Constitutional History

This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent.

How many amendments are in the Constitution? Americans should be able to know. But whether the Equal Rights Amendment is—right now—part of the Constitution remains controversial. Thirty-eight states have sought to ratify it, several of them after the seven-year deadline in the proposing resolution. Given President Joe Biden’s last-minute claim that the ERA is now the Twenty-Eighth Amendment, in a future administration this lingering debate could provoke a minor constitutional crisis. Yet there may be a legal answer. Congress has long placed operative language in amendment resolutions that modifies the legal force of the proposed text—not only in the Bill of Rights, as is well-known, but also in the Twelfth and Seventeenth Amendments. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that, under Article V, the resolution is the amendment: What matters is the entire constitutional change that Congress proposes, not just the additional language it would append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any change to the Constitution’s text once seven years had passed. Both President Biden’s statement and the ongoing lobbying efforts are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost: The National Archives is the wrong place to play with fire.

In the Supreme Court’s recent United States v. Skrmetti (2025) decision, Justice Amy Coney Barrett raised the novel question: Does the United States have a long-standing history of de jure discrimination against transgender people, perpetrated by state actors through the force of law?
This Essay provides the beginnings of an answer to Justice Barrett’s inquiry, demonstrating that throughout the history and geography of the United States, government actors have used the law to discriminate against people who deviate from narrow, essentialist notions of sex and gender.

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.

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.