Wood and Gerber on the Supreme Court and the Uses of History
We have previously noted Professor Gordon S. Wood’s visit to Ohio Northern last March. Now ONU’s Scott D. Gerber has posted his debate with Professor Wood on The Supreme Court and the Uses of History, which also appears in the Ohio North University Law Review 39 (2013).
Kent on The New Originalism and the Foreign Affairs Constitution
Andrew Kent, Fordham University School of Law, has posted The New Originalism and the Foreign Affairs Constitution, which is forthcoming in volume 82 of the Fordham Law Review. Here is the abstract:
This symposium essay addresses how the new originalism – focused on the objective semantic meaning that the Constitution’s text would have had to hypothetical members of the adopting generation – grapples with particular interpretive issues raised in the constitutional foreign affairs area. I first suggest that new originalism struggles with background norms of the common law or the law of nations which were understood by some members of the Founding generation to implicitly qualify or restrict parts of the constitutional text. This issue is omnipresent in foreign affairs law because courts, executive officials, and other interpreters must decide whether the boundaries of the Constitution’s broadly written protections for life, liberty, and property extend to domains such as wartime or extraterritorial activity by the U.S. government, or to persons beyond the paradigm case of U.S. citizens within the United States. The Constitution’s meaning is significantly altered depending on whether unwritten general law is allowed to undercut textually broad rights. Second, I suggest that the exacting textualism practiced by many new originalists might only imperfectly understand certain aspects of the foreign affairs Constitution. This is because some of it was drafted hastily and poorly, certain important topics were not addressed at all, and some Founding-era interpreters understood the foreign affairs portions of the Constitution in a holistic manner focused on purpose and structure, instead of parsing text in the manner of new originalism. This potentially large gap between results reached by new originalism and the expectations and practices of the Founders problematizes new originalism’s claim to be based on the public meaning of the text to the adopting generation.
Pfander reviews Ewald on James Wilson and the Committee of Detail
Over at JOTWELL, James E. Pfander (Northwestern University) is urging readers to check out "The Committee of Detail," a recent article by William Ewald (University of Pennsylvania). The article appeared in Volume 28, no. 2, of Constitutional Commentary (2012). Here are the first two paragraphs of Pfander's review:
We know far too little about James Wilson, the Scottish-born and -educated lawyer who played a central role in framing the Constitution as a delegate from Pennsylvania and later served as Associate Justice of the Supreme Court. Wilson was hounded to an early grave in 1798, after financial reversals landed him in debtor’s prison. That ignominious end seems to have cast a long shadow, obscuring his earlier career as lawyer, judge, and statesman. Happily, however, William Ewald has embarked on an intellectual biography of Wilson that will doubtless do much to restore the reputation of this most nationalist of founding fathers.
One interesting chapter of that biography has just appeared in article form. It focuses, as the title suggests, on the work of the Pennsylvania Convention’s Committee of Detail. Wilson was one of five members of that Committee, named in July 1787 to prepare a draft Constitution that reflected the Convention’s deliberations to that point. Much of what we know about the Committee’s work comes from the text of Wilson’s own drafts of the Constitution. We can watch provisions evolve and take shape as the product of a deliberative process of which we have no other record.Read on here. The Ewald article is available here.
Knapp on "James Wilson and the Birth of American Jurisprudence"
Via the Legal Theory Blog, we have word of an article of interest: "Law's Revolutionary: James Wilson and the Birth of American Jurisprudence," by Aaron T. Knapp (Boston University). It is scheduled to appear in Volume 29 of the Journal of Law and Politics (Fall 2013). Here's the abstract:
This intellectual history of oft-forgotten founder James Wilson contends that as an outgrowth of his peculiar anti-Publian constitutionalism, Wilson’s post-ratification jurisprudence endeavored conceptually to reconcile American Law with the American Revolution in ways that even his ablest commentators have failed to appreciate but which boast a significance in the history of American legal thought that should command the attention of legal and constitutional historians alike. Spanning the period from 1774 to 1798, the Article’s historical analysis of Wilson’s ideas over time complicates prevailing literature on popular sovereignty’s origins and influence in post-Revolutionary America, revises influential scholarship interpreting pre-Marshallian Federalist jurisprudence in the 1790s, and sheds new light on the role of civic virtue in early American constitutional culture.The full article is available here, at SSRN.
New Release: Magliocca, "American Founding Son"
New from New York University Press: Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013). About the book:
John Bingham was the architect of the rebirth of the United States following the Civil War. A leading antislavery lawyer and congressman from Ohio, Bingham wrote the most important part of the Fourteenth Amendment to the Constitution, which guarantees fundamental rights and equality to all Americans. He was also at the center of two of the greatest trials in history, giving the closing argument in the military prosecution of John Wilkes Booth’s co-conspirators for the assassination of Abraham Lincoln and in the impeachment of President Andrew Johnson. And more than any other man, Bingham played the key role in shaping the Union’s policy towards the occupied ex-Confederate States, with consequences that still haunt our politics.American Founding Son provides the most complete portrait yet of this remarkable statesman. Drawing on his personal letters and speeches, the book traces Bingham’s life from his humble roots in Pennsylvania through his career as a leader of the Republican Party. Gerard N. Magliocca argues that Bingham and his congressional colleagues transformed the Constitution that the Founding Fathers created, and did so with the same ingenuity that their forbears used to create a more perfect union in the 1780s. In this book, Magliocca restores Bingham to his rightful place as one of our great leaders.
A few blurbs:
"Gerard Magliocca has done the country a great service by writing the first biography of one of America's most important but under-appreciated statesmen. John Bingham, the father of the Fourteenth Amendment, helped put a guarantee of individual equality into the U.S. Constitution. In this important book, Magliocca tells the fascinating story of a crucial figure in our country's long struggle to establish justice and create a more perfect union." -- Jack M. Balkin
"Gerard Magliocca rescues John Bingham from his moment of fame as the author of the Fourteenth Amendment, and presents a nuanced understanding of his life and thought. An important contribution that provides deep insight into our constitutional tradition." -- Bruce AckermanAs we've mentioned previously, the introduction and first chapter are available here, at SSRN (and also here, at the NYU Press website).
2013 Annual Meeting of the British Group of Early American Historians
Correspondence from Across the Pond
Norwich, UK, September 7, 2013
The 2013 annual meeting of the British Group of Early American Historians (BGEAH) has featured several topics of considerable interest to legal historians. Carla Pestana’s plenary address on Thursday was delivered in the medieval Dragon Hall. Her talk focused on the unsuccessful seventeenth-century attack on Spanish Caribbean islands by Britain. Debates over the validity of plunder under the law of war raged alongside powerful invocations of divine blessing and support on both sides of the fight.
Other papers havetreated the law and practice of surrender, the granting of “peace bonds” by judges in colonial Pennsylvania, and the law of corporations in the early Republic, in addition to presentations on taverns, elite Mohawk culture, silkworms, and more.
BGEAH is a relatively new group. The website records meetings going back to 2000, but others report the first meeting was several years earlier. It is a delightfully collegial, non-hierarchical, and welcoming society (there is no membership fee, for example).
This year's conference includes nine panel sessions, two plenaries, and tonight's conference dinner at the beautiful Sainsbury Centre for the Visual Arts.
Founding member Betty Wood of Cambridge University has worked extensively on slavery and power. She is currently studying relations between servants in the eighteenth-century Chesapeake, and welcomes insight into the law governing conflict between servants, including the practice of “auctioning” off newborn babies born to servant women at town fairs.
Bilder to Lecture on James Madison and Constitutional Compromise
Mary Sarah Bilder, Boston College Law School, will deliver the Constitution Day Lecture for the Clough Center for Constitutional Democracy at Boston College. Her lecture, James Madison and Constitutional Compromise, will take place on Tuesday, September 10, 2013, at 12:00 p.m. at the Barat House, Boston College Law School Lunch will be served, but space is limited, so please RSVP required by September 6 to clough.center@bc.edu.
Tillman on American Originalism and Australian Law
Seth Barrett Tillman has posted a set of PowerPoint slides, Comparative Public Law, Originalism, and Foreign Parliamentary Materials: One American’s Exploration of Australian Judicial and Parliamentary Materials, which he will present in Dublin to the International Commission for the History of Representative and Parliamentary Institutions on September 4, 2013. Here is the abstract:
Historians, political scientists, academic lawyers, litigants, and judges have parsed nearly every article, clause, phrase, and word of the United States Constitution of 1787. Nonetheless, there remain a few “orphan” clauses: obscure provisions and clauses which have escaped significant academic and judicial commentary.
Of course, absent concrete cases and controversies, judges have no substantial opportunity to opine on such provisions. When academics engage these materials, the results are not too pretty. One standard response is to opine that these provisions had no reasonably determinate meaning in 1787 within the American polity, or, even if they once (may have) had such a determinate meaning, we now lack sufficient records to determine their meaning. Another standard trope is to assume that these clauses are redundant (with other clauses whose meaning we know) or to assume aspirational unity with other clauses (again, clauses whose meanings we know).
In this lecture, I will discuss three orphan provisions, including: (i) the Orders, Resolutions, and Votes Clause (U.S. Constitution Article I, Section 7, Clause 3); (ii) the “Propose or Concur with Amendments” language within the Origination Clause (U.S. Constitution Article I, Section 7, Clause 1); and (iii) the diverse language in the Constitution relating to Office and Officer. In regard, to each provision (or related set of provisions), I will explain how the current understanding (or, at least, my understanding) of these provisions has been destabilised (or influenced) by investigating foreign legal – in particular, foreign parliamentary – materials.
Finally, I will opine on why I believe Australian (and Canadian) legal, and especially parliamentary, sources, are likely to prove particularly useful sources in developing early American constitutional and statutory materials.
Maxeiner on Adams, Jefferson and "a Government of Laws"
James R. Maxeiner, University of Baltimore School of Law, has posted Building a Government of Laws: Adams and Jefferson 1776-1779, which is part of the symposium, “Legal Doctrines of the Rule of Law and of the Legal State,” to appear in Ius Gentium (2013). Here is the abstract:
Critics call for rethinking the rule of law. American laws are either too specific or are too readily ignored by judges. The American rule of law, by largely ignoring statute law and focusing on judge-made law and asserting judicial supremacy over statutes, undermines good government. This article contends that the "government of laws, not of men" of John Adams and the complete revision (Revisal) of Virginia laws made by Thomas Jefferson show these two founders thought of law in statute law terms closer to the ideas of a legal state than to the common law rule of law.
Originalism Now: The View from Whittington
Recently we posted on a symposium on originalism in the Jerusalem Review of Legal Studies. Now, via Legal Theory Blog, comes news of the following SSRN post by Princeton's Keith E. Whittington of Originalism: A Critical Introduction, which is forthcoming in the Fordham Law Review:
The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court and the Reagan administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This essay assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and points to the primary points of continuing separation between originalists and their critics.
Originalism Now: The View from Jerusalem
Until the end of 2013, Oxford Journals is granting free access to the Jerusalem Review of Legal Studies. Its current issue includes a symposium on Jack Balkin's Living Originalism. Contributors include two my Georgetown colleagues, Randy E. Barnett and Lawrence B. Solum, as well as Barak Medina,
Weekend Roundup
- From the Atlantic: Geoff Shepard writes about new documents that have surfaced from the "Watergate cover-up trial" and wonders about "justice denied."
- In related news, the Nixon Library has released the final batch of White House tapes and the State Department has released "Foreign Relations, 1969-1976, Volume XXXIII, SALT II, 1972-1980." (Hat tip: History News Network)
- H-Net has begun to migrate to a new platform, H-Net Commons. Read the full announcement here.
- The National Archives has an interesting new blog: Rediscovering Black History. It spotlights documents, photographs and videos that archivists found while updating NARA's black history guide. (Hat tip: H-Net)
- New from the Folio Society: An Expression of the American Mind: Selected Writings of Thomas Jefferson, edited and introduced by R. B. Bernstein.
Balkin, "The New Originalism and the Uses of History"
Jack M. Balkin (Yale Law School) has posted "The New Originalism and the Uses of History." It is forthcoming in the Fordham Law Review. The abstract reads:
Central to the New Originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to figure out the Constitution's original communicative content, while construction builds out doctrines, institutions and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.Read more »
The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.
First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.
Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that non-adoption history is as important as adoption history to constitutional construction.
Hulsebosch on "The Origin and Nature of Colonial Grievances"
No version is available on the web, but be on the lookout for The American Revolution (II): The Origin and Nature of Colonial Grievances, an essay by Daniel J. Hulsebosch, NYU School of Law, forthcoming this year in The Oxford History of the British Empire: The American Colonies in the British Empire, 1607-1776, ed. Stephen Foster. Here is the abstract:
Colonial grievances were not new in July 1776 but rather were as old as the British Empire and a constant feature of imperial governance. The continuous stream of grievances was not, however, evidence that “the spirit of the colonies demanded freedom from the beginning.” Paradoxically, grievances helped make the Empire work. They facilitated imperial development for two reasons. First, people lodging grievances could rely on a communication network for processing them, a system that helped integrate the many different subjects and places in the empire. Second, from the colonial perspective, the imperial grievance system had a safety valve: war. When the empire was at war, metropolitan policy-makers and local governors were more willing to compromise with provincial interests and acceded to claims that had been or threatened to become the source of grievances. The two together – the imperial grievance system and the leverage enjoyed by colonists during war – generated the sense throughout North America that the imperial constitution was a flexible set of institutions responsive to provincial claims and yet also efficient enough to facilitate common projects, like carrying out transatlantic commerce and waging war. The imperial constitution, with the grievance system at its core, provided the possibility for change that is essential to any workable constitution.
By the middle of the 1770s, however, the grievance network no longer performed effectively. A system that for over a century helped bind the North American colonies to the empire suddenly, after an unusually long and stable period of peace, fragmented and became an instrument of rebellion. Only then, in the Declaration of Independence, were the many and sometimes inconsistent colonial grievances compiled into a “history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” These grievances were irremediable and flowed outside the imperial constitution. The genre to which they now belonged was the international declaration of war.
Boston, 1767
Knapp on Benjamin Austin
Aaron T. Knapp, Boston University History, has posted Law's Revolution: Benjamin Austin and the Spirit of '86, which appeared in Yale Journal of Law and the Humanities 25 (2013): 271-358. Here is the abstract:
In the spring of 1786, a series of newspaper essays appeared in Boston arguing that lawyers and the laws on which they relied posed a mortal threat to the republican way of life and therefore had to be eradicated forever. Authored by Benjamin Austin, Jr. under the pseudonym "Honestus," these writings sparked a substantial public dialogue extending far beyond Massachusetts’s borders and, within the Bay State, prompted the Shaysites to wage what one historian has called "the American Revolution’s final battle." The commonly held notion that the obstreperous spirit of 1786 reflected a "crisis" requiring redress, and that ratification of the Constitution thereafter resolved it, temps us to consign Critical Period radicals such as Benjamin Austin to the losing side of history. The Article pursues a contrary interpretation. It views Austin and his partisans in 1786 as seminal figures in the birth of an independent American legal culture. It traces overlooked strains of this post-Revolutionary legal culture from the Founding to the Civil War and, in the process, unsettles foundational assumptions long held dear by American legal historians.
Dorn on "In Custodia Legis"
How Robin Hood Defied King John and Brought Magna Carta to Sherwood Forest
The True Portraiture of Judge Littleton
The World’s Legal Heritage in Great Subterranean Halls, or… A Collection Big with Babylonian Perspective
John Lilburne, Oaths and the Cruel Trilemma
Law Librarians and Immortal Glory
Doodling Away the Middle Ages
Signatures, Subscription Lists and Printing for the First U.S. Congress
From Magna Carta on Trial to the Holy Experiment
Pomp, Ceremony and the Simplicity Befitting a Republic
On Despising English Liberties and Other Wisdom from the Founders
Dutch New York and the Law
Just out from SUNY Press is the collection of essays, Opening Statements: Law, Jurisprudence, and the Legacy of Dutch New York, edited by Albert M. and Julia C. Rosenblatt.
No society can function without laws, that set of established practices and expectations that guide the way people get along with one another and relate to ruling authorities. Although much has been written about the English roots of American law and jurisprudence, little attention has been paid until recently to the legacy left by the Dutch. In Opening Statements, a broad spectrum of eminent scholars examine the legal heritage that New Netherland bequeathed to New York in the seventeenth century. Even after the transfer of the colony to England placed New York under English Common Law rather than Dutch Roman Law, the Dutch system of jurisprudence continued to influence evolving American concepts of governance, liberty, women’s rights, and religious freedom in ways that still resonate in today’s legal culture.
The TOC after the jump.Read more »
Irving on Constitutional Interpretation and the Discipline of History
Helen Irving, University of Sydney Law, has posted Constitutional Interpretation and the Discipline of History, Federal Law Review 41 (2013). Here is the abstract:
The use of history in constitutional interpretation is widespread. It is defended by scholars and practiced by judges, both in Australia and, in particular, the United States; it also attracts many critics. Originalism, (as this practice has come to be known), comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. What originalists and critics alike rarely consider is whether, and if so, how it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: If history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?Hat tip: Legal Theory Blog
This paper explores what conventional historians do, (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism, but concludes that history should be used in constitutional interpretation only with great care and only rarely.
June 2013 Issue of Reviews in American History
The June 2013 issue of Reviews in American History is out. Although full text is limited to subscribers, we'll spotlight some items of interest:
The Constitution Goes Public: Politics and the Ratification Debate -- Todd Estes (Oakland University) reviews Jürgen Heideking, The Constitution before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787–1791 (John P. Kaminski and Richard Leffler, eds.) (University of Virginia Press, 2012).
The Inventor’s Dilemma—The Confederate Version -- William G. Thomas (University of Nebraska, Lincoln) reviews H. Jackson Knight, Confederate Invention: The Story of the Confederate States Patent Office and Its Inventors (Louisiana State University Press).Social Reform through Social Exclusion --Thomas J. Humphrey (Cleveland State University) reviews Craig Calhoun, The Roots of Radicalism: Tradition, The Public Sphere, and Early Nineteenth-Century Social Movements (University of Chicago Press, 2012) and Michele Lise Tarter and Richard Bell, eds., Buried Lives: Incarcerated in Early America (University of Georgia Press, 2012).Officers sans Army -- Erik S. Gellman (Roosevelt University) reviews Shawn Leigh Alexander, An Army of Lions: The Civil Rights Struggle Before the NAACP (Pennsylvania University Press, 2012).
The Many Faces of Judicial Independence -- Charles Zelden (Nova Southeastern University) reviews Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard University Press, 2012).
