LHB 15,000

This is the 15,000th post on Legal History Blog.  No less than at its founding by Mary Dudziak almost twenty years ago, it remains committed to disseminating "scholarship, news and new ideas in legal history."

--Dan Ernst and Karen Tani 

Mazzone on the Removal under the Confederate Constitution

Jason Mazzone, University of Illinois College of Law, has posted The Unitary Executive and the Decisions of 1789 and 1861, which appears in the UC Davis Law Review Online:

Debates over the constitutional power of the President to remove executive officers are almost as old as the Republic itself. These debates continue today in the academic literature — with a vast body of writing on the constitutional basis (if any) for a presidential removal power, its scope, and the authority (if any) of Congress to regulate the power — and at the Supreme Court, which has decided a series of removal cases in recent years, and which has some removal cases on its current docket. Virtually every discussion (regardless of the conclusion reached) of the power of the President to remove executive officers invokes the so-called Decision of 1789. This Essay does also. But it focuses additionally on another important decision: that of 1861. In that year, the states that had seceded from the Union adopted their own permanent constitution. The Constitution of the Confederate States mimicked and repeated (with modifications) many of the provisions of the federal Constitution. It also included something the federal Constitution had not: a specific provision specifying the scope of the powers of the President to remove executive officers. Unusual though it might seem to turn for guidance to the Confederate Constitution — a charter written and ratified by traitors — the exercise has some payoff. It helps us identify some possible conceptions of presidential removal authority (under the federal Constitution) and to assess the relative merits of alternatives. 

--Dan Ernst 

Todd and Thunder's "United States Attorneys for the District of Columbia"

K. Chris Todd and James M. Thunder have privately published, with the sponsorship of the Historical Society of the District of Columbia Circuit, The United States Attorneys for the District of Columbia 1801-2024: A Compendium of Short Biographies (iUniverse):

Did you know that Francis Scott Key, author of the Star-Spangled Banner, was also the top federal prosecutor for the District of Columbia for eight years? Read a short biography of his life, his career, and his work as a prosecutor and lawyer in this fascinating compendium featuring all forty-nine United States Attorneys for the District of Columbia. Or read the shocking story of the 1859 murder in Lafayette Park of Key’s son, Barton Key, who was serving as the United States Attorney at the time he was shot dead. Congressman Daniel Sickles murdered Key after Sickles discovered Key was having an affair with Sickles’ wife. In recent history, read about Earl Silbert, who broke the case of the Watergate cover-up, along with the stories of such distinguished lawyers and judges as Thomas Flannery, Eric Holder, Chuck Ruff, and many others. The book recounts the history of one of the most important of the ninety-four judicial districts in the United States. Many landmark trials in our nation’s history occurred in the District of Columbia courts, either guided by or defended by one of these forty-nine men and women. They prosecuted the assassins of Presidents Lincoln and Garfield, and the men who attempted to assassinate Presidents Jackson, Truman, and Reagan. They also played pivotal roles in the trials concerning the Teapot Dome Scandal of 1923, the attacks on the Capitol by Puerto Rican nationalists in 1954, the 1971 May Day protest against the Vietnam War, and the Jan. 6th, 2021 violent attack on the Capitol. The book is sourced in great detail, richly illustrated with over 800 historic photos and other images contemporaneous with the events that defined the lives of each United States Attorney.

--Dan Ernst

Weekend Roundup

• "On the 250th anniversary of America’s independence, Harvard Law historian and legal scholar Bruce H. Mann argues that colonists were fighting to uphold English common law rights and traditions" (Harvard Law Bulletin). 

• The Penn Carey Law School welcomes Christian Burset to its faculty. 

• An appreciation of the late John R Wunder (AHA Perspectives) .

• After appearing in "The Last Minute" segment of CBS's "60 Minutes," Jill Lepore wins the Pulitzer Prize in History for We the People: A History of the U.S. Constitution. The National Review is not wholly persuaded.  

• A notice of Stanford’s “America at 250,” one-unit course, cross-listed in the History and American Studies departments and the Law School.  It is “an exploration of where America has been, and based on that, where it might be going or might need to go,” according to Jonathan Gienepp, who is one of its instructors, with Pamela Karlan (Stanford Daily).

• A Q&A with Len Niehoff about his new book, Meeting Shakespeare at the Bar: Reading the Bard Through the Lens of the Law (American Bar Association, 2026) (Michigan Law). 

• On Thursday, May 7, Christine Chabot, Jane Manners and Lev Menand presented papers on removal, with a comment Nick Parrillo, in one of the Academic Paper Workshops at the Spring conference of the Administrative Law and Regulatory Practice Section of the American Bar Association."  

• "Alex Votta recently received Michigan Law’s Dimond Prize for his paper “The Great Rampart in Protecting Human Liberty: The Right to Education in Antebellum and Reconstruction Black Constitutional Consciousness.”  He credits Sam Erman, Rebecca Scott et al. (Michigan Law).

• The subsequent lives of the subjects of Dorothea Lange's Depression-era photographs (National Gallery of Art).  

• From the New York Times: "A Look Inside the Case That Enshrined Political Power for Billionaires" (Buckley v. Valeo).  

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

Zhang on Statutory Interpretation and the Constitution

Alexander Zhang, University of Texas School of Law, has posted Directly Constitutional Statutory Interpretation, which is forthcoming in the NYU Law Review:

The last half century of American statutory interpretation theory grew out of a U.S. Constitution that never prescribes how to read statutes. This has compelled the mistaken conclusion that constitutional law can have little to say about two of the most fundamental questions in statutory interpretation: whether courts should be able to treat interpretive methods as binding precedents, and whether interpretive methods need to reflect the customs and beliefs of “the people” to be democratically legitimate. But while the U.S. Constitution never directly prescribes how to read statutes, astoundingly twelve state constitutions do. Those state constitutions contain what I call “directly interpretive constitutional provisions”—constitutional provisions that on their own terms supply a mandatory method of statutory interpretation.

In this Article, I gather these overlooked and under-theorized provisions together for the first time, present original historical case studies on the surprising reasons they came into being, and offer the first sustained analysis of how they have been used in practice. In uncovering this neglected category of statutory interpretation law, this Article demonstrates how two critical assumptions of existing statutory interpretation theories derived from the U.S. Constitution—that interpretive methods are justifiable on democratic grounds merely if they reflect a proper balance of power between government institutions, and that only weak and sub-constitutional sources of law are available to ground interpretive methodology as binding precedent—are poor fits for state-level statutory interpretation. By developing an alternative account of a directly democratic and constitutional foundation at the state level, this Article both introduces a new framework for understanding state statutory interpretation on its own terms and provides a counterpoint against which we can measure the relative democratic legitimacy and legality of federal statutory interpretation methodology.

Most fundamentally, this Article contends that in most states the democratic and constitutional bases of statutory interpretation methods ultimately rest not on the institutional dialogue among courts, legislatures, and executives (as may be the case with federal constitutional law), but instead on popular sovereignty—on the public’s ongoing formal participation through elections in directly approving, disapproving, or deferring to government on those methods. As this Article further argues, people have exercised their sovereignty in limited yet surprising ways that reveal what I call a “democratic division of interpretive labor”—a formally legitimized allocation of statutory interpretation functions between government and civil society.

These insights lend themselves to three practical upshots. First, state constitutions’ distinctive commitments to popular sovereignty and to limiting legislative plenary power provide new grounds for why statutory interpretation methodology should differ between the state and federal levels; meanwhile, the fact that only some states allow citizens to unilaterally amend their constitutions provides a new reason why statutory interpretation methodology should differ from state to state. Second, courts applying these constitutional provisions should not treat the required methods as if they obeyed the same rules as judge-made canons of interpretation. Finally, the political infeasibility of constitutionally overriding a given interpretive method should be a factor against judicial entrenchment of that method as precedent.

--Dan Ernst 

Pope on Class and the Original Meanings of the 13th and 14th Amendments

James Gray Pope, Rutgers Law School, has posted Economic Class and the Original Meanings of the U.S. Thirteenth and Fourteenth Amendments:

This article suggests that present-day judicial interpretations of the U.S. Thirteenth and Fourteenth Amendments depart sharply from their original meanings on questions of class power. I propose that the concept of "slavery to society," hitherto largely ignored, lay at the heart of the framers' thinking about class and race. By late 1865, leading Republicans held that the Thirteenth Amendment directly banned not only chattel slavery and physically or legally coerced labor (its full scope according to contemporaneous Democrats and most present-day courts), but also slavery to society. Unlike chattel slavery, which could be eliminated by conferring the freedom of contract, slavery to society operated through the formal freedom of contract, tilting the background rules and customs governing market relations to enable a ruling caste or class to dominate and exploit a subordinate caste or class. With this in mind, the Republicans condemned both race-specific and facially race-neutral labor laws that, while respecting the formal freedom of contract, enabled capitalists to inflict on laborers a form of slavery or involuntary servitude. Concerning the Fourteenth Amendment, I propose that the Republicans' support for maximum hours laws during the two years between that Amendment's proposal and ratification indicates that a vast chasm separated their concept of labor freedom from the laissez-faire version enforced by American courts during the so-called Lochner Era.

--Dan Ernst 

Gindis and Medema on the Origins of the Law and Economics Movement

David Gindis, University of Warwick Law School, and Steven G. Medema, Duke University, have posted Henry Manne, Pareto in the Pines, and the Origins of the Law and Economics Movement:

Law and economics—or the application of economic reasoning and methods to the study of law—was a niche topic of study at Chicago and Yale in 1950s and 1960s, before coming out of the wilderness in the early 1970s and becoming an institutionalized feature of American legal education by the late 1980s. Relying on archival material, the paper shows how this remarkable transformation was driven by an academic entrepreneur, Henry Manne, who in 1971 started a summer school in economics for law professors. This program prepared the ground for, and gave shape to, the intellectual and geographical spread of law and economics. But Manne's enterprise would not have succeeded had there not been a widespread demand for the inclusion of social science research in the law school curriculum, combined with the failure of the alternative law and society movement—which sought to apply sociological concepts and methodologies to the study of legal phenomena—to establish a real toehold in the law school world.

--Dan Ernst 

Alan Rodger Postgraduate Visiting Researcher

 [We have the following announcement, via H-Law.  DRE]

The University of Glasgow School of Law invites applications from PhD students in Roman law/legal history for the post of Alan Rodger Postgraduate Visiting Researcher, to be held during the 2026/27 academic year. The selected candidate will spend a term in Glasgow and receive a £2,000 award for support, and will be encouraged to speak to students and at research seminars.  The deadline for applications is 26 June 2026.

The post was established in memory of Lord Rodger of Earlsferry (1944-2011), Justice of the Supreme Court of the United Kingdom, and scholar of Roman law and legal history.

Ernest Metzger
Douglas Professor of Civil Law
The School of Law,
Stair Building
5 - 8 The Square
University of Glasgow
Glasgow G12 8QQ
United Kingdom

Federal History 18

Federal History 18 (2026) has been published.  Here is the TOC:

Editor's Note 

Benjamin Guterman

Roger R. Trask Lecture

“Girl From the North Country”: Pursuing History and Finding Community in the Nation’s Capital
Kristin L. Ahlberg

Articles

Bind Together Whom? The Internal Improvements Debate and Native Dispossession in the Early Republic
James R. Stocker

1870s House Investigations of Bureau Commissioner Oliver O. Howard and the Retreat from Reconstruction
Peter A. Porsche

Woodrow Wilson, American Power, and International Order at the Paris Peace Conference, 1918–1919
Peter Jackson

A Troublesome Reckoning: The Rediscovery of the U.S. Postwar Cover-up of Unit 731 and the Ethical Threat to Democracy
Emily Matson

Patients-in-Chief: The Public History of the President’s Physical Exam
Jacob M. Appel

Interview

An Interview with Sheyda F.A. Jahanbani
Sean T. Byrnes

Law & Constitution Roundtable

The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, by Alison L. LaCroix
Introduction: Gerald Leonard, Boston University
Review: Austin Allen, University of Houston–Downtown
Review: James A. Gardner, University at Buffalo School of Law
Review: Grace Mallon, Lady Margaret Hall, University of Oxford
Review: Gautham Rao, American University
Author’s Response: Alison L. LaCroix, University of Chicago Law School

Reviews in Legal History

Richard Primus, “Sins and Omissions: Slavery and the Bill of Rights”
Terri Diane Halperin

Roger A. Bailey, “‘Intercourse . . . of the Most Friendly Nature’: The U.S. Navy, State Power, and William Walker’s Invasion of Mexico,     1853–1854”
Stephen J. Rockwell

Anna O. Law, “The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration”
Kelly Marino

Andrea Scoseria Katz, “A Regime of Statutes: Building the Modern President in Gilded Age America (1873–1921)”
Benjamin Guterman    

Benjamin Wetzel, “Theodore Roosevelt and the Unionist Memory of the Civil War: Experience, History, and Politics, 1861–1918”
Evan C. Rothera

Hardeep Dhillon. “The Making of Modern US Citizenship and Alienage: The History of Asian Immigration, Racial Capital, and US Law”
Amelia Flood

Kathryn E. Kovacs. “From Presidential Administration to Bureaucratic Dictatorship” 
Lisa K. Parshall

--Dan Ernst

Scooter Libby Trial at DCCHS

The Historical Society of the District of Columbia Circuit is hosting a series of reenactments relating to the Scooter Libby trial.  Hree is the Society's announcement:

What is it like to prosecute or defend a high-profile false statements / perjury case in the D.C. Circuit? 

Join us on June 10, 2026 (4:30 pm – 6:00 pm) in the Ceremonial Courtroom for an inside look at one of the most prominent false statement cases in our court in the past twenty-five years – the “Scooter” Libby Trial.  

The  year was 2003.  The Iraq War had just begun – with great controversy.  President Bush in his State of the Union speech said that Iraq had recently engaged in an effort to obtain uranium from Africa.  In June, reports began to surface that a former Ambassador had been dispatched to Africa in 2002 but found nothing to support the rumors.  Shortly thereafter, press reports named his wife, Valerie Plame, as having been involved in sending him to Africa, and “outing” her as an employee of the CIA.  An investigation of the leak began, and ultimately led to an indictment of I. Lewis “Scooter” Libby, chief of staff to Vice President Cheney, for making false statements to the FBI and Grand Jury during the investigation.  In early 2007, an all-star prosecution team faced off with an all-star defense team in a 7-week trial before Judge Reggie B. Walton.  After 8 days of deliberations, the jury found Libby guilty on 4 of 5 counts.  This program will explore in detail the challenges that lawyers and judges face in high profile false statement cases, including simulated dramatizations of the initial FBI interviews, a prosecution team meeting on whether to indict, a defense meeting on strategy, the Judge’s thoughts about difficult trial issues ahead, and jury deliberations.  Several original members of the trial teams, and Judge Walton, along with others will participate in the dramatizations. 

We hope you can join us.  Please register here.

--Dan Ernst 

Claussen and Meyer on the Foreign Commerce Power

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

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

--Dan Ernst 

Funes Reviews Funk's "Law's Machinery"

José Argueta Funes, UC Berkeley Law, has published The "Code American" and Law's Empire, a review of Kellen Funk’s Law’s Machinery, in the Yale Law Journal:

Kellen R. Funk’s Law’s Machinery is an erudite and compelling account of the creation, migration, and interpretation of the Field Code of Civil Procedure—named for one of its drafters, David Dudley Field. Although the Code was simultaneously imagined and feared as an attempt to transform how lawyers and courts worked, its achievements were much more ambiguous. Funk departs from earlier assessments of the Code and their focus on legal class politics, emphasizing instead the role of ideas about law in shaping the Code’s trajectory. Conservative common lawyers and reformist codifiers alike could not escape the conceptual universe developed through legal practice, and so the meaning of the Code came to rely on the very world its creators had tried to overthrow. The Code thus marked less the arrival of an entirely novel mode of practice than the opening of a period of interpretive contestation that went to the very meaning and legitimacy of law.

Law’s Machinery also affords an opportunity to think productively about an increasingly salient issue in legal scholarship: empire. Field had imperial ambitions befitting a nation defined less by borders and more by the movement of its citizens. But this was not the understanding of empire that has become the center of much legal scholarship—it was not an empire of federal will. Rather, it was an empire of law, defined by the spread of a particular legal product in which some core—Field’s New York, perhaps—became, as Field put it, the world’s “lawgiver.” And his ambitions succeeded, at least insofar as the Field Code spread far and wide across the United States. By the end of the nineteenth century, most American jurisdictions had adopted some version of the Code, often more of it than New York had enacted.

But this success was far from obvious. Rather than the inevitable byproduct of territorial expansion, the Code’s reach reflected the alleged demands of eastern capital and the anxieties of settlers in colonial outposts eager to remain within the pale of Anglo-Saxon civilization. This account suggests parallels with other stories of legal transformation in the nineteenth century, and this Review develops the parallels with the Hawaiian experience. The goal is not to suggest these experiences were all the same. Rather, it is to surface how capitalist and cultural constraints informed the process of lawmaking in ways that invite us to look beyond the federal government to understand the legal history of empire. At the same time, the growth of law’s empire echoes the interpretive contestations that Funk finds in the history of the Code itself. The law that arrived in places like Hawai‘i was not a complete and finished whole, and part of the legal history of empire must account for the ways people expanded and contested the meaning of law, even in a world of constraints.

--Dan Ernst 

Weekend Roundup

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

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

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

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

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

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

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

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

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

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

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

Blackman on Special Counsels before Watergate

Josh Blackman, South Texas College of Law Houston, has posted A Historical Record of Special Counsels Before Watergate:

This Article presents a corpus of primary sources that were written by presidents, attorneys general, United States attorneys, special counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account of how special counsels were retained by attorneys general under Presidents James Buchanan, Andrew Johnson, Ulysses S. Grant, James A. Garfield, Theodore Roosevelt, and Harry S. Truman. 

During these six presidential administrations, attorneys general retained outside lawyers as special counsels either: (1) to assist a U.S. attorney with prosecutions or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a special counsel and then delegate to him the powers claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. attorney. 

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome scandal defendants. These special counsels were afforded “total independence.” It is doubtful that these positions would be consistent with the Supreme Court’s modern separation of powers jurisprudence. 

This practice shows that the positions of special counsels in the post- Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus, pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with. 

--Dan Ernst 

Rudolph on Colonialism and Blackstone's Family Wealth

Julia Rudolph, North Carolina State University, has published William Blackstone, Family Man: New Contexts in Gender, Jurisprudence, and Jamaica in Law and History Review:

While much has been written about William Blackstone, the jurist, politician, and legal writer, this article provides a critical new understanding of Blackstone, the husband, friend, and investor. It considers Blackstone’s legal and economic actions as well as ideas, analyzing his strategies for managing family wealth and comparing them to the strategies employed by a member of his extended family who was a Jamaican planter. Here, the article contributes to recent scholarship on the global dimensions of English and British legal history. It offers a fuller account of Blackstone’s proximity to the colonial plantation economy by investigating how economic change and imperial controversies impacted his personal and professional life. It also exposes Blackstone’s conventionally masculine bias by detailing the different ways in which he privileged male interests when making personal investment choices and when coming to judicial decisions about women’s property claims. A gendered ideology, which positioned male authority as central to the success of the household, state, and empire, furnished the framework within which Blackstone justified the operation of law and directed his own actions as head of his family. Placing Blackstone’s jurisprudence and experience within the contexts of patriarchy and colonialism, the article sheds new light on this influential figure, showing how he embodied the core features of an eighteenth-century family man and shaped modern ideas about male authority, property, and power.

--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 

Ponomarenko on Executive Reorganization

Maria Ponomarenko, University of Texas Law, has posted Revisiting Presidential Reorganization, which is forthcoming in the George Washington Law Review’s annual issue on administrative law:

For much of the twentieth century, Congress repeatedly delegated to presidents the authority to “reorganize” the executive branch. Presidents from both parties used this authority to create agencies, consolidate functions, shift responsibilities across the bureaucracy, and otherwise reshape the administrative state. Congress kept itself in the loop by reserving the right to “veto” proposals with which a majority of legislators disagreed, but the streamlined process for executive reorganization nevertheless smoothed the way for various forms of bureaucratic change. All of this came to an end in 1984 when Congress allowed the last of the Reorganization Acts to expire. Although presidents and legislators from both parties have at times floated the idea of restoring the authority anew, these proposals have never really managed to get off the ground.

This Article examines the 50-year history of executive reorganization—including why it lasted as long as it did, why it came to an end, and why now might be the time to consider restoring the authority anew. It begins by drawing on a review of the 115 reorganization plans proposed between 1939 and 1984 to highlight the role that executive reorganization played in the broader history of bureaucratic change. It demonstrates that although executive reorganization was never the primary mechanism for restructuring the federal bureaucracy, it served as an important residual tool for accomplishing the sorts of structural reforms that were especially likely to stall in the ordinary legislative process—even when they enjoyed majoritarian support.

This Article then revisits the conventional account for why executive reorganization died when it did. Most have assumed that reorganization was yet another casualty of the Supreme Court’s decision in I.N.S. v. Chadha, which invalidated the legislative veto on separation of powers grounds. Yet as Part II makes clear, executive reorganization could very well have survived the legislative veto’s demise. Indeed, shortly after Chadha was decided, Congress and the Reagan administration had identified a plausible post-Chadha substitute in the form of a legislative fast-track process, which would have preserved many of the practical advantages of the earlier regime. What ultimately killed executive reorganization was a broader political an intellectual shift away from formal bureaucratic restructuring, in favor of various “flexible” forms of interagency coordination that promised to accomplish the same objectives at a much lower cost.

This Article concludes by arguing that now may be the time to consider restoring executive reorganization authority anew. It highlights the limits of informal coordination as a substitute for bureaucratic restructuring. And it argues that that executive reorganization has the potential to address, at least to some extent, a growing asymmetry in public law—namely, the degree to which the status quo makes it easier to destroy existing administrative capacity than to build it anew. Finally, it considers the obvious objections to delegating still more power to the executive at a time when presidents already enjoy unmatched authority—but argues that if anything, executive reorganization via a legislative “fast-track” process may offer a promising alternative to the current pattern of governance-by-Executive-Order by making it easier for majorities to effectuate their policy preferences into law.

--Dan Ernst 

Siegel & Ziegler, "Dismantling Equality Rights Through 'Biological-Sex' Talk"

Reva B. Siegel (Yale Law School) and Mary Ziegler (University of California, Davis) have posted Dismantling Equality Rights Through "Biological-Sex" Talk, which is forthcoming in Volume 105 of the Texas Law Review. The abstract:

In rejecting the sex-discrimination claims of transgender claimants in United States v. Skrmetti (2025), the Supreme Court introduced a new term for sex into equal protection law: “biological sex.” The Court made clear its view that laws recognizing biological-sex differences warrant judicial deference. Claims on biological sex also appear in the legislation and briefing of West Virginia v. B.P.J. and Little v. Hecox, cases challenging bans on transgender athletes’ participation in girls’ teams under the Constitution and Title IX this Term.

Biological sex is a movement signature—the fingerprint of advocates who are supplying the Supreme Court with resources for the stealth overruling of United States v. Virginia (1996), Justice Ginsburg’s opinion for the Court explaining the Constitution’s guarantees against sex discrimination (which judges apply in cases of discrimination on the basis of sexual orientation and gender identity, as well). We trace the usage of biological sex to the declarations, bills, and briefs of faith-identified social conservatives who mobilized against LGBT victories in Obergefell v. Hodges and Bostock v. Clayton County and under Title IX. Represented by advocates such as Alliance Defending Freedom (ADF) and Heritage Foundation, these Americans are now seeking reversal of constitutional and civil rights of other Americans as contrary to nature and divine command.

Conflict over transgender rights is tied to conflict over sexual orientation and gender roles in overt and subterranean ways, as this Article shows. The idiom of biological sex draws upon physiological naturalism—traditions of reasoning from the body—that courts long employed when deferring to laws enforcing gender roles before the rise of sex equality law. 

By following talk of biological sex in state statutes and lower-court cases, we show that the movement is providing resources for the stealth overruling of Virginia as the decision reaches its thirtieth anniversary. Biological sex directs judges to defer to the judgments of the political branches rather than to scrutinize sex-based state action for sex-role stereotyping—a code associating sex difference and judicial deference that revives in contemporary idiom the very traditions of reasoning from the body that United States v. Virginia rejected. 

Read on here.

-- Karen Tani 

DeFraia on Branzburg's Distortion of Policy and History

Daniel DeFraia has published "The Branzburg myth: how secrecy and law distort history and misinform policy" online, open-access in the American Journal of Legal History:

This is an article about how secrecy and law distort history and misinform policy. Beginning in the 1960s and culminating with the Supreme Court’s 1972 ruling in Branzburg v Hayes, litigation and debate over the reporter’s privilege established the expectation that journalists resist subpoenas, warrants, and informal requests for evidence. However, archival research and records obtained in an Freedom of Information Act (FOIA) request reveal that journalists cooperated with federal criminal investigations after Branzburg. The case, symbolic of the rise of adversarial journalism, did not end compliance, but submerged it. Secrecy—overclassification of records, non-disclosure of grand jury proceedings, and the confidentiality of subpoenas—has allowed a narrow understanding of journalists’ role in a democracy to dominate case law, historical and legal scholarship, and public debate. Secrecy and law distorted the public record, then history, as salient moments of conflict disproportionately shaped collective memory, which misinformed scholarship and policy debate on news subpoenas. The hidden tradition of journalists cooperating with local, federal, and international authorities is, this article concludes, an argument for protecting press freedom.

--Dan Ernst 

Disabilities and Women in Ancient Rome

The workshop Disabilities and Women in Ancient Rome: Legal, Social and Cultural Perspectives will be held at the University of Helsinki Main Building, Room U3039 (3rd floor). It will begin at 10.00 am (EEST) May 4 with the keynote. Remote participation is possible through this Zoom link.  Both in-person and remote participants should register.  For in-person participants, we would like to ask whether you are participating in the lunch (at the expense of participants) and the afternoon coffee.  Please register through this form.

10-11.15 Keynote

Prof. Christian Laes: Women and disabilities in Antiquity: between presentism and daily life 

11.30-13.00 session 1: Disabled Women in the Roman Narratives 

Sofia Vierula: The case of Harpaste: Lived experience of disability in Seneca’s letter to Lucilius 

Mathilde Chartrand: The Daily Life of a Furiosa: On the Gendered Consequences of Mental Illness

Fran Geldard: Enslavement and Disability in Eusebian Martyr Narrative

14.00-15.30 session 2: Women, Disability and Roman Law

Arnaud Paturet: Some Reflections on the Status of Deaf People by Roman Jurists 

Kaius Tuori: Infirmity and monstrosity: on the legal construction of female disability in law

Jana Mauri Marlborough: Against All Odds: The Legal Position of Wet Nurses in Roman Law 

16.00-17.30 session 3: Intersections of Gender and Disability in Late Antiquity 

Gaetana Balestra: Muta puella fuit: The Mute Woman between tutela mulierum and Justinian's Legislation.

Elena Pezzato Heck: Mental Illness as Grounds for Repudiation in Late Antiquity and the Justinian Era

Arttu Alaranta: Vulnerable Life-Cycle Moments and Disabilities in Women’s Asceticism during Late Antiquity

--Dan Ernst 

Durrani, "Industrial Patent Law"

Haris Durrani (Harvard University) has posted "Industrial Patent Law," which is forthcoming in Volume 104 of the Washington University Law Review. The abstract:

History is absent from the rigorous debate on government patent policy. Scholarship has focused on the Bayh-Dole Act of 1980, where the government relinquished control over patents on inventions developed with federal funding. The act’s critics advocate the exercise of its key exception: government rights to “march in” to require that contractors license patents to third parties, a carveout never used until last year, when the Trump Administration threatened to exercise it against universities. Meanwhile, the act’s defenders argue that marching in and other “public patent powers”—e.g., government rights to title or liability shields for contractors—stymy innovation and commercialization and are not designed to serve the public interest. But these debates have hardly examined the world before Bayh-Dole, when government control of patents was the norm. Scholars instead study the act’s effects, such as “anticommons” problems, or engage in counterfactuals, asking what might have transpired if the government had ever marched in or exercised similar powers. Yet history supplies an economic experiment for testing the effects of powers like march-in before Bayh-Dole. The most influential and striking uses of these powers involved one of the consequential technologies of the Cold War, the communications satellite.

To that end, this Essay is a targeted account of industrial patent law, the post-World War II framework for government patent policy. Carefully reading archival records, administrative proceedings, and case law on patents and contracts during the Cold War, the Essay uncovers the history of industrial patent law and bolsters the argument for its restoration. The Essay focuses on disputes over communications satellites, which shaped industrial patent law writ large.

The Essay draws three takeaways from this history. First, industrial patent law was designed and worked to spur innovation and commercialization and protect the public interest, contrary to the narrative spun by skeptics of march-in rights. Second, industrial patent law’s demise was due not merely to Bayh-Dole, but, more profoundly, to the government’s longstanding belief in unsubstantiated claims from company representatives that public patent powers are anathema to technological and commercial growth—claims recited by skeptics of march-in rights to this day. Third, the history supports two modern uses of industrial patent law: (1) marching in as an antimonopoly tool to control price; and (2) retaining title or marching in to regulate spacecraft as public utilities, an application highly pertinent to SpaceX. The Essay also suggests that, contrary to scholarly outcry, the Trump Administration’s threat to march in on universities is an opportunity to course correct decades of unchecked privatization of U.S. research.

Read on here.

-- Karen Tani 

Bank's "High Rates and Low Taxes"

Steven A. Bank, UCLA School of Law, has published High Rates and Low Taxes: Tax Dodging in Mid-Century America  (Cambridge University Press):

Amidst calls for a return to the high tax rates of the 1950s and 60s, this book examines the tax dodging that accompanied it. Lacking political will to lower the rate, Congress riddled the laws with loopholes, exemptions, and preferences, while largely accepting income tax chiseling's rise in American culture. The rich and famous openly invested in tax shelters and de-camped to exotic tax havens, executives revamped the compensation and retirement schemes of their corporations to suit their tax needs, and an industry of tax advisers developed to help the general public engage in their own form of tax dodging through exaggerated expense accounts, luxurious business travel on the taxpayer's dime, and self-help books on 'how the insider's get rich on tax-wise' investments. Tax dodging was a part of almost every restaurant bill, feature film, and savings account. It was literally woven into the fabric of society.

Professor Bank has posted the introduction here. 

--Dan Ernst

Weekend Roundup

• Elizabeth Papp Kamali on "Charles Donahue: Man, Magister, Inimitable Scholar" (Harvard Law Bulletin).  

• The HLS Library has scanned "Harvard’s full collection of 140,000 documents comprising more than 700,000 pages" to produce "the first complete, keyword-searchable online collection of the Nuremberg Trials records" (Harvard Law Bulletin).

• BU Law's notice of legal historian Rephael Stern. 

• Congratulations to Alison LaCroix, upon her election to the American Academy of Arts and Sciences!  Also William Baude and Elizabeth Clemens (UChicago News).  Professor LaCroix will be the speaker at the University of Chicago's 2026 Commencement this June.

• A notice of Jill Lepore's HLS seminar, “The History of Evidence,” devoted to "two key questions: 'What counts as proof?' and 'How has that changed over time?'” (Harvard Law Today).  She discussed her book We the People: A History of the U.S. Constitution on Oregon Public Broadcasting.

• Mary Sarah Bilder and Sarah Isgur will "explore Virginia's central role shaping the nation's founding" as part of the 2026 Founding Debates Program of the George Washington Presidential Library at Mount Vernon and the Virginia Law Foundation on September 24, 2026, from 7 p.m. to 8:30 p.m.  (More.)

• ICYMI: Martin v Hunter’s Lessee (History is Now).  Michael D. Ramsey, Keith Whittington, Kurt Lash, and Lawrence Solum on birthright citizenship (Regulatory Review). The Forgotten History of the School Choice Movement (AEI).

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

Jones and Tani, "Unwanted Histories" -- on History and Constitutional Decisionmaking

Christen Hammock Jones, a Ph.D. candidate in History at the University of Pennsylvania, and Karen M. Tani (University of Pennsylvania) have posted Unwanted Histories, 75 Duke L. J. 1265 (2026).

The Supreme Court's turn to history as a method of constitutional decisionmaking has both intrigued and alarmed professional historians, for reasons now well-rehearsed in the literature. This Article, written for a symposium on "Historical Facts and Constitutional Law," takes as a given that history is now part of judges' work. It then invites judges to think more expansively about the type of history they could--and perhaps should--be producing. This task, in turn, means engaging with some of the central questions about methodology and sources that preoccupy professional historians.

This Article focuses on a source base that historians routinely rely upon but that courts have shied away from: personal accounts of past perceptions and experiences, drawn from diaries, letters, oral histories,and other types of testimonials. Professional historians highly value such sources, even though they require caution, because they often provide glimpses of the past that are missing from more formal or “official” documentary records. In doing so, they enrich and sometimes even transform our answers to important historical research questions. Courts, by contrast, tend to resist these sources, even when they might be relevant to the historical inquiry at hand. This Article illustrates such resistance via examples from the realms of disability and reproductive rights, both of which currently receive weak constitutional protection.

The Article closes by underscoring that, when judges engage in historical interpretation, they are not simply making law; they are also making history, upon which other courts and the broader public may rely.This reality implies responsibility. Judges could lean into that responsibility by bringing a critical eye to the traditional “high law” historical sources that are most readily available and by shepherding into the record voices and perspectives that enrich our collective understanding of the American past. 

The full symposium is available here. 

--Dan Ernst

Basile on the 19th-Century Turn to Textualism

Marco Basile, Boston College Law School, has posted Old Textualism, New Juristocracy, which is forthcoming in the New York University Law Review:

This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and judges associate textualism with the Founding period’s enactment of written constitutions and innovation in the separation of powers, this Article argues that the first “textualist” turn in legal interpretation crystallized after the Founding and reflected transnational developments. Not until the 1830s through 1850s did certain jurists on both sides of the Atlantic elaborate interpretive theories predicated on understanding a written law as an ordinary linguistic communication, as opposed to being in part declaratory of unwritten principles. This new emphasis on the enacted text reflected the increasingly writing-based legal culture of the early nineteenth century enabled by the industrial revolution in print and communication technologies. Amid this technological change, old textualists believed they were bringing the equivalent of modern steam power to legal interpretation.

Indeed, it was their work from the 1830s through 1850s, not the Founding, that Justice Scalia cited as muses for his project to revive a text-centric “science” of legal interpretation. Scalia’s new textualism, however, differed from old textualism. New textualism emphasizes the public legibility of the enacted text and how that public legibility operates to constrain judicial discretion. Old textualism, by contrast, understood law as a largely technical language and instead promoted a vision of legal interpretation that advanced public ends through non-public means. Old textualists ultimately sought to claim interpretation as the expertise of judges and to reassure skeptics that judges could exercise this expertise objectively—laying groundwork for the rise of judicial supremacy that would follow. 

--Dan Ernst 

Tolson's "In Congress We Trust?"

Forthcoming from the Cambridge University Press: In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era by Franita Tolson, Dean of the University of Southern California Gould School of Law.  It will appear in the series Cambridge Studies on Civil Rights and Civil Liberties:

This book reveals how Congress quietly shaped American elections across more than a century of constitutional development. Far from a passive observer, Congress used its authority to influence key controversies – from the expansion of slavery in new territories to the reconstruction of the post-Civil War electorate. Congress exercised power under the Elections Clause, the Guarantee Clause, and later, the Fourteenth and Fifteenth Amendments, to combat voter suppression, reimagine representation, and determine who could (and could not) participate in American democracy. Even as Jim Crow laws disenfranchised millions, Congress continued to review and sometimes overturn the elections of its own members, refusing to cede complete control to the states. In doing so, Congress routinely subordinated federalism to politics. In Congress We Trust? provides a new perspective on who truly governs our system of elections by showing that federal authority has been broad, lasting, and decisive.

--Dan Ernst

U.S. Supreme Court Records and Briefs on Internet Archive

[We have the following announcement from Merrilee Proffitt of Democracy's Library.  DRE]

Thanks to a generous gift of materials from the Wolf Law Library at the William & Mary Law School, and the Internet Archive’s mission to digitize and provide universal access to knowledge, we are pleased to share more than 125,000 U.S. Supreme Court records and briefs. These materials which span nearly two centuries of American law are now freely accessible online. 

Why This Matters.  Most people are familiar with the U.S. Supreme Court opinions as public documents. But the opinions are only part of the story. Behind every landmark ruling lies a vast archive of briefs, petitions, appendices, and supporting records; these are the the arguments, evidence, and voices that shaped each decision. The Supreme Court may receive 7,000-8,000 petitions each year, but only grants a writ of certiorari to hear the case for about 80 cases. This collection includes records and briefs received by the court, both those granted certiorari and those denied certiorari; the latter category is much more voluminous than the former. Until now, these important public documents have only been available in limited ways — in print form in a limited number of law libraries, and in other formats in other libraries but not generally available for all people to freely access. 

That has now changed. As part of Democracy’s Library, the Internet Archive’s large-scale effort to preserve and open government information, this collection includes records and briefs spanning cases from 1830 through 2019, making it one of the most comprehensive archives of freely available Supreme Court materials ever assembled in one place. 

What’s Now Available.  The collection covers three kinds of materials:

• The first is the official records from the lower court(s): the trial transcripts, evidence, and procedural documents that travel with each case up through the federal judiciary.  

• The second is the briefs: the petitions, responses, amicus filings, and supporting appendices submitted by the litigants themselves and by interested third parties. These briefs are the raw material of American constitutional argument. They capture the perspectives of individuals, corporations, civil society organizations, and government agencies pressing their cases before the nation’s highest court.  

• The third category is the opinions (for cases that are heard by the Supreme Court): the ultimate decisions reached by the highest court in the United States, demonstrating the logic and reasoning of the court.

Taken together, they form a detailed documentary record of how legal arguments, social concerns, and political priorities have evolved over nearly two hundred years of American life.

Berger-Howe Fellowship to Reiss

[We have the following announcement.  DRE]

The Raoul Berger-Mark DeWolf Howe Legal History Fellowship for 2026-2027 at Harvard Law School has been awarded to Jennifer Reiss.  A doctoral candidate in history at the University of Pennsylvania, she received her B.A. from Penn and her law degree from Harvard, as well as two master’s degrees in law and history from the University of Cambridge.  Before graduate school, she practiced law in New York and London.  During her fellowship year she will revise her dissertation, “Undone Bodies: Women and Disability in Early America,” for publication and work on a new project on disability and abolitionism in eighteenth- and early-nineteenth-century America. 

Stenlund on Sweden, Rule-of-Law Talk, and the US Right

On Tuesday, April 28, 15:00-16:30, Helsinki time, which is seven hours ahead of EDT, Karolina Stenlund, a lecturer at the Faculty of Law at the University of Helsinki, the holder of a doctoral degree in law, and a former visiting doctoral researcher at Harvard Law School, will present in the Helsinki Legal History Series seminar:

My presentation for HLHS will be on an article that examines the uneasy relationship between the rule of law and democratic backsliding through a legal-historical case study of Sweden. Challenging the conventional assumption that legality and the rule of law inherently safeguard democracy, the article traces how early rule-of-law discourse and rights-based litigation in Sweden emerged not from left-wing civil rights activism but from a right-libertarian legal movement inspired by U.S. public-interest law firms. Through an analysis of the landmark 2006 "Uppsala case" and the intellectual and strategic foundations behind it, the article shows how concepts such as equality and the rule of law were mobilized to expand judicial power and reshape the balance between courts and the political branches. By situating these developments within Sweden's unique political and constitutional history, the article highlights how legal strategies aimed at strengthening individual rights can simultaneously redistribute political power in ways that complicate dominant narratives of democratic resilience. The piece forms part of an ongoing research project and should be read as work in progress.

Online attendance (listen-only) here.

--Dan Ernst

ASLH 2026 Registration Open

[We have the following announcement from Emily Prifogle, Secretary of the American Society for Legal History.  DRE.]

We are happy to announce that pre-registration for the ASLH meeting in Banff is now open! 

If you navigate to the conference page, you will be able to register. Pre-registration is open and refundable until October 9, so we encourage you to register early. This helps the Society in our planning.

We encourage attendees to stay at the conference hotel and to make hotel reservations early. The ASLH contracts for a set number of rooms at the negotiated rate. Once those rooms are taken--and this can happen well before the conference registration deadline--attendees must make other arrangements, either at the conference hotel at a higher room rate or elsewhere.

Our local arrangements committee has also added a guide to Banff, including cultural icons, restaurants, and practical tips on transportation.

We also gently remind you that the deadline to apply for ASLH prizes and fellowships is coming on June 1. Projects and Proposals funding will be due on September 1.

Finally, we are pleased to announce that the ASLH 2027 meeting will be held November 4-6 in Minneapolis!  

We look forward to seeing you in Banff.

Weekend Roundup

• Mary Sarah Bilder, Boston College Law School, delivers the 2026 Maurice and Muriel Fulton Lecture at the University of Chicago Law School on Catherine Macaulay's 1767 pamphlet, "Loose Remarks." 

• The Columbia Law Library tells the law school's history through an exhibit of its "artifacts and treasures" (CLS).  

• And the Princeton University Library has opened the exhibit “Nursery of Rebellion’: Princeton and the American Revolution,” featuring original copies of the Declaration of Independence and the U.S. Constitution (Daily Princetonian).

• From In Custodia Legis: a post on "William Paca, Deliberator and Declaration Signer.

• On April 28, Foley partner Harlan Levy will moderate a discussion with Akhil Reed Amar on The Declaration's Impact on American History, Law and the Constitution at the NYC Bar Series.  Also here.

• Over at Nursing Clio: Dori Hobbie on "British Reactions to the 1992 Irish X Case."

• Greg Ablavsky, Stanford Law, on Native Nations, Federal Indian Law, and the Birthright Citizenship Case (SLS Podcasts).  Also, the National Constitution Center's resource guide for classroom discussions of the birthright citizenship.

• More on that PRA EO: Marty Lederman, Georgetown Law, and Jack Goldsmith, Harvard Law, on who owns Presidential Records (Executive Function Chat).   Christopher Fonzone says that the Presidential Records Act is Constitutional (Just Security).  Gary M. Stern, a former general counsel for the National Archives and Records Administration, is astonished by the executive order (WaPo). 

• ICYMI: Jane Manners and Lev Menand summarize their argument on "The Law of For Cause Removal" (Oxford Business Law Blog).  Live from Penn Carey Law via WHYY: Kermit Roosevelt and Amanda Shanor of the history of the U.S. Supreme Court (YouTube).  Larry Solum takes issue with Richard Primus on enumeration and constitutional interpretation (Legal Theory Blog).

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

Amorosa and Suuronen on Schmitt and Vitoria

Paolo Amorosa, University of Helsinki Faculty of Law, and Ville Suuronen, University of Turku, have posted 'Ancora tu?' Questioning Carl Schmitt's Place in the Canon of International Law: 

In recent decades, the controversial intellectual legacy of Carl Schmitt, leading Nazi lawyer, has returned to prominence in political and legal theory as well as in international law. Schmitt’s work continues to inspire not only conservative and far-right thinkers but, somewhat surprisingly, also serves as a source of inspiration to leftist or even postcolonial positions. This revival is often justified through a decoupling of Schmitt’s odious political commitments from what is often seen as his uniquely valuable insight into the nature and history of the international legal order. The goal of this chapter is to problematize and question this decoupling and the resulting canonical position Schmitt has acquired as a theorist and historian of international law. As our starting point to this complex debate, we offer a critical analysis of Schmitt’s profoundly political narration of the history of international law, and in particular, his supposedly neutral appropriation of Francisco de Vitoria, usually examined apart from the historical context and motives that inspire Schmitt to take up this figure in the 1940s. By comparing Schmitt’s work on Vitoria with his earlier publications on international law, we offer a historical contextualization of the development of Schmitt’s arguments, showing how these were motivated by unscholarly and overtly political intentions. Indeed, Schmitt used Vitoria to develop a complex historical narrative of international law which not only reiterated far-right revanchist positions on the Treaty of Versailles but also aimed to offer an apologetic narrative concerning his own role within the Nazi party. 

--Dan Ernst 

The Decline and Fall of the State Executive Council

We note the publication, as an anonymous “Chapter” in the Developments of the Law section of a recent issue of the Harvard Law Review, of the article The Decline and Fall of the State Executive Council.  From the introduction:

Early state constitutions presented a mosaic of institutional design; but today, their structure largely mirrors that of the federal government. This structural convergence story is best told through the decline and fall of state executive councils. At the Founding, nearly every state had one. But today, only two remain. . . . 

Section A examines the rise of executive councils, beginning with their origins in medieval England. It catalogs how the early executive council evolved from a small circle of the King’s advisors to a central institution in English government exported to the colonies, both shaping and being shaped by early American societies. Section B explores the translation of these colonial-era executive councils into republican institutions and catalogs the abortive failure of the federal plural executive — and the victory of the unitary executive — at the Federal Constitutional Convention. Section C details the executive council’s long and consistent fall from grace. Section D discusses the role of the contemporary executive council in New Hampshire, its last true stronghold. Looking at the history of executive council dissolution over time, three sequential historical causes are clear: federalist reaction, Jacksonian democracy, and successive progressive movements. These three trends have one thing in common: They were national, top-down movements that flattened state power. This Chapter concludes that this institution is worthy of a second look, both locally and nationally.

--Dan Ernst 

Allread, "Indigenous Constitutionalism"

The Harvard Law Review has published "Indigenous Constitutionalism," by Tanner Allread (University of California, Los Angeles). The abstract:

By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions.

This Article tells the story of these constitutions — the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of “Indigenous constitutionalism” in the United States.

This Article’s aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism’s features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today.

But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions — unique among American constitutions — showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law. 

Read on here (or at SSRN). 

-- Karen Tani 

 

Wieboldt on Catholic Legal Thought and First Amendment Originalism

Dennis J Wieboldt, III, a JD-PhD candidate at Notre Dame, has published ‘But the original intent of the Constitution would be restored’: Catholic legal thought and the emergence of First Amendment originalism, 1947-87, online and open access in the American Journal of Legal History:

Several scholars of twentieth-century American legal history have recently argued that originalism—a method of constitutional interpretation commonly associated with the conservative legal movement—first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the US Supreme Court’s 1954 decision in Brown v Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation’s legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbours that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court’s 1947 decision in Everson v Board of Education would not stymie the American Catholic Church’s efforts to obtain public financial assistance for parochial schools.

In encouraging jurists, scholars, and voters to understand the First Amendment’s Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism’s decisive (re)shaping of the Religion Clauses during the next half-century. But this ultimately proved troubling to some as the conservative legal movement became ascendant in the 1980s. From the perspective of these critics of First Amendment originalism, God’s natural law, not Thomas Jefferson’s metaphorical ‘wall of separation’ between church and state, should determine the First Amendment’s meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism pragmatically to vindicate their background philosophical and theological conceptions of religious liberty, but increasingly came to realize that originalism—to the extent that it relied on positivist assumptions about the nature of individual rights—was alone inadequate to do so.

--Dan Ernst 

Kent on the Interwar Development of American Economic Sanctions

Andrew Kent, Fordham University School of Law, has posted The Pre-History of Modern Economic Sanctions, which is forthcoming in Constitutional Commentary:

This review essay examines the historical emergence of modern economic sanctions through the lens of Professor Nicholas Mulder’s outstanding 2022 book, The Economic Weapon.  It then supplements Mulder’s account with a fuller treatment of developments in the United States between World War I and the start of World War II.  The emergence of modern sanctions depended on transformations in international and domestic law, international diplomacy, state administrative capacity, and moral and legal understandings of coercion against civilian populations.  Mulder shows that these changes took shape principally during and after World War I, and focuses his monograph on Britain, France, and the League of Nations, with some attention to the United States.  This essay supplements Mulder’s transnational history with a more detailed account of U.S. law and institutions in the first four decades of the twentieth century.  In the United States, developments during World War I and the interwar period—including the Trading with the Enemy Act, export-control measures, debates about Congress’s neutrality statutes and the merits of using American economic coercion against fascist and expansionist powers, and a growing acceptance of broad executive discretion in foreign affairs—worked together to help create a rudimentary but recognizably modern sanctions regime by the time the United States entered World War II.  The essay highlights the U.S. constitutional questions raised by these developments, including questions about the nondelegation principle, the scope of presidential power and Congress’s foreign and interstate commerce powers, and protections for individual constitutional rights. 

--Dan Ernst