Weekend Roundup

• On Jeffrey Rosen's "Blessings of Liberty" podcast Jed Shugerman and Ilan Wurman discuss the historical arguments underlying Trump v. Barbara and Trump v. Slaughter. Also, Reva Siegel says that Trump v. Barbara "shows popular constitutionalism in action" (Slate).  

•  A report of the conferral by the University of Edinburgh conferred the degree of Doctor of Laws honoris causa upon Jean-Louis Halpérin, “Professor Emeritus at the École Normale Supérieure (rue d’Ulm, Paris) and a most distinguished legal historian of international reputation” (Edinburgh Legal History Blog). 

• 
  In the latest episode of Breaking History," the podcast of the Supreme Court Historical Society,  "Brad Snyder interviews New York Times reporter Clay Risen about his new book Red Scare: Blacklists, McCarthyism, and the Making of Modern America"  (SCHS).

• A CFP for an on-line workshop on for scholars of American Political Development.  

• Jane E. Calvert and Jonathan Gienapp on John Dickinson’s secret effort to prevent the American Revolution (Law & Liberty).

• ICYMI:  David Blight's congressional testimony in defense of the Smithsonian (YouTube).  W. Caleb McDaniel on Why Regional Branches of the National Archives Matter.  A display on the Master of the Rolls at the UK National Archives (CTJ).    Bruen’s history-and-tradition test after Wolford v. Lopez (SCOTUSblog).  Reactions to the Supreme Court of Ohio's "Story of America: This Day in History” (CNO).  More on that exhibit on Arkansas's constitutional history (KUAF).  The Delaware Supreme Court Turns 75 (DPM)

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

Weekend Roundup

• Harvard Law's notice of Tanner Allread, newly appointed to the faculty.

• Andrea Scoseria Katz and Jane Manners have posted “Lost to History”: Uses and Abuses of the Past in Slaughter and Cook" (Just Security).  And see Lev Menand's  "The Federal Reserve Exception to the Slaughter Rule" (SSRN). 

• Yale's notice of Mark Peterson's The Making and Breaking of the American Constitution: A Thousand-Year History” (YaleNews). 

•  Aslı Ü. Bâli's review of Aziz Rana’s The Constitutional Bind (LPE). 

• Over at Balkinization: Alec Ewald (University of Vermont) on why you should put Frederick Douglass in your syllabus.

•  ICYMI: An exhibit on the judicial history of Broward County, Florida (FBN).

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

Weekend Roundup

• 

  William Howard Taft (LC)

  Andrea Scoseria Katz on "Taft at the Beach: What the Supreme Court Misses About a Key Unitary Executive Precedent" (Can We Still Govern?) 

• Michael Dreeben looks back at Humphrey's Executor (Just Security). 

• Martha Jones's illustrated story in the New York Times Magazine on Elizabeth Freeman, who sued for her own freedom, is here. 

• That Modern Criminal Law Review workshop, "Ancient Criminal Law: A Global Perspective," may be viewed here and just heard here.  

• A notice of the "Slavery and the Judiciary Collection" of the Law Library of Congress, which "provides digital access to more than one hundred books and manuscripts documenting issues related to slavery and the courts from 1740 to 1860." Also from the hardworking law librarians of Congress: "Code and Policy in Action: Shared Legislative Targets Between the Yurok and Other Sovereign Entities," and Nathan Dorn, Rare Books Curator, continues his series of posts on Anglo-American natural law theorists with "A Textbook for the Laws of Nature’s God: Thomas Rutherforth’s Institutes."

• On July 16, 2026 at 2:00 PM ET, the Foreign and Comparative Law Webinar Series of the Law Librart of Congress will host the webinar Colonialisation, i, and an Unwritten Constitution: Understanding Aotearoa/New Zealand’s Legal System, presented by visiting scholar, librarian, and American Association of Law Libraries Schaffer Grant recipient, Theresa Buller, who is the subject librarian for law and criminal justice at the University of Canterbury in Christchurch.

• A notice of "Myths and Misunderstandings in Modern Irish History," by Patrick Geoghegan, the 2026 Hardiman lecture at the Supreme Court (Law Society Gazette). 

• A Q&A with Hadar Aviram's Behind Ancient Bars: Narratives of Incarceration in the Hebrew Bible (University of California Press) (UC SF Law). 

• Michael Dorf asks What Weight, If Any, Should Be Given Racist Laws In A History-and-Tradition Test? (Dorf on Law.)

• Nineteenth-Century NY Law and Birthright Citizenship: New York v. Miln (1837) (New York Almanack).  

• A notice of Stacey Patton's Strung Up: How White America Learned to Lynch Black Children (Beacon Press, 2026) (New York Almanack).

• "Reflecting on America’s 250th anniversary: Revolution, the Constitution, and the founders" in the Princeton University Press's list (PUP).  And, while we're at it, Princeton University and the Revolution.  

• Lawbook Exchange's June 2026 list in Scholarly Law and Legal History.   

• State Constitution Roundup: What made Pennsylvania's first ever constitution so radical that it only lasted 14 years?  (WHYY).  1776 NC Constitution exhibit [is] part of ‘Capitol 250’ July 4 fest (Coastal Review).  Bayard v. Singleton: Judicial review’s NC origins (Carolina Journal).  The Hawaii Constitution (State Court Report). 

• ICYMI: HIAS's illustrated history of US immigration (HIAS).  Eugene V. Debs, Constitutional Voice (NCC).  An appreciation of Raphael Lemkin, "the author of the concept of genocide" (UJE).  Benjamin Perry and the fight against secession (Greenville Journal). 

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

Bray and Bamzai on the Origins of Criminal Contempt

Samuel L. Bray, University of Chicago Law School, and Aditya Bamzai, University of Virginia School of Law, have posted Prosecuting Contempt:

Under Supreme Court precedent and the Federal Rules of Criminal Procedure, federal courts may appoint prosecutors for criminal contempt. In this way, and many others, contempt prosecutions depart from the ordinary, adversarial model associated with criminal cases. Because such prosecutions and appointments arguably involve judges seizing the executive power of prosecuting crime, they are controversial, and their lawfulness has been disputed. This Article explores the lawfulness of judicial appointment of prosecutors for criminal contempt. It surveys the historical development of the idea that judges have an “inherent power” of contempt, as well as the historical origins of “criminal contempt” as a distinctive category. It concludes that the power to punish contempts, whether civil or criminal, was historically understood as a judicial power. That conclusion has implications for a variety of questions, including the lawfulness of attorneys appointed to prosecute contempt, whether governmental or non-governmental attorneys. Such attorneys do not exercise executive power, but rather assist the court in the exercise of its inherently judicial power of punishing contempt. The judicial appointment of prosecutors for criminal contempt, which now happens in federal court pursuant to Federal Rule of Criminal Procedure 42, is therefore lawful.

--Dan Ernst 

Weekend Roundup

• 
  Katrina Jagodinsky, University of Nebraska-Lincoln, will be addressing the Department ofHistory and School of Law at the University of Oregon on May 19, from 3:30-5:00 on "Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924," based on her Mellon-funded, NSF supported digital initiative on U.S. Law and Race.

• We have two reports of Maggie Blackhawk's discussion at Dartmouth College on May 6 of "the centrality of American colonialism and Native American history to legal understandings of the United States Constitution (The Dartmouth; Dartmouth News).  

• Lucy Salyer, University of New Hampshire, explains Wong Kim Ark and birthright citizenship on NBC News' "Here's the Scoop" (YouTube).

• Rebecca Tushnet's 2025 Nies Lecture on Intellectual Property at Marquette Law School, entitled  “History and Tradition in First Amendment Intellectual Property Cases” is here.

• That symposium over at Balkinization on Stephen Skowronek's The Adaptability Paradox is now complete and is available here.

• More on the litigation over the executive order curtailing the Presidential Records Act: Jonathan Shaub scores the government lawyers who defended the executive order (Lawfare).  The American Historical Association explains a recent hearing in the dispute.  

• Michael C. Blumm, Lewis and Clark Law School, has posted the preface, table of contents, and first chapter of the second edition of his West Nutshell, A Brief American Legal History, which surveys "American legal history from the Colonial Era to the Trump administration, including an extensive chapter on the first six months of the second Trump administration." 

• John O. McGinnis reviews The Making and Breaking of the American Constitution: A Thousand-Year History by Mark Peterson (Law & Liberty). 

• ICYMI:  Florida’s new history course whitewashes the founders on slavery (Salon)

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

Mazzone on the Removal under the Confederate Constitution

Jason Mazzone, University of Illinois College of Law, has posted The Unitary Executive and the Decisions of 1789 and 1861, which appears in the UC Davis Law Review Online:

Debates over the constitutional power of the President to remove executive officers are almost as old as the Republic itself. These debates continue today in the academic literature — with a vast body of writing on the constitutional basis (if any) for a presidential removal power, its scope, and the authority (if any) of Congress to regulate the power — and at the Supreme Court, which has decided a series of removal cases in recent years, and which has some removal cases on its current docket. Virtually every discussion (regardless of the conclusion reached) of the power of the President to remove executive officers invokes the so-called Decision of 1789. This Essay does also. But it focuses additionally on another important decision: that of 1861. In that year, the states that had seceded from the Union adopted their own permanent constitution. The Constitution of the Confederate States mimicked and repeated (with modifications) many of the provisions of the federal Constitution. It also included something the federal Constitution had not: a specific provision specifying the scope of the powers of the President to remove executive officers. Unusual though it might seem to turn for guidance to the Confederate Constitution — a charter written and ratified by traitors — the exercise has some payoff. It helps us identify some possible conceptions of presidential removal authority (under the federal Constitution) and to assess the relative merits of alternatives. 

--Dan Ernst 

Federal History 18

Federal History 18 (2026) has been published.  Here is the TOC:

Editor's Note 

Benjamin Guterman

Roger R. Trask Lecture

“Girl From the North Country”: Pursuing History and Finding Community in the Nation’s Capital
Kristin L. Ahlberg

Articles

Bind Together Whom? The Internal Improvements Debate and Native Dispossession in the Early Republic
James R. Stocker

1870s House Investigations of Bureau Commissioner Oliver O. Howard and the Retreat from Reconstruction
Peter A. Porsche

Woodrow Wilson, American Power, and International Order at the Paris Peace Conference, 1918–1919
Peter Jackson

A Troublesome Reckoning: The Rediscovery of the U.S. Postwar Cover-up of Unit 731 and the Ethical Threat to Democracy
Emily Matson

Patients-in-Chief: The Public History of the President’s Physical Exam
Jacob M. Appel

Interview

An Interview with Sheyda F.A. Jahanbani
Sean T. Byrnes

Law & Constitution Roundtable

The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, by Alison L. LaCroix
Introduction: Gerald Leonard, Boston University
Review: Austin Allen, University of Houston–Downtown
Review: James A. Gardner, University at Buffalo School of Law
Review: Grace Mallon, Lady Margaret Hall, University of Oxford
Review: Gautham Rao, American University
Author’s Response: Alison L. LaCroix, University of Chicago Law School

Reviews in Legal History

Richard Primus, “Sins and Omissions: Slavery and the Bill of Rights”
Terri Diane Halperin

Roger A. Bailey, “‘Intercourse . . . of the Most Friendly Nature’: The U.S. Navy, State Power, and William Walker’s Invasion of Mexico,     1853–1854”
Stephen J. Rockwell

Anna O. Law, “The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration”
Kelly Marino

Andrea Scoseria Katz, “A Regime of Statutes: Building the Modern President in Gilded Age America (1873–1921)”
Benjamin Guterman    

Benjamin Wetzel, “Theodore Roosevelt and the Unionist Memory of the Civil War: Experience, History, and Politics, 1861–1918”
Evan C. Rothera

Hardeep Dhillon. “The Making of Modern US Citizenship and Alienage: The History of Asian Immigration, Racial Capital, and US Law”
Amelia Flood

Kathryn E. Kovacs. “From Presidential Administration to Bureaucratic Dictatorship” 
Lisa K. Parshall

--Dan Ernst

Ponomarenko on Executive Reorganization

Maria Ponomarenko, University of Texas Law, has posted Revisiting Presidential Reorganization, which is forthcoming in the George Washington Law Review’s annual issue on administrative law:

For much of the twentieth century, Congress repeatedly delegated to presidents the authority to “reorganize” the executive branch. Presidents from both parties used this authority to create agencies, consolidate functions, shift responsibilities across the bureaucracy, and otherwise reshape the administrative state. Congress kept itself in the loop by reserving the right to “veto” proposals with which a majority of legislators disagreed, but the streamlined process for executive reorganization nevertheless smoothed the way for various forms of bureaucratic change. All of this came to an end in 1984 when Congress allowed the last of the Reorganization Acts to expire. Although presidents and legislators from both parties have at times floated the idea of restoring the authority anew, these proposals have never really managed to get off the ground.

This Article examines the 50-year history of executive reorganization—including why it lasted as long as it did, why it came to an end, and why now might be the time to consider restoring the authority anew. It begins by drawing on a review of the 115 reorganization plans proposed between 1939 and 1984 to highlight the role that executive reorganization played in the broader history of bureaucratic change. It demonstrates that although executive reorganization was never the primary mechanism for restructuring the federal bureaucracy, it served as an important residual tool for accomplishing the sorts of structural reforms that were especially likely to stall in the ordinary legislative process—even when they enjoyed majoritarian support.

This Article then revisits the conventional account for why executive reorganization died when it did. Most have assumed that reorganization was yet another casualty of the Supreme Court’s decision in I.N.S. v. Chadha, which invalidated the legislative veto on separation of powers grounds. Yet as Part II makes clear, executive reorganization could very well have survived the legislative veto’s demise. Indeed, shortly after Chadha was decided, Congress and the Reagan administration had identified a plausible post-Chadha substitute in the form of a legislative fast-track process, which would have preserved many of the practical advantages of the earlier regime. What ultimately killed executive reorganization was a broader political an intellectual shift away from formal bureaucratic restructuring, in favor of various “flexible” forms of interagency coordination that promised to accomplish the same objectives at a much lower cost.

This Article concludes by arguing that now may be the time to consider restoring executive reorganization authority anew. It highlights the limits of informal coordination as a substitute for bureaucratic restructuring. And it argues that that executive reorganization has the potential to address, at least to some extent, a growing asymmetry in public law—namely, the degree to which the status quo makes it easier to destroy existing administrative capacity than to build it anew. Finally, it considers the obvious objections to delegating still more power to the executive at a time when presidents already enjoy unmatched authority—but argues that if anything, executive reorganization via a legislative “fast-track” process may offer a promising alternative to the current pattern of governance-by-Executive-Order by making it easier for majorities to effectuate their policy preferences into law.

--Dan Ernst 

Weekend Roundup

• Mary Sarah Bilder, Boston College Law School, delivers the 2026 Maurice and Muriel Fulton Lecture at the University of Chicago Law School on Catherine Macaulay's 1767 pamphlet, "Loose Remarks." 

• The Columbia Law Library tells the law school's history through an exhibit of its "artifacts and treasures" (CLS).  

• And the Princeton University Library has opened the exhibit “Nursery of Rebellion’: Princeton and the American Revolution,” featuring original copies of the Declaration of Independence and the U.S. Constitution (Daily Princetonian).

• From In Custodia Legis: a post on "William Paca, Deliberator and Declaration Signer.

• On April 28, Foley partner Harlan Levy will moderate a discussion with Akhil Reed Amar on The Declaration's Impact on American History, Law and the Constitution at the NYC Bar Series.  Also here.

• Over at Nursing Clio: Dori Hobbie on "British Reactions to the 1992 Irish X Case."

• Greg Ablavsky, Stanford Law, on Native Nations, Federal Indian Law, and the Birthright Citizenship Case (SLS Podcasts).  Also, the National Constitution Center's resource guide for classroom discussions of the birthright citizenship.

• More on that PRA EO: Marty Lederman, Georgetown Law, and Jack Goldsmith, Harvard Law, on who owns Presidential Records (Executive Function Chat).   Christopher Fonzone says that the Presidential Records Act is Constitutional (Just Security).  Gary M. Stern, a former general counsel for the National Archives and Records Administration, is astonished by the executive order (WaPo). 

• ICYMI: Jane Manners and Lev Menand summarize their argument on "The Law of For Cause Removal" (Oxford Business Law Blog).  Live from Penn Carey Law via WHYY: Kermit Roosevelt and Amanda Shanor of the history of the U.S. Supreme Court (YouTube).  Larry Solum takes issue with Richard Primus on enumeration and constitutional interpretation (Legal Theory Blog).

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

Weekend Roundup

• Over at JOTWELL, we've noticed several reviews of interest: Maya Manian (American University Washington College of Law) wrote about Aziza Ahmed's Risk and Resistance: How Feminists Transformed the Law and Science of AIDS (2025); Martha Ertman (University of Maryland Francis King Carey School of Law) reviewed Dorothy Brown, Getting to Reparations: How Building a Different America Requires a Reckoning with Our Past (2026); Jedidiah Kroncke (University of Hong Kong) spotlighted María E. Montoya's A Workplace of Their Own: Rockefeller, Roche, and Labor's Battle Over Industrial Democracy (2026). 

• The California Law Review's podcast has posted an episode on Michael Banerjee's "What Harvard’s Lawsuit Should Have Said" (published in the journal's online companion in August 2025).

• On the history-of-higher-ed theme, Banerjee also alerted us to this interesting Portland Press Herald article, on "How Maine’s elite private colleges sold Wabanaki land to bankroll early construction."  

• Vicki Jackson, HLS, delivered the  2026 Malyi Lecture at the University of Chicago Law School on “Knowledge Institutions and Constitutional Democracy.”   

• Jack Rakove will speak on Theory of Constitutional Failure: The American Case at Notre Dame Law on Friday, April 24, 2026, from 2:00 pm - 3:00 pm.

• Congratulations to Kunal Parker, Miami Law, on his selection as Beatrice Webb Visiting Professor at the London School of Economics! 

• And congratulations to Edward J. Balleisen, the new Provost of George Washington University! (GW Today)

• Nathan Dorn on Lodovico Carerio: Heresy, Lawbooks, and the Inquisition in the Kingdom of Naples (In Custodia Legis).   

• Haris A. Durrani, a Prize Fellow in Economics, History, and Politics at Harvard University, has published Engineering the Law: The Complicated Legal History of a Satellite in the American Historical Association's Perspectives on History.

• "The 1874 Arkansas Constitution and records from the convention that produced it are now available online through a collaboration between the University of Arkansas Libraries and the Quill Project at the University of Oxford" (Arkansas News) 

• Lawbook Exchange's April catalogue of Scholarly Law and Legal History.     

• The National Constitution Center has announced the opening on May 15 of "Governing the Nation, a new permanent gallery exploring the Constitution’s system of separated powers."  Its development was guided by "a distinguished scholarly advisory board representing leading universities and research institutions, ensuring a rigorous and balanced exploration of the separation of powers and federalism," including H. W. Brands, Cristina Rodríguez, Yuval Levin, Michael Klarman, Gail Heriot, and Ilan Wurman.

• Deborah Rosen reviews Andrew Fede's A Degraded Caste of Society in the Journal of Southern History.

• That E.O. on the PRA:  The American Historical Association and American Oversight file suit (CBS News).  The Trump Administration Is Trying to Erase Its Own History (Atlantic Daily).  Joyce Vance with the court filing (Civil Discourse).  The AHA's notice of the lawsuit.

• More on Birthright Citizenship: Steve Vladeck, Georgetown Law, on the "pitched battle within the legal academy over the fairly transparent efforts of a small cohort of right-wing law professors to provide a fig leaf of historical support for the Trump administration’s legally and morally odious position in the birthright citizenship case" (One First). Philip Hamburger, Columbia Law, on Allegiance, Birthright, and Citizenship (Law & Liberty).  For a brief time only, you may read, open access, the introduction to Anna O. Law's Migration and the Origins of American Citizenship, here.

• ICYMI:  In the National Constitution Center's series, "Constitutional Voices": W.E.B Du Bois and Elizabeth Cady Stanton.  Kevin Kruse rethinks the Civil Rights Movement (Campaign Trails).

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

ICS Seminar: Presidential Power

[We have the following announcement from our friends at the ICS.  DRE]

The White House (LC)

The Institute for Constitutional Studies at The George Washington University Law School is pleased to announce another seminar for advanced graduate students and junior faculty:

Constitutional Controversies: Presidential Power

Disputes about the breadth and limits of the president’s constitutional powers have been recurrent throughout our nation’s history. This discussion-based seminar will explore a series of “constitutional moments” that relate to presidential authority. After examining debates over the structure of the executive branch eventually adopted in Article II, we will consider a variety of constitutional disputes about presidential power, focusing particularly on events during the Washington, Jefferson, Jackson, Lincoln, FDR, Truman, Nixon, and Trump administrations.

Instructors.  Maeva Marcus, a past president of the American Society for Legal History, is Research Professor of Law and Director of the Institute for Constitutional Studies at the George Washington University Law School. She serves as the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Author of Truman and the Steel Seizure Case: The Limits of Presidential Power, she also edited the eight-volume series The Documentary History of the Supreme Court of the United States, 1789-1800 and Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789.

Steven Steinbach, GWU Professorial Lecturer in Law, taught United States History and American Government courses and served as History Department Chair at Sidwell Friends School in Washington, DC. Previously he was a partner in the Washington, DC, law firm of Williams & Connolly LLP, where he specialized in criminal and civil litigation.

Meeting Time. Monday evenings, 6-8 pm

Dates.  August 31; September 14, and 28; and October 5, 12, 19, and 26, 2026.

Location. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. The classroom location will be communicated at a later date.

Application Process.  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 curriculum vitae 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 icsgw@law.gwu.edu until August 23, 2026. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution.  Begun with the assistance of a challenge grant from the National Endowment for the Humanities, the Institute is located at the George Washington University Law School.  To fulfill its mission, the Institute’s seminars explore the important role the Constitution has played in shaping American society.

Weekend Roundup

• An alarming opinion of the Office of Legal Counsel of the US Department of Justice advising White House Counsel that the Presidential Records Act is unconstitutional.  WaPo's story is here.

• 
  Having written about two thirds of a history of a law school, word of a new contribution to the genre always intrigues me.  Here's a notice of Legal Education at the University of Virginia: Tradition and Transformation (University of Virginia Press).  DRE

• In the American Prospect: Felicia Kornbluh (University of Vermont) writes about the Supreme Court's recent decision in Chiles v. Salazar (involving a Colorado ban on "conversion therapy"). The piece also quotes legal historian Marie-Amélie George (Wake Forest University Law School). 

• Via Brian Rosenwald: "Made by History" has a new home. Going forward, it will partner with the Philadelphia Inquirer. New pitch email: madebyhistory@inquirer.com.  

• On Friday, April 10, Alejandro de la Fuente, Harvard University, will deliver the sixteenth annual Presidential Lecture at Tufts University on Slavery, Freedom, Race, and the Law in the Americas.  The lecture will be based on his and Ariela J. Gross’s book, Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (THR).

• Over at Divided Argument, William Baude hosts a roundtable with Christian Burset, Jonathan Green, and Ryan Snyder on their recent articles, which Baude describes as some of the best contributions to a "recent round of scholarship on history and tradition in legal interpretation."    

• And over at Modern American History, Sarah Seo hosts a roundtable of historians to discuss  "the benefits of and challenges to translating historical scholarship for a legal audience."  With Laura Edwards, Jennifer Mittelstadt, Samuel Erman, Nathan Perl-Rosenthal, Maggie Blackhawk and Ned Blackhawk.

• G. Edward White discovers who pranked the U.S. Supreme Court "by filing a phony cert petition challenging an absurd DC noise ordinance" (Oyez).

• That symposium over at Balkinization on Stephen Skowronek's Adaptability Paradox continues, with, among other contributions, Jeremy Kessler's Material Foundations of American Constitutional Development. 

• The latest issue of the Journal of American History includes several articles of interest to legal historians, including One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr, by Alma Steingart, which shows how "litigants, Supreme Court justices, judges, and mathematical experts struggled to align the theoretical concept of political representation with mathematical notions of equality" in the malapportionment cases of the 1960s. 

• The NYT review of Mark Peterson's The Making and Breaking of the American Constitution: A Thousand-Year History (Princeton University Press) and a blog post by the author.

• The April 2026 newsletter of the Historical Society of the District of Columbia Circuit is here. 

• More on Birthright Citizenship.  John Yoo says that it has a long historical precedent (AEI).   Kate Masur  "Fact-Checks President Trump’s Birthright Citizenship Order" (CBS Chicago).  John Mikhail on Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark (Balkinization).  Yet another dispatch from the war between the law professors on the history of the citizenship clause.  (Courthouse News Service).  And has the distance between law professor Bluesky and NYT opinion page ever been shorter? 

• ICYMI: A new book on Sarah Keys Evans, "The Black Veteran Who Desegregated Interstate Buses" (Mother Jones).  Tom Lee on the Declaration of Independence at 250 (Fordham Law). A Century of Colonial Tariffs (LPE Project).  High school students explore Münster’s legal history (Universität Münster).

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

Ackerman on the Democratic Basis of Humphrey's Executor

Bruce Ackerman, Yale Law School, has posted Barrett’s Red Flag: Why the Court Should Order Re-argument in Trump v. Slaughter:

William E. Humphrey (LC)

While there are a host of essays dealing with the Slaughter and Cox cases presently under consideration by the Supreme Court, this is the first one exploring a fundamental point about Humphrey’s Executor that was advanced by Justice Amy Coney Barrett in her remarkable interventions during December’s oral argument in Slaughter. She emphasized that, in gaining unanimous support for Humphrey’s Executor in 1935, Justice Sutherland was building on the successful construction of a series of independent agencies by both Democratic and Republican Administrations over the preceding half-century -- beginning with Grover Cleveland’s breakthrough success in gaining Congressional approval for the nation’s first independent agency: the Interstate Commerce Commission in 1887. As Justice Barrett pointed out, Cleveland’s presidential successors built on his landmark precedent to gain repeated Congressional support for a wide range for agencies that continue to play a crucial role in today’s America – including the Pure Food and Drug Administration (Theodore Roosevelt), the Federal Trade Commission (Woodrow Wilson), and the Federal Communications Commission (Calvin Coolidge). Since Democratic and Republican Administrations profoundly disagreed on a host of other fundamental issues, their repeated and bipartisan affirmation of expert agencies as a “fourth branch of government” was even more remarkable.

As a consequence, Justice Barrett suggested that this bipartisan consensus provided a distinctively democratic foundation for Justice Sutherland’s unanimous opinion in Humphrey’s Executor.      After all, it was announced in March of 1935 when Sutherland was refusing leading his six Lochnerians in an escalating constitutional assault on the activist regulatory state – despite the eloquent dissents of Brandeis, Cardozo and Stone. Nevertheless, these bitter disagreements did not lead the Lochnerians to challenge the legitimacy of wide-ranging regulation of the market-economy by independent agencies – since American voters had repeatedly vindicated a bipartisan effort to create independent agencies with the requisite expertise required to confront the scientific and industrial revolutions in a responsibly democratic fashion.

Justice Barrett made these points during the give-and-take of oral argument in the Slaughter case. Unfortunately, however, the lawyers for Rebecca Slaughter and Donald Trump were not prepared to respond with sophisticated analysis of the constitutional significance of the half-century of history that she was emphasizing.

It happens, however, that I have spent a great deal of time exploring these issues in preparation for my multivolume series, We the People – and believe that it powerfully supports Justice Barrett’s interpretation of its constitutional significance. To be sure, I expect this essay to provoke serious critiques, as well as significant elaborations, of the themes I present. Indeed, this is precisely why I believe that the Court should defer its final decision in Slaughter and Cox so as to give it the opportunity to make a genuinely thoughtful decision on an issue which will profoundly shape the course of American government for generations.

--Dan Ernst

Sobkowski on Trump and Youngstown

Patrick J. Sobkowski, Marquette University, has posted Presidentialism at the Highest Ebb: Executive Power in the Age of Trump, which is forthcoming in the University of Dayton Law Review:

On July 1, 2024, the Supreme Court decided Trump v. United States. In a 6-3 decision, the Court held that presidents are absolutely immune from criminal prosecution for official acts taken pursuant to his “conclusive and preclusive” constitutional powers. Trump represents a watershed moment in the Supreme Court’s separation of powers jurisprudence. Critics worried that the Court’s decision put the president above the law. Because Trump creates a constitutional rule that places the president’s powers above those of Congress, the decision presents an interesting opportunity to contrast it to another famous separation of powers decision.

Youngstown Sheet & Tube Co. v. Sawyer is perhaps the most important separation of powers case the Supreme Court has ever decided. After President Harry Truman decided to seize the nation’s steel mills to avert a labor strike, the Court struck down his executive order as beyond the powers of the president. The Court’s decision in Youngstown stands for the propositions that (1) the president is not above the law, even in national emergencies; and (2) much of the president’s power flows not from implied or inherent constitutional authority, but from statutory authorizations from Congress.

This Article presents the first comprehensive comparative analysis of Trump and Youngstown. A close reading and attention to the historical and political context surrounding both cases reveal both striking similarities and differences. I employ archival evidence to shed light on the arguments presented by the Truman administration in defense of the seizure, as well as public reaction to the decision. The Court’s shift from functionalism to formalism in the period between the two cases also carries important implications for the separation of powers going forward. 

--Dan Ernst 

Weekend Roundup

• Congratulations to Hardeep Dhillon (University of Pennsylvania), who received the Early Career Achievement Award from the Association for Asian American Studies.  

• The University of Nebraska-Lincoln's notice of Katrina Jagodinsky's NEH grant to "reveal [the] untold history of habeas corpus" (Nebraska Today).  

• Overt at Jotwell, Marin Levy reviews Kevin Arlyck's The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (2025). 

• "Reclaiming the Founders’ Frameworks": Stanford Law's notice of Jud Campbell. 

• We've learned of several historians' briefs in the birthright citizenship case, Trump v. Barbara. This one is by Jed H. Shugerman and Evan Bernick, and this one, prepared in cooperation with the Brennan Center for Justice, is by Martha S. Jones and Kate Masur.  Eric Muller's brief describes the recognition of the birthright citizenship of the children of interned Japanese parents without allegiance to the United States.  Keith Whittington's brief includes the heading, "Revisionist History Cannot Hold Water."  And the Cato Institute weighs in here.

• A recording, with a very substantial timeline, of the American Historical Association's congressional briefing on the history of vaccines, with Elena Conis, David Oshinsky, and former ASLH president Michael Willrich. 

• “The Rule of Law and the Common Good,” a conference on March 12 and 13 at Boston College, "will explore the synergy between legal theory and Catholic social thought."

• "A short piece for lay readers" on Youngstown by William Baude, University of Chicago Law.  

• Mary Arden, Lady Arden of Heswall, the former Justice of the Supreme Court of the United Kingdom, will lecture on Magna Carta on Friday, April 24, at Soulton Hall, Shropshire (Star). 

• The Historical Society of Michigan is hosting the virtual event The 1962 Michigan Constitutional Convention: Policy, Politics, and Citizen Engagement, with Doug Brook and Aria Dwoskin, on Tuesday, March 3, at 12:00 p.m.  Free for members; $7 for everyone else.

•  ICYMI: A report of a panel on the New Hampshire Constitution of 1776, with Lorianne Updike Schulzke (Concord Monitor).  The New York State Bar Association notes its sesquicentennial (NYSBA).  Eric Segall argues that "If 'It Takes a Theory to Beat a Theory,' Originalism Loses" (Dorf).  Robert Morton Duncan, the first Black justice of the Supreme Court of Ohio (CNO).

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

Manners and Menand on the Removal Power

Jane Manners, Fordham University, and Lev Menand, Columbia Law School, have posted The Power to Remove For Cause:

This Article reconstructs the common law of for cause removal in the United States. Drawing on extensive new analysis of state and federal materials, it shows that legislators typically paired fixed terms in office with “for cause” removal language to strike a balance: to protect officers from political termination while enabling the discharge of officials unable to carry out their duties effectively. Where a statute conferred a fixed term and authorized removal “for cause,” nearly all courts treated removal as an adjudicatory act—requiring notice, an opportunity to be heard, and de novo judicial review of the legal sufficiency of the asserted cause. By contrast, in schemes lacking fixed terms, some courts treated “for cause” language as merely admonitory, leaving process and review to political actors. Building on these findings, this Article recovers the significance of Reagan and Shurtleff, two largely forgotten Supreme Court cases from the early 1900s. These decisions form the doctrinal foundation on which much of the federal administrative state was subsequently built including institutions like the Federal Reserve Board. Our recovery provides a framework for evaluating ongoing disputes between the President and federal administrators. It cuts strongly against the government’s current position that “for cause” removals are nonreviewable and can be conducted without formal process—and offers concrete legal bases that courts today can use to police the outer limits of presidential removal power.

--Dan Ernst 

Price on Congress's "Power of the Purse"

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

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

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

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

--Dan Ernst

Baronia et al. on Private Enforcement at the Founding

Nitisha Baronia, Jared Lucky, and Diego A. Zambrano have published Private Enforcement at the Founding and Article II in the California Law Review:

Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law—from environmental and antitrust law to civil rights and securities law—the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Scholars and originalist judges are, for the first time, seizing on this apparent contradiction to argue that this mode of “private enforcement” may be an unconstitutional delegation of executive power. In TransUnion v. Ramirez, the Supreme Court observed that a “regime where Congress could freely authorize unharmed plaintiffs to sue defendants” would “infringe on the Executive Branch’s Article II authority.” This, along with invitations by Justices Alito and Thomas, ignited a series of lower court cases and historically grounded critiques of private enforcement. In an emblematic case, Circuit Judge Kevin Newsom drew on TransUnion and other cases to argue that “Article II’s vesting of the ‘executive Power’ in the President . . . prevents Congress from empowering private plaintiffs to sue for wrongs done to society.”

This emerging “Article II Challenge” relies, at its core, on a particular reading of Founding Era history and the original meaning of the Vesting Clause. Challengers argue that the Take Care Clause’s command that the President “shall take care that the laws be faithfully executed,” combined with Founding Era history, establishes that public rights claims—those seeking civil penalties or enforcement of regulatory violations against society—must be enforced exclusively by the executive branch. If the Supreme Court embraces this argument, hundreds of statutory schemes and thousands of claims will crumble.

This Article provides a historical corrective and refutes the emerging Article II Challenge. Our original historical investigation of “penal statutes”—a category of Founding-Era regulatory legislation that anticipated modern private rights of action—uncovers the deep constitutional foundation of this tradition of private enforcement. We offer three key historical contributions. First, we demonstrate that Founding Era lawmakers passed reams of statutes empowering private plaintiffs to sue for wrongs done to society, at both the state and federal levels. Private enforcement of regulatory law was ubiquitous in England, colonial America, and the Early Republic, a broader legal history that originalist proponents of the Article II Challenge have overlooked or misunderstood. Second, we show that post-ratification contemporaries saw no conflict between executive power and private enforcement, even when these suits vindicated public rights. Third, we reveal that the Crown, governors, and presidents could not control private penal statute claims through the writ of nolle prosequi or other mechanisms. We demonstrate this by surfacing a previously neglected 1791 case in which President Washington and Secretary Hamilton concluded that the President could not control civil litigants seeking statutory penalties, even when they proceeded nominally on behalf of the United States. This historical evidence weakens both the Article II Challenge and the “unitary executive” theory because it shows that Congress was free to empower private plaintiffs to execute the law. We then supplement those historical insights with an analysis of contemporary legal doctrines governing executive control over private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions. Our proposed constitutional test would leave most private enforcement schemes untouched. Ultimately, this Article provides a comprehensive historical and doctrinal defense of private enforcement writ large.

--Dan Ernst

Sunday Roundup

• NYU Law's notice of Ashraf Ahmed, Lev Menand, and Noah Rosenblum's article, "The Making of Presidential Administration,” upon its naming as winner of the annual Award for Scholarship in Administrative Law from the American Bar Association Section of Administrative Law and Regulatory Practice. The notice also includes a Q&A with Rosenblum. 

• Historical research figured prominently in the decision of Judge Chad F. Kenney, Eastern District of Pennsylvania, turning aside a challenge to the qui tam provisions from the False Claims Act on unitary executive grounds (JDSupra). 

• A notice of UC Berkeley professor David Henkin's legal-history-laden course on love, sex and marriage. 

• In March, SWOP NSW will host walking tours of Sydney’s historic "red light district."  “With 8 speakers each evening, the tour will cover both the personal anecdotes of those involved in sex work and the legislation that has shaped their lives. Speakers will share their stories on various topics, including current, historical, and future laws that aim to protect sex workers, as well as the advocates who have been instrumental in achieving these legal advancements." 

• Vice President Mike Pence and former Deputy Assistant to the President Greg Jacob are teaching the course, The Character of the American Constitution, at George Mason’s Schar School of Policy and Government.  The first class “walked students through the origins of the Declaration of Independence, exploring what the Declaration meant and where the writers got the ideas.”  (GMU).

--Dan Ernst 

Weekend Roundup

• Nathan Dorn, the Curator of Rare Books at the Law Library of Congress, on  Hippolytus de Marsiliis: The First Criminal Law Professor and His Books (In Custodia Legis).  

• Congratulations to legal historian Jennifer L. Mnookin upon her appointment as president of Columbia University! (Columbia News).

•  History, Tradition, and the Constitution (Claude's, that is) (Dorf on Law).  

•  "U.S. Territorial Expansion: The Constitutional Roles of Congress and the President," a Congressional Research Service Report.   

• Righting the Wrongful Conviction and Execution of Daniel Sampson in Halifax in 1935, an event at Dalhousie's Schulich Law School on February 5, 2026, at 07:00 PM.  The event will be recorded and posted to YouTube. 

• The Virginia Tourism Corporation has launched a new Virginia Civil Rights podcast (WRIC). 

• Lawbook Exchange's January 2026 catalogue of Scholarly Law & Legal History is here. 

• A conversation with Jill Lepore on We the People: A History of the U.S. Constitution (W.W. Norton, 2025) (BC Law).

• ICYMI: Tal Fortgang on whether Traditionalism can be Originalist (SCOTUSblog).  Molly Brady, HLS, on debates from 19th-century state conventions that reveal why some constitutions allow takings for “private use" (State Court Report). Madiba K. Dennie on how originalist law professors get birthright citizenship wrong (Balls & Strikes).  An Ohio Supreme Court landmark: Rogers v. Toni Home Permanent Hair Co. (1958) (CNO). 

• Update: UVA Law's notice of G. Edward White's selection as Editor of the Journal of Supreme Court History. 

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