Young on Constitutional Regression and the 14th Amendment

Just in time for President Trump’s attack on birthright citizenship: Ernest A. Young, Duke Law, has posted Dying Constitutionalism and the Fourteenth Amendment, which is forthcoming in the Marquette Law Review:

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment’s early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution’s core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment’s “lost years” offer precisely the sense of tragedy that might inspire that cultural shift.

CFP: Constitutional History: Comparative Perspectives

Via the Legal Scholarship Blog, we have the following Call for Papers:

Paper proposals are invited for the Fourth Illinois-Bologna conference on Constitutional History: Comparative Perspectives. The conference will be held in Chicago on April 29 & 30, 2019. The conference is sponsored by University of Illinois College of Law, University of Bologna School of Law, and Johns Hopkins Center for Constitutional Studies and Democratic Development. 

The full call can be found here. Proposals are due by December 15, 2018.

Gienapp, The Second Creation

New from Harvard University Press: The Second Creation: Fixing the American Constitution in the Founding Era (October 2018), by Jonathan Gienapp (Stanford University). A description from the Press:

Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption—a story with explosive implications for current debates over constitutional originalism and interpretation.
When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. 

Through vigorous debates they confronted the document’s uncertainty, and—over time—how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution’s most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.

A few blurbs:

“The Second Creation is a brilliant and timely intervention in American constitutional history. By showing how ‘original intentions’ originated in congressional debates about what the framers and ratifiers originally intended, Jonathan Gienapp forces us to take another long look at what we understand the Constitution to be. His innovative and persuasive study will revolutionize the way lawyers as well as scholars interpret the Founding era.”—Peter S. Onuf 

“Gienapp focuses our attention on the first decade of controversy over the remarkable new invention, a national Constitution. His fascinating and provocative story—how these debates created and imagined the Constitution—is told with great mastery and drama.”—Mary Sarah Bilder

More information is available here. You can also read an interview with Gienapp about the book here, at The Way of Improvement Leads Home. And you can find a symposium on the book over at Balkinization. For example, here is Alison LaCroix's contribution.

Harrison on the Constitution and the Law of Nations

John C. Harrison, University of Virginia School of Law, has posted The Constitution and the Law of Nations, which appears in Georgetown Law Journal 106 (2018): 1659-1705:

Under the original understanding of the Constitution, customary international law features in the U.S. legal system as general law. It is not law of the United States within the meaning of Articles III or VI of the Constitution, and so does not serve as a basis for federal question jurisdiction or override contrary state law. Under the original understanding, the Constitution does not confer the protections of the international law of state-state relations on either foreign states or governments that have been recognized as such by federal political actors. Congress may confer those protections by statute, but in the absence of statute or treaty, they rest on general law. The Constitution’s text indicates that the laws of the United States referred to in Articles III and VI consist entirely of federal statutes. The Federal Convention’s drafting process indicates that members of the convention had that understanding of the text they produced. That process also indicates that the drafters probably understood the laws referred to by the Take Care Clause of Article II to consist of federal statutes. Prominent figures in the ratification debates treated Articles III and VI as using the term “laws of the United States” to refer to statutes. The First Congress drafted the Judiciary Act of 1789 on the assumption that the laws of the United States referred to in Articles III and VI were federal statutes. During the 1793 prosecution of Gideon Henfield for non-statutory criminal violations of the United States’ neutrality, a number of leading figures took the position that the federal courts could entertain prosecutions under unwritten law. It is unlikely, however, that any of them meant to assert that the law of nations was law of the United States within the meaning of Articles III or VI.

Michelman Reviews Klarman's "Framer's Coup"

Frank I. Michelman, Harvard Law School, reviews Michael J. Klarman’s The Framers' Coup, in Constitutional Commentary 33 (2018): 109-28:

This commendatory review of Michael Klarman’s The Framer's Coup takes up for consideration some polemical uses to which the book might be put. One of those might be as a brief in support of calls now heard for a national constitutional convention or other project of major constitutional repair. “[T]hroughout American history,” Klarman reminds us,”political actors have invoked the wisdom and virtue of the Framers as arguments against constitutional change,” while the facts assembled in his new book—about the values, aims, beliefs, tactics, and strategies of those who took controlling parts in the Constitution-making process, about general hazards to rationality affecting the process as a whole, and about the role in these events of sheer accident and luck—can be read as a takedown of the Framing from any high pedestal of reverence it may hitherto have occupied in the minds of readers.

What about more radical implications? Klarman has in the past authored scholarship to question the entire project of constitutionalism, at least of what he has called the “judicially enforceable” type. He has proposed to Americans, for serious consideration as our path of deliverance from a choice between rule from eighteenth-century graveyards and rule by electorally untethered judges, that “we can simply be anticonstitutionalists. That is, we can decide controverted policy questions for ourselves through political struggle (as much of the rest of the world does it), rather than through the edicts of long-dead Framers or relatively unaccountable judges.”

Should we, then, be reading The Framers’ Coup as a brief in support of a general stance of constitutional disparagement? I have doubted it. Setting the Framing on clay feet is one thing; a call for ejection of the resulting Constitution from its place of providing, while it stands, a basic law for the country is quite another thing. The second thing is not logically deducible from the first; and Klarman’s book, to my eye, stops noticeably short of the second—perhaps partly, I suggest, as a result of Klarman's experience in researching and writing this treasure of scholarship.

Weekend Roundup

• Someone, perhaps at the Biddle Law Library, has prepare a very good selected bibliography for that symposium at the University of Pennsylvania on The History, Theory, and Practice of Administrative Constitutionalism, October 19-20, 2018.  And we're not just saying that because works by two of the three LHB Bloggers appear on it! 

• Thanks to John Q. Barrett, St Johns Law, we learned that a video of the symposium Barnette at 75: The Past, Present, and Future of the ‘Fixed Star in Our Constitutional Constellation, held at Florida International University College of Law last week, is available here.  Professor Barrett helpfully provides a time-stamped version of the program if you don't have the time to view the entire event.

• The Franklin D. Roosevelt Presidential Library and Museum and the Mid-Hudson Antislavery History Project will present an author talk and book signing with Susan Stessin-Cohn, coauthor of In Defiance: Runaways from Slavery in New York’s Hudson River Valley, 1735-1831 on Thursday, October 25, 2018 at 7:00 p.m. in the Henry A. Wallace Center at the FDR Presidential Library and Home. 

• There's a lot of legal history in Cambridge University Press's Law and Christianity Series,edited by John Witte, Jr, Emory University.

• From the BBC: "The woman who fought for the right to be a prostitute," a preview of Rohit De's forthcoming book, A People's Constitution: Law and Everyday Life in the Indian Republic.

• News from Aotearoa/New Zealand: "Taranaki legal history was made on Wednesday, with the first ever bar admission ceremony conducted in Te Reo Maori."  More.

• From the Washington Post's "Made by History" section: Amy S. Kaufman on "the medieval defense of Brett Kavanaugh," and more.

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

Yoo on the Presidency and James Wilson

Christopher S. Yoo, University of Pennsylvania Law School has posted James Wilson as the Architect of the American Presidency, which is forthcoming in the Georgetown Journal of Law & Public Policy:

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the use of an advisory council, the veto power, and presidential selection, he adopted a more pragmatic approach than generally recognized. The most dramatic example of this is an event that is almost entirely overlooked in the historical record: Wilson’s break late in the Convention from his consistent support for a unitary executive by proposing an advisory council to advise the president on appointments. While initially seeming like something of a puzzle, the reasons for Wilson’s change of heart become clearer when debates over presidential power are placed in the context of the larger controversies that dominated the Convention, such as the Great Compromise and presidential re-eligibility and selection. This broader frame suggests that Wilson held a more pragmatic, less doctrinaire vision of executive power than is commonly recognized.

Green on the 14th Amendment's Due Process Clause

Christopher R. Green, University of Mississippi School of Law, has posted Our Bipartisan Due Process Clause, which is forthcoming in the George Mason Law Review:

What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length—but in 1862, rather than 1866.

Kessler and Posen on the Equality and the First Amendment

Jeremy Kessler, and David Pozen, Columbia University Law School, have posted The Search for an Egalitarian First Amendment, which is forthcoming in the Columbia Law Review:

Over the past decade, the Roberts Court has handed down a series of decisions that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments. Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today?

After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century "progressive" model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of "informational capitalism" and the "information state." First Amendment Lochernism may reflect contemporary judicial politics, but it has deep roots.

To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories of free speech. Yet on account of their depoliticization and abstraction, among other factors, the canonical theories prove indeterminate when confronted by these anxieties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, enables the creative elaboration of a few basic motifs, concerning the scope and severity of judicial enforcement, the identification and reconciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary.

Kent, Leib & Shugerman on Faithful Execution & Article II

Andrew Kent, Ethan J. Leib, and Jed Handelsman Shugerman, Fordham Law School, have posted “Faithful Execution” and Article II:

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

Magliocca on Corfield v. Coryell

Bushrod Washington (NYPL)

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted Rediscovering Corfield v. Coryell.  “This Article presents new information on Justice Bushrod Washington's circuit opinion in Corfield v. Coryell. My findings are based on the discovery of Justice Washington's original notes on Corfield, which are held by the Chicago History Museum.”

Golove & Hulsebosch on the Law of Nations and the Constitution

David M. Golove and Daniel J. Hulsebosch, New York University School of Law, have posted The Law of Nations and the Constitution: An Early Modern Perspective, which appears in the Georgetown Law Journal 106 (2018): 1593-1658:

Many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more consequential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project that culminated in the Philadelphia Convention. It was the uncertain struggle to ensure that the United States complied with its (or their) treaty obligations and the law of nations that was arguably the most important, and the most consensual, reason for the drafting and ratification of the new Constitution. That imperative shaped the structure outlined in the text, as well as much of the way that judges, executive officials, and even legislators interpreted and administered the Constitution during the first generation of the federal government. The result was a government designed to interact productively with the law of nations. Some of those interpretations, and some aspects of federal administration, became enormously controversial and generated early partisan divisions. But the basic premise—that the law of nations was the law of the land—proved durable, creating a tradition of international “law- mindedness” that deserves more historical investigation than it has so far received. The result is not just a scholarly lacunae. Among many lawyers today, the Founders’ conception of the central position of the law of nations in the American legal order is even less appreciated than their cosmopolitan outlook.

In offering a corrective to this forgetfulness, Professors Anthony Bellia and Bradford Clark, in The Law of Nations and the United States Constitution, make an important contribution to the ongoing dialogue over the Founding. Nonetheless, in our view, the legal theory that Professors Bellia and Clark offer downplays, misses, or misunderstands crucial features of the pertinent history, especially why and how the Founders struggled to interweave the law of nations into the Constitution. These errors and elisions are important, in part for purely academic reasons, bearing on the extent to which their approach accurately portrays a foundational period in U.S. constitutional history. They are also important, however, because they lead Professors Bellia and Clark to reach some sound, but also some unsound, conclusions about important issues of constitutional law.

Administrative Constitutionalism at Penn Law

Our friends at Penn Law, including especially Sophia Z. Lee, have organized an excellent symposium, The History, Theory, and Practice of Administrative Constitutionalism, to be held at the law school on October 19-20, 2018.  Here's its premise:

The United States today faces contentious debates over the constitutionality of federal administrative action. These debates gained steam during the Obama presidency, as congressional gridlock led the President to rely heavily on administrative agencies to advance an ambitious and controversial policy agenda. Across the political spectrum lawyers and politicians charged these agencies with violating individual constitutional rights (such as religious freedom and procedural due process) and structural constitutional constraints (such as the President’s constitutional obligation to faithfully execute the laws). The Trump White House has followed in its predecessor’s footsteps, leading to similar challenges to his administration’s changes to immigration, environmental, educational, and anti-discrimination policy.

Lurking behind these legal arguments is a bi-partisan anxiety about the constitutional status of the administrative state as a whole: the tangled web of agencies responsible for the vast majority of what the federal government does on a day-to-day basis. Despite their enormous power, federal agencies are barely mentioned in the Constitution’s text. Yet they play a central role in the everyday interpretation and implementation of constitutional law. For instance, it was administrators who first struck the balance between the religious rights of employers and the statutory rights to access cost-free contraceptives of their female employees. It is administrators as well who are crafting the Trump administration’s broad interpretations of religious liberty. As these examples suggest, it will often fall to administrative officials far from the public eye to resolve constitutional conflicts caused by a particular law, or to push the boundaries of the law in a constitutionally innovative direction.

In the last ten years, a field of scholarship has developed that sheds new historical and theoretical light on these interlocking issues of administration and constitutional law. Gathered under the moniker administrative constitutionalism, these scholars study the constitutional roots of the administrative state, the role that its agencies play in interpreting, implementing, and transforming constitutional law, and the tools that presidents, legislators, judges, and everyday citizens use to control the administrative state’s constitutional creativity.

This symposium is the first to tackle the timely topic of administrative constitutionalism. Bringing together leading scholars to analyze and debate constitutionalism in and of the administrative state, it will generate cutting edge work on the history, theory, and practice of administrative constitutionalism.

Update: The image is a more recent version of the schedule.

Singer on Indian Nations and the Constitution

Joseph William Singer, Harvard Law School, has posted Indian Nations and the Constitution, which appeared in the Maine Law Review 20 (2018): 199-209:

This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between the United States and Indian nations and most lawyers and law students never study the ways the Constitution treats Indian nations and their citizens differently from non-Indians. It is important for Americans to better understand the ways that the Constitution protects Indian nations from continued conquest and to understand the ways that the Supreme Court has interpreted the Constitution so as to deny equal rights to Indians and Indian nations. Limiting tribal sovereignty or harming tribal property without tribal consent is an act of conquest. It is an act that cannot be deemed consistent with our democratic values. Conquest is an historical fact that cannot be undone, but we can recognize that conquest was incomplete and that tribal sovereignty persists alongside that of the states and the federal government. The least we can do to honor the Constitution is to recognize the reality of conquest while committing not to do it ourselves. We can do that by consulting with Indian nations over matters that concern them; we can honor our treaty commitments. We can follow the lead of Chief Justice Marshall who lamented the fact of conquest and counseled the United States not to do it anymore.

Halberstam on Federalism in the US and Europe

Daniel Halberstam, University of Michigan Law School, has posted “A People for Certain Purposes”: On the History and Philosophy of Federalism(s) in the United States and Europe:

This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

Edling on "An International Interpretation of the Constitution of the United States"

Currently un-gated in the August 2018 issue of Past & Present: Max Edling, "Peace Pact and Nation: An International Interpretation of the Constitution of the United States." Here's the abstract:

The origin of the United States Constitution is a perennial question in American historiography. In the last two decades a new ‘International’ interpretation has appeared that challenges an older ‘economic’ interpretation associated with Charles Beard and the so-called ‘Progressive’ tradition of historical analysis, which dominated scholarship for much of the twentieth century. The two interpretations assume different positions on what is known in American historiography as the ‘dual revolution’ thesis, i.e. the idea that the American founding was at the same time a struggle for home rule and a struggle over who should rule at home. Whereas the Progressive tradition has concentrated on the latter question, the International interpretation calls for renewed investigation of the former. The International interpretation presents the Constitution as a federal treaty that allowed thirteen newly independent and comparatively weak republics to maintain peace among themselves and to act in unison against competitors in the Atlantic marketplace and in the western borderlands of the continental interior. Whereas the Progressives identify the principal outcome of the founding to be the creation of a bourgeois state that faced inwards to make North America safe for capitalism, the Internationalists identify it as the creation of a stronger federal union that faced outward and allowed the United States to stand up to European powers and to conquer the North American continent. Yet despite the focus on the question of home rule, the Internationalist redefinition of the Constitution as a federal treaty also makes possible a fresh view on the old question of who should rule at home.

Read on here.

Chacon and Jensen on Constitutional Referenda in Antebellum US

Mario Chacon and Jeff l. Jensen, New York University Abu Dhabi, have posted Direct Democracy, Constitutional Reform, and Political Inequality in Post-Colonial America:

The ratification of constitutional changes via referendum is an important mechanism for constraining the influence of elites, particularly when representative institutions are biased. While this constitutional mechanism is commonly employed, its use is far from universal. We investigate the determinants of mandatory constitutional referendums by examining the divergence between Northern and Southern U.S. states in the early 19th century. We first explore why states in both regions adopted constitutional conventions as the mechanism for making revisions to fundamental law, but why only Northern states adopted the additional requirement of ratifying via referendum. We argue that due to distortions in state-level representation, Southern elites adopted a norm of discretionary referendums as a mechanism for protecting slave interests. We support our argument with both qualitative and quantitative evidence, including an analysis of votes from various Southern conventions in 1861 on whether to condition secession from the Union on receiving popular ratification.

Baude on Constitutional Liquidation

William Baude, University of Chicago Law School, has posted Constitutional Liquidation, which is forthcoming in volume 71 of the Stanford Law Review:

James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This paper attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.

Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution, but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction” – a real or imputed popular ratification.

While this paper does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.

Weekend Roundup

• WaPo’s Fred Barbash on my Georgetown Law colleague John Mikhail: "Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling."  Update: CNN’s Chris Cillizza’s email interview of Professor Mikhail.  DRE

• Now online on C-SPAN: Last month's National History Center briefing, on the History of US Trade Policy.

• Greg Taylor, University of Adelaide School of Law, has posted The Grand Jury of New Zealand, which appeared in LAWTALK 919 (July 2018): “Little is remembered of the grand jury of New Zealand nowadays, but it existed within living memory – after 118 years of operation starting in 1844, the last grand jury sat in Gisborne on 28 November 1961. As late as July 1961 a grand jury in Hamilton refused to permit a prosecution against an electricity worker for failing to provide the necessary safety equipment and thereby causing the death of a worker.”

• This week in the Washington Post's "Made by History" section: Alison Lefkovitz (New Jersey Institute of Technology/Rutgers-Newark) on "Jordan Peterson and the Return of the Men's Rights Movement."

• ICYMI: Josh Blackman & Seth Barrett Tillman on Lawfare: Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?  Seth Barrett Tillman, What is the "Privilege" of the Writ of Habeas Corpus? on New Reform Club. Michael Klarman in the Harvard Gazette: Are there holes in the Constitution?

• From "Talking Points Memo": Gregory Downs (UC Davis) on the 150-year history of today's voter suppression tactics.

• On the University of Leicester's Carceral Archipelago: Katy Roscoe on 19th-c. Gibraltar convicts and the sea.

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

Allison on Dicey, Magna Carta, and the Rule of Law

John W. F. Allison, University of Cambridge Faculty of Law, has posted Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution, a draft of a chapter accepted for publication in the forthcoming Handbook on the Rule of Law, edited by Christopher May and Adam Winchester (Edward Elgar Publishing).

Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law.