kurt lash
@kurtlash1
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E. Claiborne Robins Distinguished Chair in Law; Richmond School of Law; Constitutional History & Law;
Richmond, VA
Joined May 2012
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1/ On this day in 1865, the House of Representatives reversed a prior vote and passed the Thirteenth Amendment, abolishing slavery. The galleries which were packed that day exploded into unending applause.
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The paragraph from C.J. Robert's opinion in the Chevron case:
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1/ The “I Have a Dream" speech is one of the most extraordinary speeches in American history. You should read it again. First, a few thoughts about the common American heritage Dr. King relied upon in calling Americans to rededicate themselves to the unfinished work of freedom.
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"The idea that the 14th Amendment gives the president unilateral power to borrow is dangerous nonsense."
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They've arrived from University of Chicago Press and I think they're beautiful. 10 years in the making. Ebook version word searchable.
Volume 1 will be released on April 9th. Volume 2 on April 15th.
More information soon.
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Likely what will come to be the most important statement in Masterpiece is from the concurrence of Gorsuch and Alito:
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2/ Standing among the members on the floor that day, almost certainly, was the representative from the Territory of New Mexico, Francesco Perea. My great-great Grandfather.
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This is just stunning. Anti-Catholic bigotry is not surprising, but the smug sense of security in a high profile statement of animus is startling.
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So we are in the middle of it. The "was Lincoln correct to suspend habeas," "did FDR's efforts extend the Great Depression," "why did anyone think internment camps were necessary," "can Truman seize the steel mills" scenario. It was all so easy in class.
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1/ Stanford historian Jack Rakove has an essay on originalism in today’s Washington Post (if you subscribe, you can find it). A long-time critic of originalism, Rakove insists the first “coherent” use of originalism is in Madison’s Jay Treaty speech of 1796. Rakove’s wrong.
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Taught Marbury v. Madison this week. Describing the intense ideological divide btwn the political parties in 1800, I explained "Back then, the two parties hated each other and viewed their political enemies as seditious!" Received a long and robust laugh. I smiled. Good start.
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I am rather stunned that I am the keynote speaker for the University of Chicago's Constitutional Law Institute's Inaugural Conference.
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7/ Then, in one of the most amazing passages in American history, Martin Luther King calls on every American to share his dream. It is the most American of dreams, rooted in Declaration of Independence, the belief in God and the self-evident truth that all men are created equal.
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2/ Dr. King delivered his speech in what he called the “hallowed spot” of the Lincoln memorial. More than a picturesque backdrop, King relied on America’s reverence for Lincoln and the common celebration of Lincoln’s words and acts, especially the Emancipation Proclamation.
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Incredibly honored to be giving the Constitution Day Lecture for the Library of Congress. Previous lectures by Michael Klarman, Akhil Amar and Robert George, among others.
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For those following the originalism vs common good constitutionalism debate: I've read no better or more helpful paper than the latest by Joel Alicea "The Moral Authority of Original Meaning." Essential.
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Going to spend the next few months reconciling J. Barrett's opinion in Munoz (today) with Barrett's concurrence in Rahimi (also today).
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Join us at the University of Chicago Law School for a discussion of Constitutional Reconstruction. This is going to be great!
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3/ “Five score years ago…” King echoes the words of the Gettysburg Address. Like Lincoln, King invokes the Declaration of Independence and the fundamental principles of American freedom, “life, liberty and the pursuit of happiness.” Every person in that crowd knew these words.
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Top ten cited legal historians at American law schools. Making the cut for this "Leiter list" is a very big deal to me. Rather stunning company.
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Just arrived! Very proud of this one. Despite scholarly claims to the contrary, the people of 1868 did indeed understand references to the bill of rights” as the first ten amendments.
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6/ Carved into the wall behind Dr. King was Lincoln’s Second Inaugural and his plea to act “with malice towards none.” Likewise, King beseeched his followers “not to seek to satisfy our thirst for freedom” with “bitterness and hatred” and violent protest.
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The study of antebellum and Reconstruction era debates over the relationship between slavery and the original Constitution should be an essential aspect of a well-trained American lawyer’s legal education. This study should include Dred Scott, but much more. /1
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@Richard_Primus
@_John_Mikhail
"Newspaper reports from as early as 1864 describe black and white visitors sitting together in the House galleries. By the time the 13th Amendment passed the House in 1865, desegregated galleries had been a common sight in the House for almost a year."
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12/fin. Read the speech again. As you do, hear how Dr. King draws from the deep well of common American culture and beliefs. Read his speech on this day and contemplate its power. Contemplate what we have lost.
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4/ The Declaration, Constitution and Emancipation Proclamation declared and established the fundamental American principles of freedom that all Americans knew and believed in. But these principles and promises remained unfulfilled for black Americans.
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#Milkyway
over Meadowbrook Park, Champaign-Urbana, Illinois.
@Illinois_Alma
@UIPhoto
http://t.co/1Me25IyIDR
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Akhil Amar in the WSJ on the Court's forthcoming reversal of Roe v. Wade: Roe was wrong, the draft opinion is flawed but fine, and the constitutional sky will not fall.
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The second half of the Constitution in five minutes! Fun to join
@McCormickProf
and others in these short videos on the Constitution.
NEW! How did thirteen separate colonies become the United States of America? The answer is found in the second half of the American Constitution—Articles IV through VII.
@kurtlash1
, Professor of Law at the University of Richmond, explains.
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Nice review in the Wall Street Journal of the new Reconstruction Amendments exhibit at the
@ConstitutionCtr
. And, yes, I'm extremely proud to have played a part in this fantastic addition to the Center! See:
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9/ “My country tis of thee…” King then descends from the glorious heavens to most mundane and commonplace experiences of every American child—the pledge of allegiance and song that once began every day in every school in America.
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Justice Thomas writes separately in Allen v. Cooper to reject the proposition that "stare decisis" demands a "special justification" before an erroneous precedent can be overruled.
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5/ Lincoln’s audience knew the history of slavery and many had suffered personal loss in the ongoing war. Dr. King’s audience knew the history of violent racism, segregation, and unequal economic opportunity. The Proclamation freed the slaves, “but the Negro still is not free.”
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8/ “The crooked places made straight…” King soars and soars, carrying all America with him, up to the very throne of God. Earthly ideas fade away. This is the word of God, spoken in the Book, known to every American, declared in houses of worship throughout America.
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10/ “Let freedom ring . . .” From this humble piece of cloth, indelibly stamped into the memory of every American, King lets the song of freedom ring from every mountain side, from the New Hampshire peaks to Stone Mountain, Georgia and its carving of Davis, Lee and Jackson.
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Pretty sure I've read this same article every year or two since I started teaching a quarter century ago. And yet, originalism goes on. One reason, perhaps, is that critics rarely bother to learn, or accurately describe what originalism is. /1
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Posted at SSRN: "Roe and the Original Meaning of the 13th Amend." A deep dive into the historical evidence establishing the 13th as constitutionalizing Nw Ordinance's Art. VI. Far from supporting Roe, it prohibits treating women or the unborn as property.
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11/ Having given America a dream formed from the clay of American culture and beliefs, King then takes us to the promised land. We live this dream to “speed up that day” when we will be brothers and sisters in the kingdom of God, where ALL of us will be free at last.
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"Mr. Youngkin has rebranded the DEI bureaucracy as the Office of Diversity, Opportunity and Inclusion, emphasizing a commitment to equality and a level playing field, not equity and manufactured outcomes."
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8/ Despite Rakove’s decades-long effort to disparage originalism as somehow violating the understanding of the Founders, the historical record makes it clear that originalism has been with us from the beginning, articulated by the father of the Const. before the ink was dry. Fin.
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Politically motivated attacks on the court are exactly what Madison and the framers expected. Enforcement of const. limitations on government power requires a court insulated from ordinary politics. Thus, Biden's proposed "code of conduct" is simultaneously unconstitutional &
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Very happy to have two of my works cited by Justice Thomas in his concurrence today in US v. Vaello Madero.
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How General Grant Saved the 14th Amendment:
A Thread for Ulysses S. Grant’s Birthday
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On the Fall Equinox at University of Illinois, sunset lines up with Kirby/Florida Avenue.
@Illinois_Alma
@news_gazette
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I was honored to join the team celebrating the grand opening of the new Reconstruction Amendments (13th, 14th, and 15th) exhibit at the National Constitution Center.
@ConstitutionCtr
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My newest: How the 1791 amendts became commonly known as "the Bill of Rights" btwn the Founding & Reconstruction. Scholars like
@RandyEBarnett
@evanbernick
&
@ilan_wurman
claim the 10amends did not become the "bill of rights" prior to 1900s. Au contraire.
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My latest paper is quoted in J. Thomas's majority opinion in Bruen today. The ink is barely dry on this one! Forthcoming 97 Indiana Law Journal 1439 (2022)
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@pojanowski
Vermeulian Conservative common law constitutionalism,
Phase 1: drop originalism.
Phase 2: drop conservatism
Phase 3: drop constitutionalism
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Just accepted an offer from Yale University Press to publish my next book, "A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War." It's the story about how we almost did NOT get the 13th, 14th, and 15th Amendments. Very pleased!
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Looking forward to joining Judge Luttig to discuss Section 3 and Donald Trump next Tuesday at UVA (in the Rotunda Dome Room, no less). We’ve both submitted amicus briefs (taking opposite positions)(), so this should be a lively debate!
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The Federalist Papers likely played a more important role in the passage of the Reconstruction Amendments than they did for the original Constitution. The key essays were not what modern scholars assign (see Sanford Levinson) but Mad's essays on federalism
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On July 30, I'll travel to Oxford, England, to give the keynote address celebrating Quill Project's launch of this remarkable new database. Can't wait!
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Roosevelt's failed effort to add several SCt justices and "pack the court" has become part of our constitutional tradition. "Court packing," whatever its name or form, dangerously undermines our modern constitutional tradition of a politically independent Supreme Court. /fin
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Although not textual, there are constitutional traditions viewed as establishing important const. principles. For example, students learn the early failed effort to remove SCt Justice Chase established an important principle of SCt independence from political impeachment./1
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@ThatEricAlper
Christopher Plummer, Sound of Music. He hated the role, and his attitude gave a sharpness to his acting that was perfect. Huge hit. And deservedly so.
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In the United States, the answer to the question "Is today Constitution Day?" is always "Yes."
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Great gathering of amazing scholars at University of Richmond School of Law to discuss Randy Kozel's "Settled vs. Right: A Theory of Precedent."
@lsolum
Jason Mazzone, Allison Larsen, Fred Schauer,
@HorwitzPaul
@StephenESachs
Corrina Lain
@lawproflain
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Clever Churchgoers Avoid Arrest By Disguising Themselves As Rioters | The Babylon Bee
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"The 14th Amendment at 150: America's Second Founding" - Institute for Justice
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1/ On this day in 1866, The House of Representatives passed the final version of what became the 14th Amendment. It had been a grueling first session of the 39th Congress. It began with the Republican’s decision to exclude representatives from the former rebel states.
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Two takeaways from this marvelous paper by
@sherifgirgis
: First, the court shd end this "deeply rooted" nonsense and embrace the original meaning of the 14thA. Second, "the dead hand of the middle-past" is an unforgettable line and one of the best I've read in years.
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@lsolum
’s Op-Ed: Amy Coney Barrett is an originalist. Should we be afraid? - Los Angeles Times. Excellent.
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@lawscholar
No. The war was necessary but not sufficient. Without this parchment, slavery would have continued.
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Always great to be cited by the Supreme Court. In this case, J. Alito's concurring opinion in Fulton v. Phil. (along with
@shbarclay
and
@VPhillipMunoz
).
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Newsweek has just published my latest essay, calling for the adoption of a Parents Right Amendment. Currently, nothing in the Constitution expressly protects the right of parents to control the education and upbrining of their children. That should change.
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Just posted: The only historically verifiable understanding of Section Three was that it applied to still living participants in the recent rebellion. All else, including whether it applied to persons seeking the office of President, is ambiguous.
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Two valuable books on slavery & early American history. Found Wilentz's more informative & constitutionally relevant. Oddly, despite Larson's Founding-era focus, it is only Wilentz that presents one of the most important quotes in American history: "Mr. Madison thought it wrong
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3/ According to Madison, “In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide” and that “Cotemporary and concurrent expositions are reasonable evidence of the meaning of the parties.”
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Good for Jamelle Bouie for calling attention to the texts and history of the 14th Amendment. Even though it’s for partisan purposes, the more attention the better. But Bouie makes one historical claim that is too incorrect to ignore . . ./1
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I am please to say that my new article "The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to
@RandyEBarnett
and Bernick" has been accepted by the
@NotreDameReview
and will be posted to SSRN shortly.
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Extraordinary and wonderful addition to the Georgetown law faculty!
I’m happy to share that I’ll be joining the faculty at
@GeorgetownLaw
as a professor of law with tenure this fall. I’ll also serve as faculty co-director of the Georgetown Center for the Constitution (
@GUConstitution
). My family and I are excited for this next chapter!
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David Schwartz has posted his response to my review of his book "The Spirit of the Constitution"(). He begins, "Kurt Lash is a superb constitutional scholar trapped inside the body of an originalist." I'm thinking about adding that to my faculty webpage...
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Watching the sunset after the storm at Barnhart Prairie Nature Preserve outside Champaign-Urbana.
@UIAA
@UIPhoto
@visitchampaign
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Just finished this wonderful new book by
@katemasur
. To understand the Reconstruction Amendments, you must understand antebellum constitutional and civil rights debates.
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1/ Legal historians seeking the original understanding of the Fourteenth Amendment need to realize that doing so requires a different approach than researching the original meaning of the 1787 federal Constitution.
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Amy Coney Barrett, professor at Notre Dame and former clerk to Justice Scalia, to the Seventh Circuit in Chicago.
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Released today, "The Reconstruction Amendments: Essential Documents" (Volume 1) (Part 1: The Antebellum Constitution, Part 2: The Framing and Ratification of the Thirteenth Amendment).
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Whether or not one views the Dobbs majority as consistent with "originalism," the joint dissent is expressly Anti-Originalism. With an emphasis on Anti.
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1/ At the Richmond Airport, my wife noticed a large number of young men and women in uniform sitting around with their duffle bags. When she asked, she learned they were heading home on a two week break for the holidays (perfectly safe as they have been in quarantine).
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Looking forward to discussing the Privileges or Immunities of Citizens of the United States with
@marthasjones_
at Gettysburg College later this month!
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Virginia Law Review will publish my latest article "Becoming the Bill of Rights: The 1791 Amendments from the Founding to the 14th Amendment." When John Bingham announced his proposed amendment would enforce the "Bill of Rights," what did he mean?
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2/ In his 1796 speech, Madison refers to his 1791 speech on the US Bank, delivered 3 years after ratification while the Bill of Rights remained pending in the States. Here, Madison presented a fully articulated originalist theory of constitutional interpretation.
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A most enjoyable and civil debate with
@judgeluttig
in UVAs Rotunda! Thanks to the Karsh Institute for sponsoring. Recording available soon.
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