A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution

This article was published by the University of Illinois Law Review in 2009. The citation is: Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457. Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates and discussions about the proposed Constitution. Accordingly, writers often cite these records as evidence of the original meaning of the Constitution. Thousands of articles and hundreds of cases have cited the records of the state ratifying conventions to support claims about the original meaning of the Constitution. This Article offers a concise guide to these records, providing the basic information that lawyers, judges, law clerks, and legal scholars ought to have before advancing, contesting, or evaluating claims about the original meaning of the Constitution based on the records of the state ratifying conventions. It explains theories of how the records might help to prove the original intent of the Framers, the original understanding of the ratifiers, and the original objective meaning of the Constitution\u27s text. The Article also considers eight possible grounds for impeaching assertions made about the original meaning, recommending that anyone making or evaluating a claim about the original meaning take these eight arguments into account and that anyone using these arguments to impeach claims about the original meaning consider the possible counterarguments. This article is one of a series of articles on sources of the original meaning of the Constitution. See also Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution, 81 Geo. Wash. L. Rev. (forthcoming 2012); and Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007)

The Waning Importance of Revisions to U.C.C. Article 2

Article 2 of the Uniform Commercial Code governs contracts for the sale of goods. This article seeks to show that, however urgent the need to modernize Article 2 was in 1990, this need ironically has waned with the passage of time. Article 2 requires less change now than it did a decade ago to meet the requirements of modern commerce. The article supports this claim by looking at three very significant developments that have occurred since 1990: the growth of electronic commerce, the decision not to address software licenses in article 2, and the accumulation of a decade of precedents addressing uncertain issues

Regulating Electronic Commerce

This is not an ordinary law review article. It is a report submitted at the 16th International Congress of Comparative Law, held in Brisbane, Australia, on July 14-20, 2002. The report addresses a number of subjects identified by Dr. Anne Fitzgerald, the General Reporter for the section on Electronic Commerce. The general purpose of the report is to summarize the current state of the law in the United States. At the conference, other reporters summarized the current state of the law in their own countries

Book Review of Jeremy Scahill, Blackwater: the Rise of the Most Powerful Mercenary Army (2007/2008) and From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Simon Chesterman & Chia Lehnardt, eds., 2008)

This is a review of two books: Jeremy Scahill, Blackwater: the Rise of the Most Powerful Mercenary Army (2007/2008) and From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Simon Chesterman & Chia Lehnardt, eds., 2008). Each book concerns the increasing use of contractors in military operations

Responses to the Ten Questions [On National Security Posed by the Journal of National Security Forum Board of Editors]

In 2009, the Journal of the National Security Forum Board of Editors posed ten questions on national security to a group of national-security law experts. Contributors were free to answer as many of the ten questions as they wished. All responses were published in a special issue of the William Mitchell Law Review. I answered the following three questions: 3. What are the lessons from detaining non-U.S. citizens, labeled enemy combatants, at Gitmo? 4. What is left for the Supreme Court to decide after the Boumediene decision? 10. What is the most important issue for American national security?The SSRN download includes the list of all ten questions and my three answers. This document is also available on the William Mitchell Law Review website

A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution

Many lawyers, judges, law clerks, and legal scholars feel unprepared to make or evaluate claims about the original meaning of the Constitution based on the Federalist Papers. The typical law school curriculum acknowledges the importance of the Federalist Papers - usually by assigning Supreme Court cases which cite them - but does not treat the essays in depth. As a result, many law students and graduates still need accessible information about the creation, content, and distribution of the essays, manageable summaries of the theories under which the Federalist Papers might provide evidence of the original meaning, and instruction on possible grounds for impeaching claims about the original meaning based on the Federalist Papers. I hope to address these needs in this guide to the Federalist Papers. The guide provides the essential background that lawyers, judges, law clerks, and legal scholars ought to have before advancing, contesting, or evaluating claims about the original meaning of the Constitution based on the Federalist Papers. I have tried to keep the guide concise in the hope that the intended audience will have time to read it. At the same time, I believe that the guide is sufficiently analytical to promote critical thinking, careful judgment, and judicious evaluation of arguments that rely on the Federalist Papers

Estoppel and Textualism

How might judges who purport to adhere to textualism justify their use of estoppel to affect the application of statutes that say nothing about estoppel? This essay addresses this question. It considers six possible arguments that courts have made or might make to rationalize the recognition of unwritten exceptions to statutes in the name of estoppel. These arguments include the following: (1) Even though the statutory provision at issue says nothing about estoppel, some other legislation expressly authorizes courts to invoke equitable principles, including estoppel; (2) The legislation contains an implied term authorizing the application of estoppel principles; (3) Courts have inherent equitable powers that allow them to apply principles of estoppel; (4) The legislature that enacted the statute reasonably expected that courts would interpret it in accordance with accepted canons and background principles, including estoppel; (5) Estoppel creates a cause of action or other legal right that the statute, by its terms, does not address; and (6) Binding precedent compels the application of estoppel principles, even if they conflict with the text of the statute. Each of the six arguments has some validity. Any one of them might justify uses of estoppel in at least some instances. But as this essay will show, none of the arguments provides a general basis upon which a textualist judge can use estoppel to affect the application of statutes that do not address estoppel. The essay therefore concludes that some unresolved tension exists between traditional estoppel principles and textualism