This Note challenges William Blackstone’s modern position as the “oracle of the law” in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone’s influence, as told by the significant circulation of his work. It turns instead to the work’s practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes—referred to as commonplace books—to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered. While Blackstone was apparently known to these late colonists, his work was far from “the most widely read law book in eighteenth-century America.” Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.
Note
The Missing Theory of Representation in Citizens United
Restrictions on campaign speech violate the First Amendment unless they are aimed at preventing either corruption or the appearance of corruption. The definition of corruption is thus central to campaign finance jurisprudence. In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court defined corruption narrowly, to include a quid pro quo exchange and nothing else. In this Note, I examine the viability of that definition by combining two previously dissociated bodies of literature—one exploring the Court’s varying definitions of corruption in campaign finance cases and the other addressing the proper role of a representative in a democracy. I argue that, although any viable definition of corruption must be based on an underlying theory of representation, no commonly accepted theory of representation underlies the narrow quid pro quo definition adopted in Citizens United. Thus, I suggest the Court take up another campaign finance case soon, so that it can either (1) articulate a theory of representation that justifies its narrow quid pro quo definition of corruption or (2) reconsider that definition.
Akin to Madmen: A Queer Critique of the Gay Rights Cases
Cases such as Lawrence v. Texas and Obergefell v. Hodges are the result of LGBTQ advocacy that has grown and developed at a stunning rate since its inception just over a century ago. As recently as the nineteenth century, our culture had no conception of sexual orientation as a facet of one’s identity. Now, sexual orientation serves as the core of a movement that uses it as a tool for advocacy. The prevailing approach has been to emphasize commonality with straight people, by associating LGBTQ people with values like monogamy, romance, respectability, and more. This strategy has led to a succession of LGBTQ legal victories in the last two decades. Unfortunately, those victories have sometimes reflected a narrow idea of what it means to be LGBTQ, premised on the values pushed by assimilationist advocates. This Note argues that the reliance on these values to justify extending rights to LGBTQ people runs the risk of making it more difficult to extend protection in areas where these values are absent.