Constitutional Law

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 This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded.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.

The Constitution’s pardon power offers a direct path to protect an ally from federal criminal liability. However, another vehicle for absolution exists—one which simultaneously avoids public scrutiny while securing amnesty. By issuing a discreet, specific nonenforcement directive to the Department of Justice (DOJ), a politically vulnerable President can achieve the result of pardon without signing one. This phenomenon, which this Essay terms the “shadow pardon,” transforms prosecutorial discretion into a covert form of amnesty, invisible to the public and immune from reversal once the relevant crime’s statute of limitations expires.

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.

The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article develops an original account of data’s structural law—the processes, institutional arrangements, transparency rules, and control mechanisms that, we argue, create distinctive structural dynamics for data’s acquisition and appropriation to public projects. Doing so requires us to reconsider how law treats the category of power to which data belongs. Data is an instrument of power. The Constitution facilitates popular control over material forms of power through distinctive strategies, ranging from defaults to accounting mechanisms. Assessing data’s structural ecosystem against that backdrop allows us to both map the structural law of data and provide an initial diagnosis of its deficits. Drawing on our respective fields—law and computer science—we conclude by suggesting legal and technical pathways to asserting greater procedural, institutional, and popular control over the government’s data.

In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.

In 1977, a company convicted of conspiring with the mob asked President Carter for a pardon. The government speculated that the President could so exercise the pardon power, but ultimately no pardon ever issued. Nearly fifty years later, President Trump has pardoned a company convicted of violating the Bank Secrecy Act. People are again speculating that the pardon power covers companies, but few can offer evidence either way. History shows that the pardon power covers companies. Before the Founding, the King would often pardon corporations. Both the city of London and the Massachusetts Bay Company were pardoned before the Founders were even born. This tradition was the background against which the Pardon Clause and many of its state analogs were drafted. That the President can pardon companies might feel surprising or even unsettling. But the prerogative fits comfortably into the nation's separation of powers. Congress can make exercising the power less attractive by withholding refunded fines or shifting crimes to civil infractions. These checks come with more tradeoffs when exercised int he context of human beings, which might explain why Congress has not exercised them so far.

When prisoner officials burden the free exercise rights of prisoners, prisoners can seek recourse under 42 U.S.C. § 1983. However, due to the specialized and restrictive nature of prisons, courts adjudicate these claims under a reasonableness test set out in the case Turner v. Sadfley instead of a strict scrutiny standard. While circuits agree on using the Turner test for prisoner free exercise claims, there is a deep circuit split on the proper threshold test for these types of claims. While some circuits hold that inmates need to show that their religious practice was substantially burdened, other circuits hold that inmates just need to show that their religious practice was sincere. These threshold tests produce significant differences in how prisoner free exercise claims are litigated in court. After exploring the relevant Supreme Court guidance, this Comment aims to settle the split by examining each threshold test on its respective merits, considering neutral criteria such as screening ability, adherence to judicial capacity, and workability.

The constitutional text seems to be missing a host of governmental powers that we take for granted. The Supreme Court has suggested the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article shows that the “concomitants of nationality” idea reflects an important and longstanding feature of U.S. constitutional law: a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law.

The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. In this Comment, Brady Earley offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. The Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, the Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and the showcase the possibilities of a data-driven method to address necessity in free exercise.