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.

Grossman and Friedman on The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence

ICYMI: Joanna L. Grossman, Southern Methodist University School of Law, and Lawrence M. Friedman, Stanford University School of Law, have published The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence at 46 Women's Rts. L. Rep. 1 (2024).

On June 24, 2022, a solid conservative majority of justices on the United States Supreme Court decided that the time had come to overrule Roe v. Wade, and it did so in Dobbs v. Jackson Women’s Health Organization. The opinion in Roe, according to the majority in Dobbs, “was egregiously wrong from the start.” And the time had come to get rid of it once and for all. There was no constitutional right to an abortion, according to the majority. In the Court’s words, “the authority to regulate abortion must be returned to the people and their elected representatives.” Dobbs is and will remain controversial. Abortion is clearly a major issue, politically speaking, with strong passions on both sides. Roe v. Wade itself was also controversial from the very beginning. Abortion had been a contested matter before that decision; and Roe itself was never accepted by a large minority of Americans, particularly in the South. Both sides in the abortion controversy have appealed to the historical record. The Dobbs majority opinion relies on the criminalization of abortion in the second half of the nineteenth century to conclude that abortion cannot be recognized as a fundamental right under the Fourteenth Amendment. In this article, we want to re-examine that history. It would be naïve to think that historical considerations made a crucial difference in the Dobbs decision (despite what the opinion claims); or that it will be decisive in a related dispute over the Comstock Act and the legality of abortion pills. But historical rhetoric has been a prominent tool in the abortion dispute; and this makes it worthwhile to pick apart the historical arguments. Yet this is not only, or primarily, a study in legal history. It is a study of the shape and meaning of the abortion controversy over time. It is a study of how the social context molded that controversy, in the past, and in the present. The goal is to broaden our understanding, first, of the abortion issue, and beyond that, how politics, religion, ideology, and other factors bear on the question of unborn life. The aim is objectivity—if that is possible. We will first consider the particular ways in which history was deemed relevant to the majority’s ruling in Dobbs and note the historical claims that are contested or even obviously wrong. Then, we will get to the heart of the article, in which we examine the history of abortion law and policy in social context. This analysis lays bare the absurdity of grounding constitutional rights in “history,” when laws and policies are plucked from their social context and dropped into a world that would have been unrecognizable to those who lived at the relevant time in history. Abortion is, as before, a controversial issue. History, as we said, cannot convince either side that their view is right and the other view wrong. What it can do is shine the light of scholarship on the history of this controversy, with as much rigor as the subject allows. When we do this, the historical arguments in the Dobbs opinion seem more and more irrelevant. Those arguments, we have argued, were based on a profound misreading of the social context in which the abortion issue in Victorian times played out. Today, we live in a very different world. The terms of the debate in the nineteenth century are not the terms of today. They are in fact, as we tried to show in this article, essentially obsolete.

Download the article from SSRN at the link.

Caputo on "Quiet" Enjoyment: Uncovering the Hidden History of the Right to Attention in Private and Public

Nicholas A. Caputo, Oxford Martin School, is publishing 'Quiet' Enjoyment: Uncovering the Hidden History of the Right to Attention in Private and Public in the Stanford Technology Law Review (forthcoming 2025). Here is the abstract.

Legal scholars have largely neglected attention as a subject of legal rights, even as attention has become one of the most valuable economic resources of the modern era. This Article argues that a right to attention has existed implicitly in American law since the early twentieth century, emerging in response to technological, social, and economic changes in that period that made attention both increasingly valuable and increasingly impinged upon, as America shifted toward knowledge work and leisure activities that demanded sustained focus. By examining court decisions in private law doctrines around property and public law doctrines around speech that can only be explained by reference to an implicit right to attention, this Article begins to uncover the ways in which judges and lawmakers built out a set of legal protections that enabled people to invoke the law to protect their own attention while avoiding stifling the sometimes-disruptive conduct of others. In particular, I show that in private law, courts began recognizing "attentional nuisances," nontrespassory invasions of land that did not cause physical but only attentional harm, thereby creating a framework for protecting a person's attention on her own land. In public spaces, the new right to attention came into conflict with also-emerging free speech rights, which seem to require the ability to attract the attention of others in order to express oneself to them. There, the Supreme Court sought a balance through the development of frameworks like time, place, or manner doctrine, which allowed governments to try to regulate attention-grabbing stimuli without directly regulating speech, and through the uneven development of listeners' rights. In closing, I argue that the right to attention developed in the early twentieth century provides a foundation upon which a modern right to attention addressed to the attention economy could be developed that is both rooted in the experience of the past and capable of meeting the novel challenges presented by digital technology and the rise of artificial intelligence, which promise another epochal technological revolution like that which gave rise to the right a century ago. Drawing out the right to attention buried in the caselaw gives scholars, lawmakers, and the public a set of tools that they can use to decide how to adapt it to the demands of the present. The future of attention relies upon the lessons of its past, and recognizing explicitly the so-far hidden right to attention provides better ways shaping its future.

Download the article from SSRN at the link.

Siegel on Balkin Amid Balkanization: Constitutional Construction, The Uses of History, And Interpretive Discretion In A Divided Country

Neil Siegel, Duke University School of Law, has published Balkin Amid Balkanization: Constitutional Construction, The Uses Of History, And Interpretive Discretion In A Divided Country as Duke Law School Public Law & Legal Theory Series No. 2025-14. Here is the abstract.

Professor Jack Balkin's Memory and Authority is a good book by a great constitutional theorist, but it gives me some pause. Balkin's account of legitimate constitutional construction is so capacious and seemingly accepting of a results orientation that it may be difficult to discern when someone is doing it wrong. Balkin repeatedly implies that more is better, both regarding the number of modalities of constitutional interpretation and the kinds of history that are relevant to making constitutional arguments. Moreover, he repeatedly declares that "history is a resource, not a constraint." But modality creep may make it more challenging for pluralists to answer the charge that their methodology makes it possible for users to reach whatever outcome they want. Likewise, history must be both a resource and a constraint if an interpretive theory is also to restrain, not just license, interpretive discretion. More is not necessarily better when one imagines constitutional law being made by people who do not share one's values. In the United States, constitutional law is made by Supreme Court Justices who do not share the values of a significant percentage of the country, and the problem is worse during our polarized era. Although Balkin does not emphasize them, certain concepts and practices have been central to the generationslong effort to constrain judicial discretion: a general allegiance to judicial restraint, a genuine commitment to stare decisis in constitutional disputes, a presumption in favor of incrementalism in judicial decision-making, and a dedication to giving principled reasons for judicial decisions. Those ideas and others discussed in this Essay fall under the heading of judicial role morality, which has long been discussed by the legal profession due to the perceived importance of identifying constraining conceptions of a Justice's institutional role.

Download the essay from SSRN at the link.

Blocher and Garrett on Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine

Joseph Blocher and Brandon L. Garrett, both of Duke University School of Law, have published Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine as Duke Law School Public Law & Legal Theory Series No. 2025-03. Here is the abstract.

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory of law. How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them? In the first Part of this Article, we show how lower courts have been tasked with assessing history and tradition in applying constitutional standards, often with little guidance regarding how to proceed or what quality and quantity of historical evidence suffices to satisfy those standards. We taxonomize the Court's standards, describing the different burdens and challenges that judges face in carrying out their obligation to apply these standards while developing a historical fact record. In Part II, we show how lower courts and litigants have attempted to navigate this new doctrinal landscape. Their efforts have revealed serious complications and debates about fundamental matters like the fact/law distinction, record development, expert witnesses, and independent judicial factfinding. Less attention has been paid to the impact on litigants, who potentially face higher costs of research and briefing and legal standards that are more obscure and unpredictable. The result has been incomplete and sometimes deeply flawed decision-making, and-perversely-a growing disjunction between law and historical facts. In Part III we provide some prescriptions. We argue that ifconstitutional cases are to turn on matters of historical fact, those factual determinations should be initially made with an opportunity for party development of historical facts, including with appropriate use of expert witnesses. If no such trial court record exists, appellate courts can and often should remand for one to be developed. Moreover, fixed standards of review must regulate review on appeal, accounting for the differences between questions of fact and law If adequate rules and practices for finding and applying historical facts cannot be identified or soundly implemented, then originalist constitutional standards that call for the application of historical facts should be reconsidered—not necessarily because they fail in theory but because they fail in practice. Insufficient rules for fact-development and review on appeal result in ill-defined precedent and unworkable constitutional doctrine and will call into question the judicial enterprise of applying history as constitutional law.

Download the article from SSRN at the link.

Iskandar on The Constitutional Significance of State Symbols

Pranoto Iskandar, McGill University, Centre for Human Rights and Legal Pluralism; The Institute for Migrant Rights, has published The Constitutional Significance of State Symbols. Here is the abstract.

Not every constitution entrenches state symbols, but many do and their rationale can only be understood implicitly. These state symbols constitutionally significant. Some constitutions contain provisions that explicitly state any violation or even mere disrespect toward state symbols may entail legal consequences. Those that take state symbols too seriously tend to be classified as undemocratic, illiberal, repressive, or even worse, authoritarian. A cursory overview of some Western European states with liberal democratic pedigree reveals that they have harsh sentences for those who pour scorn on their state symbols. Therefore, this signifies that state symbols are an important feature in a constitutional order. After all, even the world’s most democratic states also have their own state symbols. Hence, how should one proceed in making sense of the constitutional significance of state symbols?

Download the essay from SSRN at the link.

Koppelman on Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment @AndrewKoppelman @NorthwesternLaw @_WayneLaw

Andrew Koppelman, Northwestern Uniersity School of Law, is pulishing Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment in the Wayne Law Review. Here is the abstract.

Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong. The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition. I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage. The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.

Download the article from SSRN at the link.

Tushnet on Varieties of Constitutionalism @Mark_Tushnet @Harvard_Law

Mark Tushnet, Harvard Law School, has published Varieties of Constitutionalism. Here is the abstract.

This essay, to appear in a revised version in the Elgar Research Handbook on Constitutionalism and Legal Theory, deals with two broad varieties of constitutionalism: political versus legal/judicial constitutionalism, and procedural (liberal) and programmatic (substantive) constitutionalism. The varieties are continuums rather than sharply defined categories, of course. It examines the arguments political constitutionalists use to reject challenges that the rules of ruling must be entrenched against majoritarian revision and enforced as law by courts, and their defense of political constitutionalism as a sufficiently stable method of resolving disagreements about the rules of ruling. It then examines the arguments legal/judicial constitutionalists make for a two-fold proceduralization to deal with reasonable disagreements about substantive policy, the first into a constitution and the second into judicial resolution of disagreement through the use of modes of reasoning that do not reproduce the underlying disagreements (and notes the challenge that such reasoning actually reproduces such disagreements but obfuscates that fact). Merely procedural constitutions must deal with, among other things, the constitutional version of the liberal paradox of tolerance, which some do through doctrines of militant democracy. Substantive constitutions here are divided into three subcategories: identitarian (ascribing a specific vision of nationhood, often ethnonationalist, into the constitution); constitutions incorporating second- and later generation rights (economic and environmental); and transformative constitutions. The essay examines various difficulties associated with each of these forms.

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.

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.

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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.

Witte on The Protestant Reformation of Constitutionalism @EmoryLaw @OxUniPress

John Witte, Emory University School of Law, is publishing The Protestant Reformation of Constitutionalism at Christianity and Constitutionalism 126-148 (Nicholas Aroney and Ian Leigh, eds., Oxford University Press (forthcoming). Here is the abstract.

The sixteenth-century Protestant Reformation brought far-reaching changes to Western constitutionalism. The Lutheran reformers vested each territorial state with much of the jurisdiction held by the medieval church, arguing that the magistrate was the custodian of both the religious and civil duties set out in the Ten Commandments. They also merged church courts and state courts, placing both legal and equitable power in the hands of conscientious Christian judges. The Anabaptists ascetically withdrew from civil and political life into small, self-sufficient, and often intensely democratic communities governed by simple biblical principles and dialogical forms of internal governance. Despite ample persecution, Anabaptists were fervent champions of religious liberty and separation of church and state. The Calvinist reformers separated the offices of church and state but called both authorities to help create an overtly Christian local polity governed by written constitutions based on the Bible and natural law but with detailed positive laws tailored to local needs. Calvinist also developed robust biblical-based theories of natural and positive rights, whose persistent and pervasive breach triggered the right of resistance and revolution.

Download the essay from SSRN at the link.

Cunningham and Roemer on Whether a President Can Be Impeached for Non-Criminal Conduct: New Linguistic Analysis Says Yes @ClarkGSULaw @uroemer @GeorgiaStateU @GeorgiaStateLaw

Clark D. Cunningham, Georgia State University College of Law, and Ute Roemer, Georgia State University, are publishing Can a President Be Impeached for Non-Criminal Conduct? New Linguistic Analysis Says Yes as a Georgia State University College of Law Legal Studies Research Paper. Here is the abstract.

“Few terms in constitutional law have been so fiercely contested as ‘high crimes and misdemeanors’ [in the impeachment provision].” Although most legal scholars argue that this phrase does not limit impeachment to criminal conduct, reconciling this conclusion with the constitutional text has been a challenge. In this article, co-authored by a law professor and a linguistics professor, we offer what we believe is a new and persuasive approach that arises directly from the constitutional text itself for extending the scope of impeachment to non-criminal conduct. We reach this conclusion by applying the science of linguistics to computer-assisted review of digitized texts written around the period when the Constitution was drafted and ratified. The result of this empirical research is the proposal that “other high crimes and misdemeanors” in the constitutional text should be interpreted as “other high crimes” and “other high misdemeanors.” Our linguistic analysis further establishes that high misdemeanor was a phrase used during the founding era to refer to non-criminal misconduct that requires removal from office. We corroborate this analysis with historical research showing that during the century following the founding era, the U.S. House of Representatives recurrently enacted articles of impeachment using the term “high misdemeanor” to refer to non-criminal misconduct affecting governance.

Download the article from SSRN at the link.

Albert on Multi-Textual Constitutions @RichardAlbert

Richard Albert, University of Texas at Austin, School of Law, Department of Government; Yale University; University of Toronto, Faculty of Law; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Ottawa, Faculty of Law; Universidad Externado de Colombia, Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah, Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University; Maharashtra National Law University Mumbai, is publishing Multi-Textual Constitutions in volume 109 of the Virginia Law Review. Here is the abstract.

Imagine the U.S. Constitution were a collection of several equally supreme constitutional documents rather than one single supreme constitutional document? In this alternative universe, speaking of “the Constitution” would no longer refer only to the official text written in 1787. It would now refer both to that document and to other official texts enacted and popularly recognized as comprising the essential documents of “the U.S. Constitution,” perhaps including the Declaration of Independence, the Emancipation Proclamation, and the Northwest Ordinance. This constitutional counterfactual opens our eyes to a long-standing error that has distorted our understanding of the constitutions of the world. Here is the problem: we have forever believed that constitutions come in two forms: “written” and “unwritten.” But this pervasive and omnipresent distinction is both incorrect and misleading. It is incorrect because all constitutions are in some way written, and it is misleading because all constitutions consist of unwritten rules. What is more, this traditional distinction between “written” and “unwritten” constitutions obscures a profound difference among written constitutions themselves. Some “written” constitutions—like the U.S. Constitution—consist of a single, supreme constitutional document of higher law while others consist of multiple constitutional documents with shared supremacy under law. Ubiquitous but unnoticed, constitutions comprising multiple texts are a unique constitutional form that has yet to be studied and theorized. I call them multi-textual constitutions. In this Article, I offer the first comprehensive introduction to multi-textuality. My purpose is to explain, illustrate, and theorize the design and operation of multi-textual constitutions with reference to current and historical constitutions all around the world. I show how they may be created both by design and evolution. I explain their strengths in relation to how they may improve constitution-making, open new avenues for constitutional innovation and flexibility, and forestall the onset of constitutional veneration. I moreover identify some of the problems they raise in law and society: the difficulty of constitutional identification, the challenge of constitutional obsolescence, and the conundrum of constitutional conflict. What results is the first scholarly inquiry into multi-textuality, a deep analytical dive into this distinct constitutional form, and a fascinating counterfactual question: what would change in the operation of the U.S. Constitution if it were a multi-textual constitution consisting of several documents of equal legal force?

Download the article from SSRN at the link.

Sultany on Revolution in the Cambridge Handbook of Constitutional Theory @NimerSultany @CambridgeUP @rpbellamy1

Nimer Sultany, University of London, School of Oriental & African Studies, School of Law, is publishing 'Revolution', in The Cambridge Handbook of Constitutional Theory (Richard Bellamy and Jeff King – eds, Cambridge University Press) (forthcoming).

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice. The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena despite the conceptual contestability of the revolution, whether in respect to its applicability to particular realities or the emphasis on continuity with, or rupture from, the extant order. It ignores the revolution’s dialectical nature by separating its assessment from the counter-revolution and thus exaggerates the role of violence in revolutions it disfavours, whereas it obscures the role of violence, slavery, and colonialism in the revolutions it favours. Finally, it presents a certain type of revolutionary constitutions (that are “political” not “social”) as ones that legitimate the polity despite the contestability of the revolutions that generated them, and notwithstanding the incoherence and instability of these constitutions. Moreover, this paradigm elevates counter-majoritarian revolutionary constitutions to be a product of an exceptional act of founding that need not be repeated (or radically revised) despite the constitutional order’s deficiencies, instability, and injustices.

Download the essay from SSRN at the link.

Bamzai on Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States @adityabamzai @UVALaw @HarvardJLPP

Aditya Bamzai, University of Virginia School of Law, has published Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States at 45 Harvard Journal of Law and Public Policy 795 (2022). Here is the abstract.

In the period immediately preceding the Constitution’s adoption, New Yorkers engaged in a spirited debate over whether a proposed delegation from the State to the federal government authorizing collection of an impost would violate the clause of the New York Constitution that vested “supreme legislative power” in the State Assembly and Senate. Some, like Alexander Hamilton, believed that the clause did not bear on delegations to the federal government, but rather governed the relationship between the branches of the New York government. Others believed that a grant of impost authority impermissibly transferred legislative power away from the state legislature. This Article addresses the debate over delegation that occurred during this controversy—which, in the words of Alexander Hamilton, “begat” the Convention that wrote the U.S. Constitution. The Article also addresses the equally significant debates over delegation that occurred during the consideration of the Constitution itself. As this Article shows, the debates that led to and surrounded the Constitution’s adoption were in no small part debates about the legality of delegating sovereign legislative authority.

Download the article from SSRN at the link.

Wright on the Logic of History and Tradition in Constitutional Rights Cases @IUMcKinney

R. George Wright, Indiana University School of Law, has published On the Logic of History and Tradition in Constitutional Rights Cases. Here is the abstract.

Questions of judicial reliance on history and tradition have been prompted by several recent Supreme Court cases, in which the Court has not merely emphasized, but absolutized, history and tradition. Absolutism in this sense refers to judicial language evidently requiring the relevant party to show, in every case, sufficient validation for their position in history and tradition. The requirement for such a showing of historical and traditional support is thus apparently exceptionless, and in that sense absolute. It is on this absolute, or exceptionless, requirement of sufficient support for a party’s claim, specifically in history and tradition, that this Article focuses. Immediately below, the Article examines the role of history and tradition in the Court’s most recent case law, successively addressing the law of substantive due process rights; the law of gun ownership and related rights-claims under the Second Amendment; the scope, limits, and requirements of the Establishment Clause; and some important dimensions of free speech rights. The Article then addresses broader issues of the proper role and limits of attempts to absolutize requirements of history and tradition in the context of rights-claims, including claims for rights that are themselves thought to be absolute and exceptionless.

Download the article from SSRN at the link.

Zietlow on Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery @ProfessorRZ @utoledolaw @NotreDameLRev

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery in volume 97 of the Notre Dame Law Review (2022). Here is the abstract.

In the years leading up to the Civil War, fugitives from slavery ("freedom seekers") put their lives on the line to improve their own status and that of their families in their quest for freedom. Freedom seekers were constitutional actors who made constitutional claims with their actions when they transgressed borders from slave states to free spaces, and across Civil War battle lines to volunteer for the Union army. By transgressing these borders, fugitives from slavery triggered constitutional controversy over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, and made rights claims for themselves with their actions. Their actions destabilized the structure of our country, leading to the Civil War. After the war, members of the Reconstruction Congress cited the sacrifices of freedom seekers as they debated measures to protect the rights that they claimed. Freedom seekers engaged in civil disobedience, resisting law that they believed to be unjust and inhumane. In the North, free Black people and their white allies supported freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, Their actions were central to the antislavery struggle, and their sacrifices send a profound message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives form slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction eras. This article seeks to remedy that oversight.

Download the article from SSRN at the link.