Legal History

This Article by Marco Basile argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently against the state as the United States consolidated a continental nation-state. On one hand, the Supreme Court came to assert authority over constitutional law more aggressively in the context of gutting Reconstruction in the South. At the same time, the Court stepped back from international law in deference to Congress as the United States conquered territories and peoples in the West. The simultaneous rise of judicial supremacy as to constitutional law and of judicial deference as to international law recast constitutional law as more “legal” than political and international law as more “political” than legal. By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from the past. The Article ultimately invites us to reimagine a more integrated public law today.

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which White Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve White supremacy, and pave the way for the violent disenfranchisement of newly freed Black men. The Article concludes by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation.

This Essay concerns the evolving relationship between the economy and the methods society deployed to legitimate, control, and channel economic behavior, especially religion and law. Using the recently published work of three eminent academics—Benjamin Friedman, Jonathan Levy, and William Novak—it addresses first the changes in thought necessary to legitimate acquisitive economic behavior and the consequent centering of law as the secular replacement for religion. As capitalism fostered wider markets, as its evolution embodied industrialism and commercialism, it created problems that the regulatory state could not handle. In America, the transition from regulatory to administrative state was complicated by its federal structure and background democratic egalitarian yearnings. Friedman, Levy, and Novak illustrate and elucidate aspects of that evolution. This Essay suggests that reading them together explains more than each separately, and ends by noting how the tensions they explain usefully add to our understanding of American law, and, coincidentally, the potentially transformational administrative law decisions of the Supreme Court in the 2023–2024 term.

The Supreme Court did not use the term “federalism” in any opinions in its first 150 years. The Court had (of course) previously talked about federal-state relations, but it did so without the term “federalism”—it preferred a different vocabulary, discussing the police powers of the states and the enumerated powers of the federal government.

In asserting that “this land is our land” in his new book by that title,1 Professor Jedediah Purdy hopes to craft a narrative of possibility and common plight that can serve as a banner high and wide enough for all to unite beneath. The task he undertakes in this meditative collection of essays, written in a colloquial and often poetic tone, is no less than to sketch out a “horizon to aim for”—for all to aim for—a vision of the future to guide the kind of legal, social, and political change he wishes to see.