Things to Read This Week (7/21)
Our long-promised Gienapp piece, and other things
Steve Sachs and I have a piece responding to Jonathan Gienapp’s Against Constitutional Originalism: Yes, The Founders Were Originalists.
It’s part of a forthcoming symposium in the Yale Journal of Law & the Humanities. I hope you read the whole thing, as they say.
The Founders’ Common-Law Empire, by Christian Burset, also forthcoming in YJLH: “[T]his Essay offers a reappraisal of the Northwest Ordinance, arguing that it embodied a distinctive imperial vision that differed both from its British predecessor and from its post-1898 successor. That vision emphasized not only statehood but also a particular approach to pre-statehood governance. The key to understanding it lies in one of the Ordinance’s least-studied provisions: that the ‘French and Canadian inhabitants’ of Illinois might retain ‘their laws and customs now in force among them, relative to the descent and conveyance, of property.’ By explaining that obscure phrase, this Essay illuminates the kind of empire that the Ordinance was meant to build—and, perhaps, suggests some new ways to think about the American empire today.”
Breaking Kayfabe, by Thomas Bennett. Very interesting exploration of the analogy between the official fictions of professional wrestling and of U.S. Supreme Court decision making — and of course relevant to and slightly critical of Baude & Sachs, The Official Story of the Law.
That little studied provision in the Northwest Ordinance, must have been an influence on the first (1818) Illinois Constitution's "grandfathering" of French slavery. By one estimate, 40% of French households owned slaves and with Anglo migration from the Upper South, slavery was not uncommon. There was a push to legalize slavery in Illinois in the 1820s that lost in a referendum after gaining two-thirds support in the both chambers of the legislature for the referendum.
The linked essay isn't focused on slavery and posits the French-Americans in Illinois were largely happy with Common Law property law so the civil law option faded in Illinois. I suspect part of what happened is that those most concerned about British (and then American) law and customs migrated to what is now Missouri, which had been part of the same French colony.