Two notes in Harvard Law Review 139: 8 (June 2026) are of interest to constitutional historians. The first is Montesquieu’s Day in Court: Recovering a Classical Understanding of Separated Powers:
The Supreme Court has developed an increasingly pronounced reliance on Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, as an authoritative voice on American constitutional structure. But the Montesquieu who appears in the United States Reports is not the complex, empirical sociologist who authored The Spirit of Laws in 1748. This Note argues that neither of the Court’s principal approaches to separation of powers — formalism and functionalism — fully engages with the intellectual tradition each claims to inherit from Montesquieu.
The second is Historical Absence and Constitutional Interpretation:
[This Note] draws attention to a type of originalist argument — the argument from historical absence — and the implementation issues it exacerbates. To address these challenges, it presents a modest framework that may be employed by courts required to consider these arguments. This Note conceives of arguments from historical absence as a style of assertion that centers the lack of historical evidence. A litigant hoping to rely upon historical absence may canvass the relevant historical record, find no sufficient historical analogue, and contend that this lack of evidence is itself supportive of their argument — typically, that a governmental practice would have been deemed (un)constitutional at the Founding. These arguments may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice). Simply put, an offensive argument from historical absence may be: “No evidence supports the assertion that the original public meaning of X, or any analogous original public meaning, would permit Y; thus, Y is impermissible.” By contrast, a defensive argument may be: “No evidence supports the assertion that laws regulating Y, or its analogues,were treated as constitutionally suspect at the Founding; thus, the original public meaning of X was understood to permit Y and analogous regulations.”
--Dan Ernst
