Constitutional Law Commons^™

Balkin Amid Balkanization: Constitutional Construction, The Uses Of History, And Interpretive Discretion In A Divided Country, Neil S. Siegel

Texas A&M Law Review

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 and not a command.” But modality creep may make it more challenging for …

Memory And Authority Of Failed Constitutional Amendments, Julie C. Suk

Texas A&M Law Review

When the original public meaning of any constitutional provision is enforced, guarantees of rights that were adopted before women were included in legal rights may appear illegitimate and inadequate for a 21st-century democracy. Originalists have long pointed to Article V amendment as the legitimate path to changing the Constitution. Jack Balkin’s Memory and Authority points to the importance of expanding American constitutional memory if women and minorities are to be included in the transhistorical “We the People.” This Essay illustrates how the memory and authority of failed constitutional amendments can challenge originalists’ reliance on amendment as the path to democratically …

Historical Methods Of Constitutional Interpretation And Political Gradations, Nelson Tebbe

Texas A&M Law Review

In this symposium Essay, I explore the hypothesis that as constitutional politics have become more assertive, historical methods of interpretation have become more prominent. In other words, the claim I would like to test is that the intensification of constitutional politics and the prominence of historical argument are correlated. Moreover, the relationship between the two appears to be linear. As arguments become bolder, they are more likely to deploy history as a method of interpretation. That proposition may seem counterintuitive, and it is intriguing.

Roger Taney, Memory Entrepreneur, Anne Twitty

Texas A&M Law Review

Roger Taney’s infamous “opinion of the court” in Dred Scott v. Sandford (1857), which rejected the possibility that Black Americans could ever be citizens of the United States, was rooted in the authority of the past.

But Taney’s account of that past has been a source of criticism ever since the decision was rendered.

To be sure, there was plenty to complain about. Many, though certainly not all, have taken issue with Taney’s narrative of the making of the United States Constitution and its attendant meaning, critiquing both Taney’s understanding of the Union and his insistence that the Constitution was, …

Hermeneutics In History, John Fabian Witt

Texas A&M Law Review

Lawyers sometimes ask about the place of history in legal or constitutional interpretation. Historians typically ask a different question. The historians’ inquiry is more often about the place of a phenomenon, like interpretation in history, not vice versa. Constitutional interpretation is itself a historical practice, with particular, changing, and contingent political structures. It is driven by relatively autonomous forces such as war, natural disaster, social mobilizations, migrations and exclusions, economic transformations, and more, all of which shape and condition lawyers’ interpretive projects. If we put interpretation in history, rather than the other way around, then interpretation and (by extension) constitutional …

Why Constitutional Argument Matters, Philip Bobbitt

Texas A&M Law Review

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis—the system of …

Burns (Gregory) V. Eighth Judicial Dist. Ct. (Doe) (Civil), 142 Nev. Adv. Op. 8 (Jan. 29, 2026), Charnel Gibson

Nevada Supreme Court Summaries

The Nevada Supreme Court adopted a balancing test for pseudonymous civil cases. Because the sexual-assault plaintiff’s privacy outweighed any prejudice and the public interest, the Court denied mandamus relief.

Bauer Lecture 2026, Benjamin N. Cardozo School Of Law, Michael Waldman

2025–2026 Flyers

Join us for a keynote address by Michael Waldman, President and CEO of the Brennan Center for Justice at NYU School of Law. A nonpartisan law and policy institute that focuses on improving systems  of democracy and justice, the Brennan Center is a leading national voice on voting rights, money in politics, criminal justice reform and constitutional law.

What Motivates Selectors To Pick A Woman Justice?, Maria C. Escobar-Lemmon, Alice J. Kang, Miki Caul Kittilson, Shan-Jan Sarah Liu

ConLawNOW

This article examines increases in women’s appointment to high courts around the world. It builds on research suggesting that movement by countries to appoint the first women to important benches often influenced neighboring countries. The same authors here look at the related feature that women in advanced industrial countries are appointed to constitutional and supreme courts sooner when subject to electoral pressure. They suggest that electoral pressure is not defined by the left-right ideological spectrum, but rather depends on a more specific support for gender equality.

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Northwestern University Law Review

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

Policing Agency Data Trusts, Barry Friedman

Northwestern University Law Review

Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”

This practice of universal data collection presents a conundrum. As many …

Applying The Indian Commerce Clause To Indian Commerce, Adam Crepelle

Northwestern University Law Review

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

The Extradition Treaty Between The United States Of America And The Republic Of Colombia: Public International Law And The Judicial Substitution Paradox, Andrés Téllez-Núñez

Notre Dame Journal of International & Comparative Law

No abstract provided.

“I Like My Eighteenth Century Fresh”: Geofence Warrants, General Warrants, And The Evolving Fourth Amendment, Alexa M. Mascaró

University of Miami Law Review

Almost 250 years ago, our Founding Fathers fought to create a nation free from the confines of British imperial rule. Outrage over governmental intrusions enabled by suspicionless general warrants and writs of assistance galvanized an American polity determined to prevent the abuses that had come to define colonial life. The Fourth Amendment was enacted as a response to executive overreach, and it was deeply informed by the fraught history that led to its adoption—a history that is still used by courts today to define constitutional protections.

In the digital age, the rapid speed of technological innovation has created a precarious …

The Comstock Act: Will The First Amendment Finally Bury This Zombie Law’S Speech Restrictions?, Morgan Garces

University of Miami Law Review

The Comstock Act of 1873 is a federal anti-obscenity law that, along with lascivious and filthy literature, explicitly restricts the sending of anything that can be used to procure an abortion—including writing. However, since the decision of Roe v. Wade, the law’s abortion-speech provisions had been considered long-dead—although never officially being overturned. Now that Dobbs v. Jackson Women’s Health Organization has rescinded the right to an abortion, the law appears to be reaching out from its grave. Anti-abortion activists are currently looking to the Comstock Act as a federal abortion ban already on the books because of its ban …

From Pirates To Corporations: The Evolving Battleground Of The Alien Tort Statute, Marin Larkin

Notre Dame Journal of International & Comparative Law

No abstract provided.

Federalism, Treaty Norms, And The U.N. Report On American Education, Jorge Barrera-Rojas

Notre Dame Journal of International & Comparative Law

United Nations Special Rapporteurs assess national compliance with international human rights obligations, including educational rights articulated in treaties such as the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"). These evaluations typically involve treaty-bound states with explicit international commitments. However, the applicability of such assessments is less straightforward in non-ratifying federal states, such as the US, which rely on diverse state-level constitutional provisions rather than federal treaty obligations.

This Article critically examines the 2025 Report of the Special Rapporteur on the Right to Education, following the Rapporteur's first official visit specifically addressing U.S. K-12 education policy. The analysis identifies …

Brief For Amici Curiae Immigration Law Scholars In Support Of Petitioner-Appellee, Supporting Affirmance, Lindsay Nash

Amicus Briefs

Amicus curiae brief filed by immigration law scholars, including Cardozo School of Law Professor Lindsay Nash, in Herrera Avila v. Bondi. The brief examines the scope of mandatory immigration detention under the Immigration and Nationality Act and argues that 8 U.S.C. § 1225(b)(2)(A) applies to noncitizens seeking admission at the border rather than individuals apprehended within the interior of the United States.

Brief Of Amici Curiae Children's Rights Scholars And Advocates In Support Of Appellants' Opening Brief: Lighthiser V. Trump, Abigail L. Fleming, Douglas A. Ruley, Catherine Smith

Scholarly Articles

For decades, constitutional doctrine has recognized that children possess enforceable constitutional rights and that their developmental, physical, and social differences from adults are important considerations in constitutional analysis. Courts may not impute adult capacities, privileges, or political agency to children when determining whether their rights may be vindicated, leaving them no democratic mechanism to alleviate their injuries.

The district court’s dismissal of the youth plaintiffs’ claims rests on precisely that error. Although the court recognized that the children alleged concrete, severe, and escalating harms caused by the challenged executive actions, it concluded that relief must come from the political branches …

Fda's New Approval Plan For Covid-19 Vaccines: An Inquiry Of "Benefit" Rather Than The Statutory Scope Of "Safety, Purity, And Potency"?, Henry Yat-Shing Kwan

Journal of Law and Health

This article analyzes the FDA's proposed policy plan issued in May 2025 regarding the approval of Covid-19 boosters for different groups of persons. It offers two constructive recommendations that will help prevent constitutionality challenge on impermissible intrusion of the freedom of health.

The first is to avoid using the confusing term "benefit" but instead focus on the statutory parameters of "safety, purity, and potency." The affected group can make a strong case that their free choice of vaccination should not be deprived, as long as the vaccine qualifies for the statutory thresholds of being safe, pure, and potent. They are …

Volume 14 Masthead

American Indian Law Journal

No abstract provided.

Table Of Contents

American Indian Law Journal

No abstract provided.

The Evidence Machine: Rethinking Admissibility And Privacy In India's Ai Surveillance State, Samyukta Ramaswamy

Indian Journal of Law and Technology

The proliferation of artificial intelligence (‘AI’) surveillance technologies that utilise machine learning (‘ML’) capabilities to gather and process information to derive insights about individuals has transformed the surveillance landscape by enabling governments and private entities to engage in increasingly pervasive monitoring and data-driven profiling. In India, this transformation is compounded by the presence of executive-controlled surveillance mechanisms under the legal framework of the Telecommunications Act 2023, the Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules 2024, and the Digital Personal Data Protection Act 2023, amongst others, which authorises wide-ranging data interception and dragnet surveillance while exempting government agencies …

Trump’S Venezuela Legal Defense Restson Youngstown ‘Gloss’ Idea, Frank Rosenblatt

Journal Articles

President Donald Trump’s decision to invade Venezuela and oust its president puts a spotlight on a USSupreme Court case that famously blocked President Harry Truman’s seizure of American steel mills. Thecase highlights the tension among presidential aggrandizement, Congress’s war powers, and the (oftensecret) legal opinions undergirding a president’s ambitions

Forever Un-Wild: How The Forever Wild Clause “Locks Up” New York’S Closed Correctional Facilities, William Carswell

Pace Environmental Law Review

Article XIV of the New York State Constitution, better known as the “Forever Wild Clause,” enshrines a conservationist ideal into law. The crux of article XIV prohibits the leasing, selling, or exchanging of state-owned land within New York’s Forest Preserve to private entities. Since its inception, this mandate has dictated the State’s approach to management of its Forest Preserve. Whenever New York decides to excise a piece of its Forest Preserve, the cumbersome yet necessary constitutional amendment process is triggered. Renewed attention to this legal requirement is peaking. Since 2009, five former Department of Corrections and Community Supervision sites located …

Center For Biological Diversity V. U.S. Bureau Of Land Management, Erika C. Rader

Public Land & Resources Law Review

The Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. marks the Ninth Circuit’s second time considering the Willow Project, which plans to drill oil in Alaska. Environmental plaintiffs brought a series of claims under NEPA, the Reserves Act, ANILCA, and the ESA to stop or stall the Project. Plaintiffs focused on the BLM’s use of a “full field development standard” in assessing alternatives to the Project. Despite the range of claims, the Ninth Circuit allowed the Project to move forward, but on remand required the BLM to explain its reasoning for departing from the full field development standard …

Time As A Constitutional Constraint: Resolving The Circuit Split On Prolonged Fourth Amendment, Ian Seabrooks

Washington Law Review Online

The Fourth Amendment of the U.S. Constitution states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Some circuits, like the Ninth and D.C. Circuits, have interpreted the Fourth Amendment’s reasonableness standard to apply beyond just the initial seizure of property but also to include the continued retention of the seized property. Other circuits, such as the First, Second, Sixth, Seventh, and Eleventh Circuits, have read the reasonableness standard more narrowly and interpreted this requirement to pertain only to the original seizure. …

From Dred Scott To Barbara: Birthright Citizenship, Racial Exclusion, And The Enduring Promise Of The Fourteenth Amendment, Jenna A. Milbrodt

CMC Senior Theses

The Fourteenth Amendment’s Citizenship Clause has guaranteed birthright citizenship to all children born in the United States for hundreds of years. Yet, President Trump’s January 20, 2025, executive order threatens to strip that right from children born to parents unlawfully in the country and temporary visitors. This order, if permitted to stand, would change the definition of US citizenship and render countless children stateless persons without citizenship rights. This paper examines whether birthright citizenship in the US, properly understood, extends to children of unlawful immigrants and temporary visitors. To answer this question, three time periods of change in citizenship rights …