Against the rise of fascism, American literary modernists confronted the psychodynamics of conversion that underlie pernicious forms of conspiracism and racist public discourse. William Faulkner’s Light in August (1932) and Jean Toomer’s unpublished writings on racial psychology, for example, reverse-engineer the psychodynamics of racism by putting readers in the uncomfortable position of seeing themselves from the point of view of the other (whether a literary text or another human being). Forcing a kind of double consciousness upon the reader, Faulkner and Toomer provoke disgust toward conspiracism’s self-appointed vigilantes. The paranoid public sphere is thus the diametrical opposite and sinister shadow of the pluralistic public sphere that James theorized. By fracturing and fragmenting the monolith of race, Faulkner and Toomer render epistemological doubt a powerful ally to critical thought.

In response to First World War propaganda campaigns and the emerging science of behaviorist psychology, which downplayed or even denied the existence of “mind” (understood as an agency directed by human cognition and will), American modernists performed the mind in and as writing: as a potentiating agent of mental plasticity to reshape habits, modifiy beliefs and behaviors, and dramatize the strategies by which consent is “manufactured.” An American modernist literary “aesthetics of exposure” sought to arrest habitual thought by exposing the behaviorist strategies of conditioning behavior and regimenting beliefs. The major works examined in this chapter – Ernest Hemingway’s A Farewell to Arms (1929) and John Dos Passos’ the U.S.A trilogy (1936) – deploy strategies of psychological and textual fracture and fragmentation in order to make state-sponsored propaganda technique visible and available for critique.

Chapter 2 locates the history of firearms litigation over the past sixty years as a progression through four distinction waves, in the context of the arc of mass tort litigation. The chapter surveys initial gun litigation in the 1960s–1970s based on conventional tort theories sounding in negligence and product defect, noting that virtually all these lawsuits failed. During the 1980s and 1990s, firearms litigation followed the mass tort pattern of attempted aggregation of claims, but courts still did not allow these suits to progress. The second wave of firearms litigation occurred in the early twentieth century, following the 1998 tobacco Master Settlement Agreement. This new litigation model was based on governmental entity lawsuits seeking redress for communities harmed by gun violence. The third wave of gun litigation occurred after Congressional enactment of PLCAA in 2005. Plaintiffs in these PLCAA suits sought relief under PLCAA’s six exceptions. These suits also largely failed to gain traction. And the fourth and current wave of firearms litigation post-2019, after the successful Sandy Hook litigation, is being pursued by state attorneys general under new, targeted consumer protection and public nuisance accountability statutes.

Humor functions as a form of civic engagement and social protest in Zora Neale Hurston’s Moses, Man of the Mountain (1939) and Gertrude Stein’s Mrs. Reynolds (1947), novels that respond to the rise of fascism with complex satire. Despite a common view of Hurston and Stein as either apolitical or conservative, both authors reveal a keen understanding of conversion’s historical legacy in the justification of imperialism. The point both Hurston and Stein make is that humorous incongruity keeps the mind turning and, in the process, forestalls the “settling” of thought into place and “the fixation of belief” associated with totalitarianism. As outsiders for whom conversion—religious or secular—could mean a form of psychic death, they developed distinctive modes of ironic humor involving self-lacerating and self-satirizing critique.

This chapter provides a preliminary sketch of the Supreme Court of the current era. It describes the distinctive political environment in which the sitting justices were appointed and in which they function. It highlights the role that a conservative legal organization, the Federalist Society, has played in vetting potential nominees and in ensuring that the sitting justices who were appointed by Republican presidents are reliably conservative in their commitments. The chapter also discusses the rise of originalism as a theory of constitutional interpretation and frames issues about the relationship between originalist methodology and substantively conservative values that will be a focus of attention through the remainder of the book. Finally, it gives introductory, capsule biographies of each of the current justices. As later chapters will elaborate, it is impossible to understand the Court’s dynamics without a grasp of how the individual justices, taken one by one, approach their jobs.

Chapter Three develops the argument in favor of strong judicial review to correct malfunctions in our electoral system. The first section analyzes flaws in our current electoral system, explaining why the market for elective office is not sufficiently competitive. The next section reviews the Warren Court’s decisions in key malapportionment cases: Wesberry v. Sanders and Reynold v. Sims. Those cases provide a helpful model for strong judicial review to correct flaws in our electoral system. The chapter then presents a critique of four election law decisions since 1976 where the Supreme Court has contributed to democratic decay by engaging in antidemocratic judicial review. The final section presents several proposals for new constitutional rules that build on the principles articulated in Wesberry and Reynolds. The proposed rules are designed to enhance competition in the market for elective office and improve the quality of democratic self-government in the United States.

James’s modernism is based directly on the psychology he founded, and specifically on his recognition that the self is malleable (or “plastic”), aggregate, distributed, and capable of mental reform. Yet James’s outspoken critique of US imperialism and the lynching of African Americans reflected his understanding of the dangerous potential of conversion – namely, that revolutions in belief carry a measure of uncertainty and risk, not just to individual believers but to the very fabric of democratic thought. Jamesean conversion therefore dramatizes the processes by which consent is staged from within and from without. The self enacts the drama in the form of an internal dialogue in which one imagines one’s “self” inhabiting a particular temporo-spatial location, as if fulfilling the role of a protagonist in a work of fiction. Against that background, Henry James’s What Maisie Knew and Harold Frederic’s The Damnation of Theron Ware dramatize the processes through which individuals become plastically transformed under the manipulations of powerful “pattern-setters” of public opinion. By fracturing and fragmenting imperial forms of selfhood, these psychological Bildungsromane inaugurate a reform modernism that registers dissent from the imperial sway of groups, demonstrating the strenuous effort required by individuals to transform oppressive systems from within.

This chapter examines how linking school assignment to students’ residential addresses via geographic attendance boundaries drives inequities in public education. Because “perceived” (but not actual) school quality is capitalized into home values, property value concerns encourage segregation and exclusion, a phenomenon I describe as “education NIMBYism.” I argue that the overrepresentation of homeowners in local school board elections creates problematic political incentives for office holders, in contrast with Fischel’s “homevoter hypothesis” predicting that the political influence of homeowners makes government work better and more efficiently. I also show how the capitalization of school quality into home values can create unintended consequences and offset efforts to improve the lowest-performing schools.

Chapter Two presents an abbreviated history of judicial review, divided into six time periods. It documents four previous revolutions in constitutional law. The history suggests that future revolutions are almost inevitable. The chapter highlights two broad trends that are supported by empirical data. First, the Supreme Court shifted its primary focus from private law to public law between the late nineteenth century and the mid twentieth century. Second, the type of law that the Court applies to decide public law cases has changed. In the nineteenth century, the Court applied a mix of international law, statutes, and common law – but rarely constitutional law – to decide public law cases. By applying types of law other than constitutional law, the Court was engaging in weak judicial review. Since the Warren Court era, the Court has consistently applied constitutional law in more than 50 percent of public law cases. Application of constitutional law typically involves strong judicial review. When the Court applies constitutional law to decide public law cases, Congress cannot override Supreme Court decisions involving major public policy controversies.

This introduction to the book begins with a narrative of the prevalence of gun violence in the United States and the trafficking of gun violence into Mexico and Latin America. It canvasses the current statistics of gun-related murders, suicides, mass shootings, and school shootings compiled by the CDC, the Pew Research Institute, Bureau of Alcohol, Tobacco, Firearms and Explosives, the Giffords Center, and other agencies collecting gun violence data. The introduction sets forth the themes of the book, including locating the landscape of firearms litigation in the history of mass tort litigation, the ineffectiveness of various gun regulatory initiatives, the historical immunity of the firearms industry from liability for gun harms, and the recent inroads on the ability to sue firearms defendants through the enactment of targeted consumer protection and public nuisance firearms accountability statutes. The introduction suggests the argument that the 1998 Tobacco Master Settlement Agreement demonstrated that impervious, dangerous product industries could finally be held accountable, and that the Sandy Hook Elementary School litigation marked a pivotal point in opening a pathway toward suing the firearms industry and holding it accountable for gun harms.

This chapter examines the Supreme Court’s practice, over approximately a century and a half, in developing and applying the “substantive due process” doctrine. The animating premise of that doctrine is that the Due Process Clause confers judicially enforceable protections against substantively unfair infringements of certain “unenumerated” yet fundamental or important rights. After the Court’s embarrassed climb down during the 1930s from a line of decisions enforcing rights to freedom of contract, the Court reembraced the Due Process Clause as a source of “unenumerated” rights in Roe v. Wade (1973) and, later, in decisions protecting rights to engage in private acts of sexual intimacy and extending the unenumerated right to marry to same-sex couples. Although the current Court overturned Roe in Dobbs v. Jackson Women’s Health Organization (2022), the majority opinion avoided a strictly originalist approach by embracing precedents holding that the Due Process Clause protects some fundamental substantive rights that are grounded in “tradition.” The chapter explores the conservative justices’ reasons for adopting that position. It also considers whether substantive due process decisions invalidating prohibitions against sodomy and laws defining marriage as necessarily involving one man and one woman can survive under the rationale of Dobbs.