What is the difference between advertising and news? This essay examines the rise of this dilemma and its precarious resolution in the formative era of modern advertising and press commercialization in Britain, c. 1848–1914, with particular attention to legal powers mobilized in the process. The essay traces a dialectical process, which began with the midcentury campaign to repeal taxes on the press, one of which was the advertisement duty. The campaign framed advertising as a communication of essential information. Its success gave full reign to advertising in the newspaper press, but also triggered a readjustment: Newspaper owners soon faced a threat to their effective control of the medium; their proprietary power to differentiate advertising from their self-proclaimed business - news - was put to the test. Owners' responses established a hierarchic distinction between news and advertising, along an informational metric: advertising was framed as an inferior kind of information, more biased than news. The hierarchy became embedded as a common sense to the point that the process of historical creation has been forgotten; yet, it asserted a difference between news and ads which had little to hang on in theory and practice, giving rise to challenges which still resonate today.

In 1788, a Dutch-born minister in upstate New York named Lambertus De Ronde translated the U.S. Constitution into Dutch. Five years later, a legal scholar in the Netherlands, Gerhard Dumbar, produced another Dutch translation of the U.S. Constitution. De Ronde's translation was printed on at least two separate occasions in 1788, and scores of editorial changes between the two printings demonstrate that De Ronde was working to make the text appealing and understandable to his audience. Dumbar, however, disparaged De Ronde's translation for its amateurish character. Dumbar claimed, furthermore, that a legal education, and not experience in an American context, was essential for understanding the Constitution. In an analysis of the context and language of these two early Dutch translations of the Constitution, this article contributes new perspectives on the transnational character and influence of the U.S. Constitution. This article argues that for the Dutch in New York, debates about ratification and interpretation of the U.S. Constitution, were as much concerned with local character and transnational currents as with national politics.

This article explores Washington's annotated copy of the Constitution and the Acts of Congress (hereafter called the Acts of Congress to remain consist with the label Washington had placed on the front cover) to reveal new insights into his constitutional interpretation. Held in a private collection until 2012, this article is the first to examine Washington's notations in the Acts of Congress for their value as statements about political authority. Washington's comments in the margins of his volume suggest an evolving view of presidential power and constitutional limitations on the executive branch as early as January 1790. His margin notes on the Acts of Congress served as blueprint for his defense of presidential authority and the expansion of the executive branch in the 1790s. Finally, the annotated Acts of Congress inserts Washington's ideas about the presidency into the debate surrounding originalism by revealing how his analysis of the language evolved to meet the demands of governing, leading him to reject the delegates' intent for Article II, Section 2 of the Constitution.

This essay considers how the cultural authority of the constitutional Founding became legal authority in antebellum America. Examining a series of cases implicating the constitutional politics of slavery, it illustrates how legal professionals grasped the public power of constitutional origin stories. To produce meanings and legitimate rulings, lawyers and judges wrote and reproduced narratives about slavery at the Founding, converting ascriptions of original constitutional visions in formal constitutional law. This power derived from the ongoing popular construction of the Founding as a venerated and authoritative moment containing unwritten intentions, understandings, and promises binding upon subsequent generations. The essay argues that these developments belong to the deep history of originalism. By approaching originalism as a form of constitutional politics integrating public memory culture and legal reasoning, the essay locates the central public and juridical dynamics of originalism emerging in struggles over the constitutional identity of slavery.

This symposium essay contends that the image of the common law drawn by the Supreme Court in the Confrontation Clause context is both distorted and incomplete. In particular, the Court and scholars defending originalist positions rely almost entirely on English sources in their reconstruction of the common law basis for the Confrontation Clause, thereby neglecting the diversity of American common laws from the time of the Founding, a diversity that has already been unearthed by a number of legal historians. By drawing on hitherto untapped sources to furnish a bottom-up reconstruction of how testimony was treated in local criminal courts within mid- to late-eighteenth-century New Jersey, this essay demonstrates that, in at least some jurisdictions, the originalist vision of common law did not apply. The common law cannot, therefore, furnish a univocal answer to questions about the original meaning of the Confrontation Clause.

Although constitutional originalism has attracted a remarkable degree of public and professional attention over the past several decades, little research has been conducted on the intellectual roots of modern originalism. This Article finds that American law schools housed few originalist theorists through much of the 1970s and early 1980s. However, after Edwin Meese III became U.S. Attorney General in 1985, the Department of Justice constructed a vibrant academy in exile, with government lawyers leading the way in the early development, theorization, and exercise of originalism. In addition to becoming the official mode of constitutional interpretation for Meese and the DOJ, originalism started to gain followers on the federal bench and within conservative social movements during the second half of the 1980s. As constitutional originalism grew in influence and professional use, academic interlocutors began engaging with and reimagining originalism more intently.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law--which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might otherwise seem daunting or anachronistic. Applying yesterday's “no vehicles in the park” ordinance is no less fraught--and no more so--than applying Founding-era legal doctrines.

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

There is a sharp separation between the scholarly literature of originalists and professional historians. Originalists cite one another, but regularly ignore recent work by historians. Historians are generally happy to return the favor. Engagement between the two communities is too often limited to methodological disputes and amicus briefs. As a result, historical inquiry offers less to constitutional law than it might, and constitutional lawyers offer less to history than they could. Some of this separation is due to unavoidable methodological tension, but those tensions have not always frustrated productive dialogue. Originalism, in fact, emerged as an important theory of constitutional interpretation because of developments in professional historiography. Post-Revisionist approaches to the historiography of Reconstruction inspired and legitimated the book that set originalism on its current trajectory: Raoul Berger's Government by Judiciary. The revolution in the historiography of the founding embodied in Gordon Wood's Creation of the American Republic offered originalists other opportunities. It was not methodological disagreements but technological, institutional, and disciplinary developments since the 1980s that separated history and originalism. Those trends have mostly accelerated in the twenty-first century, but the role historians played in creating originalism suggests opportunities for productive dialogue still exist and should be pursued.

Anyone who picks up a recent volume of the United States Reports or a prominent legal journal will be sure to find judges and lawyers debating, in agonizing detail, the meaning of a particular word or phrase in the Constitution. Marshaling late-eighteenth century dictionaries and legal treatises, records of debates from the drafting and ratifying conventions, and well-thumbed copies of the Federalist Papers, modern constitutional interlocutors will scrutinize text, structure, and history to discern an inherent logic. Above all, although disputants will endlessly contest what a particular provision means, they largely agree on what the Constitution itself is: as Jonathan Gienapp puts it in The Second Creation: Fixing the American Constitution in the Founding Era, “an artifact circumscribed in time and space,” the “fixed Constitution” that we have been collectively dissecting since the late 1780s (10).