Constitutional History

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Volume 92.6
The Splintering of American Public Law
Marco Basile
Assistant Professor, Boston College Law School.

For feedback and suggestions at various stages of this project, I thank David Barron, Mary Sarah Bilder, Nikolas Bowie, Richard Chen, Noah Feldman, Idriss Fofana, Barry Friedman, Jack Goldsmith, Daniel Hulsebosch, Mark Jia, Michael Klarman, Chris Mirasola, and Susannah Barton Tobin. This project also benefitted from workshops with faculty at Boston College Law School, University of Chicago Law School, Cornell Law School, Harvard Law School, Loyola Law School, New York University School of Law, Notre Dame Law School, University of San Diego School of Law, Seattle University School of Law, University of Texas School of Law, University of Southern California Gould School of Law, and Washington University School of Law. I am also grateful to Emma Svoboda and Elaine Tsui for research assistance and to the members of the University of Chicago Law Review for their hard work editing the manuscript.

This Article by Marco Basile argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently against the state as the United States consolidated a continental nation-state. On one hand, the Supreme Court came to assert authority over constitutional law more aggressively in the context of gutting Reconstruction in the South. At the same time, the Court stepped back from international law in deference to Congress as the United States conquered territories and peoples in the West. The simultaneous rise of judicial supremacy as to constitutional law and of judicial deference as to international law recast constitutional law as more “legal” than political and international law as more “political” than legal. By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from the past. The Article ultimately invites us to reimagine a more integrated public law today.

International Law Legal History
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Volume 91.8
The Reconciliation Roots of Fourth Amendment Privacy
Sophia Z. Lee
Professor of Law, University of Pennsylvania Carey Law School.

I am indebted to my Penn Carey Law colleagues, fellow members of the Writers’ Bloc(k), participants in the Privacy Law Scholars Conference, the Harvard Law School Legal History Workshop, the American Bar Foundation’s Legal History Roundtable, as well as Laura Edwards, Scott Heerman, Orin Kerr, Sandra Mayson, Ajay Mehrotra, Shaun Ossei-Owusu, Nicholas Parrillo, and David Rudovsky for especially generous and helpful feedback. I am immensely grateful to Alana Bevin, Madeline Bruning, Miles Gray, Susan Gualtier, Paul Riermaier, Anna Rosenfeld, Austin Severns, Mary Shelly, and David Sowry for their phenomenal research assistance, as well as to the National Archives and Records Administration staff who made accessing case records amid a pandemic possible.

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which White Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve White supremacy, and pave the way for the violent disenfranchisement of newly freed Black men. The Article concludes by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation.

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