Calvin's Case

Abstract: This article examines Calvin's Case (1608), a King's Bench decision about whether a person born in Scotland after the union of the Scottish and English crowns in 1603 was also a subject of England. American judges in the nineteenth century used Coke's report of Calvin's Case to determine questions of US citizenship, and in doing so produced a common law of territorial birthright citizenship. American judges equated the ancient English term "subject" with "citizen," without discussion of the perplexing issues of sovereignty that had occupied the King's Bench. This article describes the dilemma in Calvin's Case and the various sources available to resolve it, including the European civil law's distinction between rules of jus soli and jus sanguinis.

Abstract: Calvin's case made English politicians, lawyers and writers think about the concept of 'conquest' in a systematic way in the early seventeenth century. The analysis of conquest in Calvin's case constitutes the earliest version of the conquest rule in an English law report, which had a remarkable influence.

Abstract: IN his early book, The American Revolution: A Constitutioinal Interpretation,1 Professor Charles H. Mcllwain posed for himself the problem of considering once again whether the American colonists had been "right" in their pre-revolutionary constitutional arguments. His review of English constitutional doctrines led him to side with the Americans. Abundant precedents were cited to prove that the eighteenth-century English parliament had no constitutional authority over the colonies save the illegal declaration of i649. Thus the claim of the colonists that they owed allegiance to the king and not to parliament was a "constitutional" claim. The Mcllwain thesis was impressive, but not sufficiently so to convince Professor Robert L. Schuyler. His Parliament and the British Empire2 was a powerful attempt to controvert the Mcllwain thesis. This was a review of English constitutional sources adding up to the opposite conclusions: parliament was held to have been constitutionally right in legislating for the colonies and there was a mass of precedent to prove it. The wrath of Maitland was invoked, but now against his famous disciple Mcllwain: "'It is hard to think away out of our heads a history which has long lain in a remote past, but which once lay in the future'.. . . We should realize," continued Schuyler, "that parliaments were originally, in fact as well as in form, sessions of a

Abstract: The debates among originalists and between them and their critics have continued unabated since Paul Brest, H. Jefferson Powell and others rebutted original intent originalism in the nineteen eighties. Scholars on both sides claim victory while others argue that the contestants actually agree on fundamental issues and merely talk past each other. This article suggests that the contest is real and appears in centuries of debates within Anglo-American and civil law. The article locates the Anglo-American origins of originalism in a novel seventeenth century method of legal interpretation used to achieve a specific political end — to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. The novel method followed Emperor Justinian's earlier attempt to forbid interpretation of the Corpus Juris Civilis because he considered interpretation to be a perversion of written law that generates confusion and discord. The article then evaluates notable originalist interpretations of the Constitution's Commerce and Emoluments Clauses in light of the novel and traditional English interpretive methods. It identifies founding-era public understandings of terms in the Commerce Clause that reach commercial activities like insurance, agriculture and manufacturing and that encompass both prohibiting and commanding individuals' activities. In addition, it identifies founding-era public understandings of terms in the Emoluments Clauses that reach elected representatives who benefit from honest business transactions with governments. Anglo-American legal history proximate to the adoption of the Constitution supports a broad interpretation that prohibits elected officials from receiving those benefits in order to secure their independence, prevent conflicts of interest, and ensure the survival of representative government. The originalist interpretations of the Commerce and Emoluments Clauses ultimately rely on normative judgments, not historical facts. American originalism first asked what the Constitution's founders, drafters or ratifiers intended. In the face of criticism it evolved to ask how the American public understood the Constitution's words. In the face of yet further criticism it is evolving to ask what we should make of the Constitution by applying original methods of legal analysis to constitutional text and history. Whether that iteration will be any more successful than its predecessors remains to be seen. If it is not, then another will likely take its place because originalism is ultimately a normative aspiration embraced by many who hope, like a commentator in 1535, that what Emperor Justinian failed to achieve in his era will yet come to pass.