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Constitution


  • Lincoln Would have Had an Answer for the "Originalists"

    by Richard Striner

    The 16th President looked to the constitutional crises of his time and asked whether the document was created to serve the people or the other way around. Today he might ask the same of the Supreme Court. 



  • The Constitution's Support for Oligarchy

    Jonathan Gienapp says that the Framers made deliberate choices to make the Constitution a bulwark against what they saw as the danger of broad-based democracy. 



  • "Independent State Legislature" Legal Theory Based in Fake History

    Charles Pinckney's ideas for the Constitution were rejected by the framers. Years later, he produced fake documents to aggrandize his own role at the convention. Right-wing legal activists have used them to argue that state legislatures can decide election results however they want. 



  • SCOTUS Hasn't Always Been the Final Arbiter; Liberals Should Stop Thinking it Is

    by Joseph Fishkin and William E. Forbath

    "Liberals drew the wrong lessons from the mid-20th century federal judiciary’s fleeting embrace of social reform, and forgot that over the long arc of U.S. history, the minority rights the court has most consistently safeguarded have been those of the wealthy and powerful, the corporate, landed and enslaver elites."


  • Time to Amend the Constitution

    by Don Fraser

    Significant changes are needed to the Constitution in order to preserve any semblance of democratic government. 


  • The Second Floundering

    by Brook Thomas

    Although scholars have identified the Reconstruction Amendments as a redemption of the flaws of the original Constitution, it's important to understand, as critics did at the time, that the 14th and 15th Amendments left many gaps in the American democracy. 



  • Make Progressive Politics Constitutional Again

    by Joseph Fishkin and William E. Forbath

    It is time to jettison the legal liberalism that holds constitutional interpretation separate from popular politics, or else the government's ability to legislate in the public interest will be destroyed. 



  • The Reconstruction Amendments and the Basis of American Abortion Rights

    by Peggy Cooper Davis

    When the 13th, 14th and 15th Amendments were debated, concerns about the protection of both public rights of citizenship and private, intimate rights of individuals were front and center. There is, notwithstanding Samuel Alito's opinion, a long tradition of constitutional respect for privacy.



  • What if the Constitution is the Source of Democratic Erosion?

    by Noah Feldman

    James Madison feared from the beginning that the design of the US Senate was contrary to the core principles of a democratic republic. A Harvard Law professor says that if the nation can survive with a fundamentally undemocratic institution at the heart of the government, partisan gerrymandering might not be too bad. 



  • Law Profs: How Progressives Can Take Back the Constitution

    by Joseph Fishkin and William E. Forbath

    Like in the New Deal era, courts are thwarting the will of many Americans and the other branches of government to protect oligarchy. Today's progressives need to remember how their forebears fought back by contrasting concentrated wealth to the guarantee of a "republican form of government" the constituiton offers.



  • Bouie: Let's Remember the "Guarantee" Clause

    by Jamelle Bouie

    Article IV requires the federal government to guarantee a republican form of government in every state; James Madison's writings in the Federalist and John Marshall Harlan's dissent in Plessy should be touchstones for reviving the influence of the clause.



  • Inaction By Design: Blame the Founders for Stalled Legislation

    by Calvin Schermerhorn

    Although two Senators have been singled out by many liberals as villains, "today’s legislative sausage factory evokes the Founders’ recipe for federal inaction — and their suspicion of democracy."


  • Four Myths of Presidential Power

    by Daniel Farber

    History looms large in arguments about the Constitution these days. But there are widespread misunderstandings of what history tells us about presidential powers, from making war to being impeached. 



  • Is the Constitutional Crisis Already Here?

    by Robert Kagan

    "The Framers did not establish safeguards against the possibility that national-party solidarity would transcend state boundaries because they did not imagine such a thing was possible."