{"id":3382,"date":"2025-10-08T15:14:50","date_gmt":"2025-10-08T19:14:50","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?page_id=3382"},"modified":"2025-11-21T14:59:49","modified_gmt":"2025-11-21T18:59:49","slug":"current-issue-new-layout-option","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/jlpp\/current-issue-new-layout-option\/","title":{"rendered":"Volume 48 – Issue 1"},"content":{"rendered":"\n
Volume 48 Preview – Everson<\/em> Must Fall<\/strong><\/summary>\n

You can access the full article of the below abstract by Timon Cline, Josh Hammer & Yoram Hazony here<\/a>.<\/p>\n\n\n\n

In June 2022, in Dobbs v. Jackson Women\u2019s Health Organization,<\/em> the Supreme Court overturned Roe v. Wade<\/em>, 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<\/em>. This almost obsessive focus on overturning Roe<\/em> was largely a reflection of the uniquely odious character of the American \u201cabortion on demand\u201d regime, which had turned abortion into a pillar of America\u2019s culture of sexual license and a kind of sacrament of post-War liberalism.<\/p>\n\n\n\n

But the Dobbs<\/em> 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 \u201crights\u201d 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.<\/p>\n\n\n\n

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\u2014the 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.<\/p>\n\n\n\n

In the wake of the Dobbs<\/em> decision, America\u2019s 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<\/em>. As President Donald Trump put it following Dobbs<\/em>, whatever the states determine will be \u201cthe law of the land.\u201d<\/p>\n\n\n\n

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<\/em>, to the \u201cmajor questions doctrine\u201d case of West Virginia v. EPA<\/em>, to the demise of so-called \u201caffirmative action\u201d programs in Students for Fair Admissions v. Harvard<\/em>, to the limitations of the  powers of the  administrative state in Loper Bright Enterprises v. Raimondo<\/em>, the Supreme Court has shown a consistent interest in rehabilitating important and long-moribund provisions of the Framers\u2019
Constitution. In this context, the Roberts Court\u2019s 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.<\/p>\n\n\n\n

Let us suppose that we\u2019ve read this watershed moment correctly, and that the Supreme Court is prepared to go beyond overturning Roe<\/em>, 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?<\/p>\n\n\n\n

The American constitutional order was designed, in no small part, to allow the respective states\u2014the laboratories of policy\u2014ample room to experiment with different settlements on questions of public religion and morals. It was designed, in other words, to defuse the rationalists\u2019 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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,<\/em> the Court\u2019s 1947 ruling that originally imposed the misguided and ahistorical doctrine of \u201cseparation of church and state\u201d on the states. More than any other decision, it was this ruling that paved the way for the destruction of America\u2019s federalist system, especially as it pertains to laws concerning the establishment of religion and public morals, and for the Supreme Court\u2019s subsequent campaign to suppress traditional religious and moral norms that had animated public life in America for centuries.<\/p>\n\n\n\n

Everson<\/em> must fall.<\/p>\n<\/details>\n\n\n\n

<\/div>\n\n\n\n

43rd Annual Federalist Society National Student Symposium: Why Separate Powers?<\/strong><\/h2>\n\n\n\n
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States in the Separation of Powers<\/a><\/h3>\n\n\n\n

Earnest A Young<\/em><\/strong>
Many American lawyers think of federalism and separation of powers as separate concepts\u2014related, perhaps, but dealing with fundamentally different problems and generating distinct bodies of law.<\/p>\n\n\n\n

\n\n\n\n

Answered by Text<\/a><\/h3>\n\n\n\n

Jennifer L. Mascott & Eli Nachmany<\/em><\/strong>
This Essay takes stock of a pivotal moment at the Court: statutory interpretation at center stage in administrative law. The U.S. Supreme
Court\u2019s most recent Term saw numerous landscape-shifting administrative law decisions.<\/p>\n\n\n\n

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The Major Questions Doctrine, Post-chevron?: Skidmore, Loper-bright, and a Good-faith Emergency Question Doctrine<\/a><\/h3>\n\n\n\n

Jed Handelsman Shugerman<\/em><\/strong>
When my friends, students, and colleagues have fretted about Chevron\u2019s1 fate, I have said, \u201cWorry less. Skid-more.\u201d<\/p>\n\n\n\n

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Life, the Universe, and the Judicial Power<\/a><\/h3>\n\n\n\n

Gary Lawson<\/em><\/strong>
In figuring out the role of the federal courts in the constitutional structure, the obvious place to start is with the Constitution. But what does the Constitution tell us about the federal courts and the judicial power vested in them?
<\/p>\n\n\n\n

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Judicial Review of the Legislative Power in the Roberts Court<\/a><\/h3>\n\n\n\n

Amanda L. Tyler<\/em><\/strong>
The Supreme Court of late has been much focused on the legislative process. To that end, the Roberts Court has taken up a number of cases in multiple contexts in which it has engaged with how Congress carries out the legislative function and what role, if any, the administrative state should play in the calculus.<\/strong><\/p>\n\n\n\n

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The Separation of Powers is a They, Not an It<\/a><\/h3>\n\n\n\n

Cass R. Sunstein<\/em><\/strong>
\u201cThe accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.<\/p>\n\n\n\n

<\/div>\n\n\n\n

Articles<\/strong><\/h2>\n\n\n\n
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The Ciceronian Origins of American Law and Constitutionalism<\/a><\/h3>\n\n\n\n

Jack Ferguson<\/em><\/strong>\u201cAs all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.\u201d
\u2014John Adams<\/p>\n\n\n\n

<\/div>\n\n\n\n

Speaches<\/strong><\/h2>\n\n\n\n
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Good and Evil in the American Founding: The 2023 Vaughan Lecture on America\u2019s Founding Principles<\/a><\/h3>\n\n\n\n

Stephen E. Sachs<\/em><\/strong>
The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders\u2019 ideals as less valuable and their failings as more salient.<\/p>\n\n\n\n

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2024 Vaughan Lecture: The Natural Law Moment in Constitutional Theory<\/a><\/h3>\n\n\n\n

J. Joel Alicea<\/em><\/strong>
Over the last several years, we have seen an outpouring of legal scholarship about the relationship between natural law and American constitutional theory.<\/p>\n\n\n\n

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Reflections on the Natural Law Moment in Constitutional Theory<\/a><\/h3>\n\n\n\n

Conor Casey<\/em><\/strong>
\u201cThe idea of the natural law may thus be compared to the seed which, buried under the snow, sprouts forth as soon as the frigid and sterile winter of positivism yields to the unfailing spring of metaphysics. For the idea of natural law is immortal.\u201d
\u2014Heinrich Rommen<\/p>\n\n\n\n

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Is and Ought in Constitutional Law: A Response to Joel Alicea<\/a><\/h3>\n\n\n\n

Stephen E. Sachs<\/em><\/strong>
Why be an originalist? One answer might be that originalism is true: that it describes what our law actually requires.<\/p>\n\n\n\n

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Originalism and Truth-telling:a Reply to Stephen Sachs<\/a><\/h3>\n\n\n\n

J. Joel Alicea<\/em><\/strong>
I thank Conor Casey and Stephen Sachs for their responses to my Vaughan Lecture. While both responses make valuable and insightful contributions, I will focus my reply on Sachs\u2019s response, since Casey and I seem to be generally in agreement.<\/p>\n\n\n\n

<\/div>\n\n\n\n

Note<\/strong><\/h2>\n\n\n\n
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Structural Textualism and Major Questions<\/a><\/h3>\n\n\n\n

Jonathan Meilaender<\/em><\/strong>
Can a textualist embrace the Major Questions Doctrine (\u201cMQD\u201d)? If the MQD is a clear-statement rule, as Justice Gorsuch suggests in West Virginia v. EPA,1 probably not: a clear-statement MQD will sometimes sacrifice the best reading of the text in favor of external values.<\/p>\n\n\n\n

<\/div>\n\n\n\n

In Memoriam: Prof. Charles Fried<\/strong><\/h2>\n\n\n\n
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Charles Fried as Friend<\/a><\/h3>\n\n\n\n

Randall Kennedy<\/em><\/strong>
Eulogizing one of the other greats of Harvard Law School, Charles Fried remarked that \u201cPhillip Areeda was a supremely intelligent man.\u201d<\/p>\n\n\n\n

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Recollections of Charles Fried<\/a><\/h3>\n\n\n\n

Richard Fallon<\/em><\/strong>
Charles Fried was not literally larger than life, only because nobody is, but he came as close as anyone I have ever known.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

43rd Annual Federalist Society National Student Symposium: Why Separate Powers? States in the Separation of Powers Earnest A YoungMany American lawyers think of federalism and separation of powers as separate concepts\u2014related, perhaps, but dealing with fundamentally different problems and generating distinct bodies of law. Answered by Text Jennifer L. Mascott & Eli NachmanyThis Essay takes stock of a pivotal moment at the Court: statutory interpretation at center stage in administrative law. The U.S. SupremeCourt\u2019s most […]<\/p>\n","protected":false},"author":136,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"disabled","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"footnotes":""},"class_list":["post-3382","page","type-page","status-publish","hentry"],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/PeZSiL-Sy","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/pages\/3382","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/136"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3382"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/pages\/3382\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3382"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}