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We like to think that courts are, and have always been, the primary and final interpreters of statutes. As the conventional separation-of-powers wisdom goes, legislatures “make” statutes while judges “interpret” them. In fact, however, legislatures across centuries of American history have thought of themselves as the primary interpreters. They blurred the line between “making” and “interpreting” by embracing a type of legislation that remains overlooked and little understood: “expository” legislation—enactments that specifically interpreted or construed previous enactments.

In the most exhaustive historical study of the subject to date, this Article—the first in a series of Articles—unearths and explains that lost tradition of legislative statutory interpretation from an institutional perspective. To do so, it draws on an original dataset of 2,497 pieces of expository legislation passed from 1665 to 2020 at the colonial, territorial, state, and federal levels—the first effort of its kind. It shows how expository legislation originated as a colonial-era British import that Americans came to rely on beyond the creation of new constitutions. Lawmakers used expository statutes to supervise administrative statutory interpretation and to negotiate interpretation in the shadows of courts. Judges accepted and even encouraged legislative statutory interpretation. In the mid-nineteenth century, judges increasingly fought back, emboldened by growing calls for judicial independence. Yet even as the backlash entered into treatises, and even as some lawmakers began to balk, legislatures and judges continued to accept and use legislative interpretations of statutes well into the nineteenth century.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows that Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship.

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach, interbranch agreement, and interparty consensus. Legal-culturally, it has in places evinced a decline in legal rationality. Although these developments do not rival the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in times of conflict, and reflects on what comes next in the new global conflict, and how best to shape it.

The United States pays half-a-trillion dollars to defense contractors every year. Although the U.S. military could not operate without profitable contractors, excessively profitable contracts reduce manufacturing output and can imperil soldier safety. Stretching back to the founding, there is a long history of the executive branch compelling ex post modifications of military contracts to a lower price than the parties agreed to at signing. Sometimes authorized by Congress (but not always), this executive practice of “downward revisions” has fallen into disuse. Nevertheless, at least one statute might authorize this practice today: Public Law 85-804. Commonly understood to provide higher payments to defense contractors, this Note argues that Public Law 85-804 should be interpreted in light of its text and history to authorize downward revisions to excessively profitable defense contracts. Such an interpretation could save soldiers’ lives and lower defense costs during today’s challenging fiscal and geopolitical times.

The military is one of the most powerful institutions to define membership in the American polity. Throughout this country’s history, noncitizens, immigrants, and outsiders have been called to serve in exchange for the privileges of citizenship and recognition. At its height, the idea that service constitutes citizenship—which this Note calls “constitutive service”—successfully transformed a group of “perpetual foreigners” to “citizens.” Until 1952, individuals of Asian descent were categorically excluded from the polity, a barrier that ultimately crumbled after Asian Americans rendered a long history of military service, beginning with the War of 1812, to the Civil War, then to the two World Wars. Yet, precisely because military service is so transformative, the United States over the past decade has imposed both formal and informal restrictions barring certain groups of people from serving, among them individuals who are gay, transgender, undocumented—and to a lesser extent—women and Muslim Americans. These restrictions are reminders that the United States continue to debate who is fit to be an “American,” and therefore, an “American soldier.”

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. 

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. 

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. 

The institutional design through which democracies choose nominees who compete to become a nation’s chief executive is among the most consequential features in the design of democratic elections. Yet there is surprisingly little scholarship that explores this issue in detail. This Article provides both historical perspective on the evolution over time of the nomination process in the United States and comparative perspective on how other major democracies structure this process. The central organizing theme of this piece is the contrast between nomination processes that entail a central role for “peer review”—in which party leaders have a central voice in the selection of their parties’ nominees—and purely populist selection methods, in which ordinary voters completely control the selection of nominees and party figures have no special role. The first half of the Article is historical and focuses on the United States. In the 1970s, the United States shifted almost overnight from the methods that had been used for nearly 200 years to select party nominees, in which official representatives of the political parties played the major role in deciding the parties’ candidates for President, to a purely populist mode (primaries and caucuses) for selecting presidential nominees. The consequences of this dramatic transformation have manifested themselves in recent presidential nomination contests. In this Part, we seek to show both how radical the change was that was made in the 1970s and yet how accidental, contingent, and inadvertent this transformation was. The “framers” of these changes did not actually intend to create the system with which we ended up, in which the primaries and caucuses completely determine the parties’ nominees. The second half is comparative and explores how other major democracies structure the process of choosing party leaders and candidates for chief executive. This part shows that the U.S. system is an extreme outlier among major democracies: In no other democracy is the selection completely controlled by the mass of ordinary voters. Most other democracies use systems of pure peer review to select candidates for chief executive; or use systems that mix elements of peer review with popular participation; and in other ways continue to give official representatives of the parties much greater say than in the United States over the selection of the parties’ nominees for chief executive.

As Americans, we take for granted that those we entrust with significant authority have been judged by their peers to be competent at the task. Peer review is a concept commonly accepted in most professions. For instance, in medicine “peer review is defined as ‘the objective evaluation of the quality of a physician’s or a scientist’s performance by colleagues.’” That is why we license plumbers, electricians, manicurists, doctors, nurses, and lawyers. We do this in most aspects of life—except politics. In 2016, Americans nominated and then elected Donald Trump, the most unqualified (by virtue of traditional measures of experience and temperament) person ever elected to the Office of the President of the United States, in a system without peer review. This Article is an argument for the restoration of some modicum of peer review in the modern nominating system of both major political parties.

For many centuries, political communities have contrived nominating systems that seek to attain similar goals across different countries—protecting the community from overly ambitious and powerful leaders, and uniting rather than dividing communities at election time around leaders with broad-based appeal. They have done so by resort to procedures that recur almost invariably—procedures framed to avoid plurality victories in multicandidate contests and to insulate nominators’ decisions from outside influence, including the influence of fellow voters’ decisions. One is struck by how painstakingly our forebears worked out the problems of nominations over time, with recurring themes and methods, which (ironically in this age of information) find no echo today in our own presidential nominating system.

In Gibbons v. Ogden, the first Supreme Court decision to discuss the Commerce Clause, Chief Justice John Marshall endorsed the notion of a Dormant Commerce Clause but refused to adopt it as constitutional principle. In this article, Professor Norman Williams answers why Marshall hedged on the Dormant Commerce Clause. First, Marshall apprehended the need to provide a comprehensive articulation of the scope of Congress’s affirmative regulatory power under the Commerce Clause. Second, Marshall was wary of inserting the judiciary into another battle regarding the constitutional scope of state authority. This reassessment resolves an otherwise inadequately explained historical puzzle regarding the Marshall Court and sheds light upon contemporary debates regarding popular constitutionalism and the interpretive role of the Supreme Court.