Mikhail on James Wilson, Early American Land Companies, and the Original Meaning of "Ex Post Facto Laws" @_John_Mikhail

John Mikhail, Georgetown University Law Center, is publishing James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' in volume 17 of the Georgetown Journal of Law & Public Policy (2019). Here is the abstract.

Many commentators have questioned whether the interpretation of the term “ex post facto laws” in Calder v. Bull, which restricted that term to retroactive criminal laws, is historically accurate. Most prominently, over seventy years ago Professor William Winslow Crosskey argued not only that this “criminal-only” reading of “ex post facto laws” departed from the original understanding, but also that Justices Chase, Iredell, and Paterson adopted that erroneous interpretation in order to assist James Wilson, who by 1798 had fled from his creditors and needed retroactive bankruptcy protection. Drawing on new evidence related to legal disputes involving three land companies with which Wilson was associated, which eventually gave rise to Hollingsworth v. Virginia, Fletcher v. Peck, and Johnson v. M’Intosh, this Article contends that Crosskey was likely correct about the original meaning of “ex post facto laws,” but likely mistaken about the Justices’ motivations in Calder. In fact, Wilson’s land speculation, conflicts of interest, and aggressive pursuit of his companies’ interests were probably a source of embarrassment to his fellow Justices. Nonetheless, there is a clear discrepancy between the construal of “ex post facto laws” in Calder and how that term was widely used in the founding era, which merits further investigation. A better historical understanding of these land disputes also raises new doubts about the reliability of the discussion of ex post facto laws in James Madison’s Notes of the Debates in the Federal Convention. The Article is my contribution to a symposium on James Wilson that was hosted by the Georgetown Center for the Constitution and was held at Georgetown Law in December, 2017.

Download the article from SSRN at the link.

Yoo on James WIison as the Architect of the American Presidency @PennLaw

Christopher Yoo, University of Pennsylvania Law School; University of Pennsylvania, Annenberg School for Communication; University of Pennsylvania, School of Engineering and Applied Science, is publishing James Wilson as the Architect of the American Presidency in the Georgetown Journal of Law & Public Policy. Here is the abstract.

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the use of an advisory council, the veto power, and presidential selection, he adopted a more pragmatic approach than generally recognized. The most dramatic example of this is an event that is almost entirely overlooked in the historical record: Wilson’s break late in the Convention from his consistent support for a unitary executive by proposing an advisory council to advise the president on appointments. While initially seeming like something of a puzzle, the reasons for Wilson’s change of heart become clearer when debates over presidential power are placed in the context of the larger controversies that dominated the Convention, such as the Great Compromise and presidential re-eligibility and selection. This broader frame suggests that Wilson held a more pragmatic, less doctrinaire vision of executive power than is commonly recognized.

Download the article from SSRN at the link.

Halberstam on the History and Philosophy of Federalism(s) in the United States and Europe @UMichLaw

Daniel Halberstam, University of Michigan Law School, has published 'A People for Certain Purposes': On the History and Philosophy of Federalism(s) in the United States and Europe as U of Michigan Public Law Research Paper No. 619. Here is the abstract.

This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

Download the article from SSRN at the link.

James Wilson and Popular Sovereignty

Ian C. Bartrum, University of Nevada, Las Vegas, School of Law, is publishing James Wilson and the Moral Foundations of Popular Sovereignty in the Buffalo Law Review. Here is the abstract.

This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our understanding of Wilson’s account by revealing its roots in moral sentimentalism.

With these roots established, I am able to offer a historically contextualized normative account of popular sovereignty. I identify two justifications: (1) “free and independent” citizens provide the most reliable epistemological connection to natural law; and (2) the purpose of government is to provide citizens the necessary freedom to make autonomous moral judgments. With these justifications in place, I am able to offer two suggestions on how the structure of popular sovereignty can guide our modern constitutional constructions: (1) The federal government — not the states — should remain the primary and presumptive guardian of individual rights; and (2) we should identify sovereignty, not privacy, as the common theme underlying both textual and unenumerated rights. To that end, the judicial inquiry should focus on whether we can justify a particular intrusion into moral agency in terms of some greater benefit to moral autonomy writ large.

Download the article from SSRN at the link.