Constitutional Law

Many people helped me think through the problems addressed in this article. I am especially grateful to Larry Alexander, Randy Barnett, David Bernstein, Julie Cohen, Lee Anne Fennell, Martin Lederman, Gary Peller, Adam Samaha, Geoffrey Stone, Mark Tushnet, and Rebecca Tushnet, and to participants at workshops at The University of Chicago Law School, Georgetown University Law Center, and Loyola University Law School. I received excellent research assistance from James Banda and Richard Harris.

I am grateful to participants in workshops at the Harvard, University of Virginia, University of Michigan, and University of Chicago Law Schools, and to Mary Anne Case, Barry Cushman, Elizabeth Emens, Richard Fallon, Barry Friedman, Don Herzog, Christine Jolls, Michael Klarman, Jacob Levy, Eric Posner, Richard Primus, Adam Samaha, Kirsten Smolensky, Geoffrey Stone, Cass Sunstein, John Sylla, and Adrian Vermeule for comments on earlier versions of this Article. I also thank Mark Sherman and Karen Courtheoux for excellent research assistance and the Sonnenschein Faculty Fund at The University of Chicago Law School for financial support.

I would like to thank Steven Goldblatt, Jane Aiken, Amanda Leiter, Kathryn Sabbeth, Erin Aslan, Eliza Platts-Mills, Tabatha Abu El-Haj, Rebecca Lee, and Marcy Karin for their assistance back when this Article was just an idea. I also would like to thank Dan Filler, Alex Geisinger, David Cohen, Lawrence Rosenthal, Jack Beermann, Daryl Levinson, Margo Schlanger, David Achtenberg, and Alan Chen for their thoughtful and detailed feedback. Additionally, I would like to thank the faculties at the University of Denver Strum College of Law, Quinnipiac University School of Law, Case Western Reserve University School of Law, and the Earle Mack School of Law at Drexel University for their helpful ideas and suggestions.

My thanks to Sharon Yecies, The University of Chicago Law School, Class of 2011, for her excellent research assistance on an earlier version of this Review.

I am grateful for the comments I received on earlier drafts from Richard Banks, Rebecca Brown, Janet Giele, Phoebe Haddon, Michael Helfand, Fred Schauer, and Molly Walker. I also received helpful feedback from the participants in workshops at Duke Law School, the University of Minnesota Law School, Stanford Law School, the University of Virginia School of Law, and Wake Forest School of Law, as well as from attendees at my keynote speech at the Lavender Law Conference in San Francisco in September 2008, and from participants in the MidAtlantic People of Color Legal Scholarship Conference at Temple University James E. Beasley School of Law in January 2009 and the Third National People of Color Legal Scholarship Conference at Seton Hall University School of Law in September 2010. Student workshops at the University of Virginia and at Fairhaven College, Western Washington University, also provided useful feedback. The University of Virginia School of Law reference librarians, including Ben Doherty and Alison White, provided superb assistance. A special thanks to Jared Campbell, Evan Didier, Sarah Fritsch, Sarah Johns, Tim Lovelace, Chris Mincher, and Hadi Sedigh for their diligent research assistance and very helpful discussions. I welcome comments at kimfm@virginia.edu.

I thank David Armitage, William Birdthistle, Adam Cox, Christine Desan, Morton Horwitz, James Kloppenberg, Martha Nussbaum, Lior Strahilevitz, and David Strauss for helpful discussions. I also thank the Mayer Brown Faculty Research Fund for research support.

Thanks to Daniel Abebe, Bernard Harcourt, Rick Hills, Trevor Morrison, Eric Posner, and Adrian Vermeule for their insightful and helpful comments, and to Eileen Ho for excellent research assistance. I am especially grateful to Professor Posner for graciously suggesting that I look closely at one of his books. I am pleased to acknowledge the support of the Frank Cicero, Jr Faculty Fund. All errors herein are mine alone.