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.

This chapter addresses the Supreme Court’s recent, partly paradoxical lines of cases involving issues of presidential power, prerogative, and immunity. On the one hand, the Court has held that Article II and the Constitution’s overall structure endow the president with sweeping authorities and prerogatives. These include powers to control a “unitary” executive branch by removing officials who refuse to do the president’s bidding and, separately, a prerogative-like “immunity” from prosecution for many unlawful official acts, including ones that would constitute serious crimes if committed by anyone else. On the other hand, the Court has sought to limit the powers of agencies within the executive branch, which the president heads, on the theory that post–New Deal agency officials were allowed to assume functions that the Constitution reserves either to Congress or to the courts. Nowhere, this chapter explains, has the Court’s conservative supermajority pursued, or does it seem more likely to continue to pursue, a doctrinally revisionist agenda with more sweeping practical consequences.

This chapter lays out the book’s central thesis that Supreme Court decisions changing previously prevailing interpretations of a mostly unaltered written Constitution represent the historical norm, not an exception. The chapter begins by discussing the death of Justice Antonin Scalia in February 2016 and the changes in constitutional doctrine that Scalia, who had pioneered the interpretive methodologies of originalism and textualism, had helped to bring about. The chapter also highlights changes that Scalia had urged but could not persuade a majority of his colleagues to adopt. It describes the political machinations by a Republican Senate majority in the aftermath of Scalia’s death and the similarly partisan maneuvers that resulted in the swift confirmation of a successor to the iconic liberal Justice Ruth Bader Ginsburg in 2020. Together, these developments helped produce the Court’s current supermajority of six conservative justices (out of nine), including three appointed by Donald Trump, and inaugurated a new era in constitutional history. After sketching this background, the chapter preliminarily sketches some of the book’s most important themes, including that the Supreme Court is a lawmaking institution but one that is constrained by widely shared understandings of the judicial role in ways that legislative lawmakers are not.