Reft on US v. Nixon

Ryan Reft's documentary essay on the U.S. Supreme Court's decision of United States v. Nixon (1974), decided fifty years ago, is just out on The Docket.

--Dan Ernst

Sandefur on State "Mandatory" Clauses

Timothy Sandefur, Goldwater Institute, has posted The "Mandatory" Clauses of State Constitutions, which is forthcoming in the Gonzaga Law Review:

Six state constitutions—those of California, North Dakota, South Carolina, Utah, Washington, and Arizona—include clauses declaring that everything in the state constitution is “mandatory” unless otherwise provided. This seems a strange thing to include; one might assume everything in a state’s fundamental law is mandatory. But these provisions, which I call Mandatory Clauses, originated during the wave of reform that swept the United States in the late nineteenth century, and they represent an effort to limit or even prohibit what is today known as “judicial deference.” That is, they were written by framers who wanted courts to be more diligent than they had been in enforcing constitutional commands or prohibitions, and less willing to accede to the acts or omissions of the legislative or executive branches. This article examines the history behind Mandatory Clauses and the problems their creators sought to fix. It concludes with some observations about how courts today should implement these clauses.

--Dan Ernst

Batlan on Antisemitism and the Displaced Persons Act

Felice Batlan, Chicago-Kent College of Law, has posted The 1948 Displaced Persons Act and Home-Grown Antisemitism:

This Article examines the 1948 Displaced Persons Act which provided for the ability of certain European refugees to immigrate to the United States following World War II. The 1948 Act discriminated against Jewish survivors of the Holocaust and imprinted Nazi racial laws and ideology upon U.S. law. Moreover, in debates over passage of such a law, a vast amount of overt antisemitism emerged, generated by politicians and ordinary citizens, which went well beyond the question of the admission of refugees to the United States. By examining the complex and transnational events leading up to the 1948 Displaced Persons Act, and drawing upon underutilized archival material, this Article helps to uncover and explain antisemitism in the immediate post-war period. This analysis has substantial implications for how we think about the history of antisemitism and its relationship to law in the United States.

--Dan Ernst

Zhang on the History of Statutory Interpretation

Alexander Zhang, the Legal History Fellow at the Yale Law School, has posted two papers on the history of statutory interpretation.  Legislative Statutory Interpretation appears in 99 N.Y.U. L. Rev. 950 (2024):

We like to think that courts are, and have always been, the primary and final interpreters of statutes. As the conventional separation-of-powers wisdom goes, legislatures “make” statutes while judges “interpret” them. In fact, however, legislatures across centuries of American history have thought of themselves as the primary interpreters. They blurred the line between “making” and “interpreting” by embracing a type of legislation that remains overlooked and little understood: “expository” legislation—enactments that specifically interpreted or construed previous enactments.

In the most exhaustive historical study of the subject to date, this Article—the first in a series of Articles—unearths and explains that lost tradition of legislative statutory interpretation from an institutional perspective. To do so, it draws on an original dataset of 2,497 pieces of expository legislation passed from 1665 to 2020 at the colonial, territorial, state, and federal levels—the first effort of its kind. It shows how expository legislation originated as a colonial-era British import that Americans came to rely on beyond the creation of new constitutions. Lawmakers used expository statutes to supervise administrative statutory interpretation and to negotiate interpretation in the shadows of courts. Judges accepted and even encouraged legislative statutory interpretation. In the mid-nineteenth century, judges increasingly fought back, emboldened by growing calls for judicial independence. Yet even as the backlash entered into treatises, and even as some lawmakers began to balk, legislatures and judges continued to accept and use legislative interpretations of statutes well into the nineteenth century.

The early history of expository legislation offers an alternative constitutional vision to the oft-repeated notion that statutory interpretation is necessarily and has always been an intrinsically and exclusively “judicial” power. As the Article ultimately argues, strict and formalist conceptions of separation of powers in statutory interpretation are misguided, for the extent to which statutory interpretation was considered a judicial power has fluctuated in ways that were intertwined with broader transformations in American society. This history teaches us to think of statutory interpretation as a shared task among branches but exercised in different contexts and domains.

It also illuminates the historically contingent nature of legislation, revealing new ways that statutes can contain an inherent interpretive openness. These particular forms of openness raise new questions about the validity of subsequent legislative history. They also reveal how legislatures have embraced a paradoxical concept of original intent and meaning—one that legislatures recognized was rarely a “pure” kind but more often a fictional, dynamic kind intertwined with the changing views of post-enactment interpreters.

Externalist Statutory Interpretation is forthcoming in the Yale Law Journal:

The dominant paradigm of statutory-interpretation scholarship is an “internalist” one. It treats statutory interpretation as a self-contained set of tools divorced from society and primarily deployed by lawyers and judges within the closed universe of courts. But as judges increasingly justify textualist statutory interpretation by invoking a populist fidelity to “the people,” the internalist paradigm has proven too narrow to support a robust democratic theory of statutory interpretation. Urgent, foundational questions such as “How should laypeople engage with statutes in the first place?” and “What is the relationship between statutory interpretation and power?” are entirely illegible within an internalist, juricentric paradigm. The concept of “ordinary meaning” has in turn developed with little attention paid to laypeople’s actual participation in political processes.

In response, this Article—the second in a series—begins a new conversation in the field of legislation by developing a broader, critically “externalist” perspective. The Article lays the foundations for a social and political theory of statutory interpretation that is more inclusive of diverse and historically marginalized peoples, grounded in the realities of lay politics, and capable of reflecting the social nature of statutory interpretation. An externalist perspective reveals the lived experience of statutory interpretation beyond traditional governmental actors. It sees statutory interpretation and society as mutually constitutive. It pays attention to on-the-ground manifestations of abstract values like “the rule of law.” And it situates statutory interpretation as a component of political culture, political economy, grassroots participation, and racial politics. This perspective reveals the potential role that statutory interpretation can play in framing how people imagine the possibilities of societal change. And it enables us to ask subversively: Does statutory interpretation counterintuitively make social change more difficult?

To begin the work of articulating this externalist paradigm, the Article chiefly recovers a new history of expository legislation—statutes that purported to interpret previous legislative enactments—and uses that history to articulate three new frameworks.

The first framework—“participatory statutory interpretation”—shows how statutory interpretation has been a profoundly democratic practice done by “ordinary” people. Many laypeople—including unenfranchised, poor, and historically marginalized people—once had a direct, personal, and intimate connection to statutory interpretation that they channeled into petitions for expository legislation. Through expository legislation, they were able to access an alternative to judicial remedies and to check administrative officials’ interpretations of statutes. However, this mechanism of participation was fragile and imperfect, as corporations also could exploit it to secure their own interests.

The second framework—“sociopolitical statutory interpretation”—shows how statutory interpretation was inseparable from mass politics. It challenges the idea that statutory interpretation is relatively apolitical. It highlights how statutory interpretation can be a part of grassroots, nationwide political struggles—not just individualized legal conflicts in courts. Yet it raises questions about the limitations of statutory interpretation as a tool of political struggle.

These two frameworks lead to a third framework: “legislative intent as ordinary meaning.” Whereas scholars and judges have presumed that the “ordinary meaning” of statutes must ultimately be about textual meaning, this framework demonstrates the historical basis of an “ordinary meaning” that decenters statutory text. As the Article shows, laypeople cared deeply about legislative “intentions,” and many saw text as merely evidence of law rather than law itself. Meanwhile, as expository legislation increasingly modified statutory text as time went on, the idea that “text is law” came under peril in new ways.

--Dan Ernst

Reminder: Register for ASLH 2024

[We're moving up this previously posted communication from Ari Bryen, the Secretary of the American Society for Legal History.  DRE]

Registration is now open for the Annual Meeting! The meeting will be held in San Francisco, from October 24-26, 2024. We are grateful to the Program Committee, the Local Arrangements Committee and to our sponsors, UC Berkeley, Stanford University, and UC Law San Francisco.

The 2024 ASLH Annual Meeting will be held at the Hyatt Regency in San Francisco, California. The conference room rate is $209.00. You can reserve rooms here. The ASLH commits to filling a minimum number of rooms and faces heavy penalties if the number falls short. We ask that members please consider booking at the conference hotel.  

In addition to the main conference, two pre-conferences will be held on Thursday, October 24:

• "Canadian Legal Histories: Current Research and Future Prospects" (lead organizers: Lyndsay Campbell, University of Calgary, and Constance Backhouse, University of Ottowa).

• "Freedom Suits and Legal Regimes of Bondage across the Mediterranean, Atlantic, Iberian, and Indian Ocean Worlds" (organizer: Michelle McKinley, University of Oregon;  and

For further details on timing and location, please contact the pre-conference organizers directly.

As always, membership in the ASLH provides a substantial discount for conference registration, as well as access to Law and History Review. So if you are not currently a member, please renew your membership! Student memberships (digital only) are available for only $10.

We look forward to seeing you in San Francisco!