Robert Natelson

This Article examines relevant evidence to determine whether, as some have argued, the original legal force of the First Amendment’s “freedom of the press” included a per se right to anonymous authorship. The Article concludes that, except in cases in which freedom of the press had been abused, it did. Thus, from an originalist point of view, Supreme Court cases such as Buckley v. Valeo and Citizens United v. Federal Election Commission, which upheld statutes requiring disclosure of donors to political advertising, were erroneously decided.

In Bolling v. Sharpe, the Supreme Court invalidated school segregation in the District of Columbia by inferring a broad “federal equal protection” principle from the Due Process Clause of the Fifth Amendment. It is often assumed that this principle is inconsistent with the Constitution’s original meaning and with “originalist” interpretation. This Article demonstrates, however, that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary – and on officials serving the general public – a well-established duty to serve all impartially. The Constitution, like other fiduciary instruments, imposes a standard of equal treatment from which lawmakers and officials cannot depart without reasonable cause. Although the Constitution’s original meaning does not define precisely the answers to all “equal protection” cases, and does not necessarily prescribe norms identical to those of existing equal protection jurisprudence, it clearly does prohibit racial discrimination of the kind at issue in Bolling.

Under Article V of the U.S. Constitution, two thirds of state
legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning of Article V.

This paper demonstrates that the Founders' constitutional design contemplated tort law and most other areas of civil justice remaining within the exclusive province of the states. Widespread congressional intrusion into that area, as contemplated by some federal tort reform measures, is thereby found to violate the constitutional system of federalism.

Much of the mystery surrounding the Constitution’s state-application-and-convention amendment process is unnecessary: History and case law enable us to resolve most questions. This Article is the first in the legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this Article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the Article is objective exposition rather than advocacy or special pleading.

Advocates of presidential power from the days of George Washington at least to the time of George W. Bush have claimed that the Constitution’s so-called “Executive Vesting Clause,” the first sentence of Article II, not only designates the President as chief executive, but also confers broad authority. Some commentators support that view, while others maintain that the President’s powers are limited to those enumerated elsewhere in the Constitution.
This study addresses the previously-overlooked question of which interpretation is more consistent with contemporaneous drafting customs. It concludes that treating the “Executive Vesting Clause” as a mere designation is consistent with those customs, while treating it as a grant is not. Indeed, the grant interpretation would result in a document structure so anomalous as to render it unlikely that the Founders intended that interpretation.
This study marshals evidence overlooked by prior commentators, such as the royal commissions to American colonial governors, power-granting documents employed by the Continental Congress, and the eighteenth-century law governing grants.

Over a century ago, the Supreme Court decided the Legal Tender Cases, holding that Congress could authorize legal tender paper money in addition to metallic coin. In recent years, some commentators have argued that this holding was incorrect as a matter of original understanding or original meaning, but that any other holding would be absolutely inconsistent with modern needs. They further argue that the
impracticality of functioning without paper money demonstrates that originalism is not a workable method of constitutional interpretation.
Those who rely on the Legal Tender Cases to discredit originalism are, however, in error. This Article shows that the holding, although not all the reasoning, of those cases was fully consistent with the original understanding of the Coinage Clause. This Article tells the intriguing story of Colonial America’s extraordinary monetary innovations,
examines contemporaneous law and language, and shows how the paper money question was addressed during the framing and ratification of the Constitution.

This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U.S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, early American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were “original-understanding originalists.” This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverable and, otherwise, by the Constitution’s original public meaning.

The United States Congress claims plenary and exclusive power
over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

This paper was written to describe the content of 18th century fiduciary law and how it impacts the Constitution. At the insistence of student editors, the author added a possible framework for judicial review of congressional spending that violates the fiduciary duty of impartiality.

Relying on new research into the original meaning of the Commerce Clause and Necessary and Proper Clause, this article explains how the intended scope of Congress's Commerce Power differs from the scope as defined by the modern Supreme Court.

This article reports the results of a survey of hundreds of uses of "Commerce" and regulate commerce" in Founding-Era legal sources. It finds them generally consistent with previous studies of lay usage, and thereby helps define the original meaning of the Constitution's Commerce Clause

This study finds that the First Amendment was designed to mandate a congressional  policy of "non-preferentialism" among all religions, but did not require Congress to treat religion on a par with atheism or agnosticism. It thereby confirms several older studies.

Although John Dickinson was one of the most influential Framers and Ratifiers, his many contributions to the Constitution usually are overlooked. This survey helps correct the record on the man whom Forrest McDonald has called the "most underrated of all the Founders.

Two key values behind the Constitution: were (1) that government should reflect the attitudes of the people (sympathy) and (2) that the law should ensure that suffrage and other political decision making is restricted to persons not unduly dependent on government or on other persons (independence).

This influential article explains what the Constitution means by "republican Form of Government" in the Guarantee Clause.  Although some have argued that the Guarantee Clause restricts state use of direct democracy, this article finds that that claim was a merely a product of a 19th century political battle, and that it has no substantial founding-era basis.