Chabot on Appendices for The Interstitial Executive: A View From the Founding

Christine Kexel Chabot, Marquette University Law School, has published Appendices for The Interstitial Executive: A View from the Founding. Here is the abstract.

This file contains Appendices to Christine Kexel Chabot, The Interstitial Executive: A View from the Founding (October 28, 2025), available at https://ssrn.com/abstract=5673491

Download the Appendices from SSRN at the link.

Magliocca on "Right in Theory, Wrong in Practice": Women's Suffrage and the Reconstruction Amendments

Gerald N. Magliocca, Indiana University School of Law, is publishing "Right In Theory, Wrong In Practice": Women's Suffrage And The Reconstruction Amendments in the Journal of American Constitutional History. Here is the abstract.

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge of Iowa dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon. They pioneered the belief that the Fourteenth Amendment gave women equal citizenship and that legal distinctions based on sex can be irrational. They made the first textual and structural arguments for the right to vote. The Loughridge Dissent also defended an interpretive stance that rejected original meaning and tradition in favor of a panoramic construction of the Constitution as "right in theory but wrong in practice." Lastly, recognizing the creative work of the suffragists and their fellow travelers is a vital first step toward filling the between constitutional practice, which cares about women's rights, and constitutional theory, which generally does not. The Woodhull Petition and the Loughridge Dissent also advanced textual claims that challenge modern assumptions. For instance, they said that the Fifteenth Amendment affirmatively recognized a "right of citizens of the United States to vote" instead of merely proscribing a certain kind of voting discrimination. Loughridge relied on the Constitution's Preamble as authority for the proposition that women's suffrage could not be denied, instead of treating the "We the People" paragraph as purely ceremonial. Finally, he argued that the text is sometimes best read descriptively or agnostically rather than prescriptively; an approach which could lead to a fresh of view of constitutional issues such as voting rights for ex-felons and the death penalty.

Download the essay from SSRN at the link.

Sachs on Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles @StephenESachs @HarvardJLPP

Stephen E. Sachs, Harvard Law School, is publishing Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles in the Harvard Journal of Law and Public Policy. Here is the abstract.

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Download the essay from SSRN at the link.

Kent on Executive Power, the Royal Prerogative, and the Founders' Presidency @andrewkent33 @FordhamLawNYC

Andrew Kent, Fordham University School of Law, has published Executive Power, the Royal Prerogative, and the Founders' Presidency at 2 Journal of American Constitutional History 403 (2024). Here is the abstract.

The original meaning of the opening clause of Article II of the Constitution--which vests "[t]he executive power ... in a President of the United States"--has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered "executive" in nature in the eighteenth century, defined by reference to the royal prerogative powers of the British monarchy. Other scholarship views the Clause as granting only the power to execute the law. A third approach interprets the Clause even more minimally, as a mere designation provision, not granting power at all but making clear that there would be a singular chief magistrate called the president, with power flowing from enumerations such as the Commander in Chief, Appointments, Pardons, and Treaty Clauses. This Article comprehensively reviews the British and American legal, political, and ideological backgrounds relevant to understanding the Executive Power Clause; carefully reads the text in light of interpretive conventions used in the founding era and extrinsic evidence from the Philadelphia Convention and state ratification debates; and critically evaluates the current scholarship. The wide divergence among modern scholars about the meaning of the Executive Power Clause is found to reflect real ambiguity in the text of the Constitution and the historical records. Unlike many previous scholars, who have settled on their preferred reading as the clearly correct choice, I find that there are several plausible original public meanings of the Executive Power Clause. When the new government under the Constitution became operational in 1789, the ambiguous Clause was sitting there ready to become a site of contestation. That said, the text and history I review here support at least one firm conclusion: by far the least plausible original meaning of the Executive Power Clause is the one which sees it as granting an undefined amount of British royal prerogative power to the president.

Download the article from SSRN at the link.

Balkin and Levinson on Frederick Douglass as Constitutionalist @jackbalkin @UTexasLaw @YaleLawSch

Jack M. Balkin, Yale Law School, and Sanford Levinson, University of Texas Law School, are publishing Frederick Douglass as Constitutionalist in the Maryland Law Review. Here is the abstract.

Frederick Douglass is an important symbol in American constitutional memory, cited in U.S. Supreme Court opinions and invoked by people with very different political ideologies. In this essay, we explore Douglass's constitutional philosophy by contrasting his views about fidelity to the U.S. Constitution and the rule of law with those of Abraham Lincoln and those of John Brown, who led the 1859 raid on Harper's Ferry, Virginia to incite an armed revolt against slavery. Douglass's views about the U.S. Constitution changed over the years, and were often in tension with each other, but he was at best an ambivalent constitutionalist. In many respects his views about the Constitution were closer to those of John Brown, who believed that violence was necessary to redeem constitutional government, than those of Abraham Lincoln, who advocated obedience to law in his Springfield Lyceum speech and who accepted slavery as the price of constitutional government in his First Inaugural address. Although politicians and judges today may prefer a sanitized version of Frederick Douglass, his actual views about how faithful one should be to an unjust constitution raise important questions for us today.

Download the article from SSRN at the link.

Shugerman on Movement on Removal: An Emerging Consensus on the First Congress @jedshug @BU_Law

Jed H. Shugerman, Boston University School of Law, has published Movement on Removal: An Emerging Consensus on the First Congress. Here is the abstract.

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress. The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity,” since published in the University of Pennsylvania Law Review). Unitary theorists on the panel conceded some errors and problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to emphasize statutory texts rather than legislative history (though the texts do not indicate an Article II removal power); that the endorsement of even a minority faction of roughly 30% of the House was still substantial; that it was the quality of the argument, not the quantity of supporters (though the “quality” is in the eye and the ideological priors of the beholder, and though it is unclear how original public meaning could be established by a defeated minority position); or perhaps it is the quality or historical importance of the speakers, like Washington, Hamilton, Madison, and Marshall, that counts (nevermind that Madison, Hamilton, and Marshall also contradicted the unitary theory). None of these pivots rescues the “Decision” myth. Perhaps most interesting was the unitary theorists' openness to turning to later evidence, of practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods of “original public meaning” during Ratification, and to engage in methods more consistent with common law constitutionalism and living constitutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory.

Download the article from SSRN at the link.

Sanders on the Mystery of the Missing Babies @IJSanders

Anthony B. Sanders, Institute for Justice, has published Mystery of the Missing Babies. Here is the abstract.

This essay begins with my recently published book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters and then digs into a nuance I did not pursue there. The book demonstrates that Baby Ninth Amendments—state constitutional versions of the Ninth Amendment to the U.S. Constitution—grew in popularity across American history, especially after the Civil War. This was especially true in new states, with 13 of the 15 states to enter the Union since the war adopting “Baby Ninths.” But what about those other two states, namely North and South Dakota? Why did they not adopt Baby Ninths? At the beginning of the research I suspected it might have something to do with the judicial minimalism of James Bradley Thayer, the influential Harvard Law professor who had a “legendary” role in drafting the North Dakota Constitution. But what I find is nothing so conspiratorial and, instead, much more interesting. Thayer was apparently noncommittal or perhaps even supportive of including a Baby Ninth in a state constitution. Indeed, a Baby Ninth could have ended up in the constitutions of either state. Why one did not was due to a combination of the caprice of which existing states the drafters modeled their draft constitutions on, the happenstance of the lack of a “champion” for Ninth Amendment language among the delegates, and the defects of a Keystone Cops-seeming scheme involving Thayer and the Northern Pacific Railroad. The lesson to draw is not that the framers of the Dakota constitutions did not welcome unenumerated rights. It is a larger one: To remember the outsized role of founding effects, personality, and the vicissitudes of fortune on constitutional formation.

Download the article from SSRN at the link.

Treanor on Gouverneur Morris and the Drafting of the Federalist Constitution @GeorgetownLaw @GeorgetownJLPP

William Michael Treanor, Georgetown University Law Center, is publishing Gouverneur Morris and the Drafting of the Federalist Constitution in volume 21 of the Georgetown Journal of Law & Public Policy (2023). Here is the abstract.

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger Sherman. There is a lot to work with. Gouverneur Morris is the one “forgotten founder” who really shouldn’t be for-gotten. The classic picture of Gouverneur Morris is actually a joint picture painted by Charles Willson Peale in 1783. Gouverneur Morris is on the left, and Robert Morris is on the right. They weren’t relatives, despite the shared last name, but they were very close. Gouverneur Morris and Robert Morris were business partners during the Revolutionary War. Robert Morris, who is kind of the Jeff Bezos of the 1780s, was as close as the United States had to a president during the Revolutionary War. He was the head of finance and Gouverneur Morris was his number two. I will be focusing today on Gouverneur Morris’s work on the Committee of Style at the end of the Federal Constitutional Convention. As the Federal Constitutional Convention is drawing to close, it’s hot and everybody’s tired. It has been four weeks since they had a draft of the Constitution, which was composed by the Committee of Detail. There has been a month of debate and votes up, votes down. There’s no draft constitution, even though the Convention is near the end of its work. So, the delegates together form a committee—the Committee of Style and Arrangement—and over three days this committee drafts the Constitution with Morris as the lead drafter. And then, very hurriedly, the Convention reviews it, almost completely adopts it, and goes home. The work of the Committee is supposed to be polishing the Constitution—taking what’s already been agreed to and putting it in a final document. But what I argue in a recently published article in the Michigan Law Review— the basis of this talk—is that, as the drafter on the Committee of Style, Morris made fifteen substantive changes. As you’ll see, most of them are very subtle, but they have incredible consequence: He carefully picked words to advance particular substantive ends. With the passage of time, we have lost the meaning of much of this text. But if we are going to read the Constitution clearly—and as it was ratified at the time—we must recover the meaning of the texts that, on fifteen occasions, he changed. This is particularly important at a time when four members of the Supreme Court are originalists and focus on the original meaning of these words. One part of this talk is about the changes he made. There were a number of basic causes Gouverneur Morris tried to advance during the Constitutional Convention, and he lost a lot of those battles in the months before he became the Committee of Style’s drafter. He was a big government person. He was probably, with the possible exception of Alexander Hamilton, the strongest nationalist at the Convention. He was a big protector of private property. He was a champion of the judiciary and judicial review, and he was unquestionably the fiercest opponent of slavery at the Convention. And he was, with James Wilson, the Convention’s leading champion of the Presidency. In each of those areas, on the Committee of Style, he made very subtle changes to advance his goals. If you read the text in accordance with the meaning of the words in 1787, you’ll see how it reflects his meanings, what he wanted to achieve. Taken all together, with these changes, Morris created the Federalist Constitution. That will be the subject of the first part of this talk. But most originalists today read the Constitution very differently. They see the Constitution as a Jeffersonian Republican Constitution, not as a Federalist Constitution. And the reason why that occurred is the topic of the final part of this talk. I will discuss how the Constitution’s original meaning was lost. My thesis here is a simple one, but an important one for constitutional law. At the Convention, the Federalists won the battle over the Constitution’s text. In the years that followed, however, they lost the battle over what that text means.

Download the article from SSRN at the link.

Bendesky on "The Key-Stone to the Arch": Unlocking Section 13's Original Meaning @Harvard_Law @PennJCL

Kevin Bendesky, Harvard Law School, is publishing ‘The Key-Stone to the Arch’: Unlocking Section 13’s Original Meaning in volume 26 of the University of Pennsylvania Journal of Constitutional Law (2023). Here is the abstract.

The Pennsylvania Supreme Court holds that Section 13 of the State’s Constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only “cruel and unusual punishments.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This is because Pennsylvania history, says the court, does not provide evidence that the Commonwealth’s prohibition differs from the federal one. Without that historical basis, the court believes it is bound by federal precedent. This is mistaken. History reveals that Pennsylvanians had a distinct original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited any severity contemporary science deemed unnecessary for those ends. The historical record should provide, not prevent, a distinctly Pennsylvanian definition of cruelty. This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Pennsylvania Supreme Court interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments. Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history provides.

Download the article from SSRN at the link.

Tyler on Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic @profamandatyler @BerkeleyLaw @VirginiaLawRev

Amanda L. Tyler, University of California, Berkeley, School of Law, is publishing Judicial Review in Times of Emergency: from the Founding through the COVID-19 Pandemic in volume 109 of the Virginia Law Review. Here is the abstract.

Whether deferring to President Lincoln’s blockade at the start of the Civil War, a state’s suspension of creditors’ remedies during the Great Depression, or President’s Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II, the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that during peacetime would be viewed as flouting the Constitution. Although there have been a handful of exceptions to this practice, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency. In several recent cases, however, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where they intersect with the exercise of religion, but also in the area of property rights and separation of powers. The Court’s propensity to be so active of late should revive debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same. This article explores the role of the Constitution and judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic, while surveying debates on either side of the competing visions that emerge. Then, after criticizing the Court’s inconsistent approach to its role during the pandemic and acknowledging that many may find fault in its merits assessments of certain cases, the article contends that the application in some recent cases of normal standards of judicial scrutiny during times of emergency should be viewed as a welcome development. The Court’s recent decisions suggest we have traveled some distance in rejecting the prosecution’s argument at the trial of the Lincoln conspirators that the Constitution is “only the law of peace, not of war.” But, as will also be shown, we still have a considerable way to go.

Download the article from SSRN at the link.

Mohr on Opposition to the 1922 Irish Free State Constitution @UCDLawSchool

Thomas Mohr, Sutherland School of Law, University College Dublin, has published Opposition to the 1922 Irish Free State Constitution as UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 8-2023. Here is the abstract.

This paper outlines why some Irish people felt that they could not support the 1922 Constitution of the Irish Free State and how they expressed their opposition to it. The most obvious group that opposed the 1922 Constitution were those that had also opposed the Anglo Irish Treaty signed in 1921. This paper will examine the legal arguments used by this group to challenge the validity of the 1922 Constitution. It will also examine unionist objections and the position of those who felt that they could support the Treaty but had serious reservations concerning the Constitution. The overall objective of this analysis is to provide a better understanding of the circumstances in which the 1922 Constitution came into force.

Download the article from SSRN at the link.

Chabot on The Founders' Purse @KexelChabot @mulaw

Christine Kexel Chabot, Marquette University Law School, has published The Founders' Purse as Marquette Law School Legal Studies Paper No. 23-03. Here is the abstract.

This Article addresses a new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau, and the Supreme Court has agreed to review its decision this term. Notwithstanding the fact that Congress authorized the Bureau’s budget “by law,” the Fifth Circuit held that this law violated the Appropriations Clause because it granted the Bureau substantial budgetary independence in two key respects: first, it afforded the Bureau broad discretion to self-direct its budget for an unlimited duration, and second, it granted the Bureau permanent funds that were drawn from interest-based earnings of the Federal Reserve system. The Fifth Circuit supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, section 9’s Appropriations Clause. Defenders of the Fifth Circuit’s ruling have likewise justified its holding with formalist and originalist arguments that the Bureau’s budgetary independence amounts to an unconstitutional delegation of legislative spending power. The broader debate about delegation of spending power extends beyond the Bureau and calls into question laws awarding similar budgetary independence to financial regulators such as the Federal Reserve as well as the Biden Administration’s ability to forgive student loans (and spend debt owed the government) “without specific statutory authorization.” Originalist claims to a nondelegation doctrine that limits the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for general temporal limitations on Congress’s revenue and spending powers. Second, early congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit, and upon the recommendation of Secretary of the Treasury, Alexander Hamilton, early congresses granted an agency known as the Sinking Fund Commission power to self-direct a permanent fund that was drawn from interest-based earnings on debt held by the United States. To establish an affordable new federal government, early congresses also funded a majority of federal officers including core law enforcement officials and even a new agency through permanent and independently directed fees that were paid by private parties. This history shows that Article I, section 9 means what it says and requires only that Congress authorize spending “by law.” Critics who have questioned the constitutionality of broad delegations of spending power have strayed from the lessons of both text and history.

Download the article from SSRN at the link.

Warden on The Louisiana Constitution of 1974: A Reflection @DerekWardenSJD @SU_LawReview48

Derek Warden, Louisiana Supreme Court, is publishing The Louisiana Constitution of 1974: A Reflection in volume 51 of the Southern University Law Review. Here is the abstract.

The year 2023 marks fifty years since the last full constitutional convention in Louisiana. Next year, 2024, will mark the fiftieth anniversary of our state's constitution. This essay reflects on that document and our shared constitutional history. It calls upon Louisiana law schools and journals to celebrate, in its fiftieth year, the document, the framers, and all those whose faith holds the document in existence.

Download the essay from SSRN at the link.

Koppelman on Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty, and the American Founding @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, is publishing Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding in American Political Thought: A Journal of Ideas, Institutions, and Culture. Here is the abstract.

Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent. The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all. Muñoz offers us a valuable window into the world of Madison. But that world is not our world. If religious liberty is to remain a shared ideal in contemporary America, it will have to be under a different description than the one that Muñoz skillfully recreates. It must not presuppose theistic premises that many Americans reject.

Download the article from SSRN at the link.

Meese on The Constitutional Moment That Wasn't: 1912-1914 and the Meaning of the Sherman Act @NetworkLawRev @WMLawSchool

Alan J. Meese, William & Mary Law School, has published The Constitutional Moment that Wasn't: 1912-1914 and the Meaning of the Sherman Act in the Network Law Review (2022). Here is the abstract.

This short essay assesses and rejects Tim Wu’s contention that the period 1912-1914 was a Constitutional Moment that clarified the uncertain meaning of the Sherman Act. In the Curse of Bigness, Wu rejects the consumer-focused account of the Sherman Act articulated in Standard Oil v. United States, 221 U.S. 1 (1911) in favor of treating “Bigness” as an independent antitrust harm. Unlike other NeoBrandeisians, however, Wu does not claim that the original meaning of the Act dictates his preferred approach. Instead, he candidly concludes that determining the original meaning of the Sherman Act is an “impossible task.” Wu finds that meaning in the events of 1912-1914, namely the Presidential election of 1912 and subsequent passage of the Clayton Act and FTC Act in 1914. Taken together, Wu says, these events constituted “Antitrust’s Constitutional Moment.” Wu claims that the 1912 popular vote and 1914 legislation were a rejection of the Roosevelt-Debs support for national regulation of monopolies and thus “powerful democratic validation” for “the Wilson-Brandeis economic antitrust program.” This validation purportedly served as “democratic resolution of the uncertainty surrounding the purpose of the Sherman Act.” The classic Constitutional Moment occurred in 1937, when the Supreme Court acquiesced in repeated democratic responses to the Court’s protection for economic liberties. Wu offers a creative and thought-provoking interpretation of the events of 1912-1914. However, three distinct historical facts deprive these events of the sort of Constitutional status Wu proposes. First, President and candidate Taft rejected “anti-Bigness,” embracing Standard Oil’s consumer-focused Rule of Reason and safe harbor for reasonable conduct, i.e., normal industrial methods. Taft believed that “large aggregations of capital” were sometimes necessary to reduce production costs. Banning unreasonable conduct, he said, would prevent large firms from excluding their rivals and ensure low prices that shared efficiencies with the public. Presumably Taft’s voters — who supplied numerically decisive support for the popular majority Wu invokes — rejected anti-Bigness in favor of the consumer-focused Rule of Reason, depriving any Wilson-Brandeis approach of “democratic validation” at the polls. Second, as some have observed, Wilson did not mimic Brandeis’s anti-Bigness views. While campaigning, Wilson opined that “[t]he development of business upon a great scale, upon a great scale of co-operation, is inevitable, and, let me add, is probably desirable.” Wilson declared himself “not jealous of any process of growth, no matter how huge the result, provided the result was indeed obtained by . . . the processes of efficiency, of economy, of intelligence, and of invention.” These and similar statements rejected anti-Bigness and could not support any wholesale “democratic validation” of Brandeis’s views. Third, the Supreme Court did not acquiesce in any purported rejection of Standard Oil’s consumer-focused Rule of Reason. During the 1920s, the Court read Section 5 of the FTC Act narrowly and not as “stronger” than the Sherman Act, as Wu contends. The Court opined that “[i]f real competition is to continue, the right of the individual to exercise reasonable discretion in respect of his own business methods must be preserved.” The Court also held that Section 5 did not “interfere with ordinary business methods.” Thus, the Court assimilated Section 5 into Standard Oil’s Rule of Reason, with its safe harbor for “normal” and “ordinary” conduct, and not vice versa. Four years later the Court, per Chief Justice Taft, reiterated that Standard Oil had properly construed the Sherman Act. The Court’s post-1914 Sherman Act jurisprudence showed no sign of any legal change, constitutional or otherwise. Wu commendably concedes that the original meaning of the Sherman Act may not support his NeoBrandeisian vision. However, the Constitutional Moment he proposes did not occur. Proponents of a NeoBrandeisian Sherman Act must look elsewhere for legal authority to implement their vision.

Download the essay from SSRN at the link.

Ablavsky and Allread on We the (Native) People: How Indigenous Peoples Debated the U.S. Constitution @StanfordLaw @tannerallread

Gregory Ablavsky, Stanford Law School, and W. Tanner Allread, Stanford University, Department of History, have published We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution at 123 Columbia Law Review 243 (2023). Here is the abstract.

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates. This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal. This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.

Download the article from SSRN at the link.

Brady on Uses of Convention History in State Constitutional Law @mollyxbrady @WisLRev

Maureen E. Brady, Harvard Law School, is publishing Uses of Convention History in State Constitutional Law in the Wisconsin Law Review. Here is the abstract.

For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states? For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those rec Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources. This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context. Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.

Download the essay from SSRN at the link.

Stevenson on Revisiting the Original Congressional Debates about the Second Amendment @STCL_Houston

Drury D. Stevenson, South Texas College of Law, Houston, has published Revisiting the Original Congressional Debates about the Second Amendment. Here is the abstract.

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original Congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the Congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original Congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.

Download the article from SSRN at the link.

Bernick on Fourteenth Amendment Confrontation @evanbernick @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Fourteenth Amendment Confrontation. Here is the abstract.

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent. This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850. Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.

Download the article from SSRN at the link.

Risinger on The Welles of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries

D. Michael Risinger, Seton Hall University School of Law, has published The Wellses of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries. Here is the abstract.

The Wells family that is the subject of this article was a free Black family originating in Lancaster County, Pennsylvania in the early 19th Century.. This article follows the Wells family saga over the course of nearly a century and a half, including involvement in the bold act of resistance to the fugitive Slave act of 1850 which occurred in Christiana (Lancaster County) Pennsylvania in 1851, service in the U.S. Colored Troops in the Civil War, family separation and lost children in the period after the war, a surprising reunification after 20 years, an extended family exodus to Newark, New Jersey in the early 1880s, a further exodus as an extended family to Belleville, New Jersey, Newark’s neighbor to the north, in the late 1880s, and a variety of fraternal business and religious activities in New Jersey over 50 years, including the establishment of the first Black church in Belleville in 1886, It is the story of a Black family that persevered and found a way to flourish in the face of the social conditions it encountered over the course of a century and more.

Download the article from SSRN at the link.