Serafin on The Corruption of Blood as Metaphor

Nicholas Serafin, Santa Clara University School of Law, has published The Corruption of Blood as Metaphor. Here is the abstract.

Article III, Section 3 of the United States Constitution states that “Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood.” Corruption of blood was a common law punishment according to which individuals adjudged guilty of treason were deemed to possess “corrupt” blood and thus were stripped of the right to transmit property to any heirs. Conversely, their descendants lost the ability to inherit property or titles through the corrupted ancestral line. The punishment was typically imposed via attainders, that is, parliamentary determinations of an individual’s guilt without recourse to a trial. Legal authorities and legal scholars have offered a number of interpretations of the Clause. According to one interpretation, the Clause simply bans the corruption of blood, as this punishment was understood in common law. According to another interpretation, the Clause prohibits the punishment of children for the sins of their parents. According to yet another, the Clause stands for the principle that individuals should not be singled out on the basis of stigmatized group characteristics. Legal scholars remain divided over how to interpret the Clause. Part of the problem lies in the fact that while a number of legal scholars have examined the history of attainder, few have investigated the origins and meaning of the corruption of blood. In fact, much of the history of the punishment, including significant legal precedents discussing the corruption of blood, has not made its way into existing legal scholarship. This Article breaks new ground by tracing the origins of the Corruption of Blood Clause to the Roman law of infamy. I demonstrate that the punishment was imposed not simply for treason but rather for conduct or physical characteristics that were thought to be morally shameful. As the punishment was adopted in feudal Europe, the idea of corrupt blood became associated with individuals and groups who possessed stigmatized physical characteristics. In American law, this sense of corrupt blood was retained and applied particularly in cases involving immigration, integration, and intermarriage. In these cases, non-white groups were deemed to possess corrupt blood and so were excluded from the American body politic. Drawing on this history, I defend a “group-status” interpretation of the corruption of blood. I argue that the principle prohibits state action that singles out outcast groups, particularly groups defined by stigmatized physical characteristics. Because stigmatized physical characteristics are often shared by group members and passed down through generations, the principle is especially relevant when children are threatened with intergenerational punishment. The corruption of blood principle thus provides a separate foundation for important antidiscrimination doctrinal tools, such as the Court’s animus and stigma jurisprudence. Yet I also argue that the Clause itself bears directly upon issues like felon disenfranchisement and the Trump administration’s child-separation policy at the United States- Mexico border.

Download the article from SSRN at the link.

Smitherman on History, Public Rights, and Article III Standing @Harvard_Law

Owen Smitherman, Harvard Law School, is publishing History, Public Rights, and Article III Standing in volume 47 of the Harvard Journal of Law & Public Policy. Here is the abstract.

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort. This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Download the article from SSRN at the link.

The Revolutionary War Prize Cases and the Development of Diversity Jurisdiction in U.S. Law

Deirdre Mask, London School of Economics & Political Science, and Paul MacMahon, London School of Economics, Law Department, are publishing The Revolutionary War Prize Cases and the Origins of Diversity Jurisdiction in volume 633 of the Buffalo Law Review (2015). Here is the abstract.

Why did the Framers give the federal courts diversity jurisdiction? This Article brings to light a crucial but forgotten source of inspiration for diversity jurisdiction, showing that previous explanations ignore the Framers’ experience judging prize case appeals during the Revolutionary War. Scholars have largely rejected the view that the Framers anticipated state bias in diversity litigation, arguing, for example, that diversity jurisdiction was designed to provide a high-quality venue for commercial disputes. Yet placing the Framers’ decision in the context of their lived experience as judges in contentious "Prize Cases" during the Revolutionary War rehabilitates the geographic bias theory. During the War, the Continental Congress relied heavily on privateers — private citizens, who, with the financial support of individual states or Congress, were authorized to capture British ships. At George Washington’s urging, the Continental Congress set up an adjudicatory committee within Congress itself, the Committee on Appeals, to resolve appeals from prize cases in the state courts. The Framers’ taste of judicial work exposed them to contentious interstate disputes — a preview of what diversity litigation would look like in the new country. We argue that this experience, almost entirely ignored by contemporary scholars, directly inspired the otherwise perplexing decision to include diversity jurisdiction in Article III.

Download the article from SSRN at the link.