Twomey's "Veiled Sceptre"

Anne Twomey, University of Sydney, has published The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems in the series Cambridge Studies in Constitutional Law.  The book draws upon much original historical research in archives in former British colonies, including Canada, Australia, New Zealand, India, Malaysia, and many Caribbean and South Pacific nations.

This book is a comprehensive review and analysis of the reserve powers and their exercise by heads of state in countries that have Westminster systems. It addresses the powers of the Queen in the United Kingdom, those of her vice-regal representatives, and those of heads of state in the less studied realms and former colonies that are now republics. Drawing on a vast range of previously unpublished archival and primary material, The Veiled Sceptre contains fresh perspectives on old controversies. It also reveals constitutional crises in small countries, which have escaped the notice of most scholars. This book places the exercises of reserve powers within the context of constitutional principle and analyses how heads of state should act when constitutional principles conflict. Providing an unrivalled contemporary analysis of reserve powers, it will appeal to constitutional scholars worldwide and others involved in the administration of systems of responsible government.

TOC after the jump

Zinos on Fundamental Rights in Early American Case Law

Nicholas Zinos, Mitchell Hamline School of Law, has posted Fundamental Rights in Early American Case Law: 1789-1859, which is forthcoming in volume 7 of the British Journal of American Legal Studies:

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

Eisenstadt on Religion and Loving

Leora F. Eisenstadt, Temple University, has posted Enemy and Ally: Religion in Loving v. Virginia and Beyond, which is forthcoming in volume 86 of the Fordham Law Review:

In his 1965 opinion refusing to vacate the convictions of Richard and Mildred Loving, Judge Leon M. Bazile of Caroline County Circuit Court wrote," Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix." Throughout the Loving case, religion appeared both overtly and subtly to endorse or lend credibility to the arguments against racial mixing. This use of religion is unsurprising given that supporters of slavery, white supremacy, and segregation have, for decades, turned to religion to justify their ideologies. What is remarkable in the Loving case, however, is an alternate use of religion, not to justify white supremacy and segregation but instead to highlight the irrationality of its supporters’ claims. In a brief but memorable interaction during oral arguments, Chief Justice Warren analogized interracial relationships to interfaith ones and managed, in a few words, to underscore the absurdity of treating religion and race differently under the law. The inherent tension between religion as both enemy and potential ally of those with vulnerable social identities is the subject of this essay. The fact that Loving incorporates both aspects of religion is telling. The story of America’s progression toward equal treatment of race, gender, and sexual orientation is inherently intertwined with religion, and the fiftieth anniversary of the Loving case provides an unparalleled opportunity to explore both sides of this fraught relationship.

Edwards on FDR and the Gold Clause Cases

Sebastian Edwards, the Henry Ford II Professor of International Economics at the University of California, Los Angeles, has published American Default The Untold Story of FDR, the Supreme Court, and the Battle over Gold with Princeton University Press:

The American economy is strong in large part because nobody believes that America would ever default on its debt. Yet in 1933, Franklin D. Roosevelt did just that, when in a bid to pull the country out of depression, he depreciated the U.S. dollar in relation to gold, effectively annulling all debt contracts. American Default is the story of this forgotten chapter in America's history.

Sebastian Edwards provides a compelling account of the economic and legal drama that embroiled a nation already reeling from global financial collapse. It began on April 5, 1933, when FDR ordered Americans to sell all their gold holdings to the government. This was followed by the abandonment of the gold standard, the unilateral and retroactive rewriting of contracts, and the devaluation of the dollar. Anyone who held public and private debt suddenly saw its value reduced by nearly half, and debtors--including the U.S. government—suddenly owed their creditors far less. Revaluing the dollar imposed a hefty loss on investors and savers, many of them middle-class American families. The banks fought back, and a bitter battle for gold ensued. In early 1935, the case went to the Supreme Court. Edwards describes FDR's rancorous clashes with conservative Chief Justice Charles Evans Hughes, a confrontation that threatened to finish the New Deal for good—and that led to FDR's attempt to pack the court in 1937.

At a time when several major economies never approached the brink of default or devaluing or recalling currencies, American Default is a timely account of a little-known yet drastic experiment with these policies, the inevitable backlash, and the ultimate result.

Freedman's "Making Habeas Work"

Eric M. Freedman, the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at the Maurice A. Deane School of Law at Hofstra University, has published Making Habeas WorkA Legal History, with NYU Press.

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

Here are some endorsements:

“Eric M. Freedman is one of the most important legal thinkers in the area of habeas corpus, and this book reaffirms that status. Keeping one foot in the present and the other firmly planted in the past, Freedman shows how, without the perspective of history, modern jurisprudence can and does go wrong. A compelling reformulation of our understanding of habeas based on extensive historical research.”
 —Austin Sarat, William Nelson Cromwell Professor Of Jurisprudence & Political Science, Amherst College

“This impressive work of scholarship by one of the leading national experts on habeas corpus draws deeply on history to expand and enrich the modern understanding of the writ. The book is an invaluable resource for legal scholars, the judiciary, and the practicing bar. Its insights will almost certainly surprise  readers, just as they have surprised and informed us notwithstanding our long immersion in the topic.”
—Randy Hertz and James S. Liebman, co-authors, Federal Habeas Corpus Practice and Procedure (LexisNexis 7th ed. & annual supplements)

“Professor Eric Freedman has written a wonderful book explaining the historical and contemporary importance of habeas corpus in protecting liberty.  The book is original in its research and also in its analysis, as Professor Freedman explains the role of habeas corpus in a system of checks and balances.  This clearly written, thorough examination of habeas corpus is an important contribution to the literature of constitutional law, criminal procedure, and federal jurisdiction.”
—Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor, University of California, Berkeley Law School

Ngcukaitobi on Black Lawyers and Constitutionalism in South Africa

Tembeka Ngcukaitobi has published The Land is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa with Penguin Random House South Africa:

The Land Is Ours tells the story of South Africa’s first black lawyers, who operated in the late nineteenth and early twentieth centuries. In an age of aggressive colonial expansion, land dispossession and forced labour, these men believed in a constitutional system that respected individual rights and freedoms, and they used the law as an instrument against injustice.

The book follows the lives, ideas and careers of Henry Sylvester Williams, Alfred Mangena, Richard Msimang, Pixley ka Isaka Seme, Ngcubu Poswayo and George Montsioa, who were all members of the ANC. It analyses the legal cases they took on, explores how they reconciled the law with the political upheavals of the day, and considers how they sustained their fidelity to the law when legal victories were undermined by politics.

The Land Is Ours shows that these lawyers developed the concept of a Bill of Rights, which is now an international norm. The book is particularly relevant in light of current calls to scrap the Constitution and its protections of individual rights: it clearly demonstrates that, from the beginning, the struggle for freedom was based on the idea of the rule of law

Coffey's "Drafting the Irish Constitution"

Donal K. Coffey, Senior Research Fellow, Max Planck Institute for European Legal History, has just published Drafting the Irish Constitution, 1935–1937: Transnational Influences in Interwar Europe, with Palgrave Macmillan:

The second of two volumes, this book situates the drafting of the Irish Constitution within broader transnational constitutional currents. Donal K. Coffey pioneers a new method of draft sequencing in order to track early influences in the drafting process and demonstrate the importance of European influences such as the German, Polish, and Portuguese Constitutions to the Irish drafts. He also analyses the role that religion played in the drafting process, and considers the new institutions of state, such as the presidency and the senate, tracing the genesis of these institutions to other continental constitutions. Together with volume I, Constitutionalism in Ireland, 1932–1938, this book argues that the 1937 Constitution is only explicable within the context of the European and international trends which inspired it.

We’ll note when the (chronologically) first volume is out!

On Choosing a Protagonist

This may sound strange, but in The Sit-Ins I wrote a book whose protagonist is a constitutional claim. The student activists are the heroes of the book; their bold actions set the story in motion. But the principal character of that story is a claim about what the Constitution means.

That claim, in its simplest form, is that the Fourteenth Amendment’s equal protection clause prohibits racial discrimination in “public accommodations”—the legal term for privately owned and operated businesses that serve the general public. This is my protagonist. It strides on the scene in the opening pages. I offer some backstory, letting the reader know where this character has been and why its appearance is so disruptive and challenging. I then set my protagonist in motion. 

 

Narrowing my focus along certain dimensions—a single legal claim, charted over a five-year period—allows me to expand my cast of characters and institutional settings. Each of the book’s chapters revolves around a distinctly situated group of people who confronted this claim: the student protesters, civil rights lawyers, movement sympathizers, civil rights opponents (a group that included white business owners, southern state officials, racist demagogues, and libertarian ideologues), the justices of the U.S. Supreme Court, and federal lawmakers who played a role in the passage of the Civil Rights Act of 1964.

The lunch counter sit-in protests in the spring of 1960 made this Fourteenth Amendment claim a salient, urgent national issue. Although the students initiated the sit-ins with little conscious intention of making a formal claim of constitutional reconstruction, their actions sparked a wide-ranging debate on the scope of the constitutional meaning of equality. The book follows this claim as it travels up and down the legal and political landscape of early-1960s America.

Soon after the protests begin, civil rights lawyers translated the students’ bold claims for dignity and equality into the language of judicial doctrine. Outside sympathizers translated these same claims into the language of “popular constitutionalism”—the rich blend of legal norms, moral sensibilities, and public policy with which the American people contest, and sometimes remake, the meaning of the Constitution. Opponents too played a role in the story, launching a constitutional counter-offensive in which they proclaimed that private business operators had a “right to discriminate.”

In the closing chapters, our protagonist moves into more conventional legal settings. At the Supreme Court, the justices struggled with the legal issues raised by the sit-ins. They were hesitant to give the civil rights movement another sweeping Brown-like constitutional victory—at least not on this particular constitutional claim. The justices overturned protester convictions in the sit-in cases, but they did so on narrow grounds, concluding that there was insufficient evidence to support a conviction or that there was direct state encouragement of or involvement in the lunch counter manager’s decision to discriminate. The ultimate victory of the claim set in motion by the sit-in movement came not from the Supreme Court but from Congress. Title II of the Civil Rights Act of 1964 effectively outlawed racial discrimination in public accommodations across the nation.

Choosing the right protagonist is surely one of the most important choices any writer makes. Legal historians may select a person or group of people as their protagonists, but often the more useful and appropriate protagonist is something else: an institution, such as a court or administrative agency; a city; a text; or a legal claim.

For my story, choosing a constitutional claim as my central character allows me to explore how this claim fared in different contexts and different institutional settings. I have character development. My claim evolved over time; the way in which one institution treated the claim affected how other institutions subsequently evaluated it.

Of course selecting a protagonist comes with tradeoffs. My story lacks a constant cast of characters, for example. People come to center stage and then fade into the background, sometimes to reappear, but not always. It all depends on where my protagonist’s next challenge lies. So the student protests who feature so prominently in my early chapters are largely off stage by the closing chapters, when my protagonist is occupied at the Supreme Court, the White House, and Congress.  The protagonist needs to work for the story you’re trying to tell.

Furner on Freedom of Contract and the Police Power in Gilded Age America

Mary O. Furner, University of California, Santa Barbara, has published Defining the Public Good in the U.S. Gilded Age, 1883-1898: “Freedom of Contract” versus “Internal Police” in the Torture History of Employment Law and Regulation, in the (gated) Journal of the Gilded Age and Progressive Era 17 (April 2018): 241-275.  Here’s an extract:

Long recognized as a case that left tenement cigar workers in New York City unprotected from hazards to their health, the New York State high court's In re Jacobs ruling in 1885 also raised anew disagreements regarding the extent of legislative powers known as “police” that were reserved to the states by the federal constitution. Upholding unfettered freedom of contract, the Jacobs ruling prevailed as a governing precedent through a string of related cases until its reversal in Holden v. Hardy, 1898, a working hours law for Utah miners and smelter workers. Between Jacobs and Holden, new thinking emerged on the meaning of class, the role of government, and the drivers of the wealth of nations. In Holden, drawing from Munn v. Illinois, the U.S. Supreme Court located a public interest in sustaining the health and strength of such workers on the grounds that the entire public depended on their productive capacity to ensure the public good of a strong and growing state economy. This precedent did not hold for New York State bakers in Lochner v. New York, but it became controlling again in West Coast Hotel v. Parrish, which elevated the broadened conception of “police” from Holden to the national level. As labor union membership along with other vital structures of the New Deal order have declined during the New Gilded Age, employment regulation has tended to relapse toward the individualist, contractarian regime of the Old Gilded Age announced in In re Jacobs.

Oakes to Lead ICH Seminar on Antislavery Constitutionalism

[Our friends at the Institute for Constitutional History have announced another seminar for advanced graduate students and junior faculty, "Antislavery Constitutionalism," led by James Oakes, Distinguished Professor of History and Graduate School Humanities Professor at the Graduate Center of the City University of New York, and the author of Freedom National: The Destruction of Slavery in the United States, 1861-1865 and The Scorpion's Sting: Antislavery and the Coming of the Civil War.]

Credit: James Oakes

Description.  Sooner or later every major political dispute becomes a dispute over the Constitution.  This is as true today for issues such as abortion rights, gun control, and the war powers of the president, but if anything it was even more true in the nineteenth century, when differences over banks and tariffs became differences over what the Constitution did or did not allow.  But nowhere did the Constitution figure more prominently than in the increasingly rancorous debates over slavery.  Indeed, what the Constitution did or did not allow the federal government to do about slavery was present at the creation of the Constitution in the Philadelphia convention of 1787.  For decades scholars have investigated the proslavery compromises embedded within the Constitution, but much less attention has been paid to antislavery constitutionalism.  This was a body of thought that carefully specified what the federal government could and could not do to put slavery on what Abraham Lincoln called a “course of ultimate extinction.”

Logistics.  Thursday nights, 6:00–8:00 p.m., September 6, 20, October 4, 18, November 1, and 15, 2018. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines.  All participants will be expected to complete the assigned readings and participate in seminar discussions.  Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar.  Please consult with your advisor and/or director of graduate studies about these possibilities.  Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at MMarcus@nyhistory.org until June 30, 2018.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

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

 About ICH.  The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Dinan's "State Constitutional Politics"

John Dinan, Wake Forest University, has published State Constitutional Politics: Governing by Amendment in the American States with the University of Chicago Press:

Since the US Constitution came into force in 1789, it has been amended just twenty-seven times, with ten of those amendments coming in the first two years following ratification. By contrast, state constitutions have been completely rewritten on a regular basis, and the current documents have been amended on average 150 times. This is because federal amendments are difficult, so politicians rarely focus on enacting them. Rather, they work to secure favorable congressional statutes or Supreme Court decisions. By contrast, the relative ease of state amendment processes makes them a realistic and regular vehicle for seeking change.

With State Constitutional Politics, John Dinan looks at the various occasions in American history when state constitutional amendments have served as instruments of governance. Among other things, amendments have constrained state officials in the way they levy taxes and spend money; enacted policies unattainable through legislation on issues ranging from minimum wage to the regulation of marijuana; and updated understandings of rights, including religious liberty, equal protection, and the right to bear arms. In addition to comprehensively chronicling the ways amendments shape politics in the states, Dinan also assesses the consequences of undertaking changes in governance through amendments rather than legislation or litigation. For various reasons, including the greater stability and legitimacy of changes achieved through the amendment process, he argues that it might be a more desirable way of achieving change.

Pitcaithley's Documentary Anthology on the US Constitution and Secession

Dwight T. Pitcaithley, New Mexico State University, has published The U.S. Constitution and Secession: A Documentary Anthology of Slavery and White Supremacy, with the University Press of Kansas:

Five months after the election of Abraham Lincoln, which had revealed the fracturing state of the nation, Confederates fired on Fort Sumter and the fight for the Union began in earnest. This documentary reader offers a firsthand look at the constitutional debates that consumed the country in those fraught five months. Day by day, week by week, these documents chart the political path, and the insurmountable differences, that led directly—but not inevitably—to the American Civil War.

At issue in these debates is the nature of the U.S. Constitution with regard to slavery. Editor Dwight Pitcaithley provides expert guidance through the speeches and discussions that took place over Secession Winter (1860–1861)—in Congress, eleven state conventions, legislatures in Tennessee and Kentucky, and the Washington Peace Conference of February, 1861. The anthology brings to light dozens of solutions to the secession crisis proposed in the form of constitutional amendments—90 percent of them carefully designed to protect the institution of slavery in different ways throughout the country. And yet, the book suggests, secession solved neither of the South’s primary concerns: the expansion of slavery into the western territories and the return of fugitive slaves.

What emerges clearly from these documents, and from Pitcaithley’s incisive analysis, is the centrality of white supremacy and slavery—specifically the fear of abolition—to the South’s decision to secede. Also evident in the words of these politicians and statesmen is how thoroughly passion and fear, rather than reason and reflection, drove the decision making process.

 Endorsements after the jump.

Graber and Gilman's "Constitution of the Confederate States"

The latest volume in the series The Complete American Constitutionalism, by Mark A. Graber, University of Maryland Francis King Carey School of Law, and Howard Gillman, University of California, Irvine, is now out.  The series “is designed to be the comprehensive treatment and source for debates on the American constitutional experience. It provides the analysis, resources, and materials both domestic and foreign readers must understand with regards to the practice of constitutionalism in the United States."  The new volume (5, pt 1) is The Constitution of the Confederate States:

The authors offer a comprehensive analysis of the constitution of the Confederate States during the American Civil War.  Confederate constitutionalism presents the paradox of a society constitutionally committed to human and white supremacy whose constitutional materials rarely dwell on human bondage and racism. The foundational texts of Confederate constitutionalism maintain that racial slavery was at the core of secession and southern nationality. This volume provides the various speeches, ordinances and declarations, cases, and a host of other sources accompanied by detailed historical commentary.

Quote promotional code ALAUTHC4 to claim your 30% discount!

TOC after the jump

Gadbois on the early Supreme Court of India

George Gadbois' Supreme Court of India: The Beginnings was published by Oxford University Press last month. The book is Gadbois' 1965 Duke PhD dissertation in political science. It has been published posthumously with an introduction to George Gadbois' life and work by co-editors Vikram Raghavan and Vasujith Ram. George Gadbois taught at the University of Kentucky and passed away in 2017 (we noted earlier this obituary by Vikram Raghavan). From the publisher: 

This work seeks to determine the roles played by the paramount judiciary in the Indian polity between 1937 and 1964. The discussion starts with an examination of the Federal Court, the establishment of which in 1937 brought into existence India's first central judicial institution. After a consideration of events leading to the creation of the Federal Court, the nature of its jurisdiction and representative decisions are analysed. Other matters considered include the relationship of the Federal Court with the Privy Council, and the unsuccessful efforts made to empower the Federal Court with a jurisdiction to hear civil appeals. In addition, the major part of this work is devoted to the present Supreme Court of India, which replaced the Federal Court in 1950. After discussing the general features of the new judicial establishment, attention is focused upon the nature of its review powers and the manner in which the Court can exercise these powers. Against the background of debates in the Constituent Assembly that reflect the attitudes of the Constitution-makers towards judicial review, the important decisions which provoked clashes between the judges and politicians have been analysed.

Here is the Table of Contents:

• Introduction by Vikram Raghavan and Vasujith Ram
• Chapter 1: Evolution of the Federal Court of India
• Chapter 2: The Federal Court of India: 1937-1950
• Chapter 3: The New Judicial Establishment
• Chapter 4: Jurisdiction and Powers of the Supreme Court
• Chapter 5: The Supreme Court in the Indian System of Government
• Chapter 6: Judicial Review in a Modern Democratic Welfare State
• Chapter 7: Summary and Conclusions

There have been multiple book launch events in India and the US, including this, this, this, and this. Here is an excerpt from the book.

Further information about the book is available here.

Fritz on Judges and Advocates General of the EU Court of Justice

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.]

Vera Fritz, Juges et avocats généraux de la Cour de Justice de l'Union européenne (1952-1972): Une approche biographique de l'histoire d'une révolution juridique.  (Studien zur europäischen Rechtsgeschichte 312), Frankfurt am Main: Klostermann 2018, ISBN 978-3-465-04350-8, IX, 396 p.

Drawing on archives assembled in the six founding member states of the European Union, the new French-language volume in the series "Studien zur europäischen Rechtsgeschichte" offers a new perspective on the"constitutionalisation process" of the European treaties that were launched in the 1960s by the EU Court of Justice. It examines the dynamics that prevailed within the institution during its revolutionary years and highlights the professional and personal backgrounds of the first European judges and Advocates General, some of whom help shape some of the most well-known and commented judgments of the Court. The author seeks to understand how the judges succeeded in seriously limiting the sovereignty of the member states without provoking a rebellion by national decision-makers. The book focuses on the Court's political network and the relationship of judges with the governments of the member states. Through a detailed study of the selection process of the members of the Court, this monograph also provides answers to the question of whether governments tried to put an end to its bold jurisprudence by changing the composition of the bench of judges.

For more information and TOC, see the website of the Max Planck Institute for European Legal History.

Democratic Erosion: The Collaborative Course

Sasha Ingber reports in the Washington Post Magazine on Democratic Erosion, a course originating with Robert Blair at Brown University that’s now being taught at ten American universities on three big questions: “Is America’s democracy at risk? If it is, how would we know? If it’s not, why are we all so freaked out that it is?”  The WaPo story is here.  The course’s website is here.

Steilen on "Prerogative" in Early American Usage

Matthew J. Steilen, SUNY at Buffalo Law School, has posted How to Think Constitutionally About Prerogative: A Study of Early American Usage, which is forthcoming in the Buffalo Law Review:

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers and legislative debates, this Article argues that early Americans almost never used “prerogative” as Locke defined it. Instead, the early American understanding of “prerogative” appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis Americans based their claims to enjoy rights of self-taxation on their colonial charters, which were issued by the King’s prerogative. The primary connotations of “prerogative” for Americans were thus self-government and the benefits of government, principally the protection of property and liberty. Drawing on this innovative view, the Article then proffers several principles for constructing the powers of the President. It argues that the Article II Vesting Clause should be treated as a substantive grant of executive power, but conceived narrowly as the power to carry out the law, not as a grant of prerogative. It is the enumerated powers in Article II that establish presidential prerogatives. These powers should be treated as “defeasible” in the sense that they may be regulated by statute and judicial decision, within limits the Article describes. This framework is consistent with the series of modern statutes regulating presidential emergency powers, including the War Powers Resolution and the National Emergencies Act.

Gordon-Reed & Onuf to Lead Constitutional History of Anglo-American Empire Seminar

[We have the following announcement from our friends at the Institute for Constitutional History.  Note the application deadline of May 1, 2018.]

Interdisciplinary Summer Workshop in Constitutional History: The Constitutional History of Anglo-American Empire, July 8-13, 2018, Stanford, California.  Sponsored by the Institute for Constitutional History with the Stanford Constitutional Law Center.

Description.  Building on the literatures on constitutional development in the British Empire, the constitutional origins of the American Revolution, and settler constitutionalism, the seminar will focus on  colonization and territorial expansion, the law of slavery, and geopolitics from first settlement to the era of “Manifest Destiny.”

Workshop Leaders:  Annette Gordon-Reed is the Charles Warren Professor of American Legal History at Harvard Law School, a professor of history in the Faculty of Arts and Sciences at Harvard University, and formerly the Harold Vyvyan Harmsworth Visiting Professor of American History at the Queen’s College, University of Oxford (2014-2015).  Gordon-Reed won the Pulitzer Prize in History in 2009 for The Hemingses of Monticello: An American Family (W.W. Norton, 2009), a subject she had previously written about in Thomas Jefferson and Sally Hemings: An American Controversy (University Press of Virginia, 1997). She is also the author of Andrew Johnson (Times Books/Henry Holt, 2010). Her most recently published book (with Peter S. Onuf) is “Most Blessed of the Patriarchs”: Thomas Jefferson and the Empire of the Imagination (Liveright Publishing, 2016).  Her honors include a fellowship from the Dorothy and Lewis B. Cullman Center for Scholars and Writers at the New York Public Library, a Guggenheim Fellowship in the humanities, a MacArthur Fellowship, the National Humanities Medal, the National Book Award, and the Woman of Power & Influence Award from the National Organization for Women in New York City. Gordon-Reed was elected a fellow of the American Academy of Arts and Sciences in 2011 and is a member of the Academy’s Commission on the Humanities and Social Sciences.

Peter S. Onuf, Thomas Jefferson Foundation Professor Emeritus in the Corcoran Department of History at the University of Virginia, Senior Research Fellow at the Robert H. Smith International Center for Jefferson Studies (Monticello), and Mellon Distinguished Scholar in Residence, American Antiquarian Society, Worcester, Massachusetts, 2017-2018. Onuf’s work on Thomas Jefferson’s political thought, culminating in Jefferson’s Empire: The Language of American Nationhood (University Press of Virginia, 2000) and The Mind of Thomas Jefferson (2007, also Virginia), grows out of earlier studies on the history of American federalism, foreign policy, and political economy. He and co-author Annette Gordon-Reed recently published Most Blessed of Patriarchs: Thomas Jefferson and the Empire of the Imagination (Liveright, 2016); his Jefferson and the Virginians: Democracy, Constitutions, and Empire is forthcoming (from Louisiana State University Press).

Goldstein on the Klan's Constitution

Jared A. Goldstein, Roger Williams University School of Law, has posted The Klan's Constitution:

For 150 years, the Ku Klux Klan has engaged in a campaign of violence and terror to maintain white rule. A central aspect of the Klan that has received little attention is that, from the time it was created in 1866 until today, the Klan has defined its mission as a defense of the Constitution. This article examines what the Constitution has meant to the Klan and what it means for American constitutional culture that the nation’s most notorious hate group has defined its mission in constitutional terms. As this article shows, the Klan has consistently been guided by the conviction that the United States is fundamentally a white nation, that the nation’s founders were dedicated to white rule, and that the Constitution should be understood as the source of white power. The Klan has long used its expressed dedication to the Constitution to justify violence as necessary to defend the nation and what it believes to be the true meaning of the Constitution.

The history of the Klan illustrates the recurring ways that political movements use constitutional rhetoric to advance narrow conceptions of American identity. The Klan has risen to prominence whenever whites have believed that their dominant status is threatened. Over the course of its existence, the Klan has succeeded in recruiting thousands of members by portraying threats to white power as attacks on the nation itself. Mobilizing to defend white power, Klan members have naturally rallied around the Constitution, which Americans have long understood to embody the nation’s fundamental values. To those who think of the United States as a white nation, defending the Constitution means defending whiteness

Symposium Issue: Legal History in Latin America

We have word of the publication, on-line, of the first of two volumes of Precedente: Revista Jurídica devoted to Legal History in Latin America. (Universidad Icesi of Colombia publishes the journal.)  The issue is in Spanish and is available as a free download.  Here is the TOC:

Régimen de las moratorias en las provincias argentinas de Salta (1825) y Tucumán (1861)
Abelardo Levaggi

Enseñanza de la historia del derecho centrada en el aprendizaje de los estudiantes a lo largo de 115 años de la fundación de la cátedra (Chile, 1902)
Eric Eduardo Palma, María Francisca Elgueta

Tradición y cambio político en Provincia: Popayán, Nueva Granada y la redacción de la Constitución de 1814
Adolfo León Guerrero García

El primer panamericanismo: puente entre el derecho de gentes y el derecho internacional
Luis Ociel Castaño
   
El pragmatismo jurídico de Oliver Wendell Holmes Jr. y el Derecho como Sistema Social de Niklas Luhmann: un encuentro histórico
Vagner Felipe Kühn
   
Derecho y caricatura política: el constituyente primario de 1990 y el cambio constitucional de 1991
Diana Paola Gil Guzmán