Tani on Drawing on History to Study Administrative Constitutionalism

I've just posted a little article that has been in the works for several years and is now forthcoming in the University of Pennsylvania Law Review, as part of a symposium on administrative constitutionalism. Here's the abstract:

Research on administrative constitutionalism has generally come out of law schools, from scholars specializing in public law. A limitation of the existing scholarship is its relatively thin empirical foundation. Administrative constitutionalism is hard to see because much of what administrators do is hard to see, and because the significance of some administrative interpretations only becomes apparent over time. This article expands the archive, by alerting legal scholars to fine-grained historical research on Americans’ encounters with administrative agencies. This body of work—coming largely out of history departments—is particularly attentive to the experiences of marginalized and non-elite populations. And although the historians writing in this vein have not always emphasized the constitutional aspects of their stories, those aspects are there between the lines. By analyzing two examples—the Freedmen’s Bureau’s interpretation of the Thirteenth Amendment and immigration officials’ interpretation of the Fifth Amendment due process guarantee—this Article demonstrates what historians have to offer the study of administrative constitutionalism, both empirically and normatively. American history, this research reminds us, is about competing constitutional visions. Administrators helped pick winners and losers in an ongoing battle for formal legitimacy.

The full article, titled "Administrative Constitutionalism at the 'Borders of Belonging,'" is available here.

The full symposium will be out later this year, but you can find at least a few contributions now on SSRN, including Sophia Lee's and Greg Ablavsky's.

-- Karen Tani

Tushnet Replies to Shlaes and Blackman on Schechter

Mark Tushnet’s post last month on Balkinization on Justice Gorsuch’s reliance in the Gundy decision upon Amity Shlaes’s account of Schechter Poultry has prompted responses by Shlaes and Josh Blackman.  Tushnet replies in Epistemic Closure and the Schechter Case.

--Dan Ernst

Spaces of Roman Constitutionalism

[We have the following announcement.]

Spaces of Roman Constitutionalism.  26-28 September 2019.  University of Helsinki

From the fora to the assemblies and beyond, public space in ancient Rome was both political and contested, reflecting changing notions of community, citizenship and the values and norms behind them. The purpose of this conference is to explore the political, cultural and legal notions of public space and public realm in Rome. By observing the place of magistrates in the public spaces of Rome and more generally in the ideas behind Republican governance, it seeks to question and unpack the notions that have been built into the concept of Roman republican governance. On one hand we have the notion of Republicanism and public law, which has a rich history of modernizing interpretations and reuses in European history. On the other, there is the equally rich tradition of rituals, ceremonies, religious convictions and beliefs that surround the practices of governance. By examining the spacial aspect, how these were situated and interlinked and how public and private spaces and roles intermingled, we are hoping to shed new light into cultural and social dimension of Roman republicanism and its transformation from the Republic to the Principate. By setting ideas into their dynamic spatial, social and cultural contexts, we hope to subvert the traditional story of Roman constitutionalism.

Keynote speakers of the conference are Harriet Flower (Princeton), Karl-Joachim Hölkeskamp (Cologne), Catherine Steel (Glasgow), and Clifford Ando (Chicago).

The conference is open to all and there is no registration required.  For more information and the programme, please visit [here].

--Dan Ernst

Shane on Executive Power and Criminal Prosecution at the Founding

Peter M. Shane, Ohio State University Michael E. Moritz College of Law, has posted Prosecutors at the Periphery, which is forthcoming in the Chicago-Kent Law Review 94 (2019): 241-265:

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed constitutional text between 1787 and 1789, those Americans enfranchised to vote on its ratification would have brought to their understanding of “executive power” not just dictionary definitions, but also their experience of living under executive power as exercised in Great Britain, in the colonies, and under state constitutions. They would have understood prosecution to be a form of judicial power, and the “original public meaning” of Article II executive power would not have guaranteed presidents the power to control prosecutorial discretion.

--Dan Ernst

Journal of Southern Legal History, Vol. 26

Here’s the TOC for volume 26 (2018) of the Journal of Southern Legal History:

Oral History of Manley F. Brown (2016).  Introduction and interview by Patrick Emery Longan

Clyde Ray, “John Marshall, the Native American Cases, and the Idea of Constitutional Nationalism”

Nathaniel J. Berry, “Justice of the Peace Manuals in Virginia before 1800”

Balkin on the Cycles of Constitutional Time

Jack M. Balkin, Yale Law School, has posted Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time:

Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts – not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments.

Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation.

Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review.

Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective.

Constitutional theories – such as originalism and living constitutionalism – also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.

--Dan Ernst.  H/t: Legal Theory Blog

The Constitutional Legacy of Seneca Falls

Elizabeth Cady Stanton & Susan B. Anthony (LC)

The Constitutional Legacy of Seneca Falls, a podcast of the National Constitution Center, is now available.  It “explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade.” With Erika Bachiochi, Ethics & Public Policy Center, and Tracy A. Thomas, University of Akron School of Law.  Hosted by Jeffrey Rosen.

--Dan Ernst

The Dartmouth College Case Continued

That symposium over at the HistPhil on Dartmouth College v. Woodward, with contributions by Naomi Lamoreau, Evelyn Atkinson, et al. is ongoing.  The latest is by Jane Manners, who this year is an associate in law at Columbia Law School.  Her post commences:

Dartmouth College v Woodward is, as every first-year law student knows, a contract case. Its canonical holding distinguished public corporations from private ones and established that where private corporations are concerned, a legislative charter is a contract, protected from legislative interference by the Constitution’s contract clause. But Dartmouth College has another legacy, which I’ll call its law-of-the-land legacy: the idea that laws ought to be “general and impartial,” and that laws that bestow unique benefits or burdens to particular persons or segments of society are ipso facto illegitimate. Despite the textbooks’ contract clause focus, Dartmouth College’s law-of-the-land legacy has shaped the legislature’s power to advance the public good and its relationship to philanthropy as much as, if not more than, its charter-as-contract holding.

More. 

--Dan Ernst

White on McCulloch and Judicial Statesmanship

Adam White, George Mason University Antonin Scalia Law School, has posted John Marshall's Judicial Statesmanship in McCulloch v. Maryland, which he wrote for “a volume on the 200th anniversary of McCulloch v. Maryland, edited by Gary Schmitt for the American Enterprise Institute”:

Writing on the early American republic, Alexis de Tocqueville observed that federal judges "must not only be good citizens, educated and upright men," but "one must also find statesmen in them." Yet nearly 200 years later, notions of "judicial statesmanship" remain nebulous — and divisive. Nevertheless, both proponents and critics of "judicial statesmanship" seem to largely agree on one thing: "judicial statesmanship" requires a judge to go beyond the law to decide cases.

There is a better way to think of "judicial statesmanship." In his seminal study of statesmanship and party, Professor Harvey C. Mansfield, Jr. observed that "[i]t is not that a statesman is unprincipled or above principle; it is rather that his principle loses its refinement in the translation to public speech, and thence to party program.” This is how "judicial statesmanship" is best understood — not in terms of what the judge adds to the law, but in terms of what the judge declines to add to the law, or at least what the judge declines to say about the law. And this is the statesmanship that Chief Justice Marshall exemplified in McCulloch v. Maryland.

--Dan Ernst

Weekend Roundup

• Over at New Books in Law, Jonathan Gienapp (Stanford University) discusses his book The Second Creation; former guest blogger Kimberly Welch (Vanderbilt University) discusses Black Litigants in the Antebellum American South.

• From the New Legal Realism blog: Malcolm Feeley (University of California, Berkeley) on Frank Remington, Wisconsin, and the influential American Bar Foundation project on the administration of criminal justice in the U.S. (The project was a collaboration with the Ford Foundation, the ABA, and others.) Willard Hurst makes a few cameo appearances.

• Are you up to speed on the due dates for the awards and prizes of the Organization of American Historians?  We ask, because we’re jurying one of them.  DRE 

• The HistPhil forum on the Dartmouth College v. Woodward case continues. Here's a contribution from Evelyn Atkinson (American Bar Foundation doctoral fellow/Ph.D. candidate, University of Chicago).

•  From the Washington Post's Made by History section: Ariela Gross (USC) and Alejandro de la Fuente (Harvard University) on the history of racialized understandings of citizenship; Smita Ghosh (Georgetown University) on migrant detention; Carly Goodman (co-editor, Made by History), S. Deborah Kang (California State University San Marcos), and Yael Schacher (Refugees International) on the power of immigrant rights advocates to protect and enforce the right to asylum; Rebecca Spang (Indiana University) on what the French Revolution teaches us about the dangers of gerrymandering; and more.

• Call for Papers: “Law and Political Economy: Democracy After Neoliberalism,” the inaugural Law and Political Economy Project conference. 

• For a limited time, The Czar and the Slaves: Two Puzzles in the History of International Arbitration, by Bennett Ostdiek and John Fabian Witt is open access in the American Journal of International Law.

• Newly published online in Law and History Review and Cambridge Core: Method and Dialogue in History and Originalism by Logan Everett Sawyer, and “Amongst the Most Desirable Reading”: Advertising and the Fetters of the Newspaper Press in Britain, c. 1848–1914, by Anat Rosenberg.

• ICYMI: Manisha Sinha on The New Fugitive Slave Laws in NYRB.  As previously mentioned (but now the subject of an official HLS announcement), Property law scholar [and Legal Historian] Molly Brady joins the Harvard Law faculty.  A play on McNaughton's Case at the Edinburgh Fringe, via The Scotsman.

• Update: Listen to Sarah Milov discuss the controversy over an NPR segment that used her work without attribution here. Background here. H/t: Emily Prifogle and @womenalsoknowhistory

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

Mikhail on the Original Meaning of Emoluments Clause

John Mikhail, Georgetown University Law Center, has posted The 2018 Seegers Lecture: Emoluments and President Trump, forthcoming in the Valparaiso University Law Review:

The topic for my 2018 Seegers Lecture at Valparaiso University Law School was the original meaning of “emolument” and its implications for President Trump. In this revised and expanded version of my spoken remarks, I begin by discussing the Constitution’s Emoluments Clauses and describing the three emoluments lawsuits against the president that are currently winding their way through the federal courts. I then highlight one of the main points of contention in these lawsuits, which is the constitutional meaning of the term “emolument.” Next, I describe some of the efforts my colleagues and I have made to investigate the historical meaning of this term and explain how our research may impact the resolution of these lawsuits. Finally, I discuss the novel decision issued by a federal district court in July 2018, which held that “emolument” was a flexible term at the founding that referred to “any ‘profit,’ ‘gain,’ or ‘advantage,’” including profits from ordinary market transactions. A second federal judge recently denied the president’s motion to dismiss on the same grounds, setting the stage for what seems likely to be a pivotal issue on appeal in both cases.

--Dan Ernst

VanderVelde on the 13th Amendment and Master-Servant law

Lea S. VanderVelde, University of Iowa College of Law, has posted Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after its Enactment, which is to appear in the William & Mary Bill of Rights Journal 27 (2019): 1079-1112:

In the 19th century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers. Blackstone’s Commentaries was the received common law, from the nation’s early days through the settlement of new states in the American West. Blackstone’s Chapter 14, organized the legal rules into a system of subordination as formal inequality. As the system’s foundation, Blackstone used slavery, rather than partnership or voluntary free labor. Thus, when the nation abolished slavery by the 13th Amendment, the structure’s foundation was implicitly undermined.

Moreover, during Reconstruction, the Radical Republicans, who dominated the post-War Congress, engaged in a sweeping anti-subordination agenda marked by multiple reform initiatives. Oppressive labor systems that they found to be slave-like were deemed “anti-republican.” An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights. Yet, this ethos did not find its way into a revision of all of the subordinating principles in the nation’s common law of master and servant. In the years immediately after its enactment, the anti-subordination agenda lost ground. The 13th Amendment was subject to different interpretations as state courts, analogized more broadly or narrowly, depending upon their state’s position as a former slave state or free state. As a result, the nation’s received common law was never completely reordered upon a new foundation of fully free labor.

--Dan Ernst

Seidman on Populist and Progressive Strands in Liberal Constitutionalism

Louis Michael Seidman, Georgetown University Law Center, has posted Why Bernie is Confused: Populist and Progressive Strands in Liberal Constitutionalism:

Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”

There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of private markets. The solution to this problem is government regulation by elite experts shielded from popular control.

Bernie Sanders speaks as a populist when he complains about the billionaire party; he speaks as a progressive when he advocates Medicare for all; and he speaks as a liberal when he fails to notice the tension between these two views.

This article’s primary focus is on how this contradiction plays out in the context of constitutional law. Populists and progressives had different conceptions of the corruption that constitutional law should address. For progressives, corruption consisted of contamination of government expertise by ignorant and prejudiced mass opinion. In contrast, populists distrusted rationalistic, elite opinion. The corruption they feared was elite government control that led to the oppression of ordinary people by “their betters.”

This article examines the dispute between populists and progressives in the context of the Scopes Monkey Trial, Buck v. Bell, Skinner v. Oklahoma, West Virginia State Board of Education v. Barnette, the Warren Court era, and our present period. A conclusion explores ways in which the conflict between populists and progressives might be resolved.

--Dan Ernst

Greene and Witt to Lead ICH Seminar: Deadline 6/30!

[We're moving this up, because the deadline is Sunday, June 30.]

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, "Rethinking the Twentieth-Century Constitution."  It will be led by Jamal Greene, the Dwight Professor of Law at Columbia Law School, and John Fabian Witt, the Allen H. Duffy Class of 1960 Professor of Law, Professor of History, and Head of Davenport College at Yale University.

Much of our constitutional law today arises not out of the Founding and not out of the Reconstruction Amendments, but out of the great controversies and social mobilizations of the twentieth century. On four Fridays this fall Jamal Greene and John Fabian Witt will lead seminar participants on a guided tour through new literature on the history of the twentieth-century constitution. Topics include the invention of free speech, the making of the modern administrative state, the rise and fall of labor’s constitution, transformations in rights talk, and the significance of constitutional methods such as “originalism.” We will close with a consideration of the constitution’s future prospects.

Friday afternoons, 2:00-5:00 P.M. September 20, October 4 and 18, and November 1. The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until June 30, 2019. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

--Dan Ernst

Gouzoules on the Right(s) to Bear Arms

Alexander Gouzoules, a 2014 graduate of the Harvard Law School, has posted The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context, forthcoming in the University of Alabama Civil Rights and Civil Liberties Law Review 10 (2019): 159-199:

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society.

This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed.

--Dan Ernst.  H/t: Legal Theory Blog

Mortenson on Executive Power

Julian Davis Mortenson, University of Michigan Law School, has posted The Executive Power Clause, which is forthcoming in the University of Pennsylvania Law Review 119 (2019):

Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth-century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security.

This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives — including not just records of drafting, legislative, and ratification debates, but also committee files, private and official correspondence, diaries, newspapers, pamphlets, and other publications—this article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent.

The Founding generation understood “executive power” to mean something both simple and specific: the power to execute law. This authority was constitutionally crucial, but it extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some other authority. It wasn’t just that the use of executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

--Dan Ernst.  H/t: Legal Theory Blog

Harrison on Executive Power

John C. Harrison, University of Virginia School of Law, has posted Executive Power:

This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among Americans when the Constitution was adopted. The executive power is the capacity to use the resources of the government to perform the functions of the government, subject to the affirmative requirements and limitations imposed by law. Executive officials operate in a legal environment of rules that empower and constrain them, but those rules do not come from the executive power itself. They come from elsewhere in the Constitution and laws. Possession of executive power by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests. Military functions are executive, and members of the military are likewise subject to rules that empower and constrain them, including especially the law of war. The President’s status as Commander in Chief makes him the highest commander while leaving him, like all commanders, subject to the law. The article identifies possible constitutional sources of executive policy discretion other than the executive power itself, and explains that presidential control of the executive branch is consistent with the limited conception of executive power it espouses. In addition to being familiar at the time of the framing, the Whig understanding of executive power figured prominently in the Federal Convention's drafting and has been a mainstay of debates about the executive throughout the Constitution’s history.

--Dan Ernst

Blackhawk on "Federal Indian Law as a Paradigm Within Public Law"

As I read Katie Eyer's piece on JOTWELL yesterday -- an admiring review of a recent article by Maggie Blackhawk (Penn Law) -- I was reminded that we had not yet flagged this article for our readers. There is lots of legal history here! Here's the abstract for "Federal Indian Law as a Paradigm Within Public Law," published this spring in the Harvard Law Review.

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform.

More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.

Here's a taste of Professor Eyer's review:

Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Read on here.

-- Karen Tani

Lee on "Our Administered Constitution"

Sophia Z. Lee, University of Pennsylvania Law School, has posted Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present, which is forthcoming in the University of Pennsylvania Law Review.  The article is the product of the symposium The History, Theory, and Practice of Administrative Constitutionalism, held at Penn Law on October 19-20, 2018.

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that administrative constitutionalism may still be the most frequent form of constitutional governance, but it has grown, paradoxically, more suspect even as it has also become far more dependent on and deferential to judicial interpretations.

This article also contends that the history of administrative constitutionalism poses a problem for critics of the modern administrative state who seek to restore administrative law to its 19th-century foundations. These critics hold out constitutional law as uniquely important; it is what powers their arguments that the United States should turn back the clock. And they prefer 19th-century agencies because they depict them as exercising little consequential legal power. But this history suggests that those agencies had the first and often final word on the Constitution’s meaning. These critics also assume that reinstating the 19th-century constitutional order would empower courts to more closely scrutinize agency action. The history presented here instead suggests that returning to 19th-century administrative law would all but eliminate judicial review of the constitutionality of agency actions. Indeed, the burgeoning history of administrative constitutionalism suggests that anyone who wants to ensure that courts review the constitutionality of agency action has to appeal to theories that are rooted in constitutional change not origins, and in 20th- not 19th-century administrative law and judicial practice.

Professor Lee, I believe, coined the term “administrative constitutionalism.”  In any event, this article is an up-to-the-minute state of the field and synthesis of the literature.  If you’re late to the administrative constitutionalism party, start here.

--Dan Ernst

Faber on "An Anti-Federalist Constitution"

The Kansas University Press has released An Anti-Federalist Constitution: The Development of Dissent in the Ratification Debates (May 2019), by political scientist Michael J. Faber (Texas State University, San Marcos). A description from the Press:

What would an Anti-Federalist Constitution look like? Because we view the Constitution through the lens of the Federalists who came to control the narrative, we tend to forget those who opposed its ratification. And yet the Anti-Federalist arguments, so critical to an understanding of the Constitutions origins and meaning, resonate throughout American history. By reconstructing these arguments and tracing their development through the ratification debates, Michael J. Faber presents an alternative perspective on constitutional history. Telling, in a sense, the other side of the story of the Constitution, his book offers key insights into the ideas that helped to form the nation’s founding document and that continue to inform American politics and public life. 

Faber identifies three distinct strands of political thought that eventually came together in a clear and coherent Anti-Federalism position: (1) the individual and the potential for governmental tyranny; (2) power, specifically the states as defenders of the people; and (3) democratic principles and popular sovereignty. After clarifying and elaborating these separate strands of thought and analyzing a well-known proponent of each, Faber goes on to tell the story of the resistance to the Constitution, focusing on ideas but also following and explaining events and strategies. Finally, he produces a “counterfactual” Anti-Federalist Constitution, summing up the Anti-Federalist position as it might have emerged had the opposition drafted the document.

How would such a constitution have worked in practice? A close consideration reveals the legacy of the Anti-Federalists in early American history, in the US Constitution and its role in the nation’s political life.

More information is available here.

-- Karen Tani