Vol. 139 No. 8 Introduction Buried in Harlow v. Fitzgerald, the Supreme Court’s leading decision on qualified immunity, a largely overlooked phrase invokes a mostly forgotten distinction in...
Vol. 139 No. 6 By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions. This Article tells the story of these constitutions — the constitutions of Native nations.
Vol. 139 No. 6 Whether written or unwritten, young or old, constitutions can't compel the construction of institutions of the enforcement of checkpoints any more than maps can create fences, checkpoints, or border patrols. And yet constitutions are powerful; they produce effects.
Vol. 139 No. 5 Introduction On August 23, 1842, Congress quietly and quickly conferred a broad grant of rulemaking authority on the Supreme Court. The Act of Aug....
Vol. 139 No. 4 Sometimes what we call a practice can matter just as much as the practice itself. Jury nullification has a storied history dating back to...
Vol. 139 No. 3 Courts often consult entrenched, preratification sources such as Blackstone’s Commentaries and The Digest of Justinian when rendering decisions in common law actions. These authorities...
Vol. 139 No. 2 Today, it seems obvious that criminal defendants can waive constitutional rights. Plea bargains make up the vast majority of criminal convictions, and defendants routinely trade their rights — to indictment, to remain silent, to an attorney, to a jury — in exchange for a faster trial or a lesser charge. The modern criminal legal system is a regime of negotiated justice. Rights used to have more force.
Leading originalist Professor Michael McConnell has written a thoughtful dissection of the Supreme Court’s pivotal decision last term in Trump v. Anderson, which...
Vol. 138 No. 8 “God hates you wicked baby killing whores,” “cocksucker,” “fucking cunt,” and “shut your fucking mouth, you bitch” are statements that start fights. In 1791,...
