This article explores how ordinary Americans thought about law during World War I by examining 119 letters to Congress regarding charges under the Espionage Act. These letters are a product of their time and shed new light on our understanding of the first Red Scare. This lens of legal consciousness explains how people remain within established modes of engagement, rather than either withdrawing or becoming violent, as is found in the extant literature. Despite opposing goals, the letter writers’ shared master frame enabled them to ‘speak to’ the other side, rather than ‘past’ those with opposing views. This article explains how individuals who opposed and supported seating Berger rallied under the same master frame of Americanism. Yet, the two groups displayed strikingly different legal consciousness. These disparate groups not only conceptualized the law itself differently, but engaged the law as a tool for different agendas. At a time when violence was on the rise, these people eschewed violent means and maintained the most conventional, peaceful means of protest: letter writing. How they managed this was by embracing the law as their key, nonviolent tool.
{"title":"Letter Writing and Legal Consciousness during World War I","authors":"Elizabeth A Hoffmann","doi":"10.1093/ajlh/njae003","DOIUrl":"https://doi.org/10.1093/ajlh/njae003","url":null,"abstract":"This article explores how ordinary Americans thought about law during World War I by examining 119 letters to Congress regarding charges under the Espionage Act. These letters are a product of their time and shed new light on our understanding of the first Red Scare. This lens of legal consciousness explains how people remain within established modes of engagement, rather than either withdrawing or becoming violent, as is found in the extant literature. Despite opposing goals, the letter writers’ shared master frame enabled them to ‘speak to’ the other side, rather than ‘past’ those with opposing views. This article explains how individuals who opposed and supported seating Berger rallied under the same master frame of Americanism. Yet, the two groups displayed strikingly different legal consciousness. These disparate groups not only conceptualized the law itself differently, but engaged the law as a tool for different agendas. At a time when violence was on the rise, these people eschewed violent means and maintained the most conventional, peaceful means of protest: letter writing. How they managed this was by embracing the law as their key, nonviolent tool.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"20 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140932667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A longer perspective on the modern Anglo-American law of exemplary (or punitive) damages views it as having first begun to emerge after the cases of Huckle v Money and Wilkes v Wood were decided in 1763. This article seeks to further deepen and clarify this perspective. It does so by systematically tracing the evolution of the adjudicative practice according to which English civil juries awarded ‘exemplary damages’ from the period circa 1764 to the early nineteenth century. It shows that this practice scarcely ‘hardened into law’ in the aftermath of the Huckle and Wilkes decisions. In fact, as had been the case long before 1763, for a long time after it, jury determinations as to exemplary damages in common law tort actions remained entirely outside the control of any formal legal doctrine which either of these decisions were taken to have authoritatively recognized.
{"title":"Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England","authors":"Nicholas Sinanis","doi":"10.1093/ajlh/njae005","DOIUrl":"https://doi.org/10.1093/ajlh/njae005","url":null,"abstract":"A longer perspective on the modern Anglo-American law of exemplary (or punitive) damages views it as having first begun to emerge after the cases of Huckle v Money and Wilkes v Wood were decided in 1763. This article seeks to further deepen and clarify this perspective. It does so by systematically tracing the evolution of the adjudicative practice according to which English civil juries awarded ‘exemplary damages’ from the period circa 1764 to the early nineteenth century. It shows that this practice scarcely ‘hardened into law’ in the aftermath of the Huckle and Wilkes decisions. In fact, as had been the case long before 1763, for a long time after it, jury determinations as to exemplary damages in common law tort actions remained entirely outside the control of any formal legal doctrine which either of these decisions were taken to have authoritatively recognized.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"57 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140609763","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Alexander Hamilton's view of law was more than pragmatic. Forward looking, and innovative, it saw law as a creative tool. Often misread, and dismissed, as mere policy preference, it was in fact sophisticated and superbly articulated jurisprudence. In the years between the ratification debate and the proposal for the First Bank of the United States, Hamilton displayed this jurisprudence to great effect.
{"title":"Alexander Hamilton's Constitutional Jurisprudence and the Bank Bill","authors":"Peter Charles Hoffer","doi":"10.1093/ajlh/njae002","DOIUrl":"https://doi.org/10.1093/ajlh/njae002","url":null,"abstract":"Alexander Hamilton's view of law was more than pragmatic. Forward looking, and innovative, it saw law as a creative tool. Often misread, and dismissed, as mere policy preference, it was in fact sophisticated and superbly articulated jurisprudence. In the years between the ratification debate and the proposal for the First Bank of the United States, Hamilton displayed this jurisprudence to great effect.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"74 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140107244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Judges and scholars have long debated whether the Constitution provides the president with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the president’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the president to remove principal officers—even those whose views are out of the step with the president’s—because the president cannot know whether the Senate will consent to a preferred replacement. This is an example of what is dubbed Congress’s anti-removal power: Even if the president can remove, a motivated Congress can discourage the president’s use of that power. In ‘Congress’s Anti-Removal Power’, we used game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argued that such tools have been a longstanding feature of interbranch relations. This article focuses on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but is also a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. The article thus concludes—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding-era thought and practice.
{"title":"The Early Years of Congress’s Anti-Removal Power","authors":"Aaron L Nielson, Christopher J Walker","doi":"10.1093/ajlh/njad003","DOIUrl":"https://doi.org/10.1093/ajlh/njad003","url":null,"abstract":"Judges and scholars have long debated whether the Constitution provides the president with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the president’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the president to remove principal officers—even those whose views are out of the step with the president’s—because the president cannot know whether the Senate will consent to a preferred replacement. This is an example of what is dubbed Congress’s anti-removal power: Even if the president can remove, a motivated Congress can discourage the president’s use of that power. In ‘Congress’s Anti-Removal Power’, we used game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argued that such tools have been a longstanding feature of interbranch relations. This article focuses on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but is also a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. The article thus concludes—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding-era thought and practice.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"304 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139752522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled ‘fiduciary constitutionalism’. Some have wanted to strangle this work in its cradle, offering an argument pitched ‘against fiduciary constitutionalism’, full stop. But because there are enough different modalities of fiduciary constitutionalism—and particularly originalist varieties of it at the center of recent critiques—it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This article develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.
{"title":"Three Modalities of (Originalist) Fiduciary Constitutionalism","authors":"Ethan J Leib","doi":"10.1093/ajlh/njad004","DOIUrl":"https://doi.org/10.1093/ajlh/njad004","url":null,"abstract":"There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled ‘fiduciary constitutionalism’. Some have wanted to strangle this work in its cradle, offering an argument pitched ‘against fiduciary constitutionalism’, full stop. But because there are enough different modalities of fiduciary constitutionalism—and particularly originalist varieties of it at the center of recent critiques—it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This article develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"80 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139902428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The enduring and protracted debate over the original scope of American presidential power often reduces to a simple question: What did the words ‘executive power’ in the Article II vesting clause of the US Constitution originally mean? Yet this singular preoccupation has concealed a crucial historical transformation. To bring this underappreciated shift into focus, this article offers four observations on the great 1789 congressional debate over the removal of executive officers: first, the debate was unexpected; second, it covered new ground; third, during the course of it, participants openly changed their minds; fourth, it remained unresolved until the end. Rather than attempting to settle the issue of removal that has divided scholars and jurists for so long, this article instead offers these observations in hopes of redirecting our focus: to see that the removal debate was marked by uncertainty and confusion because the debate over executive power was itself changing at this time. Eighteenth-century Americans had been debating executive power since long before declaring independence, but the question that had animated that debate for close to a century began to change after the Constitution was ratified. As the question mutated, so too did the dispute itself, and, with that, understandings of executive power. The removal debate was one of the key markers of this important transformation. There remains no shortage of interest in the historical foundations of presidential power. We misapprehend what Founding-era Americans thought about executive power unless we appreciate how the framework of debate was itself changing at the time of the Constitution’s birth.
{"title":"Removal and the Changing Debate over Executive Power at the Founding","authors":"Jonathan Gienapp","doi":"10.1093/ajlh/njad006","DOIUrl":"https://doi.org/10.1093/ajlh/njad006","url":null,"abstract":"The enduring and protracted debate over the original scope of American presidential power often reduces to a simple question: What did the words ‘executive power’ in the Article II vesting clause of the US Constitution originally mean? Yet this singular preoccupation has concealed a crucial historical transformation. To bring this underappreciated shift into focus, this article offers four observations on the great 1789 congressional debate over the removal of executive officers: first, the debate was unexpected; second, it covered new ground; third, during the course of it, participants openly changed their minds; fourth, it remained unresolved until the end. Rather than attempting to settle the issue of removal that has divided scholars and jurists for so long, this article instead offers these observations in hopes of redirecting our focus: to see that the removal debate was marked by uncertainty and confusion because the debate over executive power was itself changing at this time. Eighteenth-century Americans had been debating executive power since long before declaring independence, but the question that had animated that debate for close to a century began to change after the Constitution was ratified. As the question mutated, so too did the dispute itself, and, with that, understandings of executive power. The removal debate was one of the key markers of this important transformation. There remains no shortage of interest in the historical foundations of presidential power. We misapprehend what Founding-era Americans thought about executive power unless we appreciate how the framework of debate was itself changing at the time of the Constitution’s birth.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139902435","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The ‘residuum’ theory of executive power maintains that Article II’s Vesting Clause grants to the president of the United States a residuum of royal prerogative powers that have not been assigned to other departments of the national government or otherwise limited elsewhere in the text of the Constitution. This theory is often traced to Alexander Hamilton’s Pacificus essay, in which he defended President Washington’s proclamation of neutrality with a version of that theory. Two years earlier, however, in his opinion on the constitutionality of the Bank of the United States, Hamilton appears to have rejected the residuum theory; at a minimum, he had incentive to propound that theory but did not do so. Although not the only possible way to interpret Hamilton’s opinion, scholars of executive power must contend with this possibility before concluding that Hamilton believed in a residual vesting of prerogative powers.
{"title":"Alexander Hamilton on Executive Authority","authors":"Ilan Wurman","doi":"10.1093/ajlh/njad005","DOIUrl":"https://doi.org/10.1093/ajlh/njad005","url":null,"abstract":"The ‘residuum’ theory of executive power maintains that Article II’s Vesting Clause grants to the president of the United States a residuum of royal prerogative powers that have not been assigned to other departments of the national government or otherwise limited elsewhere in the text of the Constitution. This theory is often traced to Alexander Hamilton’s Pacificus essay, in which he defended President Washington’s proclamation of neutrality with a version of that theory. Two years earlier, however, in his opinion on the constitutionality of the Bank of the United States, Hamilton appears to have rejected the residuum theory; at a minimum, he had incentive to propound that theory but did not do so. Although not the only possible way to interpret Hamilton’s opinion, scholars of executive power must contend with this possibility before concluding that Hamilton believed in a residual vesting of prerogative powers.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"11 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139902622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The path of the prerogatives refers to the process by which the royal prerogative powers outlined in Blackstone’s Commentaries entered into American constitutional law. In 1953, Professor William Crosskey opened up a new window into the Constitution when he pointed out that many of Congress’s enumerated powers had been prerogatives of the British Crown. In The President Who Would Not Be King: Executive Power under the Constitution, Professor Michael McConnell takes Crosskey’s observation as a starting point of his own more systematic analysis of how the Committee of Detail divided these prerogative powers between Congress and the President. Yet neither Crosskey nor McConnell focuses much attention on the fact that many of these powers were already delegated to the United States by the Articles of Confederation. Nor do they ask whether the founders conceived of these powers primarily as legislative or executive powers, on the one hand, or government powers, on the other—a critical distinction reflected in the text of the Constitution by the Necessary and Proper Clause. This article investigates these topics by tracing the path of the prerogatives from 1774 to 1776 in the writings of James Wilson, Benjamin Franklin, John Dickinson, and Thomas Jefferson, highlighting the crucial role played by these powers in Wilson’s 1774 essay on the legislative authority of Parliament, the Articles of Confederation, and the Declaration of Independence. The article also discusses two further issues that any adequate theory of presidential powers must confront: the distinction between government powers and executive powers, and the status of the United States as a legal corporation, in which implied powers are vested without needing to be enumerated. Finally, the article points to new evidence indicating that Jefferson borrowed specific language and ideas from Wilson when drafting the Declaration of Independence.
特权之路指的是布莱克斯通《评注》中概述的王室特权进入美国宪法的过程。1953 年，威廉-克劳斯基教授指出，国会的许多列举权力都是英国王室的特权，这为我们了解宪法打开了一扇新窗口。在《不愿称王的总统》（The President Who Would Not Be King：迈克尔-麦康奈尔（Michael McConnell）教授以克罗克基的观点为起点，对详细委员会如何在国会和总统之间划分这些特权进行了更系统的分析。然而，克劳斯基和麦康奈尔都没有过多关注《邦联条例》已将其中许多权力授予美国这一事实。他们也没有追问，建国者是将这些权力主要视为立法权或行政权，还是政府权力--《宪法》文本中的 "必要和适当条款 "反映了这一关键区别。本文通过追溯从 1774 年到 1776 年詹姆斯-威尔逊（James Wilson）、本杰明-富兰克林（Benjamin Franklin）、约翰-迪金森（John Dickinson）和托马斯-杰斐逊（Thomas Jefferson）的著作中特权的发展轨迹来研究这些主题，强调了这些权力在威尔逊 1774 年关于议会立法权的文章、《邦联条款》和《独立宣言》中发挥的关键作用。文章还讨论了任何适当的总统权力理论都必须面对的另外两个问题：政府权力和行政权力之间的区别，以及美国作为法律公司的地位，其中隐含的权力无需列举即可赋予。最后，文章指出有新的证据表明杰斐逊在起草《独立宣言》时借鉴了威尔逊的具体语言和观点。
{"title":"The Path of the Prerogatives","authors":"John Mikhail","doi":"10.1093/ajlh/njad008","DOIUrl":"https://doi.org/10.1093/ajlh/njad008","url":null,"abstract":"The path of the prerogatives refers to the process by which the royal prerogative powers outlined in Blackstone’s Commentaries entered into American constitutional law. In 1953, Professor William Crosskey opened up a new window into the Constitution when he pointed out that many of Congress’s enumerated powers had been prerogatives of the British Crown. In The President Who Would Not Be King: Executive Power under the Constitution, Professor Michael McConnell takes Crosskey’s observation as a starting point of his own more systematic analysis of how the Committee of Detail divided these prerogative powers between Congress and the President. Yet neither Crosskey nor McConnell focuses much attention on the fact that many of these powers were already delegated to the United States by the Articles of Confederation. Nor do they ask whether the founders conceived of these powers primarily as legislative or executive powers, on the one hand, or government powers, on the other—a critical distinction reflected in the text of the Constitution by the Necessary and Proper Clause. This article investigates these topics by tracing the path of the prerogatives from 1774 to 1776 in the writings of James Wilson, Benjamin Franklin, John Dickinson, and Thomas Jefferson, highlighting the crucial role played by these powers in Wilson’s 1774 essay on the legislative authority of Parliament, the Articles of Confederation, and the Declaration of Independence. The article also discusses two further issues that any adequate theory of presidential powers must confront: the distinction between government powers and executive powers, and the status of the United States as a legal corporation, in which implied powers are vested without needing to be enumerated. Finally, the article points to new evidence indicating that Jefferson borrowed specific language and ideas from Wilson when drafting the Declaration of Independence.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139902632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees about the First Congress’s lack of consensus. The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article. “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity.” Unitary theorists conceded problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to new claims: that the endorsement of even a minority faction was still substantial; that it was the quality of the argument, not the quantity of supporters, that counts (a subjective claim that contradicts the theory of original public meaning); or perhaps it is the quality or historical importance of the speakers that counts (nevermind that Madison, Hamilton, and Marshall also rejected presidential removal). None of these pivots rescue the “Decision” myth. Unitary theorists turned to later evidence: practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods and engaged in methods more consistent with common law constitutionalism and living constistutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory. The broader significance of this debate is the questions it raises about the practice of originalism as a reliable method of interpretation.
如果有的话，"1789 年决定 "对总统免职权做出了什么决定？事实证明，学者们正在就第一届国会缺乏共识达成共识。单一行政权理论认为总统拥有专有且 "不可剥夺 "的行政权（即超越国会和司法制衡的权力）。本次专题讨论会为单一行政权理论者及其批评者提供了一个机会，就质疑单一行政权理论主张的最新历史研究（如乔纳森-吉纳普（Jonathan Gienapp）的《第二次创造》（The Second Creation）和我的文章《1789 年的决定》（The Indecisions of 1789））展开辩论。"1789 年的决定：不稳定的原始主义和战略模糊性"。单一理论者承认 "决定 "的主张存在问题。大多数人放弃了传统的说法，即根据立法辩论，第一届国会的大多数议员认可了关于第二条确立了总统罢免权的解释。相反，他们转向了新的主张：即使是少数派的支持也是实质性的；重要的是论证的质量，而不是支持者的数量（这是一种主观主张，与原始公共含义理论相矛盾）；或者，也许重要的是发言人的质量或历史重要性（别忘了麦迪逊、汉密尔顿和马歇尔也反对罢免总统）。这些支点都无法拯救 "决定 "神话。单一制理论家转向了后来的证据：离建国和批准越来越远的实践和辩论。值得称赞的是，他们表现出了抛弃标准原始主义方法的意愿，并采用了更符合普通法宪法主义和活宪法主义的方法。他们面临的挑战是，他们是否承认必须在原创主义和统一理论之间做出选择。这场辩论更广泛的意义在于，它对作为可靠解释方法的原创主义的实践提出了质疑。
{"title":"Movement on Removal: An Emerging Consensus about The First Congress and Presidential Power","authors":"Jed H Shugerman","doi":"10.1093/ajlh/njad015","DOIUrl":"https://doi.org/10.1093/ajlh/njad015","url":null,"abstract":"What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees about the First Congress’s lack of consensus. The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article. “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity.” Unitary theorists conceded problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to new claims: that the endorsement of even a minority faction was still substantial; that it was the quality of the argument, not the quantity of supporters, that counts (a subjective claim that contradicts the theory of original public meaning); or perhaps it is the quality or historical importance of the speakers that counts (nevermind that Madison, Hamilton, and Marshall also rejected presidential removal). None of these pivots rescue the “Decision” myth. Unitary theorists turned to later evidence: practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods and engaged in methods more consistent with common law constitutionalism and living constistutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory. The broader significance of this debate is the questions it raises about the practice of originalism as a reliable method of interpretation.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"184 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139902426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article considers the accessibility and impact of the mid-Victorian divorce court’s new custody powers, by tracing the children of those who petitioned the court within the first two years of the court’s establishment and contrasting this with court pleadings and orders. Focusing on the care of children by location as revealed by the census and other sources, this study then deals in more detail with individual cases to illustrate the experience of parties in divorce court processes for child custody. This study generates an original data set to find that, whereas the majority of resident female petitioners sought a custody order in the petition, only a minority ended up with an order. Three broad issues are addressed: the gendered nature of rights in respect of children on marital breakdown, the implications of legal remedies being accessed through male gatekeepers, and the exercise of discretion at the newly opened divorce court.
{"title":"Brave New World? Care and Custody of Children at the Court for Divorce and Matrimonial Causes in Mid-Victorian England","authors":"Penelope Russell","doi":"10.1093/ajlh/njad029","DOIUrl":"https://doi.org/10.1093/ajlh/njad029","url":null,"abstract":"This article considers the accessibility and impact of the mid-Victorian divorce court’s new custody powers, by tracing the children of those who petitioned the court within the first two years of the court’s establishment and contrasting this with court pleadings and orders. Focusing on the care of children by location as revealed by the census and other sources, this study then deals in more detail with individual cases to illustrate the experience of parties in divorce court processes for child custody. This study generates an original data set to find that, whereas the majority of resident female petitioners sought a custody order in the petition, only a minority ended up with an order. Three broad issues are addressed: the gendered nature of rights in respect of children on marital breakdown, the implications of legal remedies being accessed through male gatekeepers, and the exercise of discretion at the newly opened divorce court.","PeriodicalId":54164,"journal":{"name":"AMERICAN JOURNAL OF LEGAL HISTORY","volume":"203 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2024-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139515684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：