Shugerman and Handelsman on Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority

Jed H. Shugerman, Boston University School of Law, and Zach S. Handelsman, McGill University, Department of Political Science, have published Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority.

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.” Balkin appropriately connects the memory wars in American constitutional law back to Eastern European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. They propose four categories of memory entrepreneurs (“mnemonic actors”) in post-Soviet countries: “mnemonic warriors” who claim a single “true” interpretation of the past, opposed to all others who cultivate “wrong” or “false” interpretations; “mnemonic pluralists” who embrace multiple narratives and traditions; “mnemonic abnegators” who deny the significance of the past in favor of the present; and “mnemonic prospectives” who have a faith in an inevitable future (e.g., utopian Marxist historical materialists). We suggest this taxonomy may be a helpful guide for American constitutional politics. The “memory pluralist” category is perhaps the majority of American constitutional law professors, maybe even a plurality of the U.S. Supreme Court and the federal and state bench, who do not give exclusive weight to history, but still give substantial weight to history (e.g., Philip Bobbit’s modalities, Balkin’s “living originalism” and his “thin originalism.”). Some “thick originalists” are more “Memory Anti-Pluralists” than “Warriors.” We reserve the category of “Memory Warrior” for those constitutional interpreters who are consciously fighting for an exclusive, comprehensive national narrative of us vs. them. These warriors include ideological originalists (especially the ones who seem to rely on a general narrative arc rather than specific historical evidence), but they also may include the “history-and-tradition” conservatives, common-good constitutionalists, and perhaps some progressive-left memory warriors who have a more exclusive interpretation of past events than pluralists do. Balkin rightly criticizes originalism for its “memory entrepreneurialism” that narrows the field of who “counts” and who is excluded, exacerbating constitutional law’s democratic deficit. We think the “memory warrior” category helps sort out the more problematic approaches, and we suggest a solution: a high burden of proof about consensus and public meaning to mitigate this democratic deficit, to reduce judicial legitimacy problems, and to slow down “warrior” judicial activism.

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Chowdhury on Toward a Historical Materialist Account of British Constitutional Change

Tanzil Chowdhury, Queen Mary University of London, School of Law, is publishing Toward a Historical Materialist Account of British Constitutional Changee in the International Journal of Constitutional Law. Here is the abstract.

This paper argues that British constitutional reforms are the historically specific expression of the mediation of significant antagonisms between social forces and shifts in the modalities of capitalism, the aim of which is to ensure the conditions for commodity exchange and capital accumulation. While most conventional theories of constitutional reform recognise the heteronomous nature of law reform as responding to extra-legal or economic forces, this paper, drawing on a renascent Marxist turn in legal studies, examines how historical materialist accounts might help to inform understandings of constitutional development. Outlining but ultimately rejecting an economistic orthodox Marxist reading of law, this paper instead conceptualises constitutions as a 'moment' in the contradictory totality of capitalist social relations;. Arguing that reforms to the British constitution are often preceded by significant social antagonisms, the paper attempts to explain constitutional reforms as the capitalist states mediation of such antagonisms to secure the future conditions for capital accumulation, offering a reappraisal of the lead up to and creation of the Parliament Act 1911 as an example.

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Molina Bustos and Pérez Páez on Moral Philosophy and Archetypes in the Symbolic Cohesion of the Tale of Juan Matachin

Francisco Fabiany Molina Bustos and Jenny Alejandra Pérez Páez, both of the Social Sciences Observatory and Human Resources in Ibagué/ Edukivotos, have published Moral Philosophy and Archetypes in the Symbolic Cohesion of the Tale of Juan Matachin. Here is the abstract.

This paper examines the moralizing value of Rafael Pombo’s tale Juan Matachín within the Colombian cultural context, interpreting it as a narrative device for ethical and social regulation. Through an interdisciplinary approach combining literary analysis, moral philosophy, and political theory, the study explores the figure of the “anti-villain” as an ambivalent agent who, through fear, seeks to preserve the common good, social order, and harmony with nature. Drawing on Hobbes’s and Machiavelli’s reflections on fear as a foundation of order, the analysis shows how symbolic terror operates pedagogically to deter harmful behavior and reinforce communal norms. The tale is thus understood as more than children’s literature, functioning as a cultural archive that embeds collective values, mechanisms of social control, and an implicit ethic of ecological protection and community cohesion in the Colombian imaginary.

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Ryu and Sewell on The Hart-Dworkin Debate

Angelo Ryu and Trenton Sewell, both of the University of Oxford, have published The Hart-Dworkin Debate.

This encyclopedia entry discusses the Hart-Dworkin debate, understood as the literature developed around the viability of Hartian positivism in light of the arguments Dworkin either laid out or inspired. The focus is on two arguments: the argument from principles and the argument from theoretical disagreement. First, can Hart adequately account for the role of principles in law? The entry considers three variants of this argument. Second, can Hart adequately account for the existence of law in practices whose officials disagree on why certain empirical facts make a given legal proposition true? The entry considers both semantic and non-semantic variants of this argument.

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Forthcoming in December from Cambridge University Press: Del Mar: Neil MacCormick: A Life in Politics, Philosophy, and Law

Forthcoming from Cambridge University Press:

Maksymilian Del Mar, Queen Mary University of London, Neil MacCormick: A Life in Politics, Philosophy, and Law. Here from the publisher's website is a description of the book's contents.

Neil MacCormick (1941–2009) was one of the twentieth century's most important legal philosophers and one of Scotland's most influential public intellectuals. This book tells the story of his political and philosophical life, from his intensely political childhood as the son of 'King John', one of the founders of the Scottish National Party, through to his involvement in Scottish politics – especially as the author of SNP's constitutional policy – and his role as a Member of the European Parliament, helping to draft the European Constitution. With special attention to MacCormick's character, this book offers a reading of his entire oeuvre, covering his contributions to theories of legal and moral reasoning, institutional legal theory, nationalism, post-sovereignty, subsidiarity, and constitutional pluralism in Europe. This book reads MacCormick as a highly creative thinker who excelled in the art of constructing inclusive middles and thereby developed his own distinctive approach to politics and philosophy.

Lincoln on Axiomatic Shifting Paradigms: Wittgenstein's Language-Games, Goedel's Incompleteness Theorem, Language, Law, and the Limits of Formalism

Charles Edward Andrew Lincoln, IV, University of Groningen, Faculty of Law, has published Axiomatic Shifting Paradigms: Wittgenstein’s Language-Games, Gödel’s Incompleteness Theorem, Language, Law, and the Limits of Formalism at 47 U. Ark. Little Rock L. Rev. 133 (2025). Here is the abstract.

This Article shows how Ludwig Wittgenstein’s idea of “language-games” and Kurt Gödel’s Incompleteness Theorems mark the outer limits of legal formalism and other leading interpretive theories—textualism, originalism, and purposivism. It begins by tracing Wittgenstein’s progression from a “picture theory” of language to the view that social context drives meaning more than any simple correspondence between words and reality. Gödel’s work on formal systems, suggesting that mathematics—long held as the pinnacle of logical certainty—itself cannot be both consistent and complete, reinforces the notion that purely “logical” approaches cannot capture the full range of linguistic and social nuances at play in law. Next, the Article examines how the late-nineteenth-century “scientific” movement in legal education, associated with Harvard Law School, underlies many assumptions about formalism. It then compares textualism, originalism, and purposivism, each grappling—but ultimately unable to resolve—the deep ambiguities that language poses. By exploring examples such as grammar debates, the sorites paradox (on vagueness), and Wittgenstein’s concept of language as shared practice, the Article shows why no interpretive framework can truly eliminate uncertainty or encapsulate the ever-evolving nature of the meaning of legal texts. Finally, the Article proposes a “dialectical sublation” of these rival schools of interpretation. Rather than clinging to the impossible dream of perfect textual clarity, it urges jurists and legal theorists to accept the fluidity and contingency inherent in language—and to build that understanding into their interpretive methods.

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Kammerhofer on Hans Kelsen

Joerg Kammerhofer, University of Freiburg Faculty of Law, has published Kelsen, Hans in the Elgar Concise Encyclopedia of Legal Theory and Philosophy (John Linarelli, ed., Cheltenham: Edward Elgar 2025). Here is the abstract.

This entry in the Elgar Concise Encyclopedia of Legal Theory and Philosophy traces the life of Hans Kelsen (1811-1973), the founder of the Pure Theory of Law, and summarises his major writings. The Pure Theory itself is described in a separate entry.

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Wieboldt on Our Natural Law Moment(s)

Dennis J. Wieboldt, III, University of Notre Dame, is publishing Our Natural Law Moment(s) in the Georgetown Journal of Law and Public Policy. Here is the abstract.

To both its sharpest critics and strongest proponents, natural law increasingly appears to be enjoying a "moment" in American legal discourse. The 2024 Herbert W. Vaughan Lecture at Harvard Law School, in fact, took as its subject "The Natural Law Moment in Constitutional Theory." Following the publication of Adrian Vermeule's Common Good Constitutionalism, among other works on natural law in the last half-decade, Alicea's 2024 Vaughan Lecture raises two important questions for those interested in the United States' contemporary jurisprudential debates: is there something unique about today's natural law moment, and, if so, what might understanding previous natural law moment(s) portend for contemporary debates about natural law? This Article assumes the challenge of historicizing the United States' latest natural law moment. In light of the 2024 Vaughan Lecture, it first illustrates that there were at least two discernible natural law moments in twentieth-century American legal history which emerged in response to then-novel developments in the legal academy. Then, this Article demonstrates that today's natural law moment shares important continuities and discontinuities with the natural law moments that the American legal profession began to experience almost exactly one hundred years ago. In concluding, this Article proposes that those today engaged in normative jurisprudential debates would be benefitted by a more capacious understanding of twentieth-century American legal history that takes seriously our often-forgotten natural law moments.

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Zucca on Seeing Law Feelingly--Humanistic Jurisprudence, Poetic Wisdom, and the Future of Law

Lorenzo Zucca, King's College London, School of Law, has published Seeing Law Feelingly-Humanistic Jurisprudence, Poetic Wisdom, and the Future of Law. Here is the abstract.

Legal philosophy faces an existential crisis. As populism surges, social fractures deepen, and democratic institutions strain under unprecedented pressure, jurisprudence remains paralyzed by what I call the "Barbarism of Reflection"—an excessive rationalism that dissects law while becoming disconnected from its moral and imaginative foundations. Drawing on Giambattista Vico's concept of "poetic wisdom" (sapienza poetica) and Shakespeare's insight that one must "see feelingly," this article proposes Humanistic Jurisprudence as a synthetic framework that transcends the limitations of analytical, critical, and historical approaches to law. Humanistic Jurisprudence operates on three principles: (1) the primacy of creative imagination in shaping legal concepts and institutions; (2) critical reflection on the stories we tell about justice; and (3) genealogical understanding of how power structures have shaped our legal traditions. Rather than privileging analytical clarity as the foundation of legal thought, this approach recognizes that grand visions—born from imaginative engagement with human complexity—precede and inform analysis. The article argues that law's power lies not merely in its logical precision but in its capacity to articulate visions of justice that inspire collective action. Through synthesis of philosophical, literary, and legal historical sources, I demonstrate how jurisprudence can reclaim its poetic dimension without sacrificing intellectual rigor. This transformation is not merely academic: it offers practical frameworks for addressing climate crisis, technological disruption, and the erosion of democratic values—challenges that resist purely analytical solutions. The stakes are clear: either law recovers its imaginative power to shape collective futures, or it risks irrelevance in an age where narrative and myth increasingly determine political reality. Humanistic Jurisprudence provides the theoretical foundation for this recovery, offering legal philosophy a path beyond conceptual puzzles toward engagement with the profound moral and existential questions of our time.

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Alicea on The Natural Law Moment in Constitutional Theory @HarvardJLPP @CathULaw

 J. Joel Alicea, Catholic University of America School of Law, is publishing The Natural Law Moment in Constitutional Theory in volume 48 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024.

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Siliquini-Cinelli on What Legal Reasoning Is @CardiffLaw

Luca Siliquini-Cinelli, Cardiff University, School of Law and Politics, is publishing What is Legal Reasoning? in the International Journal for the Semiotics of Law (2024).

Pursuant to the aims and scope of the Special Issue it is part of, this invited contribution seeks to shed new light on the nature and working logic of legal reasoning. It does so by engaging with two of the most authoritative views on the subject which have recently been put forward in the Common law world—namely, Lord Hoffmann’s, and Larry Alexander and Emily Sherwin’s. A key-concern of the Anglophone debate on legal reasoning is whether it is a specialistic type of reasoning requiring ad hoc education and training, or ordinary reasoning subject to ordinary rules of language (i.e. sentence construction, interpretation, etc.). The article argues that compelling though they are, these sorts of enquiries do not help to understand what legal reasoning really is and how it operates. In particular, it argues that if we are to understand what legal reasoning is and how it works, we ought to examine the propositions it aims to craft and support. In so arguing, the article further shows that exploring law’s nature and operations as an intellectual means for social ordering also helps to understand how law works as a regulatory phenomenon more generally.

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Rabanos on Going Back to (Law as) Fact. Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words @julesrabanos @Univerzitet_BG

Julieta A. Rabanos, University of Belgrade, has published Back to (Law as) Fact. Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words at Materiali per una storica della cultura giuridica 205-232 (1) 2023. Here is the abstract.

The aim of this paper is to critically reconsider some of the main tenets underlying Karl Olivecrona’s works. The first two sections are devoted to a brief reconstruction of his position on methodology for the study of legal phenomena, including the endorsement of philosophical realism and the enterprise of demystifying legal language through linguistic therapy (§ 2), as well as his particular conception of legal notions as hollow words (§ 3). I will then provide a brief analysis of a central legal concept – that of “authorityµ – to show how Olivecrona’s methodological framework can be applied (§ 4). The last two sections are devoted to the analysis and evaluation of three possible criticisms of Olivecrona’s claims as a legal realist (§ 5) and some brief concluding remarks on the usefulness of Olivecrona’s approach for contemporary legal philosophy (§ 6).

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Sevel on Historical Origins of Raz's Legal Philosophy @MichaelSevel @SydneyLawSchool

Michael Sevel, University of Sydney Faculty of Law, has published Historical Origins of Raz's Legal Philosophy. Here is the abstract.

Joseph Raz (1939-2022) was one of the most influential philosophers of law of the last half century. But the reception of his legal philosophy has been shaped by relatively narrow debates about the nature of authority and the commitments of Hartian legal positivism. A more comprehensive assessment of his achievements begins by considering the complex historical origins of his legal philosophy. I consider three distinct historical strands relevant to understanding many of the central features and the general framework of his philosophy of law: developments in the mid-twentieth century in moral, political, and legal philosophy regarding the concept of a reason for action, of the nature of political authority, and the systemic character of positive law, respectively. Raz’s legal philosophy can profitably be viewed as a novel convergence and synthesis of these many developments and influences, as an ambitious attempt to develop a systemic theory of positive law in terms of the concept of authority which is in turn explained from the perspective of practical reason.

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Bassok on The Absolutist Judiciary @UniofNottingham

Or Bassok, University of Nottingham, Faculty of Law and Social Sciences, has published The Absolutist Judiciary. Here is the abstract.

The judicial authority to strike down constitutional amendments is not an advanced constitutional technology that merely upgrades judicial review. Rather, this authority is part of a jurisprudence of absolute truths that is antithetical to liberal democracy. Treating this authority as a mere technology stands at the core of the attempt to justify it based on fusing the ideas of two of Weimar’s great legal minds, Hans Kelsen and Carl Schmitt. Fusing Schmitt’s ideas with Kelsen’s enabled the transfer of this authority from the president, as Schmitt envisioned, to the constitutional court that Kelsen designated to serve as the guardian of the constitution. Yet, Kelsen rejected the authority to review constitutional amendments because a liberal democratic system cannot include an institution deciding on absolute truths that cannot be changed by the democratic process. Contrary to Kelsen, Schmitt believed that the constitution anchors the fundamental political core truth of the state. Yet, Schmitt rejected the idea that an inherently political function of defending the state’s fundamental political decision can be endowed to the judiciary. I agree that courts may be justified in exceptional and extreme situations to break constitutional constraints—including striking down constitutional amendments—to save democracy from the people. However, the attempt to juridify the authority of reviewing constitutional amendments under a legal doctrine necessarily leads to corruption either of constitutional law as Kelsen predicted or of the judiciary as Schmitt thought. Normalizing the exception by creating a legal doctrine that endows the judiciary with the final say that cannot be amended by any democratic means is the end of liberal democracy, even if it is the judiciary that hands down absolute truths.

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Arvind and Puset on Partisan Legal Traditions in the Age of Camden and Mansfield @NDLaw

T. T. Arvind, York Law School, and Christian R. Puset, Notre Dame Law School, have published Partisan Legal Traditions in the Age of Camden and Mansfield at 20 Oxford Journal of Legal Studies 1 (2024). Here is the abstract.

The eighteenth century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late eighteenth century saw the emergence of rival ‘Patriot’ and ‘Tory’ legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield—who were both pillars of the law, as well as political and juristic rivals—we show that they differed systematically in their understanding of the common law. Those differences had a partisan cast: although they were not crude attempts to instrumentalise law to political ends, their political and jurisprudential commitments influenced each other and emerged from the same intellectual roots. We place these differences in the context of the fragmentation of eighteenth-century Whig politics, and argue that they have important implications for how we understand and use the common-law tradition today.

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Spaak on Legal Argumentation and the Nature of Law

Torben Spaak, Stockholm University, Faculty of Law, has published Legal Argumentation and the Nature of Law as Stockholm University Research Paper No. 133. Here is the abstract.

The primary task of judges is to decide cases and give reasons for their decisions, whereas the primary task of doctrinal legal scholars is to provide a thought-out picture of the law of the land, or some part thereof; and in order to perform these tasks judges interpret and apply the law, whereas legal scholars interpret the law without applying it (except in their imagination). However, thinking or theorizing about the nature of law, something legal philosophers tend to find quite interesting, is not something most judges or legal scholars engage in, or even consider interesting. The main reason this is so, I suspect, is that they think that such theorizing has no interesting implications for legal argumentation. But are they right? Could it not be that theories of law have interesting implications for legal argumentation? To answer such a general question would be easier said than done, however. In this chapter, I therefore wish to focus on a more limited question, one that is easier to handle, namely, the question of whether any of four carefully selected contemporary theories of law, namely, Michael Moore's, Joseph Raz's, Robert Alexy's, and Alf Ross's theories, have interesting implications for legal argumentation. While such a limited investigation cannot yield general results, it can tell us whether some theories of law have interesting implications for legal argumentation; and the result, whatever it may be, may suggest, though it will not prove, that the same may be true of other theories of law. Accordingly, having discussed these four theories, I argue (1) that Moore’s and Alexy’s theories of law have interesting implications for the interpretation and application of the law; (2) that Raz’s thesis has interesting implications both for the interpretation and application of the law and for legal argumentation more broadly conceived, namely, for the legitimacy of judicial decision-making; (3) that Ross’s theory, interesting though it is, lacks interesting implications for legal argumentation more broadly conceived and thus for the interpretation and application of the law, too; and (4) that claims (1)-(3) suggest, though they do not prove, that other theories of law, too, may have interesting implications for legal argumentation.

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Rabban on Jhering's Influence on American Legal Thought @UTexasLaw

David M. Rabban, University of Texas School of Law, is publishing Jhering's Influence on American Legal Thought in Jhering Global (Stephan Meder and Christoph-Eric Mecke, eds., V&R unipress, 2023). Here is the abstract.

This article was published as a chapter in Jhering Global, edited by Stephan Meder and Christoph-Eric Mecke (V&R unipress 2023), a collection of essays about Jhering and his influence throughout the world. Before 1900, Jhering was a well-known model for American legal scholars, some of whom had studied law in Germany, including with Jhering himself. The most enduring work of legal scholarship ever written by an American, Oliver Wendell Holmes, Jr.’s The Common Law, published in 1881, reflects Jhering’s substantial influence, though Holmes himself often did not acknowledge it. Roscoe Pound, whose development of sociological jurisprudence before World War I trans- formed American legal scholarship, graciously and repeatedly indicated how much his own major themes derived from Jhering. Legal realists of the next generation saw themselves as extending Pound’s sociological jurisprudence, recognized its roots in Jhering, and memorably invoked Jhering himself. Eminent German law professors who emigrated to the United States as refugees from Nazi Germany in the 1930s applied Jhering’s ideas to scholarly and judicial developments in the United States. Though citations of Jhering by American scholars have continued at a relatively constant rate since World War II, most occur while assessing his influence on previous American scholars rather than as a living source for current legal analysis. Many of the recent scholars who cite Jhering, in contrast to their predecessors who often knew German, are only able to read him in translation. My strong impression is that most American legal scholars today have never even heard of Jhering. An important influence on American legal thought in the past, he is now largely unknown.

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ICYMI: Shugerman on Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism @jedshug @BU_Law

ICYMI: Jed H. Shugerman, Boston University School of Law, has published Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism at 33 Yale Journal of Law & the Humanities 125 (2022). Here is the abstract.

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so? Unitary executive theorists rely on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them. When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

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See also 

Jed H. Shugerman, The Indecisions of 1789: Appendices on the Misuse of Historical Sources in Unitary Executive Theory, Fordham Law Legal Studies Research Paper No. 4359596.

McNeill and Tucker on The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy @GeorgetownCPT

David N. McNeill, Independent Researcher, and Emily Tucker, Center on Privacy & Technology, Georgetown Law Center, have published The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy as a Georgetown University Law Center Research Paper. Here is the abstract.

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the legitimacy of the Federal Judiciary—and the role that current orthodoxies in constitutional interpretation have played in fomenting that crisis. The immediate critical target of this article is contemporary jurisprudential uses of what is called “public meaning originalism,” specifically, and ‘textualist originalism’ more broadly, as a theory for the interpretation of those clauses in the US Constitution that refer to fundamental rights and freedoms. This concern with “textualism,” however, is primarily diagnostic. For, despite its relative unpopularity among most contemporary legal theorists, the application of “public meaning originalism” by the US Supreme Court is perfectly consistent with the dominant legal theoretical approach in the English-speaking world. The extremity of the Court’s recent ‘textualist’ jurisprudence provides an excellent illustration, or reminder, of the dangers of legal positivist jurisprudence. In arguing against textualist originalism, this article defends a version of the anti-positivist distinction between legal rules and legal principles, most famously associated with the work of Ronald Dworkin. It argues, however, that this distinction cannot be captured by understanding constitutional principles in terms of moral principles, as Dworkin suggests. Instead, constitutional principles must be understood as deliberative principles of political association and communal self-determination. The primary subject of this article, then, is the character of fundamental constitutional law; our hope is that the current crises in democratic constitutional legitimacy can help make salient certain aspects of the relation between popular sovereignty and constitutional legitimacy that are harder to discern in less fractured political climates. This article begins, in Part One, with a consideration of the Roberts Court’s recent jurisprudence, focusing on three landmark opinions issued in June of 2022: Dobbs v Jackson Women’s Health Organization, Kennedy v. Bremerton School Dist. and West Virginia v EPA. The point of revisiting this recent history will not be—or will not only be—to decry these rulings as anti-democratic and constitutionally ill-founded. The point, rather, will be 1) to see these rulings as consolidations of the Court’s newly asserted constitutional authority, and 2) show how contemporary positivist constitutional theory has helped prepare the way for the Court’s manipulation of the constitutional order. Part Two begins to elaborate an anti-positivist alternative both to legal positivism and to natural law legal theory. In agreement with traditional natural law theorists, it is argued that the distinction between illegitimate and legitimate expressions of political authority depends on the degree to which a system of authority is directed toward a common good. In disagreement with those theorists, however, this article contends that the common good of a political community is determined by the communal deliberative activity of a political community, and that the deliberative determination of a common good is the normative foundation of that community. Part Three focuses on the First Amendment of the US Constitution with two aims in mind. First, to illustrate the account of constitutional law here advocated, it offers a reading of the First Amendment as an attempt to put into words a shared understanding among the ratifiers of the Bill of Rights of what this article calls ‘the shape of citizenship’ in our constitutional democracy. Second, it shows how the Court’s recent opinions have radically subverted the last vestiges of this original connection between constitutional rights and the foundational principles of constitutional self-government. In Dobbs v Jackson, in particular, the Court asserts an understanding of constitutional rights as merely a particular structural variant of positive law, and in so doing effectively makes the legal order a sovereign power over the people, rather than an expression of and vehicle for their common self-determination.

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Webb on The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson @YaleLawSch

Derek Webb, Yale Law School, has published The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson at 12 British Journal of American Legal Studies 79 (2023). Here is the abstract.

This article argues that the key to understanding James Wilson, one of the leading architects of the Constitution and the first Supreme Court Justice to be sworn in, and yet arguably the most neglected and misunderstood figure from the founding generation, is as a "great synthesizer" of seemingly disparate philosophical and constitutional commitments. Drawing upon the natural rights tradition of early classical liberalism as envisioned by John Locke, Wilson insisted that the new federal government be as democratic and broadly reflective of "We the People" as possible. Drawing upon the law of nations tradition as articulated particularly by Cicero, he became one of the nation's leading proponents of a strong, centralized federal government in order to form "a more perfect union." And inspired by the concept of the moral sense and the innate sociality of the human person as discussed in the Scottish Enlightenment by Thomas Reid and Francis Hutchinson, he made clear that the "blessings of liberty" were contingent upon an active and engaged citizenry on the national level. By understanding this overlooked, synthetic quality of Wilson's thought, we may better understand, in all its richness and complexity, the unique role Wilson played in America's creation story, gain a new perspective on the original Constitution itself, its achievements and its flaws, and reconstruct a compelling constitutional theory that cut across the political alignment of the day but perhaps better anticipated subsequent constitutional development than any of the prevailing positions in 1787. Note: Creative Commons License This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.

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