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 →
2025
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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 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 →
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Calvin’s Case and Birthright Citizenship
Introduction Donald Trump’s executive order ending birthright citizenship for the children of unlawfully present “aliens” raises serious constitutional questions. Current… Continue reading →
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The Prosecutor’s Role in Facilitating Criminal Alternative Dispute Resolution
In a typical criminal case, the State and the defendant are the principal stakeholders, while the victim has little say… Continue reading →
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Policing as General Warrants
The drafters of the Bill of Rights and its proponents envisioned a document constitutionalizing protections against some of the worst… Continue reading →