Call For Papers: Journal of American Constitutional History

From Professor Marie-Amélie George, Wake Forest Law School

Call For Papers: Journal of American Constitutional History "Queer Constitutional History": Professors Felicia Kornbluh and Marie-Amélie George, guest editors. 

We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on "U.S. Queer Constitutional History," to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz. 

We plan to publish the symposium issue in 2025 to coincide with 10th anniversary of the U.S. Supreme Court's decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas' concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole "substantive due process" tradition. 

We invite essays on the queer constitutional history that gave rise to the Obergefell decision-including events outside of the realms of marriage, family law, or U.S. constitutional law-as well as the place of marriage equality within the Court's broader sexual liberty jurisprudence. We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court's decisions in related fields. 

We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: "U.S." extends beyond the mainland to include American territories and the country's diplomatic and international relations; we take "Queer" to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; "Constitutional" refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and "History" means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues. Abstracts are due February 1, 2025. 

Please submit them by email to Felicia Kornbluh (Felicia.Kornbluh@uvm.edu) and Marie-Amélie George (georgemp@wfu.edu). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately precede the American Society for Legal History's annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate.

Rubenfeld, Lambert, and Usman on the Road to Obergefell @abbyrubenfeld

Abby Rubenfeld, Tennessee Bar Association, and Regina Lambert and Jeffrey Omar Usman, both of the University of Tennessee College of Law, have published Modern Legal History 2015: The Road to Obergefell as Belmont University College of Law Research Paper No. 2017-9. Here is the abstract.

We’re going to have the opportunity to hear about the road to Tanco v. Haslam, one of the most important individual rights constitutional decisions from the United States Supreme Court in the last half-century. We’ll have an opportunity to gain from Ms. Rubenfeld’s and Ms. Lambert’s perspectives and experiences and hear their stories, Belmont Law Review Modern Legal History Symposium, November 20, 2015.

Download the article from SSRN at the link.

Levy on Justice Scalia and the Fallacies of Constitutional Textualism

Ken Levy, LSU Law Center, is publishing Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism in the Lewis & Clark Law Review (2017). Here is the abstract.

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013). The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the theory of “Constitutional Textualism” — or just plain “Textualism” — which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct.

Download the article from SSRN at the link.