Supreme Court of the United States Commons^™

Is Originalism Orthodoxy?, Neel Sukhatme

Articles

What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.

American Public Law Revolution, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The Supreme Court has birthed a public law revolution. This revolution should not be known as a constitutional revolution because it is bigger than constitutional law—it covers statutory and administrative law as well. This revolution has been powered not by social movements, but by an interpretive philosophy known as originalism. Originalism has been deeply misunderstood by its critics. This Article examines three myths about originalism—that it is primarily about history, that it is a traditional theory of adjudication, and that it is democratic. Originalism is a semantic theory, not a theory of history, and it is a theory that privileges …

Constitutional Structure And Election Law, Manoj Mate

William & Mary Bill of Rights Journal

Since Bush v. Gore, scholarship on election law has centered on a theoretical debate between rights-based and structural theory approaches, and the appropriate role and scope of judicial intervention in election law cases. However, these debates have not fully assessed the degree to which the Court’s approach to constitutional structure has fundamentally reshaped election law. Over the past two decades, the Court has increasingly emphasized the importance of constitutional structure-based approaches in election law cases.

This Article analyzes these dynamics and advances a typology of constitutional structure-based approaches in election law. Drawing on scholarship on modalities of interpretation and …

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 …

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 …

The Ambitions Of History And Tradition In And Beyond The Second Amendment, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

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 …

Creation And The Republican Revival, William M. Treanor

Georgetown Law Faculty Publications and Other Works

Gordon Wood's classic book Creation of the American Republic has long influenced legal thought and originalist scholarship in particular. It played a central role in the Republican Revival movement, an effort by leading scholars such as Cass Sunstein and Frank Michelman to recover a progressive originalism at the same time as conservative originalism was starting to shape constitutional jurisprudence. But, while the Republican Revival nominally relied on Wood, it misread central elements of his book - his concept of virtue and his belief that republicanism had largely been displaced at the time of the drafting of the Constitution.

The time …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

Gienapp's Big Book: Conceptual Rupture, Modernism, And The End Of Originalism, Logan E. Sawyer Iii

Scholarly Works

For decades, we have lived in an age of partisan jurisprudence, in which nearly every Republican has embraced originalism, and nearly every Democrat has rejected it. One can mark the start of that era in multiple places, but one good choice is November 11th, 1977. That day, in the pages of National Review, William F. Buckley previewed Government by Judiciary, Raoul Berger’s originalist critique of the Warren Court’s rights revolution. The review, entitled “Berger’s Big Book,” was highly complimentary. Berger’s rebuke of Warren Court activism was, Buckley thought, “devastating.” And he was not alone. Following the publication of Government by …

Splitting The Statute: Severability As A Canon Of Construction Or Constitutional Concern?, Amy L. Moore

Catholic University Law Review

Severability doctrine stands at the crossroads of statutory interpretation and constitutional structure. This Article traces how the Supreme Court has struggled to define whether severability is merely an interpretive presumption designed to preserve as much of Congress’ work as possible, or a constitutional limit on judicial power that forbids courts from reconstructing statutes Congress never enacted. Beginning with Marbury v. Madison and running through cases like Alaska Airlines, Booker, Ayotte, Seila Law, and Loper Bright, this Article charts the Court’s shifting rationales from legislative intent and functional operability to structural separation-of-powers concerns. It distinguishes between …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

Original Public Meaning And The Rule Of Recognition, Andrew Jensen Kerr

William & Mary Bill of Rights Journal

Framer intent no longer possesses the same cachet it once held. But Framer influence still matters for public meaning originalism, particularly for communications like The Federalist Papers, in which Alexander Hamilton, John Jay, and James Madison marketed the work of the Philadelphia Constitutional Convention to state ratifying conventions and the constituencies they represented. Contemporary originalists posit that what the Constitution meant to this public audience at the time of ratification is cemented in time forever (the fixation thesis). The starting point for my analysis is the prosaic observation that our Framers occasionally changed their minds about the meaning of …

Animus, Again, William D. Araiza

William & Mary Bill of Rights Journal

In the first week of his second term, President Donald Trump issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups have already followed. Others may come; more generally, such orders will likely remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future.

One of those tools is equal protection animus. This Article …

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

Retroactivity Rethought: The Hidden Costs, Pierce B. Hasler

Maine Law Review

The validity of Justice Harlan's contention that retroactivity must be rethought is becoming increasingly evident, and it seems likely that extensive reevaluation of the doctrine will soon be necessary. The past six years have been marked by well over a dozen Supreme Court decisions addressed to the question of the retroactive or prospective effect to be given prior constitutional rulings in the area of criminal procedure. Rarely has an important constitutional doctrine achieved such full-blown proportions so quickly, yet several members of the Court would now vote to reject it and start anew. Linkletter v. Walkers was the landmark decision …

Originalism’S Precedent Problem, James Bernstein

Northern Illinois University Law Review

This paper explores the tension between originalism and stare decisis in judicial decision-making. Originalism, which seeks to interpret the Constitution as understood at the time of its ratification, has gained bipartisan acceptance among judges. However, this interpretive approach faces challenges regarding precedent: How should originalist judges handle past decisions that deviate from the original public meaning of the Constitution? The paper examines this issue, particularly in light of originalists’ varied stances on the role of precedent.

Some originalists, like Antonin Scalia and Amy Coney Barrett, acknowledge the need for stare decisis to maintain legal stability, albeit with allowances for overturning …

Brennan And State Constitutions, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The former Great Gorge Playboy Resort in New Jersey seems an unlikely place to help form a jurisprudential movement toward reliance on state constitutions to protect civil rights and liberties.

One need only turn back the clock to 1976 to find the story of one of the most significant moments in the rise of state constitutions. Anyone who is steeped in this movement is likely familiar with the lead article in the January 1977 issue of the Harvard Law Review, “State Constitutions and the Protection of Individual Rights.” The author was U.S. Supreme Court Justice William J. Brennan Jr.

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

On Guido Calabresi, Roger K. Newman

Touro Law Review

Few individuals have had as long and as influential a career in law as Guido Calabresi. Cofounder of the field of law and economics, teacher, dean, and judge, he has inspired (and infuriated) multitudes. On the United States Court of Appeals for the Second Circuit, where he has served for thirty years (while continuing to teach until recently), his creativity and doctrinal innovations continue apace. He has urged the academy, legislature, and bench alike to engage in continuing conversation to improve the law and its effect upon those to whom it acts. One of these areas is certification—the practice of …

You Had One Job: The Supreme Court's New Chance To Fix The Constitutional Law Of Sentencing Factfinding, Benjamin J. Priester

Faculty Articles

Four decades after the enactment of the federal Sentencing Reform Act, one might expect a settled consensus to have emerged addressing the constitutional constraints on implementing norms such as predictability, consistency, and uniformity in the imposition of criminal punishment in the United States. In reality, the United States Supreme Court has failed to provide stability or clarity in the doctrinal principles implicated in millions of criminal cases nationwide. Spanning a quarter century, the Apprendi v. New Jersey line of cases has featured narrow or fragmented majorities, significant concurring opinions, and multiple instances of individual justices either overtly admitting to changing …

From The Kkk To The Modern Day: How An Accurate Understanding Of History Can Inform The Proper Standard For Punishing Civil Rights Conspiracies Under 42 U.S.C. § 1985(3), Bair Srivastav

American University Journal of Gender, Social Policy & the Law

Following the Civil War, Congress passed the Reconstruction Amendments, which secured political rights for newly freed slaves and ushered in a new era for the United States. The Union defeated white Southerners on the battlefield and removed former Confederates from the halls of political power. But white Southerners were still Confederates in spirit. Full of racial hatred, they did not perceive a new era of freedom, but a world twisted into an unnatural order where African Americans walked freely amongst white people and participated in the political process of Southern society. In response to the extension of basic freedoms to …

We Are All Cafeteria Originalists Now (And We Always Have Been), Jack M. Balkin

William & Mary Bill of Rights Journal

In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.

[...]

My central claim is that cafeteria originalism is not a pathology or a …

The Griffin's Case Phenomenon And The Problem Of Historical Knowledge In Legal Arguments, Rachel A. Shelden

William & Mary Bill of Rights Journal

The sudden relevance of a formerly little-known historic case is surely not new; much of legal history is necessarily about discovery and rediscovery of the past. Still, I think the clarity with which we can outline the development of the Griffin’s Case phenomenon offers an opportunity to think carefully about the role of history in constitutional conversation. What follows, then, is a short exploration of the case’s recent (re)entry into our historical consciousness. Tracing this phenomenon highlights (at least for me) some potential difficulties embedded in the interaction between legal advocacy and what we know about the past.

This abstract …

Not-So-Special Solicitude, Katherine Mims Crocker

Faculty Scholarship

In a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators had depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal-government defendants.

But what if “special solicitude” is not so …

Free Exercise Challenges To Entheogen Prohibitions: Precedents, Principles, And Issues, Kevin Chamow

Pace Law Review

This paper examines the conditions for the possibility of future

challenges to prohibitions against the cultivation, distribution, and use of entheogens—substances which reliably induce religious experiences in their users—based on the Free Exercise Clause of the First Amendment. Smith no longer applies to federal prohibitions against entheogens, because of Religious Freedom Restoration Act (RFRA). Under the current Gonzalez framework, the Court is given the difficult task of evaluating the cost of the claimant’s exemption against the state’s interest in the general ban; including how the exemption would impact enforcement of the general ban. This is essentially predictive systems-theory and policymaking, …

Book Review: John Paul Stevens, The Making Of A Justice: Reflections On My First 94 Years, New York, Little, Brown And Co., 2019, Pp. 549, $35.00 (Hardback), Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

How Far Have Standards Of Decency Evolved In Fifteen Years? An Update On Atkins Jurisprudence In Mississippi, Alexander Kassoff

MC Law Review

In 2002, the United States Supreme Court handed down Atkins v. Virginia, holding that the Eighth Amendment prohibits the execution of people with intellectual disability. In the years since that ruling, some change has occurred, but questions remain. This article will examine significant developments in Atkins jurisprudence during that time period. It will look at the two post-Atkins United States Supreme Court cases, and the development of the law - in Mississippi especially, but also to some extent in other jurisdictions that still have the death penalty.