Democratic Justice: Felix Frankfurter, The Supreme Court, and the Making of...
On the fourth floor of the Harvard Law School Library sits Justice Felix Frankfurter’s rocking chair. It was a fitting seat for Frankfurter, an intellectual in constant motion. Georgetown Law Professor...
View ArticleBruen’s Ricochet: Why Scored Live-Fire Requirements Violate the Second Amendment
Introduction City of Boston residents who wish to carry a handgun for self-defense must apply for a License to Carry Firearms (LTC) with the Boston Police Department.54×54. Owning a Firearm in Boston,...
View ArticleConstitutional Remedies: In One Era and Out the Other
Despite the ringing dictum of Marbury v. Madison that “every right, when withheld, must have a remedy,” rights to remedies have always had a precarious constitutional status. For over one hundred...
View ArticleJustice Breyer: The Court’s Last Natural Lawyer?
Natural law “still spooks many constitutional lawyers.” Justice Scalia, for example, was once asked: “Does natural law have a place in interpreting the Constitution?” He perfunctorily responded: “No.”...
View ArticleFifth Amendment Rights as Abortion Rights
A Black woman arrives at a hospital in South Carolina with a medical emergency. She is having labor pains, and the medical staff ask her what’s wrong. She tells them she took abortion pills. Months...
View ArticleRomer Has It
A quick scan of LGBTQ-rights victories from the last two decades paints an indisputable picture of progress, a triumphant string of Supreme Court decisions that neatly illustrates the maxim that “the...
View ArticleDialectal Due Process
The principle of the arbitrariness of the sign is not doubted by anyone, but it is often easier to discover a truth than to assign it its rightful place. This principle dominates all of linguistics —...
View ArticlePrecedent, Reliance, and Dobbs
Abstract Our system of stare decisis enables and encourages people to rely on judicial decisions to form expectations about their legal rights and duties into the future, and to structure their lives...
View ArticleRemoval Rehashed
Introduction We are grateful to the Harvard Law Review Forum for the chance to respond in these pages to The Executive Power of Removal. In this new piece, Professors Aditya Bamzai and Saikrishna...
View ArticleTangibility and Tainted Reliance in Dobbs
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court distinguished between different kinds of reliance interests — some that would support preserving a judicial precedent, and others...
View ArticleMazo v. New Jersey Secretary of State
New Jersey law allows candidates for elected office to place a six-word slogan next to their names on the ballot. However, candidates who want to use the name of a person or New Jersey corporation in...
View ArticleB-21 Wines, Inc. v. Bauer
When it comes to the Constitution, alcohol makes everything a little hazy. The Commerce Clause bars states from unduly burdening interstate commerce. But the Twenty-First Amendment, which ended...
View ArticleThe Contract Clause: Reawakened in the Age of COVID-19
Article I, section 10, clause 1 of the Constitution introduces a litany of limitations on state power. States cannot, inter alia, “grant Letters of Marque and Reprisal,” “pass any Bill of Attainder,”...
View ArticleLegal Borderlands and Imperial Legacies: A Response to Maggie Blackhawk’s The...
What are the borderlands? In her brilliant and sweeping exploration of the “constitution of American colonialism,” Professor Maggie Blackhawk references the borderlands dozens of times. She ultimately...
View ArticleThe Incompatibility of Substantive Canons and Textualism
Abstract A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction...
View ArticleDobbs and Democracy
Abstract In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to...
View ArticleThe Dormant Commerce Clause and Moral Complicity in a National Marketplace
To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy...
View ArticleM.A. v. Rockland County Department of Health
In recent years, the Supreme Court has demonstrated a willingness to revisit, and even overturn, long-standing precedents. Given this trend, many have wondered: What precedent might be next to go? For...
View ArticleThe Constitution of Difference
The result of what has been said is that whilst in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was...
View ArticleThe Fourteenth Amendment is Not a Bill of Attainder
On February 8th, 2024, the Supreme Court will hear oral arguments on whether Donald Trump is disqualified from the presidency under Section Three of the Fourteenth Amendment, which states that “[n]o...
View Article