Friday, February 28, 2025

Shanahan's "Disparate Regimes"

Brendan A. Shanahan, a Lecturer in the Department of History at Yale University, has published Disparate Regimes: Nativist Politics, Alienage Law, and Citizenship Rights in the United States, 1865-1965 (Oxford University Press):

Historians have well described how US immigration policy increasingly fell under the purview of federal law and national politics in the mid-to-late nineteenth century. It is far less understood that the rights of noncitizen immigrants in the country remained primarily contested in the realms of state politics and law until the mid-to-late twentieth century. Such state-level political debates often centered on whether noncitizen immigrants should vote, count as part of the polity for the purposes of state legislative representation, work in public and publicly funded employment, or obtain professional licensure.

Enacted state alienage laws were rarely self-executing, and immigrants and their allies regularly challenged nativist restrictions in court, on the job, by appealing to lawmakers and the public, and even via diplomacy. Battles over the passage, implementation, and constitutionality of such policies at times aligned with and sometimes clashed against contemporaneous efforts to expand rights to marginalized Americans, particularly US-born women. Often considered separately or treated as topics of marginal importance, Disparate Regimes underscores the centrality of nativist state politics and alienage policies to the history of American immigration and citizenship from the late nineteenth to the mid-twentieth centuries. It argues that the proliferation of these debates and laws produced veritable disparate regimes of citizenship rights in the American political economy on a state-by-state basis. It further illustrates how nativist state politics and alienage policies helped to invent and concretize the idea that citizenship rights meant citizen-only rights in law, practice, and popular perception in the United States.

--Dan Ernst

Thursday, February 27, 2025

Race and US Citizenship in the 1850s: View from Abroad

M. Scott Heerman's Sources and U. S. Citizenship in the Antebellum United States: A View from Abroad is available as a "first look" in Law and History Review:

William L Marcy (wiki)
This article republishes a series of documents concerning citizenship rights for African Americans who were abroad. Twice during the 1850s the U.S. Secretary of State (William L. Marcy) issued instructions to consuls where he spelled out the relationship between race and citizenship for individuals who were beyond the borders of the United States. Because citizenship was not clearly defined the antebellum period, either in law or practice, the Secretary's guidance offers an important set of documents that scholars from a variety of fields can incorporate into their scholarship and teaching.

--Dan Ernst

Wednesday, February 26, 2025

Macey and Richardson on Public Utilities and the Nondelegation Doctrine

Joshua C. Macey and Brian Richardson have published The Public Law of Public Utilities in 42:1 of the Yale Journal on Regulation:

This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that modern efforts to invoke Article III to restrict agency adjudication do not reflect a consistent understanding of the public-private distinction, but instead revive the distinction in some contexts (adjudication) but not others (rulemaking). Third, we provide a new framework for understanding the Supreme Court’s turn to structural arguments to check administrative agencies. On the last point: for nearly five decades prior to 1935, courts used rights-based arguments, not structural ones such as the nondelegation doctrine, to deduce the scope and content of the legislative, executive, and judicial powers. Once the Supreme Court abandoned its freedom-of-contract jurisprudence, it was a public utility case that breathed new life into the nondelegation doctrine. Public utilities were a natural battle ground for reshaping the public law of administration. Like today, private rights, delegation, and agency adjudication were all central preoccupations of this public utility moment, but the frameworks courts advanced to answer these puzzles have vanished from our modern debate. Today’s administrative law thus reflects an ad hoc revival of public utility legal concepts, and it reinvents these concepts such that they bear little resemblance to their public utility genealogy.
--Dan Ernst

Tuesday, February 25, 2025

Goldsmith, Barco and Mack to Lecture at SCHS

The Supreme Court Historical Society has announced a three-part lecture series for Spring 2025:

Lecture One – Virtual
In Hoffa’s Shadow: Chuckie O’Brien, the Supreme Court, and a Son’s Search for the Truth
A Lecture by Professor Jack Goldsmith
March 19, 2025 | 12:00 PM ET | Via ZOOM

As a young man, Jack Goldsmith revered his stepfather, longtime Jimmy Hoffa associate Chuckie O’Brien. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of perpetrating Hoffa’s disappearance on behalf of the mob. It was only years later, when Goldsmith was serving as assistant attorney general in the George W. Bush administration, that he began to reconsider his stepfather and to understand Hoffa’s legacy.  
Professor Goldsmith wrote In Hoffa’s Shadow to share how he reunited with the stepfather he’d disowned and then set out to unravel one of the twentieth century’s most persistent mysteries and Chuckie’s role in it.

Lecture Two – Virtual
Denied but Not Defeated: Myra Bradwell and the Battle for Women in Law
A Lecture by Siobhan Barco
April 22, 2025 | 2:00 PM ET | Via ZOOM

Myra Colby Bradwell (February 12, 1831 – February 14, 1894) was a Chicago publisher and political activist. She attempted in 1869 to become the first woman to be admitted to the Illinois bar to practice law but was denied admission by the Illinois Supreme Court in 1870 because of her sex. She was denied again on appeal to the Supreme Court of the United States in Bradwell v. Illinois (1873). What happened to Ms. Bradwell after her case was decided?

Lecture Three – In Person
The Vanishing of Lloyd Gaines: A Supreme Court Victory and a Civil Rights Mystery
A Lecture by Professor Kenneth W. Mack
May 21, 2025 | 6:00 PM ET | Supreme Court of the United States
Tickets: $50 | Reception to Follow | Advance Registration Required

Lloyd Gaines (1911 – disappeared March 19, 1939) was born in Mississippi and moved to Missouri with his mother and siblings.  He attended the Blacks-only Lincoln University in Jefferson City, Missouri.  He then applied to the University of Missouri Law School, which did not admit Black students. With the help of the NAACP, he was the petitioner in Gaines v. Canada. In 1938,  the Supreme Court held that states that provided a school for  White students had to allow Black students to attend or provide a separate school for them. Shortly after this victory though, Lloyd Gaines disappeared. He was never found.  What happened to Lloyd Gaines?

--Dan Ernst

ICH Seminar: Religion in American Law

[We have the following announcement.  And, to disambiguate: the Institute for Constitutional History is not to be confused with the Institute for Constitutional Studies, directed by Maeva Marcus at GW Law.  DRE]

The New York Historical's Bonnie and Richard Reiss Graduate Institute for Constitutional History's spring
seminar has been announced and will examine how the principles of disestablishment and religious freedom were incorporated into American law, and their subsequent transformation over time.  The ICH seminar is produced twice per year and designed for graduate students, junior faculty, and other educators, in history, political science, law, and related disciplines. There is no tuition for this seminar. The spring seminar will take place in person throughout April/May.

“Religion in American Law: Incorporation, Transformation, Restoration,” Fridays, April 25; May 9, 16, and 30, 2025,  2–5 pm ET.  The seminar will be presented in person at The New York Historical, 170 Central Park West, New York, NY 10024.  Although we encourage students to attend the class in person, livestream participation will be offered to admitted students who do not live in the New York Metropolitan Area or who are unable to attend a class in person.

The instructors are Sally Gordon, the Arlin M. Adams Professor of Constitutional Law and Professor of History, emerita at the University of Pennsylvania, and Nomi M. Stolzenberg, the Nathan and Lilly Shapell Chair at the University of Southern California Gould School of Law.

The application deadline is March 28, 2025.  More information about the seminar and how to apply can be found here.

Monday, February 24, 2025

Weller, "Moses, Muhammad and Nature’s God in Early American Religious-Legal History, 1640-1830"

Palgrave Macmillan Cham has published Moses, Muhammad and Nature’s God in Early American Religious-Legal History, 1640-1830 (Sept. 2024), by R. Charles Weller (Washington State University). A description from the publisher:

This is the first comparative study of Mosaic and Islamic law in American history to be published. Constructing a complex picture in trans-Atlantic, trans-European and world historical perspectives, this book elucidates the intersections that lie beneath and behind the rise of the debates in the 1990s and 2000s over the promotion of the Ten Commandments and Mosaic Law as alleged sources of American Constitutional law and symbols of American national identity. These debates have taken shape in close connection with resurgent anti-Semitism, anti-Sharia protests and anti-Sharia legislation throughout the United States and other Western societies.

More information is available here.

-- Karen Tani

Saturday, February 22, 2025

Weekend Roundup

  • Jonathan Gienapp continues his engagement with "original public meaning" originalists.  "[O]riginalists assume that historians’ primary contribution is that they know that something happened or that a word had a certain meaning in the past," he writes. "Historians, meanwhile, tend to believe that their principal skill is in knowing how to decode historical utterances in all their guises. The knowing that is thus built on the knowing how, or, better put, the knowhow" (Process).
  • Raulston,J., charges the Scopes Trial jury (NYPL).
    On March 20-21, the Kislak Center at the University of Pennsylvania will host a hybrid event on "The Scopes Trial at 100: Secularism, Race, and Education." More information is available here
  • Edward Larson will deliver the Palmer Hotz Endowed Lecture in the History of Science on the Scopes Trial at the University of Arkansas at 5:15 p.m. Thursday, March 6, in the Gearhart Auditorium.
  • The Supreme Court Historical Society lecture, "The Life and Times of Chief Justice Oliver Ellsworth," by William R. Casto will be held at 12:00 PM (EST) on February 24, 2025, via Zoom.  The Society will subsequently post a recording on its YouTube channel.  Register here.
  • At the next meeting of the Helsinki Legal History Series seminar, on February 25 and conducted over Zoom, Susanne K. Paas of the Max Planck Institute for Legal History and Legal Theory, will speak on “Josef Esser: A German Jurist in Four Systems.”  More.
  • At the next online meeting of the Environment, Law, and History Global Workshop, Benjamin Richardson, University of Tasmania Faculty of Law, will present the previously circulated paper, “Conservation Covenants in Castlecrag, Sydney: Walter Burley and Marion Griffin’s Legal Innovation in the Interbellum.”  Carol Rose will comment.  The session will take place on March 27 at 9 pm UTC.  (Convert to your time zone, if necessary, here.)(H-Law).
  • "Christian, Jewish, Islamic & Secular Law in American & International History," a Zoom panel, will take place on Thursday, February 27 at 3:30 EST. Panelists include Deina Abdelkader, David Novak, Peter N. Stearns, and R. Charles Weller.  Register here  (H-Law).
  • Five top public law scholars have responded to the Barnett/Wurman NYT op-ed on birthright citizenship (Just Security).  And Jonathan Schaub, after reviewing the exchange, adds an argument based on expatriation (Lawfare).
  • Mark Tushnet, Stephen Skowronek, and John A. Dearborn discuss “the destruction of the public service” on the Scholars’ Circle podcast.
  • ICYMI, State Constitutional History Edition: The New Hampshire Department of Education has launched a series of digital resources on the New Hampshire Constitution (Discovery).  Also, "Iowa's unique civil rights history must be taught, not suppressed" (Des Moines Register).  The inalienable rights clause of the North Dakota Constitution figures in a reproductive rights brief files by the Constitutional Accountability Center (CRR).  Teaching Americanism in New York classrooms, 1919-1922 (New York Almanack).  
  • Karin Wulf on "Abigail Kimball's law book...1785" in Princeton's Lapidus Collection (BlueSky).
  • ICYMI: The Charter of the Forest of 1225, the Magna Carta of 1215, and the Forest Charter of 1217 are on display at Lincoln Castle until June 1, 2025 (Lincolnshire Today).  A new library at Adams State University will preserve "the water, land and cultural history of the Upper Rio Grande River Basin" (KRCC). Vittorio Bufacchi's short history of separation of powers (The Conversation).  The six sentences George Washington cut from his farewell address (Slate). 

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

Friday, February 21, 2025

Epps and Levy on the Supreme Court and Court Reform

Daniel Epps, Washington University in St. Louis School of Law, and Marin K. Levy, Duke University School of Law, have posted Judicial Reform from the Inside Out, which they prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925 and is forthcoming in the Notre Dame Law Review:

The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across different historical eras and different levels of the federal judiciary. We then use our descriptive account as a platform for theoretical and normative analysis. We begin by drawing some general lessons from the historical narrative. We then identify the overarching costs and benefits of judicial participation in reform, as well as the many factors for which one must account in normatively assessing any one instance of inside-out judicial reform. Relying on that framework, we offer some tentative recommendations for how inside-out judicial reform can be appropriately channeled.

Studying judicial reform from the inside out can help us understand court administration, the judicial role, and the relationship between the judiciary and the political branches—as well as shedding light on the current debate over reform of the Supreme Court.

--Dan Ernst

Thursday, February 20, 2025

Equality: Race and Constitutional History

Equality: Race and Constitutional History,” a Harvard Law School Online course taught by Michael Klarman, treats “the Constitution’s deep entanglement with race” in “six self-paced modules and a one-hour discussion session with Klarman and fellow learners.”  The course “is designed to reach a broad audience, including educators and non-lawyers. Registration is open through Friday, February 21, 2025"--that is, tomorrow.

--Dan Ernst

ASLH/Notre Dame Graduate Legal History Colloquium: March 2025 Session

The ASLH/Notre Dame Graduate Legal History Colloquium will convene on March 8, 2025. Virtual participation remains an option for those who want to attend. Register here. The schedule: 

ASLH/Notre Dame Graduate Legal History Colloquium
March 8, 2025 | 10 AM - 3 PM (CST)
Notre Dame Law School | Chicago, IL


Registration/Welcome 09:45 - 10:05 AM 

 
Paper #1: Legal History of Science and Medicine 10:05 - 11:00 AM

“Visions of the Body and Citizenship in 19th Century U.S. Jurisprudence”

Author: Michael Ortiz-Castro, Bentley University

Respondent: Ijeoma Kola, Assistant Professor of History, University of Notre Dame


Paper #2: Gender & Criminal Law in the Progressive Era 11:05 - 12:00 PM

“‘For a Good Reason’: Surveillance of Prostitution in Progressive Era Chicago”

Author: Abbie Reese, Loyola University - Chicago

Respondent: Kate Masur, Board of Visitors Professor of History, Northwestern University


Afternoon Break (Lunch) 12:05 - 1:00 PM


Paper #3: Regulation in the Nineteenth Century 01:05 - 2:00 PM

“The Long Shadow of Railroad Governmental Ownership”

Author: Alon Jasper, New York University

Respondent: Barry Cushman, John P. Murphy Foundation Professor of Law, University of Notre Dame


Paper #4: Medicine & Gender in Chinese Legal History 02:05 - 3:00 PM

“Gendered Citizenship in Republican China: Women’s Rights, Feminist Constitutionalism, and Eugenics”

Author: Yu Liu, University of California - Santa Barbara

Respondent: Michel Hockx, Professor of East Asian Languages and Cultures, University of Notre Dame 

-- Karen Tani

Wednesday, February 19, 2025

"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

Tuesday, February 18, 2025

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

Monday, February 17, 2025

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, February 16, 2025

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

Saturday, February 15, 2025

Weekend Roundup

  • 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.
  • 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). 
  • 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.

Friday, February 14, 2025

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

Thursday, February 13, 2025

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

Wednesday, February 12, 2025

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

Tuesday, February 11, 2025

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

Monday, February 10, 2025

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

Saturday, February 8, 2025

Weekend Roundup

  • 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).
  • 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).  
  • 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.

Friday, February 7, 2025

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