Constitution

Amendments are the Key to Avoiding Constitutional Extinction

by Jill Lepore

Our constitution has essentially been frozen in time since 1971, making it a poor instrument for governing to meet modern challenges. Rescuing the history of the Constitution from the originalists through a comprehensive historical archive of efforts to amend it could help restore its vitality. 

How to Get Americans To Embrace Constitutional Amendments Again

by Kate Shaw and Julie K. Suk

As recent Supreme Court decisions on guns and abortion rights have made many Americans fear the loss of basic rights, reviving the effort to pass the Equal Rights Amendment can remind Americans that nine people in robes don't have to be the final authority on the Constitution. 

Why Did Madison Write the Second Amendment?

by Carl T. Bogus

Understanding the political peril that ensnared both the pre-ratification Constitution and James Madison himself makes it clear that the Second Amendment was written to ensure that southern state militias would be sufficiently armed to suppress slave revolts even if abolitionists controlled Washington. 

The History of State Interposition Shows Federalism is a Deliberative Process, not a Set of Rules

by Christian G. Fritz

The efforts of state legislatures to oppose federal law have been varied. In sum, they show that the Supreme Court cannot dictate the distribution of power under federalism; Americans will have to keep figuring it out as we go, through political deliberation.

SCOTUS Decision Means Today's Gun Cases Require Experts on 1790s Weaponry

Legal historians Saul Cornell, Jennifer Tucker and others are in high demand as a legal consultant after the Bruen decision elevated the historical meaning of gun laws to importance in the judicial process. 

Ron DeSantis is Making History a Political Issue; What does His Book Say?

by David Waldstreicher

Nobody paid much attention to the Florida governor's 2011 book "Dreams from Our Founding Fathers." Maybe we should now—it spells out a justification for a deeply conservative view of the constitution that dismisses the significance of racism in the founding and in the doctrine of originalism.

Nobody Likes the Electoral College—What are the Alternatives?

Constitutional Scholar Akhil Reed Amar discusses how to replace the current electoral system with something more democratic and participatory. 

The Constitution Won't Be Much Help Resolving the Speaker Mess

While the Constitution requires the House to choose it's speaker, it gives no guidance how. Usually custom and party discipline are sufficient to accomplish the task, but not always. 

SCOTUS Seems Poised to Overrule Democracy By Drawing on a Historical Forgery

In 1818, Charles Pinckney of South Carolina sent John Quincy Adams a fake document that made it look like Pinckney was a principal author of the 1787 Constitution. At the time, the ruse was rejected. Why are Supreme Court conservatives looking to this document in to justify their decisions?  

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. 

Thinking and Teaching the Implications of Federalist #10 for Democracy

by Jeff Schneider

Teachers of Constitutional history must push their students to understand something difficult: James Madison's vision of the "public good" is a vision of elite rule that today stands in the way of democratic solutions to society's problems. 

How the Constitution Can Accommodate Divergent Values

by James D.R. Philips

When founding the nation, American political leaders had to both leverage Americans’ shared political culture and beliefs, and allow for Americans’ differing moral beliefs and values.

"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. 

The Amendment Process is the Constitution's Biggest Flaw

by Jedediah Britton-Purdy

We are not the "we, the people" of 1789. Changing Article V to make the Constitution more easily amendable is the key to breaking the shackles the document places on democracy.

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.