Print Edition
This article argues that amendment is the foundational if forgotten contribution of American constitutionalism. Adopting a written constitution requires making provision for its future by allowing for change: Americans devised that mechanism. The idea of constitutional repair, correction, and improvement through revision was so essential to the founding of the United States that it can best be described as a system of thought, which I call the philosophy of amendment and describe as the epitome of the eighteenth-century idea of progress.
Professor Lepore is issuing a timely and necessary warning about the need to think deeply about reforming our Constitution. The enemy, in this case, is not the British. Rather, it is ourselves, in our complacent unwillingness to engage with clear deficiencies of the present Constitution. She begins her essay with the extraordinary reminder that everything in the world is subject to decay, including the parchment on which the Constitution was originally written (for starters). That is true, of course, of the more abstract Constitution itself.
Professor Jill Lepore’s Jorde Symposium lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States’ ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account; second, that while Lepore’s wariness of conventions is entirely understandable given the state of our politics…
The Constitution, as I like to remind the students in my Constitutional Law I class, is very old, very short, and very vague. Among the 7,762 words of the Constitution are the twenty-seven amendments, the first and last of which were both proposed in 1789 but were ratified 201 years apart—the First Amendment in 1791, and the Twenty-Seventh in 1992.
Constitutional amendment has become irrelevant to most Americans of the twenty-first century—even to lawyers and leaders pursuing major systemic change. The most recent amendment was added to the U.S. Constitution in 1992, and that amendment was actually written two centuries prior. It has been nearly half a century since the last time Congress adopted an amendment and sent it to the states for ratification, which failed. What remains of the philosophy of amendment without any practice of it?
This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment.
CLR Online
The web edition of the California Law Review.
Gun violence is the leading cause of death for children in this country. This stunning and horrifying fact angers us. The United States also has the highest number of school shootings of any developed nation. This is particularly upsetting since school is supposed to be a safe haven for children: a place to learn, play, and discover who they are and who they want to be. Our hearts ache for the parents who have lost their children or whose children have been traumatized by a shooting. We live in fear that our children’s school will be next.
The Reconstruction Congress envisioned a comprehensive set of rights and structural protections in the Fourteenth Amendment to establish and preserve a multiracial democracy. The Fourteenth Amendment’s third section, the Insurrection Clause, may seldom have been enforced in recent memory, but it remains a vital part of the Amendment’s framework. In Trump v. Anderson, the Supreme Court was given a choice to either enforce the Insurrection Clause’s protection of Black political participation or condone insurrection. In keeping with its long tradition of anti-Black jurisprudence, the Court chose the latter.
A few years ago, I published, in this journal, an article on the thirtieth birthday of the Americans with Disability Act. That article, The Americans with Disabilities Act at Thirty, 11 CALIF. L. REV. ONLINE 308 (2020), has seen a great deal of success over the past three years. Inspired by that essay, this article celebrates the fiftieth anniversary of another very important disability rights law—the forerunner of the Americans with Disabilities Act—the Rehabilitation Act of 1973 (RA).
In July 2022, transitional U.S. Department of Agriculture (USDA) requirements for milk in school meals went into effect. These requirements further ensconce milk as a nutritional cornerstone of the USDA’s school breakfast and lunch programs, with milk serving as a key source of calcium, vitamin D, potassium, and calories for children.
Many may recognize the “land grant” moniker that several dozen U.S. universities like the University of California carry, but what many do not realize is that the land “granted” to fund these universities was land that the federal government had recently expropriated from Native Nations through violent seizures and coercive treaties.
Public debate over the U.S. legal response to White supremacist violence is on constant simmer, bound to boil over whenever an attack draws national attention. In recent years, that’s happened often. Like in 2015, when a White nationalist gunman killed nine worshippers at a Black church in Charleston, South Carolina. And in 2019, when a White man who decried the “Hispanic invasion of…
Symposia
Articles accompanying CLR’s conferences. Published in the print edition.
In the summer of 1854, the Massachusetts Anti-Slavery Society sent out word of a large gathering to be held at Harmony Grove in Framingham—sixteen miles from Boston—on the Fourth of July. For fifty cents, picnickers were offered “Special Trains” to and from the grounds.
In his essay Frederick Douglass and the Two Constitutions, Professor David Blight explores the constitutional thought of the nineteenth century’s great human rights advocate, statesman, and orator, Frederick Douglass. How should we understand, he asks, Douglass’s arrival at a natural rights interpretation of the 1787 Constitution?
Even in a century notable for oratory, Frederick Douglass’s capacities as an orator were astonishing. He was a master of words, whether spoken or written.
Thank you for inviting me to participate in this symposium. I want to thank David Blight, in particular, for this rich and provocative Essay. It was fascinating for me to learn that he has come over to the position of my friends James Oakes and Sean Wilentz, with whom I have argued about the concept of the antislavery American Constitution.
Born a slave on the eastern shore of Maryland and spending the first twenty years of his life in bondage, Frederick Douglass possessed no conventional education. He did not spend a single day of his life in schools of any kind. His “education” came from people around him, from books, from journalism, from wide reading, and finally, from his personal experience and relationships.
In his Jorde lecture, Professor Steven Levitsky offers an important account of the nation at a crossroads. Down one path is a thriving multiracial democracy; down the other lies democracy’s demise. To avoid the latter path, Levitsky presses the need for major institutional reform, including constitutional amendments to change the structure of the United States…
Podcast
People usually think that all tax agencies do is ensure tax laws are followed. But for decades, the IRS has regularly facilitated immigration raids. These raids target employees even as the IRS investigates their employers’ potential tax violations. What can this state of affairs teach us about agency overreach? And what alternate paths could better align the IRS’s efforts with its mission? In this episode, UC Davis School of Law Professor Shayak Sarkar discusses the IRS's underappreciated role in immigration enforcement.
Traffic courts resolve over half of the cases in the U.S. legal system. These cases are easy for some defendants to handle by paying a fine, but they can have devastating effects for those with fewer means. And despite the key role these courts play in funding state judicial branches and other state and local programs, they have not been comprehensively studied in decades. What’s going on in traffic courts? And what can they teach us about the legal system more broadly? In this episode, Arizona State University Sandra Day O’Connor College of Law Professor Justin Weinstein-Tull explains his research on traffic courts.
Immigration adjudications regularly use information from the criminal legal system to justify a discretionary denial of relief or benefits, even when charges have been dismissed. This practice faces little scrutiny due to the assumption that adjudicators are merely importing facts already found by the criminal system. But what if this practice actually constitutes “hidden factfinding”? Sarah Vendzules, a Senior Staff Attorney at the Office of the Appellate Defender in New York City, uncovers this hidden factfinding and offers a framework that could rein it in.
The U.S. carceral system disproportionately harms racial minorities and people living in poverty. Penal abolitionist frameworks have helpfully reframed the conversation to foreground those harmful social consequences. But how do those consequences affect our understanding of work, and particularly work that is both criminalized and undertaken in order to survive? In this episode, Indiana University Maurer School of Law Professor Yvette Butler explains her concept of survival labor and why it should be included in our general understanding of work.
For more than a century, the United States has restricted Tribal governments’ powers over criminal law. It has diminished Tribal jurisdiction and imposed adversarial approaches on Tribal courts. But recently, some Tribal courts have begun to embrace Indigenous-based restorative justice models. UCLA School of Law Assistant Professor Lauren van Schilfgaarde discusses how these these models strengthen both Tribal courts and Tribal jurisdiction more broadly.
Each year, Child Protective Services investigates over one million families. Every investigation includes a room-by-room search of the family home, as well as the threat of the state’s coercive authority to remove children from their families. CUNY School of Law Professor Tarek Z. Ismail discusses how these investigations have evaded traditional Fourth Amendment scrutiny.
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