Legal History Commons^™

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan

Faculty Works

In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …

“Forced Worship Stinks In God’S Nostrils”: The Inquisition, Sepharad, And The American Experiment, Isaac Amon

Touro Law Review

In December 1791, the Bill of Rights, comprising the first 10 amendments to the U.S. Constitution, enshrined fundamental protections for individual freedoms, with the First Amendment guaranteeing liberty of conscience. This milestone, however, was the culmination of centuries of struggle. The arrival of Iberian Jews, including conversos, in North America played a pivotal role in shaping the course of American history. The Founders referenced the Inquisition in their letters and debates, particularly in discussions on legal protections for criminal suspects and the broader issue of religious liberty. Founding assurances of religious freedom to Jews and Christians stand in stark contrast …

Brief In Support Of Respondents As Amici Curiae, Donald J. Trump, President Of The United States, Et Al. V. Rebecca Kelly Slaughter, Et. Al, No. 25-332, Andrea Scoseria Katz, Jonathan Gienapp

Scholarship@WashULaw

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

Scholarship@WashULaw

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

Historical Tradition, The Second Amendment, And Marrying Gun Rights And Regulation: Examining The Proposals In Gavin Newsom's Twenty-Eighth Amendment And Their Place In Second Amendment Jurisprudence, Guy Cheatham

American University Journal of Gender, Social Policy & the Law

In September 2017, Stephen Paddock checked into rooms 32-134 and 32- 135 at the Mandalay Bay Hotel in Las Vegas. Both rooms looked over the Route 91 Festival in Las Vegas Village. Over the course of five days, Paddock brought twenty-two suitcases into his room: five on September 25th, seven on the 26th, two on the 28th, six on the 30th, and two on October 1st. On September 30th, Paddock placed “Do Not Disturb” signs on the doors of rooms 32-134 and 32-135. Paddock considered booking the high level suites for weeks; Google searches from May to September 2017 reveal …

Inventing Birthright: The Nineteenth-Century Fabrication Of Jus Soli And Jus Sanguinis, Sam Erman, Nathan Perl-Rosenthal

Articles

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

From The Kkk To The Modern Day: How An Accurate Understanding Of History Can Inform The Proper Standard For Punishing Civil Rights Conspiracies Under 42 U.S.C. § 1985(3), Bair Srivastav

American University Journal of Gender, Social Policy & the Law

Following the Civil War, Congress passed the Reconstruction Amendments, which secured political rights for newly freed slaves and ushered in a new era for the United States. The Union defeated white Southerners on the battlefield and removed former Confederates from the halls of political power. But white Southerners were still Confederates in spirit. Full of racial hatred, they did not perceive a new era of freedom, but a world twisted into an unnatural order where African Americans walked freely amongst white people and participated in the political process of Southern society. In response to the extension of basic freedoms to …

The Right To Acquire Property, John G. Sprankling

American University Law Review

Can government prohibit the acquisition of all types of property? The intuitive answer to this question is “no.” But why? Is there a constitutional right to acquire property? And, if so, how does it apply if government merely prohibits acquisition of a certain type of property, such as contraceptives?

The Fourth, Fifth, and Fourteenth Amendments restrict when property may be “taken” or “seized” and when a person may be “deprived” of property. Thousands of law review articles and hundreds of books have analyzed the scope of these provisions. But almost no modern attention has been devoted to their logical counterpart—the …

Emergency Oversight, Catherine Baylin Duryea

FIU Law Review

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e. price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

Under What Circumstances Is "Caste" Likely To Be Useful As An Analytic Concept (And Should We Care)?, Sanford V. Levinson, Robert L. Tsai

Faculty Scholarship

This Essay is the product of the 2025 “Constitutional Law Schmooze,” where academics from a variety of disciplines and from all over the country meet to discuss a common topic of constitutional law chosen by the moderator. This year’s topic was “caste.” The two of us, having written independent “tickets” of admission for the schmooze—i.e., short essays setting out our tentative thoughts about “caste”—turned out to be relative skeptics about the value of the term for lawyers. We are certainly not hostile to those who differ with us. This should be regarded as a “friendly dissent,” as distinguished, say, from …

The Endorsement Test's Early Years, 1983-1985: Notes From The O'Connor Files, Jay D. Wexler

Faculty Scholarship

One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. …

Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman

Faculty Scholarship

Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.

In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I …

What Is Deeply Rooted In The Constitution?, Thomas P. Crocker

BYU Law Review

In a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right …

The Constitution Without Tears, Gene Carter

Maine Law Review

The coming plethora of Bicentennial speeches and activities are intended to provide occasions for public figures and private persons to say something helpful to a current and realistic understanding of the role of the Constitution in our daily lives; and, hopefully, something at least modestly expository of our duties as citizens of American constitutional democracy.

The Afro-American And The Constitution: Colonial Times To The Present, James L. Watson

Maine Law Review

The theme of this essay is the Afro-American and the Constitution: Colonial Times to the Present. When I was told about this theme, my first reaction was to follow the advice of the famous black philosopher, Satchel Paige, who said, "Don't look back because what is behind you might be catching up." My discipline, however, forced me to look back at the Constitution and particularly how it has affected black Americans.

A Commemorative, Eric Robert Herlan Editor-In-Chief

Maine Law Review

In this issue the Maine Law Review joins in the national celebration of the Bicentennial of the United States Constitution. Three distinguished federal judges, all of whom are intimately familiar with that great document, have kindly contributed essays to the Review based on speeches they have earlier given for the Bicentennial. We are happy to present these essays, each of which has an important perspective on the Constitution, as our commemorative on this special occasion.

A Genealogy Of Founders, Frank M. Coffin

Maine Law Review

Two hundred years ago this spring George Washington wrote to our fellow Mainer, General Henry Knox, that because of the illness of his mother he would not be able to attend the Philadelphia Convention. If her health had not speedily improved, we might have had quite a different kind of Bicentennial, for both Washington and Benjamin Franklin, though largely silent in the debates, were palpable sources of strength. As it is, we have the happy occasion to celebrate what Everett Ladd has called "the expression of a nation-defining consensus on political values," our nationalizing principle, the one supreme bond linking …

The Lost History Of Judicial Restraint, Derek A. Webb

Notre Dame Law Review

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …

Abdication Of Power: Arizona V. Navajo Nation And Judicial Refusal To Enforce The Federal Trust Relationship, Jessica Yin

Washington Law Review

Over 150 years ago, the federal government signed a treaty promising the Navajo people a permanent home within the bounds of their ancestral homeland. To this day, that promise remains unfulfilled because the Navajo people face a severe water access crisis. When the Navajo Nation brought the United States to the Supreme Court to enforce its promise, the Court declined to hold the federal government accountable.

This Comment analyzes the Supreme Court’s decision in Arizona v. Navajo Nation through the lens of the judiciary’s historical approach to the federal trust relationship. The Court has traditionally defined the federal trust relationship …

The Griffin's Case Phenomenon And The Problem Of Historical Knowledge In Legal Arguments, Rachel A. Shelden

William & Mary Bill of Rights Journal

The sudden relevance of a formerly little-known historic case is surely not new; much of legal history is necessarily about discovery and rediscovery of the past. Still, I think the clarity with which we can outline the development of the Griffin’s Case phenomenon offers an opportunity to think carefully about the role of history in constitutional conversation. What follows, then, is a short exploration of the case’s recent (re)entry into our historical consciousness. Tracing this phenomenon highlights (at least for me) some potential difficulties embedded in the interaction between legal advocacy and what we know about the past.

This abstract …

In Praise Of Ignoring Facts, Stephen E. Sachs

William & Mary Bill of Rights Journal

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of …

Learning To Read Like An Eighteenth-Century Lawyer: The Historical Critique Of Originalism Revisited, Saul Cornell

William & Mary Bill of Rights Journal

Historians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.

This abstract has been taken from the author's opening paragraph.

Memory, Resistance, And Doubt, Richard Primus

William & Mary Bill of Rights Journal

The Burroughs Court did not identify any enumerated power that warranted the Corrupt Practices Act, I suggest, because the Burroughs Court did not subscribe to the enumeration principle. The Justices did not believe—or at least, did not consistently believe— that every federal law must be grounded in some enumerated power. As I have explained at length elsewhere, the text of the Constitution does not actually prescribe the enumeration principle: it can be read to support that idea, but it need not be. And at various moments in American constitutional history, judges and other people have taken the view that Congress …