History and Fetishism in the New Separation of Powers Formalism
In the last few years, the Supreme Court has embraced a formalist approach to separation of powers law, allegedly justified… Continue reading →
Volume 173 (2024-2025)
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Erasing Slavery: The Uses and Misuses of The History of Slavery and Reconstruction in Constitutional Interpretation
This Essay takes as its jumping-off point Jack Balkin’s claim that judicial decisions both rely on constitutional memory and produce… Continue reading →
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Constitutions of Ice and Fire
This world is vast, dangerous, and dying. You take your first steps, uncertain of who you are, where you are… Continue reading →
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Ameliorative Constitutionalism
The basic problem of American constitutional theory is that (a) the U.S. Constitution, morally speaking, lacks full democratic legitimacy due… Continue reading →
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Why We Should Stop Saying “The Founders”
One of the most valuable aspects of Jack Balkin’s new book, in my view, is the seriousness and attention it… Continue reading →
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The Abuses of History in Constitutional Interpretation
Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves… Continue reading →
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The Democratic Deficit of Living Originalism
This Essay examines Jack Balkin’s theory of living originalism, which argues that original constitutional meaning is “thin” while the construction… Continue reading →
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Originalist Framing of Free Speech Doctrine
The Supreme Court has increasingly signaled the importance of history and tradition to constitutional interpretation. Reliance on original meaning and… Continue reading →
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The Past is Always Changing: A Story in Three Parts
“Certain things they should stay the way they are. You ought to be able to stick them in one of… Continue reading →
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Nino’s Paradox
This is an essay about how lawyers and judges manipulate the distinction between changes in facts and changes in values… Continue reading →