Peterson on The Limits of Text

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

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

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

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

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

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Murray on Liberalism, the Founding, and American Criminal Justice

Brian Murray, Seton Hall Law School, is publishing Liberalism, the Founding, and American Criminal Justice in volume 101 of the Notre Dame Law Review (2025-2026). Here is the abstract.

In the past decade, two groups have taken aim at the American political and legal experiment: critics of modern liberalism and contemporary criminal justice reformers. Liberal critics point to the corrosive effect of liberal ideas on governmental, legal, social, and private institutions. Criminal justice critics lament systemic racism and classism, power imbalances, over-criminalization, and mass incarceration. Broadly, both groups argue the American political and legal experiment was destined to fail, and has failed, given its ideological roots. This Article puts both into conversation and makes two arguments. First, it explores whether criticism of the liberal paradigm offers another explanatory horizon for the ills of American criminal justice. Second, it suggests there is strong evidence that these trends were not the original design of the Founders, who, while operating within the liberal tradition, sought to entrench certain pre-modern ideas into American criminal justice. Four developments in the modern American criminal legal system—relating to lawmaking, procedure, adjudication, and punishment—provide evidence of the critique of the excesses of modern liberalism. First, the system has become almost entirely positivist, leaving officials to exclusively determine the boundaries of criminal law and definitions of punishment. Over-criminalization and confusion about what punishment is has resulted. In the procedural realm, core doctrines are nominalist and utilitarian in how they attempt to protect privacy and liberty. Third, the liberal, social contractarian ethic that permits equating voluntary agreement with justice, however artificial or divorced from the truth, persists in plea-bargaining norms and practices, separating the legitimacy of criminal adjudication from reality. Finally, modern liberal premises manifest in a sentencing system primarily concerned with controlling risk—through quantified instrumentalization. While these trends align with the pathologies of modern liberalism identified by critics, Founding thinking directly contradicts these developments. The Founders were not legislative positivists, either generally or with respect to criminal law and punishment. Second, criminal procedure protections were tethered to the world of things, not sentiments about interests. Third, juries were tasked with adjudicating criminal matters, determining truth, and injecting their normative views into the legal system. Finally, the moral underpinnings of criminal law animated Founding thought on sentencing and punishment. Thus, while modern liberal premises and excesses help to explain some systemic developments lamented by criminal justice scholars, these trends contradict aspects of the original design, meaning they are paradigmatic rather than originally intended.

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Blocher and Siegel on The Ambitions of History and Tradition in and Beyond the Second Amendment

Joseph Blocher, Duke University School of Law, and Reva Siegel, Yale University School of Law, are publishing The Ambitions of History and Tradition In and Beyond the Second Amendment in volume 174 of the University of Pennsylvania Law Review. Here is the abstract.

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion, and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate levels of generality, extending rights protection to modern guns while requiring gun laws to resemble ancient analogues. When applied in this asymmetric fashion, the historical approach deregulates in ways that are neither acknowledged nor justified. An eight-member majority objected to this strategy in Rahimi and voted to uphold a federal gun law. Yet numerous Justices wrote separately to limit Rahimi’s reach—and, a year later, to suggest that the Court should take a case involving an assault-weapons ban to clarify the method set forth in its earlier cases. Our close reading of the history-and-tradition (HAT) cases shows that there is a persistent gap between what the Court says and does—between the judicial constraint the Roberts Court promises and the actual decisions it delivers. Understanding this dynamic in the Second Amendment cases helps us recognize it in the First Amendment and Substantive Due Process cases as well. We can better appreciate the Court’s reasoning in extending HAT review if we excavate the arguments advanced in the decade between Heller and Bruen for substituting the HAT approach for means-ends review. This retrospective shows us that HAT approaches exhibit the very problems imputed to means-ends review: HAT review is not grounded in original understanding and employs shifts in generality to provide judges discretion to enforce value-based understandings. We can see this dynamic unfolding inside and outside the Second Amendment context. HAT decisions pose distinctive threats to democracy. First, Bruen has implemented HAT through judicial review with a strong presumption of unconstitutionality, a counter-majoritarian practice lacking precedent at the founding. Second, HAT review is not transparent, obscuring reasons for judicial decisions from the people and thus obstructing democratic dialogue. Third, the HAT framework encourages judges to decide the constitutionality of public safety laws on grounds that ignore the public’s most urgent reasons for enacting the laws. This reading of the Court’s Second Amendment cases indicates that the push to adopt HAT approaches in First Amendment, Due Process, and other areas of constitutional law is likely to compound the problems it is supposed to solve, while insulating the Court’s control of the Constitution from the public governed by it.

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Campbell on Tradition, Originalism, and General Fundamental Law

Jud Campbell, Stanford Law School, has published Tradition, Originalism, and General Fundamental Law at 47 Harvard Journal of Law and Public Policy 635 (2024). Here is the abstract.

It is commonly thought that looking to post-ratification traditions in constitutional interpretation is in tension with originalism. Yet traditionalism was central to American rights jurisprudence at the Founding and during Reconstruction. Back then, Americans jurists widely recognized a cross-jurisdictional body of general fundamental law. Though sometimes mentioned in constitutional text, this body of general fundamental law was not textually grounded and could evolve over time. This essay considers how originalists should account for this jarring notion that the content of fundamental law was partly constituted by an evolving body of traditions. In doing so, the essay highlights an important but often overlooked division in how originalists identify the determinants of fundamental law.

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Hollis on The Original Meaning of Treaties @TempleLaw @PennLRev

Duncan B. Hollis, Temple University School of Law, is publishing The Original Meaning of Treaties in volume 173 of the University of Pennsylvania Law Review (2025). Here is the abstract.

For nearly two centuries all three branches of the federal government have thought that the original meaning of the Constitution’s references to treaties and compacts was lost. This article aims to recover those original meanings by looking to an underexamined source—the contemporary law of nations. In 1789, that body of law regarded compacts, rather than treaties, as the umbrella category for all international agreements. Treaties—defined as executory commitments among sovereigns only—were but one form of compact. Others included executed “conventions,” agreements by “subsidiary powers,” and unauthorized “sponsions.” Each of these categories had a specialized meaning—they were terms of art—in both the scholarly corpus that delimited the field and contemporary practice. Although neither dictionaries nor the Framing materials explicitly invoke these definitions to assign constitutional meaning, there is extensive evidence in the text, intellectual history, and early U.S. practice for doing so. I identify support for a law of nations thesis in an array of previously ignored agreements, including those made by George Washington and Benedict Arnold. A law of nations thesis also helps explain why the United States concluded certain agreements as treaties and others as conventions in its earliest years. This article thus provides a new and historically rooted foundation for U.S. foreign relations law, with important implications for the scope and exclusivity of the Treaty power, the power to conclude “Executive Agreements,” the doctrine of non-self-executing treaties, the ban on U.S. state treaty-making, and the Constitution’s authorization of compacts with congressional consent.

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Smith on Originalism in the Year Three Thousand @msmith750 @StMarys_Law @QuinnLRev

Michael L. Smith, St. Mary's University School of Law, is publishing Originalism in the Year Three Thousand in volume 43 of the Quinnipiac Law Review. Here is the abstract.

While procrastinating from grading at the end of the Spring 2024 semester, a series of mishaps led to my inadvertent teleportation to the year three thousand, where I found myself attending a conference consisting of top originalist legal scholars. This essay recounts what I was able to gather about the state of constitutional interpretation in the centuries to come and applies these insights to current quandaries over how to classify modern courts’ interpretive methodology.

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Magnuson on Original Discontent @TAMULawSchool @VandLRev

William J. Magnuson, Texas A&M University School of Law, is publishing Original Discontent in volume 78 of the Vanderbilt Law Review. Here is the abstract.

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law. This Article argues that “original discontent,” that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community. More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution’s creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.

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

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

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

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Mootz and Hannah on The Strange Persistence of Originalism

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

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

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Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, has published Time and Tradition in Second Amendment Law at 51 Fordham Urban Law Journal 259 (2023). Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

Muller on The President of the Senate, the Original Public Meaning of the Twelve Amendent, and the Electoral Count Reform Act @derektmuller @NDLaw @CaseWRsrvLRev

Derek T. Muller, Notre Dame Law School, has published The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act at 73 Case Western Reserve Law Review 1023 (2023). Here is the abstract.

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes? This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors. Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power. This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act's decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

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Blocher and Garrett on Originalism and Historical Fact-Finding @DukeLaw @GeorgetownLJ

Joseph Blocher and Brandon L. Garrett, both of Duke University School of Law, are publishing Originalism and Historical Fact-Finding in the Georgetown Law Journal. Here is the abstract.

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on its being simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on. In the absence of the usual fact-finding protocols, many recent Supreme Court rulings have based the scope of constitutional rights on claims of historical fact—with those claims drawn primarily from amicus briefs, and involving some serious factual errors. This is significant in two broad sets of cases: those that rely on history to apply a constitutional rule (as lower courts are doing with the historical-analogical test prescribed by New York State Rifle & Pistol Association v. Bruen) and those that rely on history to set the content of a constitutional rule (for example in Dobbs v. Jackson Women’s Health Organization’s rejection of a constitutional right to abortion). The latter—which we call “declarative historical fact”—have become especially prominent in recent years. In this Article, we explore the promise and peril of treating historical fact-finding like other kinds of fact-finding in our legal system. Doing so calls into doubt originalism’s near-exclusive focus on historical fact-finding at the appellate level, informed by amicus briefs and judges’ or Justices’ own historical research. Our legal system gives trial courts primary authority over fact-finding, and many trial judges attempting to implement the Supreme Court’s originalist decisions have turned to historians as experts, holding hearings and calling for briefing at trial level. Such trial-level historical fact-finding imposes serious burdens and faces important limitations, but also has important institutional and constitutional advantages over appellate findings of historical fact. In addition to emphasizing the proper role of trial courts, our analysis suggests a more important role for Congress both in finding historical facts and in regulating appellate review of historical facts. Courts arguably owe deference—perhaps substantial deference—to congressional fact-finding, and it is not immediately apparent why historical fact-finding should be any different. Congress might also legislate standards of review for judicial fact-finding, including for historical facts used in constitutional litigation. This type of “fact-stripping,” a form of jurisdiction stripping, is consistent with congressional power over Article III courts, as we have developed in prior work. If originalism is to maintain its claim on being fact-based, it must grapple with these fundamental issues regarding the litigation of facts in our legal system. If it is not practically possible for judges develop a sound record of historical facts, then any approach to interpretation relying on such facts will not produce convincing, legitimate, or lasting interpretations of the Constitution.

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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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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.

Coan and Schwartz on Interpreting Ratification @uarizonalaw @WisconsinLaw

Andrew Coan, University of Arizona College of Law, and David S. Schwartz, University of Wisconsin Law School, have published Interpreting Ratification 1 J. Am. Con. Hist. 449 (2023). Here is the abstract.

For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant. Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism. All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.

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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.

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Smith on Originalism and the Meaning of "Twenty Dollars" @msmith750 @uidaholaw @CreightonLawRev

Michael L. Smith, University of Idaho College of Law, is publishing Originalism and the Meaning of 'Twenty Dollars' in volume 56 of the Creighton Law Review. Here is the abstract.

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today. While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

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Seigel on Memory Games: Dobbs's Originalism As Anti-Democratic Living Constitutionalism--and Some Pathways for Resistance @YaleLawSch @TexasLRev

Reva Siegal, Yale University Law School, is publishing Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance in the Texas Law Review. Here is the abstract.

This Article examines originalism’s role in Roe’s overruling in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice, whose long-term goal has been the overturning of Roe. On this account, executive branch appointments politics matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. The Article shows that originalism is a practice of living constitutionalism that makes the constitutional order less democratic in several important ways. To demonstrate why this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it. The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: I show how the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration. The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.

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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.

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