Wieboldt on Ken Kersch and the New Legal History

Dennis J. Wieboldt, III, has published Ken Kersch and the New Legal History: Beyond the Internalist/Externalist Divide at 4 J. Am. Const. Hist. 27 (2026).

The death of Kenneth Ira Kersch on November 27, 2024, was devastating to the family, friends, and students of the late Boston College political scientist. So too was Kersch’s passing a tremendous loss for scholars of American constitutionalism, many of who awaited his completion of a planned, three-volume series on the subject. But over the course of his twenty-five-year career, Ken Kersch taught his students and colleagues much about the Constitution and the culture in which that creedal document was—and is—embedded. In recognition of Kersch’s contributions to the fields of political science, history, and law, this symposium therefore brings together leading and emerging scholars in all three fields to reflect on Kersch’s legacy. To introduce this symposium, this essay first describes the methodological debates that shaped scholarly thinking around the time of Kersch’s intellectual formation as a graduate student about how best to understand the conditions under which constitutional change occurs. Then, this essay explores how Kersch’s two most well-known monographs—Constructing Civil Liberties and Conservatives and the Constitution—responded to and attempted to move beyond those debates. And in concluding, this essay identifies one enduring methodological lesson of Kersch’s “new legal history”—namely, that scholars ought to foreground the “constitutional imaginations” of the legal advocates and advocacy institutions that most directly mediate judicial decision-makers’ relationships to broader social and political movements.

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Peterson on The Limits of Text

Farah Peterson, University of Chicago Law School, has published The Limits of Text at 135 Yale L.J. 2790 (2026).

Let’s say the “laws” are the rules that actually constrain power, organize government, and coerce people. That is, let’s define the law as the system of rules we experience, and not just the system of rules our statutes, precedents, and founding documents describe. Just now, during the second Trump presidency, the gap between the law as it is written and the law as we experience it is obvious even to lay observers. Yet the dominant ways of thinking about law—textualism and originalism—are so focused on the proper interpretation of our legal texts that I fear we have lost sight of the limits on those texts’ capacity to guarantee the rights, obligations, and principles they enshrine. The law as the Founding generations experienced it also differed from the law described in legal texts. The term “Founding” suggests, misleadingly, that Americans made a decisive political commitment to the style of government described in the Constitution. For some of the Constitution’s central features—including the delineation of federal and state prerogatives, separation of powers, and federal judicial authority—ratification was the beginning of a process of constitutional change, not the end. Because law in practice differed from the law on the page, we cannot know the content of the original Constitution by reading its words, by knowing what the text would have meant to English-speaking contemporaries, or by reference to early judicial interpretation. This Atkins Feature discusses how early American law differed from text and why, and what early American history teaches us about when we should expect texts to create governing law and when we should expect text and law to diverge. Those lessons should make us cautious about the weight we place on written law. That is not to say text does not matter. But a simplistic insistence that text defines the system of rules we experience—that it can constrain power in the face of changing norms or protect our system of government—is dangerous.

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Larsen and McSweeney on Medieval Treatises and the Judicial Search for a Useable Past

Alli Orr Larsen and Thomas McSweeney, both of William & Mary Law School, are publishing Medieval Treatises and the Judicial Search for a Useable Past in volume 79 of the Stanford Law Review. Here is the abstract.

The Supreme Court’s recent turn to history and tradition has prompted a renewed interest in the far distant past – the laws and customs of the Middle Ages. But medieval treatises are full of traps for the unwary. This article – a joint enterprise between a medieval legal historian and a Supreme Court scholar – carefully explores what makes these treatises uniquely complicated and easy to get wrong. To start, they are written in Latin and, sometimes, Old French. In many instances, the underlying medieval decisions they reference are destroyed and gone forever. Because there was no photocopier or even printing press back then, treatises often come in competing versions reflecting not only multiple authors but also successive copyists who made substantive changes. And legal texts were just different in the thirteenth century. Treatises were used for purposes as diverse as passing on cultural values, advising rulers on how to govern, and even teaching people the ideals of friendship. Put simply: medieval law is hard to find, hard to read, and even harder to put into context. For the American judge or law clerk who is strapped for time but wants to make a point about a long tradition, the understandable temptation is to reach for an authority like a medieval treatise that feels familiar. After all, modern legal treatises (think Wright and Miller) are recognized as trustworthy authorities to cite. And today translated versions of medieval treatises are easy to find digitally. But that ease of access and familiarity of authority are illusory. Often the very things that make these medieval texts feel familiar to modern readers would have made them idiosyncratic to thirteenth century audiences. Our goal in this article is to raise the caution flag for judicial consumption of medieval treatises: a user-friendly useable past can lead modern lawyers and jurists astray and should not be consumed without scrutiny and care.

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McNeil on The Intertemporal Law Doctrine's Application to the Acquisition of Colonies in the Americas

Kent McNeil, Osgoode Hall Law School, has published The Intertemporal Law Doctrine’s Application to the Acquisition of Colonies in the Americas. Gere is the abstract.

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and apply the international law extant at the time sovereignty was claimed. As international law has evolved from the time European overseas colonial expansion began in the fifteenth century, this means that different standards can apply in diverse colonial contexts, depending on when sovereignty is alleged to have been acquired.

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Walker on Vagueness' Three Faces

Alexander Walker, Columbia University Law School, has published Vagueness' Three Faces as a Columbia Public Law Research Paper. Here is the abstract.

In the law of interpretation, context is king. There is widespread consensus that the interpretive act requires knowing more than just the words on the page. Jurists might disagree about how important certain features of context are, but no one, we are told, is a literalist anymore. This essay challenges the received wisdom that the law has moved away from literalism by looking at doctrines that are triggered by a finding of a lack of clarity. These doctrines—variously called clear statement rules or clarity doctrines—require a court not to determine the best meaning of a legal text but rather whether that text is unclear. This essay uncovers that doctrines spanning criminal, administrative, contract, Federal Indian Law, and constitutional law employ three different theories of language to determine whether a text is clear. One is communal. One is individualistic. But one is decidedly literalist. While there is nothing per se wrong with different theories in different contexts, this essay argues that the literalism currently present in certain doctrines—notably the rule of lenity and void-for-vagueness doctrine—is either illogical or illegitimate. Instead, using Federal Indian Law as a paradigm, courts should fashion an understanding of clarity that is in the general case communal but admits individualistic considerations when justice so requires, patterning off the law-equity divide. This approach avoids the rule-of-law concerns where beliefs about efficiency sneak into discussions of language while also respecting the complexity of language.

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Marmor on The Ontology of Legal Facts

Andrei Marmor, Cornell University Law School, has published The Ontology of Legal Facts as Cornell Legal Studies Research Paper No. 25-35. Here is the abstract.

Hans Kelsen had three main insights about the ontology of legal facts. First, that there are legal facts in our world, facts of a distinctly legal type. Actions and events in the world can have, objectively speaking, particular legal significance. Second, Kelsen claimed that legal facts belong to the domain of meaning. Law is, by and large, a scheme of interpretation, enabling us to ascribe legal meanings to certain actions and events in the natural world. Finally, and most problematically, Kelsen maintained that legal facts are normative facts, and as such, they require normative grounding, metaphysically speaking. Since Kelsen famously thought that normative grounding can only be done by other norms, he thought that we are eventually led to a Basic Norm that needs to be presupposed. I argue in this paper that Kelsen is quite right about the first two insights, and wrong about the third. Even if we assume that law is mostly about norms and all legal facts are facts about norms, they are not necessarily normative facts. Which also means that their metaphysical grounding does not have to be normative. The metaphysical building blocks of legal facts, like facts about semantic meanings and symbolism generally, consist of what people tend to do, what they think, and intentions they collectively share in the appropriate ways. There is no need for presuppositions. I also ties this view about the nature of legal facts to the kind of fictionalism about law I had argued for in the past.

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Wieboldt on Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism

Dennis J. Wieboldt, III, University of Notre Dame, is publishing Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism During the Cold War, 1947-1951 in volume 42 of the Law & History Review. Here is the abstract.

Recent scholarship on conservative constitutionalism in the United States focuses near exclusively on the development of originalism as a method of constitutional interpretation. Before conservatives turned to originalism to counter the perceived threats of an activist judiciary in the 1980s, however, this article demonstrates that conservatives employed a very different interpretive philosophy to counter a very different perceived threat. To do so, this article reconstructs the history of a conservative legal movement that predated "the" conservative legal movement. Indeed, this article uncovers how conservatives employed natural law philosophy to respond to the elite legal academy's seemingly morally foundationless positivism during the Cold War. The network of natural lawyers that sustained this earlier movement was deeply indebted to the Natural Law Institute (NLI), an academic initiative of the University of Notre Dame established in 1947. By framing the founding fathers' natural law philosophy as a bulwark of individual liberty against the encroachments of legal realists, World War II-era totalitarians, and Cold War communists, the NLI created what the political scientist Amanda Hollis-Brusky has termed a "political epistemic network." In concluding, this article suggests that recovering the history of the NLI's epistemic network reveals the importance of natural law to the making of conservative constitutionalism during the Cold War.

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Muñoz on History and Tradition in the Trump Justices' Church-State Jurisprudence

Vincent Phillip Muñoz, University of Notre Dame, Department of Political Science, has published History and Tradition in the Trump Justices’ Church-State Jurisprudence. Here is the abstract.

This article analyzes conservative Supreme Court justices' recent use of history and tradition in First Amendment religious liberty cases. It argues that these justices have failed to articulate a persuasive rationale as to why exactly the Establishment Clause must be interpreted by reference to historical practices and understandings and that they have failed to adequately show that history supports their "no-coercion" construction of what constitutes a prohibited establishment. Concerning the Free Exercise Clause, the court's conservatives have dismissed history by disregarding historical practices that do not conform to their approach to the text. The court's use, misuse, and nonuse of history cannot help but give the impression that policy preferences-more than history or the actual original understanding of the First Amendment-have determined recent church-state decisions.

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Werner on The Physics of Law

Swen Werner, My Digital Truth, has published The Physics Of Law. Here is the abstract.

This paper interrogates the structural preconditions of lawful decision-making by showing that law is a symbolic system grounded in logical coherence, semantic stability, and operational consistency. It argues that contemporary legal interpretation increasingly abandons these foundational requirements, leading to a form of institutional dysfunction where law devolves into a belief system. Drawing from Roman legal architecture, computational logic, and legal theory, the paper reframes rights not as normative entitlements but as structurally necessary constraints within a rule-based system. It proposes a non-normative justification for private property as a logical gate enabling coherent legal action among actors with equal rights and no default duties. Through critical analysis of machine adjudication, AI unreliability, and copyright enforcement, it illustrates how legal coherence is undermined when the symbolic form of law is severed from its functional logic. The paper concludes by presenting a framework to restore lawful governance through epistemic clarity and constraint-based reasoning, arguing that legal systems must enforce coherence or collapse into ritualized control. Law is not opinion - it is computation.

Download the paper from SSRN at the link.

Barbas on Originalism in Modern Free Speech History

Samantha Barbas, University of Iowa College of Law, has published Originalism in Modern Free Speech History as U Iowa Legal Studies Research Paper No. 2025-13. Here is the abstract.

Contrary to what is often assumed, originalism has played an important role in our free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of this argument was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anticommunist measures. They argued that the original meaning of the First Amendment was the ban on punishment for criticism of the government, and that many of the government’s anticommunist measures were effectively a form of prosecution for seditious libel and unconstitutional. This essay describes the popularization of First Amendment originalist arguments in the 1950s and early 60s, culminating in New York Times v. Sullivan. It explains how originalist First Amendment arguments came to be seen as an important liberal line of defense against government anticommunist efforts. Activists, scholars, lawyers, and justices on the left mobilized in a loosely affiliated sort of First Amendment “originalist movement” in an attempt to defeat the Red Scare. Ultimately, the essay suggests that originalism is a legal and social phenomenon that is intimately intertwined with culture and politics. Originalist ideas arise from multiple sources, including interest groups, intellectuals, journalists, lawyers, and ordinary citizens. The case study offers one example of how legal advocates and scholars in the mid-twentieth century deployed originalist arguments instrumentally, in response to the circumstances and perceived exigencies of their times.

Download the essay from SSRN at the link.

Aceves on Critical Constitutional Law and the Alito Palimpsest

William Aceves, California Western School of Law, is publishing Critical Constitutional Law and the Alito Palimpsest in volume 27 of the University of Pennsylvana Journal of Constitutional Law (2025). Here is the abstract.

This article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time. Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning. Critical constitutional law uses the metaphor of the palimpsest to study law and the search for essential origins. In antiquity, a palimpsest was a document treated with chemicals or scrubbed to erase the original text. This allowed the document to be recycled and written anew. Yet, some documents still retained faint images of the original text. By exposing repeated erasures and inscriptions, palimpsestic inquiry reveals how the law is in a constant state of transition and transformation. It also reinforces the findings of genealogy, a critical theory that views history as a field of self-interested interpretations and moral prejudices with no true essential origin. Through palimpsestic inquiry, new insights can be gleaned from Dobbs, a legal decision that is simultaneously historical, ahistorical, and filled with history. It exposes the outdated and misogynist values that permeate Justice Alito’s majority opinion. It reveals how history was scraped clean and reinscribed to justify originalist values. But, palimpsestic inquiry also explains that vestiges of Roe and Casey—and the values they represent—still remain. In the Hegelian dialectic of abortion law—where jurisprudential theories struggle for primacy in the zero-sum world of a nine-member Court—the Alito Palimpsest is merely the current iteration. Palimpsestic inquiry confirms that essential origins are seldom what they seem. This article begins with Dobbs, but its contributions to legal theory extend far beyond this one case. If history has become the touchstone for constitutional interpretation, this article offers a more honest methodology for studying law in the modern era. In fact, it provides the “master metaphor” for the study of law—offering clarity to a range of constitutional rights.

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Lo Giacco on Giving Meaning to the Past: Historical and Legal Modes of Thinking @letizialogiacco.bsky.social @unileiden.bsky.social @de_Legiz

Letizia Lo Giacco, Leiden University Law School, has published Giving Meaning to the Past: Historical and Legal Modes of Thinking at 9 (2) Jus Gentium: Journal of International Legal History 371 (2024).

This contribution revisits the "turn to history" in international law by focusing on the debate on method between international lawyers and (legal) historians. The paper resorts to an analogy between interpreting the past and interpreting the law as giving-meaning activities to help elucidate points of juncture between these two disciplines. Against flourishing instrumentalist re-readings of the past and manipulative uses of history that both historians and international lawyers have denounced, this paper suggests a way to validate historical narratives and discern among those which contribute to the knowledge of the past and those who would not. It concludes that the "turn to history" in international law is better appreciated as a project geared towards re-assessing its own tradition, fostering self-reflection on international law as a set of doctrines and the role of international lawyers therein, i.e. what it entails to reproduce them as international lawyers.

The full text is not available from SSRN.

Siegel on The Levels-of-Generality Game: "History and Tradition" in the Roberts Court @HarvardJLPP @YaleLawSch

Reva Siegel, Yale Law School, is publishing The Levels-of-Generality Game: "History and Tradition" in the Roberts Court in volume 47 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Scholars have not agreed upon a method of interpretation that explains the Court’s reasoning in Dobbs v. Jackson Women’s Health Organization or New York State Rifle & Pistol Association v. Bruen. As this Article shows, what explains the history-and-tradition decisions of the Roberts Court is not a method of interpretation, but instead a justification for the Court’s turn to the past. The conservative Justices claim that interpreting the Constitution through history and tradition—when described in granular factual detail—best constrains judicial discretion by tethering law to objective criteria separate from the interpreter’s policy preferences. Justice Scalia long ago advanced this claim, and began a decades-long debate over “levels of generality” when he urged judges “to adopt the most specific tradition as the point of reference.” The Article contrasts this belief—that tying constitutional interpretation to history can constrain the expression of judicial values—with an alternative account. An interpreter’s appeal to facts about the nation’s past in constitutional argument often expresses values—forms of argument I have called “constitutional memory” claims. What appear in constitutional argument as positive, descriptive claims about the past are often normative claims about the Constitution’s meaning. In this Article, I show how my account of constitutional memory identifies the expressive role of conservative historicism, counters the judicial-constraint justification, and offers new perspectives on the levels-of-generality claims associated with it. The Article opens by examining puzzles of method and justification presented by Dobbs and Bruen during the 2021 Term. It concludes with a late-added section that samples the Justices debating the Article’s judicial-constraint and levels-of-generality themes in cases of the 2023 Term—in particular, in the Second Amendment case of United States v. Rahimi. The Article’s account of Dobbs, Bruen, and Rahimi demonstrates that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

Download the article from SSRN at the link.

Brown, Epstein, and Gulati on The Constraining Efect of "History and Tradition": A Test

Rebecca L. Brown, USC School of Law, Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published The Constraining Effect of "History and Tradition": A Test as Virginia Public Law and Legal Theory Research Paper No. 2024-63, Virginia Law and Economics Research Paper No. 2024-28, and USC Law Legal Studies Paper No. 24-33. Here is the abstract.

The U.S. Supreme Court’s embrace of originalism, and particularly the “history and tradition” method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. Two Second Amendment cases (Heller in 2008 and Bruen in 2022), where the Court switched methodologies, provide a vehicle to test the debated question. Analyzing data from federal court decisions on gun rights spanning 2000 to 2023, we find that the switch from a means-ends to a history-tradition methodology corresponds with an increase in judicial discretion. Personal factors like partisan identity, gender, race and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime. The results challenge the notion that a historical approach provides a neutral constraint on judicial discretion.

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Steel on Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934-2022 @reillysteel @ColumbiaLaw @Princeton @PennJCL

Reilly Steel, Columbia Law School; Princeton University, is publishing Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022 in the University of Pennsvylvania Journal of Constitutional Law. Here is the abstract.

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing "neutral" interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Leveraging a novel dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC), an elite unit of the Department of Justice (DOJ) that provides authoritative legal opinions to top executive branch officials, I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions. Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture. These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC's language use casts doubt on the prospect that high-ranking executive branch lawyers will act as "neutral expositors" when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against—or alternatively facilitating—democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms.

Download the article from SSRN at the link.

Lloyd on Recasting Canons of Construction Into "Canonical" Queries: Canons and Queries of Meaning, Spirit, Letter, and Text @LloydEsq @WFULawSchool

Harold Anthony Lloyd, Wake Forest University School of Law, has published Recasting Canons of Construction Into “Canonical” Queries: Canons and Queries Of Meaning, Spirit, Letter, and Text. Here is the abstract.

This article builds upon my two prior articles addressing deficiencies in the canons of construction and the need to convert such canons to “canonical” queries. Focusing on canons, presumptions, and queries of speaker meaning, spirit, letter, and text, this article explores: General Queries of Speaker Meaning, Ordinary-Meaning Queries, Consistent Usage Queries, Signifier Drift Queries, Sense Fixation Queries, Reference Fixation Queries, General/Specific Queries, Prospectivity/Retroactivity Queries, and Purpose or “Spirit” Queries. In addressing such queries, this article: (1) continues to recast “canons of construction” into an expanding list of common or “canonical” queries and related tools; (2) addresses necessary steps of distinguishing interpretation (addressing linguistic meaning) from construction (addressing legal meaning); (3) explores the importance of querying speaker meaning including legislative intent; (4) debunks claims that legislative intent is a problematic concept; (5) addresses the necessary step of exploring all available evidence (including legislative history) when performing interpretation and construction; and (6) addresses essential linguistic and semiotic frameworks for such “canonical” queries and related tools. In addressing these essential linguistic and semiotic frameworks, this article also: (7) explores why queried text is a semiotic co-relation of signifier(s) and signified(s); (8) debunks illusory conflicts between text, letter, and spirit of the law; (9) calls out needs to define the meaning of “meaning” presupposed by theories of interpretation and their semantic queries; (10) explores the necessarily experiential and thus temporal nature of such meaning; (11) addresses how meaning’s experiential and thus temporal nature undermines strict fixation theses without also undermining meaning otherwise anchored by concepts or conceptions acknowledged to be temporal; (12) otherwise highlights the essential role of time and experience in legal hermeneutics and semantic queries; and (13) underscores hermeneutics’ essential role not only in rule of law but also in the genesis of lifeworlds so ruled. Any plausible textualism must be consistent with all the above. In that vein, this article is written with hopes of adding its explorations (along with those of my two prior canons to queries articles) to a planned book countering Scalia and Garner’s Reading Law: The Interpretation of Legal Texts. I am happy to share the most current outline of this planned work upon request.

Download the article from SSRN at the link.

Tobia on New Methods on Statutory Interpretation @kevin_tobia @GeorgetownLaw

Kevin Tobia, Georgetown University Law Center; Georgetown University Department of Philosophy, has published New Methods in Statutory Interpretation: Surveys, Corpus Linguistics, ChatGPT. Here is the abstract.

We live in an age of statutes, and textualism is the dominant method of interpreting them. This much is now familiar, encapsulated by Justice Kagan's 2015 announcement that "we are all textualists now." But this story has a recent twist: Textualism's methods are evolving. This short essay introduces some recent developments in textualist methods. Textualists are looking to corpus linguistics, surveys, and even large language models (e.g ChatGPT) to determine the meaning of statutory text. At the same time, textualists grow more skeptical about the force of some traditional methods: dictionaries, substantive canons, and even linguistic canons.

Download the essay from SSRN at the link.

Steel on Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934-2022 @PennJCL @reillysteel @Princeton

Reilly Steel, Princeton University, is publishing Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022 in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing "neutral" interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Leveraging a novel dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC), an elite unit of the Department of Justice (DOJ) that provides authoritative legal opinions to top executive branch officials, I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions. Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture. These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC's language use casts doubt on the prospect that high-ranking executive branch lawyers will act as "neutral expositors" when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against—or alternatively facilitating—democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms.

Download the article from SSRN at the link.

Balkin on Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity @jackbalkin @YaleLawSch @BULawReview

Jack M. Balkin, Yale Law School, is publishing Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity in the Boston University Law Review. Here is the abstract.

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it? This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today.

Download the essay from SSRN at the link.

Mootz and Hannah on The Strange Persistence of Originalism

Francis Joseph Mootz, III, McGeorge School of Law, and Mark Hannah, Arizona State University, have published The Strange Persistence of Originalism. Here is the abstract.

Originalism has positioned itself as the au courant doctrine of legal interpretation. Proponents argue that originalism is a core element of our democratic identity and should be adopted by every judge. The originalist tenet -- that the meaning of a legal text is the ordinary meaning the text had at the time of its enactment -- purportedly provides an objective basis for judging with integrity. Despite originalists’ grandiose claims, critics have lodged many well-reasoned objections that problematize originalists’ goals and methods. Why, then, has originalism gained such widespread prominence? In this article, we offer a rhetorical analysis that explains its ascendance and strange persistence. Our thesis is that originalists do not prevail primarily by persuading others through logic or dialectical reasoning (logos) or by promoting their audience’s disposition to hear their argument (pathos). Instead, originalists bring force to their claims by establishing and projecting an ethos. They draw on ethos when claiming to be principled legal advocates who are persons of good character and wisdom. However, ethos has a broader scope than the speaker’s reputation or character exhibited in an effort to persuade. Only by acknowledging this dimension of ethos can we explain how originalists have dominated recent jurisprudential debates.

Download the article from SSRN at the link.