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Abstract:
Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested a conception of its identity as much more flexible and susceptible to change than originalists posit. The alternative that this Article proposes - common law originalism - treats the strands of eighteenth-century common law not as providing determinate answers that fix the meaning of particular constitutional clauses but instead as supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively. It likewise suggests that the interpretation of common law phrases should be responsive to certain alterations in external conditions, rather than static and inflexible. Situated between living constitutionalism and originalism as currently practiced, common law originalism attempts to square fidelity to the Founding era with fidelity to its common law jurisprudence - a jurisprudence that retained continuity yet emphasized flexibility and was inclusive enough to hold disparate legal conceptions in its embrace.

originalism, history of the common law, constitutional interpretation

Abstract:
Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by governmental interference. Much of public law scholarship has, in turn, examined whether and in what form the rule of law, which is often seen as a basic requirement for a liberal political order, can be retained during times of emergency.

While the economic development and state of emergency contexts for rule of law discussions appear quite distinct, they do converge in at least one situation, that of economic emergency. Paradigmatic cases of economic emergency include the Great Depression, the Argentine fiscal crisis of 2001, and the East Asian currency crisis of the late 1990s. Arguably more marginal instances might comprehend the economic consequences of Hurricane Katrina, the economic dimensions of a potential bird flu pandemic, or the threatened financial chaos of the Y2K computer crisis. Either the economic development or emergency-oriented approach to the rule of law could lead to the conclusion that none of these situations justify abrogation of core rule of law values - but this, of course, puts aside the question of which values do lie at the center of the rule of law.

This Article contends that, in the United States context, the rule of law should be conceived flexibly enough to permit governmental intervention that may temporarily disrupt the economic but not personal liberty or political participation rights of individuals during these situations of economic emergency. Without addressing whether and to what extent the government should interfere in the economic sphere, this Article argues that several justifications based in the democratic vision underlying our constitutional system warrant treating the suspension of economic rights differently from the suspension of rights such as those of habeas corpus or the vote.

emergency, rule of law, constitutional rights

Abstract:
In The Myth of Moral Justice, Thane Rosenbaum generates an ambitious and idealistic plan for a rapprochement between law and morality, between emotion and reason, and between law and its literary representations. Laudable and inspiring, Rosenbaum's project remains flawed in several ways that are traceable back to his reliance on aspects of law and literature scholarship. Unfortunately, Rosenbaum's attempt to replace the myth of moral justice with a truly moral legal system depends itself on a particular set of myths about law and literature. After examining two recent critiques of the law and literature movement, one from the vantage point of law and the other from the perspective of literary studies, this review suggests an alternative approach that would attend to law's institutional dimensions.

law and literature, legal ethics, narrative, shakespeare, book review

Abstract:
The common law - thought to provide an ancient constitution securing the liberties of the people from monarchical tyranny - and opposition against it, played an acknowledged part in the debates among Royalists, Parliamentarians, and Puritans during seventeenth-century England. Very little attention has, however, been devoted to the status of the jury within these arguments either for the supremacy of the common law or for the King's prerogative, institutionally embodied most prominently in the Star Chamber and the Court of Chancery. As this Article argues, the procedural virtues and the philosophical goals of the jury and of the Chancellor as expressed by their advocates were very similar, but the disparities in the origins of their authority - the jury a body designed to represent local men of the community and the Chancellor considered almost a cipher for the King - led opponents in the English Revolution and its aftermath to resist one institution or the other. Fluctuations in the relative strength and weakness of the common law jury and judges in equity thus came to depend on political struggles rather than disagreement about methods of adjudication. As a result, by the time of the Founding, opponents of the proposed Supreme Court expressed their reservations about its elevated status and its jurisdiction over fact and law by raising the specter of Chancery and its association with monarchical power.

jury, equity, seventeenth-century England

Abstract:
Scholars and advocates of religious liberty within the United States are beginning to suggest that our constitutional discourse has focused too intently on individual rights and that our attention should now turn to the interests of religious institutions and the notion of church autonomy. The reoriented jurisprudence encouraged by such proposals is not without parallel in other national contexts, including those of Europe. Heeding calls to attend to church autonomy could thus bring the United States into closer harmony with its European counterparts. Placing priority on church autonomy might, however, generate unforeseen obstacles to the exercise of religious liberty. In particular, emphasizing religious institutions may lead to the unequal treatment of individuals and entities of minority religious persuasions. As this Symposium Article's analysis of pertinent cases from the jurisprudence of international tribunals demonstrates, the monolithic conception of religious associations that has emerged from an institutionally oriented approach to religious liberty has resulted in the neglect of the equality of free exercise on the individual level and, concomitantly, disregard for the freedom of religious dissent and sub-group formation. The piece concludes with a suggestion about how to avoid the pitfalls of both the individually and institutionally based approaches.

religion, group rights, international law

Abstract:
Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive position of withholding binding domestic GHG reductions in advance of a multilateral agreement including key developing nations, will require demonstrating that the executive branch is not acting with congressional support and has, furthermore, declared its position too informally to constitute an exercise of any of the president's independent constitutional powers. Second, state efforts to link GHG emissions trading systems with those of other nations may well take them into territory abutting that which is constitutionally impermissible under the foreign affairs and Foreign Commerce Clause doctrines. Finally, state efforts to integrate with other trading schemes or to otherwise protect the integrity of their own trading schemes must be carefully constructed lest they invite challenge as being discriminatory or overreaching, in light of more conventional dormant Commerce Clause constraints on state regulation.

environment, greenhouse gas emissions, federalism, executive power, commerce clause, foreign affairs power

Abstract:
Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring the lessons that the Fourteenth Amendment taught about the nature of group classification and instead emphasizing the individual, the current approach downplays free exercise claims. Considering this tendency within the context of contemporary theories of group rights and antidiscrimination law, the Article concludes that the now-neglected, alternative strand of an equal protection approach to free exercise should be revived.

equal protection, free exercise, group rights

Abstract:
Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually imbricated. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Nor, this Article argues, should equal protection approaches be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection that ignores the lessons that the Fourteenth Amendment taught about the nature of group classification and instead, by emphasizing the individual in isolation, downplays her free exercise claims. Considering this tendency within the context of current theories of group rights and antidiscrimination law, the Article concludes that we should resuscitate the now neglected, alternative strand of an equal protection approach to free exercise.

equal protection, free exercise, group rights

Abstract:
Both historically and today, law reform efforts aimed at increasing transparency often focus on the possibilities of public access to knowledge about the law. One mode of achieving such access may be textual, through the dissemination of law reports, the publication of treatises explaining legal principles, and the production of volumes containing statutory enactments. Those attempting to promote transparency by generating a proliferation of texts tend, however, to neglect both what happens to these texts after they are produced and how they are received.

Through exploring a moment in the nineteenth century when reports of particular trials and collections of cases were both becoming common and self-consciously addressing a lay audience, this article examines the efforts of both law and literature to educate the naïve reader. What emerges is not an individual who can penetrate all the secrets of law, but rather one who reads with an awareness of the limits of the text's or the trial's ability to convey an unmediated truth, and who therefore retains a certain skepticism about the very possibility of complete transparency.

law and literature, transparency, trial reports, wilkie collins

Abstract:
Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as the author of Robinson Crusoe, in a number of disparate literary and political guises advocated the development of written documents setting forth the basic principles of a governmental order and restraining the power of legislative majorities. Just as the individualist ethos of Robinson Crusoe grabbed the American imaginary from the mid-eighteenth-century onwards, a conception of written constitutionalism similar to the one promulgated by Crusoe's author took root on American soil.

My article elaborates the contours of written constitutionalism that Defoe outlined and demonstrates the close alignment of some of Defoe's arguments with the scholarship of today, an alignment that suggests the persistence of a number of the mythic ideals of written constitutionalism that Defoe elaborated in the early eighteenth century. Methodologically, the article illuminates the importance of looking to the emerging genre of the novel as well as other widely read forms - rather than focusing exclusively on more traditional historical sources - to discern the construction of a popular imaginary at the time of the Founding. At the same time, however, the article argues that the differences between the account of written constitutionalism that emerges out of Defoe's works and the claims made for written constitutionalism by Chief Justice Marshall in Marbury v. Madison and legal academics today illuminate the contingency of what writing may mean for constitutionalism and demonstrate the ways in which the mythic entailment's of writing are sometimes precisely that - myths.

constitution, writing, defoe, founding era, pirates

Abstract:
Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as the author of Robinson Crusoe, in a number of disparate literary and political guises advocated the development of written documents setting forth the basic principles of a governmental order and restraining the power of legislative majorities. Just as the individualist ethos of Robinson Crusoe grabbed the American imaginary from the mid-eighteenth-century onwards, a conception of written constitutionalism similar to the one promulgated by Crusoe's author took root on American soil.

My article elaborates the contours of written constitutionalism that Defoe outlined and demonstrates the close alignment of some of Defoe's arguments with the scholarship of today, an alignment that suggests the persistence of a number of the mythic ideals of written constitutionalism that Defoe elaborated in the early eighteenth century. Methodologically, the article illuminates the importance of looking to the emerging genre of the novel as well as other widely read forms - rather than focusing exclusively on more traditional historical sources - to discern the construction of a popular imaginary at the time of the Founding. At the same time, however, the article argues that the differences between the account of written constitutionalism that emerges out of Defoe's works and the claims made for written constitutionalism by Chief Justice Marshall in Marbury v. Madison and legal academics today illuminate the contingency of what writing may mean for constitutionalism and demonstrate the ways in which the mythic entailment's of writing are sometimes precisely that - myths.

constitution, writing, defoe, founding era, pirates

Abstract:
This Symposium Essay assesses the compatibility of the U.S. Supreme Court's recent Free Speech Clause-based decision in Pleasant Grove v. Summum with extant Establishment Clause jurisprudence. The Essay first examines why, based on prior state and federal decisions, a free speech challenge to Pleasant Grove's policy of retaining a Ten Commandments monument while excluding the alternative display Summum wished to erect may have seemed more likely to succeed than a religious liberty one. It then posits that the Supreme Court's resulting neglect of the Establishment Clause implications of the case may result in future conflicts between the religion clauses -- and, in particular, the emerging emphasis on equality in religion clause adjudication -- and the position on government speech that the Court staked out in Summum.

religion, First Amendment, Ten Commandments, equality

Abstract:
As this Symposium Article contends, religion increasingly overlaps with the commercial sphere, and courts are obligated to determine whether or not to adopt an entirely hands-off approach simply because the specter of religion lurks on the horizon. Whereas the jurisprudence of the European Court of Human Rights tends to accept its member states' separation of commercial elements out from the protections more generally accorded to religion, the U.S. Supreme Court has treated the two spheres as overlapping. To the extent that each court does consider religious transactions in terms of commercial relations, each also arrives at a very different conception of the connection between religious institutions and the current or potential religious believer. While the ECHR seems more concerned with protecting others against the incursion of possibly misleading or offensive religious representations, the Supreme Court appears to view religious value as generated through a complex interaction between religious entities and individual adherents.

religion, commerce, comparative law

Abstract:
This article examines the dramatic character of King James I’s reaction to the 1605 Gunpowder Plot - the first act of terrorism in the West - and his attempts both to inscribe the unprecedented crime within the conventional structure of revenge tragedy and to interpret the event according to a model of tragicomedy indebted to John of Patmos' apocalyptic Revelation. On account of applying these cultural and religious paradigms, the King suggested that Parliament be entrusted with judging the conspirators, thus imaginatively displacing his sovereignty onto it.

sovereignty, terrorism, King James I, drama, revenge tragedy, apocalypse

Abstract:
This article considers the inheritance of the seventeenth-century English common law conception of the subject in nineteenth-century America and, ultimately, in the Supreme Court’s decision in United States v. Wong Kim Ark (1898). It examines the claims for birthright citizenship derived from British common law and the three principal arguments against them. These latter included: objections to the assertion of a federal common law of citizenship from the perspective of state sovereignty; arguments that the United States should embrace citizenship by blood rather than by birth in order to conform to the practice of the law of nations and other - civil law - countries; and, finally, the social contractarian claim that citizenship should be based on the consent of both the nation and the prospective citizen, rather than derived from a feudally based ascription. The article concludes by discussing Peter Schuck and Rogers Smith’s Citizenship without Consent, which recapitulates some of the arguments against birthright citizenship, and explaining why the common law practice, despite originating in the context of monarchical sovereignty, should be retained in the United States today.

citizenship, constitutional law, common law, Wong Kim Ark