Symposium: The Federalist Constitution

We have already noted some contributions to this excellent symposium issue, The Federalist Constitution, but it has now been published in full as Fordham Law Review 89:5 (April 2021):

Foreword
David S. Schwartz, Jonathan Gienapp, John Mikhail, & Richard Primus

Two Federalist Constitutions of Empire
Gregory Ablavsky

Without Doors: Native Nations and the Convention
Mary Sarah Bilder

President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era
Saul Cornell

In Search of Nationhood at the Founding
Jonathan Gienapp

Slavery’s Constitution: Rethinking the Federal Consensus
Maeve Glass

The Federalist Constitution as a Project in International Law
David M. Golove & Daniel J. Hulsebosch

The Unwritten Constitution for Admitting States
Roderick M. Hills Jr.

Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792
Thomas H. Lee

Executive Power and the Rule of Law in the Marshall Court: A Rereading of Little v. Barreme and Murray v. Schooner Charming Betsy
Jane Manners

Equal Footing and the States “Now Existing”: Slavery and State Equality over Time
James E. Pfander & Elena Joffroy

Reframing Article I, Section 8
Richard Primus

The Other Madison Problem
David S. Schwartz & John Mikhail

Presidential Removal: The Marbury Problem and the Madison Solutions
Jed Handelsman Shugerman

–Dan Ernst

Bilder on Native Nations and the Federal Convention

Mary Sarah Bilder, Boston College Law School, has posted Without Doors: Native Nations and the Convention, which is forthcoming in the symposium The Federalist Constitution, just out in volume 89 of the Fordham Law Review:

Henry Knox (LC)

The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government.

--Dan Ernst

Telfer on Canada's First Superintendent of Bankruptcy

Thomas G. W. Telfer, Western Law, has posted an installment of his book in progress on Canadian bankruptcy law during the Great Depression as The New Bankruptcy "Detective Agency"? The Origins of the Superintendent of Bankruptcy in Great Depression Canada. It also appears in Canadian Business Law Journal 64 (2020): 22.  Here is the abstract:

In the depths of the Great Depression, R.B. Bennett’s Conservative government appointed W.J. Reilley as Canada’s first Superintendent of Bankruptcy. Reilley’s experience made him eminently qualified. He had trained as a lawyer and had been the Registrar of the Bankruptcy Court of Ontario at Osgoode Hall for many years. The creation of the federal Superintendent’s office in 1932 is one of the major milestones in the legislative history of Canadian bankruptcy law. In the bankruptcy law literature, there is a broad recognition that the 1932 reforms were vital. These accounts are incomplete. This article seeks to provide a fuller understanding of these reforms by examining sources of opposition to the establishment of the Superintendent’s office. Not all accepted the new regulatory approach and the prospects of a bankruptcy bureaucracy during the Depression. Within months of Reilley taking office, critics called into question his qualifications and demanded his resignation. Little is known about the 1932 reforms as the creation of the Superintendent’s office has largely been overshadowed in the insolvency field by the enactment of corporate reorganization legislation in 1933 and farm credit legislation in 1934

Dan Ernst

Barnes on Fleming on Law and Consumer Finance

Victoria Barnes has published Anne Fleming’s History of Law and Consumer Finance in Enterprise & Society.  The essay is available online and open access.  It commences:

This review article does not set out to retell the story of Anne Fleming’s life in a chronological fashion, but rather it engages intellectually with the themes in Anne’s scholarship. Anne’s passing means that her thoughts, guidance, and encouragement are lost to the scholarly communities of which she was a part. Over the course of her career, Anne offered sage advice, she helped others to develop their work, and she supported them wherever she could.1 Now, there will no longer be that voice in the conference room, the office, or the lecture hall. We will not know how her presence would have influenced the field in the years to come and how her engagement with other scholars would have shaped them. So I write to gather together the ideas within Anne’s work, hoping to provide a fuller set of insights than can be gleaned by reading pieces of her scholarship individually. This integrated and coordinated view is the sort of comprehensive thinking that she would have given in her interactions.

–Dan Ernst

Zier on "Feminism, Insanity, and Property Rights in 1940s America"

Magdalene Zier (JD/PhD candidate, Stanford Law School) has posted "'Champion Man-Hater of All Time': Feminism, Insanity, and Property Rights in 1940s America," which is forthcoming in the Michigan Journal of Gender & Law. Here's the abstract:

Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist.

This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy. 

The full article is available here.

-- Karen Tani

Peck on the Failed Attempt to Tax West Virginia Coal

Alison Peck, West Virginia University College of Law, has posted Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia, which is forthcoming in the West Virginia Law Review:

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state. 

--Dan Ernst

Federal History 2021

Federal History: Journal of the Society for History in the Federal Government 13: 2021 is available online.  Here’s the TOC:

Editor’s Note
Benjamin Guterman

Roger R. Trask Lecture
Bill Williams

The Case for John Jay’s Nomination as First Chief Justice
Benjamin Lyons

“This disease . . . knows no State boundaries”: The 1918 Spanish Influenza Epidemic and Federal Public Health
Jonathan Chilcote

“America must remain American”: The Liberal Contribution to Race Restrictions in the 1924 Immigration Act
Kevin Yuill

The Combined Chiefs of Staff and the Public Health Building, 1942–1946
Christopher Holmes

Federalism and the Limits on Regulating Products Liability Law, 1977–1981
Ian J. Drake

Gerald Ford’s Clemency Board Reconsidered
Alan Jaroslovsky

Interview An Interview with Chandra Manning
Benjamin Guterman

--Dan Ernst

Berger on Race and Property

Bethany Berger, University of Connecticut School of Law, has posted Property to Race/Race to Property:

In the United States, property and race shape each other. This has been true since colonization and is equally true today.

First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized “off-White” ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism.

Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s “new property”—in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all.

Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.

–Dan Ernst

Chin and Finkelman on Birthright Citizenship and the Slave Trade

Gabriel Jackson Chin, University of California, Davis School of Law, and Paul Finkelman, Gratz College, have posted Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation, which is forthcoming in volume 54 of the UC Davis Law Review (2021):

In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.

This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.

–Dan Ernst

Symposium on Corpus Linguistics and Original Meaning

Georgia State University Law Review 36:5 (2020) was a symposium issue devoted to papers on corpus linguistics and original meeting, the result of a workshop jointly sponsored by the College of Law and the Department of Applied Linguistics and English as a Second Language at Georgia State University in October 2019.  Here are the contents:

Foreword: Lawyers and Linguists Collaborate in Using Corpus Linguistics to Produce New Insights Into Original Meaning
Clark D. Cunningham

Using Empirical Data to Investigate the Original Meaning of “Emolument” in the Constitution.
Clark D. Cunningham and Jesse Egbert

Revisiting a Classic Problem in Statutory Interpretation: Is a Minister a Laborer?
Tammy Gales and Lawrence M. Solan

“Questions Involving National Peace and Harmony” or “Injured Plaintiff Litigation”? The Original Meaning of “Cases” in Article III of the Constitution
Haoshan Ren, Margaret Wood, Clark D. Cunningham, Noor Abbady, Ute Römer, Heather Kuhn, and Jesse Egbert

Effective but Limited: A Corpus Linguistic Analysis of the Original Public Meaning of Executive Power
Eleanor Miller and Heather Obelgoner

“We the Citizens?”: A Corpus Linguistic Inquiry into the Use of “People” and “Citizens” in the Founding Era

--Dan Ernst

Mikhail reviews Schwartz's "Spirit of the Constitution"

John Mikhail, Georgetown University Law Center, has posted McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause, a review essay on David Schwartz’s The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland for Constitutional Commentary:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” This famous passage in McCulloch v. Maryland can be read in at least two different ways. On a narrow reading, the ends in question are Congress’s enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the “foregoing powers” provision) to carry those enumerated powers into execution. On a broad reading, these ends also include the six great objects of the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the “all other powers” provision, aka “the Sweeping Clause”) refers.

This extended review of David Schwartz’s masterful new study of McCulloch (“The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland”) shines a spotlight on the second, broader reading of the “Let the end be legitimate” passage, focusing on what happened to its robust conception of implied powers during five key episodes of the early Republic:

(1) The Virginia Ratifying Convention (1788);
(2) Congressional debates over constitutional amendments (1789);
(3) Congressional debates over abolition petitions (1790);
(4) Congressional debates over a national bank (1791); and
(5) United States v. Fisher (1805), the Marshall Court’s first Necessary and Proper Clause case.

Like Thomas Jefferson, James Madison, and other elite Virginians whose wealth rested on human bondage, John Marshall probably did not believe, or at any rate was unwilling to accept, that Congress could abolish slavery—even though he knew that a plausible interpretation of the Preamble and Sweeping Clause justified that conclusion. Likely for that very reason, his defense of implied powers in McCulloch was deliberately ambiguous.

--Dan Ernst

Weidemaier on Lawyers, Self-Government and the London Stock Exchange

W. Mark C. Weidemaier, University of North Carolina at Chapel Hill, has published Law, Lawyers, and Self-Governance During the Heyday of the London Stock Exchange in Law and Contemporary Problems 82 (2019): 195-223.  From the article:

This Article draws on original archival research, including the minutes of [London Stock Exchange (LSE)] committee meetings and correspondence with solicitors, to examine how the LSE managed its relationship with English courts and common law in the late nineteenth and early twentieth centuries. By studying that problem—rather than the problem of enforcing bargains—we can see the artificiality of any neat dichotomy between private and public legal systems. To keep English courts from disrupting its affairs, the LSE used both extralegal tools—for example, expelling members who filed prohibited lawsuits—and legal tools—such as monitoring judicial developments and funding litigation. Regardless of the nature of the tool, lawyers often shaped its response, and their advice was guided by explicitly legal concerns.

–Dan Ernst

Luban on Two Third Reich Lawyers

David Luban, Georgetown University Law Center, has posted Complicity and Lesser Evils: A Tale of Two Lawyers, which is to appear in the Georgetown Journal of Legal Ethics with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince:

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.

 --Dan Ernst

Chin and Chin on the War against Asian Sailors and Fishers

Gabriel Jackson Chin, University of California, Davis School of Law, and Sam Chew Chin, CUNY Graduate Center, have posted The War Against Asian Sailors and Fishers, which is forthcoming in the UCLA Law Review:

Beginning in the 1880s, maritime unions sought federal legislation to prevent Chinese, Japanese, Filipino, and Asian Indian sailors from serving as crew on U.S.-Flag vessels. This campaign succeeded in mandating citizenship requirements for crews which remain in the U.S. Code today. Similarly, federal and state laws limited the ability of Asians to fish, own fishing boats, or to serve on crews of fishing vessels. Few of these laws targeted Asians by name, but legislative history and contemporary media accounts make clear that racial exclusion motivated many facially neutral requirements such as literacy tests and restriction of jobs to citizens or those who had declared their intention to become citizens. As U.S. law restricted naturalization by race from 1790 to 1952, requiring citizenship had direct racial effects—white immigrants could be fishers or sailors, but not Asian immigrants. The expansiveness of exclusionary laws across time, geography, and level of government, its use of proxy categories to achieve racial discrimination, and yet its obscurity today, suggest the comprehensive nature of racial discrimination in the pre-Civil Rights era.

--Dan Ernst

Pfander and Joffroy on Federalists, Slavery and the Equal Footing Doctrine

James E. Pfander, Northwestern University School of Law, and Elena Joffroy, a 2020 graduate of Northwestern Law, have posted Equal Footing and the States "Now Existing": Slavery and State Equality Over Time, which is forthcoming in the Fordham Law Review:

This Essay, a contribution to Fordham’s Symposium on the Federalist Constitution, reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine.

Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the Now Existing Caveat to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.

--Dan Ernst

Sawyer on Originalism, the South, and the New Right

We recently noted Calvin Terbeek’s article on the racial politics of originalism and now note another work on the same topic, Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr, by Logan Sawyer, III, University of Georgia School of Law, in the Journal of Policy History 33:1 (January 2021): 32-59 :

Sam Ervin (LC)

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other conservative southerners explain to outsiders and to themselves why they shifted from support for an interventionist state powerful enough to enforce segregation to an ideology founded on individual rights and liberty. It thus eased the South’s integration with the emerging New Right.

--Dan Ernst

Daly on de Smith's "Judicial Review of Administrative Action"

Paul Daly, University of Ottawa, has posted de Smith’s Judicial Review of Administrative Action (Stevens & Sons, London, 1959), which is forthcoming in Leading Works in Public Law, ed. O'Brien & Yong:

Stanley A. de Smith (wiki)

 In his classic text, Judicial Review of Administrative Action, Professor de Smith drew out from the prerogative writs a body of general principles relating to judicial review of administrative action.  Published in 1959, de Smith’s book wove a principled pattern from disparate strands of jurisprudence. His landmark work set the scene for the development of a common law tapestry of judicial review of administrative action, which by the end of the century had definitively replaced the earlier patchwork quilt of case law.

I begin with an introduction to the author of the text and a description of the 1959 text (“The Work”).  Subsequently, I explain the background against which the text was written (“The Context).  I then consider its importance in the development of contemporary administrative law (“The Significance”). I conclude by considering the evolution of Judicial Review of Administrative Action in the decades after its progenitor’s death and the evolution of the law of judicial review of administrative action (“The Legacy”).

In both its creation and its evolution in the hands of others, Judicial Review of Administrative Action has been of central importance to the common law tradition of administrative law.

–Dan Ernst

Schwartz and Mikhail on Exaggerating Madison

David S. Schwartz, University of Wisconsin Law School, and John Mikhail, Georgetown University Law Center, have posted The Other Madison Problem, which is forthcoming in volume 89 of the Fordham Law Review:

James Madison (NYPL)

The conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed.

Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. Moreover, the ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption. We conclude by suggesting that scholars pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery.

--Dan Ernst

Paxton-Turner on Continental Originalism

Ashlee Paxton-Turner has posted Continental Originalism: Keeping Our Republic:

Much ink has been spilled on originalism. This we all know. If we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning of the Constitution is this idea of securing the nation’s survival and preserving our union. For all that has been written on originalism, the key theme of union preservation has been consistently overlooked. And when we do not talk about union preservation, we are not faithfully answering what the words of the Constitution meant when they were drafted. Making union preservation our lodestar can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Plainly put, until we start taking the theme of union preservation seriously, we continue to risk our ability to keep our republic.

--Dan Ernst

Bruce on Epic Systems and Labor Legal History

Stephen Bruce, a Washington, D.C. attorney, has posted Epic Errors: The Supreme Court Ignores the History of Collective Actions and Decades of Struggle to Establish 'Living Wage' Standards:

If an employer can take away the right of “acting together” from its employees and force them to proceed only “individually” to enforce rights related to their wages and other terms and conditions of employment, the employer has interfered with or restrained the “collective power of individuals” that Alexis de Tocqueville observed in Democracy in America. The Norris-LaGuardia Act of 1932, the National Labor Relations Act of 1935, and the Fair Labor Standards Act of 1938 are all New Deal era statutes – all of which are still in force today – which provide for the right of employees to proceed collectively or in concert. These statutes were the culmination of decades of struggle in workplaces and communities, state and federal legislatures, and state and federal courtrooms. Each rests on detailed Congressional findings that individual employees do not “commonly” enjoy “actual liberty of contract” or “full freedom of association” and have an “inequality in bargaining power” vis a vis the employer, and that “collective” actions to resolve disputes over the terms and conditions of employment are in the interest of employees and the public. And while it is rarely noticed today, from 1923 to 1925, the Supreme Court issued three unanimous decisions on the unconstitutionality of “compulsory arbitration,” holding that compulsory arbitration implicates the due process and liberty of contract protected by the Fourteenth Amendment, except in temporary emergencies. See, e.g., Charles Wolff Packing Co. v. Court of Indus. Rel., 267 U.S. 552, 565-66 (1925).

In Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624-25 (2018), a 5-4 majority opinion, written by the then-new Justice Neil Gorsuch, upheld compulsory arbitration agreements with “class action waivers” in three companion cases, even though the waivers clearly constituted unbargained-for restraints on the collective enforcement action provided in Section 16(b) of the Fair Labor Standards Act. All of the cases involved the right to receive overtime pay, which applies even when employees earn more than the minimum wage. In upholding the class/collective action waivers, the majority opinion in Epic displayed a near total ignorance of class and representative actions in “the old, nearly forgotten world before 1966," Elizabeth K. Spahn, “Resurrecting the Spurious Class,” 71 Geo. L.J. 119, 120 (1982). It also displayed a woeful ignorance of the history of the use of “liberty of contract” theories to block the enforcement of wage and hour standards, and Congress’ rejection of those theories in the legislative findings and declarations of policies of the New Deal legislation.

--Dan Ernst