Law Commons^™

United/States: A Revolutionary History Of American Statehood, Craig Green

Michigan Law Review

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge …

Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott

Articles

The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. …

Fixing America's Founding, Maeve Glass

Michigan Law Review

Review of Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.

Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz

Michigan Law Review

Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.

Segregation In The Galleries: A Reconsideration, Richard Primus

Michigan Law Review Online

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that the galleries …