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.

The Ninth Circuit’s decision in Lam v. University of Hawaiʻi is the “high water mark” of intersectional Title VII jurisprudence. However, this Note suggests that despite thirty years since Lam, courts have struggled to conceptualize the intersectional identities of plaintiffs and the multifaceted discrimination they face.

Drawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law.

The child welfare system, more accurately referred to as the family policing system, employs extensive surveillance that disproportionately targets marginalized families and subjects them to relentless oversight. This Article provides a nuanced and novel analysis of the family policing system and its extensive surveillance targeted at disabled parents and their children.

Once considered a dying language, ‘ōlelo Hawaiʻi (the Hawaiian language) has made a powerful resurgence in recent decades, thanks in large part to the proliferation of Hawaiian immersion programs at schools across the State. In 2019, the Hawaiʻi State Supreme Court strengthened these programs in Clarabal v. Department of Education, which held that the State of Hawaiʻi has a constitutional obligation to make all reasonable efforts to provide access to Hawaiian immersion education. This Note argues that Clarabal serves as an example of the type of reparative jurisprudence that is necessary to provide tangible restitutive benefits to historically victimized peoples.

Through an examination of the history, structure, jurisprudence, and theory of the Eighth and Fourteenth Amendments, the Article concludes that an Antisubordination Eighth Amendment is both possible and necessary to address the systemic racism of the criminal legal system.