars in American constitutional law back to Eastern European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. They propose four categories of memory entrepreneurs (“mnemonic actors”) in post-Soviet countries: “mnemonic warriors” who claim a single “true” interpretation of the past, opposed to all others who cultivate “wrong” or “false” interpretations; “mnemonic pluralists” who embrace multiple narratives and traditions; “mnemonic abnegators” who deny the significance of the past in favor of the present; and “mnemonic prospectives” who have a faith in an inevitable future (e.g., utopian Marxist historical materialists). We suggest this taxonomy may be a helpful guide for American constitutional politics. The “memory pluralist” category is perhaps the majority of American constitutional law professors, maybe even a plurality of the U.S. Supreme Court and the federal and state bench, who do not give exclusive weight to history, but still give substantial weight to history (e.g., Philip Bobbit’s modalities, Balkin’s “living originalism” and his “thin originalism.”). Some “thick originalists” are more “Memory Anti-Pluralists” than “Warriors.” We reserve the category of “Memory Warrior” for those constitutional interpreters who are consciously fighting for an exclusive, comprehensive national narrative of us vs. them. These warriors include ideological originalists (especially the ones who seem to rely on a general narrative arc rather than specific historical evidence), but they also may include the “history-and-tradition” conservatives, common-good constitutionalists, and perhaps some progressive-left memory warriors who have a more exclusive interpretation of past events than pluralists do. Balkin rightly criticizes originalism for its “memory entrepreneurialism” that narrows the field of who “counts” and who is excluded, exacerbating constitutional law’s democratic deficit. We think the “memory warrior” category helps sort out the more problematic approaches, and we suggest a solution: a high burden of proof about consensus and public meaning to mitigate this democratic deficit, to reduce judicial legitimacy problems, and to slow down “warrior” judicial activism.

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Koh on Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries in the U.S. Civil Sphere

Steven Arrigg Koh, Boston University School of Law, is publishing Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries in the U.S. Civil Sphere as a forthcoming Boston Univ. School of Law Research Paper. Here is the abstract.

How does the U.S. Supreme Court establish its legitimacy? Over the last two hundred years in U.S. society, the Court has interpreted the U.S. Constitution on watershed issues such as slavery, segregation, and marriage equality. And yet the Constitution is just 7,591 words. A puzzle thus emerges: how does the Court intelligibly interpret this short text for U.S. society? This article develops a new theoretical and empirical cultural sociological account of such Supreme Court decisionmaking, which it calls "communicative legitimacy." According to this theory, which draws on Jeffrey Alexander's civil sphere theory, the Court consistently and inevitably draws on a shared American cultural discourse, thus rendering Constitutional values intelligible and legitimate to the broader civil sphere. This article shows this through two historical case studies. First, it explores the cases guaranteeing and then overturning the right to abortion, from Roe v. Wade (1973) to Dobbs v. Jackson Women's Health Organization (2022). Second, it reviews the cases guaranteeing the right to bear arms, beginning with District of Columbia v. Heller (2008). The two sets of cases, at first blush, appear diametrically opposed: Roe is a triumph for the left, Heller a victory for the right. But, in fact, these cases reveal the same pattern: the Court's defenders draw on the discourse of liberty to hail the decision as a restoration of the Constitution, while the opposition draws on the discourse of repression to accuse the Court of "creating a Constitutional right out of nowhere." This article thus unveils a hidden Supreme Court metalanguage , contributing a new cultural sociological understanding of the Supreme Court as a societal institution with unique communicative authority and symbolic power in U.S. society.

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Baumann and Shugerman on Quasi-Judicial: A History and Tradition

Beau J. Baumann, Yale Law School, and Jed H. Shugerman, Boston University School of Law, have published Quasi-Judicial: A History and Tradition. Here is the abstract.

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions. The quasi-judicial category deployed in Humphrey's was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey's is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey's, it will imperil a primordial instinct that is part of our rule-of-law tradition.

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Hay and May on Reckoning with Antisemitism in History and Tradition

Nathaniel Shaw Hay, Stanford University, and Isaac Barnes May, Yale Law School, have published Reckoning with Antisemitism in History and Tradition at 2025 Pepperdine L. Rev. 61 (2025). Here is the abstract.

"History and tradition" has become a watchword of modern constitutional interpretation, shaping Supreme Court jurisprudence and framing ongoing debates over the meaning of the Fourteenth Amendment. Yet this interpretive framework remains under-theorized in one critical respect: how should it grapple with the prejudices embedded in the very traditions it invokes? This Article examines that question through the lens of anti-Jewish discrimination in Anglo-American law, using this history as a case study to examine both the perils and promise of relying on history as a source of constitutional authority. For centuries, the common law excluded Jews from full civic participation in both England and the United States, limiting their access to the courts, their ownership of property, and their exercise of political rights. And though largely forgotten today, this legacy reveals a troubling methodological gap that currently exists in the history-and-tradition approach: its lack of a systematic way to reckon with antisemitism and other morally compromised aspects of history. Indeed, taken to its logical extreme, the history-and-tradition method would appear to permit the re-enactment of such exclusion today. Yet this Article does not counsel retreat from the past. Instead, it argues that principled engagement with history is both possible and essential-and suggests a framework for doing so. Courts, in considering Anglo-American traditions, should be guided by the Enlightenment values that animated the Founding—including liberty, equality, freedom of conscience, and the rejection of inherited hierarchy—and should privilege those strands of history that reflect these commitments. Although the Founders’ moral compass was at best imperfect and their actions at times fell tragically short of their ideals, the history-and-tradition method should seek not to rehearse the past uncritically, but to draw from it those principles that best express the nation’s enduring aspirations. Not only is such an approach deeply consonant with the history-and-tradition method and legitimated by recent jurisprudence, but it also fulfills the higher purpose of upholding both the Constitution and the visionary ideals that brought it into being.

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Blocher and Siegel on The Ambitions of History and Tradition in and Beyond the Second Amendment

Joseph Blocher, Duke University School of Law, and Reva Siegel, Yale University School of Law, are publishing The Ambitions of History and Tradition In and Beyond the Second Amendment in volume 174 of the University of Pennsylvania Law Review. Here is the abstract.

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion, and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate levels of generality, extending rights protection to modern guns while requiring gun laws to resemble ancient analogues. When applied in this asymmetric fashion, the historical approach deregulates in ways that are neither acknowledged nor justified. An eight-member majority objected to this strategy in Rahimi and voted to uphold a federal gun law. Yet numerous Justices wrote separately to limit Rahimi’s reach—and, a year later, to suggest that the Court should take a case involving an assault-weapons ban to clarify the method set forth in its earlier cases. Our close reading of the history-and-tradition (HAT) cases shows that there is a persistent gap between what the Court says and does—between the judicial constraint the Roberts Court promises and the actual decisions it delivers. Understanding this dynamic in the Second Amendment cases helps us recognize it in the First Amendment and Substantive Due Process cases as well. We can better appreciate the Court’s reasoning in extending HAT review if we excavate the arguments advanced in the decade between Heller and Bruen for substituting the HAT approach for means-ends review. This retrospective shows us that HAT approaches exhibit the very problems imputed to means-ends review: HAT review is not grounded in original understanding and employs shifts in generality to provide judges discretion to enforce value-based understandings. We can see this dynamic unfolding inside and outside the Second Amendment context. HAT decisions pose distinctive threats to democracy. First, Bruen has implemented HAT through judicial review with a strong presumption of unconstitutionality, a counter-majoritarian practice lacking precedent at the founding. Second, HAT review is not transparent, obscuring reasons for judicial decisions from the people and thus obstructing democratic dialogue. Third, the HAT framework encourages judges to decide the constitutionality of public safety laws on grounds that ignore the public’s most urgent reasons for enacting the laws. This reading of the Court’s Second Amendment cases indicates that the push to adopt HAT approaches in First Amendment, Due Process, and other areas of constitutional law is likely to compound the problems it is supposed to solve, while insulating the Court’s control of the Constitution from the public governed by it.

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Williams on Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling

Telia Mary U. Williams, Northern Illinois University College of Law, has published Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling. Here is the abstract.

The validity of the two predominant methods of interpreting the U.S. Constitution has been long and hotly debated. Both of these methods— originalism and living constitutionalism—draw their force from hermeneutics, or methodological principles of interpretation that commonly assist readers of scriptural texts. These divergent constitutional hermeneutic approaches ultimately treat the Constitution as a civic scriptural or holy text, and the multiplicity of interpretations that result from them, largely derive from one of two principal scriptural or Biblical hermeneutical approaches. Indeed, the two principal approaches to constitutional interpretation map onto one of either “sola Scriptura” or Magisterial traditions. Sola Scriptura denotes the ethos of determining the meaning and purpose of a text apart from any authorial imperative, whereas a magisterial tradition determines the meaning and purpose of a text by way of a predetermined and dispositive authority. Importantly, and fundamentally, both approaches repose authority in a Magisterium writ large to settle the meaning of their respective sacred texts. (In the case of the Constitution, that Magisterium is reposed in the United States Supreme Court). However, that legal scholars and courts (perhaps unwittingly) employ biblical or theological modes to arrive at a constitutional interpretation, forecloses other, non-sectarian hermeneutical modes that assist judges, particularly those who preside over lower jurisdiction courts, to decide cases. Speaking as a judge pro tempore in a limited jurisdiction state court, as well as a tenure-track law professor at a state school, I propose that an alternative methodology of interpretation of storytelling may serve to honor both text and community. A “judicial hermeneutic” of storytelling may reconcile the enduring (and unproductive) “religious” dichotomy of constitutional interpretation and better address the cause of justice in everyday constitutional matters. Apart from possibly mitigating the dilemma of interpretation, such an approach may also promote a multiplicity of meaning, and a greater plurality of voices in this constitutional arena.

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Siegel on Balkin Amid Balkanization: Constitutional Construction, The Uses of History, And Interpretive Discretion In A Divided Country

Neil Siegel, Duke University School of Law, has published Balkin Amid Balkanization: Constitutional Construction, The Uses Of History, And Interpretive Discretion In A Divided Country as Duke Law School Public Law & Legal Theory Series No. 2025-14. Here is the abstract.

Professor Jack Balkin's Memory and Authority is a good book by a great constitutional theorist, but it gives me some pause. Balkin's account of legitimate constitutional construction is so capacious and seemingly accepting of a results orientation that it may be difficult to discern when someone is doing it wrong. Balkin repeatedly implies that more is better, both regarding the number of modalities of constitutional interpretation and the kinds of history that are relevant to making constitutional arguments. Moreover, he repeatedly declares that "history is a resource, not a constraint." But modality creep may make it more challenging for pluralists to answer the charge that their methodology makes it possible for users to reach whatever outcome they want. Likewise, history must be both a resource and a constraint if an interpretive theory is also to restrain, not just license, interpretive discretion. More is not necessarily better when one imagines constitutional law being made by people who do not share one's values. In the United States, constitutional law is made by Supreme Court Justices who do not share the values of a significant percentage of the country, and the problem is worse during our polarized era. Although Balkin does not emphasize them, certain concepts and practices have been central to the generationslong effort to constrain judicial discretion: a general allegiance to judicial restraint, a genuine commitment to stare decisis in constitutional disputes, a presumption in favor of incrementalism in judicial decision-making, and a dedication to giving principled reasons for judicial decisions. Those ideas and others discussed in this Essay fall under the heading of judicial role morality, which has long been discussed by the legal profession due to the perceived importance of identifying constraining conceptions of a Justice's institutional role.

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Solum on Original Public Meaning @lsolum @UVALaw @michstatelawrev

Lawrence B. Solum, University of Virginia School of Law, is publishing Original Public Meaning in volume 2023 of the Michigan State Law Review. Here is the abstract.

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning. Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

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Smith on Originalism in the Year Three Thousand @msmith750 @StMarys_Law @QuinnLRev

Michael L. Smith, St. Mary's University School of Law, is publishing Originalism in the Year Three Thousand in volume 43 of the Quinnipiac Law Review. Here is the abstract.

While procrastinating from grading at the end of the Spring 2024 semester, a series of mishaps led to my inadvertent teleportation to the year three thousand, where I found myself attending a conference consisting of top originalist legal scholars. This essay recounts what I was able to gather about the state of constitutional interpretation in the centuries to come and applies these insights to current quandaries over how to classify modern courts’ interpretive methodology.

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Magnuson on Original Discontent @TAMULawSchool @VandLRev

William J. Magnuson, Texas A&M University School of Law, is publishing Original Discontent in volume 78 of the Vanderbilt Law Review. Here is the abstract.

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law. This Article argues that “original discontent,” that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community. More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution’s creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.

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Balkin on Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity @jackbalkin @YaleLawSch @BULawReview

Jack M. Balkin, Yale Law School, is publishing Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity in the Boston University Law Review. Here is the abstract.

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it? This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today.

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ICYMI: Greenfield on Original Penumbras: Constitutional Interpretation in the First Year of Congress @Kentgreenfield1 @BCLAW @ConnLRev

ICYMI: Kent Greenfield, Boston College Law School, has published Original Penumbras: Constitutional Interpretation in the First Year of Congress at 26 Connecticut Law Reivew 79 (1993).

The records of the floor debates in the House of Representatives during 1789, the first year of Congress, are among the most revered historical sources for constitutional scholars. In 1789, the House was filled with men who had been instrumental in both the fight to gain independence from Britain and in the founding of the nation. Eight members of the House, including James Madison, had been delegates to the Constitutional Convention in Philadelphia two years earlier. The First Congress was charged with putting the new Constitution into effect. Its decisions on issues ranging from the creation of the executive departments to the establishment of the judiciary amounted to, in effect, the first institutionalized constitutional decision making of the new nation. The Supreme Court has used the records of the First Congress as the basis for numerous decisions on specific constitutional questions. Constitutional scholars have also looked to the First Congress for insight into substantive constitutional issues. Unfortunately, neither the Court nor scholars have looked to the records of the First Congress to guide or to inform the contentious debate over broad questions of constitutional interpretation. Taking advantage of the recent publication of a comprehensive record of the First Congress, this Article provides a review of the major debates that turned on constitutional issues and the interpretive methodologies Members used in reaching their conclusions. In addition, this Article sets out two important insights: (1) Members of the First Congress used an extraordinarily broad range of interpretive methodology to construe the Constitution, and (2) Members did not generally consider the intent of the Philadelphia Framers to be determinative. These insights have implications for how judges and scholars interpret the Constitution today. Part II of this Article describes in detail the six major debates in the House of Representatives in 1789 that turned on questions of constitutional interpretation. Part III demonstrates more fully the implications of these findings and suggests that the records of the First Congress should be used as a guide by judges and scholars as they grapple with modem constitutional interpretation.

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Koppelman on Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment @AndrewKoppelman @NorthwesternLaw @_WayneLaw

Andrew Koppelman, Northwestern Uniersity School of Law, is pulishing Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment in the Wayne Law Review. Here is the abstract.

Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong. The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition. I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage. The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.

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Williams on American Exceptionalism as/in Constitutional Interpretation @BYULaw @GaLRev

Lucy Williams, Brigham Young University Law School, has published American Exceptionalism as/in Constitutional Interpretation at 57 Georgia Law Review 1071 (2023). Here is the abstract.

American exceptionalism—the idea that America is superior, chosen, and tasked with a unique mission—is a foundational part of America's political culture. Its themes regularly appear in political speeches, at campaign rallies, and at national celebrations. But exceptionalism also appears frequently in another, less obvious place: Supreme Court opinions. Scholars and pundits routinely scour these opinions to identify the jurisprudential theories and political leanings that drive case outcomes. But as yet, legal scholars have paid little attention to the exceptionalist themes in the Court's case law. Some legal scholars study the ways American constitutional law is distinctive, or exceptional, when compared to law in other countries, and many are eager to predict and explain the Supreme Court's behavior. But few analyze exceptionalism as a judicial ideology or worldview, and none consider whether exceptionalist commitments influence the Court's decisions. In this Article, I respond to this key omission by offering the first systematic study of American exceptionalism and Supreme Court jurisprudence. I argue that American exceptionalism is a powerful and important feature of Supreme Court decision making. Through close reading and rhetorical discourse analysis of five landmark Supreme Court decisions, I demonstrate that the Court frequently invokes and deploys exceptionalist themes when interpreting the Constitution. This Article also reveals that the Court relies on two distinct modes of exceptionalist rhetoric. The first, which I call accomplished exceptionalism, is self-celebratory and assumes that America will always be great. The second, which I call aspirational exceptionalism, is self-critical and treats American greatness as a contingent possibility. The Court's invocation of these modes is not random but instead correlates closely with the outcome in a case. Specifically, in cases upholding exercises of government power, the Court favors accomplished exceptionalism, but in cases affirming individual rights claims, it relies on the aspirational mode. These findings have important implications. The correlation between exceptionalism and case outcomes suggests that exceptionalism might have a causal effect on judicial decision making—that it, like judges' ideology or theories of statutory interpretation, might drive the Court to reach particular results. If this is so, exceptionalism has been hiding in plain sight—as neglected as it is ubiquitous—as an element in Supreme Court decision making. It is past time for scholars to give exceptionalism the same attention they have given to other outcome-determinative phenomena.

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McCall on The Differing Ground on Which Textualists and Classical Lawyers Stand @Vermeullarmine @thenewdigest @Caseyco231 @UofOklahomaLaw

Brian McCall, University of Oklahoma College of Law, has published The Differing Ground on which Textualists and Classical Lawyers Stand. Here is the abstract.

In this essay I respond to the essay of Conor Casey and Adrian Vermeule's essay “Judge Rao's Unintentional Surrender: On the Augustan Settlement of Our Law,” The New Digest 1 (23 August 2023). Although I agree with their overall argument, I offer two suggestions to an explanation of the apparent surrender of Textualists to Classical Common Good Constitutionalism. Yet, I conclude with a warning that the apparent settlement may not be permanent.

Download the essay from SSRN at the link.

Smitherman on History, Public Rights, and Article III Standing @Harvard_Law

Owen Smitherman, Harvard Law School, is publishing History, Public Rights, and Article III Standing in volume 47 of the Harvard Journal of Law & Public Policy. Here is the abstract.

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort. This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Download the article from SSRN at the link.

Coan and Schwartz on Interpreting Ratification @uarizonalaw @WisconsinLaw

Andrew Coan, University of Arizona College of Law, and David S. Schwartz, University of Wisconsin Law School, have published Interpreting Ratification 1 J. Am. Con. Hist. 449 (2023). Here is the abstract.

For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant. Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism. All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.

Download the article from SSRN at the link.