Nikolas Bowie is a leading constitutional scholar and legal historian whose work challenges conventional understandings of judicial power, democratic governance, and the role of the Constitution in public life. As the Louis D. Brandeis Professor of Law at Harvard Law School, Bowie brings a critical historical perspective to some of the most contested questions in American law, from judicial supremacy and separation of powers to immigration and political membership. In this interview, he reflects on how critical legal history can reframe entrenched legal narratives, the democratic implications of an increasingly powerful Supreme Court, and why constitutional meaning should not be left solely to the judiciary. His insights offer a compelling vision of constitutional interpretation rooted in democratic engagement and historical contingency.
Q: Your work often reframes canonical constitutional narratives through a historical lens. How do you see critical legal history reshaping the way scholars and the public understand constitutional authority today?
A: I studied history as an undergraduate, and my advisor, Jennifer Klein, taught me that one of history’s most powerful uses is to denaturalize present‑day injustices. When we understand that today’s institutions however fixed they seem were created through human choices, it becomes easier to imagine how they might be remade or even undone.
Critical legal history, for me, is about tracing those choices and the contexts that shaped them. It reveals the alternative paths our legal structures could have taken and opens space to consider different possibilities going forward. By showing that constitutional authority is neither inevitable nor immutable, history helps us see how the world might look if we choose differently now.
Q: In your testimony to the Presidential Commission on the Supreme Court, you argue that judicial review has undermined political equality. What do you see as the most urgent democratic reforms to recalibrate the Court’s power?
A: I’m currently writing a book with my Harvard colleague Daphna Renan, Supremacy: How Rule by the Court Replaced Government by the People. We trace the history of judicial supremacy, the idea that the Supreme Court has the final word on constitutional meaning. Seen only from today’s vantage point, that structure can look inevitable. But historically, it has been contested from the start.
Our research shows that abolitionists, civil‑rights leaders, labour organizers, suffragists, and other democratic movements long championed an alternative: democratic constitutionalism. They argued that the people, acting through their elected representatives, should have the ultimate authority to interpret the Constitution rather than an unelected judiciary presiding over one of the hardest constitutions in the world to amend.
The reforms we propose build on that tradition. We argue that Congress already has significant constitutional power and should be encouraged to use it to articulate its own constitutional judgments even when the Court disagrees. After the Court’s recent decision weakening the Voting Rights Act, for example, we wrote in the New York Times that Congress should not only reenact protections but also shield them from judicial invalidation. That could include requiring courts to defer to Congress’s constitutional interpretation, limiting the Court’s jurisdiction, adding members, or adopting other tools that reinforce democratic, rather than judicial, supremacy.
Q: In The Imaginary Immigration Clause, you challenge the conventional reading of the Chinese Exclusion Case. What do you think has allowed this misinterpretation to persist for so long in both doctrine and scholarship?
A: That article, which I co‑wrote with my former research assistant Norah Rast, started with a simple question: why do so many people assume the Constitution gives the federal government unlimited power over immigration? Many scholars argue that the Supreme Court has long recognized this plenary power and trace it back to the Chinese Exclusion Case of the 1880s.
What we found, though, is that before that decision, Congress spent decades fiercely debating whether it even had constitutional authority to deport or exclude people. The first attempt a deportation provision in the Alien and Sedition Acts was so controversial that voters elected a new Congress to let it expire. Throughout the 19th century, lawmakers and the public remained deeply reluctant to endorse broad federal immigration power.
After the Chinese Exclusion Case, that debate largely disappeared. Restrictionists pointed to the decision as if it settled the constitutional question, reading it to mean that Congress could exercise whatever “sovereign powers” it deemed necessary over immigration. That interpretation stuck, even though it didn’t reflect the actual constitutional arguments of the time.
Our broader point is that when the Supreme Court declares what the Constitution means, it doesn’t just matter when the Court strikes down good laws. It also matters when the Court upholds harmful ones, because it can shut down democratic debate and limit our ability to imagine constitutional alternatives.
Q: Your paper argues that Congress historically lacked a freestanding immigration power. How would acknowledging this history change today’s debates about federal immigration authority?
A: One thing we wanted contemporary readers to see is that there was never a single moment when Americans collectively decided the federal government should have sweeping, uncontrollable authority over immigrants. If anything, there has long been a strong tradition of critics who doubted that Congress had this power at all. Those critics included figures like James Madison, who challenged Congress’s first deportation act as unconstitutional.
Today, many immigration advocates focus almost entirely on persuading the federal judiciary to impose limits on Congress. Part of our argument is that this may be a misguided strategy. Instead, it may be more effective to persuade members of Congress themselves that the Constitution protects immigrants and gives them similar rights to live and work in the United States as citizens. When Congress regulates non‑citizens, it is exercising the same powers it exercises over citizens, and treating immigrants as an unprotected category risks everyone’s liberty and dignity.
What we hoped to offer with this article is a different narrative—one that rejects the idea that “it has always been this way.” Recognizing that Congress historically lacked a freestanding immigration power should change our expectations of what our representatives think the federal government ought to be doing in this area.
Q: You trace modern separation‑of‑powers doctrine to a reactionary post‑Reconstruction project. How should this history inform current debates about presidential power?
A: This was another article I wrote with Daphna Renan, and it’s something we develop further in Supremacy. The piece looks at how the Supreme Court inserted itself into debates over the constitutionality of federal laws regulating the president. For much of early U.S. history, these questions were worked out politically: Congress passed statutes regulating the executive branch, and the president signed, debated, or vetoed them. That push‑and‑pull created what we call a Republican separation of powers, where constitutional boundaries were provisional and negotiated through representative government.
Since 1926, though, the Court has reframed separation of powers as a legal not political domain, governed by implied constitutional rules that only judges can identify. That shift has effectively given presidents a kind of escape hatch: when Congress imposes limits, the executive can go to the Court and argue that those limits interfere with its implied constitutional authority.
Our view is that the judiciary’s role should be to enforce federal law, not to help presidents evade it. This argument predates cases like Trump v. United States, which granted broad immunity from federal criminal regulation, but that decision underscores the problem. Instead of a president who can treat statutes as optional, we should have a judiciary that enforces those statutes unless and until a future Congress and president repeal them.
Q: You contrast a “republican” conception of separation of powers with a “juristocratic” one. What would governance look like if Congress reclaimed its constitutional role in structuring the executive branch?
A: I think it would look much more like what people imagine the Constitution requires than what we have now. Over just the past six months, we’ve seen a president initiate a war and violate a range of statutory limits laws protecting civil servants, universities, law firms, tariff rules, and even birthright citizenship. In several of these areas, the president has asked the Supreme Court to say that, despite violating federal law, he has “conclusive and preclusive” constitutional authority that Congress cannot regulate.
As long as the judiciary is willing to validate those claims, we end up with a system where the president can effectively stand above the law. A more republican separation of powers would instead treat statutes as binding until Congress repeals them. If a president has constitutional objections, the place to raise them is in vetoing a bill or urging Congress to change the law not in asking courts to intervene after the fact.
That kind of system would mean Congress decides whether we go to war. Congress determines how to protect the public from a corrupt executive branch. Congress structures independent agencies and ensures a Justice Department that pursues justice rather than the president’s political enemies. In short, governance would reflect the choices of our elected representatives, not the dictates of an unelected judiciary.
Q: Your research includes the history of noncitizen voting. What lessons from early American practice do you think are most relevant to today’s polarized debates about political membership?
A: One fact about U.S. history that many people don’t appreciate is how common non‑citizen voting once was. Throughout the 19th century especially west of the Mississippi many states allowed non‑citizens to vote. They did so for a range of reasons: to attract immigrants whose contributions they valued, because they believed expanding the franchise was democratic, and because they thought more inclusive electorates produced better governance. The same logic that later expanded voting rights to women and people of colour also supported extending the vote to immigrants.
Since the 1920s, however, every state has prohibited non‑citizens from voting in state legislative elections. But under Article I of the Constitution, if a state did allow non‑citizens to vote for its legislature, those voters would also be eligible to vote for members of Congress. That’s important context for today’s debates, including proposals to require passports at the polls based on the assumption that only citizens have ever been eligible to vote.
This history helps denaturalize the idea that voting and citizenship must always go hand in hand. And as more local governments experiment with non‑citizen voting—New York City recently attempted it, and several jurisdictions in Maryland and Vermont already allow it , it’s useful to remember that these efforts fit within a long American tradition. They’re not novel experiments but revivals of a practice that once shaped the country.
Q: You’re deeply involved in local governance in Cambridge. How does your academic work on democracy and constitutional structure inform your approach to zoning, planning, and municipal decision‑making?
A: One concrete way that participating in state and local government has shaped my scholarship and teaching is by highlighting the importance of teaching theories of change beyond litigation. Most doctrinal law‑school classes revolve around Supreme Court or appellate cases, training students to argue before judges or imagine themselves as future judges.
But when ordinary people think about laws reviewing them, proposing them, trying to change them, they’re usually thinking about statutes, ordinances, and the kinds of legislation they ask their representatives to pass. Local government gives students, scholars, and lawyers the chance to engage in making law through legislation and administration, rather than only interpreting it.
That kind of work is essential for meaningful change and for improving how the country is governed. And I think it’s especially important for law students to gain exposure to how local and state governments operate, not just how the judiciary works in the classroom.
Q: You’ve been recognized for teaching excellence. What do you see as the biggest challenge in teaching constitutional law to students who are entering a moment of profound institutional distrust?
A: A core responsibility in teaching constitutional law is helping students understand what the law is particularly how the US Supreme Court approaches major issues. For students who may go on to work in Congress or in state legislatures, it’s essential to be able to anticipate how courts will interpret and enforce statutes. Crafting legislation with judicial response in mind is simply part of being an effective practitioner.
That means continually updating the syllabus as the Court’s doctrine evolves. But that aspect, while important, is relatively straightforward.
Equally if not more important is teaching students to think critically about what the law should be. Here I’m inspired by Charles Hamilton Houston, who taught constitutional law at Harvard in the early 20th century. At a time when child labor laws and minimum wage protections were often struck down, Houston urged his students not to treat the law as fixed, but as something that could be reshaped.
His students went on to challenge segregation in Brown v. Board of Education and to help advance landmark civil rights legislation. Their work transformed constitutional law. That’s the model I hope to pass on: students who understand current doctrine, but who also feel empowered to imagine and help build a better legal framework.
Q: Much of your work critiques the Court’s historical and structural power. What responsibility do you think legal scholars have in shaping public understanding of constitutional democracy?
A: I think the most important thing is helping people understand that the Constitution was written by and for the public. It is an accessible document, and its basic principles can be grasped simply by reading it and reflecting on what its terms mean.
That accessibility matters in practice. When Congress or state legislatures act in ways that seem misguided or when constitutional values aren’t being upheld, people should feel empowered to raise constitutional objections. If, for example, government actions appear inconsistent with fundamental rights, individuals can and should question whether those actions align with the Constitution.
Ultimately, the Constitution is not self-enforcing, and no single actor has a monopoly on its meaning. Its vitality depends on public engagement. Legal scholars, therefore, have a responsibility to help people see that they, too, play a role in interpreting and demanding fidelity to constitutional principles.
Q: What do you think SSRN contributes to the world of modern research and scholarship?
A: What SSRN does best is provide scholars with a free, accessible way to see what others in their field are working on and how ideas are evolving in real time. For legal academics in particular, the traditional publication process can be slow sometimes so slow that the issue an article addresses has already faded from immediate relevance.
SSRN helps close that gap. It allows scholars to share work in progress and receive feedback quickly, while the topic is still fresh and actively being debated. That kind of early engagement not only strengthens individual pieces but also deepens the broader scholarly conversation.
In that sense, SSRN offers a real public service: it creates a space for collaboration, critique, and intellectual exchange, helping scholars refine their work and learn from one another before formal publication.
MORE ABOUT NIKOLAS BOWIE
Nikolas Bowie’s scholarship explores the deep historical roots of American constitutional law, with a particular focus on how legal doctrines have shaped and constrained democratic governance. His work critically examines the rise of judicial supremacy, the development of separation-of-powers doctrine, and the historical debates surrounding federal authority over immigration and political rights. Across his research, Bowie highlights the contingency of legal institutions, emphasizing that today’s constitutional arrangements are the product of debates, struggles, and choices rather than inevitabilities. His writing has appeared in leading publications such as the Harvard Law Review, Yale Law Journal, Stanford Law Review, Law and History Review, and The New York Times.
In addition to his academic work, Bowie is deeply engaged in public life. He serves on multiple nonprofit boards, including the American Association of University Professors, Lawyers for Civil Rights, and the People’s Parity Project, and participates in local governance as a member of the Cambridge planning board. His contributions to legal education have been widely recognized, including the Sacks-Freund Award for Teaching Excellence from Harvard Law School. Through his teaching, scholarship, and public engagement, Bowie continues to advance a vision of constitutional law as a dynamic, participatory project shaped not just by courts, but by the people themselves.
You can see more work by Nikolas Bowie on his SSRN Author page here.