JACH (Spring 2026)

The Spring 2026 issue of the Journal of American Constitutional History is now available here.

Articles

Constructing the Constitutional Legitimacy of the Administrative State: Congress and the Settlement of 1946
Johnathan O’Neill

Today the legitimacy of the administrative state is being questioned more deeply than at any time since the New Deal. This article puts Congress at the center of the story to understand how this question was addressed in the New Deal’s immediate aftermath. It argues that Congress sealed the legitimacy of the administrative state in three pieces of legislation passed in 1946: the Employment Act, the Administrative Procedure Act, and the Legislative Reorganization Act.

This legislation marked the “settlement of 1946,” in which Congress acknowledged that modern governance required management of the economy and delegation of power to bureaucracies, but also that the administrative state must be disciplined with recognizably constitutional principles and procedures. It was through this legislative dynamic, traced in each of the three laws passed in 1946, that Congress acted to moderate constitutional conflict and legitimate its resolution: only it could accommodate and validate the administrative state while also limiting and controlling its reach.

From this perspective, the constitutional changes of the New Deal look less like an event centered solely on the Supreme Court and its jurisprudence and more like an adaption that required action by the national legislature to be regarded as legitimate.

The Civic Order of Progressive America: The Fitter Families Ideal and the Acquisition and Loss of U.S. Citizenship
Rogers M. Smith

In the first third of the twentieth century, American leaders affiliated with both political parties and the broader Progressive movement restructured what I term the nation’s “legal civic order” to advance a Fitter Families ideal of American citizenship. The model American family was industrious and prosperous, conventionally religious, patriotic, patriarchal, white, and prolifically fecund. This article analyzes American legislation and executive policies governing immigration, naturalization, denaturalization, and expatriation in the Progressive era to show how comprehensively they expressed this ideal, despite apparent anomalies. National policies sought to exclude persons thought incapable of conforming to Fitter Families standards and to subject Indigenous Americans, inhabitants of the insular territories, and most people of color in America to what Progressives viewed as beneficial “tutelary” forms of second-class citizenship designed to prepare them to approximate the Fitter Families ideal, if they proved capable of doing so. Some on the left of the Progressive movement joined in coalitions with representatives of allegedly “unfit” communities to contest these policies, but substantial changes would not come until succeeding eras in America’s civic development.

Dialogue: The Oliver Wendell Holmes Devise History of the Supreme Court

The Oliver Wendell Holmes Devise: An Introduction
Maeva Marcus

As the third general editor of the Oliver Wendell Holmes Devise History of the Supreme Court, I had the good fortune to be in that position when Mark Tushnet and Robert Post produced their manuscripts on the Hughes and Taft Courts respectively—both truly monumental achievements. By way of introduction, I thought it might be helpful to give JACH readers a short account of the checkered progress of the Devise History, so they might better understand how Professors Tushnet and Post came to undertake such massive projects.

Reflections on the Two Most Recent Holmes Devise Histories of the Supreme Court (Including Mine)
Mark Tushnet

Reading in full Robert Post’s magnificent Holmes Devise history of the Taft Court provoked me to compare the choices he and I made in writing Holmes Devise volumes at roughly the same time.

Two choices Post and I made stood out for me: first, his hope to write a volume “of record” (xxv) compared to my (perhaps resigned) willingness to acknowledge that my volume, long as it is, is not comprehensive; second, his framing of his volumes around what he calls four “narratives about the nature and purpose of constitutional law” (xxvii) compared to my framing around what I called “attitudes” or, sometimes, “legal thought,” drawing upon Duncan Kennedy’s work.

The bottom line should be that his choices were right for him, which in some sense they necessarily were, and mine right for me.  Candor compels me to say, though, that I think my choices were better than his notwithstanding my admiration for his volume’s obviously great merit.

Writing for the Holmes Devise
Robert Post

Although seventy-five years ago it was common for legal historians to focus on the decision-making of apex courts, this had begun to change by 1988. To-day the subject seems positively quaint. Legal historians are now drawn instead to topics like transgender history, or imperial violence, or black legal culture, or intellectual history.  They conceptualize law as emerging from the bottom up, or as epiphenomenally emanating from the practices of governmentality, or as the precipitation of larger cultural developments. All this is very far from viewing law as the conscious, professional practice of judges striving to construct a semi-autonomous system of legal doctrine.

--Dan Ernst 

Claussen and Meyer on the Foreign Commerce Power

Kathleen Claussen, Georgetown Law, and Timothy Meyer, Duke Law, have published The Foreign Commerce Power in the California Law Review:

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation’s implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress’s control over foreign commerce is exclusive and that Congress’s control over commerce trumps the President’s general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design.

--Dan Ernst 

Sanders, "Parliament's American Shadow"

We missed this one from earlier this year: Anthony B. Sanders (Institute for Justice, University of Minnesota) has posted "Parliament's American Shadow." The abstract:

In the first century after 1776 American courts repeatedly compared their constitutional system's understanding of sovereignty-where the people are sovereign and speak through written constitutions and where legislatures are subordinate-with the British system where Parliament itself was sovereign. This distinction was central to the invention of judicial review. In 1776 Americans rejected British rule and Parliamentary sovereignty. But that did not necessarily mean they had to embrace popular sovereignty and written constitutions. Yet they did, and that choice led to the rise of judicial review just a few years later. American judges understood this genealogy and therefore found the "omnipotent" Parliament an incredibly useful rhetorical device when justifying judicial review. At the same time, judges used "Parliament" in other contexts, including the exact opposite-justifying judicial restraint-and also to shame American legislatures for at times behaving worse than Parliament did. 

This Article reviews the use of "Parliament" as a rhetorical device in American courts from the Republic's earliest days. After a review of the centrality of the Crown in Parliament in the British constitutional system and the choices Americans made in the Revolution to embrace a constitutional architecture that would lead to judicial review, it examines various cases where American judges repeatedly invoked what the Article calls "Parliament's shadow." Two well known examples are Calder v. Bull and Vanhorne's Lessee but there were numerous others. The review demonstrates that this practice continued at around the same frequency from the late eighteenth century through the mid-nineteenth century. However, the Article then documents that Parliament's shadow ebbed, steadily, in the late nineteenth and early twentieth centuries, essentially had disappeared by the mid-twentieth century, and has never rebounded. Although American courts today still sometimes compare the British constitutional system to the American, it is extremely uncommon. 

Why after the repeated use of Parliament's shadow over the first century of the United States did American courts slowly give it up? There is no clear answer but the author offers some suggestions. One is that after the Revolution passed out of living memory, although judicial review itself was secure, the connection between it and the Revolution's change in systems of sovereignty became less front of mind. Another, and perhaps the most important, is that as the title of "top nation" passed from Britain to America the shadow of Parliament inevitably receded. 

Read on here.

-- Karen Tani 

The Decline of Congress: An ICH Seminar

US Capitol (NYPL)

The New York Historical’s Bonnie and Richard Reiss Graduate Institute for Constitutional History has announced its spring seminar, “The Decline of Congress in American Politics and Law.”  The instructors are K.C. Johnson, professor of history at Brooklyn College and the CUNY Graduate Center, and Kevin J. McMahon, the John R. Reitemeyer Professor of Political Science at Trinity College. The seminar be conducted in person at The New York Historical, 170 Central Park West, New York, NY 10024, on Fridays, May 1, 8, 15, and 29, 2026, from 2 to 5 pm ET.  Although in-person attendance is encouraged, “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 deadline for applying is April 10, 2026.  

The ICH seminar is convened twice yearly and is designed for “graduate students, junior faculty, and other educators, in history, political science, law, and related disciplines.” There is no tuition. More information about the seminar and how to apply is here.

[A disambiguation note: The Institute for Constitutional History at the New York Historical ought not to be confused with the Institute for Constitutional Studies at GW Law, directed by Maeva Marcus.]

--Dan Ernst

Price on Congress's "Power of the Purse"

Zachary Price, UC Law, San Francisco, has posted Effectuating Congress's Power of the Purse:

Congress’s power of the purse—its authority to control government spending—is one of its most important authorities. Yet its hold on the executive branch may be fraying, as recent presidents have applied appropriations statutes inventively and the current administration seems poised to assert still greater control over spending.  In part because advocates have advanced tendentious historical claims to support such unilateral executive action, this Article explores the history of how Congress in the past has effectuated its constitutional power over government spending.

The Article explains that although Congress’s power of fiscal control has generally been quite potent across U.S. history, Congress’s grip on executive spending was in some ways weaker before the development of the modern administrative and national-security state.  In the nineteenth century, although Congress exercised considerable informal influence over administration, executive officials frequently overran their appropriations, shifted money creatively between accounts, and spent money for purposes for which Congress did not clearly appropriate funds; in addition, they sometimes did the opposite and “impounded,” or declined to spend, funds that Congress did appropriate.  Such actions, however, occurred in a markedly different practical, legal, and institutional context from contemporary administration.

This history has at least three important implications in the present.  First, it undermines contemporary arguments for a unilateral executive prerogative based on nineteenth century spending practices.  Second, the history sheds new light on the fraught debate over presidential administration and the unitary executive branch, suggesting that congressional control over spending is an essential complement to presidential control over the executive branch.  Finally, the history may support greater contemporary application of mechanisms for holding individual officers liable for unlawful expenditures.

--Dan Ernst

More Congressional Material On-Line

[We are reproducing the following from In Custodia Legis, the blog of the Law Library of Congress, on the latest "migration" of Congressional materials from "Century of Lawmaking" to the digital site, Congress.gov.  DRE]

 We have been working on migrating content from Century of Lawmaking to Congress.gov over the last few years. We kicked this off with migrating 30,000 Bills and Resolutions from 1799-1873. Then, in February 2024, we added the Annals of Congress to Congress.gov. In November last year, we added the Senate Journal to our site. The House Journal was added in the following release. If you are interested in more information on the journals, we have help pages for both the House Journal and Senate Journal.

Earlier this year, in February, we added the Congressional Globe. The Debates of Congress (Congressional Globe, The Annals of Congress, and the Register of Debates) are all predecessors to the Congressional Record, which goes back to 1873 on Congress.gov. The Globe was followed by the Senate Executive Journal going live on Congress.gov in April.

With today’s release we are adding the last item from the Debates of Congress, the Register of Debates. This is also the last area of content to migrate from Century of Lawmaking to Congress.gov. You can see the Register of Debates starting with the 18th Congress of the Browse page and through the 25th Congress.

AHA Webinar: Shutdown History

[We have the following announcement from the American Historical Association.  DRE]

History Behind the Headlines: Government Shutdowns and the Federal Budget

Thursday, October 16, 1:30 p.m. ET

Threats of a US government shutdown have become a staple of the federal budget process during the past few decades. Join moderator Kathryn Cramer Brownell (Purdue Univ.) and panelists Lily Geismer (Claremont McKenna Coll.), John Lawrence (Univ. of California Washington Center), and Jeremi Suri (Univ. of Texas at Austin) for a discussion of the history of federal appropriations, why shutdowns have become so common, and their broader historical implications.

The event is free to attend and open to all; registration is required. The webinar will be recorded and made available on our YouTube channel after the event. Events in the History Behind the Headlines series are generously sponsored by AHA member Jared Brubaker.

Weekend Roundup

• Reminder: at noon on September 10, the Supreme Court Historical Society will sponsor a virtual lecture and conversation with John Q. Barrett, “Away Without Leave but Back in Washington, Briefly: Nazi Prosecutor Justice Robert H. Jackson on the Road to Nuremberg, September 1945.”  Register here.  

• The Supreme Court Historical Society’s latest episode in its Breaking History video series treats “two extraordinary behind-the-scenes stories from the latest Journal of Supreme Court History” concerning Reed v. Reed (1971) and Miranda v. Arizona (1966)

• In an episode of Historians & Their Histories, the Massachusetts Historical Society spoke with Cornelia H. Dayton, University of Connecticut, about her her research into the life of John Peters, the husband of acclaimed poet Phillis Wheatley, as well as abour Professor Dayton’s “path to becoming an historian, her early interest in constitutional law, and the challenges of researching subaltern subjects, such as Peters, who left few firsthand accounts.”  The transcript is here.

• Over at ESCLH Blog: a post on the "(Dis)continuity of Legal Systems in Czechoslovakia, Hungary and Poland after WWII: Difficult Heritage." 

• On Monday, September 8, at 6:30 p.m. at Paul Sawyier Public Library in Frankfort, Kentucky, Thomas C. Mackey, University of Louisville emeritus, will discuss his book, Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime (State-Journal).  

• Also on Monday, September 8, Aziz Rana, BC Law, will give the 2025 Kops Freedom of the Press Lecture, "The Constitution in crisis: how Americans came to idolize a document that fails them," at Cornell University, from 12-1 p.m.  More.  

• In C-SPAN’s “Bell Ringer” series, Joseph Crespino, Emory University, talks about “the changes in society, politics, institutions and the U.S. Senate in the 20th and 21st centuries.”  

• Keith Whittington, Yale Law School, will deliver the Constitution Day address at Washington and Lee University at 5 p.m. on September 18 on “By Birth Alone: The Original Meaning of Birthright Citizenship in the Fourteenth Amendment" (More). 

• Notre Dame Law’s notice of the second ASLH/Notre Dame Graduate Legal History Colloquium.

• A columnist praises the appointment of Lee Strang to direct the new Salmon P. Chase Center for Civics, Culture, and Society at the Ohio State University because the center promises to address "the partisan biases that have oozed into the teaching of American history and civic responsibility" (Columbus Dispatch).   

• The 14th Amendment Center for Law and Democracy at the Howard University School of Law has launched a newsletter, The Refounding.

• ICYMI:  How a Chinese Laundryman Shaped US Civil Rights (KQED).  The Evolution of the Bail System in America (History). The Volatile History of Flag Burning in the US (History).  The "Founders Museum" from White House and PragerU blurs history, AI-generated fiction (NPR).  Speaking of Founders: How about the one who lost a leg?  (Smithsonian).  And there's no rest for the Madison revisionist: “'If we truly want to look at the birthplace of the United States Constitution, it’s not in Philadelphia, it’s on the second floor of this home,' Montpelier’s Director of Interpretation and Visitor Engagement Kyle Stetz said." (29News).

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

Weekend Roundup

• "From Red Lights to Legal Rights": a notice of a book on the recent history of sex work in New Zealand by  Cheryl Ware (University of Auckland). 

• The New York Historical's lecture series in Bryant Park include talks by Lindsay M. Chervinsky, Martha C. Jones, Marcus Rediker, and Victor Luckerson (on the Tulsa Race Massacre).  

• The American Historical Association will hold a Congressional briefing offering on the United States Senate on Thursday July 24, at 10:00 a.m. ET in Dirksen Senate Office Building Room G-11 with Joseph Crespino, Joanne Freeman, and Daniel Holt.  
   
• An issue of the AHA Perspectives takes up history in the US national parks, including the censorship of LGBTQ+ History and what the Scopes trial tells us about "school opt-outs" tday.  

• "There is No Original Public Meaning of Imprecise Constitutional Text": Eric Segall's tribute to the late Richard H. Fallon, Jr. (Dorf on Law). 

• 

  Robert M. La Follette (LC)

  Time's Made by History:  Anna O. Law on Birthright Citizenship. Nancy Unger on Fighting Bob La Follette's progressivism.  Antonio Ramirez on investigating Florida's convict labor in the 1920s.    

• ICYMI:  Daniel Tichenor on the long shadow of the McCarran-Walter Act (Conversation).  Bruce Dearstyne on John Jay’s Early Leadership in the Revolutionary Era (New York Almanack). Sharon L. Kennedy, Chief Justice of the Ohio Supreme Court, on the Northwest Ordinance and Its Legacy (Court News Ohio).

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

JAH 112:1

 [The June 2025 issue of the Journal of American History is chock full of legal history.  We reprodcue its “In This Issue.”  DRE.]

M. Scott Heerman examines the contours of race, citizenship, and legal personhood abroad during the 1850s. He examines two freedom suits filed by John Lytle and Ben Newton, illegally enslaved African Americans in Cuba, and unpacks State Department policy covering rights to citizenship in those cases and others. His article shows that consular agents on the ground in Havana and high-ranking State Department officials in Washington, D.C., maintained a two-tiered system of protection that distinguished between granting legal protections based on birthright and conferring full rights afforded to citizens.

What is the place of law in the history of anti-immigrant violence in the United States? Seeking an answer, Hardeep Dhillon historicizes several attacks on immigrants from India between 1907 and 1910. She argues that the lack of protection or justice for immigrant communities in the face of mob violence is not a simple history of law gone wrong or even a history of discriminatory law, but a history of anti-immigrant fervor and impunity structured through the law. Her article reveals how laws on the books and laws in practice shaped both the violence immigrants experienced and possible forms of redress.

Despite the wealth of scholarship on mortgage discrimination, comparatively little is known about how redlining affected rental housing. During World War II, the Federal Housing Administration (FHA) began underwriting new apartments for defense workers and war veterans. Brent Cebul and Michael R. Glass examine how developers such as Fred Trump and William Levitt abused FHA insurance programs by inflating their costs and reaping excess profits in a tactic known as “mortgaging out.” Drawing upon their original database of FHA-insured apartments, Cebul and Glass illuminate how developers not only deepened racial segregation but also transformed the landscape of rental housing across metropolitan America.

As historians debate the causes of the decline of American democracy—the backlash against civil rights, income inequality, changing media—the Iran-Contra scandal of the Ronald Reagan–George H. W. Bush years, over trading arms with Iran and funding rebels in Central America, never figures in this discussion. Iran-Contra has receded from history, regarded as a minor speed bump in the late Cold War. Reinterpreting the fiasco as an accelerant in the decay of U.S. democracy, Alan McPherson argues that the 1987 televised congressional hearings highlighted several major disparities in how Democrats and Republicans understood norms: Democrats warned of a broad assault on democracy, while Republicans dismissed the disturbing events as mere means to foreign policy ends. Unlike during the Watergate scandal, no one paid a price for Iran-Contra, and the behaviors worsened.

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

Weekend Roundup

• Congratulations to Rabiat Akande, University of Maryland Francis King Carey School of Law, upon being named the 2025 Wilson H. Elkins Professor by the University System of Maryland, which comes with “an award of $80,000 over two years to support a research project titled ‘Law and the Histories of Empire’” (The Elm). 
  

• A nice notice by Ronald A. Brand of his University of Pittsburgh School of Law colleague and legal historian Bernard Hibbitts upon Professor Hibbitts's retirement.
  

• In the wake of President Trump's Executive Order on "Protecting the Meaning and Value of American Citizenship," many historians and legal scholars are weighing in on the history of birthright citizenship: Martha S. Jones (Johns Hopkins) spoke to WBUR; Rachel Rosenbloom (Northeastern University School of Law) wrote for Made by History; Evan Bernick (Northern Illinois University) spoke to Time.
  

• The American Historical Association is hosting a congressional briefing on the history of the U.S. House of Representatives.  It will take place on Wednesday, January 29 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  The panelists are Kathryn Cramer Brownell (Purdue University), Matthew Green (Catholic University of America), and Rachel Shelden (Pennsylvania State University).
  

• 
  Guillaume Tusseau will speak on Bentham's constitutional thought on February 7 at Sciences Po.  The discussants will be Peter Niesen and Xiaobo Zhai.
  

• Pamela Brandwein reviews Mark Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War (Lawfare). 
  

• Paul Moreno reviews Stuart Banner’s The Most Powerful Court in the World: A History of the Supreme Court of the United States (Law & Liberty).
  

•  Talbot Publishing, an imprint of The Lawbook Exchange, Ltd., has published G. I. Tunkin: Selected Works, edited and translated by William E. Butler.

• ICYMI: The Constitution disappears from the White House website (Newsweek).  Rockingham County (Virginia) Circuit Court is celebrating the restoration and digitization of “a Burnt Deed Book from 1815, a Land Book from 1878, and a Land Tax Book dating as far back as 1812" (WHSV).  "Harvard Outsources Program to Identify Descendants of Those Enslaved by University Affiliates" (Harvard Crimson).
  

• Update: Mary Frances Berry on the Executive Order suspending civil rights enforcement (Yahoo/The Grio).  John Yoo on birthright citizenship (AEI).
  

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

Levin Center on Congressional Oversight of the War on Terror

[We have the following announcement from the Levin Center for Oversight and Democracy of the Wayne State University Law School.  DRE.]

Today, the Levin Center for Oversight and Democracy, with the support of the U.S. Capitol Historical

Society, is releasing a new Portrait in Oversight describing two in-depth Senate investigations into the torture and mistreatment of individuals in U.S. custody during the wars in Iraq and Afghanistan.

Both oversight investigations – the first by the Senate Armed Services Committee from 2004 to 2009, and the second by the Senate Select Committee on Intelligence from 2007 to 2014 -- collected evidence exposing the role of senior U.S. defense and intelligence officials in devising, approving, and directing the use of brutal interrogation methods on Abu Ghraib and Guantanamo Bay detainees. Both Senate investigations also led to enactment of new laws to prohibit the future abuse of individuals in U.S. custody.

“The explosive release of 2004 photos showing prisoners being tortured at Abu Ghraib Prison in Iraq shocked the American public and led to worldwide condemnation of U.S. brutality,” said Jim Townsend, director of the Levin Center. “This new Portrait in Oversight demonstrates how Congress exposed government misconduct, held U.S. military and intelligence officials accountable for what they did, and paved the way for laws to prevent this shameful history from repeating itself.”

“Checks and balances are the foundation of the American governmental system," said Jane L. Campbell, President & CEO of the U.S. Capitol Historical Society.  "It's therefore vital to the health of our democracy that Congress continues to exert its power of oversight on our co-equal branches of government. The U.S. Capitol Historical Society thus commends the work of the Levin Center to inform Americans of the history of this vital process, including the aftermath of the September 11 terrorist attacks.”

The portrait is being released today in observance of the 16th anniversary of the Senate Armed Services Committee’s action on November 20, 2008, approving a 265-page report detailing how senior U.S. Department of Defense officials ordered abusive interrogation methods to be used on U.S. detainees. Six years later, on December 9, 2014, the Senate Select Committee on Intelligence released to the public a 700-page executive summary of its still classified report on the role of the Central Intelligence Agency in the misconduct.

Lowe on St. George Tucker on Proroguing Congress

Jessica Lowe, University of Virginia School of Law, has posted St. George Tucker on Article II, Section 3: A Brief Synopsis:

St. George Tucker (CWF)

St. George Tucker is commonly regarded as the most important commentator on American law in the first half of the nineteenth century, and the first major post-ratification commentator on the U.S. Constitution. Tucker's edition of Blackstone's Commentaries is widely cited, but his extremely valuable law lectures, which date to the early 1790s, remain in manuscript form and are less accessible. In these lectures, Tucker examines the new Constitution and how he and others expect it to work. In the first of ten notebooks of law lectures, Tucker includes thoughts on Article II, Section 3, which has become the subject of much current national and scholarly discussion; Tucker outlines what he sees as the meaning of the clause and its applications. I became aware of this material while researching Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia (New York: Cambridge, 2019). As one of the only scholars with deep familiarity with both Tucker and his archival materials, in this short document I offer an introduction to this critical source so that it might be of use to other scholars and lawyers alike.

--Dan Ernst

Weekend Roundup

• The Irish Legal History Society will hold its annual general meeting on November 29.  Following the meeting John G. Gordon will lecture on “‘Where there’s a Will there’s a Contest’: The Will of the Very Rev Frank Henry PP: From Carrickfergus to Rome”  (Law Society Gazette).
  

• The Centre for Law and History Research (Law and History Network) at the University of Bristol will host a seminar by Graham Moore, an Eighteenth-Century Collections Researcher at The National Archives on Confederacy, treason, or robbery? Defining piracy in the seventeenth-century High Court of Admiralty.
  

• A notice of Deserted Wives and Economic Divorce in 19th Century England and Wales: For Wives Alone, on Section 21 of the Matrimonial Causes Act of 1857, which allowed deserted women to have their feme sole status. Professor Olive Anderson died in 2015 before completing the book. Northumbria University professor academic Dr. Jennifer Aston subsequently came across the manuscript and, with the support of Anderson's daughters, completed it.
  

• On November 8, David Wilkins, University of Richmond, delivered the address “Apart & Akin,” on “the shared histories and legal statuses of Native peoples and African Americans,” at  Appalachian State University (The Appalachian).
  

• The University of Chicago's notice of Samuel Fury Childs Daly's new book, Soldier's Paradise: Militarism in Africa after Empire. 
  

• Yale Law School's notice of Keith E. Whittington’s The Impeachment Power (Yale).
  

• Kate Masur discussed her graphic history Freedom Was In Sight: A Graphic History of Reconstruction the Washington D.C. Region at the Smithsonian National Museum of African American History and Culture (YouTube).
  

• Carl Rice, a visiting assistant professor of Greek and Roman studies at Vassar College, lectured on “Roman Religion and the Citizens of Empire, 200-450 CE,” at the Center for Medieval and Renaissance Studies at Binghamton University (Pipe Dream).
  

• Korematsu v. United States was re-argued on its 80th anniversary in an event sponsored by the Robert H. Jackson Center at George Washington University Law School (YouTube).
  

• Stephen Sachs summarizes his review of Jack Balkin's Memory and Authority (Volokh Conspiracy).
  

•  ICYMI: The 18th‑Century Origins of Recess Appointments (History).  Uncovering the Legal Records of France’s Once-Largest Jewish Community--an 18th-century pinkas, in Metz (Mosaic).

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

Rapallo on Congressional Power to Investigate Crime

David Rapallo, Georgetown University Law Center, has posted Congress’s Power to Investigate Crime: Did Trump Kill Kilbourn? which is to appear in the NYU Journal of Legislation and Public Policy:

Can Congress investigate crime? Targets of congressional investigations have tried to argue for decades that the Constitution grants Congress no authority to investigate illegal conduct, but instead vests this power exclusively in the executive and judicial branches. Former President Donald Trump was one of the most recent litigants to make this claim, repeatedly invoking a Supreme Court case from 1881, Kilbourn v. Thompson, despite the fact that the Court condemned this opinion decades ago as "severely discredited." In contrast, Congress has successfully asserted its own constitutional authority to investigate all types of activity-including illegal conduct-not to prosecute the offenders, but to inform legislation and fulfill its various other legislative branch responsibilities.

This Article sheds light on this recurrent debate by tracing its evolution across three historical periods. Since Kilbourn is central to the claims of targets of congressional investigations, the Article begins with a reexamination of that case. It unearths surprising new details about Congress's original investigation and shows how the Court devalued Congress's investigative function, mischaracterized Congress's contempt power as judicial in nature, and adopted an approach that would require Congress to yield to other branches' parallel investigations. Second, a review of more than 100 subsequent court decisions tracks the dismantling of Kilbourn's premises over time. It shows how the Court corrected its errors, recognized Congress's investigative power as derived from its legislative branch authority rather than having judicial origins, and approved numerous congressional investigations while parallel criminal inquiries were ongoing. Third, this Article examines Trump's extensive but ultimately unsuccessful campaign before courts of all levels-including the Supreme Court-to resuscitate Kilbourn to block Congress from investigating his alleged crimes. In response to the question of whether Congress may investigate crime, this Article concludes that the answer is undoubtedly yes. Rather than bringing Kilbourn back to life, Trump's efforts had the opposite effect, creating a surfeit of new precedents that solidified Congress's authority.

--Dan Ernst

Baker to Lecture on "The Royal Prerogative and the Judges"

[We have the following announcement.  DRE.]

The Lord Judge Memorial Lecture in Legal History, Wednesday 20th of November 2024, 17:45, Middle Temple Hall. Hosted by the Middle Temple Historical Society.  

Prof. Sir John Baker KC (Hon), LLD, FBA, Emeritus Downing Professor of the Laws of England at the University of Cambridge will deliver the inaugural Lord Judge Memorial Lecture in Legal History, entitled “The Royal Prerogative and the Judges” in Middle Temple Hall on Wednesday 20 November.

Prof. Baker will consider the relationship between the judges and the royal prerogative from a historical perspective, exploding some myths. It has always been for the judges to decide which of the king’s prerogative powers can be reviewed by the courts and which cannot, but it took some time to find effective means of control. The principal issues in the early-modern period were (1) locking people up without reasons, (2) setting up new tribunals outside the common law, (3) creating new forms of taxation, and (4) legislating by proclamation without Parliament. The procedures which eventually put an end to such powers, notably habeas corpus, were developed (notably by Middle Templars) in the reign of Elizabeth I.

The legal issues addressed at that time may be compared with those resulting from our ‘elective dictatorship’, Parliament having become an instrument whereby a modern Government can exercise more absolute power than that formerly attributed to the King’s prerogative.

This event is taking place in Middle Temple Hall and will be streamed live. This page is for tickets to attend in person.  To book a virtual ticket to attend online, click here.   We will not be able to admit anyone into the Hall with a virtual ticket.

Student members (including transferring lawyers) must attend the lecture and reception in order to be awarded the Qualifying Session.

Please note that there are certain rules and customs that members and guests are expected to observe when attending formal dinners at the Inn. [Dress in Business Attire (with Gowns for all Members of the Inn).  More on attire information here.]

Congress Investigates the Vietnam War

[We have the following announcement from the Levin Center for Oversight and Democracy of its latest "Portrait in Oversight."  DRE.]

The Levin Center for Oversight and Democracy, with the support of the U.S. Capitol Historical Society, has released a new Portrait in Oversight describing a series of oversight hearings led by the Senator J. William Fulbright and the Senate Foreign Relations Committee, from 1966-1971, addressing issues related to the Vietnam War. By engaging in factfinding, collecting evidence, and publicizing what the committee learned, the Fulbright hearings forced greater scrutiny of U.S. military actions, exposed misrepresentations by the Johnson and Nixon administrations about the war, legitimized dissent, and helped bring an end to American involvement.

“The nationally televised Fulbright hearings educated Congress and the public about the devastation in Vietnam, U.S. military failures, and the harrowing impact on American soldiers, and it changed the conversation about the war,” said Jim Townsend, director of the Levin Center. “The Fulbright portrait demonstrates how congressional oversight can inform Americans about their government, influence public opinion, and change the course of U.S. history.”

“The 'Fulbright hearings' represented a watershed moment for American society,” said President and CEO of the U.S. Capitol Historical Society, Jane L. Campbell. “Our involvement in Vietnam began with good intentions from both parties. But the hearings revealed a massive chasm between U.S. military objectives, the reality on the ground, and the narrative being shared with American citizens. One of the era's most important lessons is this: if the United States is to remain a beacon of freedom and hope across the world, it must begin with transparency and accountability at home. Congressional oversight is the foundation of that accountability.”

The Fulbright portrait is being released now to pay tribute to two Vietnam War memorials celebrating anniversaries in November. The first is the Vietnam Veterans Memorial on the National Mall in Washington, D.C., marking its 42nd anniversary. The black granite memorial bears the names of over 58,000 servicemembers who were killed or remain missing in action due to U.S. involvement in Vietnam from 1957-1975. The second is the nearby Vietnam Women’s Memorial, marking its 31st anniversary. The only memorial on the National Mall dedicated solely to women who served in the U.S. military, it honors the 265,000 military and civilian women who served during the Vietnam War.

This portrait is the latest in a series of profiles developed by the Levin Center of notable congressional investigations and key figures in the history of congressional oversight from 1792 to the modern era.

Zhang on the History of Statutory Interpretation

Alexander Zhang, the Legal History Fellow at the Yale Law School, has posted two papers on the history of statutory interpretation.  Legislative Statutory Interpretation appears in 99 N.Y.U. L. Rev. 950 (2024):

We like to think that courts are, and have always been, the primary and final interpreters of statutes. As the conventional separation-of-powers wisdom goes, legislatures “make” statutes while judges “interpret” them. In fact, however, legislatures across centuries of American history have thought of themselves as the primary interpreters. They blurred the line between “making” and “interpreting” by embracing a type of legislation that remains overlooked and little understood: “expository” legislation—enactments that specifically interpreted or construed previous enactments.

In the most exhaustive historical study of the subject to date, this Article—the first in a series of Articles—unearths and explains that lost tradition of legislative statutory interpretation from an institutional perspective. To do so, it draws on an original dataset of 2,497 pieces of expository legislation passed from 1665 to 2020 at the colonial, territorial, state, and federal levels—the first effort of its kind. It shows how expository legislation originated as a colonial-era British import that Americans came to rely on beyond the creation of new constitutions. Lawmakers used expository statutes to supervise administrative statutory interpretation and to negotiate interpretation in the shadows of courts. Judges accepted and even encouraged legislative statutory interpretation. In the mid-nineteenth century, judges increasingly fought back, emboldened by growing calls for judicial independence. Yet even as the backlash entered into treatises, and even as some lawmakers began to balk, legislatures and judges continued to accept and use legislative interpretations of statutes well into the nineteenth century.

The early history of expository legislation offers an alternative constitutional vision to the oft-repeated notion that statutory interpretation is necessarily and has always been an intrinsically and exclusively “judicial” power. As the Article ultimately argues, strict and formalist conceptions of separation of powers in statutory interpretation are misguided, for the extent to which statutory interpretation was considered a judicial power has fluctuated in ways that were intertwined with broader transformations in American society. This history teaches us to think of statutory interpretation as a shared task among branches but exercised in different contexts and domains.

It also illuminates the historically contingent nature of legislation, revealing new ways that statutes can contain an inherent interpretive openness. These particular forms of openness raise new questions about the validity of subsequent legislative history. They also reveal how legislatures have embraced a paradoxical concept of original intent and meaning—one that legislatures recognized was rarely a “pure” kind but more often a fictional, dynamic kind intertwined with the changing views of post-enactment interpreters.

Externalist Statutory Interpretation is forthcoming in the Yale Law Journal:

The dominant paradigm of statutory-interpretation scholarship is an “internalist” one. It treats statutory interpretation as a self-contained set of tools divorced from society and primarily deployed by lawyers and judges within the closed universe of courts. But as judges increasingly justify textualist statutory interpretation by invoking a populist fidelity to “the people,” the internalist paradigm has proven too narrow to support a robust democratic theory of statutory interpretation. Urgent, foundational questions such as “How should laypeople engage with statutes in the first place?” and “What is the relationship between statutory interpretation and power?” are entirely illegible within an internalist, juricentric paradigm. The concept of “ordinary meaning” has in turn developed with little attention paid to laypeople’s actual participation in political processes.

In response, this Article—the second in a series—begins a new conversation in the field of legislation by developing a broader, critically “externalist” perspective. The Article lays the foundations for a social and political theory of statutory interpretation that is more inclusive of diverse and historically marginalized peoples, grounded in the realities of lay politics, and capable of reflecting the social nature of statutory interpretation. An externalist perspective reveals the lived experience of statutory interpretation beyond traditional governmental actors. It sees statutory interpretation and society as mutually constitutive. It pays attention to on-the-ground manifestations of abstract values like “the rule of law.” And it situates statutory interpretation as a component of political culture, political economy, grassroots participation, and racial politics. This perspective reveals the potential role that statutory interpretation can play in framing how people imagine the possibilities of societal change. And it enables us to ask subversively: Does statutory interpretation counterintuitively make social change more difficult?

To begin the work of articulating this externalist paradigm, the Article chiefly recovers a new history of expository legislation—statutes that purported to interpret previous legislative enactments—and uses that history to articulate three new frameworks.

The first framework—“participatory statutory interpretation”—shows how statutory interpretation has been a profoundly democratic practice done by “ordinary” people. Many laypeople—including unenfranchised, poor, and historically marginalized people—once had a direct, personal, and intimate connection to statutory interpretation that they channeled into petitions for expository legislation. Through expository legislation, they were able to access an alternative to judicial remedies and to check administrative officials’ interpretations of statutes. However, this mechanism of participation was fragile and imperfect, as corporations also could exploit it to secure their own interests.

The second framework—“sociopolitical statutory interpretation”—shows how statutory interpretation was inseparable from mass politics. It challenges the idea that statutory interpretation is relatively apolitical. It highlights how statutory interpretation can be a part of grassroots, nationwide political struggles—not just individualized legal conflicts in courts. Yet it raises questions about the limitations of statutory interpretation as a tool of political struggle.

These two frameworks lead to a third framework: “legislative intent as ordinary meaning.” Whereas scholars and judges have presumed that the “ordinary meaning” of statutes must ultimately be about textual meaning, this framework demonstrates the historical basis of an “ordinary meaning” that decenters statutory text. As the Article shows, laypeople cared deeply about legislative “intentions,” and many saw text as merely evidence of law rather than law itself. Meanwhile, as expository legislation increasingly modified statutory text as time went on, the idea that “text is law” came under peril in new ways.

--Dan Ernst

Parrillo Replies to Critics on Nondelegation at the Founding

Nicholas R. Parrillo, Yale Law School, has posted Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics, which appears in the Drake Law Review 71 (2024): 367-434

Proponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings.

This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.

--Dan Ernst