Constitutional History

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.