Symposium: The Federalist Constitution

We have already noted some contributions to this excellent symposium issue, The Federalist Constitution, but it has now been published in full as Fordham Law Review 89:5 (April 2021):

Foreword
David S. Schwartz, Jonathan Gienapp, John Mikhail, & Richard Primus

Two Federalist Constitutions of Empire
Gregory Ablavsky

Without Doors: Native Nations and the Convention
Mary Sarah Bilder

President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era
Saul Cornell

In Search of Nationhood at the Founding
Jonathan Gienapp

Slavery’s Constitution: Rethinking the Federal Consensus
Maeve Glass

The Federalist Constitution as a Project in International Law
David M. Golove & Daniel J. Hulsebosch

The Unwritten Constitution for Admitting States
Roderick M. Hills Jr.

Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792
Thomas H. Lee

Executive Power and the Rule of Law in the Marshall Court: A Rereading of Little v. Barreme and Murray v. Schooner Charming Betsy
Jane Manners

Equal Footing and the States “Now Existing”: Slavery and State Equality over Time
James E. Pfander & Elena Joffroy

Reframing Article I, Section 8
Richard Primus

The Other Madison Problem
David S. Schwartz & John Mikhail

Presidential Removal: The Marbury Problem and the Madison Solutions
Jed Handelsman Shugerman

–Dan Ernst

Pfander and Joffroy on Federalists, Slavery and the Equal Footing Doctrine

James E. Pfander, Northwestern University School of Law, and Elena Joffroy, a 2020 graduate of Northwestern Law, have posted Equal Footing and the States "Now Existing": Slavery and State Equality Over Time, which is forthcoming in the Fordham Law Review:

This Essay, a contribution to Fordham’s Symposium on the Federalist Constitution, reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine.

Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the Now Existing Caveat to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.

--Dan Ernst

Van Cleve to Speak on Constitutional Reform

On Friday, April 2, 2021 - 12:00 p.m. to 1:00 p.m. EDT, the National Archives hosts a session on Making a New American Constitution, by George William Van Cleve.  He will explore "the flaws in the United States Constitution that obstruct reforms urgently needed for national unity, proposes amendments, and shows that a new constitutional convention is essential to achieve them. Joining Van Cleve will be professors David Tanenhaus and Julian Maxwell Hayter.”

--Dan Ernst

Paxton-Turner on Continental Originalism

Ashlee Paxton-Turner has posted Continental Originalism: Keeping Our Republic:

Much ink has been spilled on originalism. This we all know. If we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning of the Constitution is this idea of securing the nation’s survival and preserving our union. For all that has been written on originalism, the key theme of union preservation has been consistently overlooked. And when we do not talk about union preservation, we are not faithfully answering what the words of the Constitution meant when they were drafted. Making union preservation our lodestar can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Plainly put, until we start taking the theme of union preservation seriously, we continue to risk our ability to keep our republic.

--Dan Ernst

Weekend Roundup

• 
   A new Talking Legal History is up on the ASLH website. Host Siobhan Barco talks with Joseph E. David about his book Kinship, Law and Politics: An Anatomy of Belonging (CUP, 2020).
  

•  In Immigration: What We've Done, What We Must Do, Allison Brownell Tirres, DePaul University College of Law, asks, How can we envision a world where migrants are offered justice?”  The essay appears in Public Books, an online magazine of ideas, scholarship, and the arts.
  

• Author’s query: “I am working on a book project intended for general readership on U.S. Attorneys-General in the modern era (from Kennedy to Barr and beyond) and would be interested in speaking to any legal historians doing work on or related to that topic."  Joshua Raff, joshuaraff3@gmail.com.
  

• "In his first official action as the [University of South Carolina’s] 29th president, Bob Caslen established the Presidential Commission on University History and charged the group with researching “the complex history of the university.”  More.
  

• “With the nation locked in debates over Confederate symbols, the very document that laid out the legal framework of a government built to preserve slavery will spend its 160th anniversary where it spends nearly every other day: quietly tucked away in a library at the University of Georgia”  (AJC).
  

• Historians of securities regulation might want to view the SEC Historical Society-sponsored discussion with PCAOB's founding board members.  
  

• Yuvraj Joshi, a doctoral candidate at the Yale Law School, has posted Racial Justice and Peace, which is forthcoming in the Georgetown Law Journal.
  

• ICYMI: Remembering the Pakistani Lawyers' Movement (GVS).  Eric Jager on The History Behind Demands for "Trial by Combat" (HNN)
  

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

Vlahoplus on Early Delegations of Federal Powers

John Vlahoplus has posted Early Delegations of Federal Powers, which is forthcoming in the George Washington Law Review Arguendo:

Conservatives have long tried to eviscerate federal administrative law by divining an implicit constitutional doctrine forbidding Congress to delegate its legislative powers. Contemporary originalists continue the effort, arguing that the original meaning of the Constitution includes this doctrine despite its absence from the document’s text. In response, critics have begun to show that early American constitutional history and theory support contemporary administrative law either as a valid delegation of legislative power to the executive branch or as the executive branch executing a statutory directive (or both).

This Article expands on that response and critiques standard originalist arguments for a nondelegation doctrine. It demonstrates that early congressional statutes delegated federal powers to a broad group of actors including private experts acting alone, private experts acting with judicial or executive oversight, and non-federal authorities in addition to federal executive officials. Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions. The delegations included areas demanding expertise or flexible decision-making and required the delegate to balance risks against economic costs. They addressed some of the most critical subjects for the nation’s early government: race, shipping, and the public fisc.

A 1790 statute, for example, protected the health and safety of sailors on foreign voyages. It specified minimum requirements for the types, amounts, and storage of food and water for every sailor. It also provided that each American ship of a certain size and crew "shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled."

Food, water, and medicines have costs, of course. Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea. It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage. But Congress did not. Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration.

The use of experts and administrative law are well within the Constitution’s constraints on the federal government. Conservatives who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments. But they cannot rely on history to claim that the “original meaning” of the Constitution includes a nondelegation doctrine.

--Dan Ernst.  H/t: Legal Theory Blog

Tan, Hoque and friends on constitutional foundings in South Asia

Kevin Y. L. Tan (National University of Singapore/Nanyang Technological University) and Ridwanul Hoque (University of Dhaka/Charles Darwin University, Australia) have co-edited Constitutional Foundings in South Asia, just out with Hart. From the publisher: 

This volume addresses the idea of origins, how things are formed, and how they relate to their present and future in terms of 'constitution-making' which is a continuous process in South Asian states. It examines the drafting, nature, core values and roles of the first modern constitutions during the founding of the eight modern nation-states in South Asia.

The book looks at the constitutions of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. It provides an explanatory description of the process and substantive inputs in the making of the first constitutions of these nations; it sets out to analyse the internal and external (including intra-regional) forces surrounding the making of these constitutions; and it sets out theoretical constructions of models to conceptualise the nature and role of the first constitutions (including constituent documents) in the founding of the modern nation-states and their subsequent impact on state-building in the region.

Table of Contents after the break:

Balkin on Race and Constitutional Time

Jack M. Balkin, Yale Law School, has posted Race and The Cycles of Constitutional Time, which is forthcoming in the Missouri Law Review:

My 2020 book, The Cycles of Constitutional Time, argues that we can understand American constitutional development in terms of three different kinds of cycles. The first is the rise and fall of political regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.

This essay shows how each of these cycles has deep connections to successive political struggles over race and racial equality in the United States.

Each regime’s winning coalition is shaped by the politics of slavery (in the antebellum period) or race (after the Thirteenth Amendment). In several cases, the dominant coalition eventually breaks down because of disputes about slavery or race. The cycle of polarization is also highly correlated with attempts by politicians to make race, and more generally, identity, the central questions that divide the two major political parties. Finally, polarization over race and identity-- along with increasing income inequality--has been an important factor in each period of constitutional rot in the country's history.

I do not claim that race is either the sole or the dominant explanation for the cycles of constitutional time in the United States. Nevertheless, race is a powerful factor, and the politics of race are an important driver of the cycles of regimes, polarization, and rot described in the book. My purpose in this Article is to highlight the role that racial politics plays in the transformations described in The Cycles of Constitutional Time, and to show how questions of race are important at each stage of the story.

--Dan Ernst

Schwartz on the General Welfare Clause

David S. Schwartz, University of Wisconsin Law School, has posted Recovering the Lost General Welfare Clause:

The General Welfare Clause of Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." A literal interpretation of this clause ("the general welfare interpretation") would authorize Congress to legislate for any national purpose, and therefore to address all national problems"including the COVID-19 pandemic"in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called "Spending Power," a power only to spend, but not to regulate, for national purposes. This article argues that both the text and the drafting history of the General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, or the COVID-19 pandemic. It is only our superficial ideological commitment to enumerationism "the doctrine of limited enumerated powers" that causes us to depart from the most evident textual interpretation of the General Welfare Clause. Recovering the lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of founding-era views on federalism.   

--Dan Ernst

Jones to Deliver Chase Lecture

The Supreme Court Historical Society and the Georgetown Center for the Constitution have announced that on Thursday, April 22, 2021, Martha Jones, Johns Hopkins University, will deliver the seventh annual Salmon P. Chase Distinguished Lecture in commemoration the centennial of the adoption of the Nineteenth Amendment.  The event will be held virtually, from 7:00 to 8:30 pm.  To register for this virtual event, click here and complete the form.  Presenters scheduled for the accompanying Faculty Colloquium the next day are, with Professor Jones, Ellen Katz, University of Michigan, Paula Monopoli, University of Maryland,  David Bernstein, George Mason University, and Reva Siegel, Yale University.

--Dan Ernst

Green on the Revolutionary Origins of American Statehood

Craig Green, Temple Law, has published United/States: A Revolutionary History of American Statehood in the Michigan Law Review 119 (2020): 1-70:

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification.

Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the pat. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

--Dan Ernst

Ernst on the Mayflower Compact

Julia L. Ernst, North Dakota Law, has published The Mayflower Compact: Celebrating Four Hundred Years of Influence on U.S. Democracy, North Dakota Law Review 95 (2020): 1-136.  From the introduction:

NYPL

The year 2020 marks the 400th anniversary of the Mayflower Compact, signed by the Pilgrims aboard the Mayflower anchored just offshore from the land that would become Plymouth Colony. This manuscript would become the historical precedent for future seminal documents in the formation of the American governmental system, including the Fundamental Orders of Connecticut, the U.S. Articles of Confederation, the Virginia Declaration of Rights, the Northwest Ordinance, and particularly the U.S. Constitution. As the nation commemorates the quadricentennial of the landing of the Pilgrims in 1620, this paper explores the influence the Mayflower Compact has had on the evolution of democracy in the United States over the past four centuries, tracing both the document’s precursors and its legacy. As many leaders in our country historically and today have endeavored to increase civic virtue and to foster broader participation in the democratic process, this article calls for a greater emphasis in law schools and other educational institutions on the Mayflower Compact and other additional formative documents that have helped shape our constitutional establishment of government.

–Dan Ernst (no relation)

A Lecture Series on “Crisis in Constitutional Democracy" at WSC

The Thomas S. Foley Institute for Public and Public Service at Washington State University is hosting an excellent series of noon-hour lectures, on “crisis in constitutional democracy.”  Eric Foner, DeWitt Clinton professor emeritus of history, Columbia University will deliver the opening Foley Distinguished Lecture, “The crisis in historical context: What the era of Reconstruction tells us,” on Feb. 16.  Bruce Ackerman, Sterling professor of law and political science, Yale University, will follow with his lecture, “Was Trump a Symptom of a Constitutional Dis-Ease?” on Thursday, Feb. 25.  Stephen Skowronek, Pelatiah Perit professor of political and social science, Yale University, will present the third lecture: “The wayward course of American presidential democracy” on Thursday, March 4.  Kim Lane Scheppele, Laurance S. Rockefeller professor of sociology and international affairs, Princeton University, will deliver the final lecture in the series, “The crisis of democracy in global context” on Tuesday, March 16.

"All upcoming and recorded Foley Institute online events can be watched directly from the institute’s YouTube channel. To sign up to receive notifications via email of upcoming events, email tsfoley@wsu.edu.”

–Dan Ernst

Weekend Roundup

• 
  Amanda Frost, Bronfman Professor of Law & Government, American University Washington College of Law, will be speaking on her book You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers online at Politics & Prose on January 28.  More. 
  

• Linda Kerber and Lisa Moses Leff will comment at the first Washington History Seminar of 2021 on at 4 PM ET Monday when David Nasaw discusses his new book, The Last Million: Europe’s Displaced Persons from World War to Cold War.  Register here; watch here.

• Applications for the J. Willard Hurst Summer Institute in Legal History are due on January 15.  This two-week program of the American Society for Legal History for early career scholars will take place June 13-26, 2021.  Information here.

• From the Washington Post's "Made by History" section: Gregory P. Downs (UC Davis) and Kate Masur (Northwestern University), "Yes, Wednesday’s attempted insurrection is who we are."
  

• If you're working on death, this Call for a Royal Holloway virtual conference (15-16 April 2021) may be of interest. Proposals for Until Death Do Us Part: Historical Perspectives on Death and Those Left Behind, 1300-1900 are due Jan.29, 2021.

• And here's another Call for a virtual conference, from the University of Reading (27 April 2021): Medieval Government Finance: Innovation and Experimentation. Proposals due by 19 Feb. 2021.

• “When the Covid-19 pandemic forced the cancellation of conferences and public talks, the editors of the Journal of the Civil War Era organized a series of webinars with historians to discuss new books and research in Civil War era scholarship. The webinars are free, registration required, and the recordings are posted on the JCWE’s YouTube channel.”  The lineup for the first five months of 2021 lineup is here. 

• New from the Alternative Law Forum in Bangalore: a brief introduction to the Preamble of the Indian Constitution.

• ICYMI:  Holly Brewer explains that Thomas Jefferson did not rig the 1800 election (Washington Monthly).  George F. Will doesn’t care for the Slaughterhouse Cases (WaPo).
  

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

Lash on "Bill of Rights" Revisionism

Kurt T. Lash, University of Richmond School of Law, has posted The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists):

Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment.

This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments.

--Dan Ernst

Magliocca on Confederate Amnesty under the 14th Amendment

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted Amnesty and Section Three of the Fourteenth Amendment:

Jefferson Davis, 1885 (LC)

This Article is the first scholarly account of Section Three of the Fourteenth Amendment, which excluded many ex-Confederates from office unless a supermajority of Congress granted a waiver. Section Three was the first part of the Fourteenth Amendment applied by Congress--even before the Amendment was ratified. Section Three was the first part of the Fourteenth Amendment applied by the courts, with Chief Justice Chase's opinion in "Griffin's Case" setting the tone for future Fourteenth Amendment decisions that narrowed the text's scope. And Section Three was the part of the Amendment that received sustained attention in Congress when a broad amnesty was enacted in 1872 and Senator Charles Sumner tried (unsuccessful) to add a broad civil rights amendment to the amnesty bill.

The story of Section Three is a microcosm of the trajectory of the Fourteenth Amendment as a whole during Reconstruction. Radical aspirations were followed by judicial caution and vigorous enforcement by Congress, only to give way to exhaustion with the implacable anger of southern whites over the protests of the first Black Representatives in Congress. And in a final irony, the first man to claim the protection of Section Three (in 1868) was the last man to benefit from congressional relief under that provision (in 1978)--Jefferson Davis. Section Three is a constitutional failure that deserves closer scrutiny.

–Dan Ernst

Konig and Zuckert with Jefferson's Legal Commonplace Book

David Thomas Konig (Washington University in St. Louis) and Michael P. Zuckert (Notre

Dame University) have edited Jefferson's Legal Commonplace Book, which came out with Princeton University Press in 2019. The volume is part of Papers of Thomas Jefferson, second series.

From the press: 

As a law student and young lawyer in the 1760s, Thomas Jefferson began writing abstracts of English common law reports. Even after abandoning his law practice, he continued to rely on his legal commonplace book to document the legal, historical, and philosophical reading that helped shape his new role as a statesman. Indeed, he made entries in the notebook in preparation for his mission to France, as president of the United States, and near the end of his life. This authoritative volume is the first to contain the complete text of Jefferson’s notebook. With more than 900 entries on such thinkers as Beccaria, Montesquieu, and Lord Kames, Jefferson’s Legal Commonplace Book is a fascinating chronicle of the evolution of Jefferson’s searching mind.

Jefferson’s abstracts of common law reports, most published here for the first time, indicate his deepening commitment to whig principles and his incisive understanding of the political underpinnings of the law. As his intellectual interests and political aspirations evolved, so too did the content and composition of his notetaking.

Unlike the only previous edition of Jefferson’s notebook, published in 1926, this edition features a verified text of Jefferson’s entries and full annotation, including essential information on the authors and books he documents. In addition, the volume includes a substantial introduction that places Jefferson’s text in legal, historical, and biographical context.

More information is available here.

--posted by Mitra Sharafi

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