"On Legal Historical Study" at Bristol Law

[We have the following announcement.  DRE.]

Methods Exchange: On Legal Historical Study

February 16, 2025, 10.00 AM to 12.00 PM.   Lady Hale Moot Court Room, University of Bristol Law School,  8-10 Berkeley Square, Bristol BS8 1HH.

Do historians and lawyers approach legal historical study differently? Do their methods vary? Are the sources they look at distinct? Do their conclusions share a common essence? Or are the stories they tell disparate? What, then, can they learn from one another? Can an inter-disciplinary conversation throw light on unique or shared methodological leanings and challenges?

Join us for an engaging conversation on these themes amongst Professor Kate Skinner, Dr William Pooley and Dr Gonzalo Velasco Berenguer from the Department of History, and Professors Gwen Seabourne, Sally Sheldon and Lois Bibbings from the Law School.

Organised by the Centre for Law and History Research, in collaboration with the Department of History, the panel will look at a fascinating array of legal historical research across themes and contexts: from witches in France, wives in Ghana and marriage in the Philippines to medieval law, abortion law and insider/outsider perspectives within legal historical research. The focus will be on methods, more specifically methodological choices made, and challenges faced, with the aim of moving past disciplinary boundaries to co-create a space for interdisciplinary knowledge sharing.

If you are interested in attending this event, please register using [this] link.

Speakers:

Professor Kate Skinner, ‘Who, and what, is a wife? A political history of family law reform in postcolonial Ghana’

Dr Willaim Pooley, ‘Liberty, Equality… Sorcery? Law and Witchcraft after Decriminalisation in France, 1682-1940’

Dr Gonzalo Velasco Berenguer, ‘Mapping Marriage and Intimacies in the Spanish Philippines’

Professor Gwen Seabourne, ‘Medieval Law Today’

Professor Sally Sheldon, ‘Writing the biography of a statute’

Professor Lois Bibbings, ‘Insider/outsider perspectives and activism’

"Mastery & Drift": Essays on Liberal Professionals since the Sixties

The University of Chicago Press has just published Mastery and Drift: Professional Class Liberals Since the 1960s, edited by Brent Cebul and Lily Geismer.  Several contributions are of interest to legal historians, including “Creating ‘Initiatory Democracy’: Ralph Nader, the Center for the Study of Responsive Law, and the Shaping of Liberalism in the 1970s,” by Sarah Milov and Reuel Schiller.

Since the 1960s, American liberalism and the Democratic Party have been remade along professional class lines, widening liberalism’s impact but narrowing its social and political vision. In Mastery and Drift, historians Brent Cebul and Lily Geismer have assembled a group of scholars to address the formation of “professional-class liberalism” and its central role in remaking electoral politics and the practice of governance. Across subjects as varied as philanthropy, consulting, health care, welfare, race, immigration, economics, and foreign conflicts, the authors examine not only the gaps between liberals’ egalitarian aspirations and their approaches to policymaking but also how the intricacies of contemporary governance have tended to bolster professional-class liberals’ power.

The contributors to Mastery and Drift all came of age amid the development of professional-class liberalism, giving them distinctive and important perspectives in understanding its internal limitations and its relationship to neoliberalism and the Right. With never-ending disputes over the meaning of liberalism, the content of its governance, and its relationship to a resurgent Left, now is the time to consider modern liberalism’s place in contemporary American life.

--Dan Ernst

Kominers on a Landmark Judicial Removal Case

Paul Kominers, an associate at the law firm Anderson & Kreiger LLP, has published Judge Day’s Case: A Historical Account of Commonwealth v. Harriman in the December issue of the Massachusetts Law Review. Mr Kominers describes Harriman, decided in 1883, as “the leading case on removal of judges by address in Massachusetts.”  From the introduction:

In Harriman, the Supreme Judicial Court (SJC) decided it could not second-guess the removal of a judge from office “by address.” The opinion, a straightforward historical example of the “political question” doctrine, reads as an exercise in formal constitutional interpretation, but should be understood as a product of its particular historical context.

--Dan Ernst

Perl-Rosenthal and Erman on Birthright Citizenship

Nathan Perl-Rosenthal and Sam Erman have published, open access," Inventing Birthright: The Nineteenth-Century Fabrication of jus soli and jus sanguinis," in Law and History Review:

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and birthplace were mostly evidence of conformity. In the early nineteenth century, officials in multiple jurisdictions began prioritizing positive law above natural law and transformed parentage and birthplace into competing principles for assigning nationality. This movement crystallized in 1860 when Charles Demolombe introduced jus soli and jus sanguinis to nationality law as competing, ostensibly ancient legal traditions. The framework spread quickly because it was a useful way to assign nationality despite states’ conflicting approaches to political membership. Yet, as its role in United States v. Wong Kim Ark (1898) helps illustrate, the invented tradition has also obscured our understanding of more complex historical dynamics.

--Dan Ernst

JACH (Winter 2025)

The Winter 2025 issue of Journal of American Constitutional History has been now published:

Evelyn Atkinson, “The Northern Man and His Corporations, the Southern Man and His Slaves”: Revisiting the Conspiracy Theory of the Fourteenth Amendment

Anna O. Law, The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration

Maeve Glass, In Search of a State

Book Review Symposium on David Pozen’s The Constitution of the War on Drugs (Oxford University Press, 2024)

    Aziz Rana, The “War on Drugs” and the Narrowing of Constitutional Imagination
    Louis Michael Seidman, Pozen and the Puzzle of Counterfactuals
    Kate Shaw, The Constitution of the War on Abortion

--Dan Ernst

Halberstam, "Trial Stories in Jewish Antiquity"

Oxford University Press has published Trial Stories in Jewish Antiquity: Counternarratives of Justice (2024), by Chaya T. Halberstam (King's University College, University of Western Ontario). A description from the Press:

What can early Jewish courtroom narratives tell us about the capacity and limits of human justice? By exploring how judges and the act of judging are depicted in these narratives, Trial Stories in Jewish Antiquity: Counternarratives of Justice challenges the prevailing notion, both then and now, of the ideal impartial judge. As a work of intellectual history, the book also contributes to contemporary debates about the role of legal decision-making in shaping a just society. Chaya T. Halberstam shows that instead of modelling a system in which lofty, inaccessible judges follow objective and rational rules, ancient Jewish trial narratives depict a legal practice dependent upon the individual judge's personal relationships, reactive emotions, and impulse to care.

Drawing from affect theory and feminist legal thought, Halberstam offers original readings of some of the most famous trials in ancient Jewish writings alongside minor case stories in Josephus and rabbinic literature. She shows both the consistency of a counter-tradition that sees legal practice as contingent upon relationship and emotion, and the specific ways in which that perspective was manifest in changing times and contexts.

More information is available here. An interview with the author is available here, at New Books in Law.

-- Karen Tani

Sunday Roundup

• 

  Robert H. Jackson (LC)

  Adam Liptak on the Sassoon Resignation and Robert Jackson's "The Federal Prosecutor," with a quote from John Q. Barrett (NYT). 
  

• Daniel Richman invokes Henry Stimson, Emory Buckner, Felix Frankfurter, and William Wirt in his op-ed on DJT's DOJ (NYT).

• Holly Brewer waits for word on her National Archives grant "to study the legal structures that governed slavery in the British Empire and early American society" (NYT).  
  

• Kenneth Mack's video explainer on birthright citizenship (HLS YouTube).
  

• More officials have resigned at the National Archives (WaPo).
  

--Dan Ernst

Weekend Roundup

• Over at JOTWELL, Josh Gupta-Kagan has posted an admiring review of Laura Briggs, Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty, 56 Conn. L. Rev. 1121 (2024).
  

• In a recent episode of Strict Scrutiny, Kate Shaw and Leah Litman speak with Jonathan Gienapp (Stanford University) "about what originalists get wrong about history and how the founders thought about the law."
  

• Another report of that “wide-ranging discussion” at Stanford Law between Jonathan Gienapp and Michael McConnell “on how history, law, and politics intersect in constitutional interpretation” (SLS).
  

• 
  Is it surprising that, in these times, so many of the new leaders of the Organization of American Historians are scholars of legal and constitutional history? Congratulations to Annette Gordon-Reed, President; Marc Stein, President Elect; and Donna Clare Schuele, a new member of the Executive Board. Margot Canaday is a continuing member of the Executive Board.

• Melissa Murray, NYU Law, will discuss History and the Courts with Christen Hammock Jones, doctoral student in American legal history at University of Pennsylvania; Christina D. Ponsa-Kraus, professor at Columbia Law, and Noah Rosenblum, NYU Law, at Brooklyn College on April 2 from 11:00 am to 12:15 pm.  Anna Law, Brooklyn College, will moderate.
  

• The recording of that terrific National Constitution Center town hall on Reconstruction and the Constitution: A Historical Perspective is now available online.

• John Q. Barrett on FDR's plans to resist a negative decision from the U.S. Supreme Court in the Gold Clause Cases (Jackson List). 
  

• Julie Novkov reviews Anthony Michael Kreis’s Rot and Revival: The History of Constitutional Law in American Political Development (S-USIH).
  

• Talbot Publishing has published an edition of Gottfried Wilhelm Leibniz’s Model of Certainty or Demonstrations in Law Expounded in the Doctrine of Conditions (1669), “a unique, unprecedented collection of Roman and canon law rules regarding the application of conditions in contract, inheritance and marriage law. “

• ICYMI: Jack Goldsmith on Departmentalism and DJT (Executive Functions).  Scott Bomboy on the History of the Constitution and Tariffs (NCC). 
  

• Update: A compilation of trackers of DJT's executive orders by the Pence Law Library at American University-Washington College of Law.  H/t: MD.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

SCHS's Henry J. Abraham Early Career Research Grant

 [We have the following announcement.  H/t: H-Law.  DRE]

The Supreme Court Historical Society invites applicants for the Henry J. Abraham Early Career Research Grant for research on the history of the United States Supreme Court. The award is named for the distinguished University of Virginia scholar whose numerous works on constitutional law and the judicial process have had an enduring impact on the field of Supreme Court history.

Awarded on a competitive basis in June of each year, the $1,000 grant supports the research of those who are pursuing academic careers in legal history, including graduate students, law students, and those who are no more than five years from completion of either the Ph.D. or J.D. The award will be given on the basis of the applicant’s potential for producing publishable work in the field of Supreme Court history, and the grant recipient will be expected to produce an article for submission to the Journal of Supreme Court History.

A completed application consists of a c.v., the name and contact information of a faculty reference, and a 750-1,000-word proposal, which should include a general description of the project and a plan for research.

Applicants should submit all materials to Clare Cushman, Executive Editor of the Journal of Supreme Court History, by May 1, 2025. The award winner will be notified by June 3, 2025.

Call for Submissions: SCHS's Hughes-Gossett Award

 [We have the following announcement.  H/t: H-Law.  DRE.]

The Supreme Court Historical Society invites submissions for the Hughes-Gossett Award for the best student paper submitted to the Journal of Supreme Court History. The winner will be awarded a $500 cash prize and publication in the Journal.

The paper must be on some aspect of the Supreme Court’s history. Authors must have been enrolled as students at the time the paper was written. Past winners have been law school students or doctoral students in the departments of history, government, and political science.

Papers may be of any length and may be submitted on an ongoing basis to Helen Knowles-Gardner, Managing Editor, at: hknowles@supremecourthistory.org

Recent Past Winners

2023.  “FDR’s Court-packing and the Struggle for Civil Rights” by Zach Jonas

2021-22.  “Earl Warren’s Last Stand: Powell v. McCormack, Race, and the Political Question Doctrine” by Olivia O’Hea

2020.  “Rosenberger’s Unexplored History: Politics, the Press, and the University” by Rachael E. Jones

2018.  “Ralph Waldo Emerson and Oliver Wendell Holmes, Jr.: The Subtle Rapture of Postponed Power” by Adam H. Hines

The Julien Mezey Dissertation Award

[We have the following announcement.  H/t: H-Law.  DRE.]

The Association for the Study of Law, Culture, and the Humanities (LCH) is accepting submissions for the 2025 Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture, and the humanities.

LCH seeks the submission of outstanding work from a wide variety of perspectives, including but not limited to law and cultural studies, law and critical race studies, law and gender and sexuality, legal theory and environmentalism, law and literature, law and psychoanalysis, law and visual studies, legal history, legal theory and jurisprudence. Scholars completing humanities-oriented dissertations in SJD and related programs, as well as those earning PhDs, are encouraged to submit their work. Applicants eligible for the 2025 award must have defended their dissertations successfully between March 2024 and March 2025.

The Association will cover the Mezey Prize winner’s travel and lodging costs to attend our annual meeting.  Nominations for the 2025 award must be received on or before March 15, 2025.  For submission instructions, please see our website.

Sellars on the UN Convention on the Law of the Sea

Kirsten Sellars has published A ‘Constitution for the Oceans': The Long Hard Road to the UN Convention on the Law of the Sea (Cambridge University Press):

The UN Convention on the Law of the Sea, signed in 1982, was the culmination of half a century of legal endeavour. Earlier attempts to create  a treaty regime governing the oceans – at League of Nations and United Nations conferences held in 1930, 1958 and 1960 – had all failed to settle the breadth of the territorial sea, and in two cases failed to settle anything at all.  During the negotiations, legal concepts were formulated and reformulated: straight baselines inspired archipelagic baselines; fishing conservation zones became exclusive economic zones; innocent passage through straits metamorphosed into transit passage through straits; and seabed common heritage was replaced by the parallel system of seabed exploitation. Many of the issues that animated the delegates during the negotiations – ocean pollution, overfishing, naval mobility, continental shelf claims and the impact of seabed mining – continue to exercise policymakers and lawyers to this day.

--Dan Ernst

Hasday's "We the Men"

Jill Elaine Hasday, University of Minnesota Law School, has published We the Men: How Forgetting Women's Struggles for Equality Perpetuates Inequality (Oxford University Press):

In a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women's struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decision making, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

Jill Elaine Hasday's We the Men is the first book to explore how forgetting women's struggles for equality—and forgetting the work America still has to do—perpetuates injustice, promotes complacency, and denies how generations of women have had to come together to fight for reform and against regression. Hasday argues that remembering women's stories more often and more accurately can help the nation advance toward sex equality. These stories highlight the persistence of women's inequality and make clear that real progress has always required women to disrupt the status quo, demand change, and duel with determined opponents.

America needs more conflict over women's status rather than less. Conflict has the power to generate forward momentum. Patiently awaiting men's spontaneous enlightenment does not. Transforming America's dominant stories about itself can reorient our understanding of how women's progress takes place, focus our attention on the battles that are still unwon, and fortify our determination to push for a more equal future.

The introduction is here.  TOC after the jump.

–Dan Ernst

University of Minnesota Legal History Workshop

[We have the lineup for the Legal History Workshop at the University of Minnesota Law School for the Spring 2025 semester.  It meets Thursdays, 3:35-5:35 p.m.  For information contact Susanna Blumenthal (blume047@umn.edu).  DRE]

February 6
Samuel Fury Childs Daly, Associate Professor of History, University of Chicago
"I love a man in uniform": Military Roleplay and the American Uniform Association, 1968-2001

February 13
Alison LaCroix, Robert Newton Reid Professor of Law, University of Chicago
Arsenals, 1861

February 20
Adriana Chara, Associate Professor of Atlantic World History, Emory University
Beyond the Chattel Principle: Vulnerability, Intimacy, and the Laws of Slavery in Nineteenth-Century Cuba

February 27
Myisha S. Eatmon, Assistant Professor of African and African American Studies and of History
Kinfolk: Jim Crow and Tort Law Come of Age

March 6
Aaron Hall, Assistant Professor, Department of History and Affiliated Faculty, Law School, University of Minnesota
The Founding as Ideology

March 20
Justene Hill Edwards, Associate Professor, Department of History, University of Virginia
Savings and Trust: The Rise and Betrayal of the Freedman's Bank

March 27
Maggie Blackhawk, Professor of Law, NYU Law School
American Colonialism

April 3
Anna Lvovsky, Professor of Law, Harvard Law School
Undercover on the Western Frontier

April 10
Kara Swanson, Professor of Law and Affiliate Professor of History
Telling Stories of Native American Inventor-Patentees:  Invention and Sovereignty in Indian Country (draft chapter from book-in-progress, Inventing Citizens: A Surprising History of US Inventors, Patents, and Civil Rights)

April 17
Nurfadzilah Yahaya, Assistant Professor, Department of History, Yale University
The Baseless History of the Foreshore

Campbell on Founding-Era Notions of Constitutional Rights

 "Determining Rights," an article by Stanford Law's Jud Campbell, is now out in the Harvard Law Review:

This Article explores Founding-era views about the grounding of constitutional rights and how those rights obtained determinate legal content. Today, we typically view constitutional rights as textually grounded, gaining their force through ratification, and we treat the task of determining their content as a question of law — that is, a question for judges to decide using legal criteria. But the designers of the Bill of Rights did not share that vision. In the eighteenth century, fundamental rights were often grounded in natural or customary law rather than in enacted text, and enumerating them was usually declaratory, marking their existence without altering their meaning. Moreover, determining the content of underdeterminate rights was up to the people themselves, often through ordinary politics. To be sure, it was possible to determine rights textually, as exemplified by the amount-in-controversy threshold in the Seventh Amendment. By and large, however, members of the First Congress rejected this specificatory approach in favor of declaratory provisions, as exemplified by the First Amendment’s simple reference to “the freedom of speech, or of the press.” In so doing, the Bill of Rights mostly reaffirmed the existence of natural and customary rights, without determining their content. Recovering this history is especially timely, with so many features of rights jurisprudence now in flux. Seeking a historical anchor, some Justices have recently embraced a “text and history” approach that asserts fidelity to original meaning. This method, however, proceeds from mistaken historical assumptions and creates a distorted image of the original Bill of Rights. Yet a historically guided path forward is far from clear in a legal culture that rejects many of the conceptual premises of Founding-era constitutionalism. As a work of intellectual history, this Article cannot tell us where to go from here. But it reveals forgotten ways of thinking that merit consideration as the Supreme Court continues to determine our rights, whether it admits so or not.

--Dan Ernst

Bessler on the Forgotten Origins of "Cruel and Unusual Punishments"

John D. Bessler, University of Baltimore School of Law, has posted Lost and Found: The Forgotten Origins of the "Cruel and Unusual Punishments" Prohibition, which is already forthcoming in the British Journal of American Legal Studies:

The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment's prohibition against "cruel and unusual punishments" to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II's reign, "illegal and cruel punishments" had been "inflicted," with its tenth clause then declaring in hortatory fashion: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The prohibitions against excessive bail and excessive fines and the final phrase-"nor cruel and unusual punishments inflicted"-were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution's Eighth Amendment. One legal scholar, Anthony Granucci, once described the wording of the English bar on "cruel and unusual punishments" as the product of "chance and sloppy draftsmanship," concluding that American lawmakers, in adopting the Eighth Amendment, misinterpreted "the intent of the drafters of the English Bill of Rights." The Eighth Amendment famously reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Credit: Internet Archive

The U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the "cruel and unusual punishments" language, with Justice Thurgood Marshall, relying on Granucci's Eighth Amendment scholarship, observing that the use of "unusual" in the English Declaration of Rights "appears to be inadvertent." This Article demonstrates that the conventional account of the origins of the "cruel and unusual punishments" phraseology-spelled "cruell and unusuall punishments" in some early English sources-is woefully incomplete. The standard account of how that terminology first emerged during the Revolution of 1688-1689, popularly known as the "Glorious Revolution," fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology. Those usages stretch back as far as the early 1600s, during the reign of King James I, though they initially appear in non-legal contexts (i.e., in a history of Venice translated from French into English and published in 1612; in English courtier and poet George Wither's satire, Abuses Stript, and Whipt, first published in the early 1610s; and in 1642 Irish Catholic Remonstrances from Ulster following an Irish rising in 1641). Because of the terminology's prior appearances in those places, the use of the cruel and unusual punishments phraseology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.

--Dan Ernst

Fernandez Interviewed on Pierson v. Post

The Long Island History Project has posted a recording of its interview of Angela Fernandez, University of Toronto, on Pierson v Post:

When Jessie Pierson and Lodowick Post argued over a fox in early 19th century Southampton, they probably didn’t think the resulting court case would echo down the ages. Yet here we are 220 years later talking with legal historian Angela Fernandez about the odd, improbable history of Pierson v Post.

A professor of law and history at the University of Toronto, Fernandez has delved deep into the case. Her “legal archaeology” uncovered important, presumed-lost information on the early phases of the proceedings. Her 2018 book Pierson v. Post, The Hunt for the Fox: Law and Professionalization in American Legal Culture, unpacks more of the impact and context around the decision.

On today’s episode we discuss the local history surrounding the case, more about the Piersons and the Posts, and the surprisingly whimsical inner life of the legal profession.

--Dan Ernst.  H/t: New York Almanack

Bradley on Curtiss-Wright

Curtis Bradley, University of Chicago Law School, has posted Sovereign Power Constitutionalism, which is forthcoming in the University of Chicago Law Review:

George Sutherland, J. (LC)

The constitutional text seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corporation. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article defends the Court’s suggestion that the federal government’s authority is informed by conceptions of nationhood. As will be shown, many areas of U.S. constitutional law rest on a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law, and this has been the case throughout much of U.S. history. This presumption has been manifested at times through broad interpretations of the constitutional text, but on other occasions it has been manifested through invocations of inherent authority. Importantly, and contrary to what many critics of Curtiss-Wright assume, the sovereign power presumption does not require either a rejection of constitutional constraints or a preference for presidential over congressional authority.

--Dan Ernst

CSHC Review

[We have the following announcement.  DRE]

Professor Clark Kelso (University of the Pacific McGeorge School of Law) is the incoming editor-in-chief for a magazine-type publication called the Review published twice yearly by the California Supreme Court Historical Society. The Review warmly welcomes short articles that have a connection to California legal history, particularly involving the California Supreme Court and the state's lower courts, the bar, the profession, and the law in general. The Review publishes articles about people, places, events,  cases, and broader legal developments as they have affected our state, then and now. Our readership includes all justices and judges of California's courts plus prominent members of the bar and others who have an interest in California's rich legal history. Most of our articles are in the 2500- to 5000-word range (but we are flexible on length), include footnotes appropriate for a scholarly/historical publication, and are illustrated with photographs and/or archival material that we will find and add to your article. With the approval of a prior publisher, we are happy to accept what might best be described as a summary of a much longer piece of scholarship published elsewhere. Anyone interested in publishing should contact Professor Kelso at ckelso@pacific.edu.

Fox and Ziegler on the History of IVF and Abortion

Dov Fox, University of San Diego School of Law, and Mary Ziegler, University of California, Davis School of Law, have posted The New Abortion, which is forthcoming in the Columbia Law Review:

In vitro fertilization presents a neglected puzzle. IVF is used to create one in fifty babies born in the U.S. each year. Yet it remains deeply underregulated and has rarely been subject to political wrangling. Courts and commentators assume the regulatory vacuum around assisted reproduction owes to the singular polarization of abortion in the United States. But for half a century, the fate of these practices could not have been more different: contrast the state’s hands-off approach to IVF with vast constraints on abortion, marked by explosive partisan battles. Only since Roe’s fall has IVF become a culture war flashpoint—in roiling controversies over state restrictions, the Right to IVF Act in Congress, and the 2024 Alabama Supreme Court case treating embryos as persons. IVF’s sudden emergence as a site of intense contestation and social-movement struggle is what we call the new abortion.

This Article resolves the enduring mystery of IVF’s longstanding retreat from public discourse and its abrupt appearance on the national scene. It presents the first-ever legal history of the relationship between IVF and abortion. We chronicle and synthesize the political and regulatory dynamics they pose for family, faith, race, sex, gender, science, medicine, and technology, drawing on original archival research in three privately held collections, two historical societies, four universities, and the Library of Congress. This untold story reveals how IVF’s regulatory impasse collapsed in the aftermath of Roe’s reversal, exposing crumbling barriers to compromise and surprising patches of common ground in the wake of escalating conflicts around abortion. Our history also uncovers a historically informed path to meaningfully regulate IVF’s legality, access, licensing of clinics, and transparency about mishaps.

--Dan Ernst

Brooks on Stock Dividends and the Crash of 1929

John R. Brooks, Fordham University School of Law, has posted Stock Dividends, the Supreme Court, and the Great Crash of 1929:

"Stock dividends"—the distribution of a corporation's own stock to its shareholders—are a relatively minor and harmless feature of corporate finance today used almost exclusively to accomplish stock splits. But for a brief period in the 1920s, they were an important part of the corporate and investing world—and, as this Article shows, were also one of major tools used to create phantom income, inflate earnings, and maintain corporate pyramid schemes leading to the 1929 stock market bubble and subsequent Great Crash. This Article also argues that this abuse of stock dividends was a direct result of a notorious Supreme Court tax case in 1920, Eisner v. Macomber. By allowing stock dividends to be issued tax-free, the Supreme Court supercharged the use of stock dividends over the next decade, helping to drive up stock valuations and fuel the 1929 bubble. Macomber has faced substantial criticism for its destabilizing effects on the tax system, but its destabilizing effects on the larger financial system have not been noted before now. Using original archival research, this Article describes the example of Samuel Insull and his public utility holding company empire—one of the nation's largest in the 1920s, but which collapsed in scandal and bankruptcy in 1932, in large part due to its manufacture of phantom income using stock dividends.

Samuel Insull (William L. Koehne Studio)

In addition to providing a new account of one of the causes of the Great Crash, a new part of the story of Samuel Insull, and a new critique of Macomber, this Article also illustrates three larger themes. First, that seemingly technical matters—in this case, the tax and accounting treatments of a relatively obscure element of corporate finance—have the potential for massive real-world impact. Second, that because of that potential impact, legal conclusions about such technical matters ought to take account of social and economic realities, not merely legal formalisms. In Macomber, the Court departed from the social understanding and past tax treatment of stock dividends based on the narrow application of a particular phrasing for a definition of “income,” and that error led in part to the 1929 bubble. Finally, this Article also describes a period of confusion, contradiction, and flux around the tax and accounting treatment of stock dividends, and to a degree both Macomber and the Great Crash also flow out of that chaos. This episode is thus an illustration of the risk and unpredictability that exists in periods of legal and economic change, such as the coinciding emergence of large corporate capitalism and a new regime of income taxation in the early 20th century.

--Dan Ernst

Weekend Roundup

• Over at the Law & Political Economy Blog: Evan Bernick (Northern Illinois University College of Law) on "The Anti-Constitutional Attack on Birthright Citizenship."
  

• Sarah L. H. Gronningsater (Penn History) will discuss The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (Penn Press, 2024) at two upcoming events in New York City: with Kimberly White (Penn History/Columbia Law) at the New York Society Library on February 10 and with Christoper Brown (Columbia University) at the New York Historical Society on February 13.

• There's still much of interest to legal historian at the ongoing conference of the Program in Early American Economy and Society of The Library Company of Philadelphia.  We missed Gautham Rao on a panel on "The History of Early American Economy and Society, 1999-2024," but today Claire Priest is “Looking at Capitalism through the Lens of Property Law” (PEAS).
  

• The National Constitution Center and the Federal Judicial Center will convene historians, online and in person, for Reconstruction and the Constitution: A Historical Perspective on Monday, February 10, 9:45–11:45 a.m. ET. “Pamela Brandwein of the University of Michigan, Sherrilyn Ifill of Howard University School of Law, and Ilan Wurman of the University of Minnesota Law School will explore the 14th Amendment and the history of Reconstruction. Martha Jones of Johns Hopkins University, Kate Masur of Northwestern University, and Dylan Penningroth of the University of California, Berkeley, will delve into the broader legal and social effects of Reconstruction beyond the amendments." Jeffrey Rosen moderates.

• A report of Jonathan Gienapp and Michael McConnell in conversation about Professor Gienapp's Against Constitutional Originalism: A Historical Critique at Stanford's Constitutional Law Center (Stanford Daily). 
  

• The King's Court "visually reconstructs the long lost court of King’s Bench, using immersive digital technology and recorded sound to enable visitors to see and hear how it functioned during the Georgian period, between the late 1780s and early 1800s."  You are there for the argument of King v. Stockdale (1789).
  

• Judge Richard Gergel of the United States District Court for the District of South Carolina recently discussed his book Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring at Georgetown Law.

• Having a hard time keeping up with the litigation against the Trump administration?  Try Just Security's Litigation Tracker.  Also: who's in charge at the National Archives, and for how long? (Current).  And we're following efforts to recover and restore recently memory-holed federal websites onto publicly accessible servers and will post the most comprehensive portals when they are up. 
• Update:  President Trump has just fired Colleen Joy Shogan, Archivist of the United States.

• Here are the currently scheduled late-breaking session at the annual meeting of the Organization of American Historians in April.
  

• A dedication ceremony for a historical marker for the civil rights attorney James R. Walker Jr., will be held at 1 p.m. on Saturday, February 22 at New Ahoskie Missionary Baptist Church at 401 West Hayes Street, in Chapel Hill, NC (rrspin).
  

• The University of Colorado Law School reflects on its history of education Black students (Colorado Law).  
  

• Lawbook Exchange's February catalogue of Scholarly Law and Legal History.

• ICYMI: Amy Howe on the history of birthright citizenship at the Supreme Court (SCOTUSblog).  Amanda Frost on the same (PBS News).  Farrell Evans on how Dred Scott energized the anti‑slavery movement (History). Eric Segall on how the Roberts Court killed originalism (Dorf on Law).
  

• Update: A notice of Dennis Wieboldt, a JD-PhD candidate at Notre Dame (Notre Dame Law).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Katz on Separation-of-Powers Lochnerism

Andrea Scoseria Katz, Washington University in St. Louis School of Law, has posted Separation-of-Powers Lochnerism:

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts.

Bringing together two lines of case-law-on the President and the agencies-this Article shows how the Roberts Court is now doing for the separation of powers, what the Lochner Court did for rights. In the first, the Court identifies "core" presidential (super-)powers and bars Congress from regulating these by statute. In the second, it crafts unwritten principles that defeat agency action: the rule that Congress must give a "clear statement" when it delegates "major" authority, or that deference to agencies violates judicial independence, are two examples. Taken together, the two lines of cases make "the separation of powers" into a collection of judge-made rules no other branch can change, arrived at by judges who disregard "plain text" for "higher-law" values they alone can see and articulate. One particularly salient consequence has been the aggrandizement of the presidency, now put in full relief by the unprecedented barrage of executive orders issued by the second Trump presidency, many of questionable legal grounding.

During the '23-'24 term, the Court's landmark rulings on presidential immunity and the federal agencies each garnered significant attention. But viewing them through the lens of this new "separation-of-powers Lochnerism" reveals these to be part of the same judicial project, a judge-led revolution decades in the making. Our Constitution creates three branches of power and gives each tools to mutually check and balance the others. Separation-of-powers Lochnerism distorts this ideal into a judge-made constitutional order requiring interbranch isolation (except on the part of the judiciary), with the roles of Congress, the President, and the agencies increasingly being defined by the Supreme Court according to higher-law principles of its own making. This Article demonstrates that this scheme is both ahistorical and dangerous, threatening to upend our tripartite system of government.

--Dan Ernst

Schwartz on the Deceptive Federalist 37

David S. Schwartz, University of Wisconsin Law School, has posted a further contribution to anti-enumerationist constitutional history, The Rhetoric of Deception: Madison's Federalist 37 and the Structure of the Ratification Debates:

James Madison (wiki)

James Madison's Federalist 37 is widely regarded by scholars as a political philosophy ur-text or a theoretical exposition of the now-trendy concept of "liquidation." These accounts tend to obscure Madison's very specific purpose in writing the essay: to persuade moderate "swing" voters in the ratification campaign that the Constitution's enumeration of powers could safely be understood as a limitation on the proposed national government's powers. Pro-ratification Federalists were in a bind: the Constitution's text was so plainly ambiguous about whether the enumeration was exhaustive and limiting, or instead illustrative and open-ended, that this textual ambiguity could not be plausibly denied. Yet Federalists were compelled by the political and rhetorical structure of the ratification campaign to deny this ambiguity. Their solution was to make what modern public meaning originalists call a "contextual enrichment" argument, that a facial ambiguity can be resolved by reference to background interpretive principles. For this case, they concocted the now familiar argument that all "federal" constitutions"including both the proposed Constitution and the Articles of Confederation"presumptively limited the central government to its enumerated powers. The argument was dubious and widely disbelieved; worse, as Madison knew, the ambiguity was in fact the intentional product of a compromise at the Philadelphia Convention between nationalist advocates of broad legislative powers and "enumerationist" advocates of limited enumerated powers. Anyone looking to the Framers' intentions to resolve the ambiguity would confirm Anti-Federalist suspicions that the enumeration of powers was intended to allow a post-ratification Federalist government to exercise broad powers.

This article argues that Federalist 37 was written to address this specific problem. Madison realized the need to obscure the Framers' intentions and cover up the compromise over the enumeration of powers. He sought to do so in Federalist 37 by arguing that ambiguity about the "line of partition" between federal and state power resulted entirely from unintentional and innocent causes: the limits of language and human capacities, rather than an intentional, behind-closed-doors compromise. This argument, Madison hoped, would clear the way for him to elaborate the Federalists' "federal constitutions" argument in Federalist Nos. 39-45 that the enumerated powers were presumptively, and therefore unambiguously limited. In this light, the concept of "liquidation" briefly mentioned in a single sentence in Federalist 37 was of no value, since moderates concerned about excessive national powers would hardly be reassured by having this ambiguity "liquidated" by the Federalist-dominated governments that the ratifiers anticipated.

--Dan Ernst

Brophy on the Jurisprudence of Antebellum Phi Beta Kappa Addresses

Alfred L. Brophy, University of North Carolina School of Law, has posted The Jurisprudence of Antebellum Phi Beta Kappa Addresses:

Ralph Waldo Emerson (NYPL)

Ralph Waldo Emerson spoke at Harvard University in 1837 in a Phi Beta Kappa address. That address known as American Scholar reaches for individual expression, not history and social hierarchy. There are many Phi Beta Kappa addresses, both before and after him. Many Transcendentalists orators at Harvard and a few anti-Transcendentalists orators as well. And many others who are optimists, technology, and utilitarians at many colleges. After the Fugitive Slave Act in 1850, three speakers of Harvard, Brown, and Yale advocated law, rather than conscience. All three of them were lawyers. There was a rich diversity of opinion: Transcendental oratory, anti-Transcendentalists, and optimist, technological, and utilitarian thought. 

--Dan Ernst

Snyder's "You Can't Kill a Man Because of the Books He Reads"

My Georgetown Law colleague Brad Snyder has published You Can't Kill a Man Because of the Books He Reads: Angelo Herndon's Fight for Free Speech  (W.W. Norton):

Decades before the impeachment of an American president for a similar offense, Angelo Herndon was charged under Georgia law with "attempting to incite insurrection"--a crime punishable by death. In 1932, the eighteen-year-old Black Communist Party organizer was arrested and had his room illegally searched and his radical literature seized. Charged under an old slave insurrection statute, Herndon was convicted by an all-white jury and sentenced to eighteen to twenty years on a chain gang. You Can't Kill a Man Because of the Books He Reads chronicles Herndon's five-year quest for freedom during a time when Blacks, white liberals, and the radical left joined forces to define the nation's commitment to civil rights and civil liberties.

Herndon's champions included the young, Black Harvard Law School-educated attorney Benjamin J. Davis Jr.; the future historian C. Vann Woodward, who joined the interracial Herndon defense committee; the white-shoe New York lawyer Whitney North Seymour, who argued Herndon's appeals; and literary friends Ralph Ellison, Langston Hughes, and Richard Wright. With their support, Herndon won his freedom and reinvented himself as a Harlem literary star until a dramatic fall from grace.

A legal odyssey of Herndon's narrow escape from certain death because of his unpopular political beliefs, You Can't Kill a Man Because of the Books He Reads explores Herndon's journey from Alabama coal miner to Communist Party organizer to Harlem hero and beyond. Brad Snyder tells the stories of the diverse coalition of people who rallied to his cause and who twice appealed his case to the U.S. Supreme Court. They forced the Court to recognize free speech and peaceable assembly as essential rights in a democracy--a landmark decision in 1930s America as well as today.

Here are some endorsements:

"Some works of history are top-down. Some bottom-up. You Can’t Kill a Man Because of the Books He Reads is both. Brad Snyder moves gracefully from the streets of 1930s Atlanta, where Angelo Herndon, a young Black radical, was charged with insurrection, all the way to the chambers of the U.S. Supreme Court. This is a hard and hopeful story. Snyder tells it with energy, economy, wide-ranging empathy, and quiet passion."

James Goodman, author of Stories of Scottsboro

"Angelo Herndon had been a Communist Party organizer for barely two years when the Atlanta police arrested him for attempting to incite an insurrection. In his careful, compelling new book, Brad Snyder recreates the extraordinary struggle to save Herndon from life on a Jim Crow chain gang for daring to promote ideas the authorities didn’t want to hear. A story of fundamental principles and unlikely heroes, expertly told."

Kevin Boyle, author of Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age

"A gripping story of how democracy triumphed under the most challenging circumstances. A timely book and a great read."

Patricia Sullivan, author of Justice Rising: Robert Kennedy’s America in Black and White

Kenneth W. Mack of the Harvard Law School will discuss the book with Professor Snyder over Zoom on Thursday at 7 p.m. EDT in an event sponsored by the Supreme Court Historical Society.  Washingtonians can hear Professor Snyder discuss the book in conversation with our Georgetown Law colleague Steven Vladeck at Politics & Prose on Connecticut Avenue, NW, on Friday, February 28 from 7 p.m. to 8p.m.  

--Dan Ernst

Kreis on the Anti-Coup Principle in US Constitutional Law

Anthony Michael Kreis, Georgia State University College of Law, has posted Coups and Punishment in the Constitutional Order, which is forthcoming in the Wisconsin Law Review:

This article examines the historical and constitutional foundations of an anti-coup principle in the United States, emphasizing how state-level prosecutions deter and can appropriately punish election subversion. Tracing its roots to English constitutional history and the Glorious Revolution, the anti-coup principle rejects arbitrary executive power. It underscores the need for accountability to sustain democratic norms against presidential self-coup conspiracies. Highlighting how presidential systems are vulnerable to autocoups, the article argues that the decentralized nature of American presidential elections and constitutional provisions, such as the Guarantee Clause, empower states to act as guardians against authoritarian threats. It further explores the historical evolution of voting rights through state constitutions. The article illustrates states' foundational role in protecting free and fair elections alongside the federal government, which supports using state prosecutorial power to punish wrongdoers who conspire to overturn lawful presidential elections. The article concludes that preserving democratic institutions requires cultural safeguards and the active enforcement of accountability mechanisms at the state level, ensuring that no individual or group undermines the rule of law and citizens' right to vote with impunity.

--Dan Ernst

Richotte's "Worst Trickster Story Ever Told"

Keith Richotte, Jr., has published The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution (Stanford University Press):

When did the federal government's self-appointed, essentially limitless authority over Native America become constitutional?

The story they have chosen to tell is wrong. It is time to tell a better story. Thus begins Keith Richotte's playful, unconventional look at Native American and Supreme Court history. At the center of his account is the mystery of a massive federal authority called plenary power.

When the Supreme Court first embraced plenary power in the 1880s it did not bother to seek any legal justification for the decision – it was simply rooted in racist ideas about tribal nations. By the 21st century, however, the Supreme Court was telling a different story, with opinions crediting the U.S. Constitution as the explicit source of federal plenary power.

So, when did the Supreme Court change its story? Just as importantly, why did it change its story? And what does this change mean for Native America, the Supreme Court, and the rule of law? In a unique twist on legal and Native history, Richotte uses the genre of trickster stories to uncover the answers to these questions and offer an alternative understanding.

The Worst Trickster Story Ever Told provides an irreverent, entertaining synthesis of Native American legal history across more than 100 years, reflecting on race, power, and sovereignty along the way. By embracing the subtle, winking wisdom of trickster stories, and centering the Indigenous perspective, Richotte opens up new avenues for understanding this history. We are able, then, to imagine a future that is more just, equitable, and that better fulfills the text and the spirit of the Constitution.

--Dan Ernst

Weekend Roundup

• Dylan C. Penningroth will deliver Hidden Histories of Black Civil Rights, the 2025 Pro Lecture in Legal History at the William S. Boyd School of Law at the University of Nevada, Las Vegas, in conjunction with the UNLV Department of History, at 5:30 on February 11.  The program is free, but registration is required. 
  

• John Fabian Witt will deliver "Antagonists and Enablers: A First Draft History of Biden and the Supremes," the Mitchell Lecture for Spring 2025, at 2 p.m. on March 14, at the Charles B. Sears Law Library, John Lord O’Brian Hall, University at Buffalo (North Campus).  Robert H. Jackson delivered the first Mitchell Lecture in 1951, titled “Wartime Security and Liberty Under Law.”  Other Mitchell Lecturers include Derrick Bell, Paul Freund, Lawrence Friedman, Carol Gilligan, Sheila Jasanoff, Duncan Kennedy, Karl Llewellyn, Stuart Macaulay, Catharine MacKinnon, and Richard Posner.  So, no pressure.  Register here to attend.

• Former LHB blogger and president-elect of the American Society for Legal History Mitra Sharafi has won the Indian Law Review's article prize for 2023 for "Indian constitutionalism, the rule of law, and Parsi legal culture," which is available, open access, here. 

• 
  The organizing committee of the eighth European Society for Comparative Legal History’s biennial conference, "Back to the Past and Building the Future,” to be held at Szeged, Hungary, on July 2-3, 2025, “has launched a website containing information on accommodation, traveling, membership fee and registration fee.”  H/t: ESCHblog.  
  

• The Sandra Day O’Connor Institute for American Democracy, the National Constitution Center and the Organization of American Historians are sponsoring a week-long, intensive summer workshop for “social studies educators who currently work in sixth–12th grade classrooms who have an interest in learning more about the history of the U.S. Constitution,” from Sunday, June 22-Friday, June 27.  It opens with a panel discussion including Jeffrey Rosen, David Blight, and Akhil Amar, which will be open to the general public and livestreamed.  More.
  

• Congratulations to former LHB Blogger Emily Prifogle upon the Michigan Law faculty's vote to award her tenure.  H/T: WAKL
  

• Former LHB Guest Blogger Marie-Amélie George reviews Margot Canaday’s Queer Career in LHR.
  

• We did not know there was a Treasury Historical Association, much less that it awards a research prize, but we're glad we do now.  Let's get going on the history of this.
  

• Here is the CFP for the annual meeting of the American Historical Association, to be held in Chicago, January 8-11, 2016. 
  

• The Georgetown University Center for the Constitution has awarded its annual Thomas M. Cooley book prize (a $50,000 award) to Robert Cottrol and Brannon Denning for their book, To Trust the People with Arms: The Supreme Court and the Second Amendment (The Hoya).
  

• ICYMI: David Blight on birthright citizenship (The Atlantic).  Mark Thomas on originialism and impoundment (Notice & Comment). Howard University “Celebrates the Life of Alumnus Henry L. Marsh III" (Howard).
  

Weekend Roundup is a weekly feature compiled by all the Legal History blogger.

Erbsen on Presidential Power to Adjourn Congress

Allan Erbsen, University of Minnesota School of Law, has posted Constitutional Limits on the President's Authority to Adjourn Congress:

Can the President adjourn Congress, declare that the adjournment constitutes a recess, and appoint cabinet officers without the Senate’s consent? President-Elect Donald Trump has considered invoking this supposed power. Adjourning Congress would enable the President to appoint otherwise unconfirmable officials. Even if the President does not adjourn Congress, the looming threat of adjournment could chill the Senate’s review of nominees.

This Article concludes that the President cannot evade the Senate’s role in the appointments process by adjourning Congress. Three clauses in the Constitution inform the analysis: the Consent Clause, which requires each house to consent to the other’s adjournment; the Convening Clause, which authorizes the President to convene one or both houses in an “extraordinary” session; and the Disagreement Clause, which allows the President to adjourn Congress when the houses disagree about whether adjournment is appropriate. A plan that has percolated among some House members calls for manufacturing a disagreement with the Senate that the President would cite as a basis for adjourning Congress. I call this the “contrived adjournment plan.”

The contrived adjournment plan violates the Constitution for four independent reasons. First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them. Second, even if the Disagreement Clause applies to regular sessions, it does not enable the President to adjourn the Senate if the Senate allows the House to adjourn. The House and Senate each possess independent authority to continue meeting while the other adjourns. If the Senate permits the House to adjourn, then the Senate’s refusal to adjourn itself would not create a constitutionally significant disagreement that the President could resolve. Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate’s inherent authority to reconvene on an earlier date. Fourth, even if the Senate could not reconvene, a forced adjournment of the Senate arguably would not create a “recess” that would permit the President to appoint officials without the Senate’s consent.

For the past 235 years, the Disagreement Clause has not been a cannon aimed at the Senate, waiting for a President to light the fuse. The Disagreement Clause has a narrow role that does not include empowering the President to evade Senate review of appointments. The Constitution’s separation of powers framework is more resilient than Machiavellian schemes assume.

--Dan Ernst

Schwartz on Dred Scott, Roe, and Enumerationism

David S. Schwartz, University of Wisconsin Law School, has posted An Ugly Common Ancestor: Dred Scott, Roe, and Enumerationism:

Roger Taney, CJ (LC)

The Dred Scott case holds a deserved place in the constitutional “anti-canon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the lead opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This essay argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that created the Republican backlash at the time—reflected, not a strong precedent for substantive due process, which was a mere makeweight argument, but instead turned on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.

If you’ve been sleeping on the emergence of an anti-enumerationist, Madison-marginalizing revision of American constitutional history, Professor Schwartz’s paper is a good entrée.  See also his paper with my Georgetown Law colleague John Mikhail (The Other Madison Problem) and Professor Mikhail’s The Necessary and Proper Clauses and The Original Federalist Theory of Implied Powers, the latter of which would bring you up to speed quickly.

–Dan Ernst

Blocher and Garrett on Applying History as Law

Joseph Blocher and Brandon L. Garrett, Duke University School of Law, have posted Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine:

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory of law. How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them?

In the first Part of this Article, we show how lower courts have been tasked with assessing history and tradition in applying constitutional standards, often with little guidance regarding how to proceed or what quality and quantity of historical evidence suffices to satisfy those standards. We taxonomize the Court's standards, describing the different burdens and challenges that judges face in carrying out their obligation to apply these standards while developing a historical fact record.

In Part II, we show how lower courts and litigants have attempted to navigate this new doctrinal landscape. Their efforts have revealed serious complications and debates about fundamental matters like the fact/law distinction, record development, expert witnesses, and independent judicial factfinding. Less attention has been paid to the impact on litigants, who potentially face higher costs of research and briefing and legal standards that are more obscure and unpredictable. The result has been incomplete and sometimes deeply flawed decision-making, and-perversely-a growing disjunction between law and historical facts.

In Part III we provide some prescriptions. We argue that if constitutional cases are to turn on matters of historical fact, those factual determinations should be initially made with an opportunity for party development of historical facts, including with appropriate use of expert witnesses. If no such trial court record exists, appellate courts can and often should remand for one to be developed. Moreover, fixed standards of review must regulate review on appeal, accounting for the differences between questions of fact and law

If adequate rules and practices for finding and applying historical facts cannot be identified or soundly implemented, then originalist constitutional standards that call for the application of historical facts should be reconsidered—not necessarily because they fail in theory but because they fail in practice. Insufficient rules for fact-development and review on appeal result in ill-defined precedent and unworkable constitutional doctrine and will call into question the judicial enterprise of applying history as constitutional law.

--Dan Ernst