Forum on Wang's "Making of Felony Procedure"

[We have word from the Modern Criminal Law Review of From Treason to Trump: Felony’s Medieval Origins and Modern Resilience, a forum on Elise Wang's Making of Felony Procedure in Middle English Literature.  DRE]

In The Making of Felony Procedure in Middle English Literature (Oxford 2024), Elise Wang explores the medieval origins and surprising modern resilience of “felony” in contemporary criminal law. Since its appearance as the ur-crime of Anglo-Saxon proto-criminal law, commentators, historians, and judges have waxed poetic about the radically exclusive evil attached to those who are branded, “attainted,” and just plain despised “with words of felony.”

The following passage from Pollock & Maitland’s classic history of medieval English law gives a nice flavor:

When the adjective felon first appears it seems to mean cruel, fierce, wicked, base. Occasionally we may hear in it a note of admiration, for fierceness may shade off into laudable courage; but in general it is as bad a word as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft.

That’s memorably harsh, even for medieval law. More startling yet, talk of “felony” and “felons” survives to this day. Courts continue to quote the passage above to give their modern audience a flavor of what felony means today. In public discourse, the “branding” of a criminal defendant as a “felon”–as opposed to a mere “convict”–still appears as definitive evidence of that person’s (more or less permanent and total) exclusion from the political community, i.e., a type of civil death or outlawry (incl. disenfranchisement, deportation, and ineligibility for jobs, benefits, or privileges).

How can this be? What did felony mean in medieval law and literature? What does (and should?) it mean today? Does felony have a place in modern criminal law discourse and practice?

Why Legal Historians Need to Read Literature
Sara M. Butler

Felony, Fact-Finding, and Medieval Due Process
Jennifer Jahner

Law, Not-Law, and the Felon in Between
Alice Ristroph

Felon, Felonesse, President
Jamie Taylor

Felony and the Interdisciplinary Frounce
Elise Wang

In preparation for this Forum, MCLR+ hosted a book panel, live streamed on our YouTube channel, on January 17, 2025. The video of that event is available here; the audio is accessible here, or on any of the usual podcast outlets (Spotify, Apple, etc.). For additional materials, please consult MCLR+ Resources (“Felony”).

To stay informed about upcoming MCLR+ events, publications, and projects, please sign up for the MCLR+ mailing list and check the MCLR+ website; to receive notifications about new video content, subscribe to our YouTube channel.

Primus's "Oldest Constitutional Question"

Richard Primus, University of Michigan Law School, has published The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press):

Every law student learns that the federal government is constrained to act only according to its enumerated powers, meaning that Congress can do what the Constitution expressly authorizes it to and nothing more. Yet Richard Primus contends that this longstanding orthodoxy—allegedly required by the text of the Constitution, the Framers’ vision, and the logic of federalism—is fundamentally flawed.

Through careful analysis of constitutional text and history, and of the structure of American federalism, The Oldest Constitutional Question builds a powerful argument for broad congressional authority. In particular, Primus shows that the primary function of enumeration is to rule listed powers in, not to rule other powers out. The Framers were more worried that the federal government might be fragile and anemic than that it would be overwhelmingly strong. Enumerating congressional powers is thus best understood as a way of ensuring that the federal legislature has an incontestable warrant to exercise the powers specified there, not as an exhaustive description of all that Congress can do.

In practice, the enumeration of powers does little to limit Congress. But most constitutional lawyers—including many Supreme Court justices—think this means something has gone wrong, such that the courts must aggressively strike down federal laws exceeding Congress’s enumerated powers. Primus’s meticulous examination explodes the prevailing view, revealing its underlying errors. The constitutional system does place limits on Congress, and crucially so, but the enumeration of powers is not, and never has been, a sensible means for creating and enforcing those limits

Michigan Law's interview of Professor Primus about his book is here. 

 --Dan Ernst

Dudziak's "Cold War Civil Rights"

Congratulations to LHB Founder Mary Dudziak on the publication of a new edition of her landmark book, Cold War Civil Rights (Princeton University Press), with a new preface in which Professor Dudziak discusses new ways of thinking about the Cold war and its affect on civil rights and takes her story to the recent past and the global Black Lives Matter movement.

--Dan Ernst

Smith Student Writing Prize in California Legal History

[We are moving up this previously posted call for submissions for this student writing prize because the due date is now July 15.  DRE]

The California Supreme Court Historical Society (CSCHS) encourages all students working on California legal history (NOT just the history of California courts) to apply for the Selma Moidel Smith Student Writing Competition in California Legal History. Papers may include elements of digital humanities and may also be co-authored. This is a GREAT WAY to get attention for your hard work!

$5,000 first-place, $2,500 second-place, and $1,000 third-place prizes will be awarded to the best papers on California state or colonial history, broadly considered. Recent winners include a study of the death penalty in California, the evolution of California land law, the desegregation of Stanford Law School, and disability law and the campaign for independent living. as well as a jointly authored paper on Chinese adoption practices and their role in immigration decisions after the Chinese Exclusion Act.

We accept papers of at least 7,500 and not more than 15,000 words, including notes and other
explanatory matter. The competition is open to students and recent graduates in history and/or law, provided that they did not have full-time academic employment at the time the paper was written. The paper should also be unpublished; prize winners will likely receive an offer to publish in California Legal History, CSCHS’s journal.

Papers may be self-nominated or sent in by a professor or supervisor. To ensure anonymity, the author’s name should appear only on a separate cover page, along with the author’s mailing address, telephone number, email address, and the name of their school.

Submissions are due by [July 15], 2025 and should be sent to director@cschs.org with the subject line “Smith Prize.” The winners will be announced in July 2025, and an award ceremony (likely over Zoom) will be held in August or September.

For the Prize Committee: Sarah Barringer Gordon, Laura Kalman, Stuart Banner

Weekend Roundup

• Notre Dame Law’s notice of its two prize winners at the recent annual meeting of the Supreme Court Historical Society, Barry Cushman and Dennis Wieboldt.   

• Harvard Law's notice of Kenneth W. Mack's election to the American Academy of Arts and Sciences (Harvard Law Today).

• More historians' amicus briefs from the Brennan Center for Justice: a third one on birthright citizenship by Martha Jones and Kate Masur (New Hampshire Indonesian Community Support et al. v. Trump) and another on voting rights by Alexander Keyssar, Carol Anderson, Orville Vernon Burton, and J. Morgan Kousser (Turtle Mountain Band of Chippewa Indians v. Howe). 

• The U.S. Department of Justice, Then & Now: Barbara McQuade, Michigan Law and a former U.S. Attorney for the Eastern District of Michigan, in conversation with John Q. Barrett at the Robert H. Jackson Center. 

• W.E.B. Du Bois and His Impact on America: David Levering Lewis in conversation with Jeffrey Rosen at the National Constitution Center, Thursday, June 19, at Noon ET. Register here to attend online. 

• Also at the National Constitution Center, in person and online: The Story of the U.S. Constitution: Past and Present, with Akhil Reed Amar, David Blight, and Annette Gordon-Reed, on Monday, June 23 at 6:30 p.m. ET.  Register here to attend online.

• If, like me, you teach the rise of the residential subdivision, you might want to check out this post by the Library of Congress's Geography and Maps Division.  DRE 

• ICYMI: "The Constitution—Not Trump—Demands Allegiance" says Christian Fritz (Albuquerque Journal) (link fixed). The Cato Institute says history teaches that fighting tyranny requires mobilizing the people as well as the courts (Cato).  A history of the Antiquities Act in 1906 (Wilderness Society).

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

Poldnikov on Dialogical Narrative in Comparative Legal History

Dmitry Poldnikov, MGIMO University, Moscow, has posted Dialogical Narrative in Comparative Legal History:

As a well-established academic discipline, legal history offers a wide range of methodological tools. Many among them are rooted in the classical paradigm and face the challenge of the "postclassical turn" in humanities. This paper advocates a dialogical approach for legal history, asserting that profound understanding arises from an active "communication" with past legal systems through historians posing meaningful questions to historical documents, a concept drawing from comparative law. It first examines legal history's "vocation," touching upon Savigny's "Volksgeist" and the historicism-universalism debate, before critiquing the limitations of isolated traditional approaches like legal positivism, natural law theory, and sociological jurisprudence, which risk oversimplification or anachronism. As a constructive alternative, the paper advocates for a communicative, narrative-based approach, viewing legal history as a historian-constructed narrative in line with post-classical legal thought. A methodological framework for this dialogical and comparative legal history-encompassing descriptive reconstruction, causal explanation, and critical evaluation-is proposed. This framework is then vividly applied to a detailed comparative analysis of a single casus: the collision of carts from the Digest (D. 9.2.52.2). The paper examines how Roman law, English common law, Romano-canonical ius commune, Sharia (Fiqh), and Imperial Chinese law might have uniquely approached this problem. This micro-historical comparison reveals that the distinct style and substance of these legal traditions are fundamentally shaped by the specific questions they pose and the methods they employ for resolution. The paper concludes by affirming that such a sustained, questioning dialogue with historical legal sources is indispensable for constructing meaningful narratives that illuminate both the particularity of past legal systems and their enduring relevance to contemporary legal understanding. 

--Dan Ernst 

Bugaric on Fulgosius on Just War

Max Kuhelj Bugaric, a Ph.D. candidate in the Department of Government and a student in the Law School at Harvard University, has posted Raphael Fulgosius on Just War: Papal Adjudication of Conflicts and War as Judgment.  The paper was awarded the 2025 Irving Oberman Memorial Award in Legal History of the Harvard Law School. 

While Raphael Fulgosius (1367–1427) does advance a seemingly revolutionary notion—that in certain cases, the outcome of a war is itself a just verdict—it must be read in light of the overall framework he develops. But in what has been written on this topic, the emphasis rests almost entirely on his argument about the impossibility of judging the different sides’ claims to justice in a formal bellum. This paper attempts to correct the historical record and offer a more fully contextual interpretation of his claims. Fulgosius was willing to set aside the rigid theory of the just war framework and instead label conflicts between Christians “dissensions” (dissensiones) precisely in order to preserve the diplomatic power of the papacy. But the conclusion Fulgosius reaches in effect allows for an even stronger statement of the unilateral rights of war, as it is the pope himself who acts as judge in such disputes. There can be no appeal to his sentence, which also resolves the problem of potential ambiguity and doubt. Even if he thought papal adjudicative power should not be completely unconstrained in such scenarios, he likely would have wanted to preserve the general prerogative, motivated at least in part by the desire to rein in the constant warfare that characterized the Italian city-states in this period.

--Dan Ernst 

Tsai and Levinson on Caste

Robert L. Tsai, Boston University School of Law, and Sanford Levinson, University of Texas Law School, have posted Under What Circumstances is “Caste” Likely to Be a Useful Analytic Concept (and Should We Care)?:

There is growing interest among egalitarians to embrace "caste" to analyze forms of inequality in the United States. In this essay, we offer a few reservations about this trend. First, we note some general limits to arguments by analogy. Second, we point to some historical and legal differences between the caste system in India and the system of American slavery and segregration that followed. Third, if caste analysis were to take hold in American law, many more cultural practices (and perhaps even the value of pluralism itself) would need to be reconsidered. Fourth, there is some risk that the anti-caste project could lead to a proliferation of groups and conditions problematically characterized as "backward," and thereby paradoxically fixing social status in the political imagination. Relatedly, caste analysis in the law might obscure subtleties in material inequality. Fifth, even when caste is used purely as a trope for political mobilization, we note concerns of intelligibility and persuasiveness that ought to be taken into account. 

--Dan Ernst 

Boyd's "Freedom Enterprise"

Kendra D. Boyd, Rutgers University, has published Freedom Enterprise: Black Entrepreneurship and Racial Capitalism in Detroit (University of Pennsylvania Press):

The Great Migration saw more than six million African Americans leave the US South between 1910 and 1970. Though the experiences of migrant laborers are well-known, countless African Americans also left the South to pursue entrepreneurial opportunities and viewed business as key to Black liberation. Detroit’s status as a mecca for Black entrepreneurship illuminates this overlooked aspect of the Great Migration story. In Freedom Enterprise, Kendra D. Boyd uses “migrant entrepreneurship” as a lens through which to understand the entwined histories of Black-owned business, racial capitalism, and urban space.

Freedom Enterprise follows Black Southerners’ journeys to Detroit during the initial wave of migration in the 1910s and 1920s, through their efforts to build a prosperous Black business community in the 1930s and 1940s, to the destruction of that community through urban renewal projects and freeway construction in the 1950s and 1960s. Combining business and social history methods to analyze an eclectic archive, Boyd chronicles migrant entrepreneurs’ experiences, highlighting tales of racial and economic violence, Black women’s business organizing, illegal business, communist entrepreneurs, and cooperative economics.

Boyd uses the framework of racial capitalism to examine migrant entrepreneurs’ experiences in twentieth-century America. In the Jim Crow South, African Americans worried about white mobs taking away their property, wealth, and lives. Though they sought refuge in Detroit, migrant entrepreneurs subsequently faced the loss of their livelihoods and the businesses they had spent decades building to the bulldozers of state-sponsored urban redevelopment initiatives. Southern migrants’ “freedom enterprise”—their undertaking of attaining freedom through business—was curtailed by the reality of operating within the confines of US racial capitalism.

In tracing Black entrepreneurs across the Great Migration, Freedom Enterprise provides important insights into African Americans’ activism for racial and economic justice and continued racialized wealth disparities.

--Dan Ernst 

Toler on Privileges, Immunities and Freemanship

Lorianne Updike Toler, Northern Illinois University College of Law, visiting at YLS, has posted Freemanship:

American citizenship, scholars contend, is informed by British subjectship as found in Calvin's Case. Current debates over birthright citizenship, for instance, revolve around this limited legal concept. The problem with this state of play is that British subjectship provided only part-and a small one at that-of citizenship at the Framing.

The major part sounded in freemanship, a local legal status reserved for non-vassal, nonenslaved men who took an oath of loyalty, defended the locality with their arms, and contributed to its coffers in exchange for the privileges and immunities reserved for town members. Such freeman were given the "freedom of the city." The concept was of ancient date, hearkening back to Greco-Roman times, evolved in medieval England as reflected in the Magna Carta, and arrived in the New World via colonial charters, which recognized freemen as those who could serve in and vote on colonial leadership. When the colonies created American citizenship in the Articles of Confederation, colonial freemen were rendered citizens. The only relic of subjectship that survived the onset of American citizenship was that natural born subjects if free were entitled to take the oath and become freemen when they came of age, but so too could aliens through naturalization. It was freemanship, not necessarily subjects, which became citizens of the new republic. 

Freemanship as the true antecedent to citizenship deepens our understanding of privileges & immunities as appurtenant to ancient freemanship and supports and delimits the general law theory of the Fourteenth Amendment to those privileges and immunities. 

--Dan Ernst 

Weekend Roundup

• The National Constitution Center’s Town Hall on Executive Authority: Presidential Power From America’s Founding to Today, with Gillian Metzger, Columbia Law School, and Saikrishna Prakash, University of Virginia School of Law, is now available online.

• Congratulations to Michael Schoeppner, University of Maine at Farmington, upon his receipt of an American Council of Learned Societies fellowship for his proposed book, “‘Living Illegally,’ which tells the stories of free Black people whose illicit migrations belie the oft-told story of America’s open borders in the era before the Chinese Exclusion Act of 1882" (UMF). 

• Congratulations to Adelina Miceli, this year’s recipient of the University of Connecticut Law School’s Distinguished Alumni Professor Kent Newmyer Award in American Legal History, “established in honor of Kent Newmyer to recognize a student who demonstrates excellence in the study of American legal history.”  

•  A wide-ranging interview of Seth Barrett Tillman (Ami).

• On June 21 at 2 pm, the Washington’s Headquarters State Historic Site will host Megan Rhodes Victor, Queens College, who will present “‘We’ll Be Free’: Molly Houses, Community, & Homosexuality in the 18th C. English Colonial World.”  The event is free and open to the public (New York Almanack).

• The Brennan Center has announced its Steven M. Polan Fellows in Constitutional Law and History for  2025–2026: Michele Goodwin, Brian Highsmith, Alan Jenkins, Joy Milligan, Bertrall Ross, and Robinson Woodward-Burns.  

• Over at LPE Blog, a symposium is underway on Sandeep Vaheesan’s Democracy in Power: A History of Electrification in the United States. 

• The American Political Science Association's advice to members those traveling between the United States and Canada for its annual meeting in Vancouver in September.  (ASLH 2026 is set to meet in Alberta.)

• His Honour Peter Collier, KC, reviews The Legal History of the Church of England, edited by Norman Doe and Stephen Coleman (Church Times). 

• ICYMI: Scott Bomboy on Four Cases When the Writ of Habeas Corpus Was Suspended  (NCC).  Rachel Barkow on the history of presidential pardons (NPR). A new website illuminates the history of Indigenous enslavement in New England (R.I. PBS). Victoria Sutton on "the other slavery," with a lovely shout out to her teacher James May (NNO).  An awkward moment at the Supreme Court Historical Society (WaPo).

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

Halbhuber on the State-Law Origins of Appellate Review

Fred Halbhuber, a recent graduate of the Yale Law School, has posted The State-Law Origins of the Appellate Review Model:

Modern administrative law owes much to the appellate model of judicial review. Adherence to this model dictates what courts review (the administrative record), what questions courts decide for themselves (questions of law), and what questions courts defer on (questions of fact). Current literature traces the origins of this “foundational” approach to a series of early-twentieth-century Supreme Court decisions re-interpreting the federal injunctive power. But this account is incomplete. This Article shows that the true origins of the appellate review model lie not in federal equity practice, but in state common law decisions. Over the course of the nineteenth century, judicial review on the common law writ of certiorari—the primary instrument of judicial review in the states—gradually shed its English-law-inspired focus on “jurisdictional” error. Through this selective departure from English precedent, certiorari came to approximate appellate review: confined to the record, de novo on questions of law, and deferential on questions of fact.

By documenting the emergence of this earlier, certiorari-based appellate review model, this Article offers an answer to an enduring mystery at the heart of federal administrative law: where did the Supreme Court get the appellate review model from? This Article argues that, in the early twentieth century, the Court lifted the model from state certiorari practice. In so doing, the Court certiorari-ized the federal injunction. The implications for our understanding of modern judicial review are several, but this Article focuses on one particularly salient issue: the availability of universal relief. The debate on universal relief has thus far focused almost exclusively on federal equity practice. But, as this Article shows, the modern federal injunction has much more in common with state certiorari practice than with nineteenth-century federal equity practice. Looking to state certiorari practice—where courts routinely “set aside,” “annulled,” “vacated,” and “suspended” administrative action universally—offers new support for universal relief.

After tracing the state-law origins of the appellate review model, this Article turns to the debate over the meaning of “set aside” in § 706 of the Administrative Procedure Act (APA). Commentators and judges disagree on whether the APA’s “set aside” language empowers federal courts to vacate agency action universally, or only to ignore the agency action as to the plaintiffs in a particular case. This Article sheds new light on the original meaning of this vague language by demonstrating that, when Congress first introduced the “set aside” term into federal law via the Hepburn Act of 1906, it was transplanting the language from earlier state codes. By documenting how nineteenth-century state statutes used the “set aside” language to describe judicial review, this Article strengthens the case that “set aside” in § 706 is synonymous with “vacate."

--Dan Ernst 

Michigan Law Review's Book Review Issue

The annual book review issue of the Michigan Law Review includes several essays on works of legal history, in addition to Reva Siegel’s historically informed foreword, which which we’ve previously noted.  Erwin Chemerinsky reviews David Pozen’s Constitution of the War on Drugs, Andrew Lanham reviews Aziz Rana’s Constitutional Bind, Marin Levy reviews Robert Post’s Taft Court, and William Novak reviews Jack Balkin’s Memory and Authority.

--Dan Ernst 

Judge William Bryant, the "Soul of the Court"

[We have the following announcement from the Historical Society of the District of Columbia Circuit and the Supreme Court Historical Society.  DRE]

On June 18, 2025 at noon, please join the Supreme Court Historical Society and the Historical Society for the District of Columbia Circuit for a Juneteenth conversation about the new biography of Judge William Benson Bryant, Soul of the Court: The Trailblazing Life of Judge William Benson Bryant Sr, by Tonya Bolden.  The panel consists of Roger A. Fairfax, Dean of Howard University School of Law, William B. Schultz, partner at Zuckerman Spaeder who both clerked for Judge Bryant and took his oral history, and Michelle Coles, a Howard Law School graduate, former DOJ attorney, and now author.

William B. Bryant served on the United States District Court for the District of Columbia beginning in 1965, when he was appointed by President Lyndon B. Johnson, until his death in 2005. He was Chief Judge from 1977 to 1981.  Prior to being appointed to the federal bench, Judge Bryant graduated at the top of his law school class at Howard University School of Law, after the war became one of the first black prosecutors in the U.S. Attorney’s Office for the District of Columbia, and then became a prominent criminal defense lawyer.  He litigated pro bono the landmark case of Mallory v. United States, in which the Supreme Court overturned a criminal conviction on the ground that the defendant’s confession was obtained unlawfully.

Click here to register for this Zoom program.

Kroncke on American Legal Education and Chinese Law Reform

Jedidiah J. Kroncke, University of Hong Kong Faculty of Law, has posted Model, System, or Node? Understanding Legal Education Reform in Twentieth-century China and Beyond:

This chapter examines the complex influence and impact of American legal education models in China's 20th-century legal reforms. It argues that while American legal ideas were widely discussed and promoted, their actual influence on China's legal education system was limited. A conceptual framework is introduced which distinguishes between a country's system of legal education, its ideal model of a law school, and episodic nodes for integrating elite domestic and international legal capital. The analysis reveals that American legal education, particularly the "Harvard model," was often presented as an ideal for reform in China. However, it primarily functioned as a model for elite, non-replicable nodes. Ultimately, this chapter challenges claims of significant American influence. It also highlights the importance of understanding the contested nature of legal education reform within China's specific historical and political context.

--Dan Ernst 

Symposium on the Intellectual History of Legal History

 [We have the following announcement.  DRE]

International Symposium (12-13 Juni 2025): An Intellectual History of Legal History

On 12–13 June 2025, leading scholars from across Europe will gather in Thurnau, Germany, for the international symposium An Intellectual History of Legal History (INTELLEX).

The INTELLEX Symposium (12–13 June 2025) explores the intellectual history of legal history through a diverse range of themes, periods, and regions. Participants examine how legal knowledge has been shaped, taught, and transmitted from the early modern period to the 20th century, across Europe and into colonial and post-colonial contexts.

The symposium is organized by the Bayreuth Humboldt Centre, University of Bayreuth. It is hosted at the Institut für Fränkische Landesgeschichte (IFLG) in Thurnau, Germany.  The head of our research group, Sören Koch, is among the keynote speakers.

More information about the symposium can be found here. 

Cantisano on "Administrative Despotism" in Brazil

Pedro Jimenez Cantisano has published, in Portuguese,  “Um perpétuo estado de sítio”: atos de império e despotismo administrativo na Primeira República in the Revista Direito e Práxis:

This article explores the appropriations of the notion of administrative despotism in early-twentieth-century Brazil. Across the Atlantic world, during the end of the nineteenth and beginning of the twentieth century, this idea was used to criticize the expansion of the State through administrative law. The references for despotism varied in time, from the old regime’s absolutism to twentieth-century totalitarianism. In Brazil, the references were both global, such as the notion of oriental despotism, and local, such as the usages of state of siege during the early years of the Brazilian first republic. These appropriations are shown through legislation, legal doctrine, judicial records, and newspapers, in the context of urban and public health reforms implemented in Rio de Janeiro, from 1903 to 1909. The consequences of the distinction between atos de império and atos de gestão for the judicial control of the administration, among other aspects of an administrative law that was especially reformulated to support the reforms, were central for debates about administrative despotism.

–Dan Ernst

AHA Congressional Briefing on Tariffs

 [We have the following announcement.  DRE]

The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on tariffs. The briefing will take place on Wednesday, June 11, at 9:00 a.m. ET in Rayburn House Office Building Room 2075.

Panelists Douglas A. Irwin (Dartmouth Coll.), Sharon Ann Murphy (Providence Coll.), and Eric Rauchway (Univ. of California, Davis) will discuss how the government has implemented tariffs in the past, and how they have impacted the domestic and global economies. The AHA’s Alexandra Levy will moderate.

The event is open to the public; no registration is required. A breakfast spread and coffee will be served. If you have any questions, please email brosenbaum@historians.org .

The AHA’s Congressional Briefings series seeks to provide Congressional staff members, journalists, and other members of the policy community with the historical context essential to understanding contemporary issues. The sessions are strictly nonpartisan and avoid advancing particular policy prescriptions or legislative agendas. Recordings of our recent briefings providing historical perspectives are available on the AHA’s website.

Shugerman on Chinese Immigrants and Birthright Citizenship

Jed H. Shugerman, Boston University School of Law, has posted An Originalist Case for Birthright Citizenship of Unlawful Immigrants' Children: Early Restrictions on Chinese Immigrants as Categorical Context:

Some opponents of birthright citizenship for the children of "unlawful immigrants" make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to "lawful immigrants," because the category of "unlawful immigrant" or "illegal immigrant" did not exist in the 1860s, when the clause was written and ratified. This assertion was the main substantive argument about birthright citizenship offered by the Solicitor General in Trump v. CASA, and it is historically inaccurate. 

To the contrary, the concept of "unlawful immigrants" existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating any doubt that citizenship would extend to their children. This paper summarizes recent historical scholarship documenting a political movement against Chinese immigrants in western states and territories-especially California-leading to state restrictions against Chinese immigrants in the 1850s and 1860s, followed by early federal restrictions. These immigration restrictions were mostly a system of taxes, fees, and fines against immigrants, plus criminal penalties on U.S. citizens who engaged in illegal transit. These restrictions established a new legal regime with similar concepts of "unlawful" immigrants. They also demonstrated the rise of a powerful political movement that sought more direct exclusion, so that the nation had notice that the modern category of unlawful or illegal immigrants was more than just foreseeable; it was politically and conceptually on the table in the 1860s. In 1866, the congressional debates over the citizenship clause explicitly confirmed that the text would grant citizenship to Chinese immigrants, without raising a concern about this category of immigrants.  

--Dan Ernst 

Del Mar's "Neil McCormick"

Maksymilian Del Mar, Queen Mary University of London, has published Neil MacCormick: A Life in Politics, Philosophy, and Law (Cambridge University Press):

Neil MacCormick (1941–2009) was one of the twentieth century's most important legal philosophers and one of Scotland's most influential public intellectuals. This book tells the story of his political and philosophical life, from his intensely political childhood as the son of 'King John', one of the founders of the Scottish National Party, through to his involvement in Scottish politics – especially as the author of SNP's constitutional policy – and his role as a Member of the European Parliament, helping to draft the European Constitution. With special attention to MacCormick's character, this book offers a reading of his entire oeuvre, covering his contributions to theories of legal and moral reasoning, institutional legal theory, nationalism, post-sovereignty, subsidiarity, and constitutional pluralism in Europe. This book reads MacCormick as a highly creative thinker who excelled in the art of constructing inclusive middles and thereby developed his own distinctive approach to politics and philosophy.

--Dan Ernst