Constitutional Law

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Article
Volume 89.1
Remembering: The Constitution and Federally Funded Apartheid
Joy Milligan
Professor, the University of Virginia School of Law.

For helpful feedback, I thank Abhay Aneja, Darby Aono, Abbye Atkinson, Emily Bruce, Guy-Uriel Charles, Erwin Chemerinsky, Gabriel Chin, David Engstrom, Jonathan Glater, Michele Gilman, Becca Goldstein, Jon Gould, Kristen Holmquist, Olatunde Johnson, Daryl Levinson, Melissa Murray, Saira Mohamed, Tejas Narechania, Manisha Padi, Michael Pinard, Richard Primus, Bertrall Ross, Erik Stallman, Aaron Tang, Karen Tani, Rebecca Wexler, and participants in the Northern California Junior Faculty Workshop, Loyola Constitutional Law Colloquium, Poverty Law Mini-Workshop, AALS Civil Rights Section Works-in-Progress, NYU Constitutional Theory Colloquium, and the law faculty workshops at Duke, UCLA, the University of Miami, the University of Michigan, and the University of Virginia. I am grateful to the University of Chicago Law Review staff for their exceptional editing, and to Maya Campbell, Toni Mendicino, Talia Stender, and Graham Wyatt for their excellent research assistance.

The substantive Fifth Amendment ideal of preventing the federal government from aiding systemic discrimination receded because of increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle. This Article reveals that forgotten constitutional history. After excavating the Fifth Amendment struggles, I argue that the no-aid norm, and the underlying reality of long-term federal participation in racial apartheid, should be remembered and debated once again.

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Comment
Volume 89.1
The Power of Attorneys: Addressing the Equal Protection Challenge to Merit-Based Judicial Selection
Zachary Reger
B.J. & B.A. 2017, University of Missouri; J.D. Candidate 2022, The University of Chicago Law School.

Many thanks to the staffers and editors of the University of Chicago Law Review for their helpful comments on this piece.

This Comment responds to the equal protection challenge to merit selection. It argues that merit selection is constitutional by way of multiple exceptions, both recognized and implicit, to the “one person, one vote” principle. And though critics of merit selection often couch their arguments in prodemocratic terms, this Comment argues that merit selection—like the “one person, one vote” principle—promotes rather than thwarts the will of the people.

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Comment
Can Procedure Take?: The Judicial Takings Doctrine and Court Procedure
Rebecca Hansen
B.A. 2017, Brown University; J.D. Candidate 2022, The University of Chicago Law School.

Thank you to Alec Mouser, Kelly Gregg, Henry Walter, Sam Sherman, Ryne Cannon, the University of Chicago Law Review editors, and Professors Lee Fennell and Lior Strahilevitz for their help and advice.

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Book review
v88.3
Organizational Rights in Times of Crisis
Katerina Linos
Professor of Law, University of California, Berkeley, and Co-Director, Miller Center for Global Challenges and the Law

Vanessa Rivas-Bernandy provided extraordinary research assistance for this piece—thinking through counterarguments and limitations to my claims, in addition to reorganizing convoluted sentences, paragraphs, and pages. For very helpful comments, I am also very grateful to Elena Kempf and to participants at the October 23, 2020, Conference on Measuring Impact in Constitutional Law. I am very grateful for the financial support of the Carnegie Foundation, the Miller Center for Global Challenges and the Law, and the German American Academic Exchange Program.

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Article
87.5
The First Amendment’s Real Lochner Problem
Genevieve Lakier
Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, The University of Chicago Law School

Thanks to Monica Bell, Rabia Belt, Amy J. Cohen, Andrew Crespo, Aziz Huq, Elizabeth Kamali, Michael Kang, Andy Koppelman, Anna Lvovsky, Richard McAdams, Robert Post, John Rappaport, Daphna Renan, Geoffrey Stone, Nelson Tebbe, and participants at the University of Virginia and Northwestern University Law School Public Law Workshops, the University of Chicago and Vanderbilt Law School Work-in-Progress Workshops, and the Freedom of Expression Scholars Conference for thoughtful feedback, and to Graham Haviland and Elisabeth Mayer for excellent research assistance.Thanks to Monica Bell, Rabia Belt, Amy J. Cohen, Andrew Crespo, Aziz Huq, Elizabeth Kamali, Michael Kang, Andy Koppelman, Anna Lvovsky, Richard McAdams, Robert Post, John Rappaport, Daphna Renan, Geoffrey Stone, Nelson Tebbe, and participants at the University of Virginia and Northwestern University Law School Public Law Workshops, the University of Chicago and Vanderbilt Law School Work-in-Progress Workshops, and the Freedom of Expression Scholars Conference for thoughtful feedback, and to Graham Haviland and Elisabeth Mayer for excellent research assistance.

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Article
87.3
The Origins of Substantive Due Process
Ilan Wurman
Visiting Assistant Professor and incoming Associate Professor, Sandra Day O’Connor College of Law, Arizona State University.

Thanks to William Baude, David Bernstein, Nathan Chapman, and John Harrison; to the participants of the 2018 Rocky Mountain Junior Faculty Colloquium, the 2019 Federalist Society Young Legal Scholars panel, and the 2019 University of Richmond Junior Scholars Workshop; and in particular to my colleagues Zack Gubler, Rhett Larson, Kaipo Matsumura, Trevor Reed, Josh Sellers, Bijal Shah, and Justin Weinstein-Tull for their early interventions. Thanks also to Jessica Kemper and Katherine Johnson for tremendous research assistance.

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