Weekend Roundup

• Virginia Law Weekly has published a report of “Originalism 101,” a conversation between Lawrence Solum and Charles Barzun on "the origins of originalism, its variations, its merits and flaws, and its impact on judicial decision-making."  
  

• The Harvard Crimson puts fifteen questions to former ASLH president Bruce Mann.

• Over at JOTWELL, Sara Mayeux (Vanderbilt Law) has posted an admiring review of Sean Vanatta's Plastic Capitalism: Banks, Credit Cards, and the End of Financial Control (2024).
  

• Deafness in the Divorce Court, a blog post from Northumbria University, is about the 1876 divorce case involving a "deaf and dumb" couple, the husband of which engaged in physical violence.
  

• Isabel Taylor, Head of Archival Core Functions at the University of Hamburg Archives, has a long post up on the blog of the UK Constitutional Law Association, entitled, Not So Arcane After All: Archives and the Battle for "Ancient Freedoms" in the Stuart Permanent State of Emergency.
  

• Harry F. Byrd's gift to America, Constitution Day, just keeps giving.  First up: Michael Waldman, President and CEO of the Brennan Center for Justice, will deliver The Supreme Court and American Democracy, the Constitution Day lecture in Room 101 of the Beverly Rogers Literature and Law Building at the University of Nevada, Las Vegas, on September 17 from 4:30 pm to 6 pm.
  

• On September 17, the Lower Manhattan Historical Association, cultureNOW, and the United States District Court for the District of New York  will host an event in the Ceremonial Courtroom at the Daniel Patrick Moynihan United States Courthouse from 5 p.m. to 7 p.m., with Kevin Arlyck, Georgetown Law; The Honorable Judge P. Kevin Castel, U.S. District Court for the Southern District of New York; Seth Kaller, Historical Documents & Legacy Collections; and James von Klemperer, FAIA, President Kohn Pedersen Fox Associates.  RSVP here. 

• The Supreme Court Historical Society's Constitution Day lecture is a virtual event: At 12:00 PM (EST) on September 17, 2024, via Zoom, Judge Jon O. Newman and Professor Marin K. Levy speak on their new book, Written and Unwritten: The Rules, Internal Procedures and Customs of the United States Courts of Appeals.  You may register here.  A recording will be posted to YouTube after the event.
  

• Securities law gets in on the act on at Case Western Law when Adam C. Pritchard and Robert B. Thompson discuss their book, A History of Securities Law in the Supreme Court, on September 17 from 4:30 to 5:30 p.m. in the School of Law’s Moot Courtroom (Room A59).
  
  
• Michael E. Woods, The Papers of Andrew Jackson at the University of Tennessee, and Reeve Huston, Duke University, will discuss “The Election of 1824 and the History of Contested Presidential Elections,” as a Constitution Day commemoration at the Virginia Military Institute on Thursday, September 19, at 8 p.m. in Marshall Hall’s Gillis Theater (News-Gazette).
  

• 
   On October 9, the Supreme Court Historical Society will hold a virtual lecture Visiting the Supreme Court Building: A Discussion with the Court’s Curator, Matthew Hofstedt, and Deputy Curator, Nikki Peronace.  Before the discussion, Clare Cushman will introduce viewers to the Society’s newest publication, An Illustrated Guide to the Supreme Court.
  

• The Organization of American Historians is circulating the amicus brief it joined in United States v.  Skrmetti.  In the brief, "well-recognized scholarly historical organizations and academic scholars and historians whose many decades of study and research focus on the history of gender, sexuality, and medicine . . .  aim to provide the Court with accurate historical perspective as it considers the question of whether Tennessee Senate Bill 1, prohibiting all medical treatments intended to allow 'a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex" or to treat 'purported discomfort or distress from a discordance between the minor’s sex and asserted identity.'” The amicus brief of William Eskridge, Jr., Steven Calabresi, Naomi Cahn, Alexander Volokh et al. is here; the "Yale philosopher’s" brief, here. 
  

• The Rise and Fall of Treason in English History, by Allen Boyer and Mark Nicholls, was the sbject of an interview in the summer 2024 issue of The Historian, Issue 162 (Summer 2024),  In addition, former BBC Wales newsman Phil Parry interviewed Boyer about the Welsh aspects of the English law of treason (History Boys).
  

• A notice of Alison LaCroix's Interbellum Constitution  in the Cook Country Record.
  

• Penn's Omnia magazine has published a nice write-up on Sarah Gronningsater's The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (2024).
  

•  Michael Hayes, a Kansas City lawyer with a Ph,D. in philosophy, reviews Aziz Rana's Constitutional Bind on Public Discourse, the blog of the John Witherspoon Institute. 
  

• ICYMI: Queer Justice: 50 Years of Lambda Legal and LGBTQ+ Rights, a traveling exhibit debuted in Dallas at the Resource Center on September 6 (Dallas Observer).  The Robert H. Jackson Center has its first program director, Elizabeth Hosier (Post-Journal).  The Robert David Lion Gardiner Foundation recognizes the Honorable Peter Fox Cohalan for his contributions to the Historical Society of the New York Courts’ online County Legal History Project (TBR Newsmedia).
  

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

Conley on Originalism and Comparative Law

Anna Conley, University of Montana Alexander Blewett III School of Law, has posted The Inevitability of Adaptability: Comparative Contributions to Understanding Originalism, which is forthcoming in the Emory International Law Review:

What can comparative law teach us about originalism as a constitutional interpretation method? After synthesizing existing comparative analyses, this article seeks to redefine comparative law’s role in understanding originalism. When defining originalism strictly to require adherence to fixed original meaning, originalism is not used by courts anywhere in the world. Instead, courts use history purposively to understand the intent behind constitutional text as one of many methods of interpretation. Comparative works suggest historical constitutional interpretation has a complex relationship with rights, politics and culture.

Comparative law can provide not only descriptive understandings of originalism but also interrogate its mandate that present-day judges adhere to fixed historical definitions of constitutional provisions. This article challenges originalism’s normative mandates by proposing principles about the movement of law between and within legal systems gleaned from comparative law. Two proposed principles are: (1) the “interpretive valve principle” that legal systems need mechanisms to adapt to societal changes, and that legal systems will generally work around artificial barriers to interpretive valves; and (2) the “legal transplant principle” that legal transplants always change from their origin system to the receiving system. Islamic law’s development throughout the Islamic diaspora, Europe’s reception of Roman law, and post-colonial common law systems’ integration of English law highlight these fundamental tenets.

This article applies these principles to equitable originalism, a strict originalist philosophy fixing the meaning of “equity” in Article III to English chancery courts’ equitable powers in the 1780s, and limiting federal judges’ equitable powers to that fixed meaning. Equitable originalism is an artificial barrier to equity, which is an interpretive valve in the U.S. legal system. This dispositive freezing of equity is seen in no other former British colony, and stymies development of equity’s inherent corrective function. Equitable originalism will likely face limited success as a sustainable constitutional interpretation method because it is anomalous to the way law moves and develops.

--Dan Ernst

Gienapp's "Against Constitutional Originalism"

Jonathan Gienapp, Stanford University, has published Against Constitutional Originalism: A Historical Critique, in the Yale Law Library Series in Legal History and Reference 

Constitutional originalism stakes law to history. The theory’s core tenet—that the U.S. Constitution should be interpreted according to its original meaning—has us decide questions of modern constitutional law by consulting the distant constitutional past. Yet originalist engagement with history is often deeply problematic. And now that a majority of justices on the U.S. Supreme Court champion originalism, the task of scrutinizing originalists’ use and abuse of history has never been more urgent.
 
In this comprehensive and novel critique of originalism, Jonathan Gienapp targets originalists’ unspoken assumptions about the Constitution and its history. Originalists are committed to recovering the Constitution laid down at the American Founding, yet they often assume that the Constitution is fundamentally modern. Rather than recovering the original Constitution, they project their own understandings onto it, assuming that eighteenth-century constitutional thinking was no different than their own. They take for granted what it meant to write a constitution down, what law was, how it worked, and where it came from, and how a constitution’s meaning was fixed. In the process, they erase the Constitution that eighteenth-century Americans in fact created. By understanding how originalism fails, we can better understand the Constitution that we have.

--Dan Ernst

Weekend Roundup

• A recording of that OAH Webinar with Professors Holly Brewer, Michael Klarman, and Donna Schuele on The Supreme Court in Historical Perspective is now available.
  

• John Witte, Emory University, will deliver The Great Awakenings of American Religious Freedom: Evaluating the Latest Supreme Court Teachings as the True Family Lecture at Notre Dame University on Wednesday, September 4, 2024, 12:30 pm - 1:30 pm.
  

• A notice of Hendrik Hartog's  Nobody’s Boy and His Pals (Princeton Alumni Weekly).
  

• From Nursing Clio, Jakob Burnham (University of North Texas) on "Domestic Violence between Lived Realities and Colonial Meanings."

• It is paywalled, but Noah Feldman's review of Aziz Rana's The Constitutional Bind is in the Chronicle of Higher Education. 
  

• The Historians Project of the Brennan Center for Justice has filed a brief by Alex Keyssar, Carol Anderson, J. Morgan Kousser, and Orville Vernon Burton in Nairne v. Landry, a voting rights case.  
  

• “Penn History Department launches political history concentration for undergraduate majors”–which was “was spearheaded by assistant History professor Sarah Gronningsater and History professor Brent Cebul” (Daily Pennsylvanian).
  

• The American Historical Association is sponsoring a Congressional Briefing on American military alliances on Wednesday, September 11 at 9:00 a.m. ET in Rayburn House Office Building Room 2045.  The panelists are Renata Keller (University of Nevada, Reno), Jeremi Suri (University of Texas, Austin), and Colleen Woods (Univ. of Maryland, College Park).
  

• The University of Houston Law Center announces the hiring of, among others, Andrew Lanham, a Ph.D. candidate at Yale University and "a legal historian who studies how social protest movements have reshaped civil rights and civil liberties law in the United States."

• The Library of Congress has announced an in person and online "Constitution Day event" on September 11 at 3 p.m. EDT in the Library’s Jefferson Building, room LJ119. "This event will feature Yale Law School’s Sterling Professor of Law Robert Post in an interview with the Dean of the Georgetown University Law Center William Treanor."

• Retired New York Court of Appeals Associate Judge Albert M. Rosenblatt has been designated the historian of New York State's Unified Court System in which capacity he will liaise with the Historical Society of the New York Courts (New York Law Journal).
  

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

Parrillo on Nondelegation and the Embargo Act of 1794

Nicholas R. Parrillo, Yale Law School, has posted Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794, which appears in the University of Pennsylvania Law Review 172 (2024): 1803-1843:

Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs.  There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs.  This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess.  This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport.

An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it.  Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide.  In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head.  Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic.  The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce.  And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize. 

--Dan Ernst

Ambrose on Gunmaking at the Founding

Graham Ambrose, a recent graduate of the Stanford Law School, has posted his note, Gunmaking at the Founding, which is forthcoming in the Stanford Law Review:

Homemade guns are being used in a growing number of crimes across the United States, creating what gun control organizations describe as the fastest-growing threat to public safety in America. States and the federal government are cracking down. New laws criminalize gunmaking without a license, prohibit the sale or transfer of homemade guns, and even ban some forms of gunmaking altogether.

But the constitutionality of these regulations is uncertain. After the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association, Inc. v. Bruen (2022), courts have begun to invalidate rules that are not “consistent with this Nation’s historical tradition of firearm regulation.” Constitutional challenges to new gunmaking regulations have already created court splits on a pair of key questions commanded by Bruen: Does the plain text of the Second Amendment cover a right to manufacture firearms? Are modern restrictions on gunmaking consistent with this country’s historical tradition of firearm regulation?

This Note begins to answer these questions by recounting the history of gunmaking practices and regulations at the Founding. It uncovers evidence that the Second Amendment as originally understood did not cover gunmaking and that, in any event, early Americans regulated gunmaking extensively. In light of this history, Bruen should permit reasonable modern regulations. This case study makes two methodological arguments relevant to Second Amendment jurisprudence. First, non-statutory sources of law should play a role in illuminating original constitutional meaning. Second, after United States v. Rahimi (2024), modern regulations may be upheld by legal principles that emerge from disparate bodies of law.

--Dan Ernst

Schafer on the Meaning of Press Freedom at the Founding

Matthew Schafer (Fordham University School of Law) has posted "'The Press': A Response to Professor Volokh." The abstract:

For more than a decade, Professor Eugene Volokh’s article—Freedom For The Press As An Industry, Or For The Press As A Technology? From The Framing To Today—has been recognized as the authoritative work on the meaning of press freedom at the Founding. In it, Volokh argued that the Press Clause’s reference to “the Press” meant the printing press as a technology rather than as the journalistic enterprise we recognize today. On that basis, he concluded that the Founding generation understood the Press Clause not as providing special rights for the institutional press but as securing every man’s right to use the printing press. Those in favor of a Press Clause that specially protected the press, he said, must look elsewhere than the text or history of that Clause. 

This Article calls Volokh’s into doubt. By examining his sources and reasoning, I show how he misunderstood the historical record and drew conclusions unsupported by it. Specifically, Volokh’s inquiry suffered from three problems: conceptual (defining “the Press” does not define the meaning of the Press Clause at the Founding), evidentiary (too little, too unpersuasive), and methodological (he followed none). I then explain that two premises on which Volokh based his article—that the newspaper industry at the Founding was insignificant and practiced no real journalism—are contrary to the historical record and academic consensus. Contrary to Volokh’s view that press-specific rights are a modern invention, I finally provide examples of them from the Founding era and posit that early Americans recognized such rights because they understood them ultimately to inure to the benefit of the public in the form of the news. The news, in turn, helped secure public liberty. I close by calling on Volokh to revisit his thesis.

Read on here.

-- Karen Tani

Ferguson on Cicero and Early American Law

Jack Ferguson, a law clerk at the U.S. Court of Appeals for the Sixth Circuit, has posted The Ciceronian Origins of American Law and Constitutionalism:

Cicero (NYPL)

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.”  This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism.  There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era.  This Article gives that account.

This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries.  Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law.  As a case study, this Article shows how Cicero contributed to the formation of American judicial review.  Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review.

This Article then considers Cicero’s work on republicanism and constitutionalism.  The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition.

Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive.  As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive.  And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force.

Cicero influenced the Founders’ work in numerous ways.  To the extent their law is ours today, his relevance endures.

Mr. Ferguson cites a classic essay that should be read by anyone interested in the nineteenth-century American legal profession:  Stephen Botein's Cicero as Role Model for Early American Lawyers: A Case Study in Classical “Influence," Classical Journal 73 (1978).

The Gienapp Backlist

Jonathan Gienapp, Stanford University, has posted some of his backlist on SSRN:

Using Beard to Overcome Beardianism: Charles Beard's Forgotten Historicism and the Ideas-Interest Dichotomy, Constitutional Commentary 29 (2014)

Historicism and Holism: Failures of Originalist Translation, Fordham Law Review 84 (2015)

The Foreign Founding: Rights, Fixity, and the Original Constitution, Texas Law Review Online 97 (2019)

The Myth of the Constitutional Given: Enumeration and National Power at the Founding,
American University Law Review Forum 69 (2020)

In Search of Nationhood at the Founding, Fordham Law Review 89 (2021)

Democratic Culture and Democratic Shocks: The Limits of Constitutional Cycles, Missouri Law Review 86 (2021)

Representing the Nation: Gouverneur Morris's Nationalist Constitutionalism, Georgetown Journal of Law & Public Policy 21 (2023)

Removal and the Changing Debate over Executive Power at the Founding, American Journal of Legal History 63 (2023)

--Dan Ernst

George Washington Prize Finalists Announced

The finalists for the $50,000 George Washington Prize for 2024 are (in alphabetical order):

Michael A. Blaakman, Speculation Nation: Land Mania in the Revolutionary American Republic (Philadelphia: University of Pennsylvania Press, 2023)

Ned Blackhawk, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History (New Haven: Yale University Press, 2023)

Cassandra A. Good, First Family: George Washington’s Heirs and the Making of America (Toronto, ON: Hanover Square Press, 2023)

Cynthia A. Kierner, The Tory’s Wife: A Woman and Her Family in Revolutionary America (Charlottesville: University of Virginia Press, 2023)

David Waldstreicher, The Odyssey of Phillis Wheatley: A Poet’s Journeys through American Slavery and Independence (New York: Farrar, Straus, and Giroux, 2023)

--Dan Ernst  H/t: AGR

Leuchtenburg’s "Patriot Presidents"

It is the publication date for William E. Leuchtenburg’s Patriot Presidents: From George Washington to John Quincy Adams (Oxford University Press):

The founding fathers of the United States created a unique institution, the presidency, as they were determined to authorize an effective chief executive but wary of monarchy. They endowed this office with broad prerogatives and power but hedged it in with limitations. The presidency that developed over the next generation, however, was fashioned less by the clauses in the Constitution than by the way that the first presidents responded to challenges such as sectional enmity and the vexing Napoleonic warfare that jeopardized maritime rights.

Patriot Presidents explores how the presidency took shape from the medley of clauses handed down to George Washington, who said, "I walk on untrodden ground," for virtually everything he did created a precedent. It then follows the overwhelming challenges faced by his successors, from the austere John Adams who spoke passionately in favor of a strong executive, to Thomas Jefferson, a zealous advocate of American liberties, to James Madison, the creator of the first political party, and James Monroe, whose Monroe Doctrine protected the sovereignty of the Western Hemisphere. It concludes with John Quincy Adams, who could be called the prophet of the expansive twentieth-century state of the Square Deal, the New Deal, the Fair Deal, and the Great Society.

The esteemed American historian William E. Leuchtenburg invites readers to revisit the years after the birth of the republic, when Americans could take pride in leaders of ideals, high competence, and integrity who headed their government--chief executives who, though not unflawed, had an abiding commitment to the success of the vulnerable government that had emerged from the revolutionary cause to which they had devoted themselves.

–Dan Ernst

Sunday Roundup

• With unfortunate timeliness, the Historical Society of the District of Columbia Circuit has posted the recording of The Road to the Release of John Hinckley, a reenactment of the oral argument and panel discussion on attempted presidential assassination, insanity, commitment and the courts.  
  

• 

  Stephen Pollak (credit)
  

  Consider also viewing, on the DC Circuit Historical Society's website, the memorial service for Stephen J. Pollak, on whom, this.
  

• Aziz Rana on "The Constitution and the American Left" (Dissent).
  

• Kenneth Mack reviews Madiba K. Dennie's The Originalism Trap (WaPo).
  

• "Finding Law in the History of Global Violence: An Interview with Lauren Benton" (Toynbee Prize Foundation).
  

--Dan Ernst

 

Weekend Roundup

• The Brennan Center has posted in its podcast series a recording of "Supreme Fact Check," an event from October 2023,  moderated by Adam Serwer of The Atlantic, in which Karen Tani, Kate Masur, and Laura Edwards discuss the Supreme Court’s use of history (Brennan Center Live). 
  

• 
  Diana B. Henriques will discuss her book, Taming the Street: The Old Guard, the New Deal, and FDR's Fight to Regulate American Capitalism, over the FDR Library’s YouTube and Facebook pages on Wednesday, July 17, at 2pm ET.  I’ve been reading it this summer and appreciating how Henriques' experience as a financial journalist provides a fresh perspective on familiar landmarks of securities regulation in the New Deal.  The chapters on the fall of Richard Whitney are page-turners.  DRE
  

• Holly Brewer says "The Case for Expanding the Supreme Court Has Never Been Stronger" (TNR).
  

• Aziz Rana discusses The Constitutional Bind in The Nation's podcast, American Prestige.  A DSA review of the book is here.
  

• A notice of past-ASLH president Lauren Benton’s They Called It Peace: Worlds of Imperial Violence (Yale News).

• ICYMI:  Kenneth W. Mack on Trump 2025 and the Civil War (NYT).  Richard Re compares the Roberts and Warren Courts (WaPo). Patrick O'Donnell on the fall of Weimar Germany as historical precedent.
  

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

Weekend Roundup

• Over at Balkinization: Reva Siegel (Yale Law School) and Mary Ziegler (UC Davis) on "Moyle and Abortion’s New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs" (recapping findings from a recently posted paper on this topic). 

• Also at Balkinization: an ongoing symposium on Mark Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University Press of Kansas, 2023). So far, you'll see posts by Evan Bernick (Northern Illinois University College of Law), Rebecca Zietlow (University of Toledo College of Law), Alexander Tsesis (Florida State University College of Law), Travis Crum (Washington University in St. Louis Law), Stephen Griffin (Tulane  Law), and Rogers Smith (University of Pennsylvania).
  

• The Brennan Center reviews its Historians' Briefs in the U.S. Supreme Court in the October 2023 term.
  

• 
  The July Newsletter of the Historical Society of the District of Columbia Circuit is here.  It features the 1859 trial of Daniel Sickles.

• The American Historical Association is presenting a Congressional Briefing to provide historical perspectives on the role of the federal government on issues of academic freedom in higher education. The briefing will take place on Thursday, July 11 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  David A. Bell (Princeton Univ.), Natalia Mehlman Petrzela (New School), and David M. Rabban (Univ. of Texas School of Law) will present.  James Grossman (American Historical Association) will moderate.

• This panel on Loper-Bright, convened by Neysun Mahboubi and including Cary Coglianese, Emily Bremer, Bridget Dooling, Michael Herz, and Kristin Hickman, sounds in administrative law,  but I found it extremely helpful and thought-provoking about the history of the subject.  DRE 
  

• ICYMI: Holly Brewer says The Supreme Court Turns the President Into a King  (New Republic).  The Court Went Too Far on Presidential Immunity (Cato Institute). The Supreme Court’s immunity ruling has a chilling parallel to the Jim Crow era (MSNBC). The Dred Scott of Our Time, says Sean Wilentz (NYRB). Alison LaCroix interviewed on a podcast on The Exoneration of Richard Nixon (Landslide).  Heather Cox Richardson weighs in (PBS Newshour).  Georgia in the house at the Founding (Atlanta History Center).  Steven K. Green, Willamette University, How Jefferson and Madison's partnership shaped America's separation of church and state (Akron Legal News).
  

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

Siegel and Ziegler on "Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term"

Reva Siegel (Yale Law School) and Mary Ziegler (UC Davis) have posted "Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term." The abstract:

Since Dobbs v. Jackson Women's Health Organization reversed Roe v. Wade as contrary to the nation's history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before. Cases in the Court's 2023 Term, Moyle v. United States and Food and Drug Administration v. Alliance for Hippocratic Medicine, demonstrate these trends. Under Dobbs, do abortion bans that break with history and tradition in obstructing access to urgently needed health care violate liberty guarantees of state or federal constitutions?

We present evidence that the nation has long had a tradition of exempting health care from criminalization that extended to abortion law and was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. This tradition demarcated quite self-conscious limits on state action that were reiterated across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically understood as a right. We show that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend this account of our law against an originalist reading of Dobbs advanced by Professor Stephen Sachs asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s reading conflicts with important aspects of Glucksberg and Dobbs, misconstrues Dobbs’s reasons for turning to history and tradition, and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. Posing concrete questions of Dobbs illustrates how much of Dobbs has yet to be written, showing the many senses in which, as Justice Barrett writes in Vidal v. Elster, “a rule rendering tradition dispositive is itself a judge-made test.”

The full paper is available here.

-- Karen Tani

AJLH 64:1

American Journal of Legal History 64:1 (March 2024) is now published online.

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States
Angus Harwood Brown

Alexander Hamilton’s Constitutional Jurisprudence and the Bank Bill
Peter Charles Hoffer

Letter Writing and Legal Consciousness during World War I
Elizabeth A Hoffmann

Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England
Nicholas Sinanis

A Turbid River of History and Law: The Procurement of Women in Imperial Japan and Colonial Korea
Marie Seong-Hak Kim

--Dan Ernst

Weekend Roundup

• Justin Simard, Michigan State University Law School, on the Citing Slavery Project (The Conversation).
  

• Giuliana Perrone, UC Santa Barbara, from Juneteenth to Reparations (The Current).
  

• Amy Hart, UC Davis, says historians have a difficult task in guiding Supreme Court justices because 2024 is not 1789 or 1866 (The Conversation).

• Congratulations to Professor John W. Cairns upon his receipt of an honorary doctorate from the University of Glasgow.
  

• The National Constitution Center honors the civil rights lawyer William T. Coleman, Jr., with a bronze bas-relief (WHYY).
  

• A historical marker for Emma Coger, refused a seat at a table of white women on the steamboat S.S. Merrill, despite her first-class ticket, in 1872 (Quincy, IL Herald-Whig).
  

• Sometimes alma mater does the right thing: Annette Gordon-Reed discusses On Juneteenth with the Dartmouth Book Club.
  

• As Vanderbilt Law’s George Barrett Social Justice Lecture, Sara Mayeux and Robert L. Tsai discuss Tsai's Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All (Norton 2024) (YouTube).
  

• Undergraduates can again research slavery cases this summer in the University of Nebraska–Lincoln’s Center for Digital Research in the Humanities, led by Katrina Jagodinsky (Nebraska Today).

• The Lawbook Exchange's June 2024 catalogue of Scholarly Law and Legal History is here.
  

• ICYMI: ACB dissents from (some of the) Brethrens' originalism (CNN; New Republic; Newsweek; Politico; Bloomberg Law).  Trump’s dangerous attacks on rule of law have US historical precedents (Guardian).  Bruen and the Billy-Club Ban (Buckeye Firearms Association).  The history of lobbying (Atlantic).  Lynching in Iowa (Des Moines Register).

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

Schizer and Calabresi's Originalist Analysis of the Wealth Tax

David M. Schizer, Columbia Law School, and Steven G. Calabresi, Northwestern University Pritzker School of Law, have posted Wealth Taxes Under the Constitution: An Originalist Analysis:

A federal wealth tax is high on the wish list of progressive icons like Elizabeth Warren and Bernie Sanders, but is it constitutional? This Article shows that it is a "direct tax," which must be apportioned among the states. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states each have three percent of the population, each must provide three percent of the revenue from a wealth tax. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share. To rescue wealth taxes from apportionment, distinguished commentators have offered a range of theories. For example, some treat apportionment as a mistake, while others dismiss it as a protection for the shameful institution of slavery.

But these commentators do not give the Framers enough credit. The taxing power was too important for them to be sloppy or to focus only on the institution of slavery. In our view, the taxing power reflects the same influences as the rest of the Constitution. Like the new government’s other features, the taxing power was supposed to be effective but limited. The Framers wanted to solve the fundamental problem under the Articles of Confederation (insufficient revenue), without recreating the fundamental problem under imperial rule (taxation without representation). Specifically, they sought to discourage what we call “fiscal raids,” in which states join forces to enact national taxes that mostly burden other states. As Professors Ackerman and Amar have shown, this risk could arise with an unapportioned tax on enslaved persons, since it would have been collected mainly in the South. But we show that the same was true of other region-specific practices, such as tobacco plantations and undeveloped land in the South, as well as ships, timber, farms, and manufacturing in the North. Apportionment was supposed to protect all these region-specific assets from fiscal raids.

In pursuing these various goals, what did the Framers mean by a “direct tax”? They considered a tax “direct” if it applied to taxpayers themselves, instead of to their transactions. A direct tax could be triggered merely by residing in the jurisdiction or owning property. In contrast, taxes on transactions—including on imports (“imposts”) and on domestic production and consumption (“excises”)—did not have to be apportioned. Admittedly, some courts and commentators have offered the narrower interpretation that “direct” is limited to head taxes and real estate taxes. But at ratifying conventions, John Marshall, Oliver Ellsworth, and other Framers offered a broader definition, which included livestock, business assets, and other personal property. Dicta in an early case, Hylton v. United States offered the narrower interpretation (head and land taxes), but the holding can be reconciled plausibly (although not perfectly) with our interpretation, while most other Supreme Court cases on the Direct Tax Clause align with our reading.

--Dan Ernst

Weekend Roundup

• Madiba K. Dennie on her book “The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back,” on Marketplace and the Literary Hub. 
  

• Wisconsin Lawyer continues its series Women History Makers with a profile of Jo Deen Lowe, chief judge of the Ho-Chunk Nation Trial Court.

• Bradley Joondeph (Santa Clara University School of Law) has posted a short piece on Justice Sandra Day O'Connor as "Bridge Builder." It is forthcoming in the Stanford Law Review. 
  

• From Time's "Made by History": Tracy Slater, "Loving Day Is an Opportunity to Remember the Interracial Families Separated by the U.S."

• ICYMI: A Brief History of the Phrase No One is above the Law" (NYT).  Magna Carta: The Atlantic Crossing (History Today). New research shows how white women profited from slavery, too (The Conversation).

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

Weekend Roundup

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• Over at Rechtsgeschiedenis Blog: Petitions in Early Modern Britain: Asking for justice, questioning the law.

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  LHB Co-Blogger Karen Tani was part of a stellar lineup at a plenary session of this weekend's American Political History Conference, entitled "The Courts and American Democracy." The other panelists were Julian Mortenson, and Gautham Rao.  Rachel Shelden moderated.  DRE
  

• Another book event for Alison LaCroix's Interbellum Constitution: On June 17, Professor LaCroix is on the program of a Town Hall of the National Constitution Center with William B. Allen, a political theorist who was edited and translated Montesquieu’s The Spirit of the Laws.  Register here.  
  

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• Dylan C. Penningroth will discuss Before the Movement: The Hidden History of Black Civil Rights on Tuesday, June 18, 2024, at 6 p.m. at the City of West Hollywood’s Council Chambers/Public Meeting Room located at 625 N. San Vicente Boulevard. The event is free and open to the public. Reservations are requested, here.
  

• The Historical Society of the New York Courts and the Supreme Court, New York County Civil Branch, are sponsoring a hybrid event, NY County Courthouse WPA Murals: Who Created Them and What Do They Represent? at the New York County Courthouse Rotunda at 60 Centre Street, NYC, Tuesday, June 25, 2024, from 1:00 - 2:30 PM.  The speakers are Greta Berman, emerita The Julliard School, and Helen A. Harrison, the former director of the Pollock-Krasner House and Study Center, Stony Brook Foundation.  Jon Ritter, Clinical Professor of Art History, New York University, will moderate.
  

• Dueling books on American constitutionalism at the NCC's next Town Hall, on June 12, btw: Center: Yuval Levin’s American Covenant: How the Constitution Unified Our Nation—and Could Again and Aziz Rana’s The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them.  Jeffrey Rosen moderates.  Register here.
  

• The Organization of American Historians has announced  two new awards: the Award for Contributions to Public Policy, and the Joseph L. Peyser Prize for New France History.  "The Award for Contributions to Public Policy will annually recognize a scholar of any discipline who has made a significant contribution to U.S. public policy through historical research. The award is made possible through the generosity of J. Morgan Kousser, Professor of History and Social Science Emeritus at California Institute of Technology." 
  

• Registration is still open for The Road to the Release of John Hinckley: Attempted Presidential Assassination, Insanity, Commitment, and the Courts, an event sponsored by the Historical Society of the District of Columbia Circuit to be held on June 27.

• The intellectual historian and author of a great book on the history of social science, Dorothy Ross, has died.  Here is Johns Hopkins's notice. 
  

• Allen D. Boyer, the author, with Mark Nicholls, of The Rise and Fall of Treason in English History (Routledge, 2024), has posted “Terrible as an Army with Banners”: Banners, Treason, and January Sixth. 
  

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  New online in the American Journal of Legal History: A Turbid River of History and Law: The Procurement of Women in Imperial Japan and Colonial Korea, by Marie Seong-Hak Kim
  

• Carl Landauer has published C.H. Alexandrowicz's India and the Kautilyan Moment in the Asian Journal of International Law.
  

• On the ABAJ's Modern Law Library podcast: Madiba K. Dennie discusses her book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.
  

• ICYMI:  Why Americans Have a Right to Trial by Jury (History).  A historical marker for Sully Jaymes, the first Black lawyer in Springfield, Ohio (Springfield News-Sun).
  

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