Second Reconstruction

That violates the Constitution or a statute or whatever." But you describe a judicial supremacy in the book as something that comes of age as a tool for enforcing white supremacy.

You have Dred Scott, Reconstruction, and all throughout this period, the idea of judicial supremacy is being sort of debated and utilized by reactionaries very expressly as a tool of white supremacy.

And not, not white supremacy in like a [laughs] an abstract twenty twenty-six kind of way, but in the sense that there were people arguing for it expressly in the eighteen fifties, for example.

So could you walk us through a sort of short version of that history where the debate about judicial supremacy is happening sort of at the same time as the debate around Dred Scott and slavery?

We are now at an extreme outer bound of what judicial supremacy can look like in the United States.

And so there are ways that we can limit the court's final say Over the Constitution, that for those who are kind of like uneasy given the state of our current politics, eliminating entirely the, this judicial role in horizontal review, we can limit it, we can restrain it.

So one idea that was on the table during Reconstruction and across US history, and remains available to us today, is to pass a statute that says, "Look, there should be some consensus among the justices," whether it's seven justices, eight justices, that say there's no plausible way to defend the constitutionality of the statute before you can invalidate a federal law.

It shouldn't be that a thin majority on controversial theories of the Constitution can reject what sometimes a generation has organized and voted to enact into a federal statute.