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

A Constitutional History of EU Law

The History of European Union Law: Constitutional Practice, 1950 to 1993 (Cambridge University Press), edited by Bill Davies, American University, and Morten Rasmussen, University of Copenhagen, has been published.  

This formative period of EU law witnessed an intense struggle over the emergence of a constitutional practice. While the supranational institutions, including the European Commission, the European Court of Justice and the European Parliament, as well as EU law academics helped to develop and promote the constitutional practice, member state governments and judiciaries were generally reluctant to embrace it. The struggle resulted in an uneasy stalemate in which the constitutional practice was allowed to influence the doctrines, shape and functioning of the European legal order that now underpins the EU, but a majority of member state governments rejected European constitutionalism as the legitimating principle of the new EU formed on basis of the Treaty of Maastricht (1992). The struggle and eventual stalemate over the constitutional practice traced in this book accounts for the fragile and partial system of rule of law that exists in the EU today.

--Dan Ernst.  TOC after the jump.

A Symposium on Constitutional Interpretation

Texas A&M Law Review 13:2 (2026) is a symposium issue on constitutional interpretation with many contributions of interest to legal historians:

Constitutional Interpretation as Problem Solving: How the Modalities Work
Jack M. Balkin

Originalist Arguments in Free Speech History
Samantha Barbas

Race, Memory, and Authority in Constitutional Interpretation
Henry L. Chambers, Jr.

Memory Warriors, Pluralists, and Abnegators in Constitutional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority
Jed Handelsman Shugerman and Zachary Shugerman Handelsman

Balkin Amid Balkanization: Constitutional Construction, the Uses of History, and Interpretive Discretion in a Divided Country
Neil S. Siegel

Memory and Authority of Failed Constitutional Amendments
Julie C. Suk

Historical Methods of Constitutional Interpretation and Political Gradations
Nelson Tebbe

Roger Taney, Memory Entrepreneur
Anne Twitty

Hermeneutics in History
John Fabian Witt

Remarks: Why Constitutional Argument Matters
Philip Bobbitt

--Dan Ernst 

Petipeti on Continuity in Congolese Constitutional History

Mujinga Pathou Petipeti, University of Kinshasa Faculty of Law, has published The Formation of the State in the Democratic Republic of the Congo: Institutional and Constitutional History of a Quest for the Submission of the State to the Rule of Law in the Open Journal of Political Science:

The formation of the State in the Democratic Republic of the Congo cannot be reduced to the colonial sequence or to the legal arrangements that emerged from the Berlin Conference of 1885. Rather, it must be understood within a much longer historical trajectory in which precolonial political structures, diplomatic relations, colonial transformations, and post-independence constitutional developments progressively shaped the Congolese State. This article examines the institutional and constitutional history of the Congo from the ancient political formations of the Congo Basin to the contemporary constitutional order established by the Constitution of 18 February 2006. By adopting a historical and constitutional approach, the study highlights the existence of organized political authorities and international diplomatic relations long before the colonial period, particularly through the Kingdom of Kongo and its interactions with European powers and the Holy See. It then analyzes the profound transformations introduced by colonial rule, the creation of the Congo Free State, the Belgian colonial administration, and the constitutional struggles that followed independence in 1960. Particular attention is devoted to the authoritarian experience of the Zairean regime under Mobutu and to the constitutional reconstruction of the Democratic Republic of the Congo after 1997. The article argues that the Congolese constitutional trajectory reflects a continuous and unfinished quest to subject state power to the rule of law. While the Constitution of 2006 formally establishes the Democratic Republic of the Congo as a state governed by the rule of law, significant challenges remain in translating constitutional principles into effective institutional practice. The Congolese experience therefore illustrates the broader difficulties encountered by postcolonial states in consolidating democratic governance, institutional stability, and legal accountability within complex historical and geopolitical contexts.

--Dan Ernst 

Grimm on German Constitutional History since 1949

Dieter Grimm has published Constitutional Effectiveness: The Case of Germany's Basic Law with Hart/Bloomsbury:

This book presents a unique account of the social and political impacts of the German Basic Law on the German Republic from 1949 to the present day.

It considers the way in which the history of the Federal Republic of Germany has been decisively influenced by its Constitution, the Basic Law of 1949, and by the jurisprudence of the Federal Constitutional Court.

The book argues that the historiography of the Federal Republic does little to reflect this influence. The Basic Law is mentioned and so occasionally rulings of the Federal Constitutional Court. But the reader does not get the impression that they were of specific importance in Germany before and after reunification.

Legal scholars, on the other hand, are concerned about the legal consequences of the Basic Law, but do not analyse its impact in the real world. There is, thus, a gap between the two disciplines – one not being familiar with social reality, the other not familiar with the normativity of the law. The history of the effectiveness of the constitution falls into this gap.

In this book, Dieter Grimm, himself a Justice of the Federal Constitutional Court from 1987 to 1999 and an expert on interdisciplinary research in law, history and political science, guides the reader through important developments and events that were determined or influenced by the constitution and its judicial interpretation.

--Dan Ernst 

Chowdhury to Lecture on the British Constitution, Capitalism and Constitutional Change

Tanzil Chowdhury, Queen Mary University of London, will lecture on The British Constitution, capitalism and constitutional change at ANU Law School on March 4 2026 from 1:00pm - 2:00pm:

This talk is from Associate Professor Chowdhury's current book project that examines the transformation of the British Constitution over the last century. His argument is that we cannot understand significant changes to the British constitution without understanding the broader historical developments in capitalist social relations and the significant social antagonisms that have occurred throughout the last 100 or so years. Capitalism is a totality of different social relations and processes oriented around the value form; different social relations (economic, but also political, legal, cultural, moral etc) which are all important to the reproduction of that social totality. 

Contrary to heteronomous theories of constitutional change (including some Marxist ones), this project seeks to understand constitutions (the different institutional combinations of state and social power, subject formations, forms of mediation and characterisations of legality) as having an internal relation with capitalist social relations. In that sense, constitutions cannot be abstracted from capitalist social relations and are in fact, as he will argue, historically specific to capitalism. 

However, even though constitutions are internally related to capitalist social relations, that does not mean that capitalist societies are not fraught with all manner of tensions, contradictions and ruptures. This is not therefore a rigid economistic and deterministic theory of constitutional development, but one which takes seriously the historical distinctness of the legal form, constitutionalism, and the specific work they do (or not) in the reproduction of capitalist social relations. 

Constitutionalism, as he will argue, operates at different levels within the contradictory totality of capitalist social relations. Changes to the British constitution are the results of specific forms of struggle over the reproduction of capitalist social relations. In this paper, he will set out some examples of this theoretical approach and focus on how I will periodise the last century of the British constitution which connect to distinct forms of what I will call historical forms of capitalist constitutionalism.

--Dan Ernst 

Siddali to Speak on 19th-Century US Constitutions in Comparative Perspective

[Via H-Law, we have the following announcement.  DRE.]

Please join the State Constitutions Lab on Thursday February 26 @ 1:00 PM (Eastern US) for a Zoom seminar with Silvana R. Siddali, [St. Louis University, to discuss her paper "Fire Eaters, Revolutionaries, and the Rule of Law: Nineteenth Century State Constitutions in Comparative Perspective."

[Professor Siddali's] area of specialization includes constitutional, legal, and political history of the United States, in particular, the role of human rights in the development of democratic and judicial institutions.  Her current book, Transatlantic Constitution-making: Struggles over Democracy, the Rule of Law, and Human Rights, 1820-1870 is under contract at Johns Hopkins University Press and focuses on nineteenth-century transatlantic political communities that were connected through an exchange of ideas, trade, migrations, and technological innovations.

This meeting will be held on Zoom and a copy of the paper will be sent to all who RSVP here.

Blackhawk on Time and the Constitution

Maggie Blackhawk, New York University School of Law, has posted Foreword: The History of the Constitution is Our Future, which is forthcoming in the Michigan Law Review:

As constitutional interpretation becomes rooted ever more deeply into the past the Constitution seemingly has less and less to say about our present. It seems to offer little principled direction for navigating what many describe as a constitutional crisis. On questions ranging from birthright citizenship and territorial acquisition to aggressive federal immigration enforcement, executive intervention beyond U.S. borders, and the “history and tradition” of annexed territories such as Hawai’i, the Constitution’s familiar sources of authority and traditional narratives seem to falter. These domains appear to tread into empty constitutional landscapes and newly discovered territory.  

Scholars have increasingly traced this backward-looking orientation to conservative legal movements of the last half century. But the impulse to seek constitutional meaning in the past is not new. Long before the Supreme Court embraced originalism, and long before the modern turn to “history and tradition,” jurists and scholars assumed that the Constitution could not be understood apart from its origins and development. Constitutional meaning was thought to emerge from historical inquiry. The question, then, was not whether constitutional interpretation should engage with the past, but which past—and through what historical method. 

This Foreword argues that our present constitutional impasse stems, at least in part, not solely from excessive attention to the past but from fixation on a particular kind of past. Modern constitutional theory, I suggest, has been increasingly bounded by what scholars in the historical and social sciences call a methodological nationalism. By nationalism, I do not mean to invoke familiar federalism debates. Nor do I use the term nationalism as a pejorative or a critique of those whose research centers the United States and its founders. 

Rather, I seek to draw attention to a shared theory of the Constitution as the legal expression of a bounded people, unfolding within a stable territorial space, and progressing through a coherent national narrative over time. Within this account, constitutional history exalts moments of founding, amendment, and judicial interpretation, resting on the premise that the nation sprung, whole cloth, from those moments. This account presses to the periphery histories that fall outside the modern nation-state—including, for example, the movement and establishment of borders, the acquisition and governance of new lands and peoples, and processes of development that led to stable borders and the presumed homogeneity of institutions, peoples, and laws over time. 

This Foreword recovers an alternative approach to constitutional history, one developed by the founders of American history and since largely abandoned, but once central to constitutional thought. Because these earlier methods developed before the consolidation of a stable nation, they did not take the modern nation-state as their starting point. Instead, they examined how the Constitution was used to produce the nation itself: to draw and redraw borders, to acquire and govern territory, to organize and govern non-subject populations, to determine the terms of political membership, and to authorize the projection of power across the continent and beyond. 

By centering a constitutional history that unsettles the presumption of timeless nationalism, this Foreword shows that many of the most pressing constitutional controversies are not beyond the reach of the Constitution but are, instead, at its core. 

--Dan Ernst 

Weekend Roundup

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

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

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

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

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

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

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

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

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

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

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

Mikhail on Birthright Citizenship and Unwritten Constitutionalism

My Georgetown Law colleague John Mikhail has posted Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union, which is forthcoming in the Yale Journal of Law & the Humanities:

Many of Jonathan Gienapp’s core arguments in his outstanding new book, Against Constitutional Originalism, are well-taken, and they represent important challenges to any theory that focuses unduly on the text of the Constitution at the expense of other, non-textual considerations. Yet readers familiar with the history of birthright citizenship might recognize problems lurking on the horizon. A useful way to appreciate the main problem is to recall how Roger Taney approached the topic of American citizenship in Dred Scott v. Sandford. According to Taney, the text of the Constitution could not resolve this foundational issue because it could not, on its own, specify what kind of federal union stood beneath it. Instead, what was required was a proper understanding of the nature of the political community that formed the "People of the United States” in the first place. Much like Gienapp does, Taney insisted that the Constitution’s meaning was shaped by the nature of the polity, and the nature of the polity could not be derived from the written instrument alone, but required an appeal to history, sociology, and political theory. Or as Taney put the point in a famous passage: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government, through their representatives. They are what we familiarly call ‘the sovereign people,’ and every citizen is one of this people and a constituent member of this sovereignty.”

So, do Jonathan Gienapp and Roger Taney see eye-to-eye when it comes to the need for constitutional interpreters to go beyond the text to theories of union and sovereignty? Is there a convergence here that might teach us something about the risks of appealing to concepts such as “social contract theory,” “unwritten constitutionalism,” and “the nature of the Union” as a counterpoint to originalism and the written Constitution? And what precisely are the implications of Against Constitutional Originalism—and of originalism itself—for the birthright citizenship debate? This invited essay on Gienapp's stimulating book does not seek to answer all of these questions directly, but to begin laying the groundwork for doing so by exploring two topics that bear on them: citizenship in the original Constitution, as interpreted in Dred Scott, and birthright citizenship, as defined in the Fourteenth Amendment and interpreted in Elk v. Wilkins.  Both of these cases involve race, racism, and unwritten constitutionalism, and both of them turn on tacit theories of union, sovereignty, and the American polity. After discussing these topics, the Essay concludes with a few additional reflections on the government's legal defenses of the president’s Executive Order on birthright citizenship.

--Dan Ernst 

Katz on the Uruguayan Plebiscite of 1980

Andrea Scoseria Katz, Washington University in St. Louis School of Law, has posted No Higher Law: The Uruguayan Plebiscite of 1980 as a Failed Constituent Moment:

On November 30, 1980, the people of Uruguay were called on to vote on a new constitution whose objective was to legalize the military dictatorship that had ruled Uruguay since 1973. The proposed constitution would reestablish elections, political parties, and an independent judiciary, but all subject to overrule by the National Security Council (COSENA), the junta of military leaders that acted as the nation's de facto ruling body. Despite the highly repressive political environment in which the plebiscite was held, the citizenry rejected the draft in resounding fashion by a vote of 57% to 43%. Although the Plebiscite of 1980 was certainly a "failure" from the regime's point of view, it is considered a founding moment in Uruguayan history during which the dictatorship was delegitimized and the process of redemocratization triggered, culminating in a democratic transition in 1985. This case illustrates that constitutional failures can be successes in the long term when they launch deeper processes of democratization or constitutionalism.

--Dan Ernst

Weekend Roundup

• A notice of Daniel Gervais's book chapter, “Trade Secret Law in the United States: Evolution, Framework, and Federalization" (Vanderbilt Law).

• The Brennan Center for Justice has published a resource on "Countering Originalism." The Center explains: "This guide offers lawyers strategies, arguments, and citations to address originalist claims they encounter in litigation."

• Trump v. Slaughter Roundup, Round 2: Jane Manners and Lev Menand on the original meaning of a term of years (Notice & Comment).  Originalism, what originialism? (Slate). Menand fact checks the oral argument (Notice & Comment).  Noah Rosenblum on Vox's Today Explained. Beau Baumann and Nathaniel Donahue discuss the oral arguments (PPT).

• 

  Credit: Highsmith (LC)

  Save Ben Shahn's "Meaning of Social Security"! (NR). 

• Paul Finkelman reviews Brad Snyder's You Can’t Kill a Man Because of the Books He Reads (LARB). 

• A new exhibit on foundational documents of Ohio constitutional history (CNO). 

• Time's "Made by History": The historians on Ken Burn's "American Revolution").    

• That National Constitution Center session on Robert H. Jackson with John Q. Barrett, Gerard Magliocca, and G. Edward White has now been posted to the NCC's YouTube channel.

• Robert Tsai discusses America’s Forgotten Constitutions (Democratic Constitution).

• ICYMI: Nick Salvatore (1943-2025) (Ithaca Voice).  More Lepore (Persuasion).  John Yoo on birthright citizenship (Fox). How the Immigration Act of 1924 Tried to Reshape America (History).

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

Prakash and Sunstein on Radical Constitutional Change

Saikrishna Bangalore Prakash and Cass R. Sunstein have published Radical Constitutional Change in the Virginia Law Review:

At defining points in American history, there have been radical constitutional changes, defined as massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles and widely accepted frameworks are discarded as erroneous, even illegitimate, in favor of new principles and frameworks. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution—its core commitments and underlying narratives. These radical, dizzying changes often trigger a sense of “constitutional vertigo,” particularly in those wedded to the old order. Our goal is to provide a conceptual map and to describe how and why radical constitutional change occurs and the vertigo that it precipitates. First, we ask whether theories of interpretation trigger radical change, or whether desires for fundamental change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many people experience a form of vertigo. Third, we investigate the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” (sometimes authorizing or leading to radical change driven by the president or Congress) and the less familiar top-down approaches, where legal elites push for and then impose a new constitutional regime.

--Dan Ernst 

Weekend Roundup

• The Harvard Law Library’s rich collection on Magna Carta
 ""offers students an important link to the past and the present" (Harvard Law Bulletin).   

• In an online program at Noon on November 4, 2025, the Supreme Court Historical Society will host a conversation by the authors of two published this fall on Justice Robert H. Jackson: G. Edward White, author of Robert H. Jackson: A Life in Judgment, and Gerard Magliocca, author of The Actual Art of Governing: Justice Robert H. Jackson’s Concurring Opinion in the Steel Seizure Case.  Register here.

• Scott Bomboy's explainer on the Posse Comitatus and Insurrection Acts (National Constitution Center).  

• Richard Re on Julian Mortenson's "The Executive Power Clause" and the history of presidential removals (Divided Argument).  

• In the October 16 session of the of the Berkeley Legal History Workshop, "Hendrik Hartog will reflect on the development of the field of legal history and discuss inter-disciplinary collaboration in the legal context" (UC Berkeley Law).

• Clark University's notice of Aziz Rana's Constitution Day lecture on American Constitutional History (ClarkNews).  

• We missed Temple Law's story on Craig Green and the contribution of history to legal education when it appeared this summer (Temple Law News). 

• We don't believe we realized that there is a biennial conference of the Children's History Society. 

• The University of Nevada, Las Vegas seeks an Assistant Professor specializing in the history of Indigenous North America. 

• Two of the three recipients in Berkeley’s JSP program recently named Berkeley Empirical Legal Studies Graduate Fellows are studying legal history.  “Michael Banerjee is researching the legal history of American universities and academic freedom, and Margot Lipin is studying the nexus of legal history, policing, and fashion” (UC Berkeley Law).

• "The University of Northern Iowa's Center for Civic Education has received a $1.22 million grant from the U.S. Department of Education . . . . to strengthen civic education for students statewide. The program will include seminars on civic virtues and Iowa's constitutional history, reaching educators through various formats such as high school teacher seminars, intensive sessions for UNI teaching majors, and workshops for elementary teachers( KWWL). 

• The blog Public Law, Policy, and Public Administration blog conveniently gathers links to all the sites you need to keep up to speed with the Supreme Court during its present term.  Scroll down to the post dated October 7. 

• An essay on the presidents of the Florida State Bar Association from 1907 through 1949 (Florida Bar News). 

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

• Martti Koskenniemi delivered 2025 Leo Mechelin Keynote Lecture at the Rule of Law Day observance by the University of Helsinki’s Rule of Law Centre and the Leo Mechelin Foundation (ESCLH). 

• ICYMI: Twelve Failed Constitutional Amendments That Could Have Reshaped American History (Smithsonian). More Lepore (NPR; CSM; Big Think; Foreign Policy). Steven Calabresi (and Gordon Wood) on Akhil Reed Amar's Born Equal (Volokh Conspiracy). Justice Anthony Kennedy on the Origins of "Equal Justice under Law" (NYT). "The Pendle witch trials will haunt [Lancashire's] past forever" (LancsLive). Chattanooga lawyers mourned the death of Judge Charles Dickens Clark in 1908 (Chattanooga Times Free Press).

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

Bilder on Macaulay's "Free Constitution"

Mary Sarah Bilder, Boston College Law School, has published The Real Genius of the Constitution: The Free Constitution, which is forthcoming in the Yale Journal of Law and the Humanities:

Catharine Macaulay (wiki)

“To virtually all originalists, the Constitution’s defining feature is that it is a written text.” So points out historian Jonathan Gienapp in his thoughtful analysis of originalist arguments. Indeed, writtenness has become a, if not the, defining feature of the Constitution in fields beyond originalism. This perception stems from a historical account of the transformation of constitution in which writtenness was casually highlighted. But this account missed the critical transformation: a free constitution arose in place of the centuries old monarchical constitution.

Some years ago while reading the first volume of eighteenth-century historian Catharine Macaulay’s History of England, I noticed her repeated use of constitution. The appearance of the word was not surprising: Robert Acherly’s The Britannic Constitution: or the Fundamental Form of Government in Britain (reprinted 1759), Bolingbroke’s A Dissertation upon Parties (reprinted 1754), and David Hume’s History of the Stuarts (1754) were awash with the word. But Macaulay’s constitution was different. Sometimes she used it in conventional ways to refer to the body or existing political arrangements or an ancient Saxon establishment. But more often constitution was the standard which the Stuart monarchies violated. Its legitimacy lay in the people–not in an ancient constitution or Glorious Revolution settlement. It emphasized representation. It did not require a king or house of lords. It was, to use Macaulay’s term, democratical.

This constitution was the free constitution. Macaulay used that term, and I adopt it for this new conception of constitution that arose in the aftermath of George III’s accession. Macaulay’s popular four-volume History (1763-1769) was an influential early expositor. Between 1764 and 1768, James Otis and Samuel Adams developed a corollary contribution appearing in public letters, published as True Sentiments of America (1768). Writers and political actors on both sides of the Atlantic came to believe in the attainability of the free constitution. The revolutionary and 1787 constitutional instruments were efforts to work out the practical, structural, and conceptual problems of the free constitution, and writtenness the continuation of a familiar technology. The free constitution is the real genius of the Constitution. 

--Dan Ernst

Del Mar's "Neil McCormick"

Maksymilian Del Mar, Queen Mary University of London, has published Neil MacCormick: A Life in Politics, Philosophy, and Law (Cambridge University Press):

Neil MacCormick (1941–2009) was one of the twentieth century's most important legal philosophers and one of Scotland's most influential public intellectuals. This book tells the story of his political and philosophical life, from his intensely political childhood as the son of 'King John', one of the founders of the Scottish National Party, through to his involvement in Scottish politics – especially as the author of SNP's constitutional policy – and his role as a Member of the European Parliament, helping to draft the European Constitution. With special attention to MacCormick's character, this book offers a reading of his entire oeuvre, covering his contributions to theories of legal and moral reasoning, institutional legal theory, nationalism, post-sovereignty, subsidiarity, and constitutional pluralism in Europe. This book reads MacCormick as a highly creative thinker who excelled in the art of constructing inclusive middles and thereby developed his own distinctive approach to politics and philosophy.

--Dan Ernst 

Siegel on Democratizing Constitutional Memory

Reva Siegel, Yale Law School, has posted Foreword: Democratizing Constitutional Memory, which is forthcoming in the Michigan Law Review:

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion.  The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

To refute that account, this Foreword demonstrates that appeals to the past in constitutional law, whether true, false, or selective, are commonly elements of normative arguments about our identity and obligations as a people that I term “constitutional memory” claims. I examine gaps between constitutional memory and constitutional history to show how claims on the past in law can conceal, rather than constrain, the expression of judicial values—illustrating through a brief consideration of Dobbs v. Jackson Women’s Health Organization, the decision reversing the abortion right.

Analyzing gaps between constitutional memory and constitutional history refutes core premises of the judicial constraint claim. Importantly, it brings into view new interpretive possibilities for “democratizing memory,” which the Foreword concludes by exploring.

Many critics of conservative historicism would spurn historical-based argument altogether in favor of argument from principle. But there are good reasons to combine argument from principle and memory. The point is not to accommodate the powerful. To the contrary: As we appreciate the pervasive gaps between history and memory in constitutional law, we can ask whose voice, experience, and perspective does law represent? Whose is absent? And how might we democratize constitutional memory and represent in law the perspectives of those unjustly denied voice in the making of American law for much of the nation’s history?  In recalling efforts of the disfranchised to speak—whether by petitioning lawmakers or by resisting law—we can expand our accounts of constitutional lawmaking and identify new authorities to guide the application of constitutional principles.

Including these stories can reorient the law today. To take but one example: When we democratize constitutional memory—considering not only the views of lawmakers but of the people—we can see that American understandings of liberty include freedom from coercion in sex, reproduction, and family life.

--Dan Ernst

Campbell on Founding-Era Notions of Constitutional Rights

 "Determining Rights," an article by Stanford Law's Jud Campbell, is now out in the Harvard Law Review:

This Article explores Founding-era views about the grounding of constitutional rights and how those rights obtained determinate legal content. Today, we typically view constitutional rights as textually grounded, gaining their force through ratification, and we treat the task of determining their content as a question of law — that is, a question for judges to decide using legal criteria. But the designers of the Bill of Rights did not share that vision. In the eighteenth century, fundamental rights were often grounded in natural or customary law rather than in enacted text, and enumerating them was usually declaratory, marking their existence without altering their meaning. Moreover, determining the content of underdeterminate rights was up to the people themselves, often through ordinary politics. To be sure, it was possible to determine rights textually, as exemplified by the amount-in-controversy threshold in the Seventh Amendment. By and large, however, members of the First Congress rejected this specificatory approach in favor of declaratory provisions, as exemplified by the First Amendment’s simple reference to “the freedom of speech, or of the press.” In so doing, the Bill of Rights mostly reaffirmed the existence of natural and customary rights, without determining their content. Recovering this history is especially timely, with so many features of rights jurisprudence now in flux. Seeking a historical anchor, some Justices have recently embraced a “text and history” approach that asserts fidelity to original meaning. This method, however, proceeds from mistaken historical assumptions and creates a distorted image of the original Bill of Rights. Yet a historically guided path forward is far from clear in a legal culture that rejects many of the conceptual premises of Founding-era constitutionalism. As a work of intellectual history, this Article cannot tell us where to go from here. But it reveals forgotten ways of thinking that merit consideration as the Supreme Court continues to determine our rights, whether it admits so or not.

--Dan Ernst

A Dicey Anthology

The anthology Twenty-First Century Perspectives on the Scholarship of AV Dicey: The Enduring Legacy of a Victorian Constitutionalist (Hart/Bloomsbury), edited by Catherine Marshall and Céline Roynier, has been published:

Every student in law and in politics, every law faculty and most legal practitioners in the world are aware of who Albert Venn Dicey (1835–1922) was and what he wrote. Yet, this fame does not mean that Dicey's legacy is not controversial and debated in the present world. This book considers why Dicey's late Victorian constitutional and political thinking is still alive. In spite of all the transformations that have taken place in public law in the UK in the last hundred years, the book argues that Dicey managed to grasp and to crystallise something of the British political identity and culture. Hence the long-lasting fire-power of his constitutional and political thinking.

The book also considers that there is something even more prescient in Dicey's writings, for the UK but also for countries that have adopted his understanding of the rule of law and/or of parliamentary government. Dicey identified one of the most fundamental political issues at stake: the nature of the relationship between public law and democracy. The book looks closely at the alliance between public law and democratic spirit. This alliance needs to be reassessed from a legal, historical and comparative perspective. This edited collection, gathering authors from different countries, from various legal systems and from diverse backgrounds, tackles this task.

TOC after the jump

--Dan Ernst

Walters's "Dicey and the Common Law Constitutional Tradition"

When it appeared, we somehow overlooked Mark D. Walters's A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge University Press), so we’re noting it now:

 In the common law world, Albert Venn Dicey (1835–1922) is known as the high priest of orthodox constitutional theory, as an ideological and nationalistic positivist. In his analytical coldness, his celebration of sovereign power, and his incessant drive to organize and codify legal rules separate from moral values or political realities, Dicey is an uncanny figure. This book challenges this received view of Dicey. Through a re-examination of his life and his 1885 book Law of the Constitution, the high priest Dicey is defrocked and a more human Dicey steps forward to offer alternative ways of reading his canonical text, who struggled to appreciate law as a form of reasoned discourse that integrates values of legality and authority through methods of ordinary legal interpretation. The result is a unique common law constitutional discourse through which assertions of sovereign power are conditioned by moral aspirations associated with the rule of law.

--Dan Ernst