Chapter 7 narrates the story of Brooklyn state Senator Myrie Zellnor and describes how he determined to combat the gun violence crisis in his legislative district and throughout New York state by proposing an innovative firearms public nuisance statute tailored to PLCAA’s predicate statute exception. It indicates Myrie’s additional gun control legislative efforts. The chapter delineates the New York legislative process to enact its first-in-the-country firearms public nuisance statute, and the findings and provisions of that statute. The discussion describes the efforts of the New York state Attorney General Letitia James to enforce the statute to deal with the trafficking of ghost guns in the state. The discussion segues to an analysis of the New Jersey firearms public nuisance statute enacted one year after New York’s statute, and patterned on the New York statute. The chapter discusses in detail the ensuing unsuccessful litigation brought by the National Shooting Sports Foundation challenging the New York and New Jersey statutes on various constitutional grounds, including Commerce Clause and void-for- vagueness arguments.

This chapter surveys Supreme Court decisions involving the Second Amendment right “to keep and bear arms.” Nowhere is the current Court’s approach more originalist. Before 2008, the Court had never held that the Second Amendment protects a personal right to possess weapons unrelated to service in what the Amendment’s preamble characterizes as the need of “free states” for “a well-regulated militia.” This chapter describes events leading to the Court’s turnaround and analyzes its decisions since then. In applying other constitutional guarantees, the Court frequently asks whether restrictions are “narrowly tailored” to important or “compelling” governmental interests. By contrast, it insists that the permissibility of modern regulations of firearms depends exclusively on whether analogous restrictions were historically tolerated. In response to difficulties that the lower courts encountered in determining whether challenged regulations had historical analogues, the Court recently explained that precise factual similarity matters less than whether a modern restriction is “consistent with the principles that underpin our regulatory tradition.” Applying that test poses formidable challenges. But if the Court’s majority views its prescribed approach to defining Second Amendment rights as successful, it could imaginably extend its exclusive reliance on history and tradition to identify constitutional violations to other areas.

Most research on education governance begin with the premise that school boards are the natural default and that locally elected school boards must be defended. This chapter demonstrates why this assumption is wrong. I show that: (1) most voters don’t have school-aged kids and thus lack sufficient “skin in the game” to prioritize academic achievement; (2) voters don’t hold school board members accountable for student learning; and (3) local school board elections are uncompetitive, with nearly 80 percent of the turnover driven by incumbent retirements rather than Election Day defeats. Several case studies, focused on school districts in San Francisco (California) and Easta Ramapo (New York) illustrate why broken elections have negative impacts on education quality. At best, school board elections are extremely low-turnout affairs, in which a small and highly unrepresentative group of adults impose their parochial, self-interested, and often uninformed views on the rest of the community. At its worst, school district governance devolves into an absolute clown show, where performative politics takes precedence over serious policy meant to serve the academic interests of students.

This chapter traces a series of stark, occasionally stunning historical reversals by the Supreme Court in interpreting the Free Speech Clause. It highlights doctrines under which the Court treats almost all content-based regulation of speech as constitutionally suspect. That position, which draws little support from research into original constitutional understandings, reflects a commitment – increasingly embraced by conservative justices of a libertarian stripe – to the principle that the Free Speech Clause bars the government from censoring speech based on fears that the speech might prove persuasive to its audience. The resulting doctrine, which makes the United States an outlier among liberal democracies, provides robust protection for a good deal of “hate speech,” some outright lies, commercial advertising, and corporate expenditures to promote political candidates. This chapter also discusses cases that have held that the Free Speech Clause protects a right to “freedom of association” that lacks any clear textual basis. It concludes by considering cases involving speech rights in “managerial domains” in which the government performs functions, such as providing public education, that it could not perform successfully without engaging in content-based regulation of speech.

This chapter examines the Supreme Court’s historically evolving interpretation of the Equal Protection Clause, including its recent embrace of the view – initially uttered by a solitary dissenter in an 1896 decision in the case of Plessy v. Ferguson – that “[o]ur Constitution is color-blind.” In equal protection cases, the Court has rarely claimed originalist support for its decisions, even when effecting sharp changes of course, as in its iconic decision in Brown v. Board of Education (1954). In a recurring pattern, the Court’s leading equal protection decisions have condemned forms of discrimination –– first on the basis of race, then sex, and then sexual orientation –– only when public opinion began to view them as unjustifiably bigoted. This chapter analyzes the Court’s recent decision to invalidate practices of affirmative action in higher education that prior decisions had permitted for more than forty years. It also surveys a branch of equal protection doctrine that strictly scrutinizes deprivations of rights that the Court deems “fundamental” under the Equal Protection Clause, centrally including voting rights. It explains continuities, but also revealing disparities, between the approaches to voting rights of the liberal Warren Court, on the one hand, and the conservative modern Court, on the other.

This chapter surveys the Supreme Court’s evolving role and interpretive approaches during five historical eras leading up to the present one. During the chief justiceship of John Marshall (1801–35), the Court rendered important decisions and issued expansive interpretations of judicial power and national legislative authority that today are viewed as cornerstones of the constitutional order. The succeeding era under Chief Justice Roger Taney (1836–64) brought the fiasco of Dred Scott v. Sandford (1857), which held that Congress had no power to regulate slavery in the territories, and the erosion of judicial authority during the Civil War. During the Lochner era (1865–1937), the Court recoiled from enforcing Reconstruction Amendments that had enshrined rights of racial minorities while simultaneously taking aggressive steps to shield businesses from regulatory legislation. The ensuing era (1937–69) began with the collapse of judicial resistance to economic regulatory legislation during the New Deal and continued as the Court under the leadership of Earl Warren expanded the rights of racial and other minorities. During the post-Warren period (1969–2016), the Court, like the country, turned to the right. Nonetheless, many liberal decisions endured, and the Court upheld abortion rights, permitted affirmative action, and established a right to gay marriage.

The Supreme Court has implemented a set of revolutionary changes in constitutional doctrine since the 1990s. It has developed a body of constitutional law that is rooted in a deep-seated mistrust of the People’s elected representatives. That body of law is one of several factors contributing to the problem of democratic decay in the United States. To reverse the process of democratic decay, the Court will need to repudiate much of the constitutional doctrine developed since World War II. In short, we need a Copernican revolution in constitutional law to revitalize popular control of the government. For far too long, the Court has placed itself at the center of our constitutional universe. Other actors in the system revolve around the Court, like planets revolving around the sun. To restore popular sovereignty and reverse the process of democratic decay, the Court must place We the People at the center of our constitutional universe, with other actors (including the Court) revolving around us.

Chapter Eight responds to the likely objection that the proposals presented earlier in the book are unrealistic. The chapter first addresses theories of constitutional change, focusing on Professor Ackerman’s “movement, party, Presidency” model of constitutional transformation. The rest of the chapter lays out a program for revolutionary change, based on the assumption that the Democratic Party will be the main engine of constitutional transformation. If the Democratic Party decides to launch a constitutional revolution to restore the power of We the People to exercise effective control over our government, it will have to change the composition of the Supreme Court. The chapter analyzes proposals for Supreme Court reform, then discusses constitutional transformation related to the electoral process, and finally considers other potential constitutional changes.

Chapter 10 addresses the question whether litigation against the firearms industry may ever evolve into a mature mass tort litigation, ultimately leading to an industry-wide settlement modeled on the tobacco settlement. The discussion sets forth signposts that historically have been indicators that certain product cases will evolve from individual litigation to an aggregate mass tort. These signposts include (1) developments or changes in the law, (2) regulatory recall, alert, or notice of a defective product, (3) establishment of a track record of litigation victories and settlements, (4) rise in the interest of the plaintiffs’ bar in pursuing litigation, (5) emergence of a critical mass of similarly situated claimants, (6) docket congestion, (7) judicial reception toward aggregating and managing multiple-claims litigation, (8) discovery of underlying facts and public dissemination of discovery materials, (9) development of underlying science or expert testimony in proof of claims, (10) the interest of states’ attorneys general in pursuing relief on behalf of their citizenry, (11) agile, strategic lawyering in response to changing litigation developments, and (12) the willingness of putative defendants and their insurers to come to the negotiation table.

This chapter outlines the content of the written Constitution and describes the historical context, debates, and compromises from which the Constitution emerged. A central theme involves the emergence of “judicial supremacy” or the dominant role of the Supreme Court in constitutional interpretation. At the time of the Constitution’s ratification, many people believed that each of the branches of the national government would interpret the Constitution for itself. Moreover, the Supreme Court was not initially regarded as a particularly important institution. In order to explain the rise of judicial supremacy, the chapter begins to develop the idea, borrowed from political scientific literature, that the Court’s power exists within and is constrained by politically constructed boundaries that are constituted by the willingness of other institutions and ultimately the American people to accept the Court’s rulings as authoritative. In support of the argument that the Court’s power to interpret the Constitution authoritatively depends on the support of political officials and the American public, not the clear mandate or logical implications of the constitutional text, the chapter debunks the myth that the Supreme Court’s 1803 decision in Marbury v. Madison definitively settled the question of the Court’s interpretive authority.

Chapter Seven presents a critique of the Court’s so-called “federalism” doctrines. Those doctrines have had very little practical effect in protecting state autonomy from unwarranted federal interference. Under the banner of federalism, the Court has engaged in illegitimate judicial lawmaking by creating a set of judge-made rules that have no basis in the Constitution’s text. Moreover, when the Court speaks of federalism, it conveniently ignores the fact that the Supreme Court itself is part of the federal government. If the Court truly wants to protect state autonomy from unwarranted federal interference, it should exercise self-restraint by limiting the reach of judge-made law that interferes with state autonomy. In particular, the Court should repudiate incorporation doctrine – a judge-made doctrine invented by the Warren Court that has no basis in the text of the Fourteenth Amendment. As a practical matter, incorporation doctrine imposes much more severe restrictions on state autonomy than all of the federal statutes (viewed in the aggregate) that the Court has invalidated under various federalism doctrines.

Chapter Five presents historical analysis to establish two key points that lay a foundation for the normative argument presented in Chapter Six. First, throughout the nineteenth century, federal courts applied a system of weak judicial review in which they enforced treaty-based rules to protect individual rights from government infringement. Therefore, the type of weak review system I am proposing in Chapter Six has deep historical roots in American public law. Second, due to a largely invisible constitutional transformation that occurred between 1945 and 1965, international human rights treaties are not currently available to U.S. courts as a source of judicially enforceable rights. However, under current constitutional understandings, Congress has the power to make human rights treaties judicially enforceable by enacting an appropriate statute to that effect.