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With Epilogue by Emmanuel Mauleon

Notwithstanding the broad literature on race and constitutional criminal procedure, scholars have rarely engaged the epistemological burdens Fourth Amendment law imposes on Black students and faculty. Those burdens derive from a fundamental and insufficiently acknowledged disjuncture: despite the rights-protecting language in the Fourth Amendment (in particular, its prohibition against “unreasonable searches and seizures”), Fourth Amendment law is, for Black people, a domain of existential violence. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets— and it is Fourth Amendment law that produces and governs the anti-Black border between surveillance and death. This fraught and necrological feature of Fourth Amendment law sets the doctrinal terms on which Black students must learn, and Black faculty must teach, the law. In that regard, the violence Black people encounter in the context of engaging with Fourth Amendment jurisprudence is against the very Black body they occupy. This Article describes that normalized epistemological environment. One might think of the account the Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the racialized “field of pain and death” Fourth Amendment law produces. That field includes a constitutional archive that requires Black people to learn and teach law through our legally sanctioned disposability. Fourth Amendment law is thus not merely violent in its social effects; it is epistemologically violent—and legal pedagogy is one of the sites where that violence is reproduced.

The U.S. Supreme Court is experiencing a visual boom. In a break from its text-based tradition, the Court is increasingly incorporating images directly into its opinions. In the past fifteen years, pictures of prison dormitories, prayer circles, and stolen artwork have graced the pages of the U.S. Reports. Recently, the Court’s visual vocabulary has grown to include a 150-year-old political cartoon, fifty-nine license plate designs, and a series of gun diagrams alongside a gif. Even more, in just the last five years, visuals have started appearing more frequently in the main body of opinions rather than being relegated to appendices.

While this rise in “visual opinions” may seem inevitable in today’s visual age, it raises significant questions about the foundations of judicial authority and the nature of judicial reasoning. But while scholars have extensively analyzed visual advocacy by lawyers, the Court’s own embrace of visual rhetoric—and its implications for the Court and the institution of judicial decisionmaking—has received surprisingly little attention.

This Article explores the Court’s visual practices and their implications for judicial legitimacy. It makes three key contributions. First, drawing on a review of over 400 visual opinions, it provides the first account of the Court’s use of images from the Founding to the present. It finds that while the Court’s use of visuals has accelerated in recent years, its use of visual content finds deep and expansive roots in the nineteenth century. Second, it connects the Court’s visual practices to legitimacy theory, analyzing how visuals reshape the Court’s performance as a principled decisionmaker, impartial decider, and public servant. Visual content can enhance judicial reasoning by clarifying complex concepts and connecting abstract law to concrete reality. But it can also undermine core legitimacy values by compromising analytical rigor, embedding hidden biases, and transforming legal discourse into political performance.

Third, this Article advances a counterintuitive recommendation. If a picture is worth a thousand words, judges may need to write a thousand “more” words when they include pictures. Because visuals invite multiple interpretations and can overwhelm legal reasoning, courts should consider providing enhanced justification when they use images. Rather than letting visuals “speak for themselves,” judges must explicitly explain their relevance, anticipate competing interpretations, and directly confront visual counternarratives. Visual opinions require more explanation, not less.

American constitutional development has long followed cycles of crisis and restoration, resisting linear narratives of progress. This pattern is especially evident in the interplay between Black protest movements and constitutional interpretation, where transformative possibilities emerge during periods of social rupture but are later constrained by institutional restoration. This Essay argues that W.E.B. Du Bois’s 1920 speculative fiction, The Comet, offers a framework for understanding these cyclical dynamics. The short story’s three-part structure—normalcy, rupture, and restoration—reveals how genuine equality surfaces during catastrophic disruption yet proves unsustainable once hierarchical “normalcy” returns. Using interdisciplinary analysis that combines legal theory, historical inquiry, and literary criticism, this Essay traces “comet cycles” within major Black protest movements from abolition to contemporary struggles. It demonstrates that literary imagination can illuminate constitutional dynamics that conventional doctrinal analysis cannot reach.

Specifically, this Essay argues that Black protest movements function both as catalysts of constitutional rupture and as interpreters of constitutional possibility during suspended moments of normalcy. Examining the abolitionist era, the Civil Rights movement, and present-day struggles through Du Bois’s framework highlights how social movements advance foundational promises of liberty and equality while revealing the fragility of constitutional gains. Even radical critiques of constitutional legitimacy often arise because movements have taken these promises seriously, exposing the inadequacy of conventional reform. This approach offers strategic insight for contemporary movements, clarifying when transformative possibilities emerge and how restoration dynamics undermine them. By centering Black lived experiences as integral to constitutional interpretation, this Essay reframes American constitutionalism as shaped fundamentally by those historically excluded from legal discourse, yet central to its most transformative moments.

This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and judges associate textualism with the Founding period’s enactment of written constitutions and innovation in the separation of powers, this Article argues that the first “textualist” turn in legal interpretation crystallized after the Founding and reflected transnational developments. Not until the 1830s through 1850s did certain jurists on both sides of the Atlantic elaborate interpretive theories predicated on understanding a written law as an ordinary linguistic communication, as opposed to being in part declaratory of unwritten principles. This new emphasis on the enacted text reflected the increasingly writing-based legal culture of the early nineteenth century enabled by the industrial revolution in print and communication technologies. Amid this technological change, old textualists believed they were bringing the equivalent of modern steam power to legal interpretation.

Indeed, it was their work from the 1830s through 1850s, not the Founding, that Justice Scalia cited as muses for his project to revive a text-centric “science” of legal interpretation. Scalia’s new textualism, however, differed from old textualism. New textualism emphasizes the public legibility of the enacted text and how that public legibility operates to constrain judicial discretion. Old textualism, by contrast, understood law as a largely technical language and instead promoted a vision of legal interpretation that advanced public ends through non-public means. Old textualists ultimately sought to claim interpretation as the expertise of judges and to reassure skeptics that judges could exercise this expertise objectively—laying groundwork for the rise of judicial supremacy that would follow.

“It is also that, in the constitution of that Other of Europe, great care was taken to obliterate the textual ingredients with which such a subject could cathect, could occupy (invest?) its itinerary—not only by ideological and scientific production, but also by the institution of the law.”

Legal history transforms stories into state-backed power. Courts, acting as historical exegete, foreclose possible historical worlds to create law. However, in recent years, the kind of “history and tradition” courts and originalists have been prepared to grace with legal meaning has become myopic. This is so not just because of the limited range of historical subjects on which courts have focused their attention, but also because of the normative questions originalist methodology eschews and the teleology it obscures. However, originalism need not have the final word on legal history.

This Note will argue that one way to move beyond originalism and toward liberatory legal meaning is to embrace a postcolonial approach to American legal history—a postcolonial legal historiography. Certainly, this approach, like postcolonial theory more broadly, seeks to understand the world in relationship to the history of imperialism and colonial rule. But that understanding requires more than just a critique of what history is told. A postcolonial legal historiography requires a radical shift in methods—especially relative to how originalism engages in legal historiography. To illustrate how different a postcolonial historiographical inquiry could be, this Note will discuss the debates engendered by the Subaltern Studies Group, a group of postcolonial historians who raised issues of representation in traditional historiographies of India. While those debates occurred decades ago and are just one facet of postcolonial approaches to telling history, I argue that looking at them afresh might allow advocates to chart a way out of originalism.

This Note will proceed in four parts. Part I will briefly summarize originalism’s methodology and justification before moving into an overview of two of its critiques, with an eye toward underscoring what might already be obvious: Originalism prevents liberatory approaches to legal history from emerging. Part II will introduce postcolonial approaches to historiography, focusing on the discourse around the Subaltern Studies Group and, in particular, the tensions between two giants of postcolonial studies: Ranajit Guha and Gayatri Spivak. Guha’s and Spivak’s respective contributions and disagreements offer alternative answers for how and why we engage in historical inquiry. Part III will then compare and contrast postcolonial historiography with originalism and argue that postcolonial historiography has a stronger answer to the questions of how and why we do legal history in the first place, particularly for those interested in liberatory legal meaning. Part IV will conclude by briefly examining how a postcolonial approach to American legal history might create alternative and liberatory legal meanings—especially as questions of colonialism and conquest begin to take a more prominent role in domestic American legal scholarship.

Over the past few decades, the Supreme Court of the United States has adopted an exceedingly narrow view of tribal civil jurisdiction, establishing doctrines that restrict the circumstances in which Native Nations can exercise their regulatory and adjudicative powers. While most scholarship in federal Indian law has assessed this judicial trend towards tribal disempowerment by focusing on the Court’s treatment of tribal sovereignty, this Note centers the Court’s manipulation of tribal territory. It argues that the Court has constructed three territorial incongruities—non-Indian fee lands, public access, and loss of “Indian” character—to justify the disallowance of tribal authority over significant portions of tribal reservations. In so doing, the Court relies on a spatial imaginary of territorial sovereignty, or the notion that sovereign power must be commensurate with sovereign domain, to present certain spaces as falling outside of a Native Nation’s territory and, accordingly, as beyond the reach of its jurisdictional power.

By illuminating the spatial imagination of the Supreme Court, this Note identifies a key practice employed by the Court that is central to empires past and present— cartography. The Court superimposes its own imagined legal geography upon the preexisting system of territorial division, redrawing the jurisdictional boundaries that separate states and Native Nations. This practice of spatial manipulation is cartographic in that it allows the Court to determine and limit the territory of tribal rule; to expand the areal authority of state jurisdiction; and to project its particular vision of reservation lands—a vision defined by notions of ownership, accessibility, and character—upon Indian country. These cartographic tactics of territorial acquisition and control are in direct furtherance of the American colonial project. They fragment tribal regulatory regimes, reify Indigenous life, and transfer congressional power to the Court to diminish tribal reservations. These practices of fragmentation, reification, and de facto diminishment are continuations of the repudiated but never-undone federal policy of allotment, although the main perpetrator is now the Court rather than Congress.

By turning to critical legal geography and theories of space and power, this Note reveals a Supreme Court that is highly imaginative, overtly spatial, and problematically cartographic in nature, engaged in a project of colonial expansion across its tribal civil jurisdiction cases.

In this Note, I challenge three dominant theories behind property tax exemptions for university housing—the “Quid-Pro-Quo,” “Sovereignty,” and, what I call, “Oxbridge” theories—and propose that only undergrad housing should be tax-exempt. My proposal would recognize the unique educational value of undergrad housing, help reduce town-gown tensions, and be easy to apply.

Our tax code is stuck in the Middle Ages. The Internal Revenue Code (“the Code”), codified at 26 U.S.C., uses the concepts of addition, subtraction, multiplication, and division, as one might expect of a tax code. But, disdaining the 1500s invention of the elementary math symbols ‘+,’ ‘–,’ ‘×,’ and ‘÷,’ the Code instead uses complicated English constructions such as “any amount of X which bears the same ratio to that amount as Y bears to Z.”

I propose that we use these elementary math symbols in our tax laws. To see whether this would increase the laws’ legibility, I conducted a preregistered, randomized, controlled trial involving 161 participants. One group received the actual Code, the other, a translation using math symbols. Both groups were asked to solve the same two Code-based tax problems. For the first problem, use of the translation with math symbols increased answer accuracy from 25% to 70%. For the second problem, answer accuracy increased from 11% to 50%.

This result, I argue, can be extrapolated to the broader population and to the Code as a whole, confirming the plausible intuition that math symbols would increase the understandability of the Code. I then argue that this would be a good thing, answering various objections along the way, with a particular appeal to the rule of law and the spirit of democracy. People ought to be able to understand the laws that govern them.

Since the end of the Civil War, courts consistently misread and under-utilized the historical sources available when interpreting the scope and meaning of the Reconstruction Amendments. Even as historians updated their understandings of Reconstruction history, the courts lagged, shackling themselves to incorrect historical accounts and outdated precedents.

Entering the twenty-first century, the Supreme Court engaged in a more thorough historical review of Reconstruction, prompting historians to question whether the Court was beginning to finally utilize Reconstruction history correctly. Students for Fair Admissions answers this question: No. This Note describes the history of the Court’s limited review of Reconstruction sources, notes the perceived shift to increased historical review in more recent cases, and outlines Students for Fair Admissions and its uniquely extensive, yet still underwhelming, review of history. Finally, and most crucially, this Note points to sources that were easily accessible to and missing from the opinions in Students for Fair Admissions to argue that the Court continues to misinterpret the meaning of the Fourteenth Amendment through a flawed approach to Reconstruction history.

The last decade has seen renewed debate, much of it between feminists, about workplace and school regulation of sexual conduct. Those debates proceed on the assumption that institutions distinguish permissible sex from impermissible sex based on whether it is consensual or, in civil rights parlance, “welcome.” The person at greatest risk of punishment by an employer or school, it would then appear, is the heterosexual man who seeks sex with women and who, allegedly, transgresses the bounds of their consent. This story, though, is incomplete. Workplaces and schools have long punished workers and students for having sex that is indisputably consensual but nonetheless undesirable to the institution. This sanctioned conduct includes premarital sex, commercial sex, “kinky” sex, sex with colleagues, and sex on work or school premises. And case law and public accounts suggest those punished for at least some of these offenses disproportionately include women, girls, and queer people, some of whom have filed sex discrimination lawsuits.

This Article argues that both litigants and critics would benefit from situating these modes of punishment within the broader regime of gendered sexual regulation by workplaces and schools. For litigants, that context may open new doctrinal pathways to challenge sanctions for consensual sex under sex discrimination laws. It illuminates, for example, that the reasons defendants give to defend the punishments they levy—essentially, that they object to plaintiffs’ conduct, in putative contrast to their protected characteristics—are sometimes themselves discriminatory. And for critics of institutional sexual regulation, consideration of these forms of punishment would serve a clarifying and corrective function, promoting a more accurate vision of gendered power and highlighting nuance in the relationship between sex equality and punishment.