Schwartz on Compact Theory and the US Constitution

David S. Schwartz, University of Wisconsin Law School, has posted The Birth of Compact Theory, which is forthcoming in the Journal of American Constitutional History:

"Compact theory" is the idea that the U.S. Constitution is a compact of the states: the act of sovereign states rather than that of "We the people of the United States." Compact theory interprets the Constitution as a confederative treaty according to international law principles of treaty interpretation: construing its grants of power narrowly, disfavoring implied powers and implied waivers of sovereign rights, and affording to each party to the compact the right to judge for itself whether the compact has been infringed. When was it first deemed plausible to interpret the Constitution according to these "confederationst" principles, as a compact of the states? This question is worth asking, not only for its intrinsic historical interest, but also for its implications for constitutional interpretation at a time when originalism has become so prominent. Historians have either ignored this question or simply assumed that compact theory began with the Virginia and Kentucky Resolutions of 1798, ghost-written for those two state legislatures by James Madison and Thomas Jefferson to protest the Alien and Sedition Acts of that year. But none have inquired into the provenance of compact theory ("its history before 1798") except for a handful of revisionists, who challenge the conventional assumption by arguing that a compact-theory interpretation of the Constitution was present throughout the founding. This article provides the first detailed account of the emergence of compact theory. Confirming the previously unsupported conventional belief, I argue that compact theory was pushed into the range of plausible constitutional discourse (the "Overton window" of constitutional interpretation) by the Virginia and Kentucky Resolutions. Although hints of a confederationist interpretation of the Constitution were offered as part of Federalist propaganda during the ratification campaign, strict constructionists did not deem such an interpretation plausible for the next decade. Compact theory was not argued in any of the salient constitutional debates of 1788-1798"such as the debate over the First Bank of the United States"where strict constructionists or "enumerationists," had a strong incentive to develop compact theory. Only when the crisis of the 1798 Alien and Sedition Acts motivated Jefferson and Madison to assert that the Constitution was a compact of the states, did compact theory first emerge. 

--Dan Ernst 

Bayefsky on Tradition and Feminism in Constitutional Adjudication

Rachel Bayefsky, UVA Law, has published Tradition and Feminism in Constitutional Rights Adjudication in the Virginia Law Review:

In recent years, “tradition” has been influentially invoked in constitutional rights adjudication and legal scholarship. The Supreme Court, in contexts ranging from abortion to the Second Amendment to freedom of speech, has looked to tradition to illuminate the contours of constitutional rights and the boundaries of permissible government regulation. Some legal theorists have defended “traditionalism” as a way to tether constitutional rulings to the people’s customs instead of judges’ moral views.

From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why integrate into constitutional rights adjudication the practices and understandings of eras in which women were subject to severe political, economic, and social subordination? Yet the relationship between feminism and traditionalism depends on the form that traditionalism takes: what it is, how it is justified, and how it responds to moral critique.

This Article unpacks the idea of tradition, and it investigates the interaction between tradition and women’s rights in constitutional law. I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional adjudication that can be conducive to, rather than hostile to, women’s rights. For example, traditionalists often seek to glean insight from concrete experience rather than relying on abstract principles; they should therefore examine a range of experiences, including those of women. And the traditionalist interest in continuity supports acceptance of the last century’s advancements in women’s rights rather than attempts to “roll back the clock.”

Thus, values integral to traditionalism can support positions favorable to women’s rights. I apply this view of tradition to several constitutional questions, including the right to contraception, the permissibility of public single-sex education, pregnancy discrimination, and the scope of the Equal Protection Clause. I also engage in broader reflection about the determinacy of traditionalist analysis and the relationship between traditionalist reasoning and moral evaluation.

--Dan Ernst 

Upham's "Taking American Citizenship Seriously"

David R. Upham, St. Thomas University College of Law, has published Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment (Bloomsbury)

In this ambitious volume, Professor David R. Upham offers a comprehensive account of the original understanding of the Fourteenth Amendment, shedding new light on its often-overlooked Privileges or Immunities Clause. Drawing on a close textual reading as well as a wide range of primary sources—some newly discovered—Upham argues that the framers intended the amendment as a measure designed to strengthen existing constitutional protections for the rights of both human personhood and American citizenship. Upham contends that the amendment secures for all individuals the basic rights to life, liberty, and property through guarantees of due process and equal protection, while also reaffirming the birthright principle that grants citizenship to nearly all born on U.S. soil. Moreover, the Fourteenth Amendment safeguards longstanding privileges and immunities of citizenship, including the rights to travel, engage in commerce, speak freely, bear arms, and enjoy protection from racial discrimination and other forms of civic exclusion. By recovering the Amendment’s original meaning, this book reshapes our understanding of constitutional rights and citizenship, with far-reaching implications for contemporary legal and political debates. 

--Dan Ernst

Two HLR Notes: Montesquieu and "Historical Absence"

Two notes  in Harvard Law Review 139: 8 (June 2026) are of interest to constitutional historians.  The first is Montesquieu’s Day in Court: Recovering a Classical Understanding of Separated Powers: 

The Supreme Court has developed an increasingly pronounced reliance on Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, as an authoritative voice on American constitutional structure. But the Montesquieu who appears in the United States Reports is not the complex, empirical sociologist who authored The Spirit of Laws in 1748.  This Note argues that neither of the Court’s principal approaches to separation of powers — formalism and functionalism — fully engages with the intellectual tradition each claims to inherit from Montesquieu.

The second is Historical Absence and Constitutional Interpretation:

[This Note] draws attention to a type of originalist argument — the argument from historical absence — and the implementation issues it exacerbates. To address these challenges, it presents a modest framework that may be employed by courts required to consider these arguments. This Note conceives of arguments from historical absence as a style of assertion that centers the lack of historical evidence. A litigant hoping to rely upon historical absence may canvass the relevant historical record, find no sufficient historical analogue, and contend that this lack of evidence is itself supportive of their argument — typically, that a governmental practice would have been deemed (un)constitutional at the Founding. These arguments may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice). Simply put, an offensive argument from historical absence may be: “No evidence supports the assertion that the original public meaning of X, or any analogous original public meaning, would permit Y; thus, Y is impermissible.” By contrast, a defensive argument may be: “No evidence supports the assertion that laws regulating Y, or its analogues,were treated as constitutionally suspect at the Founding; thus, the original public meaning of X was understood to permit Y and analogous regulations.”

--Dan Ernst 

Peterson on Text and "the Founding"

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

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

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

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

--Dan Ernst 

A Symposium on Constitutional Interpretation

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

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

Originalist Arguments in Free Speech History
Samantha Barbas

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

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

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

Memory and Authority of Failed Constitutional Amendments
Julie C. Suk

Historical Methods of Constitutional Interpretation and Political Gradations
Nelson Tebbe

Roger Taney, Memory Entrepreneur
Anne Twitty

Hermeneutics in History
John Fabian Witt

Remarks: Why Constitutional Argument Matters
Philip Bobbitt

--Dan Ernst 

JACH (Spring 2026)

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

Articles

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

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

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

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

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

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

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

The Oliver Wendell Holmes Devise: An Introduction
Maeva Marcus

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

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

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

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

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

Writing for the Holmes Devise
Robert Post

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

--Dan Ernst 

Skorup on the Supreme Court's Korematsu Era

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

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

--Dan Ernst

Claussen and Meyer on the Foreign Commerce Power

Kathleen Claussen, Georgetown Law, and Timothy Meyer, Duke Law, have published The Foreign Commerce Power in the California Law Review:

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation’s implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress’s control over foreign commerce is exclusive and that Congress’s control over commerce trumps the President’s general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design.

--Dan Ernst 

Siegel & Ziegler, "Dismantling Equality Rights Through 'Biological-Sex' Talk"

Reva B. Siegel (Yale Law School) and Mary Ziegler (University of California, Davis) have posted Dismantling Equality Rights Through "Biological-Sex" Talk, which is forthcoming in Volume 105 of the Texas Law Review. The abstract:

In rejecting the sex-discrimination claims of transgender claimants in United States v. Skrmetti (2025), the Supreme Court introduced a new term for sex into equal protection law: “biological sex.” The Court made clear its view that laws recognizing biological-sex differences warrant judicial deference. Claims on biological sex also appear in the legislation and briefing of West Virginia v. B.P.J. and Little v. Hecox, cases challenging bans on transgender athletes’ participation in girls’ teams under the Constitution and Title IX this Term.

Biological sex is a movement signature—the fingerprint of advocates who are supplying the Supreme Court with resources for the stealth overruling of United States v. Virginia (1996), Justice Ginsburg’s opinion for the Court explaining the Constitution’s guarantees against sex discrimination (which judges apply in cases of discrimination on the basis of sexual orientation and gender identity, as well). We trace the usage of biological sex to the declarations, bills, and briefs of faith-identified social conservatives who mobilized against LGBT victories in Obergefell v. Hodges and Bostock v. Clayton County and under Title IX. Represented by advocates such as Alliance Defending Freedom (ADF) and Heritage Foundation, these Americans are now seeking reversal of constitutional and civil rights of other Americans as contrary to nature and divine command.

Conflict over transgender rights is tied to conflict over sexual orientation and gender roles in overt and subterranean ways, as this Article shows. The idiom of biological sex draws upon physiological naturalism—traditions of reasoning from the body—that courts long employed when deferring to laws enforcing gender roles before the rise of sex equality law. 

By following talk of biological sex in state statutes and lower-court cases, we show that the movement is providing resources for the stealth overruling of Virginia as the decision reaches its thirtieth anniversary. Biological sex directs judges to defer to the judgments of the political branches rather than to scrutinize sex-based state action for sex-role stereotyping—a code associating sex difference and judicial deference that revives in contemporary idiom the very traditions of reasoning from the body that United States v. Virginia rejected. 

Read on here.

-- Karen Tani 

Allread, "Indigenous Constitutionalism"

The Harvard Law Review has published "Indigenous Constitutionalism," by Tanner Allread (University of California, Los Angeles). The abstract:

By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions.

This Article tells the story of these constitutions — the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of “Indigenous constitutionalism” in the United States.

This Article’s aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism’s features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today.

But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions — unique among American constitutions — showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law. 

Read on here (or at SSRN). 

-- Karen Tani 

 

Kent on the Interwar Development of American Economic Sanctions

Andrew Kent, Fordham University School of Law, has posted The Pre-History of Modern Economic Sanctions, which is forthcoming in Constitutional Commentary:

This review essay examines the historical emergence of modern economic sanctions through the lens of Professor Nicholas Mulder’s outstanding 2022 book, The Economic Weapon.  It then supplements Mulder’s account with a fuller treatment of developments in the United States between World War I and the start of World War II.  The emergence of modern sanctions depended on transformations in international and domestic law, international diplomacy, state administrative capacity, and moral and legal understandings of coercion against civilian populations.  Mulder shows that these changes took shape principally during and after World War I, and focuses his monograph on Britain, France, and the League of Nations, with some attention to the United States.  This essay supplements Mulder’s transnational history with a more detailed account of U.S. law and institutions in the first four decades of the twentieth century.  In the United States, developments during World War I and the interwar period—including the Trading with the Enemy Act, export-control measures, debates about Congress’s neutrality statutes and the merits of using American economic coercion against fascist and expansionist powers, and a growing acceptance of broad executive discretion in foreign affairs—worked together to help create a rudimentary but recognizably modern sanctions regime by the time the United States entered World War II.  The essay highlights the U.S. constitutional questions raised by these developments, including questions about the nondelegation principle, the scope of presidential power and Congress’s foreign and interstate commerce powers, and protections for individual constitutional rights. 

--Dan Ernst 

Sanders, "Parliament's American Shadow"

We missed this one from earlier this year: Anthony B. Sanders (Institute for Justice, University of Minnesota) has posted "Parliament's American Shadow." The abstract:

In the first century after 1776 American courts repeatedly compared their constitutional system's understanding of sovereignty-where the people are sovereign and speak through written constitutions and where legislatures are subordinate-with the British system where Parliament itself was sovereign. This distinction was central to the invention of judicial review. In 1776 Americans rejected British rule and Parliamentary sovereignty. But that did not necessarily mean they had to embrace popular sovereignty and written constitutions. Yet they did, and that choice led to the rise of judicial review just a few years later. American judges understood this genealogy and therefore found the "omnipotent" Parliament an incredibly useful rhetorical device when justifying judicial review. At the same time, judges used "Parliament" in other contexts, including the exact opposite-justifying judicial restraint-and also to shame American legislatures for at times behaving worse than Parliament did. 

This Article reviews the use of "Parliament" as a rhetorical device in American courts from the Republic's earliest days. After a review of the centrality of the Crown in Parliament in the British constitutional system and the choices Americans made in the Revolution to embrace a constitutional architecture that would lead to judicial review, it examines various cases where American judges repeatedly invoked what the Article calls "Parliament's shadow." Two well known examples are Calder v. Bull and Vanhorne's Lessee but there were numerous others. The review demonstrates that this practice continued at around the same frequency from the late eighteenth century through the mid-nineteenth century. However, the Article then documents that Parliament's shadow ebbed, steadily, in the late nineteenth and early twentieth centuries, essentially had disappeared by the mid-twentieth century, and has never rebounded. Although American courts today still sometimes compare the British constitutional system to the American, it is extremely uncommon. 

Why after the repeated use of Parliament's shadow over the first century of the United States did American courts slowly give it up? There is no clear answer but the author offers some suggestions. One is that after the Revolution passed out of living memory, although judicial review itself was secure, the connection between it and the Revolution's change in systems of sovereignty became less front of mind. Another, and perhaps the most important, is that as the title of "top nation" passed from Britain to America the shadow of Parliament inevitably receded. 

Read on here.

-- Karen Tani 

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.

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

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

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. 

Sobkowski on Trump and Youngstown

Patrick J. Sobkowski, Marquette University, has posted Presidentialism at the Highest Ebb: Executive Power in the Age of Trump, which is forthcoming in the University of Dayton Law Review:

On July 1, 2024, the Supreme Court decided Trump v. United States. In a 6-3 decision, the Court held that presidents are absolutely immune from criminal prosecution for official acts taken pursuant to his “conclusive and preclusive” constitutional powers. Trump represents a watershed moment in the Supreme Court’s separation of powers jurisprudence. Critics worried that the Court’s decision put the president above the law. Because Trump creates a constitutional rule that places the president’s powers above those of Congress, the decision presents an interesting opportunity to contrast it to another famous separation of powers decision.

Youngstown Sheet & Tube Co. v. Sawyer is perhaps the most important separation of powers case the Supreme Court has ever decided. After President Harry Truman decided to seize the nation’s steel mills to avert a labor strike, the Court struck down his executive order as beyond the powers of the president. The Court’s decision in Youngstown stands for the propositions that (1) the president is not above the law, even in national emergencies; and (2) much of the president’s power flows not from implied or inherent constitutional authority, but from statutory authorizations from Congress.

This Article presents the first comprehensive comparative analysis of Trump and Youngstown. A close reading and attention to the historical and political context surrounding both cases reveal both striking similarities and differences. I employ archival evidence to shed light on the arguments presented by the Truman administration in defense of the seizure, as well as public reaction to the decision. The Court’s shift from functionalism to formalism in the period between the two cases also carries important implications for the separation of powers going forward. 

--Dan Ernst 

Manners and Menand on the Removal Power

Jane Manners, Fordham University, and Lev Menand, Columbia Law School, have posted The Power to Remove For Cause:

This Article reconstructs the common law of for cause removal in the United States. Drawing on extensive new analysis of state and federal materials, it shows that legislators typically paired fixed terms in office with “for cause” removal language to strike a balance: to protect officers from political termination while enabling the discharge of officials unable to carry out their duties effectively. Where a statute conferred a fixed term and authorized removal “for cause,” nearly all courts treated removal as an adjudicatory act—requiring notice, an opportunity to be heard, and de novo judicial review of the legal sufficiency of the asserted cause. By contrast, in schemes lacking fixed terms, some courts treated “for cause” language as merely admonitory, leaving process and review to political actors. Building on these findings, this Article recovers the significance of Reagan and Shurtleff, two largely forgotten Supreme Court cases from the early 1900s. These decisions form the doctrinal foundation on which much of the federal administrative state was subsequently built including institutions like the Federal Reserve Board. Our recovery provides a framework for evaluating ongoing disputes between the President and federal administrators. It cuts strongly against the government’s current position that “for cause” removals are nonreviewable and can be conducted without formal process—and offers concrete legal bases that courts today can use to police the outer limits of presidential removal power.

--Dan Ernst 

Price on Congress's "Power of the Purse"

Zachary Price, UC Law, San Francisco, has posted Effectuating Congress's Power of the Purse:

Congress’s power of the purse—its authority to control government spending—is one of its most important authorities. Yet its hold on the executive branch may be fraying, as recent presidents have applied appropriations statutes inventively and the current administration seems poised to assert still greater control over spending.  In part because advocates have advanced tendentious historical claims to support such unilateral executive action, this Article explores the history of how Congress in the past has effectuated its constitutional power over government spending.

The Article explains that although Congress’s power of fiscal control has generally been quite potent across U.S. history, Congress’s grip on executive spending was in some ways weaker before the development of the modern administrative and national-security state.  In the nineteenth century, although Congress exercised considerable informal influence over administration, executive officials frequently overran their appropriations, shifted money creatively between accounts, and spent money for purposes for which Congress did not clearly appropriate funds; in addition, they sometimes did the opposite and “impounded,” or declined to spend, funds that Congress did appropriate.  Such actions, however, occurred in a markedly different practical, legal, and institutional context from contemporary administration.

This history has at least three important implications in the present.  First, it undermines contemporary arguments for a unilateral executive prerogative based on nineteenth century spending practices.  Second, the history sheds new light on the fraught debate over presidential administration and the unitary executive branch, suggesting that congressional control over spending is an essential complement to presidential control over the executive branch.  Finally, the history may support greater contemporary application of mechanisms for holding individual officers liable for unlawful expenditures.

--Dan Ernst