Volume 110
Sep. 2022

Foreword: Democracy in Transition

by Sherrilyn Ifill
Thurgood Marshall, the U.S. Supreme Court Justice whose work as a civil rights lawyer transformed twentieth-century American democracy, famously said, in a riff on a quote often attributed to Benjamin Franklin, “It’s a democracy, if we can keep it.” But Marshall went beyond Franklin’s cryptic warning about the fragility of our republic. In a 1978 […]

In Memoriam for Justice Ruth Bader Ginsburg

by Amy Marshak
Since Justice Ruth Bader Ginsburg’s passing in 2020, I have held dear the memory of my year as her law clerk and the everyday moments of mentorship that she generously shared. Three memories in particular stand out as exemplars of her remarkable wisdom on the values of perspective, precision, and patience in both life and […]

Federalism and Equal Citizenship: The Constitutional Case for D.C. Statehood

by Jessica Bulman-Pozen & Olatunde C.A. Johnson
As the question of D.C. statehood commands national attention, the legal discourse remains stilted. The constitutional question we should be debating is not whether statehood is permitted but whether it is required.  Commentators have been focusing on the wrong constitutional provisions. The Founding document and the Twenty-Third Amendment do not resolve D.C.’s status. The Reconstruction […]

Racial Justice and Peace

by Yuvraj Joshi
The United States recently saw the largest racial justice protests in its history. An estimated 15 to 26 million people took to the streets over the police killings of Breonna Taylor, Tony McDade, George Floyd, and countless other Black people. This Article explores how these protests and their chants of “No Justice! No Peace!” should […]

Justice Ginsburg’s Cautious Legacy for the Equal Rights Amendment

by Julie C. Suk
History will remember the late Justice Ruth Bader Ginsburg (RBG) as the “founding mother” of constitutional gender equality in the United States. This Article unpacks her legacy for inclusive constitutional change, unearthing her lifelong commitment to the Equal Rights Amendment (ERA), which was adopted fifty years ago by Congress in 1972. It took nearly half […]

Progressive Textualism

by Kevin Tobia, Brian G. Slocum & Victoria Nourse
Textualism is now the Court’s lingua franca. In response, some have proposed a “progressive textualism,” defined by the use of traditional textualist methods to reach politically progressive results. This Article explores a different kind of “progressive textualism.” Rather than starting with the desired policy outcome—politically progressive or conservative— we begin from one of modern textualism’s […]

How Compassionate?: Political Appointments & District Court Judge Responses to Compassionate Release During COVID-19

by Victoria Finkle
The Trump Administration sought to transform the judiciary by appointing numerous conservative judges to the bench, building on a Republican project that is decades in the making. This Note examines how judges are deciding compassionate release motions in the wake of the COVID-19 pandemic, which has proven particularly deadly inside the nation’s prisons. This Note […]

The Paper-Thin Constitutions: Paths to Authoritarianism in the United States and Venezuela

by Jesus A. Rodriguez
“I swear before God, before the fatherland, and before my people, that upon this moribund constitution, I will enforce and propel the necessary democratic transformations so that the new republic may have a magna carta appropriate to a new age.”  –Hugo Chávez In his inaugural address, President Joe Biden praised the “resilience of our Constitution” […]