The Winter 2024 issue of the Journal of American Constitutional History has just been published. Here is the TOC:
Today’s Brandeis Brief? The Fate of the Historians’ Brief Amidst the Rise of an Originalist Court, by M. Henry Ishitani
Despite their significantly higher overall citation rates than comparable forms of amicus briefings, historians’ amicus briefs to the Supreme Court have been a surprisingly overlooked and under-studied legal tactic. This article attempts to correct this gap in our understanding of this subgenre of history-based briefing, revealing the hard data and political trends shaping these judicial citations.
Symposium: Dobbs, History, and Abortion Rights
No recent constitutional issue has raised a more significant moment for historical intervention than a woman’s right to obtain an abortion. The following symposium, organized by Professors Mary Ziegler and David Schwartz, takes a hard look at the historical questions surrounding Dobbs v. Jackson Women’s Health Organization.
Abortion-Eugenics Discourse in Dobbs: A Social Movement History, by Reva B. Siegel & Mary Ziegler
To win over new supporters and counter equality arguments of the abortion-rights movement, the antiabortion movement began to equate the abortion-rights movement with the painful legacy of eugenics perpetrated by the state in the early twentieth century. This essay traces the movement dynamics that led to the creation of this argument, and then follows this abortion-is-eugenics argument from billboards to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
The Wages of Crying Roe: Some Realism about Dobbs v. Jackson Women’s Health Organization, by Neil S. Siegel
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was based upon moral opposition to abortion and gender bias, instead of its stated reasoning—a draconian version of the “history and tradition” test.
Dobbs v. Brown, by Andrew Coan
The ongoing debate over the Dobbs majority’s attempt to claim the mantle of Brown v. Board of Education has many threads. This Essay will focus on three—stare decisis, the interpretive method, and Herbert Wechsler’s famous “neutral principles” critique— none of which is as clear-cut as the defenders or the critics of Dobbs have supposed.
The Critical Role of History after Dobbs, by Serena Mayeri
Though the Dobbs majority’s argument relies on a flawed and impoverished account of “history and tradition,” history remains relevant to constitutional law and political discourse about reproductive rights and justice, and is critical to our understanding of our political community today.
--Dan Ernst
