Weekend Roundup

• Legal historian Tomiko Brown-Nagin has been appointed dean of the Stanford Graduate School of Education. Stanford's notice is here.
   
• Over at JOTWELL: Bethany Berger (Iowa College of Law) spotlights Lila Teeters Knolle's Indians Now Taxed: Citizenship and Taxation in Settler-Colonial South Dakota, 44 J. Am. Ethnic History 44 (2025); Lisa Owens (UMass Dartmouth) flags K-Sue Park's Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, 133 Yale L.J. 1487 (2024). 

• From In Custodia Legis: "Murder, He Signed? The Unexpected Death of A Declaration of Independence Signer." 

• We have previously posted about Christina Kexel Chabot's "The Interstitial Executive: A View from the Founding," forthcoming in the BYU Law Review. She has now posted an updated version, which includes historical evidence that bears directly on the Supreme Court's recent decision in Trump v. Slaughter. 

• Nursing Clio is spotlighting undergraduate writing this summer. Here's a post on "Registration of Maternity Homes Act, 1934: Institutional inadequacy and indifference in Irish maternity homes," by Whitney Cowan (St. Olaf College). 

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

WMQ Forum on the Dickinson-Barclay Documents

The William and Mary Quarterly has published a Forum on the "Dickinson-Barclay documents." From the introductory essay, by Jane E. Calvert (John Dickinson Writings Project) and Jonathan Gienapp (Stanford University):

This Forum introduces previously unknown documents written by John Dickinson, the leading American revolutionary statesman, in mid-1775 and explores their historical significance. The documents reveal one of the last attempts to prevent American independence and the secret diplomatic back channels used to carry it out. There are four documents: two lengthy letters from Dickinson to David Barclay Jr., a British merchant, and two nearly identical drafts of a legislative act for Parliament to adopt to resolve the imperial crisis and restore harmony in the empire. An introductory essay by Jane E. Calvert and Jonathan Gienapp places these documents in their original context. Five subsequent essays interpret their deeper significance: Calvert shows how Dickinson's letters undermine John Adams's later portrayal of the Second Continental Congress; Gienapp traces continuities between Dickinson's struggle to preserve the British Empire and similar attempts to hold together the new American federal union; David Como situates Dickinson's peace bid in the context of contemporary British politics and previous failed reconciliation attempts; William B. Ewald explores how Dickinson used ambiguous wording and punctuation in his draft act to navigate the irreconcilable principles of the two sides; finally, Jack N. Rakove argues that Dickinson occupied an increasingly idiosyncratic political position, but his bid for peace ultimately failed because Britain's leaders would not rethink their inflexible imperial policy. 

The full issue is available here. And according to Prof. Gienapp (via Bluesky), "the WMQ has generously made the issue open access for the next month." 

-- Karen Tani 

Gordon on Church and State in Early New York

Sarah Barringer Gordon, University of Pennsylvania, has posted The Holy Cause: Church and State in Revolutionary and Early National New York:

This article explores a key outgrowth of the American revolution in the law of church and state. The careers of Presbyterian pastor John Rodgers of New York and his congregants bridged pre- and post-revolutionary debates on the law of religion. In early 1784, the inaugural New York State legislature passed a game-changing law, introduced by one of those congregants, which allowed all “religious societies” to incorporate.

The new law followed decades of controversy over whether non-Anglican religious organizations could incorporate in the colonies. Just months after the British evacuated, New York transformed an Anglican privilege into a general benefit. The law also mandated significant lay control, vesting elected trustees with authority over salaries, decisions to buy and sell, and more.

Other states followed New York’s lead. Lay trustees controlled church finances and property: they became partners with local governments in state-building infrastructure, as they founded universities, hospitals, publishing houses, libraries, etc. Some religious institutions grew faster than others in this expansive climate. Presbyterians’ conservative standards meant that more nimble groups, especially Methodists, could capitalize on the opportunities offered by new settlements in upstate New York and beyond, where revivals burned hot as American settler colonialism exploded in the early republic.

--Dan Ernst 

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. 

Schwartz on Compact Theory and the US Constitution

David S. Schwartz, University of Wisconsin Law School, has posted The Birth of Compact Theory, which is forthcoming in the Journal of American Constitutional History:

"Compact theory" is the idea that the U.S. Constitution is a compact of the states: the act of sovereign states rather than that of "We the people of the United States." Compact theory interprets the Constitution as a confederative treaty according to international law principles of treaty interpretation: construing its grants of power narrowly, disfavoring implied powers and implied waivers of sovereign rights, and affording to each party to the compact the right to judge for itself whether the compact has been infringed. When was it first deemed plausible to interpret the Constitution according to these "confederationst" principles, as a compact of the states? This question is worth asking, not only for its intrinsic historical interest, but also for its implications for constitutional interpretation at a time when originalism has become so prominent. Historians have either ignored this question or simply assumed that compact theory began with the Virginia and Kentucky Resolutions of 1798, ghost-written for those two state legislatures by James Madison and Thomas Jefferson to protest the Alien and Sedition Acts of that year. But none have inquired into the provenance of compact theory ("its history before 1798") except for a handful of revisionists, who challenge the conventional assumption by arguing that a compact-theory interpretation of the Constitution was present throughout the founding. This article provides the first detailed account of the emergence of compact theory. Confirming the previously unsupported conventional belief, I argue that compact theory was pushed into the range of plausible constitutional discourse (the "Overton window" of constitutional interpretation) by the Virginia and Kentucky Resolutions. Although hints of a confederationist interpretation of the Constitution were offered as part of Federalist propaganda during the ratification campaign, strict constructionists did not deem such an interpretation plausible for the next decade. Compact theory was not argued in any of the salient constitutional debates of 1788-1798"such as the debate over the First Bank of the United States"where strict constructionists or "enumerationists," had a strong incentive to develop compact theory. Only when the crisis of the 1798 Alien and Sedition Acts motivated Jefferson and Madison to assert that the Constitution was a compact of the states, did compact theory first emerge. 

--Dan Ernst 

Weekend Roundup

• In Law & Liberty, Dennis Weiboldt (J.D., Ph.D. candidate, Notre Dame) writes about "Bob Jones's Warning." "By recalling the circumstances under which Bob Jones University v. United States reached the Court, both conservatives and progressives will find lessons about the perils that accompany the aggressive use of executive power to reform American colleges and universities." 

• 
  Rohit De and Ornit Shani have received the 2026 ICON-S Book Prize to historians for Assembling India’s Constitution: A New Democratic History (American Bazaar). 

• The Docket's interview of Anna O. Law about her book, Migration and the Origins of American Citizenship (Oxford University Press, 2026) Ilya Somin's Jotwell review of the book. 

•  An update on and review of the Constitutional History Project of the American Historical Association (AHA).    

• Regnat Populus: Digitizing 190 Years of Arkansas Constitutional History opened at the Mullins Library on the University of Arkansas campus (KUAF). 

•  The Morris/Sussex Vicinage of New Jersey Courts recently opened a self-guided exhibit on more than 270 years of Morris County's legal and civic history.

• On September 10 and 11, Lafayette College will host Democracy: Past, Present, and Future, a symposium featuring plenary talks by Hélène Landemore, political science at Yale, and Akhil Reed Amar, YLS, with a series of panel discussions, including more than twenty members of the Lafayette faculty.  

• The June 2026 issue of the Journal of American History has two articles of special interest to legal historians: The Empire of Military Necessity: General Orders No. 100, Atrocity, and the Law of Occupation between the Civil and Philippine Wars, by Justin F. Jackson and H. R. Haldeman, Dynastic Politics in California, and the Dismissal of University of California President Clark Kerr by Nick Fischer. 

• A series of satirical paintings of legal professionals by "the contemporary artist and fabulist Cassou."

• Lawbook Exchange's July catalog of Scholarly Law & Legal History. 

• ICYMI: David Blight on DJT and the Smithsonian (NYT).  Michael Dorf on Historical Analogies in Second and Seventh Amendment Cases (Dorf on Law).  Noah Feldman says that the Supreme Court’s originalism is dead, dead, dead (Seattle Times).  Lawyers Should Spend More Time Studying Legal History (Above the Law).  White House Defends 1882 Immigration Law Excluding Chinese Immigrants (Forbes).  A history of justices testifying before Congress (SCOTUSblog). What the American Founders Did Was a Reluctant Revolution: An Interview with Lee J. Strang (Hungarian Conservative).

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

Bridges on Originalism without History

Khiara M. Bridges, UC Berkeley School of Law, has published the review essay Originalism Without History in the Yale Law Journal:

Originalism, the Supreme Court’s ascendant theory of constitutional interpretation, claims to dive deep into the historical archives to divine the meaning of the Constitution. However, one of the greatest ironies of originalism is that while it claims to be intensely interested in history, it eschews much of the past in practice. Originalists often rely on the assumption that only a thin slice of history matters. The archives before and after a particular moment—namely the Founding and the few years surrounding the ratification of the Reconstruction Amendments—are, as a matter of constitutional interpretation, regarded as irrelevant. Moreover, even during the narrow band of years germane to originalist analyses, the histories created by the vast majority of historical actors—that is, nonelites—are typically treated as immaterial to the interpretive endeavor. In this way, originalism suppresses much of history through its veneration of history.

Fascinatingly, there is a similarity between originalism and the assault on history currently taking place in the United States more broadly—an assault that was first framed as a struggle against “Critical Race Theory,” or “CRT,” but has since evolved into a struggle against diversity, equity, and inclusion, or DEI. Like originalism, the fight against “CRT” and DEI suppresses history—particularly, marginalized people’s histories—through its veneration of a mythologized version of this country’s past. This Review excavates the twin processes of historical suppression and veneration occurring in the judicial sphere and the larger political sphere in which the judiciary is embedded, and it situates the histories of constitutional transformation provided in Jill Lepore’s We the People and Akhil Reed Amar’s Born Equal within the contemporary war on history.

 --Dan Ernst

Nourse on Originalism's Three Myths

Victoria Nourse, Georgetown Law, has published American Public Law Revolution in the UCLA Law Review:

The Supreme Court has birthed a public law revolution. This revolution should not be known as a constitutional revolution because it is bigger than constitutional law—it covers statutory and administrative law as well. This revolution has been powered not by social movements, but by an interpretive philosophy known as originalism. Originalism has been deeply misunderstood by its critics. This Article examines three myths about originalism—that it is primarily about history, that it is a traditional theory of adjudication, and that it is democratic. Originalism is a semantic theory, not a theory of history, and it is a theory that privileges semantic integrity over traditional adjudicatory virtues such as prudence and precedent. Most importantly, this Article contends that originalism aggravates the minoritarian features of our Constitution. Originalists have theorized that courts must return to 1787 or 1868 because there is no popular sovereignty except at moments of amendment. To the contrary, our Founding institutions depend upon the exercise of popular sovereignty every two and four years. To the extent that originalists do not recognize this kind of sovereignty, they are unfaithful to the central texts of our Constitution.

--Dan Ernst 

Bilder on the Blessings of Liberty and the Bill of Rights

Mary Sarah Bilder, Boston College Law School, has posted The Blessings of Liberty and Bills of Rights, which will appear in National Constitution Center’s essay collection, The Promise of America: Reflections On Our Enduring Ideals (Simon & Schuster, 2026):

With the final words of the Preamble, “We the People . . . ordain and establish this Constitution” to “secure the Blessings of Liberty to ourselves and our Posterity.” Today, Americans might point to the Bill of Rights, the first ten amendments of the US Constitution, as an important example of those liberties. Two hundred and fifty years ago, Americans also referred to the Bill of Rights, but they meant a 1689 English document. Over two centuries, the bill of rights transformed. This history underscores the continuity of a culture of rights and liberties as bulwarks against power. But it also reveals the conceptual challenges that arose as rights developed under a monarchical constitution were replaced with rights within a free constitution of the people. 

--Dan Ernst 

Cambridge History of the American Revolution

The three-volume Cambridge History of the American Revolution, edited Marjoleine Kars, Michael A. McDonnell, Andrew M. Schocket, was published online on February 3 and has a print publication date of October 30. 

Volume 1: Revolutionary Contexts

The first volume delves into how the context of the American Revolution was set, taking readers across North America and the world to reveal the far-flung people, events, institutions, cultures, and ideas that led to its inception. Through a global lens, the volume shows how empires struggled with political and economic reforms, as well as popular protest, while competing and warring with each other. On a continental scale, long-term environmental and economic structures, native peoples, colonial settlers, and their interactions set the parameters for revolutionary conflict. Focusing on the thirteen colonies, -particularly groups who are traditionally overlooked- the essays shed light on the specific milieus in which the Revolution took place, examining and reinterpreting the iconic events leading up to independence and war. A mixture of broad topical essays and short innovative “viewpoints”, together the essays question notions of American exceptionalism while emphasizing both change and continuity.

Volume 2: Revolution

The second volume focuses on the years of upheaval during the American Revolution between 1775 and 1789. It breaks new ground by surveying a wide range of internal conflicts in the thirteen colonies, the trauma of a bloody war and its consequences, as well as the continental, hemispheric, and global forces shaping warfare and politics in this era. Together, the essays expand our understanding of how various people navigated military occupation, community conflict, governmental paralysis, interpersonal relationships, institutional collapse, and the slipperiness of allegiances. Through sweeping interpretative essays and micro-history viewpoints, the volume highlights the interplay of class, race, and gender in a wartime context and how these dynamics played out and were influenced by broader geopolitical developments. The depths of division and grand possibilities are explored – and interrupt our long-standing notions of traditional linear narratives of nation-making in this era.

Volume 3: Continuities, Changes, and Legacies

The third and final volume examines the American Revolution and its consequences, continuities, and legacies. Across thirty essays, ranging from broad, topical chapters to innovative, shorter 'viewpoints', the volume sheds light on how the American Revolution reverberated worldwide from the Constitution's ratification to twenty-first century cultural battles over the Revolution's meanings. Americans of all stripes adapted old rituals and structures to national independence, new rights, and republican politics, while enslaved and Indigenous peoples contended with the nation's intensification of the exploitation of humans and land. The Revolution's global shockwaves buffeted empires and the people who resisted them. From the eighteenth century to today, Americans and people across the world have contested how we remember the American Revolution. 

Richard J. Ross, University of Illinois, and Steven Wilf, University of Connecticut School of Law, have posted their contribution to volume 1, Legal Orders:

This chapter explores how the Patriots deployed law in order to mobilize fellow citizens towards rebellion.  In the decade before the Revolution, Patriots fashioned law in innovative ways as a language that could cross geographical and social borders in order to rally citizens to a cause.  What made their appeals effective?  First, the chapter asks how the settlers’ growing competence in formulating constitutional argument favored the Whigs.  Second, a look at early nineteenth-century Spanish American independence movements helps explain how and why the Whigs could plausibly believe one of their core ideas—that a colony was a polity representing the rights of an underlying people.  Finally, attention to the vernacular legal culture of the streets and taverns shows how Patriot legal appeals could be appropriated by ordinary people.  The remarkable capacity of Whig law to bridge social and geographical distances helped make it a powerful instrument of revolutionary mobilization.

--Dan Ernst 

Weekend Roundup

• ASLH President Mitra Sharafi's alternative to assigning undergraduate research papers in an age of AI (South Asian Legal History Resources).

• The recording of the National Constitution Center's session on the Constitution and the Courts, held in conjunction with the Federal Judicial Center, is now available.  It consists of a panel on the Constitution in the Founding Era with Akhil Reed Amar, Christopher Bonner, and Gerald F. Leonard, moderated by Thomas Donnelly, and a discussion on the Constitution and the federal judiciary with Kevin Arlyck, moderated by Julie Silverbrook.  

• Alison L. LaCroix's speech to the University of Chicago's graduates is here.  H/t: JDM. 

• From In Custodia Legis: "A Deep Dive into Library Resources on Phillips v. Martin Marietta Corp." -- Part 1 and Part 2.   

• Saul Cornell appears in "The American Experiment," a five-part documentary on the nation’s founding that starts streaming on Netflix on June 24 (Fordham Law).

• Margaret Burnham and Brenda E. Stevenson on opening the federal archives on Civil Rights Cold Cases (AHA Perspectives). 

• "The Brennan Center for Justice at NYU Law is pleased to announce the 2026–2027 recipients of the Steven M. Polan Fellowship in Constitutional Law and History: Kate Andrias, Olatunde Johnson, William Novak, Alice O’Brien, and Julie Suk."   

• 
  
  "Is the United States on the Road to a New Civil War?" David Blight's lecture to the American Academy in Berlin. 

• Edmarverson A. Santos on Doctrine of Discovery and Colonial Legal Order and Robert J. Miller on The International Law of Colonialism: The Doctrine of Discovery.

• ICYMI: More Gordon Wood tributes (LOA).  250 Years of State Constitutions (SCR). The NJ State Library's exhibit on the state's first constitution (tapinto).  Jesse Wegman discusses James Wilson (Fresh Air).  The University of Pennsylvania Almanac notes Serena Mayeri's receipt of the 2026 James Willard Hurst Book Prize From Law & Society Association.  The lessons of the Harry Raymond car bombing of 1938 for police accountability today (DJ).  When Robert E. Lee's daughter was arrested in a Jim Crow streetcar dispute (Alexandria Brief).

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

Larson's New History of the Declaration of Independence

Carlton F. W. Larson, University of California, Davis, has published One Nation Under Law: The Meaning of the Declaration of Independence (Cambridge University Press): 

This groundbreaking volume shatters many longstanding myths about the Declaration of Independence. Although states-rights advocates have long claimed that the Declaration created thirteen independent nations, Carlton F. W. Larson shows that the Declaration announced the birth of a new nation: the United States of America, a nation governed by an unwritten constitution in which the states were confederated and subject to national authority from the very beginning. Larson counters libertarian claims that the Declaration views government as a necessary evil, demonstrating instead how it embraces constitutionalism, active government, and the rule of law as positive goods. Along the way, Larson debunks other myths, such as the notion that the Declaration is the parchment text enshrined in the National Archives and that it was authored by Thomas Jefferson. By exploring the true meaning of the Declaration of Independence, One Nation Under Law helps us better understand America itself.

–Dan Ernst.  Endorsements after the jump.

Keener and Whittington on Birthright Citizenship

Benjamin Keener, University of Pennsylvania Carey Law School, and Keith E. Whittington, 
Yale Law School, have posted Demystifying Birthright Citizenship:

Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutional debate. Critics of the traditional rule argue that the Fourteenth Amendment's “subject to the jurisdiction thereof” language implicitly restricts birthright citizenship in ways that exclude the American-born children of undocumented immigrants and temporary visitors. This Article clears the brush. It demystifies birthright citizenship by demonstrating that the Citizenship Clause embodies a single, coherent rule with deep roots in the common law—one that is neither riddled with ad hoc exceptions nor susceptible to the narrowing constructions its modern critics advance.

Working from an originalist methodology, this Article reconstructs the traditional rule and systematically rejects principal arguments for a more restrictive reading. Part I begins with a note on methods and how we believe an originalist analysis of the Citizenship Clause should proceed. Part II lays out the original meaning of the birthright citizenship rule and the terms of the Fourteenth Amendment that constitutionalized that rule. We then canvass the evidence in support of a more restrictive reading of the rule. Parts III and IV examine the argument that only those who have been invited into the country and are present by the country’s consent are subject to its jurisdiction. Part V examines the argument that only those who have the requisite allegiance to the country are subject to its jurisdiction. None finds sufficient support in the original meaning of the text. 

--Dan Ernst 

Parkinson's "Tyrants and Rogues"

Robert G. Parkinson, Binghamton University, has published Tyrants and Rogues: Understanding the Declaration of Independence (Norton):

We think of the Declaration of Independence as timeless. We know the sacred phrases: “all men are created equal,” “life, liberty, and the pursuit of happiness,” “self-evident truths,” “certain inalienable rights.” These are some of the most important words human beings have ever written. And they are all from the Declaration’s preamble, which has inspired people for centuries, including generations of revolutionaries all over the world.

But as historian Robert G. Parkinson points out, the Declaration was not written as a timeless statement of political philosophy. It was, rather, produced in the heat of a confusing, bloody, and desperate war. And in that moment, it wasn’t high ideals alone that drove the patriots forward. Parkinson’s great innovation is to allow us, 250 years on, to see the Declaration as its authors did. For them, the opening paragraphs were not the main event. It was the body of the Declaration—the twenty-seven grievances against King George—that formed the essential part. Even Thomas Jefferson would have been puzzled by history’s fixation on his opening sentences.

Parkinson takes us into the grievances, giving us stories of the Revolutionary era that are little known today but loomed large for the patriots. As the leaders of the Revolution saw it, they had been pushed to the breaking point by British officials who undermined colonial legislatures and courts, corrupted the judiciary, turned military power against civilians, inflamed slave revolts, forced colonists to fight one another—ultimately, waging war on their own people.

In his brilliantly original reading of the Declaration, Parkinson asks fundamental questions that have too often been overlooked: Why did the colonies declare independence when they did? What were their nonnegotiable demands? Who were the individuals whose actions made reconciliation impossible? By recovering the people and conflicts behind the Declaration’s grievances, Parkinson offers a strikingly new account of the American Revolution—and shows that the issues that most alarmed colonists in 1776 are urgent once again today.

--Dan Ernst

Two HLR Notes: Montesquieu and "Historical Absence"

Two notes  in Harvard Law Review 139: 8 (June 2026) are of interest to constitutional historians.  The first is Montesquieu’s Day in Court: Recovering a Classical Understanding of Separated Powers: 

The Supreme Court has developed an increasingly pronounced reliance on Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, as an authoritative voice on American constitutional structure. But the Montesquieu who appears in the United States Reports is not the complex, empirical sociologist who authored The Spirit of Laws in 1748.  This Note argues that neither of the Court’s principal approaches to separation of powers — formalism and functionalism — fully engages with the intellectual tradition each claims to inherit from Montesquieu.

The second is Historical Absence and Constitutional Interpretation:

[This Note] draws attention to a type of originalist argument — the argument from historical absence — and the implementation issues it exacerbates. To address these challenges, it presents a modest framework that may be employed by courts required to consider these arguments. This Note conceives of arguments from historical absence as a style of assertion that centers the lack of historical evidence. A litigant hoping to rely upon historical absence may canvass the relevant historical record, find no sufficient historical analogue, and contend that this lack of evidence is itself supportive of their argument — typically, that a governmental practice would have been deemed (un)constitutional at the Founding. These arguments may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice). Simply put, an offensive argument from historical absence may be: “No evidence supports the assertion that the original public meaning of X, or any analogous original public meaning, would permit Y; thus, Y is impermissible.” By contrast, a defensive argument may be: “No evidence supports the assertion that laws regulating Y, or its analogues,were treated as constitutionally suspect at the Founding; thus, the original public meaning of X was understood to permit Y and analogous regulations.”

--Dan Ernst 

YJLH 36.6: A Festschrift for Gordon Wood

We have of course noted the death of the great historian of the American Revolution Gordon Wood.  As it happens, the Yale Journal of Law and Humanities has just published online its 36.6 issue: Festschrift in Honor of the Scholarship of Professor Gordon Wood, with the following note:

On November 22-23 of 2024, Yale Law School hosted a special Conference on the Scholarship of Gordon Wood. The Yale Journal of Law & Humanities has the honor of publishing a festschrift volume of papers presented at this conference. Professor Wood was the leading historian of the US Revolution, and it was an honor to bring his work into dialogue with contemporary legal scholarship. This issue is dedicated to Professor Wood's memory.

The editorial team would like to note that Professor Wood, in addition to being a brilliant scholar and wonderful writer, was an extremely kind person. We were all deeply saddened to learn of his passing. It was our genuine pleasure to have had the chance to work with him in preparation of this special issue.

1. Akhil Reed Amar, The Revolution and the Constitution: Two Grand Narratives

2. Mary Sarah Bilder, The Character of the Constitution: Instrument and Constitution

3. Richard D. Brown, Gordon Wood’s The Radicalism of the American Revolution (1992): A Comment

4. Jane E. Calvert, Beyond Whig Constitutionalism: New Perspectives on the Constitutional Debates in Creation of the American Republic

5. John O. McGinnis, Gordon Wood’s Republic of Ideas

6. Johann N. Neem, Gordon Wood’s Anti-Elitism and the Crisis of the History Discipline

7. Jack N. Rakove, Being Schooled with Gordon Wood

8. Jeffrey Rosen, Gordon Wood's Radical Achievement

9. Coleen A. Sheehan, Gordon Wood, James Madison, and American Memory

10. William Michael Treanor, Creation and the Republican Revival

11. Michael Zuckert, Clio, Minerva, and the American Republic

12. Gordon S. Wood, Response

--Dan Ernst

Weekend Roundup

• Sally Hadden, Western Michigan University, will speak on “The First Massachusetts Constitution and How Town Actions Derailed It,” online at noon today as the first in the Bidwell House Museum's series of history talks.  It is free for members of the museum and $15 for others.  Register here.

• A review symposium on Serena Mayeri’s Marital Privilege: Marriage, Inequality, and the Transformation of American Law, with contributions from Albertina Antognini, Cary Franklin, Jessica Dixon Weaver, Deborah Dinner, Linda C. McClain, and Katie Eyer, with a response by Professor Mayeri (BU Law Review Online).  

• Marlene Trestman will be in conversation about her book, Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin, in person and online, with Senior Judge Beryl A. Howell of the US District Court for the District of Columbia at the Capital Jewish Museum in DC on June 4, from 6:30-7:30.  Register here.

• Bill Littlefield reviews Gautham Rao's White Power: Policing American Slavery (arts fuse).

• Jonathan Parry reviews H.S. Jones’s Liberal Worlds: James Bryce and the Democratic Intellect (London Review of Books).

• Robert Tsai and others will discuss John Brown's provisional constitution on June 29. 

• Rodger Citron on that podcast with Samantha Barbas on her book on New York Times v. Sullivan (Verdict).   

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

Mortenson on Text and Purpose in Anglo-American Law

 Julian Davis Mortenson, University of Michigan Law School, has posted “Westminster Quibbles”: The Antinomy of Text and Purpose in Eighteenth-Century Anglo-American Legal Culture, which is forthcoming in the Journal of the Early Republic:

In the wake of the battle of Bunker Hill, the British government's efforts to fortify its colonial positions triggered a constitutional crisis and political scandal that were followed closely by an anxious North American public. The public debate about the legality of the ministry's troop movements illustrates two points about the structure and habits of transatlantic legal culture. 

First, lawyerly arguments about “merely” technical wrongdoing could have immense political force in the practice of power politics at the highest level. Law mattered to how elite decisionmakers talked as politicians; it shaped what they did as legislators; and it affected how the press and the public reacted on both sides of the Atlantic. Second, even as the political class took it for granted that political decisionmaking would be infused by legalized disputation, they pervasively contested which kinds of legal arguments counted as formally valid and analytically persuasive. They debated, in other words, what it meant to “do law.”

The first point emphasizes the cultural power of law as a motivating and channeling force in the real world for people negotiating complex social problems. The second point surfaces an antinomy that was central to early American legal argument: the twin commands to respect both the demands of a law’s spirit and the specifications of its letter. The latter imperative was simultaneously internal to law and also a direct link to the sort of messy social considerations that formalism seeks to exclude from the domain of law proper.

--Dan Ersnt

Claussen and Meyer on the Foreign Commerce Power

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

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

--Dan Ernst 

Weekend Roundup

• From In Custodia Legis: A Brief Legislative History of the U.S.-Canadian Border and Nathan Dorn on James Wilson and Natural Law in the First Years of the Republic. 

• Rodger Citron interviews Samantha Barbas on the Civil Rights setting of her book on New York Times v. Sullivan (Touro Law Review Podcast).   

• On May 5, the Historical Society of the New York Courts and the Supreme Court of the State of New York, Appellate Division, Third Department, will host New York’s Own Revolution: The Anti-Rent War of the Hudson Valley and Its Relevance Today, a film screening with Bruce W. Dearstyne, Nancy Newman, and Victoria Kupchinetsky, 

• On June 24, the Gerald R. Ford Presidential Museum will host The Original Debates over Constitutional Interpretation with Jonathan Gienapp. 

• On June 25, Jesse Wegman, a Senior Fellow at the Brennan Center for Justice, will speak at the Atlanta History Center on his book The Lost Founder: James Wilson and the Forgotten Fight for a People’s Constitution.

• On September 17, the Clough Center for the Study of Constitutional Democracy at Boston College will hold the latest version of its annual event, What the Constitution Means to Us, with Doris Kearns Goodwin and Akhil Reed Amar. 

• For Law Day, the Supreme Court Historical Society posted Judge Jon O. Newman's conversation with Ross Davies on three lost early circuit court opinions by the justices. 

• When, in his address to Congress, King Charles III said that “the U.S. Supreme Court Historical Society has calculated that Magna Carta is cited in at least 160 Supreme Court cases since 1789, not least as the foundation of the principle that executive power is subject to checks and balances” he apparently was referring to Catholic University professor Derek Webb’s article in the Journal of Supreme Court History, “What Say the Reeds in Runnymeade? Magna Carta in Supreme Court History,” says the Supreme Court Historical Society.   

• Part 2 of the Lawbook Exchange's April 2026 list of Scholarly Law and Legal History is here.

• ICYMI: A Lancaster, PA, museum opens an exhibit on Thaddeus Stevens (WGAL). Frankfort, Kentucy, courthouse may be renamed in honor of John Marshall Harlan (Kentucky Today). The Rise and Fall of Judge William H. Simmons (History Link).  Lawrence Glickman, Cornell University, on birthright citizenship in the advice columns (Atlantic).

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