Qvortrup on the referendum

Out in 2019 with Hart Publishing, we missed The Referendum and Other Essays on Constitutional Politics by Matt Qvortrup (Coventry University). From the press: 

Until recently, referendums were little used. After the Scottish independence and Brexit referendums, they have come to the fore as a mechanism with the potential to disrupt the status quo and radically change political direction. This book looks at the historical development of the referendum, its use in different jurisdictions, and the types of constitutional questions it seeks to address. Written in an engaging style, the book offers a clear, objective overview of this important political and constitutional tool.

Table of Contents after the jump:

Su on Just Compensation

Wanling Su, a fellow at the Harvard Law School, has posted What Is Just Compensation? which appears in the Virginia Law Review 105 (2019): 148-1536:

The Supreme Court has held that “[t]he word ‘just’ in [‘just compensation’] . . . evokes ideas of ‘fairness.’” But the Court has not been able to discern how it ensures fairness. Scholars have responded with a number of novel policy proposals designed to assess a fairer compensation in takings.

This Article approaches the ambiguity as a problem of history. It traces the history of the “just compensation” clause to the English writ of ad quod damnum in search of evidence that may shed light on how the clause was intended to ensure fairness. This historical inquiry yields a striking result. The word “just” imposes a procedural requirement on compensation: a jury must set compensation for it to be just.

This historical understanding is especially important to modern law since the Supreme Court applies a historical test to determine whether the Seventh Amendment guarantees the right to a jury. This Article corrects the common misperception that juries did not determine just compensation in eighteenth-century English and colonial practice.

--Dan Ernst

Aroney on Australian Federalism

Nicholas Aroney, University of Queensland TC Beirne School of Law, has posted The Design of Australian Federalism, from The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone:

This chapter, published in The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone, examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the constitution are central to this idea. These are, firstly, that the constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities. This chapter explains how these central ideas are embodied in the distribution of powers, system of representation, and processes of alteration and amendment established by the constitution.

--Dan Ernst

Khosla on the Indian Constitution

Coming out this month by Madhav Khosla (Ashoka University) is India's Founding Moment: The Constitution of a Most Surprising Democracy with Harvard University Press. From the publisher:

Britain’s justification for colonial rule in India stressed the impossibility of Indian self-government. And the empire did its best to ensure this was the case, impoverishing Indian subjects and doing little to improve their socioeconomic reality. So when independence came, the cultivation of democratic citizenship was a foremost challenge.

Madhav Khosla explores the means India’s founders used to foster a democratic ethos. They knew the people would need to learn ways of citizenship, but the path to education did not lie in rule by a superior class of men, as the British insisted. Rather, it rested on the creation of a self-sustaining politics. The makers of the Indian Constitution instituted universal suffrage amid poverty, illiteracy, social heterogeneity, and centuries of tradition. They crafted a constitutional system that could respond to the problem of democratization under the most inhospitable conditions. On January 26, 1950, the Indian Constitution—the longest in the world—came into effect.

More than half of the world’s constitutions have been written in the past three decades. Unlike the constitutional revolutions of the late eighteenth century, these contemporary revolutions have occurred in countries characterized by low levels of economic growth and education, where voting populations are deeply divided by race, religion, and ethnicity. And these countries have democratized at once, not gradually. The events and ideas of India’s Founding Moment offer a natural reference point for these nations where democracy and constitutionalism have arrived simultaneously, and they remind us of the promise and challenge of self-rule today.

Advance praise for the book:

“Erudite, analytically dazzling, and with a rare understanding of both India’s and democracy’s challenges, Madhav Khosla’s India’s Founding Moment gives readers unparalleled access to the ideas behind India’s radical experiment in democratic constitution-making. As that noble vision is now under assault from sinister forces that Gandhi, Nehru, and Ambedkar knew well, we all should ponder Khosla’s all-too-timely book and do whatever we can to prevent the demise of India’s constitutional order.”—Martha C. Nussbaum

“This brilliant and challenging book shows how political choices—what to put in a constitution, the locus of effective power, and the forms of representation—can create citizens who can and must govern themselves in a modern democracy while facing deep challenges caused by poverty, caste, and illiteracy. It is at once a contribution to Indian constitutional history, constitutional theory, and political theory, and is a ‘must read’ for everyone in those fields.”—Mark Tushnet

“This is a sensitive analysis of the moral imagination behind the Indian Constitution, a document intended to free the democratic process from sectarian identities and to strengthen centralized state power. As Indian democracy struggles to stay on the rails, Khosla’s book is a timely reminder of what it was meant to be.”—Partha Chatterjee

Further information is available here.

--Mitra Sharafi 

Weekend Roundup

• Legal scholars and historians on the uproar over changes to India's citizenship laws: read this by Shubhankar Dam, this by Rohit De and Surabhi Ranganathan, this by Madhav Khosla, this by Gautam Bhatia, and this by Neeti Nair. Here's a useful microsyllabus on citizenship and provisional belonging in South Asia, by Swati Chawla, Jessica Namakkal, Kalyani Ramnath, and Lydia Walker.

• On January 14, 2020, the Max Planck Institute for European Legal History hosts a colloquium on Decolonial Comparative Law, with Ralf Michaels and Lena Salaymeh.

• Yesterday Katie Watson, JD, Associate Professor of Medical Social Sciences, Medical Education, and Obstetrics and Gynecology, Northwestern Feinberg School of Medicine delivered Contextualizing Abortion: The History of Morality Laws and the Legal Personhood of Women, which was the Annual Women’s Reproductive Health Scholarly Concentration Lecture at Brown University.

• "The [British] National Archives have provoked outcry from academics by announcing a new trial restricting readers to 12 documents a day” (Telegraph, via HNN).

• Over at SCOTUSblog: Amanda Frost, "Academic highlight: Sohoni on the 'lost history' of nationwide injunctions."

• Now available online from Law and History Review and Cambridge Core: Expert Testimony in the Social Sciences: A Historical Overview of Contemporary Issues, by Lawrence Rosen.

• Trey Gaines, Director of the Bartow History Museum, is to speak on the history of the 1869 Courthouse in Cartersville, Georgia, on January 15 from noon to 1 p.m.  (More)

• ICYMI: “31 women who blazed trails” in Oregon history, including Mercedes Deiz, the state’s first black female lawyer  (Statesman Journal).  Robert Caro's papers bound for the New-York Historical Society (NYT).  In praise of the library of the Queens County Supreme Courthouse.

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

Peterson, "Constitutionalism in Unexpected Places"

Farah Peterson (University of Virginia) has posted the abstract for her article "Constitutionalism in Unexpected Places," forthcoming in the Virginia Law Review:

Before, during, and after the ratification of the federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and restricted government action. The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood. Instead, both originalists and scholars of the “living” constitution think of 1787 as a hard break from the past and a starting point for their investigations.

But Americans of the Founding generation did not share our view that the only constitution that mattered was the one the Framers designed. This Article focuses on a feature of American colonial life that reappeared with striking continuity for three generations after Independence—the vindication of unwritten constitutional rights by mob action, and specifically, the tradition of mobs turning to Indian costume to express a specific series of constitutional grievances. During the age of the Revolution, many Americans believed that mobs in the streets performed a legitimate role in the enforcement of their unwritten constitution. These mob actions involved ritualistic violence and consistent, non-linguistic symbolism. The endurance of this form of constitutional engagement, employing the same symbols to assert the same suite of legal claims, is simply astonishing. It is evidence of the tenacity of a series of constitutional commitments predating the Founding that were not encompassed by, or replaced with, a written constitution.

This Article also makes a methodological point. An exclusive focus on official texts and the words, pamphlets, and letters of great men robs historical investigation of its depth and risks missing crucial insights about the past. Important evidence revealing how Americans conceived of their constitution and of themselves as legal actors can be found in their customs, in behavior, in performances in public spaces, and in the life of important ideas in literature and art. This Article focuses on a peculiar phenomenon as a way of modeling this point. The white protestor in Indian costume may seem like an oddity, but a deeper investigation reveals him to be a missing link, a key to how Americans believed their society was constituted, how they thought about justice, and how they understood the obligations the Revolution laid upon its inheritors.

We'll update this post when the full article is available for download. (h/t: Legal Theory Blog)

-- Karen Tani

Bhatia on the Indian Constitution

Gautam Bhatia (practicing lawyer and independent scholar) has published The Transformative Constitution: A Radical Biography in Nine Acts with HarperCollins India. From the press:

We think of the Indian Constitution as a founding document, embodying a moment of profound transformation from being ruled to becoming a nation of free and equal citizenship. Yet the working of the Constitution over the last seven decades has often failed to fulfil that transformative promise. Not only have successive Parliaments failed to repeal colonial-era laws that are inconsistent with the principles of the Constitution, but constitutional challenges to these laws have also failed before the courts. Indeed, in numerous cases, the Supreme Court has used colonial-era laws to cut down or weaken the fundamental rights. The Transformative Constitution by Gautam Bhatia draws on pre-Independence legal and political history to argue that the Constitution was intended to transform not merely the political status of Indians from subjects to citizens, but also the social relationships on which legal and political structures rested. He advances a novel vision of the Constitution, and of constitutional interpretation, which is faithful to its text, structure and history, and above all to its overarching commitment to political and social transformation.

The book has been shortlisted for the Tata Literature Live Non-Fiction Book of the Year 2019. Further information is available here.

--Mitra Sharafi

Pitt Cobbett's "Constitution and Government of Australia"

We’ve recently learned of the publication of William Pitt Cobbett's The Constitution and Government of Australia, 1788-1919 (Federation Press, 2019), edited by Anne Twomey, Professor of Constitutional Law, University of Sydney.

Between 1910 and 1919, William Pitt Cobbett, former Professor of Law and Dean of the Sydney Law School, wrote what would become his great opus on the Constitution and Government of Australia but the manuscript was never published. Its publication had been frustrated in the period following his death by the High Court’s judgment in the Engineers Case in 1920 and the new constitutional order it created. A century later, Professor Anne Twomey, has edited Cobbett’s original manuscript, taking care to preserve the integrity of his work.

The Federation Press, with the support of the Francis Forbes Society for Australian Legal History, published this important historical work which provides a detailed perspective of how the Constitution operated in the first two decades after federation.

The editor writes us:

[The book] has a bit of history of its own.  Pitt Cobbett became the first full-time Dean of Sydney Law School in 1890.  He was Dean throughout the period of the drafting of the Australian Constitution, campaigned against its approval by the people in referendums, and studied its interpretation by the first High Court, which was comprised of judges who had participated in framing the Constitution.  Cobbett retired in 1910 and spent the last nine years of his life writing his grand opus on the Constitution and Government of Australia.  It was the culmination of his life's work and he desperately wanted it published, but died just as he was completing the full draft.  He passed away on the last day of the Griffith High Court.  The following year, the Court, under Chief Justice Knox, fundamentally changed the way the Constitution was interpreted, treating it as a legal document, rather than a political compact.  The executors of Cobbett's will decided his manuscript could no longer be published without major alterations, and donated it to the University of Sydney.  There it sat, neglected, for a century.

Today it is an important historical record of how the Australian Constitution was viewed by those who wrote it and interpreted it during its first two decades.  It has now been edited and published for the first time, upon the centenary of Pitt Cobbett's death.  There is some irony in this.  Cobbett was also renowned for having no time for women and excluding them from studying law while Dean of the Law School.  So he would have been shocked and possibly horrified to know that it was two women who cared enough about his manuscript to edit it, complete all his footnotes, place it in its context and publish it upon the centenary of is death.  But hopefully, he would also have been grateful.

An endorsement:

William Pitt Cobbett largely completed the original manuscript of his opus on the Constitution shortly before his death in 1919. While it was intended to be posthumously published, in 1920 the High Court’s constitutional jurisprudence radically shifted in the Engineers case ((1920) 28 CLR 129). At the time, this would have required a substantial revision for the work to remain current, and so the manuscript was given to the University of Sydney Law School – of which he had been a Professor and Dean – as a memorial. Now a century on, the manuscript has been carefully and ably transcribed, edited and published for the first time.

Those involved are to be greatly thanked. In addition to the text, there is a fascinating biographical note by Professor Anne Twomey and a comprehensive introduction to Cobbett’s work outlining what has changed since it was written, what remains the same and his unique insights relevant to today. While the importance of the work is that it paints a portrait of the history and early interpretation of the Constitution up to 1919 before the High Court’s decision in Engineers, its value is not merely one of historical interest. As Twomey perhaps understates, “it occasionally also shocks with the modernity and prescience of its contents”. This is a most important, if not necessary, text for any scholar of Australian legal history and constitutional law.

                         Queensland Law Reporter – 18 October 2019 – [2019] 41 QLR 7

Table of contents after the jump

–Dan Ernst

Baude and Sachs on the 11th Amendment

William Baude, University of Chicago Law School, and Stephen E. Sachs, Duke University School of Law, have posted The Misunderstood Eleventh Amendment:

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same — whether by reading broad principles into its precise words, or by treating the written Amendment as merely an illustration of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits brought against states, in law or equity, by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It cannot be waived. It cannot be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism, and sometimes leading the Court badly off track. A better understanding of the Amendment’s text lets us correct these errors and respect the unwritten principles that the Amendment left in place.

--Dan Ernst

CFP: Constituting Boundaries

[We share the following announcement. The deadline is Nov.17, 2019. H/t: H-Empire.]

Call for Papers

Constituting Boundaries: Identities, Polities, and Colonial and Postcolonial Constitution-making, 1776-2019

Monday 20th and Tuesday 21st April 2020

Pembroke College, Oxford

In their function as frames of government, constitutions draw boundaries of belonging. The act of making a constitution makes a claim for the existence of a political community, and their texts define the terms of citizenship and of political participation in that community, including and excluding individuals based on race, gender, sexuality, disability, class, and religion.

After 1776, the rebellious states of British North America strove to create ‘government[s] of laws, not of men.’ To achieve their goal, they composed new systems of government on paper, culminating in the creation of the US Constitution in 1787. Countless other nations and empires have followed suit. Constitution-making — successful or otherwise — is a common feature of moments of social and political upheaval in modern global history. Some constitution-makers have eradicated slavery, thrown off empire, and legislated for social justice, as in Haiti in 1805, the Cherokee Nation in 1827, India in 1950 and South Africa in 1996. Others have consolidated imperial dominion and codified racial discrimination and exploitation, as in the settler nations of the United States, Canada, Australia, New Zealand, and Rhodesia.

With the support of TORCH | The Oxford Research Centre in the Humanities, the Andrew W. Mellon Foundation, the Global History of Capitalism Project, and the Quill Project at Pembroke College, this interdisciplinary conference will bring together scholars with a common interest in the process and effects of constitution-making in colonial and postcolonial polities across the world since the American Revolution. The principal focus of discussion will be on the intersection between constitution-making and identity formation.

More after the jump: 

Chabot on the Constitution and the Sinking Fund Commission

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies:

The President’s inability to control the Federal Reserve’s monetary policy decisions raises significant constitutional concerns. The Federal Reserve’s Federal Open Market Committee executes critical statutory mandates when it buys or sells U.S. securities in order to expand or contract the money supply, and yet the Committee’s twelve voting members check one another instead of answering directly to the President. The President cannot remove Committee members who refuse to carry out his monetary policy directives. Seven of the Committee’s twelve voting members are Federal Reserve governors who enjoy for-cause protections from removal by the President. Congress delegated power to supervise and remove the remaining five voting members, who are presidents of regional Federal Reserve banks, to the governors rather than the President. Further, the President has no say in the appointment of regional bank presidents to the Committee. While the Committee’s independence and appointments process would likely pass muster under current precedent, a growing chorus of originalists have argued that the Constitution requires greater executive control and a more expansive application of Article II’s Appointments Clause requirements.

This paper demonstrates that existing originalist accounts are incomplete. They do not account for the structural independence of an obscure agency known as the Sinking Fund Commission. This Commission was proposed by Alexander Hamilton, passed into law by the First Congress, and signed into law by President George Washington. One would expect all of these actors to have a clear grasp on the original public meaning of the Constitution, as well as a strong dedication to the structural commitments established therein. Their decisions to form a Sinking Fund Commission with multiple members to check one another — and to include the Vice President and Chief Justice as Commissioners who cannot be replaced or removed by the President — belie the notion that an independent agency structure violates the newly minted Constitution. The Sinking Fund Commission directed open market purchases of U.S. securities pursuant to a statutory mandate. It provides a direct historical analogue to the Federal Open Market Committee’s independent purchases of U.S. securities pursuant to a statutory mandate. This analysis shows that the structure of the Open Market Committee is not a novel invention of the twentieth century. Rather, the independence stemming from the Committee’s multi-headed structure and protections from removal has an impeccable originalist provenance which dates all the way back to Alexander Hamilton and First Congress.

--Dan Ernst

Bickers on the Legal Tender Cases

John M. Bickers, Northern Kentucky University Salmon P. Chase College of Law, has posted Greenbacks, Consent, and Unwritten Amendments:

“We the people,” the Constitution begins, setting forth the core republican principle that the American government would henceforward be one based upon the consent of the governed. Yet after that announcement the Constitution set forth written rules of varied levels of specificity that clearly mean to bind future generations of those same people. One set of those rules establishes a complicated set of options for amendment: the authors at the end of the eighteenth century made it quite difficult for anything less than a future double supermajority to change their work.

Yet over the centuries there have been countless changes to the society governed by this formative document. The originalist judicial philosophy would prevent such changes from occurring unless they were at least countenanced by the original public understanding of the Constitution among those who made (that is to say, ratified) the document. Other philosophies argue that the current people have a right to remake the Constitution outside of the formal amendment process, an idea resisted fiercely by the originalists. Some thinkers have speculated about the possibility of discovering, at two centuries of remove, an unusual but consistently held view of the founding generation: would the discovery invalidate experiments the United States had adopted in the interim?

No such speculation truly needs to be engaged, as the preeminent example of this puzzle is offered on sheets of paper found in almost every wallet. Each sample of U.S. paper money contains the confident, all-capital phrase “THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE.” The population accepts this assertion. But it has not been ever thus.

Just a century and a half ago, a challenge to the Civil War issuance of paper money as legal tender made its way to the U.S. Supreme Court. There, Chief Justice Salmon P. Chase authored an opinion denouncing this legal innovation that had occurred under the watchful eye of Treasury Secretary Salmon P. Chase. Although some legal scholars have argued that he was wrong, most of the legal world has accepted Chase’s analysis: the Constitution prohibited the adoption of paper money as legal tender by text, by the understanding of those who wrote the text, and by the original meaning ascribed to the text by the portion of the public that ratified it.

Chase’s decision sent shock waves through an American economy that had quickly become reliant on this new device. There is evidence that the search for new Supreme Court justices focused to some degree on finding people who would reject Chase’s originalism in favor of letting We the People decide the issue. When two newly appointed justices joined the Court and reconsidered the matter just a year after the rejection by Chase, they embraced paper money. The embrace of paper money as legal tender remains to this day.

The triumph of that second of the Legal Tender Cases was so complete that Americans today are frequently confident that the use of the phrase “coin money” in the constitutional powers of Congress is meant metaphorically. Chase’s solid demonstration that it was nothing of the kind has faded from the consciousness of all but a few specialists.

What does this unwritten amendment of Congress’s powers mean, then, for the role of consent of the governed? For if the Constitution must be limited to its original public meaning, the United States should immediately revert to an economy suitable for the first years of the Republic, when the decision whether to accept paper in payment of debt was the choice of the individual, and the government could only compel acceptance of coins. Yet that, surely, is not an idea to which more than a bare handful of contemporary Americans would consent.

If “consent of the governed” means consent by those current Americans, they evince it by continue to live in the America of their understanding. They demonstrate such consent to unwritten amendments every time they offer or accept cash believing that the claim made on the face of the bill is true.

–Dan Ernst.

Wood to Lecture on Constitutionalism and the American Revolution at Northwestern Law

[We’re authorized to post the following notice.  Attendees are asked to register here.  DRE]

The Northwestern Pritzker School of Law will sponsor a series of lectures by Professor Gordon Wood, the prizewinning historian of the American Revolution and early Republic.

The lectures, devoted to the topic “Constitutionalism in the American Revolution,” will take place on six successive Tuesdays and Thursdays, from October 15 to October 31, 2019, each
beginning at 4:00 pm at the Northwestern Pritzker School of Law in Rubloff 180.

Along with students enrolled in a class built around the lectures, and Northwestern faculty, we
cordially invite members of the Chicago legal history community to attend the lectures and a
reception for Professor Wood. The reception, co-sponsored by the American Bar Foundation, will occur following the fifth lecture on October 29, 2019.

Please Note: Attending all six lectures is not required. We hope you will join us for any lectures
as your schedule allows.

Gordon Wood will join the Northwestern Pritzker School of Law as Visiting Professor of Law in October 2019. Wood is the Alva O. Way University Professor and Professor of History Emeritus at Brown University, where he served on the faculty from 1969 until his retirement. Wood is the preeminent scholar of the American Revolution. He is the author of The Radicalism of the American Revolution, which earned the Pulitzer Prize and the Ralph Waldo Emerson Prize in 1993, as well as dozens of other acclaimed books and articles. In 2010, Wood was awarded a National Humanities Medal. Wood earned his M.A. and Ph.D. from Harvard.

Please RSVP [here] for the lectures and reception:

Lectures, 4 p.m. Rubloff 180
Tuesday, October 15 / Thursday, October 17
Tuesday, October 22 / Thursday, October 24
Tuesday, October 29 / Thursday, October 31

Reception: Tuesday, October 29, 5:30 p.m. Lowden Hall

The events are co-sponsored by the American Bar Foundation.  For more information, please contact Professor James Pfander at Northwestern Law.

Griffin on Historical Practice and Constitutional Change

Stephen M. Griffin, Tulane University Law School, has posted Against Historical Practice: Facing Up to the Challenge of Informal Constitutional Change, which is forthcoming in volume 35 of Constitutional Commentary (2020):

Contentious disputes over war powers and judicial nominations in the Obama and Trump administrations as well as recent Supreme Court cases have drawn increased attention to the use of historical “practice” in American constitutional law. The use of governmental practice to inform legal analysis has a long pedigree in the American constitutional tradition. In this essay I argue that it is nonetheless fundamentally flawed in multiple ways that suggest it should be replaced or, at least, reconstructed. Practice-based accounts of constitutional law should be understood as raising the crucial question of how to understand informal constitutional change. This is change that is in some sense legal, perhaps even equivalent in significance to a formal amendment, but falls outside the Article V process. To replace the use of practice, I advocate an approach which I call “constitutional change as state building.”

In Part I, I review two types of appeals to practice that are suggested by the literature. First, there is the “comity” version associated with Justice Frankfurter’s influential test in Youngstown. Second, there is the “invitation to struggle” version suggested by Edward Corwin’s famous remark concerning the locus of constitutional power in foreign policy. This latter version is perhaps best exemplified by the controversy over presidential war powers. I argue that both of these versions are underdeveloped. They tend to bypass the relationship of the various incidents of the use of governmental power to the kind of contextual shifts best analyzed by historians. In addition, they fail to answer the practical question of how we are to know when enough incidents of “practice” are sufficient to generate law.

To develop my argument, I specify seven objections to practice-based accounts of constitutional law in Part II. I illustrate the force of these objections in Part III by discussing several examples drawn from the dispute over presidential war powers. Part IV presents my alternative theory, constitutional change as state building, which requires incidents of governmental action to be institutionalized in a constitutional order before they can be regarded as valid law.

–Dan Ernst.  H/t: Legal Theory Blog

Cunninham & Egbert on Emoluments & Originalism

Clark D. Cunningham, Georgia State University College of Law, and Jesse Egbert, Northern Arizona University, have posted Using Empirical Data to Investigate the Original Meaning of "Emolument" in the Constitution which is forthcoming in volume 36 of the Georgia State University Law Review:

The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress. In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’.” However, in trying to determine the “normal” meaning of emolument in the Founding Era we are confronted with a term that might as well be a foreign word from an unknown language. The word emolument has virtually vanished from contemporary American English.

In this article, we investigate the mysterious meaning of “emolument” by doing computer-assisted searches and linguistic analyses of a massive data base of texts from the time of the Constitution: the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. We found strong patterns of usage that reveal how the word was used at the time the Constitution was drafted and ratified.

There is virtually no judicial precedent about the meaning of “emolument” because there has been no significant court litigation over the Emoluments Clauses since the founding – that is until the Presidency of Donald J. Trump.

There is little doubt that President Donald J. Trump owns businesses that have received millions of dollars from foreign governments during his time in office, including revenue from The Trump International Hotel Washington, D.C., located a few blocks from the White House. Lawsuits have been filed in federal courts in New York, Maryland and the District of Columbia claiming that President Trump’s continued ownership of the Trump Hotel and other businesses violates the emolument clauses of the Constitution.

The three cases are in various stages of litigation. President Trump claims in each of the three cases that one usage of “emolument” that was common in the Founding Era – to refer to something received from a government for performance of official duty or employment -- is the exclusive meaning dictated by the Constitutional context.

These cases prompted us to frame our research question as: “Would Americans in the Founding Era have used the word “emolument” to describe revenue derived from ownership of a hotel?” Our research results, indicating that emolument had a broad meaning and wide usage, would support a tentative “yes” answer to this question. Indeed, our research revealed two examples where emolument was in fact used to refer to revenue received (or not received) from ownership interest in a business.

We further conclude that in each of the three clauses in the Constitution that use the word emolument, the structure of each clause indicates that the emoluments are not received for performing an official duty. Indeed, the common theme of all three clauses is to guard against federal officials receiving emoluments that are separate and outside of the compensation they are properly entitled to receive for performing their office.

Although emolument is no longer in the semantic toolbox of modern Americans, it appears that it was a very useful word in the Founding Era: useful indeed precisely in the ways it was used in the Constitution. If the drafters and ratifiers of the Constitution were concerned that foreign states could be endlessly ingenious in conceiving ways to corrupt federal officials, then there was wisdom in using a term of general inclusion like emolument.

In January 2019 the authors filed an amicus brief in support of neither party reporting our research results. The brief was submitted in the case filed against President Trump in Maryland, then pending on appeal before the US Court of Appeals for the Fourth Circuit. The brief can be downloaded from Cunningham’s home page (internet search “Clark Cunningham”) following the links for “Law & Linguistics” and then “The original meaning of "cases" in Article III of the US Constitution.”

–Dan Ernst.  H/t: Legal Theory Blog

Rg 27

[Rg 27, that is, volume 27 of Rechtsgeschichte - Legal History (2019), is now available from the Max Planck Institute for European Legal History, both in print (Verlag Klostermann) and online in Open Access on the journal's new website.  Here is the editors’ introduction.]

A close associate of the Max Planck Institute for European Legal History for many years, the first article in the new issue of the Rg is also one of António Manuel Hespanha's very last publications. Unfortunately, he passed away only a few weeks before the publication of this issue. His contribution summarises the prosopographical work on Portuguese lawyers of the early modern period that have been carried out in the last three decades. The second essay in the Research section is by Jean-Louis Halpérin. It deals with the surprising connection of criminal law and the law of nations at German-speaking universities from the 16th to the early 20th century - long before the advent of international criminal law.

The starting point of the first thematic topic (Focus "Tridentine Marriage") is the Council of Trento (1545-1563). Ten authors examine the effects and implications of the marriage law reforms enacted by the council in a variety of different regions around the world (Europe, Pakistan, Japan, the Philippines, Latin America) up to the 19th century. To mark the 100th anniversary of the Weimar Constitution, the Focus section "Translating Weimar" addresses its transnational resonance. Five contributions analyse local perspectives from Asia, Latin America and the Common Law World.

This year's Forum takes a closer look at two books, namely the handbooks on legal history published last year by Oxford University Press. Focusing on specific themes related to their own research interests, researchers from our institute have reviewed the volumes and offered their own comments to the discussion on the status of the discipline.

Luckily, the book review section treats more than just two books. As always, the books have been published within the past two years and are discussed in order to facilitate the transfer of knowledge beyond linguistic, regional and historical borders.

Finally, Anette Baumann shares her observations on the evidentiary inspection practices of the Reichskammergericht (1495-1806), and she has selected a number of inspection maps (Augenscheinkarten) to illustrate the print edition of the journal.

--posted by Dan Ernst

Weekend Roundup

• The Library of Congress has launched the Constitution Annotated, “the authoritative source for how the Supreme Court has interpreted the nation’s governing document over the years.”

• Harper’s Magazine is out with a forum, moderated by Rosa Brooks, published as Constitution in Crisis: Has America’s founding document become the nation’s undoing?  The other participant are Donna Edwards, Mary Anne Franks, David Law, Lawrence Lessig, and Louis Michael Seidman.

• Josh Blackmon and Randy Barnett have published An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know, which is especially notable for the accompanying online library of sixty-three videos.

• The University of Arkansas has issued a release on its law review’s symposium on the bicentennial of M'Culloch v. Maryland.

• Martha S. Jones, Johns Hopkins University, delivered the Gilder-Jordan Lecture at the University of Mississippi on September 17.

• Mary Frances Berry, the Geraldine R. Segal Professor of American Social Thought and professor of history at the University of Pennsylvania, a former chair of the U.S. Civil Rights Commission, and the author, most recently, of History Teaches Us to Resist: How Progressive Movements Have Succeeded in Challenging Times, will help lead “an ‘organizing for change’ panel discussion September 22 at the Milford Theater, 114 Catherine St., Milford, [PA]."  More.

• ICYMI:  A report of Jean Teillet's discussion of her book The North-West Is Our Mother: The Story of Louis Riel’s People, the Métis Nation, at the Law Society of Ontario on September 18 (Law Times).  "The historical differences between Scottish and English Law, and what it means for Brexit" (BBC History Extra).  A Constitution Day plea for the study of state constitutions (Real Clear Politics). Erika Lee, University of Minnesota, on “the enduring history of American xenophobia” (MinnPost)

• Catching up on the Legal History Miscellany: Sara M. Butler (The Ohio State University) on priests claiming sanctuary and serfs vs. slaves in medieval England, Krista J. Kesselring (Dalhousie University) on Elizabethan witch trials, and Cassie Watson (Oxford Brookes University) on a 19th-c. poisoning in the Inner Hebrides

• The exhibit  “Black Citizenship in the Age of Jim Crow,” on loan from the New-York Historical Society, runs from October 18 to December 31 at the Birmingham Civil Rights Institute (Birmingham Times, via the Philadelphia Tribune)

• From the Washington Post's "Made by History" section: Jamie Pietruska (Rutgers University) on "why President Trump gutting the USDA’s research service is so dangerous"; Steele Brand (King's College) on "why knowing Roman history is key to preserving America’s future"; and more.

• The University of Hong Kong has announced its first law and humanities summer school. The dates are June 8-13, 2020. More information here.

• From In Custodia Legis, a guest post by Ryan Reft on "Federal Courts, Judge Gerhard Gesell, and the Security State." Also a guest post by Stephen Mayeaux, in collaboration with Dante Figueroa, on Spanish Legal Documents (15th to 19th centuries).

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

Roosevelt and Khan on Marbury, Lochner, and McCulloch

Kermit Roosevelt, University of Pennsylvania Law School, and Heath Khan, a 2019 Penn Law graduate, have posted McCulloch v. Marbury, forthcoming in Constitutional Commentary 34 (2019): 263-311:

Marshall, CJ, Swearing in Andrew Jackson (LC)

This article builds on recent scholarship about the origins and creation of “our Marbury” — the contemporary understanding of the case and its significance — to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases — in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the First Congress, probably because the opinion is a bad-faith exercise in judicial creativity motivated by partisan concerns. Moreover, Marbury-as-symbol has its origins in attempts to support the now-discredited Lochner era of aggressive judicial review. Ironically, while Marbury's origins are tied to Lochner, and Marbury itself is as partisan as the Court ever gets, the two now operate as symbolic opposites. Linking a decision to Marbury is a way to legitimize aggressive judicial review while linking it to Lochner it is a way to delegitimize it. Neither of these symbols achieves more than rhetorical effect. Modern invocations of Lochner tend to be as devoid of content as invocations of Marbury: Lochner-as-symbol also tells us nothing about when judicial review should be aggressive and when it should be deferential.

But there is a decision that does: McCulloch v. Maryland. McCulloch, like Marbury, is an early opinion by Chief Justice Marshall that is included in every constitutional law casebook. Unlike Marbury, McCulloch has a discussion of the proper exercise of judicial review. While the factors it sets forth as supporting deferential or aggressive review have not all won a place in Supreme Court jurisprudence, many of them have, and in fact the McCulloch theory can do most of the work that Marbury is supposed to do. In particular, it can support the exercise of aggressive judicial review in most of the Warren Court’s decisions—which, following the failed attempt to support Lochner, was Marbury’s main historical role. And unlike Marbury, McCulloch is not a partisan result-oriented decision. The article concludes that McCulloch should replace Marbury as the leading case about judicial review.

--Dan Ernst

Sharafi on rule of law and constitutionalism in India

Our blogger Mitra Sharafi, University of Wisconsin, has posted the paper, "Parsi Legal Culture, Constitutionalism, and the Rule of Law" on SSRN. The piece is forthcoming in a volume edited by Nawaz B. Mody. It began life as the conclusion to Sharafi's book, before being removed and expanded into its own separate article. Here's an abstract:

Parsi legal culture has played an important role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state. This article suggests that Parsi legal culture reinforced constitutionalism and the rule of law in India. As ideals, the latter two concepts impose restraints on the exercise of power. During the late colonial period, elite Parsis led the early "constitutionalist" phase of the Indian National Congress movement (1885-1919) and insisted on working for change through existing state processes and structures. Early Congress leaders Dadabhai Naoroji, Pherozeshah Mehta, and Dinsha Wacha were products of Parsi legal culture. They were turning outward--for the benefit of all Indians--the law-focused strategy that had worked so well during the preceding half-century for their own community. Their approach was abandoned as the nationalist movement became a mass movement circa 1920 under Gandhi's leadership. The values of Parsi legal culture and the Congress constitutionalists were relegated to the back burner from the 1920s until the late 1940s. However, they were brought back to life upon independence, particularly in the Constituent Assembly that created the Indian Constitution (1947-50) and in the interpretation of the Indian Constitution after 1950. The early Congress model of "constitutional agitation"fed into what B. R. Ambedkar would call India's "constitutional morality." Both required the relinquishment of "the bloody methods of revolution" and of Gandhian civil disobedience alike. Early independent India could re-activate constitutionalism and the rule of law as ideals because these ideas were preserved readymade within a particular politico-legal tradition, albeit one that had fallen out of favor in the decades before independence. This tradition was heavily influenced by Parsi legal culture.

This article also answers the question of whether rule-of-law values were inescapably colonial: they were not. A history of tension within the colonial state highlights the distinction between those who believed there had to be restraints on the exercise of power, and those who wanted to rule without law. Debates among colonial state actors and the harnessing of rule-of-law values by the early constitutionalists reflected the distinction between the projects of colonialism and the rule of law. The British initially used the rule of law to justify colonialism because it was there, neatly packaged and ready to ship, in metropolitan thought and political culture. They underestimated the concept's autonomy and its potential to eat away at the foundations of empire. This insight also addresses the question: how did a population that achieved such affluence and success under British rule reposition itself in decolonisation mode? In fact, there was no necessary contradiction between Parsi legal culture and the rejection of colonial rule. Through its embrace of rule-of-law values and constitutionalism, Parsi legal culture helped build a solid foundation for the newly independent polity.

Further information is available here and here.

--posted by Mitra Sharafi

Weekend Roundup

• Advance alerts from Law and History Review and Cambridge Core: Originalism and the Academy in Exile, by Paul Baumgardner, and Trial without Jury in Guam, USA, by Katherine Unterman.

• New in the Juridical Review: Andrew Simpson, Men of Law in the Aberdeen Council Register? A Preliminary Study, Circa 1450-1460.

• Ellen M. Gilmer, E&E News, reports on that historical reargument of Chevron, sponsored by the the Historical Society of the DC Circuit.

• OUP and CUP would like to know what scholarly monographs mean to academic researchers, readers and authors.

• The Department of American Indian Studies, College of Liberal Arts, University of Minnesota invites applications for a full-time faculty position (open rank, tenured or tenure-track) beginning fall semester 2020.  The announcement is here.

• “Luisa M. Kaye, daughter of Judith S. Kaye, former Chief Judge of the New York Court of Appeals, discusses the autobiography she co-edited about her mother's life and career and reveals the personal moments that shaped her judicial philosophy.”  NYSBA.

• New From Edward Elgar: Authoritarian Constitutionalism: Comparative Analysis and Critique, ed. Helena Alviar García, Universidad de Los Andes, Colombia, and Günter Frankenberg, Goethe University in Frankfurt/Main, Germany.  “The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism.”

• ICYMI: Princeton announces that Dirk Hartog has gone emeritus; HLS announces that Laura Weinrib is joining its faculty.   Four women, four lawyers: How a Fond du Lac family made law history before they could vote (Fond du Lac Reporter). More on legal historians as First Gentlemen (or whatever), here and here.

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