Legal History Commons^™

Is Originalism Orthodoxy?, Neel Sukhatme

Articles

What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.

The Supreme Court, Regime Politics, And Federalism: From The New Deal To The Trump Era, J. Mitchell Pickerill, Lilly A. Pickerill

Northern Illinois University Law Review

In the 1990s, the conservative majority on the Rehnquist Court championed state sovereignty and autonomy in a series of cases some commentators dubbed a “federalism revolution.” The Supreme Court crafted constitutional doctrines under the Commerce Clause, Tenth and Eleventh Amendments, and Section Five of the Fourteenth Amendment that limited federal powers while protecting or bolstering state powers. The Court’s doctrines in those cases diverged from its approach to constitutional federalism since the New Deal in the 1930s, but it tracked with the conservative Republican political agenda promoting a “new federalism” going back to Presidents Nixon and Reagan. However, as the …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Northwestern University Law Review

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

From Dred Scott To Barbara: Birthright Citizenship, Racial Exclusion, And The Enduring Promise Of The Fourteenth Amendment, Jenna A. Milbrodt

CMC Senior Theses

The Fourteenth Amendment’s Citizenship Clause has guaranteed birthright citizenship to all children born in the United States for hundreds of years. Yet, President Trump’s January 20, 2025, executive order threatens to strip that right from children born to parents unlawfully in the country and temporary visitors. This order, if permitted to stand, would change the definition of US citizenship and render countless children stateless persons without citizenship rights. This paper examines whether birthright citizenship in the US, properly understood, extends to children of unlawful immigrants and temporary visitors. To answer this question, three time periods of change in citizenship rights …

Applying History As Law: The Role Of Historical Facts In Implementing Constitutional Doctrine, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory …

Creation And The Republican Revival, William M. Treanor

Georgetown Law Faculty Publications and Other Works

Gordon Wood's classic book Creation of the American Republic has long influenced legal thought and originalist scholarship in particular. It played a central role in the Republican Revival movement, an effort by leading scholars such as Cass Sunstein and Frank Michelman to recover a progressive originalism at the same time as conservative originalism was starting to shape constitutional jurisprudence. But, while the Republican Revival nominally relied on Wood, it misread central elements of his book - his concept of virtue and his belief that republicanism had largely been displaced at the time of the drafting of the Constitution.

The time …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

The Unitary Theorists' Appointments Clause Problems, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence.

It is a surprising argument for a power of presidential removal, because the text of the Appointments Clause plainly requires both the President and Senate to appoint. The noncommon sense reading, that the president alone appoints, and thus the president can remove, was not in any of the Trump Administration’s briefs, but it was in a single amicus brief, and it was picked up in oral argument and the mainstream media.

This …

Five Lessons From Ken Kersch’S Conservatives And The Constitution For The Present Moment, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and …

Splitting The Statute: Severability As A Canon Of Construction Or Constitutional Concern?, Amy L. Moore

Catholic University Law Review

Severability doctrine stands at the crossroads of statutory interpretation and constitutional structure. This Article traces how the Supreme Court has struggled to define whether severability is merely an interpretive presumption designed to preserve as much of Congress’ work as possible, or a constitutional limit on judicial power that forbids courts from reconstructing statutes Congress never enacted. Beginning with Marbury v. Madison and running through cases like Alaska Airlines, Booker, Ayotte, Seila Law, and Loper Bright, this Article charts the Court’s shifting rationales from legislative intent and functional operability to structural separation-of-powers concerns. It distinguishes between …

Reckoning With Antisemitism In History And Tradition, Nathaniel Shaw Hay, Isaac Barnes May

Pepperdine Law Review

“History and tradition” has become a watchword of modern constitutional interpretation, shaping Supreme Court jurisprudence and framing ongoing debates over the meaning of the Fourteenth Amendment. Yet this interpretive framework remains under-theorized in one critical respect: how should it grapple with the prejudices embedded in the very traditions it invokes? This Article examines that question through the lens of anti-Jewish discrimination in Anglo-American law, using this history as a case study to examine both the perils and promise of relying on history as a source of constitutional authority. For centuries, the common law excluded Jews from full civic participation in …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

"What Shall Be Orthodox" In Polarized Times: Overview And Response To Commentators, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson wrote this celebrated passage in his majority opinion in West Virginia State Board of Education v. Barnette (1943), which protected the First Amendment right of Jehovah’s Witness children not to participate in a compulsory flag salute in public schools. In recent years, protests against imposed orthodoxy—usually invoking Barnette—have occurred in …

An Originalist Case For Birthright Citizenship Of Unlawful Immigrants' Children: Anti-Gypsy And Anti-Chinese Restrictions As Context, Jed Handelsman Shugerman

Faculty Scholarship

The Trump administration and other opponents of birthright citizenship for the children of “unlawful immigrants” make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to “lawful immigrants,” because the category of “unlawful immigrant” or “illegal immigrant” did not exist in the 1860s, when the clause was written and ratified. Opponents also argue that the Fourteenth Amendment’s citizenship clause originally implied a “loyalty” or “allegiance” requirement.

These assertions are historically inaccurate.

To the contrary, the concept of “unlawful immigrants” existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating …

Brennan And State Constitutions, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The former Great Gorge Playboy Resort in New Jersey seems an unlikely place to help form a jurisprudential movement toward reliance on state constitutions to protect civil rights and liberties.

One need only turn back the clock to 1976 to find the story of one of the most significant moments in the rise of state constitutions. Anyone who is steeped in this movement is likely familiar with the lead article in the January 1977 issue of the Harvard Law Review, “State Constitutions and the Protection of Individual Rights.” The author was U.S. Supreme Court Justice William J. Brennan Jr.

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 …

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 …

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 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. …

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 …

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 …

Shared Memories And Constitutional Foundations, Sanford Levinson

William & Mary Bill of Rights Journal

It is significant that the first word in the title of Jack Balkin’s new book [Memory and Authority] is “memory.” A repeated theme of the book is that what binds a nation—or a constitutional order—together is shared memories around which diverse individuals can gather together and therefore establish themselves as a community. Balkin refers to an impressive array of sources with regard to the topic of “public memory,” but I want to concentrate on one of them, which is cited but not extensively discussed. That is Ernest Renan’s famous speech, delivered at the Sorbonne in Paris on March …

Invocations Of Memory In State Constitutional Law, Fred O. Smith Jr.

William & Mary Bill of Rights Journal

This Symposium Essay discusses the roles of history and memory within the realm of state constitutional law. Building on Professor Balkin’s observations, I offer two claims. The initial argument, delineated in Part I, is descriptive. While the practice of state constitutional law often mirrors that of federal constitutional interpretation, the use of history in state constitutional interpretation has unique characteristics, both with respect to text and ethos. Regarding textual analysis, understanding the language of a state constitution often involves engaging with a concept referred to by some scholars as “interconstitutionalism.” This phenomenon occurs when a single governmental body has operated …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …

Section Three Of The Fourteenth Amendment: Insurrection, Mark A. Graber

William & Mary Bill of Rights Journal

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an …

The Takings Blunderbuss: From Pennsylvania Coal To Dobbs, Michael Allan Wolf

UF Law Faculty Publications

This Article explores three problems with the excess use of the Takings Clause (the "takings blunderbuss") that should cause concern not to left-wing judges and scholars who endorse seemingly unfettered activism from the bench and champion an organic view of the Constitution, but instead, and somewhat surprisingly, to conservatives who claim to eschew those practices. The first problem is that the text and original understanding, as far as we can discern, indicate that the Takings Clause was designed to ensure that owners receive payment when they are forced to sacrifice ownership of their tangible property for public use, most commonly …

An Originalist Approach To Puerto Rico: Arguments Against The Status Quo, Micah Allred

Notre Dame Law Review Reflection

Few originalists have grappled with a fundamental question about Puerto Rico: whether the Constitution permits the United States to hold the island indefinitely as nonstate territory. There are reasons to doubt that it does. The main purpose of the Constitution’s territorial provisions was to allow Congress to transition the then West-ern Territory into states. And, as a structural matter, Congress’s direct authority over Puerto Ricans conflicts with important constitutional principles such as federalism. But for originalists, arguments from purpose and structure are helpful only insofar as they elucidate the original meaning of the Constitution’s text. This Article lays out two …

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …