In April 1938 New York's first constitutional convention since 1915 convened in Albany. When it adjourned in late August, one of the amendments slated for a referendum that fall was an “anti-bureaucracy clause,” a provision that would greatly increase the New York courts' oversight of the state's agencies. Although voters rejected it, contemporaries saw the anti-bureaucracy clause as a harbinger of a national campaign against the New Deal. In September 1938 Charles Wyzanski, a former member of the Solicitor General's office, warned Attorney General Homer Cummings that the anti-bureaucracy clause was “the advance signal of an approaching partisan attack on a national scale.” Wyzanski was right: in early 1939 a bill endorsed by the American Bar Association's House of Delegates was introduced in Congress by Representative Francis Walter and Senator Marvel Mills Logan. Just as the New York provision “would have almost certainly destroyed the effectiveness of the state administrative agencies,” the New Dealer Abe Feller warned Cummings's successor, so would the Walter-Logan bill hamstring the federal government. When President Franklin Roosevelt vetoed the bill in December 1940, he declared it part of a national campaign that had begun with the anti-bureaucracy clause.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law--which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might otherwise seem daunting or anachronistic. Applying yesterday's “no vehicles in the park” ordinance is no less fraught--and no more so--than applying Founding-era legal doctrines.

In “Gun Ownership in Early America,” published in the William and Mary Quarterly in 2003, Robert Churchill drew on probate inventories and militia records to make the case that arms ownership was pervasive in late colonial, revolutionary, and early national America. Churchill concluded with the observation that “[i]t is time to ponder what these guns meant to their owners and how that meaning changed over time.” In his substantial contribution to this volume of Law and History Review, Churchill takes up that challenge himself and advances the claim that widespread arms ownership engendered a sense of possessory entitlement, and that this notion of right informed constitutional sensibilities respecting guns and the Second Amendment. He acknowledges that a civic republican understanding focused on the militia was central to the framers' conception of the right to arms, but urges that another stream of discourse—individualistic, personal, and divorced from militia linked obligations—was present from the beginning. By the early nineteenth century, Churchill argues, this purely private view of the right to arms had become ascendant.

The authors of these insightful and stimulating commentaries all express skepticism about the role I assign to the Scottish Common Sense philosophy in my historical analysis, though their reasons for doing so are strikingly at odds with each other. Sarah Seo and John Witt concede the importance of the Common Sense philosophy at a theoretical level, even as they call attention to certain “competitor theories” of human nature, noting that these darker views of the self may have proved more influential in the framing of the American constitution. However, they go on to contend that all of this philosophizing about the human mind was actually of little consequence in the everyday adjudication of civil and criminal liability, as judges found more practical means of resolving “the otherwise intractable questions of moral responsibility” left unanswered by the Scottish philosophy. John Mikhail, by contrast, appears to be far more sanguine about the tractability of these questions, from a philosophical standpoint, going so far as to suggest that they were more or less resolved by British moralists before the Scottish Common Sense school even came into being. What truly set the Common Sense philosophers apart from their predecessors, and ought to determine their place in this history of ideas, Mikhail concludes, was the manner in which they contributed to the scientific process of tracing out the inner structure and innate capacities of “the moral mind”—a topic that is currently of intense interest in the cognitive and brain sciences.

This article explores Washington's annotated copy of the Constitution and the Acts of Congress (hereafter called the Acts of Congress to remain consist with the label Washington had placed on the front cover) to reveal new insights into his constitutional interpretation. Held in a private collection until 2012, this article is the first to examine Washington's notations in the Acts of Congress for their value as statements about political authority. Washington's comments in the margins of his volume suggest an evolving view of presidential power and constitutional limitations on the executive branch as early as January 1790. His margin notes on the Acts of Congress served as blueprint for his defense of presidential authority and the expansion of the executive branch in the 1790s. Finally, the annotated Acts of Congress inserts Washington's ideas about the presidency into the debate surrounding originalism by revealing how his analysis of the language evolved to meet the demands of governing, leading him to reject the delegates' intent for Article II, Section 2 of the Constitution.

Between 1650 and 1750, the Northern Spanish bishopric of Calahorra and La Calzada adjudicated eight suits against allegedly impotent wives and one case against a castrated woman.1 These suits were marital, not criminal, and usually entailed a husband accusing his wife of being impotent. They are particularly valuable for the historian of sex and gender because these cases occurred at the local level, among rural Spaniards, and in an ordinary bishop's court. These local church court trials allow us to avoid the rarified cultural world of political and religious élites.2 They offer, instead, a glimpse of the sexual concerns of ordinary wives and husbands and demonstrate the daily practices of local surgeons, doctors, and lawyers. These professionals were, I argue, primarily influenced by the pragmatic day-to-day worries of the communities they lived in. The influences of cultural and intellectual centers in Madrid or rome, Valladolid or Salamanca were negligible when compared to the issues at hand in court. These court documents reveal sexual interests related to reproduction rather than salvation, magic rather than honor, and social order rather than the strictures of canon law.

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

At 10:00 A.M. on May 21, 1845, ‘the tall, straight figure and pale, grave face of the slave's friend, Alvan Stewart’, turned toward the justices of the New Jersey Supreme Court as he commenced his opening argument in the companion cases, State v. Post and State v. Van Beuren. In the ensuing hours, Stewart argued for the immediate abolition of slavery and black apprenticeship in New Jersey. Although Stewart relied upon many authorities, the justices and the attorneys for the defendants believed that his most promising argument was based upon the state constitution of 1844, the first of the state's fundamental laws to declare that ‘all men are by nature free and independent’. On the following day, the defense counsel—A.O. Zabriskie, a Hackensack attorney, and Joseph P. Bradley, the future U.S. Supreme Court Justice—spoke with ‘much energy and ingenuity’ until five o'clock. The reply of the ‘Abolition Ajax’ lasted until 10:30 and closed with an impassioned appeal to the justices. ‘Such was the impressiveness with which the closing appeal of the advocate for freedom was delivered’, a newspaperman reported, that none of the large audience wished to ‘break the spell his eloquence had cast upon the assembly’. At length, the bench arose, and Chief Justice Joseph Hornblower adjourned the court.

Kenneth Ledford has provided an insightful commentary on the two articles on Catalonia. He generously notes their contribution to debates on normativity in the history of civil law codification, for which I thank him. More important, Ledford raises several questions that need to be addressed before we can be convinced that “the Catalan experience can be used to refine and reshape assessments of any general European phenomena regarding civil law codification” (Ledford, 390). I shall use this space to briefly address each of his three questions.

I am grateful to Eileen Spring and Michael Grossberg for their thoughtful comments on a study that has occupied my life for the past five years, and which has finally been produced in a more detailed form as my dissertation. Unfortunately, many of their comments point to gaps, in the best interests standard and comparisons with U.S. law for instance, that are taken up in the longer study. But if I could put my entire dissertation into a single sentence, it would be that a history of English custody law reveals profoundly different commitments on the part of judges to protecting mother's rights and to recognizing some form of a best interests test as social conditions changed, and that the patriarchal moorings of custody law remain with us today as we try to solve the deeply problematic issues raised for a legal system that still pits parental rights against children's welfare. Grossberg and Spring both point to the issue of judicial agency that I grapple with in my article and I will briefly address a few points on that topic. Then, rather than address their comments individually, I would prefer to suggest some of the conclusions I draw in the larger study and make connections to what is presented here.

Over the past three decades, a veritable cottage industry of important new scholarship has emerged dedicated to the history of rights talk in the Western tradition prior to the Enlightenment.1 We now know a great deal more about classical Roman understandings of rights (iura), liberties (libertates), capacities (facultates), powers (potestates), and related concepts, and their elaboration by medieval and early modern civilians. We can now pore over an intricate latticework of arguments about individual and group rights and liberties developed by medieval Catholic canonists and moralists, and the ample expansion of this medieval handiwork by neo-scholastic writers in early modern Spain and Portugal. We now know a good deal more about classical republican theories of liberty developed in Greece and Rome, and their transformative influence on early modern common lawyers and political revolutionaries on both sides of the Atlantic. We now know, in brief, that the West knew ample “liberty before liberalism,” and had many fundamental rights in place before there were modern democratic revolutions fought in their name.

In 1706, Jamaica's provost marshal received a writ of escheat from the island's Supreme Court of Judicature. The writ directed him to empanel a jury of “Twelve and Lawful Men of the Neighbourhood” who would determine whether the slaves of James Whitchurch, a Jamaican merchant, should be escheated—returned—to the Crown. Did the “Negro Woman Slave Commonly Called Catalina” and her “Seaven Pickaninny” belong to Whitchurch, or could Queen Anne claim her prerogative right to an escheat because the previous owner of the slaves, Charles Delamaine, had died without an heir? The jury found in the Crown's favor, but a dissatisfied Whitchurch petitioned Queen Anne for relief, asking her to return the slaves and quiet his title. Whitchurch's petition, the first Jamaican escheat case to come before the Queen, sparked a transatlantic legal controversy as colonists, Assembly members, and imperial officials weighed the Crown's prerogative right to escheats against local political grievances and the Board of Trade's desire to encourage West Indian settlement and trade. This seemingly mundane conflict over property law quickly acquired constitutional significance, generating the kind of rights talk so familiar to early American historians: Jamaican colonists claimed the rights of Englishmen, and the Jamaican Assembly asserted an institutional capacity akin to Parliament. In this article, I contextualize colonists' rights talk, rooting their claims to English rights in concerns about the administration of property law during a crucial liminal moment in Jamaican history. As the colony transitioned from a small-scale to a large-scale plantation economy and from a society with slaves to a slave society, property and the law that governed it became the focus of intense political conflict.

What societal factors prompt the shift from legal practices based upon oral or customary law to the development of new legal institutions predicated upon bodies of written law? Certainly the presence within a given society of a functional writing system, whether indigenously developed or cross-culturally borrowed, is a prerequisite for the creation of written law. Several scholars, however, notably anthropologists and sociologists, have argued that the mere presence of writing does not necessarily result in the immediate, or inevitable, development of certain sociopolitical institutions dependent upon the technological capacities that writing offers. These same scholars warn that assigning such a monocausal role to writing reduces the multifaceted complexity of a social phenomenon, such as the development of written law, to a teleological inevitability. Instead, many believe that writing provides what Jack Goody has called “potentialities” for types of developments and alternative configurations of social organization. That is to say, the technological capacities of writing provide the potential for specific institutional developments, such as the use of written law; however, for such potential to be actualized, there must first exist within the society an acknowledgement of a social need, with a concomitant consciousness that that need can best be satisfied through the implementation of a form of writing.