ICS Seminar: Presidential Power

[We have the following announcement from our friends at the ICS.  DRE]

The White House (LC)

The Institute for Constitutional Studies at The George Washington University Law School is pleased to announce another seminar for advanced graduate students and junior faculty:

Constitutional Controversies: Presidential Power

Disputes about the breadth and limits of the president’s constitutional powers have been recurrent throughout our nation’s history. This discussion-based seminar will explore a series of “constitutional moments” that relate to presidential authority. After examining debates over the structure of the executive branch eventually adopted in Article II, we will consider a variety of constitutional disputes about presidential power, focusing particularly on events during the Washington, Jefferson, Jackson, Lincoln, FDR, Truman, Nixon, and Trump administrations.

Instructors.  Maeva Marcus, a past president of the American Society for Legal History, is Research Professor of Law and Director of the Institute for Constitutional Studies at the George Washington University Law School. She serves as the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Author of Truman and the Steel Seizure Case: The Limits of Presidential Power, she also edited the eight-volume series The Documentary History of the Supreme Court of the United States, 1789-1800 and Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789.

Steven Steinbach, GWU Professorial Lecturer in Law, taught United States History and American Government courses and served as History Department Chair at Sidwell Friends School in Washington, DC. Previously he was a partner in the Washington, DC, law firm of Williams & Connolly LLP, where he specialized in criminal and civil litigation.

Meeting Time. Monday evenings, 6-8 pm

Dates.  August 31; September 14, and 28; and October 5, 12, 19, and 26, 2026.

Location. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. The classroom location will be communicated at a later date.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until August 23, 2026. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

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

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution.  Begun with the assistance of a challenge grant from the National Endowment for the Humanities, the Institute is located at the George Washington University Law School.  To fulfill its mission, the Institute’s seminars explore the important role the Constitution has played in shaping American society.

Sunday Roundup

• The legal historian David Langum has died.  He was a professor or research professor at the Cumberland School of Law of Samford University as a professor of law from 1985 until his death.  His publications include the Hurst Prize-winning Law and Community on the Mexican-California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846 (University of Oklahoma Press, 1987) and Crossing Over the Line: Legislating Morality and the Mann Act (University of Chicago Press, 1994).  More.

• The Hoover Institution's Alliance for Civics in the Academy hosts "Historical Thinking and Democratic Citizenship" with Mary Clark, Suzanne Marchand, Jeffrey Collins, and Jonathan Gienapp on Wednesday, April 22, 2026, from 9:00–10:00 a.m. PT.

• The recent turn in the originalism wars has moved Dan Farbman, BC Law, to "an Emersonian polemic."

• On Sunday, April 19, 2026, from 2-4 pm, Michael Ross, University of Maryland, will lecture on “The Constitution They Argued Over: Power, Democracy, and Compromise in 1787” at the historic Rice’s Hotel/Hughlett’s Tavern, 73 Monument Place, Heathsville, Maryland (RealRadio).  

• Stephen Lubet, Northwestern Law, on John Brown's Trial and Birthright Citizenship (Slate).   

• A review of James Q. Whitman's From Masters of Slaves to Lords of Lands: The Transformation of Ownership in the Western World by Jane Webster, Newcastle University (BHR).

--Dan Ernst

Weekend Roundup

• An alarming opinion of the Office of Legal Counsel of the US Department of Justice advising White House Counsel that the Presidential Records Act is unconstitutional.  WaPo's story is here.

• 
  Having written about two thirds of a history of a law school, word of a new contribution to the genre always intrigues me.  Here's a notice of Legal Education at the University of Virginia: Tradition and Transformation (University of Virginia Press).  DRE

• In the American Prospect: Felicia Kornbluh (University of Vermont) writes about the Supreme Court's recent decision in Chiles v. Salazar (involving a Colorado ban on "conversion therapy"). The piece also quotes legal historian Marie-Amélie George (Wake Forest University Law School). 

• Via Brian Rosenwald: "Made by History" has a new home. Going forward, it will partner with the Philadelphia Inquirer. New pitch email: madebyhistory@inquirer.com.  

• On Friday, April 10, Alejandro de la Fuente, Harvard University, will deliver the sixteenth annual Presidential Lecture at Tufts University on Slavery, Freedom, Race, and the Law in the Americas.  The lecture will be based on his and Ariela J. Gross’s book, Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (THR).

• Over at Divided Argument, William Baude hosts a roundtable with Christian Burset, Jonathan Green, and Ryan Snyder on their recent articles, which Baude describes as some of the best contributions to a "recent round of scholarship on history and tradition in legal interpretation."    

• And over at Modern American History, Sarah Seo hosts a roundtable of historians to discuss  "the benefits of and challenges to translating historical scholarship for a legal audience."  With Laura Edwards, Jennifer Mittelstadt, Samuel Erman, Nathan Perl-Rosenthal, Maggie Blackhawk and Ned Blackhawk.

• G. Edward White discovers who pranked the U.S. Supreme Court "by filing a phony cert petition challenging an absurd DC noise ordinance" (Oyez).

• That symposium over at Balkinization on Stephen Skowronek's Adaptability Paradox continues, with, among other contributions, Jeremy Kessler's Material Foundations of American Constitutional Development. 

• The latest issue of the Journal of American History includes several articles of interest to legal historians, including One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr, by Alma Steingart, which shows how "litigants, Supreme Court justices, judges, and mathematical experts struggled to align the theoretical concept of political representation with mathematical notions of equality" in the malapportionment cases of the 1960s. 

• The NYT review of Mark Peterson's The Making and Breaking of the American Constitution: A Thousand-Year History (Princeton University Press) and a blog post by the author.

• The April 2026 newsletter of the Historical Society of the District of Columbia Circuit is here. 

• More on Birthright Citizenship.  John Yoo says that it has a long historical precedent (AEI).   Kate Masur  "Fact-Checks President Trump’s Birthright Citizenship Order" (CBS Chicago).  John Mikhail on Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark (Balkinization).  Yet another dispatch from the war between the law professors on the history of the citizenship clause.  (Courthouse News Service).  And has the distance between law professor Bluesky and NYT opinion page ever been shorter? 

• ICYMI: A new book on Sarah Keys Evans, "The Black Veteran Who Desegregated Interstate Buses" (Mother Jones).  Tom Lee on the Declaration of Independence at 250 (Fordham Law). A Century of Colonial Tariffs (LPE Project).  High school students explore Münster’s legal history (Universität Münster).

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

Dardini on the 14th Amendment, Human Rights, and American Samoa

Ross Dardani, Muhlenberg College, has published, open access, The Influence of Fourteenth Amendment Jurisprudence and the Universal Declaration of Human Rights in the U.S. Empire, in Law and History Review:

This article analyzes the influence of Fourteenth Amendment jurisprudence and the United Nation’s Universal Declaration of Human Rights (UDHR) during congressional debates in 1949 that focused on establishing a territorial government for American Samoa. In these hearings, naval leaders argued that Supreme Court decisions that had interpreted the Fourteenth Amendment as demanding colorblindness and others that established property ownership as a fundamental right, along with the creation of the UDHR, meant that Samoans might not be able to protect their land from further white-settler colonialism if Congress passed legislation establishing a civilian government in American Samoa. U.S. military leaders believed that the Court’s decisions in Buchanan versus Warley (1917) and Shelley versus Kraemer (1948), and the UDHR, could prohibit American Samoa from enforcing race-based land ownership restrictions if lawmakers extended citizenship, equal protection, or due process to American Samoa. Members of Congress, however, believed that the Court’s past rulings in the Insular Cases, models set in other unincorporated territories (e.g., the Philippines and Hawaii), and Federal Indian law established legal precedents that meant Samoans would be able to continue restricting land ownership on the basis of race if they became U.S. citizens and were governed by equal protection and due process. Samoan leaders demonstrated the unsettled nature of constitutional law in American politics by emphasizing that any congressional act that extended citizenship, equal protection, or due process to American Samoa would ultimately be reviewed and interpreted by the Court. For these Samoans, even if members of Congress were interpreting past Court precedents correctly, a future majority of justices could adopt a different understanding of what the extension of U.S. citizenship, equal protection, or due process meant for American Samoa by ruling that non-Samoans had fundamental constitutional rights to land ownership in American Samoa. This article thus helps explain how and why Samoan and naval leaders influenced U.S. lawmakers when Congress was considering legislation that would extend citizenship, equal protection, and due process protections to American Samoa in 1949. This legal history demonstrates how different interpretations of the Constitution, the UDHR, and fundamental rights influenced various actors within the context of the U.S. empire, illuminating the ambiguous nature of constitutional law in the U.S. unincorporated territories.

--Dan Ernst 

Lindley on the Law of Certiorari

Tyler B. Lindley, Brigham Young University - J. Reuben Clark Law School, has posted The Law of Certiorari, which is forthcoming in the University of Chicago Law Review:

The Supreme Court’s current certiorari jurisdiction is a powerful tool for judicial agenda control. The conventional wisdom holds that no law controls this discretion and that justices can consider strategic concerns and policy preferences in deciding which cases to hear. The result is a Court with the power to shape its docket and avoid (or seek out) politically fraught or doctrinally inconvenient cases. The Court’s use of this power has attracted criticism from all sides, attacking the Court for taking too few cases, targeting politically favorable cases, or not deciding cases at all but rather making law. But the power is useful for an increasingly originalist court with a narrow view of stare decisis. Unconstrained certiorari allows the Court to sidestep the consequences of those converging beliefs by denying review in cases seeking to overturn longstanding precedents.

But certiorari is not lawless—or at least was not always so. The writ was not originally understood to have authorized personal discretion or judicial gatekeeping. When Congress initially granted the Court discretionary certiorari power, it did so against the backdrop of common-law constraints on judges’ discretion to issue or deny the writ. Indeed, the legislative history explicitly acknowledges these common-law rules, suggesting that Congress was aware of and intended to impose meaningful limits on the Court’s certiorari discretion. For justices committed to the original meaning of statutes, their discretion to deny review to avoid unwanted cases might not be as absolute as they assume. And more broadly, the historical understanding of certiorari offers a template for potential reform, constraining the Supreme Court’s agenda control without completely removing its discretion.

--Dan Ernst 

ASLH "In Memoriam" for William E. Nelson

The American Society for Legal History has posted a memorial for William E. Nelson, whose passing we noted in December. The "In Memoriam," by Hendrik Hartog (Princeton University), begins:

Bill Nelson, who died three months ago, was a pivotal and transformative figure in the growth of the field of American legal history.  His scholarship included several monuments and field defining works.  His mentorship was unmatched. Because of him, the Golieb Seminar at NYU Law School became a necessary way station for two generations of budding legal historians.  And his generosity of spirit was legendary.  He changed many lives, all for the better.

Bill was both an intense and serious historian and an even more intense and serious lawyer.  But he also engaged with both law and history with an incredible sense of fun and joy.  His work was always marked by an amazing work-ethic and what can only be called sitzfleisch.  He read cases and cases and cases.  He believed in reading everything, all the primary documents.  When he covered a subject, he did so in ways that no else one ever did.  Selectivity and sampling were not his ways.   Coverage was.   And the results could be immensely revealing.  He worked hard, and he worked fast.  And he left an extraordinary body of scholarship.

Read on here.

-- Karen Tani

Whittington and Heilpern on "Subject to the Jurisdiction of"

Keith E. Whittington, Yale Law School, and James Heilpern, who is Counsel at Schaerr Jaffe, LLP, where he specializes in complex litigation and corpus linguistics, and also a Research Fellow at the Georgetown Center for the Constitution, has posted "Subject To The Jurisdiction" as Legal Text:

The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to all persons born in the United States and "subject to the jurisdiction thereof." This Article challenges the allegiance-based model by applying an original public meaning framework to the Citizenship Clause. Drawing on mid-nineteenth-century legal and legislative sources, the Article demonstrates that "subject to the jurisdiction" was a conventional legal term of art signifying that an individual was within the governing authority and protection of the sovereign. The Article concludes that the original meaning of the Fourteenth Amendment reinforces a broad, territorial rule of birthright citizenship that is independent of parental allegiance or immigration status. 

--Dan Ernst

Witte and Pin's "Legal Foundations of Religious Freedom"

John Witte, Jr., Emory University, and Andrea Pin, University of Padua, have published The Legal Foundations of Religious Freedom: Human Rights in the United States and Europe (Notre Dame Press):

In The Legal Foundations of Religious Freedom, authors John Witte Jr. and Andrea Pin explore the Christian and secular origins of rights in the Western legal tradition and the complex interplay between human rights and religious freedom norms in modern law, religion, and culture. They analyze historical documents and recent cases from the United States Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union to articulate the historical, theoretical, and legal tension of human rights and religious freedom on both sides of the Atlantic. The authors contrast the serious threats to new religious minorities and traditional religious accommodations with firm new protections of religious freedoms in both Europe and America.

Ultimately calling for robust protection of the fundamental rights and liberties of all people and faiths, Witte and Pin caution that religious freedom and other human rights claims can only do so much to bridge the widening cultural divides over law and religion in modern Western societies. It is our responsibility to embrace the fundamental goods of dignity, fraternity, and justice.

--Dan Ernst 

Birthright Citizenship Roundup

• From the op-ed pages of the New York Times: "Trump Says Birthright Citizenship Was Only for the Children of Slaves. He’s Wrong" -- by Martha S. Jones (Johns Hopkins) and Kate Masur (Northwestern). 

• Over in the Washington Post: "Trump officials cite white supremacists in bid to end birthright citizenship" --with quotes from legal historians Lucy Salyer (University of New Hampshire) and Sam Erman (University of Michigan).  

• Over in The Economist: What the Supreme Court will make of birthright citizenship--with quotes from Anthony Michael Kreis (Georgia State University) and Anna Law (Brooklyn College).

• Over in the Wall Street Journal: Randy E. Barnett believes that Trump Is Right on Birthright Citizenship: The 14th Amendment's authors would exclude illegal and visiting aliens from U.S. “jurisdiction.

• The NYT reports that Trump’s Birthright Citizenship Order at Supreme Court Splits Conservative Scholars.

• And many legal historians make or criticize what Mother Jones calls The Nonsense Case Against Birthright Citizenship. 

• Update: Jamelle Bouie on The Birthright Con (NYT).

This Roundup has been compiled by all the Legal History bloggers. 

Eilbert on 20th-Century Public Administration

Casey Eilbert, Johns Hopkins University, has published Architects of the Administrative State: Public Administration in the Twentieth Century, open access in Modern American History:

This article shows how public administration experts theorized and enacted changes to the American administrative state over the twentieth century. In the prewar period, they advanced a strict politics-administration binary that legitimated an expanding administrative state on the premise that it was a politically neutral vehicle for the execution of the public good. But during the Second World War, mounting scrutiny of the administrative state exposed the fragility of the politics-administration binary and undermined confidence in prewar administrative principles and the statebuilding they had sustained. In response to escalating dissatisfaction with existing administrative forms, public administration experts rejected administrative neutrality and turned to new theories and practices of administration emphasizing political responsiveness, managerial efficiency, and individual discretion and choice. In the late twentieth century, these shifts culminated in reforms that cut and contracted out the administrative state, recasting administration as an arbiter of private interests rather than a neutral instrument for realizing a unified public will.

--Dan Ernst 

CLH News

[Via ESCLH Blog, we have the following announcement.  DRE]

The journal Comparative Legal History is pleased to announce that its website has been updated with the new composition of its Editorial Board.

Comparative Legal History is the scholarly journal of the European Society for Comparative Legal History, publishing innovative research in comparative, transnational, and global legal history. The journal welcomes contributions that examine and compare historical interactions between diverse forms of normativity, including legal, religious, customary, and social norms, as well as the agents, institutions, and jurisdictions through which they have operated.  Engaging with legal traditions from across the globe, the journal welcomes interdisciplinary approaches and publishes research articles, invited contributions, review essays, book reviews, and special issues.

The journal is committed to fast turn-around times for its evaluations and editing, and thanks to our publisher, Taylor & Francis, we will now be publishing contributions online as soon as they are ready for production, thus giving authors the ability to publish and disseminate their research without delay.

We would also like to note that the journal encourages authors to make use of visual material in their articles.

To discuss ideas for articles or special issues, please contact Articles Editors Paolo Astorri (paa@teol.ku.dk) and Emanuel van Dongen (E.G.D.vanDongen@uu.nl). To recommend a book (published in the last two years) for review, please contact Reviews Editors Gianmarco Palmieri (gianmarcopalmieri1@gmail.com) and Geetanjali Srikantan (gasrikantan@gmail.com). For any and all enquiries, please feel free to contact the Editor, David Schorr (dschorr@tau.ac.il).

Weekend Roundup

• 
  "The Selden Society regularly funds a Milsom Studentship for a person undertaking research in English legal history leading to the degree of PhD (or equivalent) at a university in the United Kingdom." 

• A review of Geoffrey Samuel's Principia Iuris: A Historical and Comparative Introduction to the English Law (Edward Elgar Publishing) (Law Society Gazette). 

• A review of James Hart's The U.S. Supreme Court in American Society: Historical Perspectives (Edward Elgar Publishing) (Law Society Gazette).

• Washington University-St. Louis Law invited UCLA's Stuart Banner back to lecture on his history of the US Supreme Court (Student Life).   

• On Tuesday, April 28, from  6:00 - 8:00 PM, the Supreme Court of the State of New York, Appellate Division, First Department with support from the Historical Society of the New York Courts, will sponsor a talk on The Constitution’s Framers: What They Teach us about Making America Better, by John D. Feerick, Norris Professor of Law, Fordham Law School Dean Emeritus, and a panel discussion with William M. Treanor, Dean Emeritus, Georgetown University Law Center and Fordham Law School and John Rogan, Senior Fellow, Fordham Law School.  Register here. 

• Jill Hasday, Minnesota Law, discusses We the Men on the Infinite Women podcast. 

• A fully funded four-year Collaborative Doctoral Studentship at the University of Leeds on The Making of the National Archive: The First Century of the Public Record Office.  

• Over at Balkinization, a symposium is underway of Stephen Skowronek's The Adaptability Paradox.   Several legal historians are slate to contribute.

• The National Constitution Center has posted the recording of its Town Hall on Women and the American Revolution with Mary Beth Norton, the Mary Donlon Alger Professor Emerita of American History at Cornell University, and Rosemarie Zagarri, distinguished university professor of history at George Mason University. 

• ICYMI: Back to the archives to defend reproductive rights (Ms. Magazine).  A dispatch from the new "civic education" (University of Colorado-Boulder).  New York's woman lawyers (NYSBA).  Michael R. Dreeben revisits Robert Jackson’s "The Federal Prosecutor" (HLR). 

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

Lee on Birthright Citizenship and Residence

Thomas H. Lee, Fordham University School of Law, has posted The Citizenship Clause's Residence Requirement:

The debate about President Trump’s January 20, 2025 Executive Order denying automatic American citizenship to children born in the United States to unlawfully or temporarily present foreign parents is divided into two polar-opposite camps asserting that it’s wholly constitutional or wholly unconstitutional.  In a new academic paper, I make the case that the 1868 original meaning of the Fourteenth Amendment's Citizenship Clause supports a middle position: a child born in the United States to alien parents is automatically a citizen if the parents reside in the United States even if they entered unlawfully, but the child is not a citizen if the alien parents are in the United States as temporary sojourners, like tourists. This original, revisionist interpretation of the Citizenship Clause is faithful to the Clause’s text and original meaning and also consistent with the Constitution’s other citizenship-related provisions, relevant Supreme Court decisions, and the larger, evolving context of domestic and international citizenship controversies the Clause was ratified to address, while recovering an original meaning that sensibly speaks to modern realities.

--Dan Ernst

Lash Responds to Ramsey on Birthright Citizenship and Allegiance

Kurt Lash, University of Richmond School of Law, has posted The Allegiance Reading of the Citizenship Clause and Its Critics: A Response:

John A. Bingham (LC)

The Fourteenth Amendment establishes two requirements for natural born citizenship: First, one must be born in the United States. Second, one also must be born “subject to the jurisdiction” of the United States. In a prior article, I explained how the framers and ratifiers understood the latter text as requiring that one be born subject to the sovereign people of the United States in the sense of owing a primary allegiance to the United States. In a recent essay, Professor Michael Ramsey critiques the allegiance theory and argues that the text should be read to include any person born in the United States subject to its lawful or “sovereign authority.” 

Professor Ramsey’s reading is thoughtful but cannot be correct. Ramsey substitutes the phrase “under sovereign authority” for the actual text “subject to the jurisdiction” of the United States, and he invests it with a meaning based on common law instead of the actual understanding of the framers and ratifiers. The result is an interpretation held by congressional Democrats but expressly rejected by the Republican framers. Nor can Ramsey’s “subject to sovereign authority” theory account for the exclusion of the one category everyone involved insisted be excluded: children born to Native American parents. 

Most of all, Ramsey cannot explain away the abundant historical evidence supporting an 1866 allegiance-based understanding of natural born citizenship. In one of the most widely published speeches of the Thirty-Ninth Congress, and one that Ramsey does not mention, John Bingham explained that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.” Both the 1866 Civil Rights Act and the Fourteenth Amendment communicated this same Republican theory of natural born citizenship.

--Dan Ernst 

AJLH 64:4

We're a bit late in noticing it, but the American Journal of Legal History 64:4 has been published: 

Mr Locke’s enclosure: the uncommon law of property in the Second Treatise
Hannah Carrese

John Locke, famously, told a property origin story. This article tells a property theory origin story, asking how Locke’s property theory, which omits common rights, emerged from a common law of property that centred them—and showing how this omission influenced the colonial American law that Locke drafted. Locke was silent on or rejected the common law of property, which recognized common rights and defences against privatization of commons through enclosure. Instead, Locke adopted law reform arguments lauding enclosure because it improved waste land. Locke’s property theory therefore attempts to improve the common law of property by orienting it around private rather than common property. He asks a question about the origin of property absent from common law: how do we create private rights to common land? He takes ‘waste’ to have purely negative connotations, avoiding the neutral meanings of that word at common law. And he stipulates that enclosure of English commons requires only tacit consent of commoners, excluding common law defences against enclosure. Locke’s is an equal opportunity enclosure. His spoilage principle and plan to reform Virginia’s land laws sought to benefit the poor by preventing vast enclosures and rural depopulation. However, he theorized a clean chain of title, absent in common law, which could prevent messy disputes over wealthy estates. This article shows the common law background from which Locke departed, thus deepening understanding of both our private property regime, often justified by Locke’s property theory, and a sometimes-overlooked alternative to it, the common law of property.

The laws of ‘an old and settled society’? The law of contract in New South Wales 1815–1850
Warren Swain

The history of contract law in New South Wales in the decades after the closure of the Court of Civil Jurisdiction in 1814 has not received much attention from legal historians. This is an important omission. At the heart of this story is a simple but critical inquiry: the way in which the law of contract in the colony mirrored or diverged from the law of contract that applied back in London. This was rarely a matter that judges addressed explicitly. Piecing together the relationship is an exercise in reconstruction. This can only be done by examining the body of case law. The creation of the Australasian Colonial Legal History Library, combined with readily searchable newspaper reports, has made this easier. The evidence in the mid-nineteenth century is still sometimes sketchy. Context is relevant. The colony moved from a quasi-military penal colony to a significant hub of commercial activity. The period also saw a shift in the legal system as the old informal systems evolved into a much more legalistic one. For the most part, New South Wales contract law was aligned with that in England. Some issues, like the desertion of sailors demanded local solutions. There are other examples in which well-established English contract doctrine did not necessarily fit very well with the conditions of the colony.

Who is a central bank for? The founding and legal design of the Bank of Canada
Dan Rohde

The Bank of Canada is an independent Crown corporation that sees its primary responsibility to be promoting Canada’s economic welfare by maintaining low and stable inflation. When it was first created in 1934, however, the Bank was a radically different institution—a privately owned corporation primarily meant to anchor Canada’s economy globally and manage foreign exchange. Not only was the Bank not tasked with managing inflation, but key policymakers behind its founding thought doing so would be a severe mistake. This article offers the first legal history of the Bank’s founding. It maps the enormous public debate that accompanied the creation of the Bank and the various, often contradictory visions expressed for it. The article labels these five visions: a Bankers’ Bank, a Government Bank, an Imperial Bank, an Economists’ Bank, and a Bank of the People. The article then looks at the original legal design of the Bank and argues that it largely fit the Imperial Bank model. Charting this history helps us better understand this vital organ of Canadian government, and has the potential to upset many of our accepted, contemporary notions of central banking.

--Dan Ernst 

Global Dissertation Prize

[We have the following announcement from the ASLH.  DRE.]

The American Society for Legal History (ASLH) is delighted to announce a new dissertation prize: the Global Dissertation Prize for the best dissertation in global legal history. The [prize] recognizes the best dissertation from the previous calendar year on topics centered outside the United States. Eligible dissertations must be written in English and submitted for a PhD, JSD, or equivalent doctoral degree, excluding the JD, awarded in the previous calendar year (for example, a dissertation for a PhD awarded in 2025 would be eligible in 2026). Dissertations should not be predominantly focused on the US and may examine contexts, processes, or institutions that are local, regional, imperial, comparative, global, or otherwise. 

Submissions should be made by the author including only (1) the dissertation as submitted to the university for the degree, and (2) a curriculum vitae. 

To be considered for the year’s prize, the author should e-mail a PDF electronic copy of the dissertation and author’s curriculum vitae to the prize committee chair (globaldissertationprize@aslh.net) with the subject heading: GLOBAL DISSERTATION PRIZE SUBMISSION. Please title the PDF as “author last name” and “short title” .pdf (for example, Adewoye Lawyers Southern Nigeria.pdf).  

Deadline for Submissions: June 1, 2026.  Award Amount: $500.

LHR 44:1

Law and History Review 44: 1 (February 2026) has been published, open access, online.  It is a joint special issue with The William and Mary Quarterly, entitled "New Legal Histories of the American Revolution."  LHR editor Gautham Rao writes on social media that the issue "offer[s] a new methodological challenge to well-trod historiographical terrain."

Bringing the Law and the Local Back In to the Revolution
Sarah Barringer Gordon

The Tension between Religious Liberty and Religious Establishment in Revolutionary New England
Mark Valeri

“They Are Their Citizens and Must Submit to Their Government”: Citizenship and the Creation of the Federal Government, 1776–1787
Jessica Choppin Roney

Popular Government and the Limits of the Law at the Outset of the American Revolution
Donald F. Johnson

Legislation, Regulation, and Administration in the American Revolution
William J. Novak

Review Essay
Something Else: History, Legal Imagination, and the American Revolution
Matthew Crow

Newman's "Law and Justice in Song"

Daniel Newman, Cardiff University, has published Law and Justice in Song Murder Ballads and Popular Music (Routledge):

This book examines the murder ballad form, songs about death and killing, from a legal history perspective. It is held that taking on the long history of the murder ballad is a way that we can understand how death and killing in song has a function in dealing with the world around us. The book integrates law and humanities scholarship with diverse musical case studies to construct a typology of murder ballads and thus conceptualise the central messages of how murder ballads have treated death and killing. Drawing on a cultural form in which assessment and consideration of death and killing are so vigorously and richly enacted gives lawyers a guide to how those who do not see these matters through a primarily legal lens might understand this part of their world. The study will be of interest to academics and researchers working in the areas of Criminal Law, Legal History, Socio-Legal Studies, Criminology, and Musicology.

Professor Newman discuisses his book on JLS Blog. 

--Dan Ernst

Ackerman on the Democratic Basis of Humphrey's Executor

Bruce Ackerman, Yale Law School, has posted Barrett’s Red Flag: Why the Court Should Order Re-argument in Trump v. Slaughter:

William E. Humphrey (LC)

While there are a host of essays dealing with the Slaughter and Cox cases presently under consideration by the Supreme Court, this is the first one exploring a fundamental point about Humphrey’s Executor that was advanced by Justice Amy Coney Barrett in her remarkable interventions during December’s oral argument in Slaughter. She emphasized that, in gaining unanimous support for Humphrey’s Executor in 1935, Justice Sutherland was building on the successful construction of a series of independent agencies by both Democratic and Republican Administrations over the preceding half-century -- beginning with Grover Cleveland’s breakthrough success in gaining Congressional approval for the nation’s first independent agency: the Interstate Commerce Commission in 1887. As Justice Barrett pointed out, Cleveland’s presidential successors built on his landmark precedent to gain repeated Congressional support for a wide range for agencies that continue to play a crucial role in today’s America – including the Pure Food and Drug Administration (Theodore Roosevelt), the Federal Trade Commission (Woodrow Wilson), and the Federal Communications Commission (Calvin Coolidge). Since Democratic and Republican Administrations profoundly disagreed on a host of other fundamental issues, their repeated and bipartisan affirmation of expert agencies as a “fourth branch of government” was even more remarkable.

As a consequence, Justice Barrett suggested that this bipartisan consensus provided a distinctively democratic foundation for Justice Sutherland’s unanimous opinion in Humphrey’s Executor.      After all, it was announced in March of 1935 when Sutherland was refusing leading his six Lochnerians in an escalating constitutional assault on the activist regulatory state – despite the eloquent dissents of Brandeis, Cardozo and Stone. Nevertheless, these bitter disagreements did not lead the Lochnerians to challenge the legitimacy of wide-ranging regulation of the market-economy by independent agencies – since American voters had repeatedly vindicated a bipartisan effort to create independent agencies with the requisite expertise required to confront the scientific and industrial revolutions in a responsibly democratic fashion.

Justice Barrett made these points during the give-and-take of oral argument in the Slaughter case. Unfortunately, however, the lawyers for Rebecca Slaughter and Donald Trump were not prepared to respond with sophisticated analysis of the constitutional significance of the half-century of history that she was emphasizing.

It happens, however, that I have spent a great deal of time exploring these issues in preparation for my multivolume series, We the People – and believe that it powerfully supports Justice Barrett’s interpretation of its constitutional significance. To be sure, I expect this essay to provoke serious critiques, as well as significant elaborations, of the themes I present. Indeed, this is precisely why I believe that the Court should defer its final decision in Slaughter and Cox so as to give it the opportunity to make a genuinely thoughtful decision on an issue which will profoundly shape the course of American government for generations.

--Dan Ernst

Camacho and Daniels's "Lessons for a Warming Planet"

Alejandro E. Camacho and Brigham Daniels have published Lessons for a Warming Planet:
A Vital History of US Environmental Law (NYU Press): 

The relationship between humans and the environment in the United States reflects tales of countless contrasting and overlapping trends, movements, and tensions. Law has cultivated both the planet’s biggest environmental threats and its most creative innovations for protecting human and ecological health. U.S. laws have driven both exploitation and temperance; destruction and restoration; and resistance and adaptation.

Lessons for a Warming Planet showcases the fundamental role the law has served in reckoning with environmental harm in the United States. Authors Alejandro E. Camacho and Brigham Daniels explore the full arc of U.S. environmental legal history across five major periods in the United States, reaching as far back as North America’s colonization and ending with the present. Through this rich history, the book considers the ways leadership, social movements, political coalitions, information, and technologies have both been catalyzed by the law and have advanced environmental change.

Camacho and Daniels provide a fascinating and insightful history of environmental law. They ask readers to consider: What lessons can we draw from environmental legal history for contemporary challenges like climate change, AI, and emerging biotechnologies? In looking to the past, Lessons for a Warming Planet illustrates how prior generations each used legal imagination to navigate seemingly insurmountable environmental threats.

--Dan Ernst 

Wells on the Origins of the Limited Liability Partnership

Harwell Wells, Temple University James E. Beasley School of Law, has posted The Unexpected Origins of the US Limited Liability Partnershi:

This paper tells the origins of the Limited Liability Partnership (LLP) in the United States. Its origins are seemingly well-known; the LLP was created as a response to staggering malpractice claims arising in the 1980s that pushed partners in large American law firms, almost all organised as general partnerships, to seek a shield from personal liability for their firms' or fellow partners' debts. But that account is incomplete. The LLP's origins lie at the end of a much longer story, that of American lawyers' stiff resistance to corporations practicing law. Since the beginning of the twentieth century the legal profession had labored to protect lawyers' self-image and fend off competition by (among other things) forbidding corporations from offering legal services; the LLP appeared when lawyers decided that, despite this longstanding opposition, they needed one of the advantages of incorporation: limited liability. The LLP was thus the product not only of economic demands, but of the peculiarities of the American legal profession and its conflicted relationship with the corporate form and the modern corporation. 

--Dan Ernst 

Weekend Roundup

• The Asian Legal History Association has hosted its official launch in Hong Kong (The Standard).  The speech of the Secretary for Justice, Paul Lam, at the launch is here. Update: Donal Coffey was there, too.

• Ian Mansfield's review of the exhibition, Londoners on Trial: Crime, Courts and the Public 1244-1924, at the London Archives until February 25, 2027.

• From the Conversation: "The deaf blacksmith who married in 1576 – and the history of sign as a legal language."

• Over at JOTWELL: Blake Emerson (UCLA Law) has posted an admiring review of Nathaniel Donahue's "Officers at Common Law," which is forthcoming in the Yale Law Journal.   

• Ashley Everson on Pauli Murray, the Brown Decision, and the Struggle for Equal Rights (Black Perspectives).

• A notice of Akhil Reed Amar's Giannella lecture at Villanova on Born Equal: Remaking America’s Constitution, 1840–1920 (Villanovan). 

• Five Takeaways from conference on Richard Primus’s The Oldest Constitutional Question  (Michigan Law). 

• Now online: the website of the 14th Amendment Center for Law and Democracy at Howard Law School, led by Sherrilyn Ifill.

• ICYMI: Birthright Citizenship Edition.  Dahlia Lithwick spoke to Anna O. Law about Law's book, Migration and the Origins of American Citizenship (Amicus). Ilya Somin on Slavery and Birthright Citizenship (Lawfare).  Smita Ghosh on Lynch v. Clarke (1844), the birthright citizenship case you never heard of (Slate). Akhil and Vikram Amar and Jason Mazzone on why the text, history, and structure of a landmark 1952 statute doom Trump’s executive order (SCOTUSblog). 

• ICYMI: Orin S. Kerr on How AI Tools Can Help With Legal History Research (Volokh Conspiracy). "The Trump administration’s campaign to remove National Park Service exhibits that 'inappropriately disparage' historical figures" has bogged down (Politico).

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

Engstrom et al. on Managerial Courts

David Freeman Engstrom, David Marcus and Elliot Setzer have published Managerial Courts in the Yale Law Journal:

In recent decades, American courts have undergone a quiet but far-reaching revolution in their function and role. Particularly in state courts facing a crush of cases in high-volume dockets for debt, eviction, and family-law matters, case-by-case judging has gradually given way to court-devised systems that govern adjudication through centralized, routinized, and often digital and data-driven practices. Cases are triaged into differentiated procedural pathways; docket calendars are engineered to shape litigant behavior; decisional aids, digital dashboards, and order templates channel the discretion exercised by judges and staff; teams of quasi-judicial officers, staff attorneys, case-management professionals, and clerks absorb tasks once thought quintessentially judicial in order to ration scarce “judicial attention”; and internal and, increasingly, digitized and even AI-based tools perform quality-control tasks once left exclusively to appellate review. The upshot is that courts pervasively mix adjudication and bureaucracy, with profound but largely unexamined implications for fair and accurate adjudication, access to justice, due process, and the production of law.

This Feature surveys the managerial turn transforming American courts, tracing its roots, forms, and normative implications. An opening historical narrative situates the rise of court managerialism within a century-long arc from the New Deal to the digital age, highlighting its shifting causes and its consequences for American justice. Turning to the present, we offer a novel taxonomy of current managerial techniques that identifies the operational components of the managerial turn and synthesizes their many commonalities and interconnections. Finally, our normative and doctrinal analysis develops principles for reconciling court managerialism with classical conceptions of American courts and judges as passive, neutral adjudicators of whatever the adversarial process serves up. Can courts adopt bureaucratic tools without losing their distinctive institutional identity? Given twenty-first-century litigation realities, including the bracing fact that the majority of cases in the American civil-justice system now pit represented parties against unrepresented ones, managerial approaches will often outperform an unmediated adversary process on metrics of accuracy and efficiency. A constitutional reckoning awaits: while some parts of the new managerialism may run afoul of due process, others may be constitutionally required.

--Dan Ernst 

Schonthal's "Courts, Constitutions and Karma"

Benjamin Schonthal, University of Otago, has published Courts, Constitutions and Karma
Buddhism, Law and the Practices of Legal Pluralism in Sri Lanka (Cambridge University Press).  It appears in Cambridge Studies in Law and Society, a series edited by Mark Fathi Massoud, University of California, Santa Cruz, and Jens Meierhenrich, London School of Economics and Political Science:

Although rarely acknowledged, Buddhist monastics are among the most active lawmakers and jurists in Asia, operating sophisticated networks of courts and constitutions while also navigating—and shaping—secular legal systems. This book provides the first in-depth study of Buddhist monastic law and its entanglements with state law in Sri Lanka from 1800 to the present. Rather than a top-down account of colliding legal orders, Schonthal draws on nearly a decade of archival, ethnographic and empirical research to document the ways that Buddhist monks, colonial officials and contemporary lawmakers reconcile the laws of the Buddha and the laws of the land using practices of legal pluralism. Comparative in outlook and accessible in style, this book not only offers a portrait of Buddhist monastic law in action, it also yields new insights into how societies manage multi-legality and why legal pluralism leads to conflict in some settings and to compromise in others.

--Dan Ernst 

Law's "Migration and the Origins of American Citizenship"

The official date is still about a week hence, but because the book is already getting noticed in social media, we’ll note now the imminent publication of Anna O. Law’s Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants (Oxford University Press):

Since the late nineteenth century, the US federal government has enjoyed exclusive authority to decide whether someone has the ability to enter and stay in US territory. But freedom of movement was not guaranteed in the British colonies or early US. By contrast, voluntary migrants were met with strict laws and policies created by colonies and states, which denied free mobility and settlement in their territories to unwanted populations.

Migration and the Origins of American Citizenship presents a story of constitutional development that traces the confluence of the logics of slavery and settler colonialism in early legal rulings and public policy about migration and citizenship. The book examines the division of labor between the national and state governments that endured for over a century, reasons why that arrangement changed in the late nineteenth century, and what the transformation meant for people subject to those regimes of control. Drawing into one study the migration policy histories of groups of people that are usually studied separately, and combining the methodologies of political science, history, and law, Anna O. Law reveals the unmistakable effects of slavery and Native American dispossession in modern US immigration policy.

--Dan Ernst 

The Witte Backlist

John Witte, Jr.,  Emory University School of Law, an eminent historian of law and religion, has posted a number of his papers, most (but not all) of which are brief:  Church, State, and Marriage: Three Reformation Models; The Tradition of Traditional Marriage; Religious Liberty (Foundations); the preface to To Have and to Hold: Marrying and its Documentation in Western Christendom, 400-1600, edited by Philip L. Reynolds and John Witte, Jr. (2007); Protestant Law; Christianity and Law in the Enlightenment; Josef Bohatec: The First Historian of the Calvinist Reformation of Rights; the introduction to Christianity and Democracy in Global Context, edited by John Witte, Jr. (1993); and Johannes Althusius and the Universal Rule of Natural Laws and Rights.

--Dan Ernst 

Mark on Emergencies and Civil Disobelience in Israel, 1948-1954

Maya Mark has published Civil Disobedience in Defense of Democracy: Menachem Begin's Struggle Against Emergency Laws in Israel, 1948–1954 in Law and History Review:

This study uncovers a previously overlooked chapter in the historiography of civil disobedience: Menachem Begin’s resistance to Israeli emergency legislation between 1948 and 1954, which he argued undermined foundational democratic principles. It presents the first scholarly analysis of Begin’s resistance, contending that it constitutes a clear instance of civil disobedience, embodying its core tenets. At the heart of this historical case study lies a paradigmatic question: how can laws that erode foundational—yet abstract—democratic principles, such as the separation of powers, be effectively resisted, and can such resistance be accommodated within traditional frameworks of civil disobedience? Begin’s struggle brings these questions into sharp relief, illuminating longstanding critiques of the framework’s overly restrictive boundaries and underscoring the tension between theoretical frameworks and political reality. More broadly, the article engages central debates at the intersection of law, politics, and democratic thought. By examining the democratic convictions of a prominent right-wing leader, it contributes to historical scholarship on the role of conservative and right-wing movements in shaping democratic ideologies, while also providing a historical reference point for subsequent ideological transformations and radicalization processes within these movements. Finally, by illuminating the complexities inherent in opposing laws that erode core-yet abstract-democratic principles, this study resonates with contemporary debates on democratic backsliding, offering a historical lens through which civil disobedience has served as a principled response to such challenges.

--Dan Ernst 

Birnhack on Patents in Mandate Palestine

Michael Birnhack, Tel Aviv University Buchmann Faculty of Law, has posted Colonial Patents: Industrial Property Law and Nationality in Mandate Palestine, which is forthcoming in the Journal of Legal History:

This Article offers the first historical analysis of patent law in British Mandate Palestine (1917-1948), examining 4,395 patent applications through a reconstructed registry and archival sources. It develops Colonial Patents as a framework for analysing legal transplantation in colonial contexts. 

The analysis reveals Britain's hybrid imperial patent policy: rejecting empire-wide unification while creating preferential procedures for British patents. Palestine's 1924 Patent Ordinance emerged from London-Jerusalem negotiations, including London's rejected proposal to abolish local patents. The registry shows profound participation asymmetries: while foreign and local inventors each filed approximately half of applications, Jewish inventors comprised nearly all local applicants, with scant Arab Palestinians filings. Archival sources confirm British engagement with Jewish patent agents but no Arab involvement. This disparity reflects patent law's ideological foundations in Enlightenment progress and industrial capitalism, which resonated with European-educated Jewish immigrants but remained peripheral to Arab Palestinian society, demonstrating how nominally neutral colonial institutions operated differentially. 

--Dan Ernst 

Weekend Roundup

• 
  
  A head's up to those thinking about submitting proposals for the annual meeting of the American Society for Legal History in Banff, November 12-14: the deadline is March 24.   

• This year's Bancroft Prizes have gone to two works of legal history: Emilie Connolly’s Vested Interests: Trusteeship and Native Dispossession in the United States and Beth Lew-Williams’s John Doe Chinaman: A Forgotten History of Chinese Life Under American Racial Law (NYT).

• Legal history bulks large among the finalists for the book division of the American Bar Association’s Silver Gavel Awards for Media and the Arts: The Zorg: A Tale of Greed and Murder that Inspired the Abolition of Slavery, by Siddharth Kara; The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, by John Fabian Witt; We The People: A History of the U.S. Constitution, by Jill Lepore; You Can't Kill a Man Because of the Books He Reads: Angelo Herndon's Fight for Free Speech, by Brad Snyder; American Scare: Florida's Cold War on Black and Queer Lives, by Robert Fieseler; and The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North, by Michelle Adams.  

• The Irish Legal History Society has announced its 2026 essay prize.  "Submissions are invited by 31 May on any topic within Irish legal history, broadly conceived, from both undergraduates and postgraduates."

• 
  The latest two volumes in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, The Taft Court: Making Law for a Divided Nation, 1921–1930, by Robert C. Post, Yale Law School, and The Hughes Court: From Progressivism to Pluralism, 1930 to 1941, by Mark V. Tushnet, Harvard Law School, are now available as paperbacks from Cambridge University Press.

• The U.S. Department of Justice has announced that a museum devoted to its past will open in July 2026. 

• Anna Snyder on the "odd omission" of lawyers in commemorations of the 250th anniversary of independence (AHA Perspectives). 

• A notice of Maria Fletcher, Charlie Peevers, and Seonaid Stevenson-McCabe's chapter on "Madge Easton Anderson, the first woman in Scotland and the UK to become a professional lawyer," in Celebrating Women in Legal History: Making and Shaping a Discipline (Scottish Legal News). 

• "The 1957 executive order signed by President Dwight Eisenhower to enforce the desegregation of Little Rock Central High School is one of the documents on display at the Clinton Presidential Center at a new exhibit chronicling the history of the 27 amendments to the Constitution" (Arkansas Advocate).    

• Michele Goodwin’s Presidential Address to the Law & Society Association prompted June Carbone to reflect on teaching Johnson v. McIntosh and Dred Scott in the comment Claiming History.

• A Harvard Law Review note: Making the Rules of the Rules of the Game: The Use, Misuse, and Disuse of the Rulemaking Grant in the Act of 1842.

• Robert L. Tsai reviews Cliff Sloan's The Court at War (Washington Monthly). 

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

• ICYMI:  Phillip W. Magness on Justice Thomas's dissent in the IEEPA decision (Law & Liberty). A notice of Vernon Burton's talk, “The First Amendment and Lincoln’s Constitutional Legacy" at Clemson's "week of celebrating First Amendment rights and history" (Clemson News). Tarun Choudhury on Sir Garfield Barwick (Legal Service India).  Ernie Walton thinks that Originalists Need the Classical Legal Tradition (Public Discourse).

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

Borwegen and Mehrotra on the OBBBA's Tax Provisions in Historical Perspective

Amanda Borwegen and Ajay K. Mehrotra, Northwestern University Pritzker School of Law, have posted The Beginnings of the One Big Beautiful Bill Act: Placing the 2017 Tax Cuts and Jobs Act in Historical Perspective, which appears in the Cornell Law Review Online:

On July 4, 2025, President Donald J. Trump signed into law the One Big Beautiful Bill Act (OBBBA). This new law was built on the foundations of its immediate predecessor, the 2017 Tax Cuts and Jobs Act (TCJA). This Essay examines the historical roots and contemporary implications of these two laws. It argues that both acts reflect continuities and ruptures in the recent history of U.S. tax law and fiscal policymaking. On the one hand, the two laws are a continuation of decades long trends in American tax policy—trends marked by persistent tax cutting, increasing partisan polarization, and a growing disregard for fiscal responsibility. Yet these two laws also depart from earlier episodes marked by bipartisan efforts to address fiscal challenges through compromise and revenue-conscious reform.

To highlight the continuities and ruptures, the Essay further analyzes three key historical analogs: (1) the Bush tax cuts of 2001 and 2003, (2) the 1990s Omnibus Budget Reconciliation Acts, and (3) the 1983 Greenspan Commission on Social Security Reform. While earlier tax laws established the partisan use of reconciliation and temporary tax relief, the TCJA and OBBBA expanded this model into permanent, deficit financed legislation. In contrast, the Omnibus Acts and Greenspan Commission exemplified bipartisan efforts to address fiscal challenges through compromise and revenue conscious reform.

The goal of this Essay is not to explicate the detailed provisions of the two new laws. Rather, our objective is to provide a broad retrospective look at how we have arrived at this historic and extraordinary moment. The historical trends explored in this Essay suggest that we may be entering a new era of tax law and fiscal policymaking—one defined by ideological entrenchment and legislative expediency rather than bipartisan cooperation and fiscal responsibility. By placing the TCJA in historical perspective, we identify and analyze some of the early beginnings of the OBBBA and other historical analogs, with the hope of better understanding the new law and perhaps future tax and spending legislation. 

--Dan Ernst 

Siegel on the Originalist Case for Prenatal Personhood

Reva Siegel, Yale Law School, has posted It's Alive! When the Original Meaning of "Person" Protected by the Fourteenth Amendment Is Not a Fixed, But Living Word:

This Article examines an originalist argument for prenatal personhood—that life from conception is included within the original public meaning of the “person” the Fourteenth Amendment protects—advanced by Josh Craddock, the most prominent proponent of the originalist-personhood claim in the years before and after Dobbs. Under the original public meaning of the Fourteenth Amendment, Craddock claims, the “preborn” are persons entitled to due process and equal protection of the laws so that homicide statutes should apply to “preborn” as well as born persons.

The Article begins by evaluating Craddock’s argument for the original public meaning of person on its own terms, and identifies fundamental flaws in the way Craddock uses dictionary evidence and addresses the textual and historical context in which the Fourteenth Amendment employs the term “person.”  It then shows that Craddock is reasoning about abortion inside contemporary frameworks and not as nineteenth-century Americans did. (Craddock’s argument employs a language of personhood that opponents of abortion only began using as they entered into struggles over the Constitution in the era of Roe; Craddock draws on “substantive” originalist methods and advances equal-protection arguments about homicide law that opponents of abortion did not advocate until the twenty-first century, in the era of Dobbs

In concluding, the Article situates Craddock among abortion “abolitionists” who support legislation that provides equal protection to unborn persons by applying homicide law to women who obtain abortions and those who assist them. Abolitionists defend their carceral equal-protection arguments by appeal to constitutional memory (e.g. “person,” Lincoln; Frederick Douglass’s North Star) and in openly religious terms.

--Dan Ernst