Gordon on Church and State in Early New York

Sarah Barringer Gordon, University of Pennsylvania, has posted The Holy Cause: Church and State in Revolutionary and Early National New York:

This article explores a key outgrowth of the American revolution in the law of church and state. The careers of Presbyterian pastor John Rodgers of New York and his congregants bridged pre- and post-revolutionary debates on the law of religion. In early 1784, the inaugural New York State legislature passed a game-changing law, introduced by one of those congregants, which allowed all “religious societies” to incorporate.

The new law followed decades of controversy over whether non-Anglican religious organizations could incorporate in the colonies. Just months after the British evacuated, New York transformed an Anglican privilege into a general benefit. The law also mandated significant lay control, vesting elected trustees with authority over salaries, decisions to buy and sell, and more.

Other states followed New York’s lead. Lay trustees controlled church finances and property: they became partners with local governments in state-building infrastructure, as they founded universities, hospitals, publishing houses, libraries, etc. Some religious institutions grew faster than others in this expansive climate. Presbyterians’ conservative standards meant that more nimble groups, especially Methodists, could capitalize on the opportunities offered by new settlements in upstate New York and beyond, where revivals burned hot as American settler colonialism exploded in the early republic.

--Dan Ernst 

Smith on Catholic Constitutional Republicanism

Thomas A. Smith, emeritus at University of San Diego School of Law, has posted Catholic Constitutional Republicanism: Suárez, the School of Salamanca, and the American Law of Public Power:   

American constitutional theory traces its lineage to Hobbes, Locke, Montesquieu, and the common law; the political thought of the Spanish neo-scholastics rarely appears in the standard account. This Article recovers that tradition, with particular attention to Francisco Suárez, and argues that it supplies a constitutional theory of public power resisting both Hobbesian absolutism and a thin, individualist Lockeanism. Rulers hold jurisdiction rather than dominion, so a king does not own the realm he governs. Law is an ordinance of reason for the common good rather than the sovereign’s bare command. Office confers authority for another’s good; a ruler who converts public power into private advantage does not merely govern badly but corrupts the office itself. The recovery is offered with its costs stated rather than concealed. The same doctrine that limited the civil ruler served, in its original setting, a claim for the Church’s indirect power over him; the Article marks this cost wherever it bears on the argument. On most of the concepts recovered here, from the distinction between office and ownership to the corporate personality of the people, the tradition systematized a Roman and canonical inheritance more than it originated one. Two claims are stronger: Suárez’s theory of law as reasoned ordinance, and Vitoria’s contribution to the law of nations. The Article also distinguishes this recovery from Adrian Vermeule’s common good constitutionalism, which trusts the magistrate to specify the common good through determinatio; the tradition recovered here begins instead from the corruptibility of that discretion, and treats constitutional form as part of the common good rather than a constraint upon it. The tradition does not decide cases. It names the wrong that the American law of office exists to prevent: the conversion of a public trust into a private possession. 

--Dan Ernst 

Wiebolt on the Lawyer behind School Choice

Dennis J. Wieboldt, III, soon to be a VAP at Notre Dame Law, has posted William Bentley Ball and the "Century of Struggle" for School Choice:

The Supreme Court’s 1971 decision in Lemon v. Kurtzman profoundly shaped the development of federal constitutional law. For more than fifty years, Lemon served as the basis for invalidating countless government programs that sought to support private religious education, posing a formidable challenge to the late-twentieth-century school choice movement. In response, school-choice advocates spent decades incrementally dismantling the Court’s three-part test for determining when government programs seemingly supporting religion violate the Establishment Clause. Their efforts culminated in Kennedy v. Bremerton School District (2022). There, the Court not only opened new doctrinal avenues for defending a wide range of school-choice programs, but also vindicated the litigators who unsuccessfully argued Lemon decades earlier.

To understand Lemon and the forces that led to its eventual undoing, this article turns to William Bentley Ball, a relatively little-known Catholic lawyer who argued Lemon before the Supreme Court in March 1971. As Ball himself remarked after oral argument, the “fight” for school choice in Lemon “was the windup of years of work – a century of struggle.” To be sure, Ball was not litigating for a century before Lemon, but the ideas that so decisively shaped his thinking about the constitutionality of public funding for private religious education indeed emerged one hundred years before he appeared at One First Street. By tracing Ball’s intellectual formation in the lead-up to Lemon, this article sheds new light on the history of the twentieth-century Supreme Court and one of the legal campaigns that continues to figure prominently in our national debates over the Religion Clauses.  

--Dan Ernst 

Weekend Roundup

• 

  William Howard Taft (LC)

  Andrea Scoseria Katz on "Taft at the Beach: What the Supreme Court Misses About a Key Unitary Executive Precedent" (Can We Still Govern?) 

• Michael Dreeben looks back at Humphrey's Executor (Just Security). 

• Martha Jones's illustrated story in the New York Times Magazine on Elizabeth Freeman, who sued for her own freedom, is here. 

• That Modern Criminal Law Review workshop, "Ancient Criminal Law: A Global Perspective," may be viewed here and just heard here.  

• A notice of the "Slavery and the Judiciary Collection" of the Law Library of Congress, which "provides digital access to more than one hundred books and manuscripts documenting issues related to slavery and the courts from 1740 to 1860." Also from the hardworking law librarians of Congress: "Code and Policy in Action: Shared Legislative Targets Between the Yurok and Other Sovereign Entities," and Nathan Dorn, Rare Books Curator, continues his series of posts on Anglo-American natural law theorists with "A Textbook for the Laws of Nature’s God: Thomas Rutherforth’s Institutes."

• On July 16, 2026 at 2:00 PM ET, the Foreign and Comparative Law Webinar Series of the Law Librart of Congress will host the webinar Colonialisation, i, and an Unwritten Constitution: Understanding Aotearoa/New Zealand’s Legal System, presented by visiting scholar, librarian, and American Association of Law Libraries Schaffer Grant recipient, Theresa Buller, who is the subject librarian for law and criminal justice at the University of Canterbury in Christchurch.

• A notice of "Myths and Misunderstandings in Modern Irish History," by Patrick Geoghegan, the 2026 Hardiman lecture at the Supreme Court (Law Society Gazette). 

• A Q&A with Hadar Aviram's Behind Ancient Bars: Narratives of Incarceration in the Hebrew Bible (University of California Press) (UC SF Law). 

• Michael Dorf asks What Weight, If Any, Should Be Given Racist Laws In A History-and-Tradition Test? (Dorf on Law.)

• Nineteenth-Century NY Law and Birthright Citizenship: New York v. Miln (1837) (New York Almanack).  

• A notice of Stacey Patton's Strung Up: How White America Learned to Lynch Black Children (Beacon Press, 2026) (New York Almanack).

• "Reflecting on America’s 250th anniversary: Revolution, the Constitution, and the founders" in the Princeton University Press's list (PUP).  And, while we're at it, Princeton University and the Revolution.  

• Lawbook Exchange's June 2026 list in Scholarly Law and Legal History.   

• State Constitution Roundup: What made Pennsylvania's first ever constitution so radical that it only lasted 14 years?  (WHYY).  1776 NC Constitution exhibit [is] part of ‘Capitol 250’ July 4 fest (Coastal Review).  Bayard v. Singleton: Judicial review’s NC origins (Carolina Journal).  The Hawaii Constitution (State Court Report). 

• ICYMI: HIAS's illustrated history of US immigration (HIAS).  Eugene V. Debs, Constitutional Voice (NCC).  An appreciation of Raphael Lemkin, "the author of the concept of genocide" (UJE).  Benjamin Perry and the fight against secession (Greenville Journal). 

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

CLH 14:1

Comparative Legal History 14:1 (2026) has been published. 

Editorial
David Schorr & Agustín Parise

Comparative law today – tomes, themes, trends
Ralf Michaels

This essay surveys recent themes and trends in comparative law scholarship, with a particular eye towards the connections between comparative law and legal history. The author observes a significant movement towards encyclopaedisation, marked by a proliferation of handbooks and encyclopaedias that attempt to systematise knowledge, though these works often struggle with comprehensiveness and persistent Eurocentrism. While traditional treatises continue to show fealty to established functionalist models, there is an observable shift away from the historical dominance of private law towards holistic, post-doctrinal, and interdisciplinary approaches. A primary concern raised is the ‘turn to method’, where the discipline has become increasingly self-absorbed with methodological pluralism and theory, sometimes resulting in ‘method without comparison’. Furthermore, the survey highlights the vital emergence of decolonial and postcolonial scholarship originating from the Global South, facilitating South-South comparison and challenging the field's colonial and Eurocentric foundations. Finally, the author examines the uneasy relationship between comparative law and legal history, questioning whether the discipline can move beyond viewing legal systems as separate entities towards a more integrated world law approach.

Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts
Thào Anh Hoàng

This article examines one of the earliest codified conflict-of-laws rules in East Asia and its overlooked reception in Vietnam. While systematic codifications of conflict rules in Europe developed much later, the Tang Code of China (652 CE) had already incorporated a provision regulating disputes involving foreigners within its territory. This rule was subsequently received in the legal systems of several Sino-sphere countries, including Vietnam. Vietnam’s Lê Code, in force from the fifteenth to the eighteenth century, preserved this conflict rule even after its removal from later Chinese codes beginning in the thirteenth century. This renders the Lê Code the only known continuation of the Tang conflict-of-laws provision.

Long mistranslated as a criminal clause concerning ‘minority ethnic groups’, the relevant provision in the Lê Code is re-evaluated here as a conflict-of-laws rule applicable to both civil and criminal matters. This reinterpretation is situated within the context of East Asian legal culture with a functional equivalence approach. The study shows that Vietnamese law should not be viewed only as a marginal recipient of Chinese legal influence, but rather as a key site where an early conflict-of-laws rule was preserved, adapted, and given historical significance within the development of conflict-of-laws regulations across different jurisdictions. The paper also offers a comparative analysis with other legal traditions of the same period as Tang law, including those of early medieval Europe and the Islamic world.

Ius commune, Venetian governance, and Croatian Glagolitic culture: testaments from the countryside of Šibenik in the early modern period (1637–1713)
Henrik-Riko Held

In the article, I discuss the entanglement of ius commune and Croatian Glagolitic culture under the auspices of Venetian rule in the early modern period. I analyse 222 testaments written in the Croatian language and Glagolitic script between 1637 and 1713 by Glagolitic priests in the countryside of Šibenik, on the eastern Adriatic coast, then under Venetian rule. I address in particular the terminology employed, as well as the structure of the testaments. I compare them with models found elsewhere in Europe, as evidenced by relevant notarial formularies. Finally, I examine the issue of the validity of testaments composed by ostensibly unauthorised persons (parish priests).

The Polish Blackstone: an examination of nineteenth-century Polish scholars’ interpretations of Blackstone and his Commentaries
Lukasz Jan Korporowicz

The principal goal of this article is to address the reception of William Blackstone's legal thought and the awareness of his contributions within the context of nineteenth-century Polish legal scholarship. Despite the considerable differences between English and Polish legal traditions, the limited proficiency in the English language within Poland, and the relatively gradual evolution of Polish legal thought, Blackstone's works were acknowledged by academic circles in Poland in the nineteenth century. Over time, this awareness manifested in direct engagement with certain aspects of Blackstone's perspectives. Nonetheless, the temporal disparity between Blackstone's period of influence and the evolution of legal scholarship in partitioned Poland significantly limited the practical opportunities for the integration and application of Blackstonian jurisprudence.

Re-enacting the judicial philosophy of Oliver Wendell Holmes, Jr.: Saunders v Vautier and Claflin v Claflin compared
Ann Mumford

Oliver Wendell Holmes Jr. sat on the Supreme Judicial Court of Massachusetts in 1889, when, in the case of Claflin v Claflin, he joined the decision that a trust may not be modified if the intention of the testator would be undermined. Claflin rejected Lord Cottenham’s reasoning in Saunders v Vautier that, under certain circumstances, beneficiaries may compel the termination of the trust and transfer the property to them. Claflin v Claflin and Saunders v Vautier are perhaps the two most famous cases in Anglo-American Equity. Through a detailed examination of manuscripts, this article offers a comparative expansion of the US and English histories, and particularly considers the role played by Holmes. Re-enactment theory offers the possibility of creating, or reliving, the intellectual process that led to Claflin, thus revealing a significant moment in the history of US federalism.

--Dan Ernst.  Book Reviews after the jump.

Wells on Ecclesiastical Courts in the Early American Republic

S. Spencer Wells has published Disciplining Conscience: Judging Ecclesiastical Courts in the Early American Republic in the Yale Journal of Law and the Humanities:

American Protestants during the Second Great Awakening participated in one of the largest experiments in lay judging the nation has ever seen. It was not initiated among the countless (initially property-owning) white men sitting on local juries—but amidst those determining the social and spiritual fate of fellow church members accused of wrongdoing within local congregations. In a republic lurching towards official disestablishment of church and state, questions concerning the rights of lay members to judge others’—and their own—potential relationships with the church continually bubbled to the surface. Did lay members retain authority to visit possible offenders within the home, in an effort to reclaim them before initiating a church trial which might possibly endanger their membership? Were witnesses of such trials duty-bound to speak on behalf of those brought up on charges? When confronted with the dread sentence of excommunication, who held the final power to judge the state of one’s relationship to the church, or even to God? The body as a whole, or those threatened with discipline? Such internal struggles often revolved around questions of biblical procedure and due-process, defined as a legitimate form of law in the eyes of ministers and members alike. In a world where believers espoused the “right of private judgment” as their Protestant birthright over and against the church, controversy inevitably arose in the conflicts that followed.

--Dan Ernst 

Oman on Nauvoo's 1841 Religious Freedom Ordinance

Nathan B. Oman, William & Mary Law School, has posted "All Other Religious Sects Shall Have Free Toleration": Recovering the Early Mormon Conception of Religious Freedom, which is forthcoming in the Journal of Mormon History:

Credit: BYU

On March 1, 1841, the City Council of the Mormon city of Nauvoo, Illinois adopted “An Ordinance in Relation to Religious Societies,” declaring that “all other religious sects, and denominations, whatever, shall have free toleration, and equal privileges.” The ordinance is frequently cited by Latter-day Saints to illustrate their long-standing commitment to religious freedom and toleration.  Despite these uses, however, there has been little effort to understand the Ordinance within its historical context.  When we examine the history and use of the Ordinance in the 1840s, a more complex picture emerges. The Ordinance in Relation to Religious Societies represented a particular conception of religious freedom forged out of the Latter-day Saint persecutions of the 1830s and an antebellum American legal system struggling to make sense of religious freedom in a new world defined by disestablishment.  This article seeks to recover that conception of religious freedom and its place in early Latter-day Saint history.  It also reveals how an idea – religious freedom – associated with contemporary liberalism operated in an earlier legal regime where liberal conceptions of individuals rights had not wholly triumphed and freedom was understood primarily as a product of a well-ordered society. The approach embodied in the Ordinance thus reveals a conception of religious freedom perched awkwardly between a pre-disestablishment legal regime based on the confident assertion of government’s right to regulate and support religion, and the emerging liberal order in the United States that would eventually come to focus on the individual assertion of rights against the government vindicated through the courts.  Aside from its interest to students of Mormon history, studying the Ordinance in Relation to Religious Societies provides a window into an important but under-studied period in the legal history of religious freedom in the United States. 

--Dan Ernst 

Wieboldt on Catholic Legal Thought and First Amendment Originalism

Dennis J Wieboldt, III, a JD-PhD candidate at Notre Dame, has published ‘But the original intent of the Constitution would be restored’: Catholic legal thought and the emergence of First Amendment originalism, 1947-87, online and open access in the American Journal of Legal History:

Several scholars of twentieth-century American legal history have recently argued that originalism—a method of constitutional interpretation commonly associated with the conservative legal movement—first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the US Supreme Court’s 1954 decision in Brown v Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation’s legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbours that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court’s 1947 decision in Everson v Board of Education would not stymie the American Catholic Church’s efforts to obtain public financial assistance for parochial schools.

In encouraging jurists, scholars, and voters to understand the First Amendment’s Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism’s decisive (re)shaping of the Religion Clauses during the next half-century. But this ultimately proved troubling to some as the conservative legal movement became ascendant in the 1980s. From the perspective of these critics of First Amendment originalism, God’s natural law, not Thomas Jefferson’s metaphorical ‘wall of separation’ between church and state, should determine the First Amendment’s meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism pragmatically to vindicate their background philosophical and theological conceptions of religious liberty, but increasingly came to realize that originalism—to the extent that it relied on positivist assumptions about the nature of individual rights—was alone inadequate to do so.

--Dan Ernst 

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

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

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

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

--Dan Ernst 

Schonthal's "Courts, Constitutions and Karma"

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

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

--Dan Ernst 

The Witte Backlist

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

--Dan Ernst 

Christensen-Nugues on Forced Marriages and the Apostolic Penitentiary

Charlotte Christensen-Nugues, Lund University, has published, open-access,  Consent and Coercion: Forced Marriages in Supplications to the Apostolic Penitentiary, 1484-92, in the Journal of Medieval History:

In the late Middle Ages, hundreds of Christians from all over Europe sent supplications to the Papal Curia to be freed from promises made under duress. This article analyses the supplications about forced marriages that were submitted to the Apostolic Penitentiary during the pontificate of Pope Innocent VIII (1484–92). The study is based on mainly unedited source material that has not been investigated before. The article examines who turned to the Penitentiary for annulment because of force (age, gender, and social status), who was designated as the compelling party, and, finally, what kind of coercion the petitioners had been subjected to. Particular focus is given to the narrative strategies of the petitioners and how their stories relate to legal theory and cultural norms in late medieval society.

--Dan Ernst 

Notre Dame Graduate Legal History Colloquium

We have word that the Notre Dame Graduate Legal History Colloquium will reconvene on March 7, 2026, from 10 AM to 3 PM on the Notre Dame Law School campuses in South Bend, Indiana, and Chicago, Illinois. The organizers write that "All students and faculty, regardless of institutional affiliation, are welcome," that all "presenters and attendees will receive complimentary lunch and refreshments," and that virtual opportunities to participate will be available for those unable to attend in-person.  

Those wishing to attend should register here, a form that reproduces the schedule for March 7 at right.  More information about the Colloquium can be learned here or via email to Dennis Wieboldt at dwiebold@nd.edu. 

--Dan Ernst

Weekend Roundup

• A historian's' amicus brief, sponsored by the Brennan Center for Justice, has been filed in United States v. Hemani, "a constitutional challenge to a federal statute prohibiting any individual who 'is an unlawful user of or addicted to any controlled substance' from possessing a firearm." The signatories are Holly Brewer, Saul Cornell, Brian DeLay, Randolph Roth, Simon Stern, Stephen Taylor, and William Treanor.  

• The life and legacy of John Hope Franklin, an episode of the radio program, Black America (KUT).

• A recording of that Federalist Society panel on originalism and birthright citizenship, including Kurt Lash, Amanda Frost, and Keith Whittington, is here.   

• The John Carter Brown Library, Brown University, seeks a research associate to "undertake directed research and produce public-facing and scholarly work on histories and legacies of religions and freedom in the early Americas with an emphasis on the eighteenth century." 

• Jessica Lake will discuss her book, Special Damage: The Slander of Women and the Gendered History of Defamation Law at UVA Law on Tuesday, February 10, 2026, from 5-6 p.m.  

• The schedule has been announced for that symposium at Boston College on February 20 to honor the life and work of the late  Ken Kersch.   

• In memoriam: Daniel Walker Howe (UCLA).

• Lady Margaret Hall's notice of the ASLH and Cromwell Foundations award of its William Nelson Cromwell Article Prize to Grace Mallon.

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

• 
  The Merced County [CA] Historical Society has released its book, Old Courthouse: 150 Years, 150 Stories (Merced Sun-Star). 

• "Talbot Publishing, an imprint of The Lawbook Exchange, Ltd., is pleased to announce the publication of M.H. Hoeflich and John Moreland’s Little Law Books."

• Alex Wellerstein discusses his new book, The Most Awful Responsibility: Truman and the Secret Struggle for Control of the Atomic Age (LGM Podcast). 

• The finalists for the African American Intellectual History Society's Pauli Murray Book Prize in Black Intellectual History (Black Perspectives).

• Gregory P. Downs and Kate Masur on "Jan. 6 and the Long Shadow of Civil War- and Reconstruction-Era Political Violence" (Talking Points Memo).

• ICYMI: Jack Rakove on what’s wrong with The American Revolution by Ken Burns (Washington Monthly).  Anna O. Law on birthright citizenship, in an interview heralding her book (The Redoubt).  Max Skjönsberg on Maitland, Smith, and Laissez-Faire (Law and Liberty).  Ilya Somin on Chief Justice Roberts on the Declaration of Independence (Volokh Conspiracy). A Timeline of Divorce in America (History).

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

ASLH/Notre Dame Graduate Legal History Colloquium

[We have the schedule for the ASLH/Notre Dame Graduate Legal History Colloquium to be held on February 7, 2026, from 10 AM - 4 PM (EST) at the Notre Dame Law School in South Bend, Indiana.  Here is the registration form.  DRE]

9:45 - 10:05 AM  Registration/Welcome 

10:05 - 11:00 AM  Paper #1: Early American Constitutional Interpretation

"Codes and Constitutions in McCulloch v. Maryland”

Author: Benjamin Keener, University of Pennsylvania
Respondent: Jeffrey A. Pojanowski, Notre Dame Law School 

11:05 - 12:00 PM  Paper #2: Legal and Religious Constitutions at the Founding        

"Reverend Founding Fathers: The Presbyterian Church Constitution, 1776-1837"

Author: Mintae Cha, University of Notre Dame
Respondent: Richard W. Garnett, Notre Dame Law School

12:05 - 1:00 PM  Afternoon Break (Lunch)

1:05 - 2:00 PM  Paper #3: The Early American Jury                       

"Government By Jury"

Author: Nathaniel Donahue, New York University
Respondent: Christian R. Burset, Notre Dame Law School

2:05 - 3:00 PM  Paper #4: Administration at the Founding

"Reframing the Decision of 1789: The Independence of Officeholders from their Official Superiors"

Author: Tingfeng Yan, University of Chicago
Respondent: Emily S. Bremer, Notre Dame Law School

3:05 - 4:00 PM  Paper #5: History and the Anti-Federalists                    

"'Time Only Can Determine': The Role of History in the Writings of the Anti-Federalists"

Author: Matthew Levine, Stanford University
Respondent: Katlyn Marie Carter, University of Notre Dame

Danaher, "The Second Amendment's Catholic Problem"

The Duke Law Journal has published a Note of interest, on "The Second Amendment's Catholic Problem." It is by J.D. candidate Jared Danaher. Here's the abstract:

After New York State Rifle & Pistol Association v. Bruen, history is the touchstone of Second Amendment analysis. Thus, this Note explores an understudied part of America’s long and complicated history with weapons: Catholic disarmament. By undertaking a detailed historical analysis of three Catholic disarmament measures in the late colonial United States, this Note attempts to determine what the history means for present day firearms law. It concludes that even though courts frequently cite America’s history of Catholic disarmament, they rarely use it in a historically accurate way. Modern courts use Catholic disarmament to justify weapons bans on people the state considers dangerous or disrespectful to its laws, but those uses are out of step with the history. The historical analysis in this Note demonstrates that Catholic disarmament laws were narrow measures that targeted a particularly suspect group during a time of national emergency. The history of Catholic disarmament can only justify modern laws based on similar principles of “immediate distrust” (a term this Note coins).

But the journey toward this conclusion reveals as much as the conclusion itself. By faithfully applying the rules laid down in Bruen and United States v. Rahimi, this Note exposes the limits of their historically focused test. On the path to developing the “immediate distrust” principle, this Note exposes historically erroneous claims courts make, illuminates the difficulty of scouring the historical record, and explores the challenges raised by tying modern regulation to context-bound historical episodes. 

Read on here.

-- Karen Tani 

Forsyth on Excommunication and the Elizabethan Campaign against Ecclesiastical Courts

Adam B. Forsyth, a doctoral candidate in history at the University of Cambridge, has published England’s Erastus? Or, James Morice and the Law of Excommunication in The Historical Journal:

The Elizabethan reign has lately emerged as a formative period for English ideas about the liberties of the subject and the ‘ancient constitution’ of the realm. Recent work has described the development of such ideas as having been driven by an organized campaign against the English ecclesiastical courts: a legal and intellectual effort that had emerged from the misgivings of certain ‘puritan’ lawyers about the powers claimed by new prerogative jurisdictions. The primary grievance of the campaign has been identified as having been the church courts’ use of the oath ex officio, and the campaign’s primary defensive tool has been identified as having been the twenty-ninth chapter of Magna Carta. But overlooked manuscripts reveal a more complex story. This article shows that the law of excommunication was as important to the campaign in question as Magna Carta. In addition, a re-examination of the life and work of James Morice, one of the principal lawyers responsible for the campaign, demonstrates that the law of excommunication deeply structured his understanding of the royal supremacy, and of the legal relationship between England’s secular and ecclesiastical polities – particularly as they had existed in the distant medieval past.

--Dan Ernst 

Evolution on the Stand: Revisiting the Scopes Trial at 100

[From Ryan Greenwood, Curator of Rare Books and Special Collections, we have word of a new digital exhibit at the University of Minnesota Law Library.  DRE]

“Evolution on the Stand: Revisiting the Scopes Trial at 100” 

The new digital exhibit commemorates the centennial anniversary of one of America’s most storied courtroom dramas, The State of Tennessee v. John Thomas Scopes. The 1925 trial of John Scopes, accused of violating a Tennessee law prohibiting the teaching of evolution, became a national sensation and the focal point of a public debate over the roles of science and religion in public education. The digital exhibit highlights the Library’s preeminent collection of famed defense attorney Clarence Darrow’s letters, publications, photographs, and trial materials, preserving and building on a physical exhibit open in the Riesenfeld Rare Books Center throughout 2025. The new digital site adds to and expands the digital research sites and exhibits available as part of the Library's digital special collections. 

The Scopes Trial digital exhibit features a trove of material drawn from the Riesenfeld Center's collections, including letters, original trial documents, witness statements, inscribed books, speeches, and debates. The exhibit includes daily trial summaries and transcripts, and sets the trial within a longer history of evolutionary thought and debate on the roles of science and religion in American public education.

Siddiqui's "Islamic Law on Trial"

Sohaira Siddiqui, Georgetown University, has published Islamic Law on Trial: Contesting Colonial Power in British India (University of California Press, 2025):

Prior to the East India Company’s establishment in India in 1661, Islamic law was widely applied by the Mughal Empire. But as the Company’s power grew, it established a court system intended to limit Islamic law. Following the Great Rebellion of 1857, the decentralized Islamic legal system was replaced with a new standardized system. Islamic Law on Trial interrogates the project of juridical colonization and demonstrates that alongside—and despite—the violent displacement of Muslim legal sovereignty, Muslims were able to engage with and even champion Islamic law from inside the colonial judiciary. The outcome of their work was a paradoxical legal terrain that appeared legitimate to both Muslim practitioners and English colonizers. Sohaira Siddiqui challenges long-standing assumptions about Islamic law under British rule, the ways in which colonial power displaced preexisting traditions, and how local Muslim elites navigated the new institutions imposed upon them.

Georgetown University Qatar's notice of the book is here. 

 --Dan Ernst

Treanor and Uelman on Religious Freedom, Jesuit Mission, and DEI

William Michael Treanor and Amy Uelmen, Georgetown University Law Center, have posted Religious Freedom, Jesuit Mission, and DEI, which is forthcoming in a special issue of the Jesuit Educational Quarterly entitled "Legal Education and the Society of Jesus."

The ability of Jesuit educational institutions to pursue a central part of their mission that of fostering diverse, equitable and inclusive educational environments is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work of Alexis de Tocqueville, Democracy in America, this essay highlights the important role that Jesuit universities play in protecting liberty and democracy. Third, a Jesuit university's control of its curriculum and admissions practices are protected by well-established First Amendment principles, including freedom of religion. In addition, the First Amendment principle of religious freedom also protects Jesuit universities' ability to have race-conscious programs of student support that advance the Jesuit pedagogic mission. The final section of this essay describes some of the curricular and co-curricular innovations and programmatic offerings at Georgetown University Law Center to illustrate how a Jesuit Law School might advance the Jesuit mission of creating an inclusive environment that supports reflective practices and the free exchange of ideas across differences. 

--Dan Ernst