Green on Chevron and Political Transformation in American Law

Craig Green, Temple University James E. Beasley School of Law, has posted Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law:

In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron's constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.

As Professor Green writes over at Balkinization,  much of his analysis is “historical.  In the 1930s and 1940s, political forces that endorsed pro-business deregulation fiercely resisted agencies’ authority to interpret statutes, but Chevron in its own era was a substantial victory for the pro-business deregulatory Reagan Revolution.”

Harrison on the Habeas Suspension Clause

John C. Harrison, University of Virginia School of Law, has posted The Original Meaning of the Habeas Corpus Suspension Clause:

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’ authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. The Suspension Clause does not affirmatively require that the federal courts have any jurisdiction to issue the writ of habeas corpus, and so does not interfere with Congress’ general control over the jurisdiction of the federal courts. The clause does not impose any limits on congressional authority with respect to the habeas corpus jurisdiction of state courts that would not exist in its absence.

Bowman on British Impeachments

Frank O. Bowman III, University of Missouri School of Law, has posted British Impeachments (1376-1787) & the Present American Constitutional Crisis:

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

Weekend Roundup

• Aditi Bagchi, Fordham Law, reviews Anne Fleming’s City of Debtors: A Century of Fringe Finance, on Jotwell.  “Fleming ably guides us through the vicissitudes of regulating the small loan industry,” Professor Bagchi writes.  “We do not emerge with any clear sense of a regulatory solution. Instead, we learn the limits of bettering a transaction by way of contractual limitations.” 

• Also on JOTWELL, Reuel Schiller (UC Hastings) recommends Kim Phillips-Fein's Fear City: New York's Fiscal Crisis and the Rise of Austerity Politics (2017). "Fear City is not only a page-turning political history of the fiscal crisis," Schiller writes. "Phillips-Fein has also written an exceptional piece of legal history. Indeed, law courses through the veins of this book. Be it bankruptcy law, the law of municipal finance and taxation, or constitutional law, legal concepts are the armature upon which the story of the fiscal crisis hangs."

• The new-look Perspectives on History of the American Historical Association includes the feature “From the National History Center: Perspectives Daily.”  Just out in it is Fishing for Loan Sharks: Small-Sum Lending Reform over Time, by the aforementioned Anne Fleming, Georgetown Law.

• This news report made us think that Sam Erman’s Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire, heralded on the Studies in Legal History’s website, can’t get here soon enough.

• On Monday, July 30, 6:30 pm at Shaw Library in Washington, DC, "Mara Cherkasky and Sarah Schoenfeld of Prologue DC will explore the long history of displacement, race, and real estate in D.C. Learn about the demands of black home seekers, civil rights attorneys, and fair housing advocates, and the legacy of their efforts."  H/t: DC Public Libraries.

• Via Seth Barrett Tillman, National University of Ireland, Maynooth, here is an updated list of all the major filings in the various foreign emoluments clause cases. 

•  ICYMI: Sam Bray, Notre Dame Law, on two notes by Sir John Baker, on the Volokh Conspiracy.  Newspaper cartoonists on the Kavanaugh nomination. Adam M. Sowards on lynching in the American West for the High Country News.

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

Kent on Congress and the Independence of Federal Law Enforcement

Andrew Kent, Fordham University School of Law, has posted Congress and the Independence of Federal Law Enforcement, which is forthcoming in 52 U.C. Davis Law Review (2018):

Richard Nixon, 1992 (LC)

Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today. As important background, this article recounts the abuses of the Hoover era at the FBI, and the ways the Nixon White House sought to both impede and corrupt the Department of Justice and the FBI. It then provides a rich description of what an engaged Congress looked like—the Congress of the 1970s—when it reacted to these abuses by helping to develop laws, structures, and norms of law enforcement independence and neutrality that served this country well for two generations. Drawing both on ideas floated in Congress post-Watergate, as well as institutional design features from independent regulatory agencies, this article then suggests a menu of options for a future Congress, if it could move beyond gridlock and partisanship to engage again with pressing issues about the White House's relationship to federal law enforcement. Most options I survey here are constitutionally uncontroversial. But two options, both of which were proposed by reformist Senators soon after Watergate, are more aggressive and constitutionally problematic: statutory qualifications limiting the range of appointees for senior DOJ roles, and a statutory for-cause restriction on the President's ability to remove the FBI Director. After setting out arguments for the constitutionality of these proposals, I conclude with a menu of concrete policy recommendations for a future Congress that wishes to get off the sidelines and again play a constructive role in protecting the country from the abuse and misuse of our powerful and essential federal law enforcement institutions.

An NHC Congressional Briefing on US Infrastructure

Because at some point it really will be Infrastructure Week.  The National History Center has announced a Congressional Briefing on the History of U.S. Infrastructure.  It will take place on May 4 from 11:00 am-12:00 pm, in the Rayburn House Office Building, Room 2043:

While it is widely recognized that America's aging infrastructure needs a major overhaul, policymakers disagree about how to accomplish this task.  So how did the great infrastructure projects of the past get built? Three leading historians will explain how this happened and what it can teach us about infrastructure development.

The speakers will be Janet Bednarek, University of Dayton, and Peter Norton, University of Virginia.  Zachary Schrag, George Mason University, will moderate.

McKinley on Petitioning and the Administrative State

Maggie McKinley, University of Pennsylvania Law School, has posted Petitioning and the Making of the Administrative State, which is forthcoming in the Yale Law Journal:

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state within our constitutional framework. Nor have the lawmaking models of classic legal process theory, on which much of our public law rests, captured the nuanced democratic function of these commissions, boards, and agencies.

This Article takes a different tack. It begins with an institutional history of the petition process, drawn from an original database of over 500,000 petitions submitted to Congress from the Founding until 1950 and previously unpublished archival materials from the First Congress. Historically, the petition process was the primary infrastructure by which individuals and minorities participated in the lawmaking process. It was a formal process that more closely resembled litigation in a court than the tool of mass politics that petitioning has become today. The petition process performed an important democratic function in that it afforded a mechanism of representation for the politically powerless, including the unenfranchised. Much of what we now call the modern “administrative state” grew out of the petition process in Congress. This Article offers three case studies to track that outgrowth: the development of the Court of Claims, the Bureau of Pensions, and the Interstate Commerce Commission. These case studies supplement dynamics identified previously in the historical literature and highlight the integral role played by petitioning in the early administrative state—a role unrecognized in most institutional histories. Rather than simply historical, this excavation of the petition process is distinctly legal in that it aims to name the petition process and to connect it with the theory and law that structure the practice.

Excavating the historical roots of these myriad commissions, boards, and agencies in the petition process provides a deeper functional and textual understanding of the administrative state within our constitutional framework. First, it highlights the function of the administrative state in facilitating the participation of individuals and minorities in lawmaking. By providing a mechanism of representation for individuals and minorities, the “participatory state” serves as an important supplement to the majoritarian mechanism of the vote. Second, it offers new historical context against which to read the text of Article I and the First Amendment. This new interpretation could begin to calm discomfort, at least in part, held by textualists and originalists with regard to the administrative state. Lastly, this Article offers a few examples to illustrate how this new interpretation could provide helpful structure to our administrative law doctrine. With its concern over procedural due process rights, administrative law largely reflects the quasi-due process protections offered by the Petition Clause. This Article explores two areas where the Petition Clause could direct a different doctrinal result, arguing for a stronger procedural due process right for petitioners of the administrative state than that offered by Mathews v. Eldridge and arguing against the Supreme Court’s decision in INS v. Chadha holding the legislative veto unconstitutional.

H/t: Legal Theory Blog

Essays on the History of Parliamentary Procedure

Just out from Hart Publishing is Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine May, edited by Paul Evans, who is the Clerk of Committees in the House of Commons in Westminster:

8 February 2015 marked the 200th anniversary of the birth of Thomas Erskine May. May is the most famous of the fifty holders of the office of Clerk of the House of Commons. His continued renown arises from his Treatise upon the Law, Privileges, Proceedings and Usage of Parliament, first published in 1844 and with its 25th edition currently in preparation. It is known throughout those parts of the world that model their constitutional arrangements on Westminster as the 'Bible of Parliamentary Procedure'. This volume celebrates both the man and his book. Bringing together current and former Clerks in the House of Commons and outside experts, the contributors analyse May's profound contribution to the shaping of the modern House of Commons, as it made the transition from the pre-Reform Act House to the modern core of the UK's constitutional democracy in his lifetime. This is perhaps best symbolised by its enforced transition between 1834 and 1851 from a mediaeval slum to the World Heritage Palace of Westminster, which is the most iconic building in the UK.

The book also considers the wider context of parliamentary law and procedure, both before and after May's time. It constitutes the first sustained analysis of the development of parliamentary procedure in over half a century, attempting to situate the reforms in the way the central institution of our democracy conducts itself in the political contexts which drove those changes.

Table of Contents after the jump.

Weekend Roundup

• How are we only just now learning about Twelve Key, a blog about U.S. archival records by NARA archivist Claire Kuskens? Read about records of claims against the federal government, how to research 19th and early 20th century federal employees, and more.  (h/t @kangborderlaw)

•  Over at Jotwell: Citizens, Aliens, and the Architecture of Exclusion, Allison Brownell Tirres’s review of Kunal M. Parker, Making Foreigners: Immigration and Citizenship Law in America, 1600-2000 (2015).

• Sarah Bond, University of Iowa, on Trump, Mueller And The Ancient History Of Grants Of Immunity and nicely illustrated, in Forbes.

• The Franklin D. Roosevelt Presidential Library and Museum will host a screening of "Witness: The Legacy of Heart Mountain" on Sunday, December 17, 2017.  “The program will begin at 1:00 p.m. in the Henry A. Wallace Center at the FDR Presidential Library and Home. A Q&A with filmmaker David Ono will follow the screening. This is a free public event."

• A Legal Gem in Connecticut's Litchfield Hills. (That would be the American Museum of Tort Law.)

• Submit Your Proposals for the 2018 American Political Science Association's Annual Meeting by January 16th!  The theme: Democracy and Its Discontents.

• The Tobin Project is looking for “talented and motivated individuals to join our collaborative and entrepreneurial team.”  It is “currently accepting applications to the following positions: Research Analyst, Economic Inequality Research Analyst, and Case Writer.”  Btw, check out this notice of panels on Tobin’s edited volume Corporations and American Democracy on November 15-16 in Baltimore and Washington, D.C.

• ICYMI: More on Paul Finkelman's appointment to the presidency of Gratz College. Ray Raphael asks, on HNN, Are We About to Lose Our Unbiased Census?

• From the Washington Post's "Made by History" section: Michael Socolow (University of Maine) on the history of FCC regulations, and Katlyn Marie Carter (Weiser Center for Emerging Democracies at the University of Michigan) on "secrecy in the Senate."

• Update: We posted earlier about the upcoming conference on religious freedom in South Asia (Jan.8, 2018 in Washington DC, right after the AHA). That conference website is now up here.

• A still later update: Mary Beth Tinker, at a reenactment of the argument of her free speech for high school students, sponsored by the Historical Society of the DC Circuit.

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

Weekend Roundup

• UVA Law is digitizing "the 336 legal texts catalogued by the University librarian in 1828."  They are “part of a group of roughly 8,000 legal texts deemed critical for education in law by Thomas Jefferson.”  H/t: The Cavalier Daily.

• From the Washington Post: "Missouri v. Celia, a Slave: She killed the white master raping her, then claimed self-defense" - including a reference to legal historian Martha Jones (Johns Hopkins) and the Celia Project.

• Also in the Washington Post: Barbara Radnofsky on what the founders had in mind when they designed the impeachment process.

• The first panel at this week’s annual meeting of the ABA Section of Administrative Law and Regulatory Practice was organized around Josh Chafetz’s Congress’s Constitution.  Quoting from the organizer Chris Walker’s post on Notice & Comment: “This timely book details the historical foundations for a number of powerful tools at Congress’s disposal—the power of the purse, the contempt power, freedom of speech and debate, and other oversight tools—to rein in the federal bureaucracy and to resolve Congress’s conflicts with the other branches of the government. This panel will discuss how Congress has used and can better utilize these tools to reassert itself in the modern administrative state.”  More.

• We noted the Harvard Law School's Diversity and U.S. Legal History Series as it transpired during the last academic year.  The lectures are now available on the "HLS Talks" webpage. 

• Inequality, Immigration, and the Politics of Populism: A Conference, October 28-29, 2017, at the NYU School of Law, sponsored by the New York Review of Books.

• John A. Ferejohn, NYU Law School, has posted Financial Emergencies, “a study of the use of emergency powers to deal with financial emergencies in revolutionary France and Weimar.”

• ICYMI: A report of a discussion after a screening of “Marshall” at the National Museum of African American History and Culture, in the Washington Post.  Historians explain that access to documents at Indonesia’s National Archives isn’t what it should be.

• Update: For anyone working on the history of criminal law, the new Annual Review of Criminology has a special interdisciplinary article collection on Crime and Society. It includes articles like Malcolm Feeley and Hadar Aviram's "Social Historical Studies of Women, Crime, and Courts." Free access to the issue until Nov. 30, 2017 is available here.

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

Mayhew, "The Imprint of Congress"

Our recent post on Chafetz's Congress's Constitution reminded us that we missed this new release from earlier this year, also from Yale University Press: The Imprint of Congress (2017), by David Mayhew (Yale University). A description from the Press:

What kind of job has America's routinely disparaged legislative body actually done?  In The Imprint of Congress, the distinguished congressional scholar David R. Mayhew gives us an insightful historical analysis of the U.S. Congress’s performance from the late eighteenth century to today, exploring what its lasting imprint has been on American politics and society.  Mayhew suggests that Congress has balanced the presidency in a surprising variety of ways, and in doing so, it has contributed to the legitimacy of a governing system faced by an often fractious public.

A few blurbs:

“An excellent book. Mayhew offers a unique perspective on a critical issue for evaluating the American constitutional system.”—Eric Schickler

“The scope of David Mayhew’s Imprint of Congress alone is simply breathtaking, but the economy of style makes the achievement even more impressive. The end result promises to become an essential ‘vest-pocket’ handbook for anyone interested in American political and policy history—or the nation’s future."—Richard Bensel

More information is available here.

Weekend Roundup

• Washington & Lee University has appointed a Commission on Institutional History and Community to lead the university ”in an examination of how our history — and the ways that we teach, discuss and represent it — shapes our community.”  Its chair is Brian Murchison, the Charles S. Rowe Professor of Law.

• From The Junto: A Roundtable on "How NOT To Write Your Second Book."

• We recently mentioned Josh Chafetz's very timely Congress's Constitution. The blog Take Care recently hosted an on-line symposium on the book, available here. 

• Via In Custodia Legis: word that the Law Library of Congress will commemorate Constitution Day with a book talk by Michael Klarman (Harvard Law). The event will take place at 1:00 p.m. on September 12.

• For readers in and around the New York City, we have word of another book talk of interest: the New York chapter of The American Constitution Society and the New York Legal Assistance Group will host Richard Rothstein to discuss The Color of Law. The event is scheduled for 5:30 p.m. on September 13. (h/t: Torts Today)

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

Chafetz's "Congress's Constitution"

Josh Chafetz, Cornell Law, has published Congress’s Constitution: Legislative Authority and the Separation of Powers, with the Yale University Press:

Congress is widely supposed to be the least effective branch of the federal government. But as Josh Chafetz shows in this boldly original analysis, Congress in fact has numerous powerful tools at its disposal in its conflicts with the other branches. These tools include the power of the purse, the contempt power, freedom of speech and debate, and more.

Drawing extensively on the historical development of Anglo-American legislatures from the seventeenth century to the present, Chafetz concludes that these tools are all means by which Congress and its members battle for public support. When Congress uses them to engage successfully with the public, it increases its power vis-à-vis the other branches; when it does not, it loses power. This groundbreaking take on the separation of powers will be of interest to both legal scholars and political scientists.

Some endorsements:

“A distinguished and authoritative work in the field of U.S. constitutional law as well as in the cross-cutting field of congressional studies.”—David Mayhew, Sterling Professor of Political Science Emeritus, Yale University

"No institution embodies the dysfunction of modern American politics more than Congress. Josh Chafetz's pathbreaking book shows that Congress nonetheless has more powers and more opportunities to govern effectively than most scholars or political leaders realize. A major contribution to legal studies, political science, and, most importantly, American governance."—Rogers M. Smith, Christopher H. Browne Distinguished Professor of Political Science, University of Pennsylvania

"At a time when it is fashionable to dismiss Congress and the entire system of separated powers as broken, Josh Chafetz offers a brilliant reconstruction and defense of both. Rich in historical detail and institutional insight, Congress's Constitution is required reading for anyone interested in how the legislative branch shapes the constitutional order even when it is not legislating."—David Pozen, Professor of Law, Columbia Law School

We've previously noted Professor Chafetz's interview on the New Books Network.

Yin on the Birth of the Joint Committee on Taxation

George K. Yin, University of Virginia School of Law, has posted Codification of the Tax Law and the Emergence of the Staff of the Joint Committee on Taxation

In 1926, Congress created the Joint Committee on Taxation (JCT) and its staff. This article explains how, partly by design but largely by happenstance, the JCT staff helped change the nature of the legislative process. By serving at or near the intersection of three great divides in government — those between the parties, the houses of Congress, and the legislative and executive branches — the staff demonstrated the value of unelected professionals assisting directly in the formation of legislation and led Congress to rely more on its own resources in the legislative process rather than those of the executive branch. This article describes the emergence of the JCT staff from a modest conception much different from its eventual role. The staff’s work on a lengthy and highly technical project — a dozen-year effort to codify the tax statutes — contributed to the growth of its influence and the changes that would take place in the legislative process.

Grant: Negotiating Agreement in Congress

We were recently received the following announcement from Anxieties of Democracy, a project of Social Science Research Council:

The Negotiating Agreement in Congress Research Grants are aimed at scholars who seek to understand the conditions under which political negotiation can be achieved (or not achieved) in Congress and other legislative arenas. The grants provide up to $10,000 of funding for each awardee, to be used for up to one year of research and writing. Applicants must have a PhD in hand by the application deadline and must hold an affiliation with a college or university based in the United States. For more information, please visit [here] or contact us at democracy@ssrc.org.

VanderVelde on Henry Wilson and the 13th Amendment

Lea S. VanderVelde, University of Iowa College of Law, has posted Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment, which appears in the Georgetown Journal of Law & Public Policy 15 (2017): 173-264:

Henry Wilson (LC)

This article explores the extraordinary but rarely recognized contribution of Senator Henry Wilson in accomplishing the passage of the Thirteenth Amendment, motivated as he was by free labor ideology. Wilson played a key role in directing the strategic moves made by Congress to prepare the ground for passage of the Thirteenth Amendment and for its implementation. Born into poverty, Wilson worked his way up as a cobbler, developing along the way a strong commitment to the work ethic and the Republican ‘free labor’ ideology. Free labor ideology informed his opposition to slavery and advocacy on behalf of oppressed workers. Understanding Wilson’s free labor ideology has important implications for understanding the Thirteenth Amendment as a broader and more profound enactment designed to eliminate caste, class, and racial distinctions beyond simply banning chattel slavery. A deeper understanding of Wilson’s thoughts and deeds is valuable to our contemporary debates regarding the amendment and its continuing role in our republic.

CFP: Constraining the Executive Branch

[Via Notice and Comment, we have the following CFP.]

The Chapman Law Review is pleased to invite article submissions on the theme: “Constraining the Executive Branch.” Publications will appear in a symposium edition, and authors will receive an honorarium.

The executive branch is often criticized for overreaching its powers. Legal issues arise regarding constraining such powers through legislation and litigation. There are various tools Congress, the states, and private parties can use to constrain the Executive Branch, each varying in its level of effectiveness and appropriateness.

Two by Ziegler on the Recent Constitutional History of Abortion

Mary Ziegler, Florida State University College of Law, has posted two papers.  The first is The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

The second paper is Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

The Supreme Court’s recent decision in Whole Women’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

Journal of Southern Legal History, Vol. 24

I was thrilled to see, when volume 24 (2016) of the Journal of Southern Legal History landed in my mail folder this week, that it included an article by one of my students, Blake B. Hulnick, Georgetown Law Class of 2015.  Here's the TOC:

Jared McClain, "An Analysis of Charles Pinckney's Contributions at the Constitutional Convention of 1787"

Blake B. Hulnick, "Consumer Crusader: Hugo Black as Senate Investigator"

David Franham, "'A High and Delicate Trust": How Ignorance and Indignation Combined to Expand President Lincoln's Claimed Power to Suspend Habeas Corpus in the Case of John Merryman"

Dalton Windham, "'The White Ribbon Army': Politics and Race Relations of the Georgia Women's Christian Temperance Union from 1880 to 1907"

Jack L. Sammons, "Brainerd Currie at Mercer: Two Versions"

Weekend Roundup

• From the Washington Post: "America got a civics lesson Tuesday night when Senate Republicans used an obscure rule to shut down a speech by Sen. Elizabeth Warren (D-Mass.) that criticized Sen. Jeff Sessions (R-Ala.), the nominee for attorney general." They got a legal history lesson, too -- on the origins of Rule 19. More on the same topic in the New York Times op-ed section, via contributors James Grimmelmann (Cornell Tech) and Jan Ellen Lewis (Rutgers-Newark).

• Have we mentioned that legal historian Jed Shugerman (Fordham) now has a blog? The latest installment dusts off the old English writ of quo warranto and asks how state attorneys general might use quo warranto proceedings today to enforce the Emoluments Clause.

• Ana Delić, Tilburg University, posted a report on the conference  International Law and the Long Nineteenth Century (University of Leuven, November 24-25, 2016), on the blog of the  European Society for Comparative Legal History.

• ICYMI: "Immigrant's Nightmare": The Board Game; Maltese legislation under British rule (a notice of Raymond Mangion’s Constitutions and Legislation in Malta: 1914-1964); Jeff Shesol on when presidents defy the courts; Emma Long on the Pentagon Papers, then and now.

• Which reminds us: On Valentine's Day at 4:30 in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse in Washington, DC: "National Security and Reporter's Privilege," a reenactment of the oral argument in In re Judith Miller, sponsored by the Historical Society of the DC Circuit.

• Also on Valentine's Day, "Denison University’s Department of History welcomes historian and legal scholar Barbara Young Welke presenting 'Law and the Borders of Belonging' at 4:30 p.m. on Feb. 14, in the lecture hall at Burton D. Morgan Center."  More.

• From the Nation: Columbia University's Eric Foner on "What the Fugitive Slave Act Teaches Us About How States Can Resist Oppressive Federal Power."

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