The Life & Legacy of John Jay

[We have the following announcement.  DRE]

John Jay (NYPL)

The John Jay Papers Project, Columbia University Libraries, and Columbia University's Office of the Provost are proud to present In Service to the New Nation: The Life & Legacy of John Jay, a  two-day virtual conference (January 22-23, 2021) celebrating the near completion of the Project's seven-volume series The Selected Papers of John Jay.

The conference events are free and open to the public. To attend the events, attendees will need to register beforehand.  For registration information and the full conference program visit In Service to the New Nation: The Life & Legacy of John Jay

Joanne Freeman, Class of 1954 Professor of American History and American Studies at Yale University, will deliver the keynote address "Life in an Age of Conflicts and Extremes." The keynote address will be held via Zoom Webinar on Friday, January 22, 6:00-7:30 PM EST.

There will then be four panel sessions to be held via Zoom Webinar on Saturday, January 23, 10:30 am-5:30 PM EST.

Panel 1: Diplomacy and Politics (10:40 am – 12:00 pm)
Chair, Mary A. Y. Gallagher (John Jay Papers)

Kings College and the Foundations of John Jay’s Diplomacy
Benjamin C. Lyons (Columbia University)

John Jay’s 1788 “Address to the People of the State of New York” and the Dynamics of the Ratification Debate: A New Look
Todd Estes (Oakland University)

Two Treaties, Two Diplomats, and Two Scholarly Editions: John Jay, Thomas Pinckney, and the Art and Practice of Scholarly Editorial Collaboration
Constance B. Schulz (Pinckney Papers, University of South Carolina)

Panel 2: Family, Slavery, and Abolition (1:00 – 2:20 pm)
Chair, Elizabeth M. Nuxoll, (John Jay Papers)

Mastering Paradox: John Jay, Slavery, and Nation Building
David N. Gellman (DePauw University)

John Jay and the Intimate Politics of Slavery and Antislavery
Sarah Gronningsater (University of Pennsylvania)

“One of them married Colonel Stuyvesandt, another of them married my grandfather”: John Jay, Genealogy, and the Shape of a New Nation
Karin Wulf (Omohundro Institute of Early American History and Culture, College of William & Mary)

Panel 3: Navigating Networks and Publics (2:30 – 4:05 pm)
Chair, Herbert Sloan (Barnard College)

John Jay and the Press
Sara Georgini (Adams Papers, Massachusetts Historical Society)

Investing in Social Networking in Sarah Livingston Jay’s New York
Alisa Wade (California State University, Chico)

John Jay in Voluntary America
Jonathan Den Hartog (Samford University)

Did the Man Make the Robe? John Jay Dressed for the Court
Claire Jerry (Smithsonian National Museum of American History)
Bethanee Bemis (Smithsonian National Museum of American History)

Panel 4: Roundtable on The Future of Documentary Editing & the Founding Era (4:15 – 5:20 pm)
Chair, R. Darrell Meadows (National Historical Publications and Records Commission)

Sara Martin (Adams Papers, Massachusetts Historical Society)

Holly C. Shulman (Dolley Madison Digital Edition)

Jennifer E. Steenshorne (John Jay Papers)

Jennifer Stertzer (Washington Papers, Center for Digital Editing)

Cromwell Dissertation Prize to Tycko

We have word that the William Nelson Cromwell Dissertation Prize, awarded by the trustees of the William Nelson Cromwell Foundation on the recommendation of the Advisory Committee on the Cromwell Prizes of the American Society for Legal History, has gone to Dr. Sonia Tycko, Oxford University,  for “Captured Consent: Bound Freedom of Contract in Early Modern England and English America.”  From the recommendation of the ASLH committee:

In an extraordinarily creative and imaginative dissertation, "Captured Consent: Bound Service and Freedom of Contract in Early Modern England and English America," Sonia Tycko explores the repeated appearance of consent as part of the meaning of compulsory service in the early modern period. … Tycko forces us to reconsider the very foundations of consent and contract and makes a signal contribution to the historiography on contract, labor, and freedom. Tycko also offers nuanced readings of an impressive array of primary sources and reveals the social realities against which a vocabulary about contract arose in particular labor relationships, from indentured servitude to military impressment to kidnapping. She mines documents that others might skim and brings to the surface the way in which the very words betray underlying power dynamics. The important transatlantic lens persuasively establishes her argument as part of larger seventeenth-century English assumptions, in Great Britain and the British colonies. This dissertation rewards the reader on every page-and, impressively, becomes even more interesting on rereading. Tycko's dissertation serves as a model of the well-crafted and carefully executed dissertation in legal history.

–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

Campbell on Natural Rights, Positive Rights and the Second Amendment

Jud Campbell, University of Richmond School of Law, has posted Natural Rights, Positive Rights, and the Right to Keep and Bear Arms, which appears in Law and Contemporary Problems 32 (2020): 31

The first judicial opinions interpreting the right to bear arms embraced vastly divergent views of the right, leading scholars to perceive these decisions as being in disarray. This article argues that these conflicts reflect exactly the sorts of disagreements that one would expect given that Americans viewed the right to bear arms as a natural right and as a positive right. Indeed, the first right-to-bear-arms decisions exemplified tensions that emerged when judges confronted claims about natural rights and positive rights in a changing social and legal landscape. As a natural right, the right to carry firearms could only be limited in promotion of the public good, which was quintessentially a question of legislative judgment. Yet emergent attitudes about judicial review counseled against absolute deference to legislatures. As a positive right, the right to bear arms offered more determinate legal protection. But its tradition-based content did not specify how to resolve novel problems, and entrenched norms posited that judges could only apply existing law — not make it up. Enforcing natural rights and positive rights in novel circumstances thus required judges to adopt rules that were over-inclusive, under-inclusive, or a combination of both. And that is precisely what one sees in the first right-to-bear-arms cases. The article concludes with a discussion of how this history bears on contemporary debates about the Second Amendment.

--Dan Ernst

Phillips and Yoo on Originalism and Impeachment

James Cleith Phillips, Chapman University, The Dale E. Fowler School of Law, and John Yoo, University of California at Berkeley School of Law have posted Your Fired: The Original Meaning of Presidential Impeachment, which is forthcoming in the Southern California Law Review 94 (2021):

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of presidential impeachment are again salient. Unlike other constitutional provisions, the Impeachment Clause has generated neither much historical practice nor case law with regard to the removal of a President. The Supreme Court has deemed impeachment the ultimate political question. Thus, the original meaning takes on great weight. Further, previous scholarship has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. This article is the first to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law. Not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established legal term of art in Great Britain. The article then applies these findings to the impeachment of President Trump, provides an in-depth analysis of the proceeding in light of the Constitution’s original meaning, and critiques arguments made on both sides.

–Dan Ernst.  H/t: Legal Theory Blog

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

Green on the Three Commerce Powers

Christopher R. Green, University of Mississippi School of Law, has posted Tribes, Nations, States: Our Three Commerce Powers:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship — the Privileges or Immunities Clause for states and fiduciary principles for the federal government — instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law — federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari — receive possible justification.

 -Dan Ernst

Hamburger on Delegation and the Vesting Clauses

Philip Hamburger, Columbia Law School, has posted Delegating or Divesting? on the website of the Northwestern University Law Review:

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth- century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.

–Dan Ernst.  H/t: Legal Theory Blog

Weekend Roundup

• 
  Julia Rose Kraut, the Judith S. Kaye Fellow for the Historical Society of the New York Courts, will speak on her book Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States in the Washington History Seminar of the National History Center of the American Historical Association on October 14 at 4:00 ET.  From the announcement: "Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King."  Register here.
  

• The US Customs and Border Patrol has asked the National Archives to "designate as temporary all records regarding CBP’s dealings with DHS’s Office for Civil Rights and Civil Liberties: a recipient of complaints of civil rights abuses from across the department."  More. 
  

• The Docket 3:3 is now online.
  

• The Federal Judicial Center has announced "Spotlight on Judicial History," a series of “brief essays, posted periodically, on a wide variety of interesting topics related to federal court history.  The first, by Jake Kobrick, is A Brief History of Circuit Riding.

• Lorianne Updike Toler, Information Society Project, Yale Law School, has posted The Publication of Constitutional Convention Records, a “ short history of the print and digital publication of all records of the Constitutional Convention, from 1787-2020.”
  

• The recording of the National History Center's congressional briefing, "Financial Responses to Economic Crisis," is here. 
  

• You had us at "Hughes": Avoiding Post-Election Chaos: Wilson vs. Hughes, 1916 by Matthew Waxman (Lawfare).  Also: a video on the history of housing discrimination in Arlington, VA.

• Update: Rutgers British Studies Center is hosting Empires of Law in Colonial South Asia this Monday at 12pm-1ET for a Q&A session (register here) with Tanya Agathocleous and our blogger Mitra Sharafi. The video talks are posted here.

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

Bowie on the Constitutional Right to Self-Government

 Nikolas Bowie, Harvard Law School, has posted The Constitutional Right of Local Self-Government, which is forthcoming in the Yale Law Journal:

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble” — a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.

This paper offers a surprising answer: local governments. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.

In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures — or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all local governments have the inherent right to consult their constituents and seek a redress of their grievances, whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance. For example, in response to Parliament’s ban on town meetings in Massachusetts, a convention of town representatives resolved that “every people have an absolute right of meeting together to consult upon common grievances, and to petition, remonstrate, and use every legal method for their removal.” A representative of Pennsylvania’s general assembly proposed that the Continental Congress resolve “[t]hat for Redress of all Grievances, and for the amending, strengthening, and preserving of the Laws, Assemblies ought to be held in each of these Colonies frequently . . . . And, that every Dissolution of an Assembly within these Colonies . . . has been arbitrary, and oppressive.” Perhaps unsurprisingly, two of the first three states to adopt assembly clauses in their state constitutions were Pennsylvania in 1776 and Massachusetts in 1780.

The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also the formal decisions of local governments, the state and federal assembly clauses look like an important, “forgotten" limit on one government’s power to subordinate another.

--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

Ramsey on Originalism and Birthright Citizenship

Michael D. Ramsey, University of San Diego School of Law, has posted Originalism and Birthright Citizenship, which is forthcoming in volume 109 of the Georgetown Law Journal:

The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

--Dan Ernst

Parrillo on Delegated Rulemaking and Federal Taxation in the 1790s

Nicholas R. Parrillo, Yale Law School, has posted A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, which is forthcoming in volume 121 of the Yale Law Journal (2021):

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested they are open to the sweeping theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking’s constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics’ main response has been that these early statutes don’t count, because they fall into areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: non-coercive legislation (e.g., giving benefits) or foreign-affairs legislation.

This Article finds that the originalist critics of

Oliver Wollcott, Jr. (wiki)

rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counter-example missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the “direct tax” of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties’ respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was “worth in money”—a standard that the legislation stated but did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with power to divide the state into districts and to raise or lower the assessors’ valuations of all real estate in any district by any proportion “as shall appear to be just and equitable”—a phrase undefined in the statute and not a term of art. The federal boards’ power to revise valuations en masse in each intra-state tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal tax burden within the state it covered.

This Article is the first study of the federal boards’ mass revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, the nation’s fourth-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state’s rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards’ power was consistent with original meaning, or, alternatively, with the Constitution’s liquidated meaning. Vesting administrators with discretionary power to make politically-charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice.

More broadly, this Article is the first in-depth treatment of the 1798 direct tax’s administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades. It is remarkable that today’s passionate debate on whether the administrative regulatory state violates the framers’ Constitution has so far made no reckoning with this endeavor.

--Dan Ernst

Blackman on Presidential Subpeonas during the Burr Trial

Josh Blackman, South Texas College of Law Houston, has posted Presidential Subpoenas during the Burr Trials:

Aaron Burr (LC)

Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall’s narrow construction of the crimes of treason, the jury acquitted Burr of both the felony and the misdemeanor charges. Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson’s letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.

As the deliberations proceeded, Hay would frequently write to the President, who traveled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government’s positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redaction. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.

Because of the lengthy nature of the proceedings — in which Marshall and Jefferson took different positions at different junctures — it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.

--Dan Ernst

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

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