American Constitutional History Research Articles

Alabama Justice: The Cases and Faces That Changed a Nation by Steven P. Brown

Reviewed by: Alabama Justice: The Cases and Faces That Changed a Nation by Steven P. Brown Ian J. Drake Alabama Justice: The Cases and Faces That Changed a Nation. By Steven P. Brown. (Tuscaloosa: University of Alabama Press, 2020. Pp. xiv, 262. $49.95, ISBN 978-0-8173-2070-6.) Steven P. Brown has written an account of notable U.S. Supreme Court cases and short biographies of three Supreme Court justices, all from Alabama. [End Page 421] This volume appears to be intended for an undergraduate or graduate-level readership. Although the explanations of the litigation histories and doctrinal backgrounds of these cases are engaging, scholars in the fields of law and constitutional history will find little that is new here. It is uncertain what unites the cases collected in this volume other than their constitutional law elements and the fact that they all happened to originate in Alabama state and federal courts. The author is aware of the arbitrary nature of these cases and poses a question, "Why Alabamians?" (p. 3). Brown suggests that state residents in the mid-twentieth century began to take their constitutional rights "seriously" and turned to the courts to vindicate them (p. 3). Did they fail to take their rights seriously before? If so, why? No explanation is given. The cases reviewed are quite important in American constitutional history. For example, NAACP v. Alabama (1958) was a case wherein Alabama state officials sought the membership list of the state chapter of the NAACP. The Court invalidated the state action under the substantive due process clause rubric of incorporating the free expression rights of the First Amendment through the Fourteenth Amendment's due process clause. This case aided the civil rights movement by protecting advocacy organizations from being compelled to reveal their members and agents, which would, in turn, have deterred supporters from contributing or joining such organizations. Another notable case from Alabama was New York Times v. Sullivan (1964), wherein the civil rights movement was again indirectly aided by the Court's creation of a higher bar for the successful pursuit of defamation claims by public officials against news organizations. The result encouraged greater media coverage of the civil rights movement due to the reduced fear that state officials could maintain successful defamation lawsuits against newspapers and radio and television organizations. Although these are important—even landmark—cases, there does not seem to be any distinct reason that they originated in Alabama. In fact, what makes the cases important is the fact that they resonated far beyond Alabama; they affected other states because other states were engaged in the same or similar behaviors. Although this book is a hodgepodge of cases, they are all from the twentieth century, and most of them are related to the civil rights movement. In fact, a slim majority are from the era of Chief Justice Earl Warren (1953–1969). This work will be most beneficial to undergraduate and graduate students in terms of recounting the history of constitutional doctrines and explaining how those doctrines were exemplified in a single case. Brown recounts the history of a doctrine, such as gendered distinctions in the law or the Court's treatment of the commerce clause, both before and after the instant case, and explains how that case affected constitutional law and social or political practice. One feature of the book from which even constitutional scholars will benefit is the mini biographies of three Alabamians who served on the U.S. Supreme Court. Brown reviews the histories of John McKinley, John Archibald Campbell, and Hugo L. Black. McKinley's life exemplifies the hardships of justices from the antebellum period when circuit riding was hazardous to their health and made the Court the least appealing of federal posts. Campbell was so renowned a practitioner that all the then-sitting justices petitioned President [End Page 422] Franklin Pierce for him to be nominated. Finally, Black, Franklin D. Roosevelt's first appointment to the Court, is remembered for his strident support for applying the Bill of Rights to the states. Unfortunately, there is no concluding section to the book, which might have provided an argument for the distinctiveness of Alabama politics or culture...

Early Delegations of Federal Powers

Conservatives have long tried to eviscerate federal administrative law by divining an implicit constitutional doctrine forbidding Congress to delegate its legislative powers. Contemporary originalists continue the effort, arguing that the original meaning of the Constitution includes this doctrine despite its absence from the document’s text. In response, critics have begun to show that early American constitutional history and theory support contemporary administrative law either as a valid delegation of legislative power to the executive branch or as the executive branch executing a statutory directive (or both). This Article expands on that response and critiques standard originalist arguments for a nondelegation doctrine. It demonstrates that early congressional statutes delegated federal powers to a broad group of actors including private experts acting alone, private experts acting with judicial or executive oversight, and non-federal authorities in addition to federal executive officials. Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions. The delegations included areas demanding expertise or flexible decision-making and required the delegate to balance risks against economic costs. They addressed some of the most critical subjects for the nation’s early government: race, shipping, and the public fisc. A 1790 statute, for example, protected the health and safety of sailors on foreign voyages. It specified minimum requirements for the types, amounts, and storage of food and water for every sailor. It also provided that each American ship of a certain size and crew be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled. Food, water, and medicines have costs, of course. Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea. It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage. But Congress did not. Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration. The use of experts and administrative law are well within the Constitution’s constraints on the federal government. Conservatives who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments. But they cannot rely on history to claim that the “original meaning” of the Constitution includes a nondelegation doctrine.

Breaking the Cycle: Rot and Recrudescence in American Constitutional History

This essay for a symposium on Jack Balkin’s The Cycles of Constitutional Time draws on Balkin’s framework to evaluate the prospect of constitutional renewal through judicial review. It begins by questioning Balkin’s conclusion that historical change operates cyclically. It then takes up his assumption that courts have served as a source of constitutional renewal during some periods, including the mid-twentieth century. It argues that the Carolene Products regime that Balkin describes should be understood not as a solution to economic inequality and republican rot in a period of declining political polarization, but rather as a precipitating cause. Indeed, the New Deal settlement may have staved off durable change and thereby produced the seemingly cyclical pattern Balkin observes.

Ex Parte Milligan Reconsidered: Race and Civil Liberties from the Lincoln Administration to the War on Terror. Edited by Stewart L. Winger and Jonathan W. White (Lawrence, University Press of Kansas, 2020) 371 pp. $35.00

This collection is, simply put, excellent. The twelve separate chapters (two of them by Michael Les Benedict) offer extraordinarily rich reflections on an 1866 case, Ex parte Milligan, in which the Supreme Court invalidated the conviction (and death penalty) of Lambdin Milligan, after trial before a military commission. Milligan supported the Confederacy, no small matter in a de facto border state like Indiana, which was sharply divided between supporters and skeptics of forcible prevention of secession.Justice David Davis, who had been Abraham Lincoln’s campaign manager and an Illinois state trial judge for fourteen years prior to his appointment to the Supreme Court, wrote a self-consciously broad opinion, which gained five votes, that he hoped would ring down through the ages as a defense of basic civil liberties even during times of war. He declared that so long as civil courts were available, it was unconstitutional to try a civilian in front of a military commission. He rejected the notion that “emergencies,” even a war, could render nugatory sacred individual rights and liberties. Salmon Chase, one of Lincoln’s “team of rivals,” who had been both secretary of the treasury and, more importantly, a leading anti-slavery lawyer, wrote a more modest opinion in behalf of four justices, agreeing that Milligan’s trial and sentence were illegal, but only because Congress had not authorized the use of military commissions in Indiana. The Constitution did not, however, absolutely prevent Congress from doing so.A theme running through the entire volume is the degree to which Davis’ ambitions were in vain. One prominent historian labeled his opinion “irrelevant,” because it did not prevent grave deprivations of civil liberties in the future. Others who have been kinder still note that Davis’ opinion has been honored at least as much in the breach as in the observance. But another important question is whether we today should give Davis’ opinion the veneration that he desired and that it continues to receive from some contemporary civil-liberties lawyers. Jonthan Hafetz, a long-time lawyer for the American Civil Liberties Union before entering the legal academy, concludes the book by arguing that Davis’ opinion should help to protect those accused of terrorism from policies like those adopted by President George W. Bush’s administration (and continued with less severity under President Obama) that consigned suspects to military commissions.The major accomplishment of the collection, however, is its careful placement of Milligan in the context of both the Civil War and the ensuing hopes for a Reconstruction that included genuine regime change and not merely, for example, the repudiation of secession and acceptance of the Thirteenth Amendment abolishing formal slavery. Many Republicans at the time correctly viewed Davis’ opinion as a huge victory for Southern whites who wished as little regime change as possible. Their preferences would undoubtedly fare better in civil courts than in military commissions—not only because many judges would be less sympathetic to the overall project of regime change than those who staffed military commissions but also because one holdout in a jury trial would be enough to prevent the conviction of clearly culpable opponents of necessary changes. This problem with jury trials continues today when defendants can appeal to the entrenched prejudice of a local community to justify their actions. One reason for supporting trials of suspected terrorists in civil courts is that few, if any, “unjust acquittals” will occur because jury members are sympathetic to the terrorist cause. Such was not the case, however, regarding Confederate sympathizers or such terrorists as members of the Ku Klux Klan.The collection could have delved more deeply into this particular reason for being suspicious of civil courts in the context of a South that had been defeated on the battlefield but had not truly accepted the role that those now called African-Americans (as opposed to their former identity as enslaved persons) would play in the “new South.” Several of the chapters, however, offer extremely granular explorations of Indiana politics and what might be termed the “facts on the ground” that motivated the decision to use commissions instead of Indiana’s courts. The various “Copperhead” critics of the War, particularly as it became a war to end slavery as well as to maintain the Union, receive careful attention, as do the state and national Republican Party political machinations that were involved.Anyone interested in American constitutional history should certainly read this truly excellent book. But, insofar as it also challenges us to consider how matters of context might be relevant to our support for certain conceptions of civil liberties, including the necessity of jury trials, the book deserves a broader readership. The writing is accessible to specialists and general readers alike.

An American Jurist in London: Bruce Ackerman’s Proposals for Constitutional Reform in the UK Versus Bruce Ackerman’s Constitutional Theory

The American constitutional theorist Bruce Ackerman has recently suggested that the UK Parliament should call a constitutional convention to draft a written constitution that can be put to voters in a national referendum after a two-year drafting period. In this article, I examine a number of points of disjoint between these proposals and Ackerman’s own, “dualist” theory of constitutional change, developed from an intriguingly novel reading of American constitutional history. While this theory advocates generation-spanning, multi-institutional processes of constitutional change, Ackerman’s UK proposals involve a more fleeting and nationalistic approach, with unitary majorities apparently reigning supreme. The question is: can this disjoint between Ackerman 1 and Ackerman 2 be justified as Ackerman’s attempt to work within the contours of the UK’s constitutional culture, traditionally conceived? Or might Ackerman’s unfiltered American theory have something important to offer a UK audience today, given the divisions that the Brexit process has revealed in British society between opposing, traditional and non-traditional understandings of British sovereignty and democracy?

Rights-consciousness as an Object of Historical Inquiry: Revisiting the Constitution of Aspiration

Hendrik Hartog’s article “The Constitution of Aspiration” paved new ways of thinking about the historical formation and political significance of rights-consciousness. This Essay considers the contribution of social histories of rights-consciousness to our understanding of the underpinnings and consequences of constitutional change. In particular, we consider the impact of this literature on debates regarding questions of periodization in American constitutional history and on debates concerning the relationship between egalitarian and counter-egalitarian strands of rights-consciousness. We critically evaluate the importance and limits of these contributions by focusing on methodological and interpretive questions that emerge from recent literature on struggles for racial and gender equality.

The Coming of the Fifteenth Amendment: the Republican Party and the Right to Vote in the Early Reconstruction Era

The year 2019 marks the one hundred fiftieth anniversary of one of the most significant moments in American constitutional history. On February, 25, 1869, more than two-thirds of the members of the House of Representatives approved the proposed Fifteenth Amendment. The next day, the Senate followed suit, and the proposed amendment was sent to the state legislatures for ratification. After being ratified by the requisite number of states, the Fifteenth Amendment became the last of the three Reconstruction amendments that fundamentally transformed both the structure of the Constitution and the nature of American federalism. The Fifteenth Amendment differed from its predecessors in a number of important ways. First, it was the only one of the Reconstruction amendments and remains the only part of the entire Constitution to focus explicitly on race. In addition, the amendment became the first provision of the Constitution to limit the power of the state governments to establish the qualifications for voters in elections for state office, providing that “[t]he right of citizens…to vote…shall not be denied or abridged…on account of race, color, or previous condition of servitude” and also vesting Congress with the authority to enforce this command by adopting “appropriate legislation.” Thus, among other things, the Fifteenth Amendment provided the most plausible source of congressional authority for the passage of the Voting Rights Act of 1965—a statute which was and continues to be, by any standard, one of the most important civil rights measures ever adopted by Congress. Nonetheless, unlike the Thirteenth and Fourteenth Amendments, legal scholars have shown little or no interest in exploring the background of the Fifteenth Amendment. This article is the first to describe both the sequence of events that led to the passage and ratification of the Fifteenth Amendment and the forces that shaped the amendment itself.

De alienígenas chinos e indígenas yaquis (ubicando el constitucionalismo latinoamericano)

He aquí un par de casos pretéritos en busca de una categoría actual. Los casos son el del pueblo yaqui en México, entre su hostigamiento y supeditación en Sonora y su deportación y esclavización en Yucatán, y el de la inmigración china y su tratamiento severísimamente discriminatorio, hasta la expulsión, en el mismo Estado de Sonora. La categoría es aquella que pudiera ser capaz de caracterizar el constitucionalismo latinoamericano por la recurrencia de casos similares respecto tanto a pueblos indígenas como a contingentes de inmigraciones no europeas. Al propósito se toma también en cuenta a los Estados Unidos. Entre casos y categoría, se considera la condición constitucional o, dicho mejor, el estatus extraconstitucional, durante el siglo XIX, de los llamados culíes, de otros trabajadores importados, de esclavos emancipados y, a su vez, como presencia humana más relevante para el mismo núcleo del constitucionalismo, de los pueblos indígenas, en cuyo contexto la historia constitucional latinoamericana se revela como una especie de reciclaje e incluso potenciación del legado colonial europeo por Estados independientes. Dicho de otro modo, a lo largo y ancho de las Américas, el colonialismo puede ser un factor de primer orden en la formación y el desenvolvimiento del constitucionalismo.

Suffrage Reconstructed: Gender, Race, and Voting Rights in the Civil War Era by Laura E. Free

Reviewed by: Suffrage Reconstructed: Gender, Race, and Voting Rights in the Civil War Era by Laura E. Free Jerrad P. Pacatte Suffrage Reconstructed: Gender, Race, and Voting Rights in the Civil War Era. By Laura E. Free. Ithaca, NY: Cornell University Press, 2015, 235 pages, $39.95 Cloth. Historian Laura Free's monograph Suffrage Reconstructed: Gender, Race, and Voting Rights in the Civil War Era explores an often overlooked chapter in nineteenth-century United States history: why, in the aftermath of the Civil War, did the authors of the Fourteenth Amendment intentionally use the word "male" to articulate the ideal citizen-voter? Beyond contextualizing the gender politics at play in this "unprecedented moment in American constitutional history," effectively excluding women of all races from the vote, Suffrage Reconstructed delves into the writings and speeches of key white female suffragists, many of whom hailed from the Empire State and whose antebellum and post-Civil War agitation helped reshape the political landscape of New York State (5). In the process, Free insightfully unpacks these women's complicated relationships along lines of race and class, exposing how their racial prejudices informed and undergirded their crusades for suffrage in post-Civil War era America. Free identifies the various ways Americans reconstructed—and in the case of women and African Americans, constructed—their access to the ballot box. Wedding American political thought, African American history, and women's suffrage, the book unpacks the ideological underpinnings of the oft-cited [End Page 506] phrase "We the people," a phrase predicated upon suffrage, patriarchy, and white supremacy. Suffrage Reconstructed chronicles the ways the American nation fashioned and refashioned its definition of the ideal citizen-voter from the time of the writing of the Constitution. When the founders signed the Constitution in 1787, virtually no gender pronouns were to be found in the document. In the Early Republic, the words "citizen and voter" were synonymous with white, landowning males over the age of twenty-one. Yet Free reminds her readers that the antebellum system of property-based voting rights was not without its own Achilles heel, particularly in the case of free African American men and landowning women whose presence challenged the hegemony of white male patriarchy north and south. Drawing from New York state convention records, Free describes how in 1821 the Empire State instituted the requirement that male African Americans had to own at least $250 worth of property in order to cast votes. She documents several instances whereby black male New Yorkers satisfied these property requirements, and in turn, voted; all others, i.e., the poor, the landless, free and enslaved African Americans, Native peoples, and women were barred from the franchise. The 1830s and 1840s witnessed the emergence of social and political movements spearheaded by African American women and men and white women in the North to both expand the franchise and abolish the "peculiar institution" of slavery. As the abolitionist fervor gained traction across the Northeast in the early 1830s, several northern states responded to these calls for the enfranchisement of the North's black male citizenry by doubling down on their state's suffrage restrictions. Free revisits the 1846 New York State Constitutional Convention, a meeting where state delegates ultimately rejected a provision to extend equal voting rights to African American men, to prove her point. Citing convention transcripts held in the Empire State, as well as other federal and state documents, Free persuasively argues that African American men justified their enfranchisement because of their gender, whereas white suffragists initially pointed to abstract principles of democracy enshrined in the Constitution (156–61). Although divided by race and gender, white suffragists and African American men shared identical goals: the right to vote and the full recognition of their citizenship. [End Page 507] Free shows that the supposed gender neutrality of the federal Constitution persisted until 1866. Faced with the pressing issues of African American citizenship and congressional representation following the Civil War, white male politicians serving in the Reconstruction-era United States Congress opted to enfranchise all male citizens of the nation. Consequently, the framers of the Fourteenth Amendment thereby incorporated the word "male" three times in the amendment's second section. Free...

The Path Not Followed: An Administrative Solution to the Flag Salute Controversy, 1937–1939

The Path Not Followed:An Administrative Solution to the Flag Salute Controversy, 1937–1939 Richard F. Hamm (bio) In late September 1937 Grace Sandstrom, a thirteen-year-old eighth grader on Long Island began having trouble at Lake Ronkonkoma Elementary School. Her Jehovah's Witness faith kept her from saluting the American flag, a practice required by state law. The matter escalated. The school principal, along with members of members of the local school board, and the school's attendance officer became involved in an effort to compel her to salute the flag. Sandstrom was repeatedly sent home from school for refusing to salute the flag. Because their daughter was absent from school, the Sandstroms were prosecuted for failing to obey "Section 627 B 2 of the School law," requiring that parents send their children to school. The resulting case became part of a much larger effort by the Witnesses to use constitutional law in the courts to limit laws and regulations that restricted the practice of their religion, earning this religious group a "place of pride in constitutional law casebooks and histories." The Witnesses, in the words of legal scholar Shawn Francis Peters, made "an indelible mark . . . upon American law."1 But their efforts did not result in clear constitutional law. As legal historian Sarah Gordon writes, "Religion has bedeviled the courts" producing some of the "most divisive and difficult questions in all of constitutional jurisprudence" lasting until today. The flag salute issue is a case in point, with the United States Supreme Court reversing its position on the issue. A challenge to Pennsylvania's flag salute policy, brought by the Gobitis family children was moving through the courts at the same time as the Sandstrom case. It culminated in the first of the United States Supreme Court's Flag [End Page 261] Salute cases, Minersville School District v. Gobitis, which upheld the compulsory flag salute. Within three years, the Supreme Court in West Virginia State Board of Education v. Barnette would reverse itself and find in favor of the Witnesses.2 As the Witnesses's cases are the fount of much of our modern constitutional interpretation about the boundaries between religion and state, their interactions with the courts have been widely studied. As one of the leading case books on American constitutional history puts it, "The first concerted exploration of what the religion clauses [of the 1st Amendment] meant came with a series of challenges against state and local restrictions litigated by the Jehovah's Witnesses." Thus, in previous explorations of the flag salute controversy, scholars have focused on the constitutional issues, the course of changing views within the Supreme Court, the use of the legal system to suppress the Jehovah's Witnesses, the explosion of extra-legal violence against this religious group, their role in reshaping law in New York, and their litigation campaign (staged with the help of the American Civil Liberties Union [ACLU]) that was successful in using courts to protect their rights.3 However, the Sandstrom case reveals what has not yet been explored in the literature: that the Witnesses and their allies tried to take another path to resolve their problems with the law. On behalf of Grace Sandstrom, the Witnesses and lawyers from the ACLU repeatedly asked the educational authorities to write a religious exception into the school regulations that implemented the state flag salute law. In other words, they sought an administrative law solution to the conflict between the law and the Witnesses's faith. At the very time that the Witnesses turned to administrative law, it had become a key part of the American legal framework. Administrative law had planted roots in the nineteenth century (in the fertile ground of the expansive statute law), expanded tremendously during the Progressive Era, [End Page 262] prospered in the 1920s, and grew to a vast forest of law during the New Deal. Therefore, in the telling phrase of historian Joanna L. Grisnger, "by the end of the 1930s, the bureaucrats were in charge." School law was a classic example of the development of both law and administrative law. For example, in New York the statute law set the framework in 1937 State Education...

Constitution-making in the Shadow of Empire

The newly multinational American Journal of Legal History is a healthy sign of the field’s recent expansion. To help make sure that comprehension is not traded off for comprehensiveness, legal historians might renew their attention to interpretive frames and methods of undertaking projects. This essay offers two tentative suggestions. One concerns a framework for guiding research about the history of governance. The key phrase here is constitution-making in the shadow of empire. The other concerns the way that legal historians define and undertake projects. There, the keyword is collaboration. Drawing on a collaborative project on the international dimensions of early American constitutional history, the essay suggests that legal historians of post-colonial and developing nations could test interpretive frames developed in other disciplines against the real world of the past. Concepts like state-building, credible commitment, and postcoloniality, for example, could guide and in turn be enriched by studying the actual constitutional and legal mechanisms of state formation as they developed over time.

Early American Constitutional History: A Source Guide

This is a concise guide to source materials relevant to late 18th-century and early 19th-century constitutional history in the United States, often with accompanying reflections about using these sources in historical and legal scholarship. The guide aims to be useful to those who are just entering the field as well as to more established historians and lawyers who want to keep up with newly available sources. Further suggestions are welcome.

Who are 'the People'?

The question that animates this paper is one that is central to American constitutional history. Curiously, however, the concept “the people” has not been well-studied either by historians or constitutional and political theorists. This problem is not limited to scholarship, it is pervasive throughout our political culture. We constantly debate when the people have spoken, acted, decided, or willed without ever seriously asking who “the people” are. The popular turn in American constitutional theory (sometimes called “popular constitutionalism”) has brought attention back to the concept in a serious way. But as their critics have pointed out, the key concept at the center of the popular turn has gone largely unexamined.The aim of this paper is to examine “the people” as it has been conceptualized in the work of three major theorists of the popular turn — Bruce Ackerman, Akhil Amar, and Larry Kramer. Despite the claims of their critics, it is possible to put their works together in a way that unearths a working, if imprecise, concept of “the people.” This becomes clear when we filter their work through that of German legal and political theorist Carl Schmitt. A controversial figure because of his relationship to the Nazi Party in the early 1930s, Schmitt nevertheless developed a radical democratic theory. A number of Schmitt’s concepts can be seen in the work of Ackerman, Amar and Kramer, despite the fact that only Ackerman has demonstrated any awareness of Schmitt’s work. These concepts — the three moments of democracy, sovereignty, sovereign dictatorship, the constituent power, and acclamation — can help bring greater conceptual clarity to the popular turn. In particular, they help to account for the impression given by the popular turn that the people are seemingly everywhere and nowhere.One of Schmitt’s key interventions was to disaggregate the people in time. In other words, “the people” act differently depending upon the moment of democracy they occupy. In their sovereign moment, outside and above the constituted order, the people exercise their sovereign authority to create a constitution, usually through the mechanism of the sovereign dictatorship (i.e. a constituent assembly). In the second moment, the people act within the constituted order through their legal “competencies” assigned by a constitution, usually through elections and representation. In the third moment of democracy, the people return to a place outside the constituted order, but next to it rather than above. Here, the people rely upon their constituent power not to found a constitutional order but to develop new constitutional norms within it. They accomplish this through opinion creating activities that occur in public, which Schmitt terms “acclamation.” Although they have given some attention to the first moment, the bulk of the popular turn has focused on the people in their third moment. And in some ways they have developed and refined Schmitt’s idea of acclamation further than he did himself. Read through a Schmittian lens, the popular turn gives us a way to read constitutional history that accounts both for origins and change over time, and provides the foundation for an historical, and perhaps democratic, jurisprudence.

Constitutional Limitations on Sovereignty, 2014 Edition

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.The readings provide an historical context, and an up-to-date focus on many of the constitutional issues facing today’s Supreme Court: imperium versus dominium; the public trust, inverse condemnation, the navigation servitude, “regulatory takings”; “judicial takings,” the “navigability” boundary on federal power; the “public use” limitation on eminent domain; the balance between property rights and First Amendment liberties; the “essential nexus” between government prohibition and purpose; the fine line between taxation and expropriation, and; commerce power limitations on Congress’s law-making. Special attention is directed at the Supreme Court’s 2012 decision concerning the constitutionality of the Affordable Care Act (“Obamacare”).The court cases in this work have been grouped into thirty seven “sessions.” Most sessions consist of four or five cases, and the related statutes, if any. The materials are intended to be economically, politically and legally evocative and to provide an assignment appropriate for a class hour of discussion. The text consists of non-copyrighted material and readers are free to use or re-mix it in whole or part. The tightly-edited cases may be readily borrowed for use in other courses. No rights are reserved.

A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States

A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States MARK R. KILLENBECK The charge I was given was a truly modest one: the history of the Commerce Clause in forty minutes or less, the constitu­ tional equivalent of Around the World in Eighty Days. Anyone undertaking this task faces two dilemmas. The first is one all constitutional law professors routinely face: the Commerce Clause is most assuredly not what students dream of when they contem­ plate the course. But, as former Justice Wiley B. Rutledge wisely observed: If any liberties may be held more basic than others, they are the great and indispensable democratic free­ doms secured by the First Amend­ ment. But it was not to assure them that the Constitution was framed and adopted. Only later were they added, by popular demand. It was rather to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view toward Philadelphia. Thus the generating source ofthe Constitution lay in the rising volume ofrestraints upon commerce which the Confed­ eration could not check. These were the proximate cause of our national existence down to today.1 The second challenge is the nature of the subject. I am acutely aware that Chief Justice John Marshall felt obliged to apologize at the end of Gibbons v. Ogden, noting “the tediousness inseparable from the endeavor.”2 Cases involving Commerce Clause matters may on occasion generate considerable public interest. But the doctrines involved tend to be dry and lifeless, at least when compared to other areas of constitutional law. Hopefully what follows will overcome these inherent limitations, at least to the extent that the history proves of interest. 282 JOURNAL OF SUPREME COURT HISTORY My thesis is that all parties to the Commerce Clause debate must approach these matters in the light of the need to exercise a “prudent regard to their own common good.” That characterization comes from James Madison, who spoke of the obligation of “the people themselves”—and presumably those who represent them—to exercise “a prudent regard to their own good as involved in the general and permanent good of the Community.”3 Since our focus is on histoiy, it seems appropriate to begin with resort to one favorite interpretive technique: consulting a dictio­ nary. But not just any dictionary. So, we find in the pages of the first edition of Samuel Johnson’s magisterial A Dictionary of the English Language that a “prudent” individual is one who is “practically wise,” and, in a closely related vein, that “prudence” is “wisdom applied to practice.”4 Simply put, I believe any appropriate understanding ofthe history ofthe Commerce Clause and the role it can, has, and should play in this Compound Republic is best shaped by paying close attention to three things: • insights gleaned from the writings of the individual aptly characterized as the Father of the Constitution; • the manner in which the powers conferred and limitations imposed by Article I, section 8, clause 3 have been interpreted and applied; and • the need to be “practically wise,” in particular to shape and apply rules in Commerce Clause matters that reflect “wisdom applied to practice.”§ We begin with James Madison, whose appeal to the need for “prudent regard” is found in one of the most important and most overlooked documents in American constitutional history: his April, 1787 essay, Vices of the Political System of the United States.5 The editors of the definitive edition of Madison’s papers stressed that Vices In 1780, future Justice James Iredell (above) character­ ized certain laws passed in his home state of North Carolina as “the vilest collection of trash ever formed by a legislative body,” an assessment that underscores that the Framers and Founders lived in an era where the states were part of the problem, not the solution. was written during “perhaps the most creative and productive year of [Madison’s] career as a political thinker,” characterizing it as a “masterful” blend of “personal experience and theory.”6 Jack Rakove in turn has appropriately described Vices as “one of those rare documents in the history of political...

Property Rights and the Supreme Court in the Gilded Age

Property Rights and the Supreme Court in the Gilded Age JAMES W. ELY, JR. Any attempt to assess the property-rights jurisprudence of the Supreme Court in the Gilded Age (1870-1900) must confront several difficulties. First, the late nineteenth century was an era ofsweeping economic and social changes that transformed American society. In response to rapid industrialization and urbanization, the states and eventually the federal government began to more aggres­ sively intervene in the economy. In response, lawyers increasingly challenged such regula­ tory legislation, arguing that the laws ex­ ceeded legislative authority under the Constitution. Consequently, the Supreme Court under ChiefJustices Morrison R. Waite and Melville W. Fuller had to wrestle with novel legal issues relating to the rights of property owners. The range ofproperty-rights decisions is impressive, covering bond repu­ diations, rate regulations, debtor-creditor relations, contractual freedom, workplace regulations, labor law, eminent domain, and taxation. These rulings invoked various provisions of the Constitution, including the Contract Clause, the Due Process Clause of the Fourteenth Amendment, the Takings Clause of the Fifth Amendment, and the “direct tax” clauses. To distill common themes from this huge outpouring ofdecisions is a challenging task. Second, modem historians are not writ­ ing on a fresh slate. Scholars associated with the Progressive movement of the early twentieth century fashioned a durable—if cartoonist and one-sided—image of Gilded Age jurists as either out of touch with new realities or, even worse, as craven handmai­ dens of business enterprise. These jurists, we are told, sought to impose a rigid laissez-faire regime on American society.1 Although this once-common tale has been sharply assailed in recent years,2 it retains considerable influence in the academy and continues to color thinking about the legal culture of the late nineteenth century. I submit that we should set aside such preconceptions and take a fresh look at the property-rights jurispru­ dence of the Gilded Age. I argue that a very different understanding ofthat era will emerge from careful investigation. PROPERTY RIGHTS IN THE GILDED AGE 331 Third, the Supreme Court Justices of the late nineteenth century did not march in lockstep. They differed as to the degree of protection that should be afforded property owners and as to the appropriate room for governmental regulation. Although all of the Justices shared to some degree the basic values of limited government and private property, they were for the most part practical men, not constitutional theorists. One must be careful not to attribute to the Justices an elaborate judicial philosophy.3 In addition, their dedication to guarding property rights was also tempered by a strong commitment to federalism and state autonomy.4 Despite these complexities, I contend that a general pattern emerges from the Supreme Court’s property-rights decisions. My thesis can be simply stated: the core principle of the Court in the Gilded Age was the protection of private property as a means to uphold individual liberty against governmental over­ reaching. As Michael J. Phillips cogently pointed out, “the Court’s aim was to protect liberty and property against arbitrary or unreasonable restraints.”5 This commitment to liberty was reinforced by a second theme, the importance ofsecure property rights as the basis for economic growth. Moreover, I maintain that there was substantial continuity between the Court’s treatment of economic rights in the Gilded Age and earlier periods of American constitutional history. Let us ex­ amine each of these propositions. Property ownership and political liberty had long been linked in Anglo-American constitutional thought.6 Since the time of Magna Carta (1215), respect for private property set the bounds of legitimate govern­ ment. Political dialogue associated liberty and property rights during the colonial era. “Liberty and property are not only join’d in common discourse,” a correspondent ob­ served in the Boston Gazette in 1768, “but During the Gilded Age, the Court sustained the vast majority of challenged legislation, and was especially sympathetic to safety regulations and laws protecting public morals. The Justices thus upheld Sunday closing laws and state laws prohibiting the manufacture and sale of alcoholic beverages as a valid exercise of the state police power. 332 JOURNAL OF SUPREME COURT HISTORY...

Yellow by Law

Over the past decade, scholars have paid increasing attention to Japanese American constitutional history. For the most part, this literature focuses on the United States government’s decision during World War II to intern people of Japanese ancestry. This body of work is designed to demonstrate the extent to which, and precisely how, the U.S. Supreme Court acquiesced in various aspects of internment—curfew, evacuation, and detention—and to reveal the continuities between that acquiescence and current legal doctrine and social practices.

The Constitutional Law of State Debt

State debt crises are an underappreciated driving force in American constitutional history. This article, which is being published as part of the Duke Journal of Constitutional Law & Public Policy’s symposium on “The Consequences and Constitutional Dilemmas of State Debt,” assesses the financial challenges facing the states, the different ways in which those challenges might be addressed, and constitutional issues that those responses might raise. We consider five different kinds of scenarios:1. Payment delays and IOUs: States may simply seek to delay repayment of their obligations without attempting to diminish their ultimate liability, or they may resort — as California and Illinois already have — to paying private businesses, local governments, and others with short-term IOUs rather than real money. To the extent that they alter the payment terms of state contracts, these short-term expedients may raise issues under the Contracts and Takings Clauses. But the short time frames involved make litigation unlikely. 2. Alterations to Long-Term Obligations: States in economic distress may decide to alter the terms of long-term agreements with current and former employees to provide pensions and healthcare benefits. Such alterations would raise more substantial Contracts Clause issues, although state sovereign immunity may severely constrain private parties’ remedial options.3. Bailout: The national government may seek to “bail out” a financially troubled state, much like the International Monetary Fund might bail out a sovereign debtor or a distressed debt lender might lend on an emergency basis to a cash-strapped business. If a bailout occurs, the interesting questions concern what concessions the national government might extract in order to minimize the prospect of recurrence, as well as what long-term effects a bailout might have on the financial independence of the states.4. Default: If states fail to pay principal or interest when due with no clear plan of when, if ever, it will be paid, that may well violate the Contracts Clause. The interesting issues will concern sovereign immunity and remedies, including the possibility that Congress may seek to abrogate the states’ immunity or induce immunity waivers.5. Bankruptcy: Though not currently an option for states, scholars and politicians have suggested a voluntary bankruptcy regime for states, and one of our fellow symposium contributors argues for a mandatory regime. We doubt that a mandatory regime would be constitutional, and we suggest some important reservations about a permissive regime as well.We do not purport to definitively resolve most of these issues. Our more modest purpose is to flag the constitutional considerations that may arise and suggest useful ways to think about them. Hopefully our roadmap will assist those scholars, lawyers, and policymakers who must pick their way through this maze.

FORUM: Mark deWolfe Howe, The Garden and the Wilderness Introduction

Mark deWolfe Howe's classic, The Garden and the Wilderness: Religion and Government in American Constitutional History, was published in 1965. Notwithstanding the many subsequent judicial and scholarly developments in First Amendment religion clause jurisprudence, this slim volume remains among the best efforts to consider seriously the interrelated histories of law and religion in the United States. Beautifully written and economical in its expression, Howe's book is often cited but less often carefully read. Unlike many who write about the religion clauses, Howe understood the deeply contingent nature of the dependence of religion and law one upon the other.

Popular Constitutionalism, Departmentalism, and Judicial Supremacy

It is a pleasure and a privilege to comment on Larry Kramer's 2002 Jorde Lecture. Beautifully crafted, deeply erudite, sharply original, and resonant with passionate conviction, Lecture addresses a topic of growing significance to contemporary constitutional thought. Together with book from which it is drawn,' Lecture will no doubt prove a major contribution to our understanding of American constitutional history. Time spent reflecting on Kramer's project is time well spent. Kramer argues for constitutionalism, by which he means a system in which people assume active and ongoing control over interpretation and enforcement of constitutional law.2 Kramer identifies enemy of popular constitutionalism as judicial supremacy, by which he means the notion that judges have last word when it comes to constitutional interpretation and that their decisions determine meaning of Constitution for everyone.3 Kramer argues for a world in which courts