Marco Basile (Alexander Fellow, New York University School of Law) has posted The Splintering of American Public Law (University of Chicago Law Review, Volume 92 (forthcoming 2025)) (72 pages) on SSRN. Here is the abstract:
Constitutional tradition has never been more consequential for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of "public law" that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.
This Article argues that U.S. constitutional law and international law diverged only 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. As their modes of enforcement diverged, their shared features became obscured.
By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from a past that did not categorize public law in the precise ways we do today. By integrating the legal histories of western empire and the gutting of Reconstruction, it shows that regressive policies after the Civil War were enabled not only by judicial supremacy, as new scholarship emphasizes, but also judicial deference underscoring that the causes transcended the role of courts. And by showing that the earlier understanding of public law retreated for reasons that obscured, rather than erased, constitutional and international law's shared features, the Article ultimately invites us to reimagine public law in a more integrated way today.
This is an interesting paper with an important point about how people thought about public law in the nineteenth century. I'm not entirely sure what (if any) implications it has for originalism but I think originalists need to think about it.
Posted at 6:05 AM