Bray and Bamzai on the Origins of Criminal Contempt

Samuel L. Bray, University of Chicago Law School, and Aditya Bamzai, University of Virginia School of Law, have posted Prosecuting Contempt:

Under Supreme Court precedent and the Federal Rules of Criminal Procedure, federal courts may appoint prosecutors for criminal contempt. In this way, and many others, contempt prosecutions depart from the ordinary, adversarial model associated with criminal cases. Because such prosecutions and appointments arguably involve judges seizing the executive power of prosecuting crime, they are controversial, and their lawfulness has been disputed. This Article explores the lawfulness of judicial appointment of prosecutors for criminal contempt. It surveys the historical development of the idea that judges have an “inherent power” of contempt, as well as the historical origins of “criminal contempt” as a distinctive category. It concludes that the power to punish contempts, whether civil or criminal, was historically understood as a judicial power. That conclusion has implications for a variety of questions, including the lawfulness of attorneys appointed to prosecute contempt, whether governmental or non-governmental attorneys. Such attorneys do not exercise executive power, but rather assist the court in the exercise of its inherently judicial power of punishing contempt. The judicial appointment of prosecutors for criminal contempt, which now happens in federal court pursuant to Federal Rule of Criminal Procedure 42, is therefore lawful.

--Dan Ernst 

Guerra-Pujol on Two Views of Miller v. Schoene

Property teachers take note: F. E. Guerra-Pujol, University of Central Florida and the Pontifical Catholic University of Puerto Rico, has posted Buchanan v. Samuels: The Cedar Rust Case Redux:

One of the most fascinating sessions at the 2025 meeting of the History of Economics Society (HES) was a roundtable on “The 50th anniversary of the Buchanan-Samuels Exchange.” As it happens, this intellectual exchange was motivated by an old takings case—Miller v. Schoene, decided in 1928—and takings law is one of my areas of expertise. The remainder of my paper reframes the Buchanan-Samuels exchange as a three-act drama and is thus organized as follows: Act I sets the stage of our story by revisiting the dispute in Miller v. Schoene. Next, Act II compares and contrasts Samuels’s framing of this case with Buchanan’s alternate framing. For Samuels, in brief, Miller v. Schoene is a textbook case of reciprocal harms, while for Buchanan, this case is about the sanctity of property rights. Lastly, Act III concludes with the climax and Buchanan’s denouement.

--Dan Ernst 

do Vale Alves on Latin American Women's Rights and Family Law

Ayla do Vale Alves, Adelaide University, will speak on Women's Rights in Latin American Family Law in the Helsinki Legal History Series seminar on June 2:

The legal history of women’s rights in Latin American family law is deeply shaped by religious influence. Approaching this history from a human rights lens, the Catholic doctrine guided much of early constitutional law and civil codes regulating rights of the family in the region. These foundations helped entrench patriarchal family structures that limited women’s rights, particularly in relation to marriage, property ownership, parental authority, and reproductive autonomy. Over time, the Inter-American System of Human Rights has played a transformative role in challenging these conservative doctrines and elevating women’s rights. Now, there is return of extreme conservative religious views affecting women’s rights in the region and how the System will react to these evolving dynamics, and whether its decisions will retain influence over family protection in Latin America, remains an open question.

Time: 15:00-16:30, Tuesday 2.6.2026.  Location: Päärakennus, U4075, University Main Building (Fabiankatu 33).  Online [here].  

--Dan Ernst 

Mumford on Holmes and Anglo-American Equity

Ann Mumford, Dickson Poon School of Law, King's College London, has posted Re-Enacting The Judicial Philosophy Of Oliver Wendell Holmes, Jr.: Saunders v. Vautier and Claflin v. Claflin Compared:

Oliver Wendell Holmes, Jr. (NYPL)

Oliver Wendell Holmes Jr. sat on the Supreme Judicial Court of Massachusetts in 1889, when, in the case of Claflin v Claflin, he joined the decision that a trust may not be modified if the intention of the testator would be undermined. Claflin rejected Lord Cottenham's reasoning in Saunders v Vautier that, under certain circumstances, beneficiaries may compel the termination of the trust and transfer the property to them. Claflin v Claflin and Saunders v Vautier are perhaps the two most famous cases in Anglo-American Equity. Through a detailed examination of manuscripts, this article offers a comparative expansion of the US and English histories, and particularly considers the role played by Holmes. Re-enactment theory offers the possibility of creating, or reliving, the intellectual process that led to Claflin, thus revealing a significant moment in the history of US federalism. 

--Dan Ernst 

LSA James Willard Hurst Book Prize to Mayeri for "Marital Privilege"

The Law & Society Association has announced its 2026 awards, including the winner of the James Willard Hurst Book Prize ("awarded annually (biennially prior to 2002) for the best work in socio-legal history published in the previous year").

This year's Hurst award went to Serena Mayeri (Penn Carey Law), for Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Oxford University Press, 2025). The citation:

Serena Mayeri’s Marital Privilege shows how, beginning in the 1960s, marriage was dislodged from its supreme position across a range of legal domains and replaced with a regime of “marital privilege.” With poignant, empathetic detail drawn from archives and legal documents, Mayeri brings to life both well-known and not-so-famous cases, revealing the theories and evolving strategies animating a wide range of challengers to the regime of marital supremacy—from litigants to advocacy organizations to legal academics. Yet, even as their victories advanced the values of nondiscrimination and individual autonomy, Mayeri shows how the assumptions of the new regime of “marital privilege” obscured and deepened inequalities of wealth, power, and privilege in American law and society. Combining sweeping ambition, doctrinal acumen, and a keen sense of historical contingency, Marital Privilege provides a magisterial account of a crucial transformation of American law. 

Congratulations to Professor Mayeri!

-- Karen Tani 

Mortenson on Text and Purpose in Anglo-American Law

 Julian Davis Mortenson, University of Michigan Law School, has posted “Westminster Quibbles”: The Antinomy of Text and Purpose in Eighteenth-Century Anglo-American Legal Culture, which is forthcoming in the Journal of the Early Republic:

In the wake of the battle of Bunker Hill, the British government's efforts to fortify its colonial positions triggered a constitutional crisis and political scandal that were followed closely by an anxious North American public. The public debate about the legality of the ministry's troop movements illustrates two points about the structure and habits of transatlantic legal culture. 

First, lawyerly arguments about “merely” technical wrongdoing could have immense political force in the practice of power politics at the highest level. Law mattered to how elite decisionmakers talked as politicians; it shaped what they did as legislators; and it affected how the press and the public reacted on both sides of the Atlantic. Second, even as the political class took it for granted that political decisionmaking would be infused by legalized disputation, they pervasively contested which kinds of legal arguments counted as formally valid and analytically persuasive. They debated, in other words, what it meant to “do law.”

The first point emphasizes the cultural power of law as a motivating and channeling force in the real world for people negotiating complex social problems. The second point surfaces an antinomy that was central to early American legal argument: the twin commands to respect both the demands of a law’s spirit and the specifications of its letter. The latter imperative was simultaneously internal to law and also a direct link to the sort of messy social considerations that formalism seeks to exclude from the domain of law proper.

--Dan Ersnt

Morris L. Cohen Student Essay Competition

[We have the following announcement.  DRE] 

The Legal History and Rare Books Special Interest Section (LHRB) of the American Association of Law Libraries, in cooperation with The Lawbook Exchange, Ltd., is conducting its annual Morris L. Cohen Student Essay Competition.  Full- and part-time students currently enrolled in accredited graduate programs in law, history, library science, or related fields are eligible to enter.  Members of the Class of 2026 are also eligible.  Essays may be on any topic related to legal history, rare law books, or legal archives.  Criteria on which papers will be judged include originality of topic or approach, quality and depth of research and analysis, clarity of presentation, and contribution to the field.  The winner will receive a $1,000 prize from The Lawbook Exchange, Ltd., and will present the essay at an LHRB sponsored webinar.  The authors of the winning and runner-up essays will have the opportunity to publish their essays in LHRB’s online scholarly journal Unbound: A Review of Legal History and Rare Books.  The Competition electronic submission deadline is 11:59pm EDT, Tuesday, 30 June 2026.
 
Full Competition details are available at the Cohen Essay Contest: Full Explanation web page, and the Application Form is available at the Cohen Essay Contest: Application web page.  Questions may be sent to John Moreland at JMoreland@phillipslytle.com.  The Competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School and recognized as “one of the towering figures of late 20th century law libraries.”  His scholarly work focused on legal research, rare law books, and historical bibliography.

Byrne's "Law in the New Democracy" and Book Launch

On Thursday, July 2, from 6 PM - 7 PM at the Chau Chak Wing Museum in Camperdown, NSW, Paula Jane Byrne speaks about her new book Law in the New Democracy exploring development of a legal system in colonial New South Wales. It is published by ANU press and with the assistance of the Francis Forbes Society for Australian Legal History.  Here is the press's description of the book:

In the 1850s, opposition to the Crown in New South Wales made for unsteady ground for the administration of criminal law. This study of skirmishes between magistrates, constables and the metropolis reveals just how far understandings of law could be stretched and warped by recalcitrant local populations. At Carcoar, the local population entirely controlled how law worked; on the South Coast, ‘the people’ influenced how law intervened in their lives; in the north west of the colony, publicans dominated; on the north coast, violence against First Nations/Aboriginal people was forcibly meshed into the day to day working of the courts. This study shows a ‘frontier’ centred on the coasts and in the minds of legal officials of the metropolis, but elsewhere, some recognition of the Aboriginal polity and an early understanding of Aboriginal rights.

And here is the description of the book launch:

Democracy in the 1850s was felt to be fragile and uncertain. At any moment, the rhetoric of the Legislative Council and Assembly tells us, the rights obtained by the citizenry might be thwarted by the cunning manoeuvres of the English crown.

Such rhetoric would shape how colonial New South Wales viewed criminal law. Across the colony, desultory clerks filled sheets of paper with the words of victims and witnesses, words that would be carried to the metropolis, to the offices of legal officials. Dragging behind these words were the chained prisoners of the colony, eager on their journey to obtain money for a barrister in court.

This discussion examines the traces of such events and the role of the historian of 2026 in interpreting them. It addresses right of reply by Aboriginal people to history making. It questions the idea of a move into lawlessness the further we travel from Sydney and the idea of the frontier.

--Dan Ernst

Weekend Roundup

• Alison LaCroix on using history to advise the University of Chicago's graduating class (Chicago Maroon).

•  A notice of "Law and the Paranormal: A Critical Perspective on Legal Rationality," a doctoral thesis submitted to Gonville and Caius College at Cambridge by Andrew Michael Sagar, in 2023, "traces how English law transformed its treatment of witchcraft, astrology, spiritual mediumship, and fortune-telling from crimes of supernatural harm into issues of fraud, commerce, and consumer regulation" (USAHerald). 

• An appreciation of Tay-sheng Wang's Introduction to Taiwan’s Legal History by Shih-An Wang, Project Associate Professor at the Graduate School of Law, Kobe University (Taiwan Insight).

• New in Gale's "Making of Modern Law" series, British Colonial Law: Acts, Ordinances, and Proclamations from the Colonies, 1643–1900. 

• The webinar "Making the Founding Documents Relevant in the 21st Century" will take place on Tuesday, June 2, 2026, commencing 1:30 PM (ET).  The panelists will be Paul Carrese, Arizona State University (moderator); Roosevelt Montás, Bard College; Jeremy Bailey, University of Florida; and Jocelyn Evans, University of West Florida.  Register here (PSNow). 

• 
  SHEAR's "Civics Exchange" "connects you with members of the Society for Historians of the Early Republic (SHEAR) who can speak to your organization, club, or institution about the history that has shaped our civic institutions and civic culture, and the relationship of the past to our present-day civic institutions and civic life."

• From In These Times: "Celebrating the Life and Legacy of Tony Mazzocchi, a Working-Class Hero" (and a major figure in 20th c. legal history). 

• An event of interest, on June 6: historian and archivist Daniel F. Gosling (UK National Archives) is offering an online intro to early modern legal records. (more)  

• Lawbook Exchange's May 2026 list of Scholarly Law and Legal History. 

• ICYMI: The history of Supreme Court leaks (SCOTUSblog).  What Jefferson and Madison would have thought about "rededicating" the US to God (The Conversation).  Hunting, Poaching, and the American Revolution (New York Almanack).

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

Reynolds on the Federal Judiciary and Prison Administrators

Con Reynolds, Counsel to the Chair, U.S. Sentencing Commission, has posted The Original Role of Article III in Federal Imprisonment.  The article is forthcoming in the University of Pennsylvania Law Review:

Since the late 1970s, the Supreme Court has pushed federal courts to defer to prison administrators. This deferential attitude and its justifications-namely, administrator expertise, the limited rights of prisoners, and the separation of powers-are packaged in a protective layer of history and tradition, with the Court framing deference as a return to Article III's original "hands-off" role in prison affairs. This approach has exposed countless people to abuse and neglect behind bars, especially those living in the nation's largest prison system: the Federal Bureau of Prisons. 

This Article challenges this deferential attitude and its underpinnings by recovering Article III's historical place in federal imprisonment. It unearths forgotten statutes and case law that authorized early federal courts to oversee and modify conditions of federal confinement. And by mining digital newspaper archives, it recovers over 650 instances of Article III playing this interventionist role from the Founding through the mid-20th century. Beneath these powers and practices lay the belief that Article III's core function was to set a floor and a ceiling of life and liberty behind bars for those it imprisoned. 

These findings upend justifications for judicial deference to prison administrators, especially in the federal context. Article III's original role, in theory and in practice, was to cabin federal prison administrator discretion, rather than affirm it. This role reflected ideas opposite the ones animating deferential attitudes today-namely, that incarcerated people and the state incarcerating them owe duties to one another, courts have special expertise in defining and enforcing those duties, and their doing so both respects the separation of powers and fulfills its end of thwarting tyrannical concentration of power.

--Dan Ernst 

Solomine and Brodersen on Goesaert v. Cleary

Michael E. Solimine, University of Cincinnati College of Law, and Michelle Brodersen, a 2025 graduate of the University of Cincinnati College of Law, have published Bartender Rescue: Sex Discrimination, Nepotism, and the Legacy of Goesaert v. Cleary in the Penn State Law Review:

In 1948, the United States Supreme Court in Goesaert v. Cleary upheld the constitutionality of a Michigan statute which prohibited women from serving as bartenders. It was one of a series of decisions which employed highly deferential rational basis scrutiny to uphold laws that discriminated based on sex. Those decisions came to constitute an “anti-canon” of highly criticized cases, and they were eventually overruled in a series of decisions by the Burger Court, which adopted a more intensive judicial scrutiny for gender discrimination. The change was famously the result of concerted legal mobilization led by then-Professor Ruth Bader Ginsburg and other lawyers and activists.

There is extensive literature addressing and analyzing the legal and social trajectory of Goesaert. This Article contributes to this literature by focusing on two underappreciated aspects of Goesaert and its legacy. One factor is nepotism: the Michigan statute, and similar laws in other states, permitted spouses or daughters of male bar owners to serve as bartenders. This arguably made Goesaert at least a closer case, since the exception diluted the charge of sex discrimination. Nepotism in employment allowed some women to work in jobs otherwise reserved for men, and the practice has long had a fraught relationship with the promotion of gender equity in employment.

The other factor is the practical effect of Goesaert. By the mid-1970s, the Supreme Court was expressly repudiating the doctrinal analysis of that decision. But well before that, other legal and societal developments had undermined the holding of Goesaert and allowed women to serve as bartenders. This development came about prior to the rise of Goesaert to anti-canonical status through, among other things, the passage of Title VII of the 1964 Civil Rights Act, and state court cases relying on state antidiscrimination laws.

Thus, the legacy of Goesaert is a richer and more complicated one, and sheds light on a decision that demands greater attention than a rote citation to a now discarded precedent.

--Dan Ernst 

Deadline Approaching: ASLH Student Research Colloquium

 [We have the following Call for Applicants.  DRE]

The American Society for Legal History will host its thirteenth annual Student Research Colloquium (SRC) on Wednesday, November 11, and Thursday, November 12, 2026, in Banff, Alberta, Canada.  Each year, the SRC brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress dissertations or other research projects with each other and with ASLH-affiliated scholars.  Target applicants include early-post-coursework Ph.D. students and historically minded law students.  All students whose research touches on legal-historical themes are encouraged to apply, whatever their chronological or geographical focuses.  Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history.  A student may present a paper at the annual meeting and participate in the SRC in the same year.  The ASLH will either partially or, if possible, fully reimburse participants’ travel, hotel, and conference-registration costs.  To apply, submit the following three items to John Wertheimer at: srcproposals@aslh.net:

• a cover letter describing, among other things, how far along you are and approximately how many years remain in your present course of study;
• an up-to-date CV; and 
• a two-page, single-spaced research statement that contains a working title and describes the in-progress research project that you would like to present at the colloquium.

Application deadline: June 1, 2026.

Thanks to the extraordinary generosity of ASLH donors, the SRC is able to offer student participants fellowships named in honor of past and present leaders in our field: the Lauren Benton Fellowship, the Herbert A. Johnson Fellowship, the Martha Jones Fellowship, the Laura Kalman Fellowship, the William Novak/University of Michigan Law School Fellowship, the Amy Dru Stanley Fellowship, the John Wertheimer/Davidson College Fellowship, and the James Whitman/Yale Law School Fellowship. 

Penna's "Byzantine Law" and Book Launch

Daphne Penna, University of Groningen and KU Leuven, has published Byzantine Law: The Law of the Eastern Roman Empire, in the "Elements in Rethinking Byzantium" series of the Cambridge University Press.  On May 28, she will speak about the book in the Law and Humanities Seminar Series of the Peking University School of Transnational Law.  Here is Cambridge's description of the book:

The purpose of this Element is to introduce the study of later Roman law (Byzantine law) to a wider academic audience. Currently a great deal of specialized knowledge is necessary to approach the field of Byzantine law. This Element works to break down the barriers to this fascinating subject by providing a brief, clear introduction to the topic. It makes a scholarly contribution by placing Byzantine law in a broader perspective and by reconsidering some of the aspects of the study of Byzantine law. The Element places Byzantine law outside of the box by comparing, for example, Byzantine law to the European legal tradition and highlighting the role that Byzantine law can have in unravelling the common legal past of Europe. It gives also information on the status of Byzantine legal studies and makes suggestions on how to study Byzantine law and why.

--Dan Ernst 

A Constitutional History of EU Law

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

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

--Dan Ernst.  TOC after the jump.

Peterson on Text and "the Founding"

Farah Peterson, University of Chicago Law School, has posted The Limits of Text, which is forthcoming in the Yale Law Journal:

Let’s say the “laws” are the rules that actually constrain power, organize government, and coerce people. That is, let’s define the law as the system of rules we experience, and not just the system of rules our statutes, precedents, and founding documents describe. Just now, during the second Trump presidency, the gap between the law as it is written and the law as we experience it is obvious even to lay observers. Yet the dominant ways of thinking about law—textualism and originalism—are so focused on the proper interpretation of our legal texts that I fear we have lost sight of the limits on those texts’ capacity to guarantee the rights, obligations, and principles they enshrine. 

The law as the Founding generations experienced it also differed from the law described in legal texts. The term “Founding” suggests, misleadingly, that Americans made a decisive political commitment to the style of government described in the Constitution. For some of the Constitution’s central features—including the delineation of federal and state prerogatives, separation of powers, and federal judicial authority—ratification was the beginning of a process of constitutional change, not the end. 

Because law in practice differed from the law on the page, we cannot know the content of the original Constitution by reading its words, by knowing what the text would have meant to English-speaking contemporaries, or by reference to early judicial interpretation. This Atkins Feature discusses how early American law differed from text and why, and what early American history teaches us about when we should expect texts to create governing law and when we should expect text and law to diverge. Those lessons should make us cautious about the weight we place on written law. That is not to say text does not matter. But a simplistic insistence that text defines the system of rules we experience—that it can constrain power in the face of changing norms or protect our system of government—is dangerous. 

--Dan Ernst 

A Symposium on Constitutional Interpretation

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

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

Originalist Arguments in Free Speech History
Samantha Barbas

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

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

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

Memory and Authority of Failed Constitutional Amendments
Julie C. Suk

Historical Methods of Constitutional Interpretation and Political Gradations
Nelson Tebbe

Roger Taney, Memory Entrepreneur
Anne Twitty

Hermeneutics in History
John Fabian Witt

Remarks: Why Constitutional Argument Matters
Philip Bobbitt

--Dan Ernst 

Rao's "White Power"

It is publication day for White Power: Policing American Slavery (University of North Carolina Press), by Gautham Rao.  The book is the initial entry in the UNC Press’s new series, W. Hodding Carter III Books:

Beginning in the colonial era and growing through the American Revolution and the Southern plantation system, slaveholders’ violent police regime continued after Emancipation, through Reconstruction, to today. Moving across time, space, and place, White Power uncovers how slaveholders created their own white supremacist police and government to deny Black people rights, power, and humanity.

Legal historian Gautham Rao introduces us to laws that empowered white people to forcibly exercise their desired racial superiority over Black people, shows how they spread from the South throughout the nation, and traces the rebellions, fugitivity, activism, and legal systems that challenged them. Rao’s narrative includes slaveholders, lawmakers, and the Ku Klux Klan, dramatic escapes by runaway enslaved people, abolitionist activism in courtroom showdowns, and pitched battles between white paramilitaries and enslaved rebels. He offers a new interpretation of the history of policing in the US, centering the institution and legacy of slavery and speaking to the origins of today’s persistence of white vigilance, white supremacist militia groups, and white racist cops determined to maintain power over Black people by force. Equally determined, however, was Black Americans’ refusal to accept it. 

DC-area folks can catch Professor Rao in conversation on White Power with the Library of Congress's Ryan Reft at 6:30 tonight at People's Book in Takoma Park, Maryland. 

–Dan Ernst

JACH (Spring 2026)

The Spring 2026 issue of the Journal of American Constitutional History is now available here.

Articles

Constructing the Constitutional Legitimacy of the Administrative State: Congress and the Settlement of 1946
Johnathan O’Neill

Today the legitimacy of the administrative state is being questioned more deeply than at any time since the New Deal. This article puts Congress at the center of the story to understand how this question was addressed in the New Deal’s immediate aftermath. It argues that Congress sealed the legitimacy of the administrative state in three pieces of legislation passed in 1946: the Employment Act, the Administrative Procedure Act, and the Legislative Reorganization Act.

This legislation marked the “settlement of 1946,” in which Congress acknowledged that modern governance required management of the economy and delegation of power to bureaucracies, but also that the administrative state must be disciplined with recognizably constitutional principles and procedures. It was through this legislative dynamic, traced in each of the three laws passed in 1946, that Congress acted to moderate constitutional conflict and legitimate its resolution: only it could accommodate and validate the administrative state while also limiting and controlling its reach.

From this perspective, the constitutional changes of the New Deal look less like an event centered solely on the Supreme Court and its jurisprudence and more like an adaption that required action by the national legislature to be regarded as legitimate.

The Civic Order of Progressive America: The Fitter Families Ideal and the Acquisition and Loss of U.S. Citizenship
Rogers M. Smith

In the first third of the twentieth century, American leaders affiliated with both political parties and the broader Progressive movement restructured what I term the nation’s “legal civic order” to advance a Fitter Families ideal of American citizenship. The model American family was industrious and prosperous, conventionally religious, patriotic, patriarchal, white, and prolifically fecund. This article analyzes American legislation and executive policies governing immigration, naturalization, denaturalization, and expatriation in the Progressive era to show how comprehensively they expressed this ideal, despite apparent anomalies. National policies sought to exclude persons thought incapable of conforming to Fitter Families standards and to subject Indigenous Americans, inhabitants of the insular territories, and most people of color in America to what Progressives viewed as beneficial “tutelary” forms of second-class citizenship designed to prepare them to approximate the Fitter Families ideal, if they proved capable of doing so. Some on the left of the Progressive movement joined in coalitions with representatives of allegedly “unfit” communities to contest these policies, but substantial changes would not come until succeeding eras in America’s civic development.

Dialogue: The Oliver Wendell Holmes Devise History of the Supreme Court

The Oliver Wendell Holmes Devise: An Introduction
Maeva Marcus

As the third general editor of the Oliver Wendell Holmes Devise History of the Supreme Court, I had the good fortune to be in that position when Mark Tushnet and Robert Post produced their manuscripts on the Hughes and Taft Courts respectively—both truly monumental achievements. By way of introduction, I thought it might be helpful to give JACH readers a short account of the checkered progress of the Devise History, so they might better understand how Professors Tushnet and Post came to undertake such massive projects.

Reflections on the Two Most Recent Holmes Devise Histories of the Supreme Court (Including Mine)
Mark Tushnet

Reading in full Robert Post’s magnificent Holmes Devise history of the Taft Court provoked me to compare the choices he and I made in writing Holmes Devise volumes at roughly the same time.

Two choices Post and I made stood out for me: first, his hope to write a volume “of record” (xxv) compared to my (perhaps resigned) willingness to acknowledge that my volume, long as it is, is not comprehensive; second, his framing of his volumes around what he calls four “narratives about the nature and purpose of constitutional law” (xxvii) compared to my framing around what I called “attitudes” or, sometimes, “legal thought,” drawing upon Duncan Kennedy’s work.

The bottom line should be that his choices were right for him, which in some sense they necessarily were, and mine right for me.  Candor compels me to say, though, that I think my choices were better than his notwithstanding my admiration for his volume’s obviously great merit.

Writing for the Holmes Devise
Robert Post

Although seventy-five years ago it was common for legal historians to focus on the decision-making of apex courts, this had begun to change by 1988. To-day the subject seems positively quaint. Legal historians are now drawn instead to topics like transgender history, or imperial violence, or black legal culture, or intellectual history.  They conceptualize law as emerging from the bottom up, or as epiphenomenally emanating from the practices of governmentality, or as the precipitation of larger cultural developments. All this is very far from viewing law as the conscious, professional practice of judges striving to construct a semi-autonomous system of legal doctrine.

--Dan Ernst 

Weekend Roundup

• 
  Katrina Jagodinsky, University of Nebraska-Lincoln, will be addressing the Department ofHistory and School of Law at the University of Oregon on May 19, from 3:30-5:00 on "Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924," based on her Mellon-funded, NSF supported digital initiative on U.S. Law and Race.

• We have two reports of Maggie Blackhawk's discussion at Dartmouth College on May 6 of "the centrality of American colonialism and Native American history to legal understandings of the United States Constitution (The Dartmouth; Dartmouth News).  

• Lucy Salyer, University of New Hampshire, explains Wong Kim Ark and birthright citizenship on NBC News' "Here's the Scoop" (YouTube).

• Rebecca Tushnet's 2025 Nies Lecture on Intellectual Property at Marquette Law School, entitled  “History and Tradition in First Amendment Intellectual Property Cases” is here.

• That symposium over at Balkinization on Stephen Skowronek's The Adaptability Paradox is now complete and is available here.

• More on the litigation over the executive order curtailing the Presidential Records Act: Jonathan Shaub scores the government lawyers who defended the executive order (Lawfare).  The American Historical Association explains a recent hearing in the dispute.  

• Michael C. Blumm, Lewis and Clark Law School, has posted the preface, table of contents, and first chapter of the second edition of his West Nutshell, A Brief American Legal History, which surveys "American legal history from the Colonial Era to the Trump administration, including an extensive chapter on the first six months of the second Trump administration." 

• John O. McGinnis reviews The Making and Breaking of the American Constitution: A Thousand-Year History by Mark Peterson (Law & Liberty). 

• ICYMI:  Florida’s new history course whitewashes the founders on slavery (Salon)

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

Skorup on the Supreme Court's Korematsu Era

Brent Skorup, Cato Institute, has posted The Korematsu Era: The Restructuring of Government Power, 1942–1948:

This paper argues that the years 1942 to 1948 constitute a distinct constitutional episode—the “Korematsu Era”—in which the Supreme Court consolidated a new model of executive-centered governance under conditions of declared emergency. Rather than treating Korematsu as an isolated judicial failure, the paper situates it alongside Quirin, Wickard, NBC, Yakus, Oklahoma Press, and Shapiro as part of a broader structural shift. Across military, economic, communications, and administrative domains, the Court sustained expansive delegations of legislative authority and nationalized economic regulation, while sharply narrowing the Fourth and Fifth Amendments to accommodate administrative compulsion. This period of doctrinal consistency—the centralization of power in the executive—coincided with the years in which seven of the nine Justices were Roosevelt appointees, marking a rare moment of institutional alignment between the political branches and the judiciary. Although elements of this transformation trace to the New Deal, the paper argues that even in decisions not typically regarded as wartime cases—Wickard, NBC, and Shapiro—the wartime context helps explain the Court’s pronounced deference during this period. The administrative state, expansive commerce power, and deferential delegation jurisprudence that define modern constitutional law bear the imprint of this wartime consolidation.

--Dan Ernst

The National Bankruptcy Archives

[We've recently had our attention drawn to this important collection at the Biddle Law Library of the Penn Carey Law School.  DRE]

In October 2000, the Biddle Law Library and the American College of Bankruptcy collaborated to create a special collection entitled the National Bankruptcy Archives (NBA), a national repository of materials relating to the history of debtor-creditor relations, bankruptcy and the reorganization of debt. The NBA collects records from the American College of Bankruptcy as well as from other organizations whose activities have been relevant to the history of bankruptcy and insolvency legislation, regulation, and administrative and judicial determination. The NBA also houses papers of individuals who have influenced the field, and other collections documenting the history of bankruptcy law.

Forbath and Fishkin on the New Deal, Oligarchy and the Supreme Court

William E. Forbath, University of Texas at Austin School of Law, and Joseph Fishkin, UCLA Law School, have posted Anti-Oligarchy, Anti-Authoritarianism, The Constitution, and the Court:

In the 1930s, like today, our nation faced a crisis of oligarchy: too much wealth and political power concentrated in too few hands. Like today's liberals and progressives, the New Dealers aimed to enact social and economic reforms that would ensure a much broader distribution of wealth and power, but they faced a hostile, right-wing Supreme Court that would certainly thwart such reforms. Thus, like liberals and progressives today, New Dealers proposed various measures aimed at curbing judicial review to safeguard the legislative reforms they saw as essential to making democracy work. Yet at the same time they hoped to preserve the Court's power-which they hoped the Court would exercise-to defend civil liberties, protect vulnerable minorities against state violence, and safeguard the rule of law in a moment of rising authoritarianism. 

--Dan Ernst 

Queering Private Law Conference

[We have the following announcement.  DRE] 

Registration now open for the Bentham House: Queering Private Law Conference [sponsored by the] UCL Faculty of Laws, September 3-4, 2026.  The conference will cover a wide range of private law topics, including contracts, torts, property, IP, commercial, trust, children, families, conflict of laws, and legal pedagogy.  Keynote Speakers: Darren Rosenblum (McGill), Sonia Katyal (UC Berkeley), and Nicholas Allen KC (Deputy High Court Judge; 29 Bedford Row).  Please register [here].  The conference sessions are designed to support professional learning and development. UK-based legal professionals may be able to record attendance at eligible sessions toward their CPD or continuing competence requirements, subject to the rules of their relevant regulator. Participants are responsible for determining eligibility and maintaining their own records.

Private law presents itself as neutral and technical, a body of rules that simply reflects how the world is. But its foundational concepts carry assumptions about whose relationships, identities, and lives count as normal. This conference brings queer theory into conversation with private law, asking what is revealed when we take those assumptions seriously and refuse to treat them as inevitable. It gathers scholars committed to exposing the heteronormative and cisnormative underpinnings of private law doctrine, and to asking how queer theory can transform private law and our assumptions about it.

The Fine Script: Legal Marginalia, 1100-1700

We have word of The Fine Script, a conference exploring comparative approaches to legal marginalia circulating in Europe and the Middle East between 1100 and 1700, will be held on Monday, August 31 and Tuesday, September 1, from 10 AM-3:30 PM.  The conference will" connect the present with the Middle Ages and the Early Modern Period—placing Ireland within Europe, and Europe in its relationship with the Middle East and the Byzantine Sphere."  It can be attended in-person in Paris at the Centre Culturel Irlandais or online (the zoom link will be circulated via email prior to the event).

--Dan Ernst.  Schedule after the jump. 

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