Volume 49: Issue 3
Speeches
2025 Joseph Story Award
Constitutionalism and the Common Good
Jud Campbell
These remarks, delivered upon receipt of the 2025 Joseph Story Award, reflect on the Founders’ views of constitutionalism and of the common good, and how those ideas are relevant today. In contrast to modern approaches to constitutional law, the Founders had a more capacious understanding of constitutionalism—one that encompassed not only judicially enforceable law but also constitutional principles that constrained and guided ordinary politics. The most important of those principles was the common good—an idea staunchly opposed to political tribalism. In an era of entrenched judicial supremacy and escalating partisanship, it is worth remembering and reviving these critical features of our constitutional past.
Articles
“Corrupting” Expertise in the Age of Loper Bright
Aaron Nielson
Just over a decade ago, I wrote an article arguing that nothing much was happening in administrative law, at least doctrinally. I also suggested why that would change: “As society shifts, discretion evolves, sometimes advancing and sometimes retreating, reflecting conflicted expectations of discretion’s usefulness balanced against the dangers of its abuse.”
The Nonpartisan Case for Supreme Court Expansion
Jamal Greene
It should be a shared premise across the ideological spectrum that Supreme Court justices hold too much power. That is not to suggest any consensus that the Supreme Court as an institution holds too much power—some think it does, while others don’t. It is to say, rather, that we should all be able to agree that each individual justice on the Supreme Court exercises significantly more power than any one person in a democracy should.
Regulatory Ratification
Stephen Migala
Ratification was once used exclusively in commercial private agency as an equitable principle. But recently, it has been repurposed by regulatory agencies. Because ratification can make a prior and unauthorized act suddenly and retroactively authorized, federal regulators now claim to use it expansively, including to shield their “acting” officials from judicial review on the legality of their service, usually under the Federal Vacancies Reform Act (FVRA).
Because They Signed: Aspects of American Character and the Declaration of Independence, 250 Years On
Hon. Charles Eskridge
Our Founders undertook a grand experiment in 1776, announcing it to the world as a statement of principle. The Declaration of Independence spoke of equality, natural rights, and the consent of the governed. Its power never rested on words alone. Principles become real only when someone stands behind them.
Against Oirginal Public Zeitgeist: The Establishment Clause’s Disregarded Meaning
Michael Showalter
The Supreme Court’s Establishment Clause jurisprudence is premised on an interpretive method that all justices now reject. Over the second half of the twentieth century, the Court developed a sprawling Establishment Clause jurisprudence based on its understanding—drawn from legislative history—of what the Establishment Clause’s framers subjectively intended. The Court now has returned to the Founding-era view that the correct inquiry when interpreting legal text concerns not what the drafters subjectively intended but what the text means. Yet despite having decided dozens of Establishment Clause cases, not once has the Court attempted to discern the Establishment Clause’s linguistic meaning. Not even the most ardent intentionalist would defend this kind of legislative-history-first and text-never approach. Yet this problem has gone almost entirely unnoticed by commentators. They have followed the Supreme Court’s lead by debating legislative history and the framers’ policy preferences rather than examining the text’s linguistic meaning. Scholars are debating original public zeitgeist—rather than asking what the words meant, they are asking what ideas were in the air.
2025 Vaughan Lecture: Questioning the Dogmas of Textualism
Richard Ekins KC
My subject is textualism, the leading approach to statutory interpretation in the United States. You will be familiar, I am sure, with Justice Kagan’s remark ten years ago that “we are all textualists now,” as well as with her partial repudiation of that claim three years ago in West Virginia v. EPA, in the course of challenging the majority of the Court for its illegitimate departure, in her view, from the text of the Clean Air Act. As Justice Kagan’s remarks suggest, the ascendancy of textualism in the United States may be an unstable development, and the apparent consensus may conceal more than it reveals. What exactly textualism is, or what it requires of judges, may be hard to pin down. There are many textualists, on the bench and in the academy, and, quite properly, they do not all think alike. And perhaps different theories, notably textualism and purposivism, have converged over time, such that there is no sharp line distinguishing textualism from anything else.
What is the Business of the Warren Court?
Richard M. Re
Today’s Supreme Court is conservative whereas the Warren Court was liberal. Yet the substantive principles underlying these two Courts are more compatible than one might think. Conservativism and liberalism are dynamic terms whose meaning changes over time, and the two Courts faced different questions during their respective eras. Abstract principles of racial justice and pro-majoritarian democracy cannot sharply differentiate these Courts, and both Courts also made extensive use of the impassive virtues. Central examples include affirmative action and majority-minority districting. Partly for these reasons, the Warren Court is fading from our collective memory, with the present Court taking its place. The present essay continues a conversation in print with Professor Pamela Karlan and complements my Foreword for the Harvard Law Review, entitled “To a Conservative Warren Court.”
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Vol. 48 Excerpt: Everson Must Fall
You can access the full article of the below abstract by Timon Cline, Josh Hammer & Yoram Hazony here.
In June 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade, the infamous 1973 decision that purported to discover a right to an abortion in the text of the Constitution. It was a remarkable achievement. For decades, conservative lawyers, scholars, clergymen, and activists had devoted overwhelming attention to ending the Supreme Court-mandated abortion regime established under Roe. This almost obsessive focus on overturning Roe was largely a reflection of the uniquely odious character of the American “abortion on demand” regime, which had turned abortion into a pillar of America’s culture of sexual license and a kind of sacrament of post-War liberalism.
But the Dobbs decision is likely to be regarded as a watershed in American constitutional history for reasons that go well beyond the abortion issue itself. For in recognizing that the Constitution includes no right to an abortion, the Court seemed to be bringing to a close a period of seventy-five years in which it had consistently discovered previously unknown “rights” in the Constitution and Bill of Rights, and imposed these new rights on the states through an authority it claimed to have found in the Fourteenth Amendment.
This mechanism had permitted the Court to progressively strip the states of their constitutional authority to determine their own laws, not only with respect to the issues of racially motivated violence and abuse that had motivated the passage of the Fourteenth Amendment after the Civil War, but also on a vast array of other areas pertaining to health, religion, and morals—the very police powers entrusted to the States by the Constitution in 1787. It is no exaggeration to say that by the method described above, the federal structure of the American republic was systematically dismantled by liberal courts anxious to place issues relating to race, religion, and morals beyond the reach of state legislatures.
In the wake of the Dobbs decision, America’s sleepy state legislatures have once again emerged as the dominant venue for the most demanding and important political debates, exercising responsibility for republican self-government to an extent they have not known for decades. While opinions vary as to whether the ultimate resolution of the abortion issue, specifically, should be at the state or federal level, it is undeniable that American federalism has been given a new lease on life due to Dobbs. As President Donald Trump put it following Dobbs, whatever the states determine will be “the law of the land.”
This move to reinstate the federal structure of American government appears to be part of a broader project of constitutional restoration undertaken by the Supreme Court under Chief Justice John Roberts. From the strengthening of the Second Amendment right of citizens to carry arms in New York State Rifle & Pistol Association, Inc. v. Bruen, to the “major questions doctrine” case of West Virginia v. EPA, to the demise of so-called “affirmative action” programs in Students for Fair Admissions v. Harvard, to the limitations of the powers of the administrative state in Loper Bright Enterprises v. Raimondo, the Supreme Court has shown a consistent interest in rehabilitating important and long-moribund provisions of the Framers’ Constitution. In this context, the Roberts Court’s willingness to recalibrate the relationship between the national government and the states, building upon the work begun by the Rehnquist Court that preceded it, is best understood as an indication that we have entered a period in which the terms of the original Constitution are being revisited and revived.
Let us suppose that we’ve read this watershed moment correctly, and that the Supreme Court is prepared to go beyond overturning Roe, and to engage in a more general restoration of the ailing American constitutional order as a distinctly federalist one. What, then, should be the next great aim of this Court and of American conservatives seeking such a constitutional restoration?
The American constitutional order was designed, in no small part, to allow the respective states—the laboratories of policy—ample room to experiment with different settlements on questions of public religion and morals. It was designed, in other words, to defuse the rationalists’ yearning to devise a single answer to every vexing question of religion and morals, and to impose this one answer on a vast continent in which diverse communities had established themselves.
Today, more than ever, we can see the wisdom in this design and understand how much good, and even national healing, could come from returning to it now.
With this larger purpose in mind, we propose that the next longterm goal for the conservative legal movement must be to seek a reversal of Everson v. Board of Education, the Court’s 1947 ruling that originally imposed the misguided and ahistorical doctrine of “separation of church and state” on the states. More than any other decision, it was this ruling that paved the way for the destruction of America’s federalist system, especially as it pertains to laws concerning the establishment of religion and public morals, and for the Supreme Court’s subsequent campaign to suppress traditional religious and moral norms that had animated public life in America for centuries.
Everson must fall.