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
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
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
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
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
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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
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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
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
* 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.
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
