Legal History Commons^™

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

Media Paratext And Constitutional Interpretation, Benjamin J. Priester

Faculty Articles

In the fields of media studies and fan studies, the concept of paratext is an analytical paradigm for understanding how audiences consume and interpret media texts, such as a novel or movie. Amid today's media-rich society, it is all but impossible to encounter a media text in isolation. Rather, we also invariably interact with a wide variety of associated paratexts, from official materials like trailers or marketing to unofficial materials like reviews or fan reactions, which play a role in shaping our interpretation of the core media text. This concept of media paratext provides a compelling analogy for constitutional interpretation. …

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt

Faculty Scholarship

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus

Articles

Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The Vesting …

Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson

Articles

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. …

The Elephant Problem, Richard Primus

Reviews

In their new book, "A Great Power of Attorney": Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central …

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

Scholarly Works

In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

All Faculty Scholarship

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen

Book Chapters

If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.

Articles

This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

All Faculty Scholarship

In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …

An Originalism For Foreign Affairs, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …

The Constitution's Political Deficit, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative …

Towards A Common Law Originalism, Bernadette Meyler

Cornell Law Faculty Publications

Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested …

Judicial Power And Mobilizable History, Richard A. Primus

Articles

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …

Constitutional Texting, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

"Constitutional Texting" introduces an account of constitutional meaning that draws on Paul Grice's distinction between "speaker's meaning" and "sentence meaning." The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is "clause meaning," the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and …

...A Rendezvous With Kreplach: Putting The New Deal Court In Context, Richard D. Friedman

Reviews

The Supreme Court of the New Deal era continues to captivate lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes seemed--whatever the reality--to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.

The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash

Law Faculty Publications

The paper traces the dramatic jurisprudential innovations of the New Deal Revolution, including the articulation of incorporation theory, the abandonment of judicial construction of state common law, and the ascension of textual originalism as the Court's method of constitutional interpretation. I argue that the New Deal Court transcended the political goals of the Roosevelt administration and attempted to restructure the nature of legitimate judicial review in a post-Lochner world. Acting, in effect, as a constitutional convention, the Court not only changed the nature of judicial review, it altered the shape of the Constitution in ways that cut across modern political …

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin West

Georgetown Law Faculty Publications and Other Works

Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship -- only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted -- particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep -- although it has come …

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Abstract Democracy: A Review Of Ackerman's We The People, Terrance Sandalow

Reviews

We the People: Foundations is an ambitious book, the first of three volumes in which Professor Ackerman proposes to recast conventional understanding of and contemporary debate about American constitutional law. Unfortunately, the book's rhetoricinflated, self-important, and self-congratulatory-impedes the effort to come to terms with its argument. How, for example, does one respond to a book that opens by asking whether the reader will have "the strength" to accept its thesis? Or that announces the author's intention of "engaging" two of the most influential works of intellectual history of the past several decades-and then discusses one in two and one-half pages …

Constructing A Constitution: 'Orginal Intention' In The Slave Cases, James Boyd White

Other Publications

The question how our Constitution is to be interpreted is a living one for us today, both in the scholarly and in the political domains. Professors argue about "interpretivism" and "originalism" in law journals, they study hermeneutics and deconstruction to determine whether or not interpretation is possible at all, and if so on what premises, and they struggle to create theories that will tell us both what we do in fact and what we ought to do. Politicians and public figures (including Attorney General Edwin Meese) talk in the newspapers and elsewhere about the authority of the "original intention of …

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.