Weekend Roundup

• In the New Republic: Gabriel Rosenberg and Jan Dutkiewicz on the place where the meat industry meets anti-bestiality laws, past and present.

• Catch this virtual event with Ashley Rubin on her forthcoming book, The Deviant Prison: Philadelphia's Eastern State Penitentiary and the Origins of America's Modern Penal System, 1829-1913: Jan.5 at 6-7pm EST. 

• The Wiener Library for the Study of the Nazi Era and the Holocaust, at the Sourasky Central Library, Tel Aviv University, has put some of its collections online, including prosecutions for distributing the Protocols of the Elders of Zion and the Nazi Justice Collection, which "contains information on the judiciary in Nazi Germany and hundreds of trial transcripts."  N/t: JQB
  

• “The new feature documentary, My Native Air: Charles Evans Hughes and the Adirondacks, co-produced by MDT Publishing and Snarky Aardvark Films, is premiering on-demand in a limited run from January 15th to February 15th, 2021.”  H/t: JQB
  

• Brittany Nichole Adams, Special Collections, Digitization, and Archival Services Librarian, Northwestern University is profiled in the Bright Young Librarians series at FineBooks and Collections.
  

• From the Washington Post's "Made by History" section: Anya Jabour (University of Montana) on why "Referring to female PhDs as ‘Dr.’ promotes equal treatment and values women’s work," including a discussion of trailblazing law reformers (and PhD holders) Sophonisba Breckenridge and Edith Abbott.

• ICYMI:  University of Mississippi fires Garrett Felber, a tenure-track assistant professor in the Arch Dalrymple III Department of History, who has studied the American carceral state. (Mississippi Free Press).  Greg Melleuish on Constitutional History in Australia (Telos Press Podcast).

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

Campbell on Constitutional Rights Before Realism

Jud Campbell, University of Richmond School of Law, has posted Constitutional Rights Before Realism, which appears in the University of Illinois Law Review 2020: 1433-1454:

Stephen J. Field (LC)

This Essay excavates a forgotten way of thinking about the relationship between state and federal constitutional rights that was prevalent from the Founding through the early twentieth century. Prior to the ascendancy of legal realism, American jurists understood most fundamental rights as a species of general law that applied across jurisdictional lines, regardless of whether these rights were constitutionally enumerated. And like other forms of general law, state and federal courts shared responsibility for interpreting and enforcing these rights. Nor did the Fourteenth Amendment initially disrupt this paradigm in ways that we might expect. Rather than viewing rights secured by the Fourteenth Amendment as distinctively “national,” most early interpreters thought that these rights remained a species of general law. For several decades, debates instead focused on the extent to which these rights were enforceable in federal court, akin to the way that federal courts could hear general-law claims in diversity-jurisdiction cases. It was only with the rise of legal realism that American jurists began to conceptualize fundamental rights distinctively in terms of state (constitutional) law and federal (constitutional) law and to divide interpretive authority into state and federal spheres.

–Dan Ernst

Peterson on "Expounding the Constitution"

Farah Peterson, University of Chicago Law School, has posted Expounding the Constitution, which appears in the Yale Law Journal 230 (2020): 2-84:

Judges and statesmen of the early Republic had heated exchanges over the importance of hewing to the text in constitutional interpretation, and they advanced dueling interpretive prescriptions. That is why contemporary theorists of all persuasions can find support for their positions in the Founding era. But no side of the Founders’ debate over constitutional interpretation maps perfectly onto a modern school of thought. Modern scholarship has misunderstood the terms of the Founders’ debate because it sits on an unfamiliar axis. Instead of arguing over whether the Constitution was, for instance, living or static, this Article demonstrates that early American lawyers debated whether the Constitution should be interpreted according to the methodologies applicable to public or private legislation.

This distinction among different types of legislation has faded from view because modern legislatures almost never pass private laws—statutes that apply only to one person, group, or corporation. But in early America, private legislation was the majority of legislatures’ business. Generally applicable laws, like those Congress busies itself with today, were the minority. What’s more, American courts had fixed, predictable, and familiar rules of interpretation for each type of law. Private acts received stricter, more text-orientated interpretations while public acts were interpreted broadly and pragmatically to effectuate their purposes, taking into account new circumstances that the drafters may not have foreseen.

After ratification, critical policy differences emerged among American statesmen in the first Congress. Hamilton and Madison, once united as authors of the Federalist Papers, found themselves on different sides. Both insisted that the Constitution must be interpreted to vindicate their views, and in the process, they opened a debate about interpretation that would characterize the nation’s constitutional jurisprudence until the 1820s. The Federal Constitution was a novelty. But lawyers don’t tend to make new rules to suit new situations; we prefer to rely on precedent. And that is what these lawyers did, using legal tools devised for interpreting legislation—a form of written law with consistent interpretive rules that were part of the bread-and-butter practice of every American lawyer.

We cannot understand the major cases of the Marshall Court, including Marbury, Martin, and McCulloch without this context. In these cases, litigants argued over, and the Court wrestled with, whether public or private legislation provided the best analogy for the Federal Constitution. The answer dictated whether restrictive or pragmatic rules would govern its interpretation. The terms of these arguments would have been obvious to the legal thinkers of that generation. Yet, in spite of all the attention we have lavished on Hamilton, Jefferson, Madison, Marshall, Story, and their world, this central dynamic of their legal culture has remained unexplored.

This Article argues that, during framing and ratification, many of the Founders thought the Constitution would be interpreted according to the rules applicable to public legislation, although statesmen like Jefferson and Madison later took a different view. Chief Justice Marshall’s enduring commitment to the public-act analogy explains his embrace of “implied powers” in McCulloch and underpins the broad, nationalist vision in his other major decisions. These insights are not only critical to understanding those decisions on their own terms, they are also highly relevant to modern constitutional theorists who rely on early American precedent. If the Founders intended that the Constitution would be interpreted according to the rules of public legislation, then the “original” Constitution is a flexible and pragmatic charter, not a fixed and immutable artifact.

--Dan Ernst

Lakier on Freedom of Speech beyond the First Amendment

Genevieve Lakier, University of Chicago Law School, has posted The Non-First Amendment Law of Freedom of Speech, which is forthcoming in volume 134 of the Harvard Law Review:

The First Amendment dominates popular and scholarly debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history, and the present-day operation of what it calls the non-First Amendment law of freedom of speech. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that the nineteenth century was not a period in which there was little legal protection for freedom of speech, as scholars have long assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires than the we commonly assume. Recognizing as much is important not only as a descriptive matter but as a doctrinal one. This is because in few other areas of constitutional law does the Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important non-constitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present, and our regulatory past — and, as a result, is able to proclaim a commitment to laissez faire principles that, in reality, it has never been able to sustain.

--Dan Ernst

Gerstle & Isaac, eds., "States of Exception in American History"

New from the University of Chicago Press: States of Exception in American History, edited by Gary Gerstle (University of Cambridge) and Joel Isaac (University of Chicago). A description from the Press:

States of Exception in American History brings to light the remarkable number of instances since the Founding in which the protections of the Constitution have been overridden, held in abeyance, or deliberately weakened for certain members of the polity. In the United States, derogations from the rule of law seem to have been a feature of—not a bug in—the constitutional system.

The first comprehensive account of the politics of exceptions and emergencies in the history of the United States, this book weaves together historical studies of moments and spaces of exception with conceptual analyses of emergency, the state of exception, sovereignty, and dictatorship. The Civil War, the Great Depression, and the Cold War figure prominently in the essays; so do Francis Lieber, Frederick Douglass, John Dewey, Clinton Rossiter, and others who explored whether it was possible for the United States to survive states of emergency without losing its democratic way. States of Exception combines political theory and the history of political thought with histories of race and political institutions. It is both inspired by and illuminating of the American experience with constitutional rule in the age of terror and Trump.

Some chapters that are especially likely to interest our readership:

2 Negotiating the Rule of Law: Dilemmas of Security and Liberty Revisited

Ewa Atanassow and Ira Katznelson

4 The American Law of Overruling Necessity: The Exceptional Origins of State Police Power

William J. Novak

5 To Save the Country: Reason and Necessity in Constitutional Emergencies

John Fabian Witt

6 Powers of War in Times of Peace: Emergency Powers in the United States after the End of the Civil War

Gregory P. Downs

9 Constitutional Dictatorship in Twentieth-Century American Political Thought

Joel Isaac

10 Frederick Douglass and Constitutional Emergency: An Homage to the Political Creativity of Abolitionist Activism

Mariah Zeisberg

 

More information is available here.

 

-- Karen Tani

Goldsworthy on History of British Constitutional Theory

Jeffrey Denys Goldsworthy, Monash University Faculty of Law, has posted A Brief History of Constitutional Theory in Britain, which is forthcoming in The Cambridge Constitutional History of the United Kingdom (Cambridge UP):

This paper surveys the development of constitutional theory in England, and later Britain, from the Twelfth Century until today. It shows how contending theories attempted to reconcile the need for strong central authority to maintain order and justice, with the need to control that authority - either through law or political struggle - to prevent its misuse. It describes a gradual transition from theories of monarchical rule to those of mixed government and finally parliamentary democracy, and how they understood the place or role of the Church, the law, “the community” and “the people”.

--Dan Ernst

Balkin on Lawyers, Historians, and the Constitution

Jack M. Balkin, Yale Law School, has posted Lawyers and Historians Argue About the Constitution, which is forthcoming in Constitutional Commentary 35 (2020):

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.

--Dan Ernst

Moore on Anti-Federalists and Implementing Article III

Tyler Moore, a 2011 graduate of the Georgetown University Law Center and a Ph.D. Candidate at the University of Notre Dame, has posted Trimming the Least Dangerous Branch: the Anti-Federalists and the Implementation of Article III, which is forthcoming in the Tulsa Law Review:

The traditional narrative of events following the ratification debates has connected the Bill of Rights with the Anti-Federalists and the Judiciary and Process Acts of 1789 with the Federalists. Although the scholarly consensus has turned against the Bill of Rights part of this story, most scholars continue to portray the first Congress’s implementation of Article III as a victory for the Federalists. In this article, I trace the development of the Anti-Federalists’ theory of federal/state power and its application to the judiciary in an effort to show why the second part of the above narrative also has it wrong.

Here is the short version. Having adopted the same conception of federalism as an underappreciated faction of delegates at the Constitutional Convention, Anti-Federalist writers like “Brutus” argued that some mechanism was needed to prevent the states from being swallowed up by federal judicial overreach. Despite Alexander Hamilton’s attempts in Federalist Nos. 78-83 to downplay this danger and emphasize the necessity of a robust system of federal inferior courts with general “arising under” jurisdiction, it was the Anti-Federalists’ arguments that continued to resonate in the state ratifying conventions and beyond. Oliver Ellsworth, the Connecticut Federalist who was the primary draftsman of the Judiciary and Process Acts, had shown his sympathy with Brutus all along. And the bare bones, state-dependent inferior court structure he helped create is testimony to this sympathy. Like the Bill of Rights, then, the Anti-Federalists’ influence on the original federal judiciary was a vicarious one. But unlike the Bill of Rights, this victory tracked their theory of federalism and gave them a meaningful structural change that could protect the states against a national consolidation. 

--Dan Ernst

Comparative Constitutiional History: Collected Essays

Published this summer by Brill: Comparative Constitutional History: Volume One: Principles, Developments, Challenges, edited by Francesco Biagi, Justin O. Frosini, and Jason Mazzone:

While comparative constitutional law is a well-established field, less attention has been paid so far to the comparative dimension of constitutional history. The present volume, edited by Francesco Biagi, Justin O. Frosini and Jason Mazzone, aims to address this shortcoming by bringing focus to comparative constitutional history, which holds considerable promise for engaging and innovative work along several key avenues of inquiry. The essays contained in this volume focus on the origins and design of constitutional governments and the sources that have impacted the ways in which constitutional systems began and developed, the evolution of the principle of separation of powers among branches of government, as well as the origins, role and function of constitutional and supreme courts.

TOC after the jump

--Dan Ernst

Constitutional Origins

George Bancroft in Göttingen: an American Reception of German Legal Thought
Mark Somos

Uniformity and Diversity: a Confrontation between French and Dutch Thought on Citizenship
Gohar Karapetian

The Historical and Legal Significance of Constitutional Preambles: a Case Study on the Ukrainian Constitution of 1996
Justin O. Frosini and Viktoriia Lapa

Why the Court of Final Appeal of Hong Kong Should Re-Assert Its Power to Review Acts of the Standing Committee
Miguel Manero de Lemos

Challenges of Executive and Legislative Power

The Separation of Powers and Forms of Government in the MENA Region Following the ‘Arab Spring’: a Break with the Past?
Francesco Biagi

‘The Constitution Will Be Our Last Hope in the Momentary Storm.’ Institutions of Constitutional Protection and Oversight in Mexico and Their Contribution to Atlantic Constitutional Thought (1821–1841)
Catherine Andrews

Judicial Authority and Its Limits

Judicial Review of Legislation in Portugal: Genealogy and Critique
Gonçalo de Almeida Ribeiro

Defending the Judiciary? Judicial Review of Constitutional Amendments on the Judiciary in Colombia
Mario Alberto Cajas-Sarria

Direct Individual Access to Constitutional Justice in South Korea and Taiwan
Fabian Duessel

Calabresi and Godi on Italian Constitutional History

Steven G. Calabresi and Matteo Godi have published Italian Constitutionalism and Its Origins in the Italian Law Journal 6:1 (2020): 23-53:

Focusing on the evolution of constitutional thought in Italy is key to understand not only Italy’s current legal order, but also constitutionalism more generally. In Italy, there has not been a true rupture point between the pre-unitary legal systems and the new constitutional order; a comprehensive study of Italian constitutional law, then, cannot do away with the preceding legal orders as modern textbooks do. And a study of modern constitutionalism cannot ignore Italy’s contribution: centuries of attempts at constitutionalizing, detached from any meaningful revolutionary vacuum. This Article sets out to fill that gap by focusing on the little known, three-centuries-long history of Italian constitutionalism, and it does so by offering many previously unpublished English translations of Italian constitutions. Part II discusses the genesis of modern constitutional thought in Italy. It focuses, in particular, on the Draft Constitution of Tuscany (1787); the Second Constitution of the Cisalpine Republic (1798); and the Constitution of the Kingdom of Italy (1802). Part III analyzes the Albertine Statute, the most famous pre-modern Italian constitution, first enacted in 1848 by the Kingdom of Piedmont and Sardinia and later extended to the entire nation following the unification of Italy in 1861. Part IV briefly focuses on the 1948 Constitution of the Italian Republic – Italy’s current constitutional document. Part V extrapolates from this history in order to make a few normative claims. A brief conclusion follows.

--Dan Ernst

Geiringer on Representation-Reenforcement and the NZ Bill of Rights

Claudia Geiringer, Victoria University of Wellington School of Law, has posted When Constitutional Theories Migrate: A Case Study, which is forthcoming in the American Journal of Comparative Law:

The last decade or so has witnessed a burgeoning of literature on the role of cross-jurisdictional influences in the design (as well as subsequent interpretation) of national constitutions. The consensus emerging from that literature is that transnational borrowing in the course of constitutional making is both inevitable and impossible. In a globalized world, those involved in the design of a new constitution naturally look beyond their borders for inspiration. Borrowing is thus endemic. But borrowing, in any true sense, is also impossible because in the process of migration, constitutional ideas must be de- and then re-contextualized in order to fit them for the new legal system.

What, though, if the object of transnational influence is not a constitutional text or an institutional mechanism but, rather, a scholarly theory? That is the question addressed by this article. Specifically, the article examines the intriguing (and little known) story of how John Hart Ely’s representation-reinforcing theory of (American) constitutional interpretation was transformed into a blueprint for the design of the New Zealand Bill of Rights Act. It suggests that Ely’s journey to the South Pacific has the potential to illuminate both the study of constitutional migration generally and, more specifically, the linkages between comparative law and constitutional theory.

–Dan Ernst.  H/t: Legal Theory Blog

Schwartz on the General Welfare Clause

Former LHB Guest Blogger David S. Schwartz, University of Wisconsin Law School, has posted The Strategic Ambiguity of the General Welfare Clause:

Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." Conventional constitutional doctrine interprets this language"called the General Welfare Clause in this article"as conferring "The Spending Power," a power to spend, but not to regulate, for any and all national purposes. Yet on its face, the General Welfare Clause seems to grant a general power to legislate on all matters of national concern. This article argues that the historical rejection of this "general welfare interpretation" in favor of the spending power interpretation is dictated neither by the text nor drafting history of the General Welfare Clause. The General Welfare Clause first appeared during the Philadelphia Constitutional Convention as a proposal, overlooked by scholars, in a second report presented by the Committee of Detail on August 22, 1787 (two weeks after submitting its well-known first draft of the Constitution). The Committee proposed to add an unambiguous legislative authorization to legislate for "the general interests and welfare of the United States" at the end of the Necessary and Proper Clause. Over the next two weeks, that language was ambiguated and relocated to its final placement, at the end of Article I, section 8, Clause 1. The final version of Clause 1 is best understood as a prominent example of "strategic ambiguity," a deliberate choice by the Framers to employ ambiguous language to accommodate differences of opinion without resolving them. Here, the Framers held competing views on three related issues: whether the enumeration of powers was exhaustive or illustrative; whether the taxing power should be limited to identified purposes; and whether the new national government should assume the Revolutionary War debts of the states. The ambiguity of the General Welfare Clause was intended to leave interpretive space for the general welfare interpretation, among others.

–Dan Ernst

Weekend Roundup

• LaborOnline, the blog of the Labor and Working-Class History Association, has been hosting a symposium, introduced by Eileen Boris, on recent LHB Guest Blogger Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era.

•  Catch the latest Legal History Podcast: Philip Thai discusses his book, The War on Smuggling: Law, Illicit Markets, and State Power on the China Coast with Siobhan Barco. We announced the book here. 

• Over at Strict Scrutiny, Adam Cohen is interviewed about his book Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck.

• The deadline for applying to the previously announced constitutional history seminar with Josh Chafetz and David Pozen has been extended to September 9.

• The 13th annual Court History and Continuing Legal Education Symposium, “An Election Fraud Case for the Ages: U.S. v. Aczel,” will take place in a virtual session Friday, Nov. 20 from 4 to 5 p.m.  Journalist Sasha Issenberg will explore the story behind U.S. v. Aczel, a trial in federal court of the mayor, chief of police, and other prominent officials in Terre Haute, Indiana, for voter suppression in 1914.  More.

• ICYMI: Martha Jones's search to find out if her grandmother voted (NYT), and Felice Batlan discovers that her great-grandmother lost her US citizenship under the Expatriation Act of 1907 (WaPo).  Garrett Epps on birthright citizenship and Kamala Harris (The Atlantic).

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

Balkin on Lawyers, Historians and Constitutional Argument

Jack M. Balkin, Yale Law School, has posted Lawyers and Historians Argue about the Constitution:

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it makes too much of history unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.

--Dan Ernst