Legal History Blog

Weekend Roundup

2026-06-20T00:30:00.000-04:00

ASLH President Mitra Sharafi's alternative to assigning undergraduate research papers in an age of AI (South Asian Legal History Resources).

The recording of the National Constitution Center's session on the Constitution and the Courts, held in conjunction with the Federal Judicial Center, is now available. It consists of a panel on the Constitution in the Founding Era with Akhil Reed Amar, Christopher Bonner, and Gerald F. Leonard, moderated by Thomas Donnelly, and a discussion on the Constitution and the federal judiciary with Kevin Arlyck, moderated by Julie Silverbrook.

Alison L. LaCroix's speech to the University of Chicago's graduates is here. H/t: JDM.

From In Custodia Legis: "A Deep Dive into Library Resources on Phillips v. Martin Marietta Corp." -- Part 1 and Part 2.

Saul Cornell appears in "The American Experiment," a five-part documentary on the nation’s founding that starts streaming on Netflix on June 24 (Fordham Law).

Margaret Burnham and Brenda E. Stevenson on opening the federal archives on Civil Rights Cold Cases (AHA Perspectives).

"The Brennan Center for Justice at NYU Law is pleased to announce the 2026–2027 recipients of the Steven M. Polan Fellowship in Constitutional Law and History: Kate Andrias, Olatunde Johnson, William Novak, Alice O’Brien, and Julie Suk."

"Is the United States on the Road to a New Civil War?" David Blight's lecture to the American Academy in Berlin.

Edmarverson A. Santos on Doctrine of Discovery and Colonial Legal Order and Robert J. Miller on The International Law of Colonialism: The Doctrine of Discovery.

ICYMI: More Gordon Wood tributes (LOA). 250 Years of State Constitutions (SCR). The NJ State Library's exhibit on the state's first constitution (tapinto). Jesse Wegman discusses James Wilson (Fresh Air). The University of Pennsylvania Almanac notes Serena Mayeri's receipt of the 2026 James Willard Hurst Book Prize From Law & Society Association. The lessons of the Harry Raymond car bombing of 1938 for police accountability today (DJ). When Robert E. Lee's daughter was arrested in a Jim Crow streetcar dispute (Alexandria Brief).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Pontz on the Pennsylvania Supreme Court and King's Bench Jurisdiction

2026-06-19T13:00:00.000-04:00

Ben Pontz, a graduate of the Harvard Law School and a Law Clerk, United States District Court for the Western District of Kentucky, has posted Grounding Pennsylvania's King's Bench Jurisdiction, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:

Since 1722, the Supreme Court of Pennsylvania has had the power to “minister common justice to all persons ... as fully and amply to all intents and purposes whatsoever as the justices of the Court of King’s bench, common pleas and exchequer, at Westminster, may or can do.” For more than two centuries, that provision meant very little in practice; the power was seldom invoked and, when it was, the Court took pains to limit its scope. But beginning in the early twentieth century, that practice began to change. The Court instead began to treat this jurisdictional provision as license to take up any legal question—even if percolating nowhere in Pennsylvania’s lower courts—and resolve it on the merits, innovating procedure and remedies along the way. Specifically, the Court has used this King’s Bench jurisdiction to fill local judicial vacancies, amend tort-law statutes of limitations, exempt itself from the state open-meetings law, vacate scores of juvenile convictions, override statutory judicial-discipline proceedings, resolve various election disputes, and uphold Covid-19 emergency declarations.

The limited scholarly commentary on the King’s Bench jurisdiction—and the Court’s own (generally threadbare) analysis of the jurisdiction’s basis in law—has justified these invocations based largely on a single passage in which Blackstone described England’s Court of King’s Bench as “high and transcendent.” Some commentators and the Court have gone further, arguing that King’s Bench jurisdiction is inherent in the Court’s power—perhaps constitutional in nature, or perhaps even extraconstitutional, and in either case impervious to change by statute (or perhaps even constitutional amendment). This article argues that claims about the power’s scope are overstated and claims about the power’s origin are flatly wrong. If the King’s Bench jurisdictional provision is to be understood according to its text, the power is much narrower than the Court’s King’s Bench jurisprudence suggests. In short, the Court has mistaken a statutory heirloom for a constitutional crown.

This article thus traces the history of the King’s Bench provision to its 1722 origin, describes what power the English courts wielded as of that date, and assesses Pennsylvania’s King’s Bench jurisprudence against those boundaries. It also explores the possibility that, when the Pennsylvania legislature codified the King’s Bench power in state law most recently in the 1970s, it did so thinking that the power was more expansive than an objective view of the history would suggest. The article closes by considering the implications for originalist legal analysis of a subjective public understanding that departs from an objective historical meaning.

--Dan Ernst

De Bianco on Harry Anslinger and Timothy Leary

2026-06-19T11:00:00.000-04:00

Mitchell A. Del Bianco, a recent graduate of the University of Virginia's J.D. and M.A. program in legal history, has posted A Bureaucrat Versus the Most Dangerous Man in America, which is forthcoming in the Virginia Journal of Criminal Law.

Harry J. Anslinger (1930) (LC)
This Article recounts how the policy ntrepreneurship of Harry J. Anslinger made federal drug enforcement policy and how his shadow loomed large over one of the twentieth century’s most flamboyant and notorious defendants: Dr. Timothy Leary, the countercultural provocateur branded by President Richard Nixon as “the most dangerous man in America.” Even after Leary’s Supreme Court victory struck down provisions of the Marihuana Tax Act, Anslinger’s legacy ensured that Leary, like many others, remained ensnared in a system built for the punishment of drug offenses.

Through the entwined stories of Anslinger and Leary, this Article reveals how individual bureaucrats can shape law and policy, harness administrative power, and outlast their own institutions. Far from being inevitable, America’s war on drugs emerged from the ambitions and idiosyncrasies of a bureaucrat who turned a small agency into a juggernaut.

--Dan Ernst

Steinfeld on the Electors Clause

2026-06-19T09:30:00.000-04:00

Robert J. Steinfeld, University at Buffalo Law School, has posted The Forgotten History of the Electors Clause: The States Abandon Legislative Appointment of Electors as Unconstitutional, which is forthcoming in the Indiana Law Review:

For nearly one hundred fifty years all the states have unfailingly chosen Presidential Electors through a popular vote. But in the year 2000, the U.S. Supreme Court breathed life into a species of constitutional practice that had gone virtually extinct as a regular feature of presidential elections by the late 1820s, and which no state ever employed, even on a single occasion, after the election of 1876. In Bush v. Gore (2000) the Court proclaimed that under the Electors Clause, state legislatures possessed the plenary authority to “select the manner for appointing [presidential] electors,” which included “selecting the electors [themselves].” And added that even after a state legislature had granted the elective franchise to the people of the state, the legislature enjoyed the authority to “take back the power to appoint electors… at any time.” Their interpretation was based in substantial part on the flawed history of the Clause the Court presented in McPherson v. Blacker (1892).

This article seeks to present a fuller account of that history. It begins with a description of the long deliberations at the Federal Convention that led to the drafting of the ambiguous text of the Electors Clause. Not surprisingly, shortly after the Convention concluded, two conflicting interpretations of the Clause’s language emerged. One held that the words “Each state shall appoint” were to be read as “the people of each state shall appoint.” Under this reading, legislatures were only to direct the “Manner” in which popular elections to choose Electors were conducted.

A second conflicting interpretation emerged almost simultaneously. It contended that the words of the Clause gave state legislatures unlimited authority to have Electors appointed in any way they saw fit. They might in their discretion direct that popular elections be held to choose Electors, but they might also decide to appoint Electors directly, without holding a popular election. The practice of legislative appointment, which emerged during the first presidential election, rested on this interpretation. Over the next several decades, however, the practice of legislative appointment was repeatedly challenged as unconstitutional. To a significant extent, those challenges were based on the other interpretation of the Electors Clause.

This article describes in detail the ensuing struggle over the constitutionality of legislative appointment, and over the interpretation of the Clause, which developed during the following decades. This constitutional controversy, however, was not brought to the courts for resolution. Rather, it was treated as a matter of constitutional politics, to be decided through debates and votes in state legislatures, in Congress, in arguments in newspapers, pamphlets, and among the wider public. Most importantly, perhaps, the dispute became a frequent factor in state legislative elections, where voters faced the choice of retaining or replacing legislators who supported the practice.

Over the first three decades of the nineteenth century, as this battle over the constitutionality of legislative appointment was being waged, the number of states that permanently abandoned the practice increased decade by decade. By 1829 only a single state, South Carolina, continued to appoint Electors legislatively. The article shows that legislatures were often moved to repudiate the practice by the widespread opinion that the people alone possessed the constitutional right to choose Electors, and by the voter pressures which flowed from that constitutional understanding. With a few anomalous exceptions discussed in the article, the practice of the states thereafter was to use popular elections exclusively to choose Electors for the next two centuries. Over this long period, none of these states ever asserted through any of their acts that they judged themselves to possess the constitutional authority to appoint Electors legislatively. The states were adopting, as a matter of their practice, the terms of the first interpretation of the Electors Clause: popular elections were required, legislative appointment was not authorized.

The article concludes by reassessing the Supreme Court’s opinion in McPherson v. Blacker in light of this fuller history. It argues that because the Court omitted many crucial facts from their account, facts showing how often and how long the constitutionality of legislative appointment had been contested, their principal conclusions were deeply flawed under the test they themselves laid down for “fixing” the construction of a constitutional provision through long accepted practice. Their opinion, consequently, cannot serve as binding precedent for the proposition that the Electors Clause confers plenary authority on state legislatures to appoint Electors using any method they might wish.

--Dan Ernst

History at the Brigham-Kanner Property Rights Conference

2026-06-19T00:30:00.000-04:00

The 23rd Annual Brigham-Kanner Property Rights Conference, to be held October 14–16, 2026, in
London, England, has at least two session of interest to legal historians.

Roman, English, and Other Legacies: The Role of History in Property Law

More than other areas of basic private law, property draws upon and reflects historical sources and practices in a wide range of contexts and applications. This panel will explore how and why historical considerations shape contemporary property law. Discussion will address the uses and limits of historical analysis in property theory and doctrine, including questions about continuity, adaptation, and divergence. The panel will also consider how appeals to history inform present-day debates about ownership, authority, and the evolution of property institutions.

Of Locke, Bentham, and Blackstone: English Contributions to Property’s Philosophical Foundations

This panel will discuss normative justifications for property law, with a special emphasis on the contributions of major English theorists. It will explore how themes of labor, productivity, security, and legal order have shaped enduring understandings of ownership and its moral underpinnings. The discussion will consider the continuing influence of writers like Locke, Bentham, and Blackstone on contemporary property theory, as well as the tensions among their approaches.

--Dan Ernst

Ablavsky on State Criminal Jurisdiction in Indian Country

2026-06-18T09:30:00.000-04:00

Gregory Ablavsky, Stanford Law School, has posted State Criminal Jurisdiction in Indian Country: A History, which is forthcoming in the Virginia Law Review:

In Oklahoma v. Castro-Huerta (2022), the Supreme Court dismantled the long-standing black-letter principle that states lack criminal jurisdiction in Indian country absent congressional authorization by embracing a revisionist historical account emphasizing inherent state sovereignty. The consequences have been predictable: intense uncertainty and ongoing litigation. Oklahoma’s highest courts, for instance, have repeatedly endorsed inherent state jurisdiction over Native people within Indian country, employing Castro-Huerta to distinguish considerable contrary federal law and precedent.

The challenge, especially given the current history-minded judiciary, is that the claim that states have never asserted inherent criminal jurisdiction over Indian country is too simplistic and easily disproven, making it tempting to toss out the old rules. But the revisionist claim, advanced by some scholars and embraced by Justice Thomas, that states enjoyed expansive criminal jurisdiction, is also wrong. This Article attempts to offer a more rigorous legal history, moving beyond the handful of Supreme Court decisions to survey every identifiable state and federal case on inherent state criminal jurisdiction in Indian country. It depicts four distinct periods: an initial headlong assault on federal authority (1787–1834) ; an era of "great confusion" in which states pressed on the many uncertainties of federal Indian law (1835–1886) ; the jurisdictional chaos of the allotment era (1880s–1930s); and a period of relative statutory stability (1948–2022) that Castro-Huerta has now abruptly terminated. What this history shows above all is contestation—a cat-and-mouse game in which states seized on ambiguities to claim authority, only to be periodically rebuffed by the federal courts. But the mere existence of past conflict does not support broader state jurisdiction in Indian country. Rather, every conventional method of legal and constitutional interpretation undercuts the argument that such jurisdiction was ever meaningfully positive law. There are also strong normative reasons for skepticism, since state claims of authority were rarely motivated by public safety but were instead tools to facilitate Native dispossession and erode tribal self-governance. By recounting these complexities, the Article challenges the current legal instability that threatens the foundations of modern tribal sovereignty.

--Dan Ernst

Larson's New History of the Declaration of Independence

2026-06-18T00:30:00.000-04:00

Carlton F. W. Larson, University of California, Davis, has published One Nation Under Law: The Meaning of the Declaration of Independence (Cambridge University Press):

This groundbreaking volume shatters many longstanding myths about the Declaration of Independence. Although states-rights advocates have long claimed that the Declaration created thirteen independent nations, Carlton F. W. Larson shows that the Declaration announced the birth of a new nation: the United States of America, a nation governed by an unwritten constitution in which the states were confederated and subject to national authority from the very beginning. Larson counters libertarian claims that the Declaration views government as a necessary evil, demonstrating instead how it embraces constitutionalism, active government, and the rule of law as positive goods. Along the way, Larson debunks other myths, such as the notion that the Declaration is the parchment text enshrined in the National Archives and that it was authored by Thomas Jefferson. By exploring the true meaning of the Declaration of Independence, One Nation Under Law helps us better understand America itself.

–Dan Ernst. Endorsements after the jump.

‘You may think that you know the Declaration of Independence, but this marvelous book will prove you wrong.’ Gerard Magliocca, Distinguished Professor and Lawrence A. Jegen II Professor, Indiana University Robert H. McKinney School of Law, author of Washington's Heir: The Life of Justice Bushrod Washington

‘Those seeking a timely and timeless guide to the Declaration of Independence need look no further than this splendid constitutional history page-turner. With narrative flair and an eye for telling detail, Larson reveals a Declaration that affirms national unity, rejects executive tyranny, and embraces the rule of law.’ James E. Pfander, Owen L. Coon Professor of Law, Northwestern Pritzker School of Law, author of Cases Without Controversies: Uncontested Adjudication in Article III Courts

Selma Moidel Smith Student Writing Competition in California Legal History

2026-06-17T13:30:00.000-04:00

[Because the deadline of July 1 is fast approaching, we are moving up the following Call for Submissions. DRE]

The California Supreme Court Historical Society (CSCHS) encourages all students working on
California legal history (NOT just the history of California courts) to apply for [the Selma Moidel Smith Student Writing Competition in California Legal History. Papers may include elements of digital humanities and may also be co-authored. This is a GREAT WAY to get attention for your hard work!

$5,000 first-place, $2,500 second-place, and $1,000 third-place prizes will be awarded to the best papers on California state or colonial history, broadly considered. Recent winners include a study of the death penalty in California, the evolution of California land law, the desegregation of Stanford Law School, and disability law and the campaign for independent living. as well as a jointly authored paper on Chinese adoption practices and their role in immigration decisions after the Chinese Exclusion Act.

We accept papers of at least 7,500 and not more than 15,000 words, including notes and other explanatory matter. The competition is open to students and recent graduates in history and/or law, provided that they did not have full-time academic employment at the time the paper was written. The paper should also be unpublished; prize winners will likely receive an offer to publish in California Legal History, CSCHS's journal.

Papers may be self-nominated or sent in by a professor or supervisor. To ensure anonymity, the author's name should appear only on a separate cover page, along with the author's mailing address, telephone number, email address, and the name of their school.

Submissions are due by July 1, 2026 and should be sent to director@cschs.org with the subject line "Smith Prize." The winners will be announced in August 2026, and an award ceremony (likely over Zoom) will be held in August or September.

For the Prize Committee: Sarah Barringer Gordon, Laura Kalman, Stuart Banner

CFP: Inclusion, Exclusion, and Resistance in the Renaissance World

2026-06-17T11:00:00.000-04:00

[Via H-Law, we have the following CFP. DRE]

Inclusion, Exclusion, and Resistance in the Renaissance World, ca. 1300–1700

The history of rights in the Renaissance is also a history of their limits. The vocabularies of dignity, right, and resistance that Renaissance thinkers developed to claim freedom and constrain power were never universal; they were always already structured by categories that determined who belonged to the community (citizens, subjects), who was tolerated within it (religious minorities), and who was excluded from it altogether (enslaved persons, women). This session asks how those boundaries were drawn, contested, and redrawn across the Renaissance world — and how rights expanded for some while narrowing or vanishing for others.

Abstracts on any of the following are welcome: toleration and the limits of confessional belonging; colonial encounter and new categories of subjecthood; resistance theory and who may act in defense of a community; the jurisprudence of slavery and the boundaries of personhood; and the legal and political status of women, whose rights often narrowed even as others expanded.

Depending on the abstracts received, this session may take the form of a traditional panel of papers or a roundtable discussion for the 2027 Renaissance Society of America Conference in Philadelphia (March 11–13). Please indicate your preferred format, and feel free to describe your contribution as either a research paper or a set of reflections drawing on your current work.

Abstracts are invited from scholars across all relevant disciplines. Papers recovering neglected or unexpected traditions are especially welcome. Early-career scholars are encouraged to submit.

Please send a 300-word abstract and a short copy of your c.v. to karrsn@uc.edu

Ancient Criminal Law: A Global Perspective

2026-06-17T08:48:37.245-04:00

[We have the following announcement. DRE]

On June 24, 2026 (at 12pm Eastern), join us for an international workshop featuring contributors to a forthcoming Modern Criminal Law Review Special Issue on “Ancient Criminal Law: A Global Perspective,” guest edited by Clifford Ando (University of Chicago).

Recent years have witnessed several revolutions in the study of ancient law. These include new models for the study of ancient states, deriving in particular from comparative study; new interpretive emphasis on the limits of state infrastructural power; detailed study of the pluralist nature of legal authority in ancient empires in particular; and the extraordinary recovery of previously unknown documentary materials, especially in central Asian and East Asian contexts. This issue seeks to bring these new insights to bear on the study of criminal law in a global array of contexts: the Ancient Near East, classical Athens, Qin and Han period China, the high Roman empire, and rabbinic Judaism.

Participants include:

Clifford Ando, University of Chicago (moderator)
Beth Berkowitz, Columbia University
Ari Bryen, Vanderbilt University
Liang Cai, University of Notre Dame
Benjamin Gallant, Harvard University
Adriaan Lanni, Harvard University
Mark Letteney, University of Washington
Seth Richardson, University of Chicago
Andrew Wolpert, University of Florida

To join us for this free online event, please register here. Registration is encouraged, but not required; if you prefer to join the event directly, head over to the MCLR+ YouTube channel at the time of the event (please note the time zone). All attendees will have the opportunity to post questions and comments via YouTube live chat.

Keener and Whittington on Birthright Citizenship

2026-06-16T10:10:41.760-04:00

Benjamin Keener, University of Pennsylvania Carey Law School, and Keith E. Whittington,
Yale Law School, have posted Demystifying Birthright Citizenship:

Executive Order 14160 and the litigation it generated in Trump v. Barbara have thrust birthright citizenship back to the center of American constitutional debate. Critics of the traditional rule argue that the Fourteenth Amendment's “subject to the jurisdiction thereof” language implicitly restricts birthright citizenship in ways that exclude the American-born children of undocumented immigrants and temporary visitors. This Article clears the brush. It demystifies birthright citizenship by demonstrating that the Citizenship Clause embodies a single, coherent rule with deep roots in the common law—one that is neither riddled with ad hoc exceptions nor susceptible to the narrowing constructions its modern critics advance.

Working from an originalist methodology, this Article reconstructs the traditional rule and systematically rejects principal arguments for a more restrictive reading. Part I begins with a note on methods and how we believe an originalist analysis of the Citizenship Clause should proceed. Part II lays out the original meaning of the birthright citizenship rule and the terms of the Fourteenth Amendment that constitutionalized that rule. We then canvass the evidence in support of a more restrictive reading of the rule. Parts III and IV examine the argument that only those who have been invited into the country and are present by the country’s consent are subject to its jurisdiction. Part V examines the argument that only those who have the requisite allegiance to the country are subject to its jurisdiction. None finds sufficient support in the original meaning of the text.

--Dan Ernst

Parkinson's "Tyrants and Rogues"

2026-06-16T00:30:00.000-04:00

Robert G. Parkinson, Binghamton University, has published Tyrants and Rogues: Understanding the Declaration of Independence (Norton):

We think of the Declaration of Independence as timeless. We know the sacred phrases: “all men are created equal,” “life, liberty, and the pursuit of happiness,” “self-evident truths,” “certain inalienable rights.” These are some of the most important words human beings have ever written. And they are all from the Declaration’s preamble, which has inspired people for centuries, including generations of revolutionaries all over the world.

But as historian Robert G. Parkinson points out, the Declaration was not written as a timeless statement of political philosophy. It was, rather, produced in the heat of a confusing, bloody, and desperate war. And in that moment, it wasn’t high ideals alone that drove the patriots forward. Parkinson’s great innovation is to allow us, 250 years on, to see the Declaration as its authors did. For them, the opening paragraphs were not the main event. It was the body of the Declaration—the twenty-seven grievances against King George—that formed the essential part. Even Thomas Jefferson would have been puzzled by history’s fixation on his opening sentences.

Parkinson takes us into the grievances, giving us stories of the Revolutionary era that are little known today but loomed large for the patriots. As the leaders of the Revolution saw it, they had been pushed to the breaking point by British officials who undermined colonial legislatures and courts, corrupted the judiciary, turned military power against civilians, inflamed slave revolts, forced colonists to fight one another—ultimately, waging war on their own people.

In his brilliantly original reading of the Declaration, Parkinson asks fundamental questions that have too often been overlooked: Why did the colonies declare independence when they did? What were their nonnegotiable demands? Who were the individuals whose actions made reconciliation impossible? By recovering the people and conflicts behind the Declaration’s grievances, Parkinson offers a strikingly new account of the American Revolution—and shows that the issues that most alarmed colonists in 1776 are urgent once again today.

--Dan Ernst

Altschuler's "Before Disability"

2026-06-16T00:30:00.000-04:00

Sari Altschuler, Northeastern University, has published Before Disability: A History of American Citizenship (University of Pennsylvania Press):

The history of disability rights is often told as a recent one, but it is not. In the wake of the American Revolution, many of the differences we now call disabilities could be accommodated into citizenship—and for some even exemplified its promises. By the antebellum period, however, disability was becoming a powerful, racialized tool of civic exclusion and, by the century’s end, a target for eugenic elimination. In Before Disability, Sari Altschuler tells the story of how this dramatic transformation occurred.

Before Disability is a literary, legal, and cultural history of the relationship between disability, race, and citizenship. It shows how disability helped to shape US citizenship and, in turn, how the formation of US citizenship shaped disability. There were two key drivers of the transformation from accommodation to exclusion and eugenics: the difficulty aligning the reality with the rhetoric of civic inclusion and the co-opting of mental and physical difference as evidence in debates about Black citizenship. The stigmatizing ways race came together with mental and physical difference to deny Americans rights were, however, not inevitable.

Before citizenship was federally defined in the late 1860s, Americans were still working out what it meant. They used the narrative forms available to them—from melodrama and the gothic to the slave narrative and the criminal confession—to do this work. While possibilities narrowed by the antebellum era, Americans continued to imagine, articulate, and enact broader definitions. As we seek to imagine the relationship between disability and citizenship more equitably and expansively for ourselves, we should begin by remembering that many disabled and nondisabled Americans before us did, too.

--Dan Ernst

Farbman, "Towns or Counties"

2026-06-15T00:30:00.000-04:00

Daniel Farbman (Boston College Law) has posted "Towns or Counties." The article appears in Volume 59, no. 3, of the Indiana Law Review. The abstract:

The United States is a nation of counties with a latent romance for towns. The development of American local government law from the arrival of the first Europeans was defined by two opposing visions of settlement and local governance. On the one hand was the county, with its roots in the dispersed settlements and plantations of the South. On the other hand, was the town, with its roots in the communitarian congregational theocracies of New England. These models contrasted and competed in the on-the-ground progress of settler colonialism, and they contrasted and competed in the theoretical debates over how Americans should define themselves and the project of a growing continental nation/empire. On the ground, it was the dispersed settlement, protection of property rights, and minimal government of counties that spread and shaped most local government development from first arrival to 1800. But in the eyes of elites, political theorists, and the founders of the 1780s, the orderly and collective idea of the town remained a figure of political imagination and aspiration. This idealism was written into the Land Ordinance of 1785 and the Northwest Ordinance of 1787. This Article tells the history of these competing modes of settlement and imagination and how they have shaped local government law in the United States from the colonial project and into the imperial project of westward expansion. In so doing, it describes and unsettles the shape of our present local government law. Everyone who lives in the United States lives within the boundaries of at least one local government. Almost all of us live within a county boundary, and many of us live within a separate municipal boundary—in a town or a city. The structure of these governments and the differences between them not only shape the legal landscape of the most sprawling and diverse area of American public law (local government law); they also shape residents’ lived experiences and civic imaginations. It matters where people live and how they are governed there. Because it matters, the formation and adjustment of local government systems and their boundaries have been subjects of contestation, theorizing, and political imagination from the beginning of the colonization of North America. Not only has that contestation shaped the world we live in today, but it shapes the ongoing process of local government change, development, and administration.

The full article is available here.

-- Karen Tani

Weekend Roundup

2026-06-13T00:30:00.000-04:00

ASLH President Mitra Sharafi discusses Fear of the False, "her new book about colonial South Asia's critical role in the development of forensic science" on Law in Action, the podcast of the University of Wisconsin Law School.

From the American Historical Association's Perspectives on History: John Fea (Messiah University) on "Historical Thinking, AI, and the Formation of College Students."

Another memorial to the late Gordon Wood, via History News Network x Bunk History.

"The History, Archives, and Records Preservation Project (HARPP) has released 'The Federal Assault on History: A Record of Executive Actions,' the first comprehensive report documenting and analyzing the Trump administration’s sweeping, coordinated effort since January 2025 to reshape how the American past is recorded, preserved, and shared with the public" (OAH).

Steven Hahn reviews Born Equal: The Remaking of America’s Constitution, 1840–1920
by Akhil Reed Amar (The Nation).

Via H-Disability: a memorial to Richard K. Scotch, author of multiple landmark histories of disability law and policy.

A call for papers for a conference on the Legal History of Tamilnadu. Deadline for abstracts: June 15.

The conference "Rebellion, Resistance, and Refuge: Slavery and Border-Crossing during the American Revolution" will take place at UMass Amherst from Thursday, July 9 to Sunday, July 12, 2026 (H-Law).

"Students from Stanford Law School’s Center for Racial Justice recently helped bring Wong [Kim Ark]’s story to life through a Bay Area public-history project that joins law, art, and community memory" (Stanford Lawyer).

U.S. Representative French Hill has introduced a bill to require the Department of the Interior to study the preservation and incorporation into the National Park System of the home of Scipio Jones (QQ)

A recording of the webinar, Equality and Exclusion: Israel's Constitutional Order and Its Palestinian-Arab Minority (1948–2025), with Ofra Bloch, moderated by Jon D. Michaels (UCLA).

ICYMI: Eric Segall asks that we "Please Stop Calling the Roberts Court Justices Originalists" (Dorf of Law). Jamelle Bouie discusses the so-called "Colored Conventions" of the nineteenth century in arguing that "The Supreme Court Doesn’t Own the Constitution" (NYT).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Upham's "Taking American Citizenship Seriously"

2026-06-12T09:30:00.000-04:00

David R. Upham, St. Thomas University College of Law, has published Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment (Bloomsbury)

In this ambitious volume, Professor David R. Upham offers a comprehensive account of the original understanding of the Fourteenth Amendment, shedding new light on its often-overlooked Privileges or Immunities Clause. Drawing on a close textual reading as well as a wide range of primary sources—some newly discovered—Upham argues that the framers intended the amendment as a measure designed to strengthen existing constitutional protections for the rights of both human personhood and American citizenship. Upham contends that the amendment secures for all individuals the basic rights to life, liberty, and property through guarantees of due process and equal protection, while also reaffirming the birthright principle that grants citizenship to nearly all born on U.S. soil. Moreover, the Fourteenth Amendment safeguards longstanding privileges and immunities of citizenship, including the rights to travel, engage in commerce, speak freely, bear arms, and enjoy protection from racial discrimination and other forms of civic exclusion. By recovering the Amendment’s original meaning, this book reshapes our understanding of constitutional rights and citizenship, with far-reaching implications for contemporary legal and political debates.

--Dan Ernst

Two HLR Notes: Montesquieu and "Historical Absence"

2026-06-12T00:30:00.000-04:00

Two notes in Harvard Law Review 139: 8 (June 2026) are of interest to constitutional historians. The first is Montesquieu’s Day in Court: Recovering a Classical Understanding of Separated Powers:

The Supreme Court has developed an increasingly pronounced reliance on Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, as an authoritative voice on American constitutional structure. But the Montesquieu who appears in the United States Reports is not the complex, empirical sociologist who authored The Spirit of Laws in 1748. This Note argues that neither of the Court’s principal approaches to separation of powers — formalism and functionalism — fully engages with the intellectual tradition each claims to inherit from Montesquieu.

The second is Historical Absence and Constitutional Interpretation:

[This Note] draws attention to a type of originalist argument — the argument from historical absence — and the implementation issues it exacerbates. To address these challenges, it presents a modest framework that may be employed by courts required to consider these arguments. This Note conceives of arguments from historical absence as a style of assertion that centers the lack of historical evidence. A litigant hoping to rely upon historical absence may canvass the relevant historical record, find no sufficient historical analogue, and contend that this lack of evidence is itself supportive of their argument — typically, that a governmental practice would have been deemed (un)constitutional at the Founding. These arguments may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice). Simply put, an offensive argument from historical absence may be: “No evidence supports the assertion that the original public meaning of X, or any analogous original public meaning, would permit Y; thus, Y is impermissible.” By contrast, a defensive argument may be: “No evidence supports the assertion that laws regulating Y, or its analogues,were treated as constitutionally suspect at the Founding; thus, the original public meaning of X was understood to permit Y and analogous regulations.”

--Dan Ernst

Del Bianco on Prohibition and the Fourth Amendment

2026-06-11T00:30:00.000-04:00

Mitchell A. Del Bianco, a recent graduate of the University of Virginia's J.D. and M.A. program in legal history has posted How Prohibition Rewrote the Fourth Amendment, which is forthcoming in the Washington University Jurisprudence Review. Mr. Del Bianco's advisors in the JD-MA program were Thomas Frampton and Sarah Milov. He received the Roger and Madeleine Traynor Prize for the paper; the prize is awarded to the best written work by a graduating student at the University of Virginia School of Law.

During Prohibition, legion defendants-armed with a liberal construction of the Fourth Amendment and the newly minted exclusionary rule-stormed the federal courts with challenges to the introduction of evidence obtained by the searches and seizures of federal officers. This was a period where, by all accounts, Prohibition was vastly altering American policing in lasting ways. Yet little study has been given to how federal courts facilitated that alteration.

This Article surveys and examines decisions, briefings, and contemporary legal commentary and uncovers that much of the judiciary interpreted the Fourth Amendment during Prohibition as having a doctrinal association with the Eighteenth. Federal courts practically reconstrued the meanings of "reasonable," "persons, houses, papers, and effects," and "searches and seizures" to adjust to the realities wrought by the new constitutional mandate of the Eighteenth Amendment to prohibit "intoxicating liquors." At the same time, decisions frequently reflected a desire to enforce national prohibition within the particular statutory bounds of the National Prohibition Act. The result was not only a policing landscape that differed greatly from preceding American history but also a Fourth Amendment landscape that exalted the home while offering second-class protections for searches and seizures occurring outside its walls--a jurisprudential legacy that lives on in the present day.

--Dan Ernst

YJLH 36.6: A Festschrift for Gordon Wood

2026-06-10T00:30:00.000-04:00

We have of course noted the death of the great historian of the American Revolution Gordon Wood. As it happens, the Yale Journal of Law and Humanities has just published online its 36.6 issue: Festschrift in Honor of the Scholarship of Professor Gordon Wood, with the following note:

On November 22-23 of 2024, Yale Law School hosted a special Conference on the Scholarship of Gordon Wood. The Yale Journal of Law & Humanities has the honor of publishing a festschrift volume of papers presented at this conference. Professor Wood was the leading historian of the US Revolution, and it was an honor to bring his work into dialogue with contemporary legal scholarship. This issue is dedicated to Professor Wood's memory.

The editorial team would like to note that Professor Wood, in addition to being a brilliant scholar and wonderful writer, was an extremely kind person. We were all deeply saddened to learn of his passing. It was our genuine pleasure to have had the chance to work with him in preparation of this special issue.

1. Akhil Reed Amar, The Revolution and the Constitution: Two Grand Narratives

2. Mary Sarah Bilder, The Character of the Constitution: Instrument and Constitution

3. Richard D. Brown, Gordon Wood’s The Radicalism of the American Revolution (1992): A Comment

4. Jane E. Calvert, Beyond Whig Constitutionalism: New Perspectives on the Constitutional Debates in Creation of the American Republic

5. John O. McGinnis, Gordon Wood’s Republic of Ideas

6. Johann N. Neem, Gordon Wood’s Anti-Elitism and the Crisis of the History Discipline

7. Jack N. Rakove, Being Schooled with Gordon Wood

8. Jeffrey Rosen, Gordon Wood's Radical Achievement

9. Coleen A. Sheehan, Gordon Wood, James Madison, and American Memory

10. William Michael Treanor, Creation and the Republican Revival

11. Michael Zuckert, Clio, Minerva, and the American Republic

12. Gordon S. Wood, Response

--Dan Ernst

Wells on Ecclesiastical Courts in the Early American Republic

2026-06-09T00:30:00.000-04:00

S. Spencer Wells has published Disciplining Conscience: Judging Ecclesiastical Courts in the Early American Republic in the Yale Journal of Law and the Humanities:

American Protestants during the Second Great Awakening participated in one of the largest experiments in lay judging the nation has ever seen. It was not initiated among the countless (initially property-owning) white men sitting on local juries—but amidst those determining the social and spiritual fate of fellow church members accused of wrongdoing within local congregations. In a republic lurching towards official disestablishment of church and state, questions concerning the rights of lay members to judge others’—and their own—potential relationships with the church continually bubbled to the surface. Did lay members retain authority to visit possible offenders within the home, in an effort to reclaim them before initiating a church trial which might possibly endanger their membership? Were witnesses of such trials duty-bound to speak on behalf of those brought up on charges? When confronted with the dread sentence of excommunication, who held the final power to judge the state of one’s relationship to the church, or even to God? The body as a whole, or those threatened with discipline? Such internal struggles often revolved around questions of biblical procedure and due-process, defined as a legitimate form of law in the eyes of ministers and members alike. In a world where believers espoused the “right of private judgment” as their Protestant birthright over and against the church, controversy inevitably arose in the conflicts that followed.

--Dan Ernst

Daniel on the Affinity of Lawyers and History

2026-06-08T09:16:26.989-04:00

Josiah M. Daniel III has posted The Affinity of Lawyers and History: The Dallas Bar Association's Legal History Discussion Group as a Case in Point, which appears in the Journal of Texas Supreme Court History:

Legal history may be conceived as the story of the evolution of legal doctrines and rules or as the analysis of the effects of law on society and vice versa. In all events, the irreducible elements of the subject matter of the field of legal history are not only the law but also the lawyer and the judge.

To begin, the lawyer is the quintessential element because what lawyers "do" is to invoke and apply the processes of the law, either in resolving disputes or in effectuating transactions, on behalf of a client. Lawyers are the ones who know or learn what the law is in order to be able to seek to accomplish—ideally with highest ethics, not merely as an agent—the objectives of a client. Such work is known as “lawyering.”

But not only have lawyers always been key actors within the activities and events that are comprehended within the ambit of legal history but today quite a number of them are researchers and authors—legal history scholars—knowledgeable of the literature and interested in learning and creating more in publications and oral presentations. As undergraduates, many attorneys and judges majored or minored in history, but even those who studied business administration or accounting in university are often found reading and discussing legal-historical books and articles. Some even write them.

The scholarly discipline of history has been called "the art of reconstructing the past." The endeavor to do so, known as the historical method, requires, first, finding the sources. Lawyers are experienced in fact finding and determining causation, and engaging in historical research is a natural extension.

This essay argues that the multiple affinities of lawyers and judges for history are demonstrated in the legal history activates of Dallas and Texas lawyers.

--Dan Ernst

Weekend Roundup

2026-06-06T00:30:00.000-04:00

Via the American Branch of the International Law Association (ABILA): a recording is now available of the recent webinar on "Indigenous Legal Orders, Legal Pluralism, and the Coloniality of Method Across Comparative Law, International Law, IP, and Trade Governance."

From In Custodia Legis (the blog of the Law Library of Congress): "Introducing Chew Heong and Chinese Exclusion: A New Story Map from the Law Library"; "Supporting Art Through Hardships: The Federal Theatre Project."

ICYMI: The lower house of the Rhode Island legislature has unanimously approved a bill to rescind the state's "approval–in May 1861–of a proposed amendment to the U.S. Constitution that would have permanently protected slavery from federal interference" (Providence Journal). The Supreme Court’s long history of racial profiling in immigration (SCOTUSblog). The "idea of changing the number of Supreme Court justices is hardly new" (NCC)--just ask Rachel Shelden, who says as much in Made by History (now behind a paywall at the Philadelphia Inquirer).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Niedrist on Criminal Justice in Habsburg Austria

2026-06-05T00:30:00.000-04:00

Franziska Niedrist has posted Crime and Criminal Justice: Habsburg's Supreme Court, Tyrol and Vorarlberg (1814-1844):

This paper examines criminal justice practices in Austria during the Vormärz period on the basis of a series of criminal case files from the Supreme Judicial Authority (Oberste Justizstelle) of the Habsburg Monarchy. The interdisciplinary study investigates a wide range of offenses prosecuted in Tyrol and Vorarlberg. At the same time, it provides a nuanced picture of Austrian criminal justice, offering insights into the decision-making practices of the supreme court as well as its interaction with lower judicial authorities. By combining traditional approaches in legal history with innovative methods drawn from the history of crime (historische Kriminalitätsforschung) and discourse analysis, the study adopts a novel perspective. Moreover, it offers valuable insights into the history of Austrian criminal law, crime and society, while also illuminating everyday life in the early 19th century.

--Dan Ernst

Legal History at the American Political History Conference, June 4-6

2026-06-04T12:00:00.000-04:00

The American Political History Conference convenes this week in Washington, D.C., and the program includes many panels and events that may interest readers of this blog:

On Friday, June 5:

Roundtable: The Politics of Jurisdiction in 19th Century United States

Moderator: Adam Rothman, Georgetown University

Panelists:

Cynthia Nicoletti, University of Virginia
Heather Carlquist Walser, Southern Methodist University
Cooper Wingert, Fordham University
Edward Green, Pennsylvania State University

The Politics of Bodies and Sexuality: From the Antebellum Era to Modern America

Moderator: Cassandra Good, Marymount University

Panelists:

Chris Del Santo, City University of New York. “The Politics of Bodies, Missing and Masonic: Gender and Visualizing Conspiracy in Antimasonry,
1826-1835.”
Claire Simone Roth, University of North Carolina—Chapel Hill. “Spartan Mothers No More: Yeomen Women, Desertion, and the Collapse of the
Confederate State.”
Christen Hammock Jones, University of Pennsylvania. “Sufficiently Entangled: The Legal and Political ‘State’ of Reproductive Rights in the 1970s.”
Eva Baylin, Vanderbilt University. “The Right to Sex: Pick-Up Artists and the Crisis of Masculinity.”

America at 250 Roundtable: Executive Power from the Founding Era to Trump

Moderator: Lindsay Chervinsky, George Washington Presidential Library

Panelists:

Julian Davis Mortenson, University of Michigan
Jane Manners, Fordham Law School
Garrett Graff, journalist
Edward O. Frantz, University of Indianapolis
Amanda Hollis-Brusky, Pomona College

America at 250 Roundtable: Debating Congress from the Founding Era to Today

Moderator: Seth Blumenthal, Boston University

Panelists:

Katlyn Carter, University of Notre Dame
Daniel Peart, Queen Mary University of London
Kevin M. Baron, Siena University
Abe Silberstein, New York University
Sarah Rowley, Depauw University

Representation and Voting Rights from Reconstruction to Today

Moderator: Frank Towers, University of Calgary

Panelists:

Eileen Cheng, Sarah Lawrence College. “Hijacking the Memory of Defeat: The Federalists and the Legacy of the Confederacy.”
Alma Steingart, Columbia University. “The Mathematization of Representation: Rethinking United States Political Representation in the Twentieth
Century.”
Zachary Clary, Vanderbilt University. “‘You Can’t Kill an Idea’: The NAACP and the Martyrdom of Medgar Evers and Harry and Harriette Moore.”
Robinson Woodward-Burns, Howard University. “Roll Back of State Constitutional Voting Rights, 1968-2025.”

America at 250 Roundtable: The Past, Present, and Future of Judicial Supremacy

Moderator: Gautham Rao, American University

Panelists:

Jamelle Bouie, New York Times
Stephen I. Vladeck, Georgetown University
Nikolas Bowie, Harvard University
Rachel Shelden, Pennsylvania State University
Karen Tani, University of Pennsylvania

On Saturday, June 6:

New History of Sex, Reproduction, and Anti-Discrimination Law in the 1970s and 1980s

Moderator: Sara Matthiesen, George Washington University

Panelists:

Jennifer Holland, University of Oklahoma. “Lesbian-Homoville, CO: How Anti-Abortion Activists Started the Modern Anti-Queer Movement.”
Sarah Milov, University of Virginia. “‘A Malformed Child Could Sue the Company’: Fetal Protection and the Specter of Childhood Cancer in the 1970s.”
Karen Tani, University of Pennsylvania. “‘Productive Life or Tragedy’: Disability Rights, Deregulation, and Anti-Abortion Politics in the Reagan Era.”

Roundtable: Political History as Legal History and Legal History as Political History

Moderator: Matthew Lassiter, University of Michigan

Panelists:

Sam Erman, University of Michigan
Amanda Hughett, University of Illinois Springfield
Kate Masur, Northwestern University
Karen Tani, University of Pennsylvania

Book Roundtable: White Power: Policing American Slavery [by Gautham Rao]

Moderator: Adam Malka, University of Oklahoma

Panelists:

Gautham Rao, American University
Kellie Carter Jackson, Wellesley College
Heather Ann Thompson, University of Michigan
Anna O. Law, CUNY Brooklyn College
Kevin Arlyck, Georgetown University

-- Karen Tani

ASLH "New Works" Series

2026-06-04T09:30:00.000-04:00

[We have the following announcement. DRE]

Making Connections: New Works in Legal History Series
Sponsored by the American Society for Legal History

Deadline for Applications: June 30, 2026

The ASLH Making Connections: New Works in Legal History Series aims to foster conversations and connections beyond the Annual Meeting about exciting new work in the field of legal history or publications likely to be of interest to legal historians. The series is hosted by the ASLH Committee on Digital Initiatives.

Schedule: Most of the series events will be held on Zoom at 6-7 pm Central on Wednesdays. In addition, the committee plans to hold events outside of the regular schedule to accommodate for presentors and interlocutors living in different time zones.

Event Structure: Each event opens with a brief introduction of the work by the author, followed by conversation between the author and an interlocutor of their choice, and closing with conversation with the audience. In panels featuring more than 1 book or article, we expect the authors to serve as interlocutors for each other. There is no expectation that audience members have read the work.

Eligibility: Books, Articles, or Digital Legal Histories published January 2025-December 2026

We encourage both U.S. based and international scholars at all career stages working in all geographic and chronological fields to apply. We welcome applications for events featuring one book, two books or articles in conversation, and events coordinated with another professional society. ASLH membership is encouraged, but not required. Books featured on a New Directions panel at the Annual Meeting are eligible.

Applications: (max. 1 page; 12 pt font)

Book/Article/DLH Author, Title, Publisher (for articles: Journal title; for DLH: url) and Publication date
Book/Article/DLH Abstract and explanation about the relevance of the work to an audience of legal historians (1-2 paragraph)
Author Bio, including email & ASLH membership status (1 paragraph)
Interlocutor Bio, including email & ASLH membership status (1 paragraph)

FAQ:

Does the same 1-page limit apply to applications for more than 1 book or multiple articles? Yes. We are especially interested in hearing how featuring the works together would make for an interesting conversation.

Do I have to find my own interlocutor? Yes. Only complete submissions, including those with an interlocutor, will be considered.

Please direct questions and submissions to Naama Maor, nmaor@tauex.tau.ac.il