AMERICAN JOURNAL OF LEGAL HISTORY最新文献

Letter Writing and Legal Consciousness during World War I 第一次世界大战期间的书信写作与法律意识

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-05-08 DOI: 10.1093/ajlh/njae003

Elizabeth A Hoffmann

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Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England 十八世纪末十九世纪初英国的示范性损害赔偿实践

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-04-16 DOI: 10.1093/ajlh/njae005

Nicholas Sinanis

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Alexander Hamilton's Constitutional Jurisprudence and the Bank Bill 亚历山大-汉密尔顿的宪法判例与银行法案

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-03-11 DOI: 10.1093/ajlh/njae002

Peter Charles Hoffer

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The Early Years of Congress’s Anti-Removal Power 国会早年的反驱逐权

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-02-03 DOI: 10.1093/ajlh/njad003

Aaron L Nielson, Christopher J Walker

{"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}

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Three Modalities of (Originalist) Fiduciary Constitutionalism 原始主义）信托立宪主义的三种模式

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-02-03 DOI: 10.1093/ajlh/njad004

Ethan J Leib

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Removal and the Changing Debate over Executive Power at the Founding 撤职与建国之初关于行政权力的不断变化的争论

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-02-03 DOI: 10.1093/ajlh/njad006

Jonathan Gienapp

{"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}

引用次数: 0

Alexander Hamilton on Executive Authority 亚历山大-汉密尔顿谈行政权力

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-02-03 DOI: 10.1093/ajlh/njad005

Ilan Wurman

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The Path of the Prerogatives 特权之路

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-02-03 DOI: 10.1093/ajlh/njad008

John Mikhail

{"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}

引用次数: 0

Movement on Removal: An Emerging Consensus about The First Congress and Presidential Power 搬迁运动：关于第一届国会和总统权力的新共识

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-02-03 DOI: 10.1093/ajlh/njad015

Jed H Shugerman

{"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}

引用次数: 0

Brave New World? Care and Custody of Children at the Court for Divorce and Matrimonial Causes in Mid-Victorian England 勇敢的新世界？维多利亚时代中期英国离婚和婚姻诉讼法院对儿童的照顾和监护

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AMERICAN JOURNAL OF LEGAL HISTORY Pub Date : 2024-01-20 DOI: 10.1093/ajlh/njad029

Penelope Russell

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