We have crossed a defining threshold, both in environmental law and in ecology. In law, we see a new era of environmental constitutionalism, and not at all unrelatedly, we find ourselves in a new ecological era that is marked by colossal human destruction of the very systems sustaining all life on Earth. Bill McKibben says it is as if we have destroyed our planet that sustained us and are now on a different planet altogether. And as the years pass, it will feel more and more that way. Our climate system is so disrupted by the greenhouse gases that have accumulated in the atmosphere that we now face a clear existential threat to humanity and society. As a Ninth Circuit Court of Appeals panel put it, we are nearing the “eve of destruction.”

There have been nearly 3,000 “climate litigation” cases. The U.S. is responsible for nearly two out of three of these. Yet neither Congress, the U.S. Constitution nor common law have exhibited much if any capacity for addressing or redressing climate change. International and regional instruments as well offer potential but little progress.

Subnational constitutions in America can help to fill the breach. There is a growing cadre of ‘climate rights’ cases that arise under state constitutions. For example, a state court in Montana recently ruled that a state law prohibiting consideration of climate impacts violates that state’s constitutionally enshrined environmental right, the Hawai’i Supreme Court has issued a series of decisions recognizing climate rights, and other state constitutions recognize rights that can arguably reach climate change. A wave of subnational climate rights cases is underway.

Much has been written about climate law and litigation yet little about subnational climate rights. This paper argues that the future engagement of climate rights in the United States is likely to occur at the subnational level based on either explicit rights to a healthy environment or on implicit implications of socioeconomic rights, such as to life, health and dignity. Part I asserts that the limits of international, regional and domestic national law create an opportunity for consideration of impactful subnational climate rights litigation in the U.S. Part II examines what I call “Environmental Climate Rights,” that is, climate rights based on constitutionally instantiated environmental rights, including at the subnational levels in Pennsylvania, Montana and Hawai’i, and sees promising if limited progress. Part III explores what I call “Socioeconomic Climate Rights,” that is, climate rights based on other constitutionally incorporated human rights, such as to life, health and dignity, and argues that there is untapped potential here. Part IV argues in favor of further exploration of subnational climate rights in the U.S.

Constitutional environmental rights are in vogue. In the United States and across the world, plaintiffs frequently claim that their governments, in failing to adopt and implement sufficiently ambitious policies, have violated constitutionally-protected rights to an environment of a certain quality. Such claims have garnered considerable success in many jurisdictions. And in the United States, the first such successful claim was recently accepted by a state trial court in Montana. Environmental rights are imagined as a valuable weapon to be wielded against recalcitrant governments.

Environmental rights are having a moment. Though only eight states and territories have expressed environmental rights provisions in their constitutions, a trickle of positive developments has seemingly turned into a stream. Supreme courts in Hawaiʻi and Pennsylvania gave some force to their states’ rights provisions beginning in the 2010s—and the scope of protections guaranteed by each right continues to be fine-tuned by litigation. In 2021, New York voters added an environmental rights provision to their state’s constitution—the first such addition of the twenty-first century. More states may well add similar amendments to their constitutions.

Our constitutional law of religious liberty is a riot of principles: principles of freedom of conscience, neutrality, separation of church and state, and others. To resolve concrete disputes, we must identify what those principles are and how they could ever jointly deliver singular answers to constitutional questions. Furthermore, to identify what the principles are, we must grasp what makes them so. This Article aims to meet these three needs. It clarifies what grounds our constitutional principles, sketches what our constitutional principles of religious liberty are today, and explains how the law could ever lie decisively on the side of one litigant or rule over another when individual principles point in opposite directions. It develops and tests its claims by analyzing two questions at the law’s frontiers: whether free exercise principles support a constitutional entitlement to exemption from antidiscrimination obligations beyond what free speech principles alone mandate, and whether publicly chartered religious schools are constitutionally permitted, required, or prohibited.

This is an investigation into the constitutional law of religious liberty, of course. But two of the three essential tasks it tackles—explaining how our principles are what they are and how multiple principles could ever provide determinate legal answers to contested constitutional questions—are critical across all regions of constitutional law. Accordingly, this Article examines the constitutional law of religious liberty both for its own sake and as a window into the fundamental elements and mechanics of American constitutional law generally. Its central arguments are that principles are the building blocks of our constitutional law, that they change organically as legal practices and commitments change, and that they can yield singular constitutional facts or rules despite their plurality.

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.  First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine. Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach.  Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive. Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that there is no constitutional right to abortion. The decision has had a devastating impact on people seeking abortions in many states, and it will have an even more profound effect on the rights and lives of minors. Pregnant minors face greater risks than pregnant adults when they are forced to continue a pregnancy that can harm their physical and mental health and their educational and financial futures. Very young minors are incapable of consenting to the sexual acts that result in pregnancy, but many states require even these young rape victims to sacrifice their health and well-being—and potentially their lives—for the sake of a future child.

But the Dobbs opinion also calls into question other constitutional rights of minors. In Dobbs the Supreme Court interpreted its prior holdings to recognize a substantive right under the Fourteenth Amendment Due Process Clause only for (1) “rights guaranteed by the first eight Amendments,” and (2) a “select list” of unenumerated fundamental rights. “In deciding whether a right falls into either of these categories, the Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s 'scheme of ordered liberty.” If a right does not fall within either of those categories, it is not entitled to substantive constitutional protection under that provision. The Court concluded that the right to abortion was not protected by the Constitution.

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings. Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level. This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions. Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

As the Founding generation understood the word, “Speaker” meant an elected member of the House. Yet modern representatives nominate non-House-members for the speakership—and many argue the practice is constitutional. To correct this constitutional drift, this Article closely analyzes the text of the Speaker Clause, the structure of the Constitution, and 700 years of history and tradition to show that the Constitution requires the Speaker of the House to be a member of the House. It also considers the practicalities of correcting this drift. If, as this Article argues, the Constitution bars nonmembers from the speakership, who can enforce that rule, especially if Congress itself is the one violating it? Though the Speaker Clause likely is not justiciable, Congress has an independent duty—equally important to that of the judiciary—to uphold the Constitution.

A few years ago, conversations about artificial intelligence (“AI”) were confined to the pages of books and the ivory towers of academia. Now, even older generations know that AI makes many of the decisions in their lives. The heightened public awareness around AI has generated exciting conversations about its potential to push society into the future but it has also raised concerns about AI’s safety and inherent fairness. These concerns raises the following question: Can I trust a “robot” or automated system that makes decisions on my behalf?

As the use of AI by federal agencies continues to grow, concerns have been raised about the potential for “corporate capture of public power.” As many government agencies lack the expertise and resources to develop their own AI models, they rely on private companies to create them, leading to questions about bias and privacy safeguards in automated systems. These concerns add to the larger conversation about the trustworthiness of AI decision makers in our daily lives.

Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one that has both seduced and vexed scholars and Justices alike for generations: constitutional statesmanship. When wrestling with the statesmanship ideal, theorists are often inclined to simply shrug their shoulders, concede that a precise definition is impossible, and suggest that we often know statesmanship when we see it. We can do better. In this Article, I define constitutional statesmanship for our age of constitutional revolution. Drawing on a diverse set of theorists and methodological approaches—most notably, Ronald Dworkin’s famous concept of “fit”—I argue that constitutional statesmanship is best understood as the balance between three modes of analysis: (1) legal fit (relying on conventional legal materials and arguments); (2) popular fit (drawing on concrete indicators of current public opinion); and (3) pragmatic fit (factoring in predictions about public responses, policy consequences, and assessments by legal elites).

This Article identifies a radical transformation in constitutional law methodology: the central project of constitutional analysis has changed from offering value-neutral theories of interpretation to observing and critiquing conservative forces that undermine popular self-rule. This is most apparent in scholarly reactions to the Roberts Court’s refusal to strike down legislation that promulgates voter suppression, partisan gerrymandering, and abortion restrictions. Scholars treat these decisions to leave legislation standing as a direct assault on democracy, a distinction previously reserved for decisions that struck down legislation (such as Lochner v. New York). This new paradigm indicates a radical realignment in academic evaluation of judicial review, with a focus on substance rather than procedure. This Article illuminates this shift by observing scholars’ novel invocation of the ‘countermajoritarian difficulty.’ Widely recognized as the obsession of law professors for the past century, the countermajoritarian difficulty traditionally queries, why do non-accountable judges have authority to interdict decisions by elected representatives? The threat of far-right extremism has inspired constitutional law scholars to use countermajoritarianism to denote any political influence – the conservative-dominated judiciary, Republican legislatures, or polarized right-wing voters – that is perceived as exacerbating democratic backsliding. This changing use of countermajoritarianism portends a wider shift in constitutional theory. The classical approach to the countermajoritarian difficulty aspires to use general principles of constitutional analysis to reconcile independent judicial review with popular self-determination. This approach provides abstract explanations of constitutional interpretation and avoids openly committing to ideological or policy positions. Conversely, the new trend defines any threat to legitimate democratic self-governance as countermajoritarian. PCM constitutional theory thus takes as its starting point a set of substantive moral commitments. Polarized countermajoritarianism has a dramatic effect on doctrinal analysis. Traditionally, scholars invoke countermajoritarianism when courts strike down legislation. The new trend identifies it where courts allow legislation to stand but such inaction fails to protect democratic process against attacks from the far right. This Article posits that this radical shift in doctrinal analysis is a response to the loss of civic unity and democratic consensus in American politics. Polarized countermajoritarianism highlights the fragile condition of contemporary democracy but linquishes the analytic clarity of classical countermajoritarianism—a tradeoff scholars and jurists must incorporate into future analysis.

The 2020 presidential race was hard fought—before Election Day, and after. The loser, Donald Trump, spent weeks pressuring state legislatures to overturn his defeats. His arguments hinged on Article II of the U.S. Constitution, which, his lawyers insisted, permitted legislatures to intervene. While no legislature did so in 2020, the specter of postelection legislative interference still threatens our elections and risks a constitutional crisis.

This Article explains why Article II permits no such thing. Specifically, it argues that Article II’s grant of power—whatever its content—must be read as directed only toward pre-election legislatures, not postelection ones. This claim fills major gaps in the literature. First, previous scholarship assumes that Article II is silent, or ambiguous, on postelection interference. Blocking interventions would then depend on other authorities—like the Due Process Clause or state-constitutional provisions—ill-suited for the job. This Article shows, however, that Article II itself unambiguously bars postelection interference. Second, this Article sidesteps the debate about “independent state legislature” (ISL) theory—the focus of most scholarship on the 2020 election. Its argument holds, that is, regardless of what one believes about ISL doctrine. At the same time, this argument remains vital even after the Supreme Court snubbed ISL logic in Moore v. Harper. That decision leaves ample room, this Article argues, for Bush v. Gore-style debacles that foil state courts in constraining rogue legislatures.

To support its position, this Article advances four separate contentions, each sufficient to compel the above conclusion. The first contention analyzes Article II’s text according to intratextualist principles. The second unpacks the Framers’ original understanding of Article II. The third examines the original understanding behind Congress’s election-timing statute, which gives effect to Article II, Section 1, Clause 4. The fourth analyzes constitutional purpose. Finally, this Article also explains why the original understanding of Congress’s election-day statute—which let legislatures handpick presidential electors if their state “fail[ed]” to choose on Election Day—did not permit such handpicking after the 2020 election.

When the U.S. Supreme Court in the 2019 case of Franchise Tax Board v. Hyatt held that the Constitution bars private suits against a state in another state’s courts, it endorsed a surprisingly shallow conception of state sovereign power. But the doctrinal alternative from the now-overruled Nevada v. Hall is no better. Where Hyatt gives too much constitutional protection to would-be defendant states, Hall gives too little. And both approaches mistakenly conceive of interstate sovereign immunity as an on/off switch that the Constitution locks in one position.

Finding neither Hyatt III nor Hall satisfactory, I offer a third view. The Full Faith and Credit Clause was meant to ensure that states extend to each other dignity and respect for their sovereign duties. In the case of private suits against a defendant state in another state’s court, these sovereign duties conflict, and it is impossible for a forum state to preserve the sovereign duties of another state without impairing its own. To ensure full faith and credit, the Constitution, I argue, requires that states extend sovereign immunity to their sister states only when doing so maximizes the total sovereign power available to both states. In my view, this approach to interstate sovereign immunity is more consistent with the crucial value precipitated by the Constitution and enshrined in our federal system: states respect each other.

Congress passed the National Voter Registration Act of 1993 (NVRA) to maximize voter registration opportunities and correct a century of discriminatory and overly complicated State voter registration laws. Section 7 of the NVRA was designed to increase voter registration among low-income and minority citizens by requiring States to provide voter registration services at public assistance agencies. However, a three-decade campaign by state governments to resist implementing the NVRA has undermined its effectiveness.

As a part of this campaign, States interpret Section 7 narrowly to limit its scope. Under Section 7, each State must designate as Voter Registration Agencies (VRAs) “all offices in the State that provide public assistance.” Congress used this broad language out of a concern that states would limit the number of Voter Registration Agencies. However, this is exactly what States have done. Notably, no State has ever designated Public Housing Authorities (PHAs) as Voter Registration Agencies.

Public Housing Authorities are state agencies that administer housing aid programs funded by the U.S. Department of Housing and Urban Development (HUD). PHAs serve millions of low-income and minority citizens who are least likely to be registered to vote. Providing voter registration services at PHAs would effectively increase democratic participation and diversify the electorate. This paper argues that the plain text and legislative intent of the NVRA require States to designate Public Housing Authorities as Voter Registration Agencies.

This paper uses prior case law and statutory interpretation techniques to demonstrate that PHAs are “offices in the State” that “provide public assistance.” These are the only requirements under Section 7. Therefore, States are out of compliance with the NVRA for failing to designate PHAs as VRAs. This paper recommends that the U.S. Department of Justice and private citizens use the statutory right of action included in the NVRA to force State compliance.

Contrary to its critics, Dobbs v. Jackson Women’s Health Organization is not illegitimate or lawless. It is a highly consequential but fundamentally ordinary example of the inextricable connections between morality and constitutional law. If abortion is akin to murder, Dobbs could not—and should not—have come out any other way. If abortion is essential to personal autonomy and equal citizenship, the case was wrongly decided and should be reversed at the earliest opportunity.

The appropriate response to decisions like Dobbs is to criticize the moral judgments underlying them. Depending on the circumstances, institutional responses, such as court packing and jurisdiction stripping, might also be justified. But conflating moral disagreement with lawlessness is both unpersuasive and a distraction from the core issue. It is also a form of crying wolf that risks backfiring when the charge of lawlessness is actually justified.

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship as “lost” or “forgotten,” and summarizes the arguments advanced in prior scholarship for their revival or resurrection.

When viewed collectively rather than in isolation, these twelve provisions are more than the sum of their parts. This Article argues that, taken together, these overlooked or neglected provisions constitute a ‘shadow’ constitution within the prevailing one. This article deconstructs the organizational structure and key component elements of the U.S. Constitution and demonstrates how the dormant or neglected provisions interlock and complement to form a coherent but operationally absent constitutional structure. This absence, through disuse and neglect, has not only vitiated our constitutional inheritance, but would, if fully reincorporated into the prevailing constitution and accompanying body of constitutional enforcement and interpretation, afford far greater protection and security to marginalized groups while holding more powerful elements of society to account.

The United States is a public toilet nightmare. Truly public toilets are a rarity, while the restrooms provided by private businesses are inconsistently available via “customer only” policies and the discriminatory actions of owners and their employees. Some jurisdictions have made tepid attempts at providing more bathrooms, but all have failed. The result: an accumulation of entirely preventable public health harms, including outbreaks of infectious disease, illness, and dignitary harms.

This Article is the first to provide a comprehensive review of U.S. toilet law—the laws and policies that determine where bathrooms are provided and who has access to them—and diagnose its failings. Despite municipal, state, and federal actors’ efforts to expand availability, members of the public are too often forced to rely on the private provision of bathrooms. It is clear that the status quo has failed to address this most basic human biological necessity.

This Article makes the case that recognizing a state constitutional right to public bathrooms is the best way to address this problem. Drawing from recent developments in international human rights, it sets forth the basis on which courts could recognize a right to public toilets as part of a state constitution’s public health provision.

Academic freedom is an essential principle undergirding education in the United States.  Its purpose is to further the freedom of thought and inquiry in the academic profession by advancing knowledge and the search for truth.  Academic freedom goes back more than a century, and is now intertwined with First Amendment doctrine.  Yet today’s academic freedom doctrine suffers from serious problems, some of which perpetuate discrimination in the classroom and systemically in educational institutions.

The definition of academic freedom in theory is misaligned with that in case law.  Courts have done little to analyze what protections academic freedom provides, and case law generally provides too much protection in some cases, and too little in others.  Worse, academic freedom for universities and professors has been hotly debated and thus well-defined and protected in case law, whereas students’ academic freedom has received less attention, making it a “second-tier” academic freedom.  Often, protecting university and professors’ academic freedom comes at the expense of students’ academic freedom, though courts have never truly struggled with multistakeholder academic freedom questions or tried to create a clear process to determine whose academic freedom prevails when the two conflict.  This results in academic freedom being used as a sword to promote discriminatory behavior, and as a shield to protect acts of discrimination from being punished.  Existing constitutional and statutory antidiscrimination protections do not provide adequate support against discrimination, especially for students’ academic freedom.  Constitutional protections for students’ academic freedom often take the back seat to free speech doctrine, and antidiscrimination protections are often parried by using academic freedom to protect problematic behavior.

A few solutions abound: first, the definition of academic freedom is nearly a century old, and needs to be redefined to incorporate antidiscrimination principles to be relevant for the present.  Second, students’ academic freedom rights need to be understood and defined more clearly.  Third, courts must find a way to balance competing stakeholders’ academic freedom interests, ultimately looking to the purpose of academic freedom to advance knowledge.  Finally, universities must play their part by creating systems and structures to ensure that discrimination is remedied as early as possible, and that university processes help clarify the extent of academic freedom definitions and support application of antidiscrimination law.

On April 1st, 1997, Eric Oliver was arrested by the Las Vegas Metropolitan Police Department and detained at the Clark County Detention Center (CCDC). For the first two days of his detention, Oliver was locked in a 404 square foot cell with around fifty other detainees.  On April 3rd, he was transferred to a smaller cell, only 174 square feet, where he was kept with eighteen other people.  For the following three days, Oliver was locked in the cell with no bed and no linens.  He and the other detainees slept on the floors with intense overhead lighting and extreme air conditioning that “chilled [him] to the bone.” Oliver requested medical attention for a back condition, but his request was denied.  After his release from jail, Oliver filed a § 1983 action against the management, Clark County, and the Clark County Sheriff, alleging violations of his Fourteenth Amendment rights.

Since Oliver brought his suit in Nevada, his claim for compensatory damages survived a motion to dismiss, even though he was not able to demonstrate a physical injury. This was notable because § 1997e(e) of the Prison Litigation Reform Act (PLRA) creates a physical injury requirement for incarcerated people who bring § 1983 claims. However, if Oliver had lived in Philadelphia, New York, or a number of other cities across the country, his claim for compensatory damages would have been dismissed. These disparate outcomes would have been the result of the different ways courts interpret the physical injury requirement of the PLRA.  In this particular instance, Oliver’s claim survived because he was in the Ninth Circuit. Claims in Philadelphia or New York would have been governed by the Third and Second Circuits, respectively, both of which have case law that would prevent the award of compensatory damages.