Matthew S Brogdon | Utah Valley University (original) (raw)
Articles and Chapters by Matthew S Brogdon
Perspectives on Political Science, 2018
In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue that is ce... more In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue that is central to Ford's films and to Lincoln's political thought. That issue is the tension between individual greatness and the rule of law, a tension heightened in a democracy by the demos's passion for equality. In the film's portrayal of Lincoln, Ford and Trotti suggest a solution to this tension that is fundamentally consistent with the one Lincoln suggested in the Lyceum Address. To remain within the political community, the great man must hold a sincere reverence for the law and be willing to exhibit humility in declaiming his own superiority. In the context of these characteristics, greatness can be a force that preserves the law and protects the community from harm. The film depicts Lincoln as the paradigmatic combination of these characteristics and alludes to his mature leadership based on these commitments in his later career.
Readings in American Government, 9th ed., edited by Nichols and Nichols, 2013
The Review of Politics, 2011
This essay contends that we can better understand Andrew Jackson’s distinctive account of federal... more This essay contends that we can better understand Andrew Jackson’s distinctive account of federalism by looking outside the Jeffersonian and Jacksonian political traditions. More appropriate peers for Jackson, as a constitutional statesman, are John Marshall and Abraham Lincoln. Existing treatments of Jackson miss these connections because they focus primarily on his roles as party leader and reformer, to the neglect of his constitutional statesmanship. A major cause of this neglect is the apparent inconsistency between Jackson’s “nationalist” account of the Union in the Nullification Proclamation and his advocacy of “states’ rights” elsewhere, a tension that can be resolved by a closer reading of Jackson’s rhetoric. Among other things, this redefinition of Jackson’s legacy demonstrates that there is no necessary tension between a strong Union and meaningful limits on federal power; nor is there a necessary affinity between narrow construction of federal power and state compact theory.
American Political Thought, Apr 2016
This essay revisits the constitutional dimensions of the debate on inferior courts in the First C... more This essay revisits the constitutional dimensions of the debate on inferior courts in the First Congress. The basic question in the debate revealed the contested character of the new constitutional order and probed the extent to which it constituted a displacement of the old confederation order. Advocates of extending the federal courts, led by James Madison and Fisher Ames, employed the text of Article III to insist on the constitutional necessity of inferior courts, while the opposition relied on textual support for legislative discretion in the matter of judicial structure. I contend that by preserving and thus biasing certain arguments and by allowing those arguments to be made in terms of an appeal to higher law, the text leant weight to the Federalist position and thus demonstrated its capacity to shape the direction of institutional development in important ways.
American Political Thought: A Journal of Ideas, Institutions, and Culture, 2017
The modern shift toward abstract review and discretionary jurisdiction has heightened perennial c... more The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Unable to “obviate all interference between the federal and state governments,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became a principal function of the Court. In this way, the framers laid the groundwork of modern controversy over the political dimensions of judicial review in the institutional architecture of the Constitution.
Publius: The Journal of Federalism, 2018
The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction... more The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction over state courts. Conventionally, we tend to view controversy over judicial federalism through the lens of the Jeffersonian and Jacksonian eras, in which this appellate oversight functioned to consolidate the power of national institutions against the periphery and defenders of states’ rights promoted the independence of state courts from federal oversight. But the deliberative process that attended the formation of the federal judiciary exhibited a more complex dynamic that presented the framers of the Constitution and of the first judiciary act with a range of possible institutional arrangements. Given the available alternatives, the Supreme Court’s appellate oversight was not so much an aggression on states’ rights as a concession to those wary of consolidation. Rather than being contested, it in fact formed a ground of consensus as a modest means of ensuring federal supremacy.
Interpretation: A Journal of Political Philosophy, 2018
This essay considers two works of fiction to assess the merits of private violence as a responsib... more This essay considers two works of fiction to assess the merits of private violence as a responsible form of political action. Frederick Douglass’s Heroic Slave holds up a slave named Madison Washington, the leader of the successful uprising on the slave ship Creole, as an exemplar of the responsible use of violence. Herman Mellville’s better-known Benito Cereno recounts the aftermath of a similar uprising on a Spanish slave-ship. But Melville’s story, while sympathetic to the plight of the oppressed, suggests that efforts to combat oppression through private violence are potentially tragic. Douglass’s acceptance of violent revolt as a means of liberation and progress rests on his assumption that rhetorical leadership can effectively constrain the passions. By contrast, Melville’s work challenges the assumption that, even in a just cause, private violence can be employed with this sort of dignified self-restraint or validate the claim of the oppressed to their natural rights.
American Political Thought
The modern shift toward abstract review and discretionary jurisdiction has heightened perennial c... more The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Unable to “obviate all interference between the federal and state governments,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became a principal function of the Court. In this way, the framers laid the groundwork of modern controversy over the political dimensions of judicial review in the institutional architecture of the Constitution.
American Political Thought
The modern shift toward abstract review and discretionary jurisdiction has heightened perennial c... more The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Unable to “obviate all interference between the federal and state governments,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became a principal function of the Court. In this way, the framers laid the groundwork of modern controversy over the political dimensions of judicial review in the institutional architecture of the Constitution.
Conference Papers by Matthew S Brogdon
Southern Political Science Association, 2022
Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to ... more Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to renewed criticism of the attribution of constitutional liberty rights to corporations. This paper examines the development of the corporate form as an institutional vehicle for the exercise of civil liberties. It concludes that, in the broader sweep of American constitutional development, the rights-bearing corporation has been a crucial component of the constitution of civil liberties. What began as a vehicle for state preferences first became a vehicle for disestablishment of religion through the privatization of sectarian colleges and churches and for free exercise of religion by providing a legal form for religious communities apart from state endorsement. Later in the nineteenth and early twentieth centuries, the corporate form became a vehicle for dissident social action through expressive associations, including advocacy organizations like the NAACP and ACLU, minority religions like the Jehovah's Witnesses, and media organizations. If this is true, then rolling back the rights of associations would amount to a recission of civil liberties, or at least of the instrumentality through which civil liberties are in fact effectively exercised, especially by disfavored groups.
JMC Lincoln Symposium, 2021
Tocqueville insisted that it is the task of the statesman in democratic ages to "elevate the indi... more Tocqueville insisted that it is the task of the statesman in democratic ages to "elevate the individual beside society and to sustain him in the face of it." Among his proposed means of sustaining the individual was reliance on corporate bodies as "great artificial persons." This essay picks up on Tocqueville's insight to argue that the corporate form has been essential to the development of the right to free association in American constitutionalism. It remains essential to the vigor of that right and accordingly to the effective enjoyment of a panoply of other civil liberties. This approach diverges sharply from the usual treatment of the corporate form in American constitutionalism. The erection of barriers to regulation of private corporations, which receive their legal existence from the state but enjoy insulation from subsequent state control, is usually understood in essentially economic terms. The corporation is, to be sure, central to the development of modern capitalism. But it is just as critical to the enjoyment of civil liberties. The corporate form is the institutional means by which we construct and maintain a robust civic space occupied by mediating institutions that stand between the public and the private. Looking at the corporate form in this way builds on George Thomas's reframing of Dartmouth College v. Woodward (1816) as a site for working out church-state relations as applied to higher education in American constitutional development (Thomas 2015). In the broader sweep of American constitutional development, the emergence of private corporations is a crucial component of the constitution of civil liberties, quite apart from property rights as such.
This paper examines the threat to the institutional integrity of the federal judicial power posed... more This paper examines the threat to the institutional integrity of the federal judicial power posed by the modern administrative state and its disdain for the formal separation of powers that pervades the framers’ Constitution. I proceed by first elaborating what I mean by the institutional integrity of the judicial power. This consists principally of an interpretation of the text of Article III and its relationship to those provisions of the Constitution empowering Congress to structure and regulate the judicial power. In part two I give a brief account of the Supreme Court’s principal decisions touching on the institutional integrity of the judicial power, beginning with the justices’ early decisions on circuit vindicating the constitutional scheme of separation of powers and tracing out the Court’s subsequent gradual embrace of the alienation of the judicial power from Article III courts in the nineteenth and twentieth centuries. I then turn in the last section to consider possible remedies for the pervasive neglect of the institutional integrity of the judicial power and the prospects for a constitutionally appropriate solution. Any observer considering those prospects at the turn of the twenty first century would have had little reason to hope for any feasible remedy; but the Court’s recent decisions on the status of agency adjudicators as inferior officers and the emergence of strong dissenting voices on the Court articulating a sounder approach to non-Article III courts provides some ground for hope.
In February of 1925, Congress passed an act that would, within a few years’ time, effectively giv... more In February of 1925, Congress passed an act that would, within a few years’ time, effectively give the Supreme Court discretionary control of its own docket. It was among the most significant augmentations of the Court’s institutional capacity since the creation of the federal judiciary, rivaled only by the creation of the U.S. Courts of Appeal in 1891. Three months later, in May of 1925, the justices handed down a landmark decision in Gitlow v. New York (1925), which for the first time applied the free speech and press provisions of the First Amendment to the states. The case seized on the Court’s newfound jurisdictional independence and initiated the gradual application of the Bill of Rights to the states through the Fourteenth Amendment—what is commonly called selective incorporation—which is widely regarded as the heart of the “rights revolution” in the United States. Using this confluence of events as a case study, I hope to deepen our understanding of the interplay between the institutional shape of the judicial process and the substantive jurisprudence that results from it.
Drafts by Matthew S Brogdon
Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to ... more Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to renewed criticism of the attribution of constitutional liberty rights to corporations. This paper examines the development of the corporate form as an institutional vehicle for the exercise of civil liberties. It concludes that, in the broader sweep of American constitutional development, the rights-bearing corporation has been a crucial component of the constitution of civil liberties. What began as a vehicle for state preferences first became a vehicle for disestablishment of religion through the privatization of sectarian colleges and churches and for free exercise of religion by providing a legal form for religious communities apart from state endorsement. Later in the nineteenth and early twentieth centuries, the corporate form became a vehicle for dissident social action through expressive associations, including advocacy organizations like the NAACP and ACLU, minority religions like the Jehovah's Witnesses, and media organizations. If this is true, then rolling back the rights of associations would amount to a recission of civil liberties, or at least of the instrumentality through which civil liberties are in fact effectively exercised, especially by disfavored groups.
Book Reviews by Matthew S Brogdon
Political Science Quarterly, 2014
Kansas History: A Journal of the Central Plains, 2013
Dissertation by Matthew S Brogdon
This dissertation examines the constitutional underpinnings of twentieth-century developments in ... more This dissertation examines the constitutional underpinnings of twentieth-century developments in the structure and function of the federal judicial system. In the half-century between 1891 and 1939, the federal judiciary underwent its first complete reorganization since the First Congress passed the Judiciary Act of 1789. The result was rapid growth in the independence, extent, and power of federal courts. Congress first furnished the federal judiciary with the institutional means to extend its jurisdiction by increasing the number of federal trial courts and establishing a full set of intermediate appellate courts in 1891 to handle the bulk of federal judicial business. In the ensuing decades, Congress gradually relinquished control over the Supreme Court’s appellate jurisdiction, giving the Court nearly complete discretion over the composition of its own docket. Soon thereafter, Congress likewise turned over control of federal procedure to the Judicial Conference of the United Sta...
Perspectives on Political Science, 2018
In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue that is ce... more In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue that is central to Ford's films and to Lincoln's political thought. That issue is the tension between individual greatness and the rule of law, a tension heightened in a democracy by the demos's passion for equality. In the film's portrayal of Lincoln, Ford and Trotti suggest a solution to this tension that is fundamentally consistent with the one Lincoln suggested in the Lyceum Address. To remain within the political community, the great man must hold a sincere reverence for the law and be willing to exhibit humility in declaiming his own superiority. In the context of these characteristics, greatness can be a force that preserves the law and protects the community from harm. The film depicts Lincoln as the paradigmatic combination of these characteristics and alludes to his mature leadership based on these commitments in his later career.
Readings in American Government, 9th ed., edited by Nichols and Nichols, 2013
The Review of Politics, 2011
This essay contends that we can better understand Andrew Jackson’s distinctive account of federal... more This essay contends that we can better understand Andrew Jackson’s distinctive account of federalism by looking outside the Jeffersonian and Jacksonian political traditions. More appropriate peers for Jackson, as a constitutional statesman, are John Marshall and Abraham Lincoln. Existing treatments of Jackson miss these connections because they focus primarily on his roles as party leader and reformer, to the neglect of his constitutional statesmanship. A major cause of this neglect is the apparent inconsistency between Jackson’s “nationalist” account of the Union in the Nullification Proclamation and his advocacy of “states’ rights” elsewhere, a tension that can be resolved by a closer reading of Jackson’s rhetoric. Among other things, this redefinition of Jackson’s legacy demonstrates that there is no necessary tension between a strong Union and meaningful limits on federal power; nor is there a necessary affinity between narrow construction of federal power and state compact theory.
American Political Thought, Apr 2016
This essay revisits the constitutional dimensions of the debate on inferior courts in the First C... more This essay revisits the constitutional dimensions of the debate on inferior courts in the First Congress. The basic question in the debate revealed the contested character of the new constitutional order and probed the extent to which it constituted a displacement of the old confederation order. Advocates of extending the federal courts, led by James Madison and Fisher Ames, employed the text of Article III to insist on the constitutional necessity of inferior courts, while the opposition relied on textual support for legislative discretion in the matter of judicial structure. I contend that by preserving and thus biasing certain arguments and by allowing those arguments to be made in terms of an appeal to higher law, the text leant weight to the Federalist position and thus demonstrated its capacity to shape the direction of institutional development in important ways.
American Political Thought: A Journal of Ideas, Institutions, and Culture, 2017
The modern shift toward abstract review and discretionary jurisdiction has heightened perennial c... more The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Unable to “obviate all interference between the federal and state governments,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became a principal function of the Court. In this way, the framers laid the groundwork of modern controversy over the political dimensions of judicial review in the institutional architecture of the Constitution.
Publius: The Journal of Federalism, 2018
The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction... more The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction over state courts. Conventionally, we tend to view controversy over judicial federalism through the lens of the Jeffersonian and Jacksonian eras, in which this appellate oversight functioned to consolidate the power of national institutions against the periphery and defenders of states’ rights promoted the independence of state courts from federal oversight. But the deliberative process that attended the formation of the federal judiciary exhibited a more complex dynamic that presented the framers of the Constitution and of the first judiciary act with a range of possible institutional arrangements. Given the available alternatives, the Supreme Court’s appellate oversight was not so much an aggression on states’ rights as a concession to those wary of consolidation. Rather than being contested, it in fact formed a ground of consensus as a modest means of ensuring federal supremacy.
Interpretation: A Journal of Political Philosophy, 2018
This essay considers two works of fiction to assess the merits of private violence as a responsib... more This essay considers two works of fiction to assess the merits of private violence as a responsible form of political action. Frederick Douglass’s Heroic Slave holds up a slave named Madison Washington, the leader of the successful uprising on the slave ship Creole, as an exemplar of the responsible use of violence. Herman Mellville’s better-known Benito Cereno recounts the aftermath of a similar uprising on a Spanish slave-ship. But Melville’s story, while sympathetic to the plight of the oppressed, suggests that efforts to combat oppression through private violence are potentially tragic. Douglass’s acceptance of violent revolt as a means of liberation and progress rests on his assumption that rhetorical leadership can effectively constrain the passions. By contrast, Melville’s work challenges the assumption that, even in a just cause, private violence can be employed with this sort of dignified self-restraint or validate the claim of the oppressed to their natural rights.
American Political Thought
The modern shift toward abstract review and discretionary jurisdiction has heightened perennial c... more The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Unable to “obviate all interference between the federal and state governments,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became a principal function of the Court. In this way, the framers laid the groundwork of modern controversy over the political dimensions of judicial review in the institutional architecture of the Constitution.
American Political Thought
The modern shift toward abstract review and discretionary jurisdiction has heightened perennial c... more The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Unable to “obviate all interference between the federal and state governments,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became a principal function of the Court. In this way, the framers laid the groundwork of modern controversy over the political dimensions of judicial review in the institutional architecture of the Constitution.
Southern Political Science Association, 2022
Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to ... more Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to renewed criticism of the attribution of constitutional liberty rights to corporations. This paper examines the development of the corporate form as an institutional vehicle for the exercise of civil liberties. It concludes that, in the broader sweep of American constitutional development, the rights-bearing corporation has been a crucial component of the constitution of civil liberties. What began as a vehicle for state preferences first became a vehicle for disestablishment of religion through the privatization of sectarian colleges and churches and for free exercise of religion by providing a legal form for religious communities apart from state endorsement. Later in the nineteenth and early twentieth centuries, the corporate form became a vehicle for dissident social action through expressive associations, including advocacy organizations like the NAACP and ACLU, minority religions like the Jehovah's Witnesses, and media organizations. If this is true, then rolling back the rights of associations would amount to a recission of civil liberties, or at least of the instrumentality through which civil liberties are in fact effectively exercised, especially by disfavored groups.
JMC Lincoln Symposium, 2021
Tocqueville insisted that it is the task of the statesman in democratic ages to "elevate the indi... more Tocqueville insisted that it is the task of the statesman in democratic ages to "elevate the individual beside society and to sustain him in the face of it." Among his proposed means of sustaining the individual was reliance on corporate bodies as "great artificial persons." This essay picks up on Tocqueville's insight to argue that the corporate form has been essential to the development of the right to free association in American constitutionalism. It remains essential to the vigor of that right and accordingly to the effective enjoyment of a panoply of other civil liberties. This approach diverges sharply from the usual treatment of the corporate form in American constitutionalism. The erection of barriers to regulation of private corporations, which receive their legal existence from the state but enjoy insulation from subsequent state control, is usually understood in essentially economic terms. The corporation is, to be sure, central to the development of modern capitalism. But it is just as critical to the enjoyment of civil liberties. The corporate form is the institutional means by which we construct and maintain a robust civic space occupied by mediating institutions that stand between the public and the private. Looking at the corporate form in this way builds on George Thomas's reframing of Dartmouth College v. Woodward (1816) as a site for working out church-state relations as applied to higher education in American constitutional development (Thomas 2015). In the broader sweep of American constitutional development, the emergence of private corporations is a crucial component of the constitution of civil liberties, quite apart from property rights as such.
This paper examines the threat to the institutional integrity of the federal judicial power posed... more This paper examines the threat to the institutional integrity of the federal judicial power posed by the modern administrative state and its disdain for the formal separation of powers that pervades the framers’ Constitution. I proceed by first elaborating what I mean by the institutional integrity of the judicial power. This consists principally of an interpretation of the text of Article III and its relationship to those provisions of the Constitution empowering Congress to structure and regulate the judicial power. In part two I give a brief account of the Supreme Court’s principal decisions touching on the institutional integrity of the judicial power, beginning with the justices’ early decisions on circuit vindicating the constitutional scheme of separation of powers and tracing out the Court’s subsequent gradual embrace of the alienation of the judicial power from Article III courts in the nineteenth and twentieth centuries. I then turn in the last section to consider possible remedies for the pervasive neglect of the institutional integrity of the judicial power and the prospects for a constitutionally appropriate solution. Any observer considering those prospects at the turn of the twenty first century would have had little reason to hope for any feasible remedy; but the Court’s recent decisions on the status of agency adjudicators as inferior officers and the emergence of strong dissenting voices on the Court articulating a sounder approach to non-Article III courts provides some ground for hope.
In February of 1925, Congress passed an act that would, within a few years’ time, effectively giv... more In February of 1925, Congress passed an act that would, within a few years’ time, effectively give the Supreme Court discretionary control of its own docket. It was among the most significant augmentations of the Court’s institutional capacity since the creation of the federal judiciary, rivaled only by the creation of the U.S. Courts of Appeal in 1891. Three months later, in May of 1925, the justices handed down a landmark decision in Gitlow v. New York (1925), which for the first time applied the free speech and press provisions of the First Amendment to the states. The case seized on the Court’s newfound jurisdictional independence and initiated the gradual application of the Bill of Rights to the states through the Fourteenth Amendment—what is commonly called selective incorporation—which is widely regarded as the heart of the “rights revolution” in the United States. Using this confluence of events as a case study, I hope to deepen our understanding of the interplay between the institutional shape of the judicial process and the substantive jurisprudence that results from it.
Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to ... more Over the last decade, the Citizens United and Hobby Lobby cases, among others, has given rise to renewed criticism of the attribution of constitutional liberty rights to corporations. This paper examines the development of the corporate form as an institutional vehicle for the exercise of civil liberties. It concludes that, in the broader sweep of American constitutional development, the rights-bearing corporation has been a crucial component of the constitution of civil liberties. What began as a vehicle for state preferences first became a vehicle for disestablishment of religion through the privatization of sectarian colleges and churches and for free exercise of religion by providing a legal form for religious communities apart from state endorsement. Later in the nineteenth and early twentieth centuries, the corporate form became a vehicle for dissident social action through expressive associations, including advocacy organizations like the NAACP and ACLU, minority religions like the Jehovah's Witnesses, and media organizations. If this is true, then rolling back the rights of associations would amount to a recission of civil liberties, or at least of the instrumentality through which civil liberties are in fact effectively exercised, especially by disfavored groups.
This dissertation examines the constitutional underpinnings of twentieth-century developments in ... more This dissertation examines the constitutional underpinnings of twentieth-century developments in the structure and function of the federal judicial system. In the half-century between 1891 and 1939, the federal judiciary underwent its first complete reorganization since the First Congress passed the Judiciary Act of 1789. The result was rapid growth in the independence, extent, and power of federal courts. Congress first furnished the federal judiciary with the institutional means to extend its jurisdiction by increasing the number of federal trial courts and establishing a full set of intermediate appellate courts in 1891 to handle the bulk of federal judicial business. In the ensuing decades, Congress gradually relinquished control over the Supreme Court’s appellate jurisdiction, giving the Court nearly complete discretion over the composition of its own docket. Soon thereafter, Congress likewise turned over control of federal procedure to the Judicial Conference of the United Sta...
Publius, Aug 18, 2017
The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction... more The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction over state courts. Conventionally, we tend to view controversy over judicial federalism through the lens of the Jeffersonian and Jacksonian eras, in which this appellate oversight functioned to consolidate the power of national institutions against the periphery and defenders of states’ rights promoted the independence of state courts from federal oversight. But the deliberative process that attended the formation of the federal judiciary exhibited a more complex dynamic that presented the framers of the Constitution and of the first judiciary act with a range of possible institutional arrangements. Given the available alternatives, the Supreme Court’s appellate oversight was not so much an aggression on states’ rights as a concession to those wary of consolidation. Rather than being contested, it in fact formed a ground of consensus as a modest means of ensuring federal supremacy.
Publius: The Journal of Federalism, 2017
The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction... more The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction over state courts. Conventionally, we tend to view controversy over judicial federalism through the lens of the Jeffersonian and Jacksonian eras, in which this appellate oversight functioned to consolidate the power of national institutions against the periphery and defenders of states’ rights promoted the independence of state courts from federal oversight. But the deliberative process that attended the formation of the federal judiciary exhibited a more complex dynamic that presented the framers of the Constitution and of the first judiciary act with a range of possible institutional arrangements. Given the available alternatives, the Supreme Court’s appellate oversight was not so much an aggression on states’ rights as a concession to those wary of consolidation. Rather than being contested, it in fact formed a ground of consensus as a modest means of ensuring federal supremacy.
American Political Thought, 2016
This article revisits the constitutional dimensions of the debate on inferior courts in the First... more This article revisits the constitutional dimensions of the debate on inferior courts in the First Congress. The basic question in the debate revealed the contested character of the new constitutional order and probed the extent to which it constituted a displacement of the old confederation order. Advocates of extending the federal courts, led by James Madison and Fisher Ames, employed the text of Article III to insist on the constitutional necessity of inferior courts, while the opposition relied on textual support for legislative discretion in the matter of judicial structure. I contend that by preserving and thus biasing certain arguments and by allowing those arguments to be made in terms of an appeal to higher law, the text lent weight to the Federalist position and thus demonstrated its capacity to shape the direction of institutional development in important ways.
Perspectives on Political Science, 2016
ABSTRACT In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue t... more ABSTRACT In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue that is central to Ford's films and to Lincoln's political thought. That issue is the tension between individual greatness and the rule of law, a tension heightened in a democracy by the demos's passion for equality. In the film's portrayal of Lincoln, Ford and Trotti suggest a solution to this tension that is fundamentally consistent with the one Lincoln suggested in the Lyceum Address. To remain within the political community, the great man must hold a sincere reverence for the law and be willing to exhibit humility in declaiming his own superiority. In the context of these characteristics, greatness can be a force that preserves the law and protects the community from harm. The film depicts Lincoln as the paradigmatic combination of these characteristics and alludes to his mature leadership based on these commitments in his later career.
Perspectives on Political Science
Abstract Taking seriously Tocqueville’s admonition that colonial experience is the proper “point ... more Abstract Taking seriously Tocqueville’s admonition that colonial experience is the proper “point of departure” for understanding the American regime and its constitution, this essay examines the development of free exercise protections and disestablishment of religion in the foundational laws of the American colonies. Like other studies of church-state relations, this examination largely bears out Madison’s pithy analysis in The Federalist. “In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects.” Growing religious diversity was a harbinger of religious liberty in early American constitutionalism. Yet the extension of free exercise protections and the curtailment of church establishments also depended on patterns of thought endemic to the theology of seventeenth- and eighteenth-century Americans, shared principles that predated the proliferation of enlightenment liberalism in America. This narrative cautions against grounding religious liberty entirely in modern liberalism; colonial Americans did not adopt religious liberty as a result of secularization, but to protect their communities of faith from political threats. A conception of church-state relations that exudes hostility to faith is not likely to be durable. A robust religious liberty must thus be grounded in, or at minimum consonant with, the convictions the devoutly religious.
Publius: The Journal of Federalism, 2017
The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction... more The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction over state courts. Conventionally, we tend to view controversy over judicial federalism through the lens of the Jeffersonian and Jacksonian eras, in which this appellate oversight functioned to consolidate the power of national institutions against the periphery and defenders of states’ rights promoted the independence of state courts from federal oversight. But the deliberative process that attended the formation of the federal judiciary exhibited a more complex dynamic that presented the framers of the Constitution and of the first judiciary act with a range of possible institutional arrangements. Given the available alternatives, the Supreme Court’s appellate oversight was not so much an aggression on states’ rights as a concession to those wary of consolidation. Rather than being contested, it in fact formed a ground of consensus as a modest means of ensuring federal supremacy.
American Political Thought, 2016
This article revisits the constitutional dimensions of the debate on inferior courts in the First... more This article revisits the constitutional dimensions of the debate on inferior courts in the First Congress. The basic question in the debate revealed the contested character of the new constitutional order and probed the extent to which it constituted a displacement of the old confederation order. Advocates of extending the federal courts, led by James Madison and Fisher Ames, employed the text of Article III to insist on the constitutional necessity of inferior courts, while the opposition relied on textual support for legislative discretion in the matter of judicial structure. I contend that by preserving and thus biasing certain arguments and by allowing those arguments to be made in terms of an appeal to higher law, the text lent weight to the Federalist position and thus demonstrated its capacity to shape the direction of institutional development in important ways.
As a young statesman, Lincoln articulated his fear that demagoguery and the "mobocratic spir... more As a young statesman, Lincoln articulated his fear that demagoguery and the "mobocratic spirit" threatened to undermine the rule of law in the American polity. In Young Mr. Lincoln John Ford and Lamar Trotti tell a story that captures with striking clarity this central them in Lincoln's statesmanship and political thought. Portraying Lincoln as an emerging lawyer and politician in Springfield, Ford and Trotti resolve the tension among individual greatness, democratic politics, and the rule of law in the same way that Lincoln himself resolved it in his Lyceum Address: by modeling the way in which individual greatness and ambition can serve the rule of law and tame the passions of the mob. Thus, democratic leadership need not be caesarism.
Perspectives on Political Science, 2016
ABSTRACT In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue t... more ABSTRACT In Young Mr. Lincoln, director John Ford and screenwriter Lamar Trotti engage an issue that is central to Ford's films and to Lincoln's political thought. That issue is the tension between individual greatness and the rule of law, a tension heightened in a democracy by the demos's passion for equality. In the film's portrayal of Lincoln, Ford and Trotti suggest a solution to this tension that is fundamentally consistent with the one Lincoln suggested in the Lyceum Address. To remain within the political community, the great man must hold a sincere reverence for the law and be willing to exhibit humility in declaiming his own superiority. In the context of these characteristics, greatness can be a force that preserves the law and protects the community from harm. The film depicts Lincoln as the paradigmatic combination of these characteristics and alludes to his mature leadership based on these commitments in his later career.
Perspectives on Political Science
Abstract Taking seriously Tocqueville’s admonition that colonial experience is the proper “point ... more Abstract Taking seriously Tocqueville’s admonition that colonial experience is the proper “point of departure” for understanding the American regime and its constitution, this essay examines the development of free exercise protections and disestablishment of religion in the foundational laws of the American colonies. Like other studies of church-state relations, this examination largely bears out Madison’s pithy analysis in The Federalist. “In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects.” Growing religious diversity was a harbinger of religious liberty in early American constitutionalism. Yet the extension of free exercise protections and the curtailment of church establishments also depended on patterns of thought endemic to the theology of seventeenth- and eighteenth-century Americans, shared principles that predated the proliferation of enlightenment liberalism in America. This narrative cautions against grounding religious liberty entirely in modern liberalism; colonial Americans did not adopt religious liberty as a result of secularization, but to protect their communities of faith from political threats. A conception of church-state relations that exudes hostility to faith is not likely to be durable. A robust religious liberty must thus be grounded in, or at minimum consonant with, the convictions the devoutly religious.