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The historical study of American constitutional law has long rested on a conceptual framework that divides the past into linear units of analysis. Constitutional time unfolds according to discrete eras defined by changes in political leadership and governance, whereas constitutional space typically appears divided into bordered jurisdictions and regional sections. Despite the prominence of this conceptual framework, scholars have yet to ask how, why, and to what effect it became the paradigmatic mode of study. In the absence of close study, the framework instead appears as a neutral embodiment of the constitutional order. This essay offers a preliminary sketch of how theories of knowledge production, and particularly Louis Althusser's theory of law as an ideological apparatus, can help to move beyond this facile assumption. By returning to a selection of landmark judicial opinions and legal treatises from the long nineteenth century and analyzing their discursive practices in relation to the dominant modes of production, this exploratory essay suggests a striking possibility: that the paradigm that we have assumed to be a primordial part of the constitutional order only emerged in its current iteration in the late nineteenth-century shift from a plantation mode of production rooted in enslaved labor to an industrial mode of production rooted in wage labor. As these sources indicate, leading jurists in America's age of conquest and enslavement regularly analyzed questions of state power and rights by organizing time according to chains of title rooted in dispossession based on race and space according to the geographic circuits of capital. Effective in naturalizing the strict racialized hierarchy integral to the production and circulation of export commodities, this discourse of tethering institutions to the history of property acquisition and the movement of commodities began to shift with the formal abolition of slavery and rise of intensive industrialization, as a new generation of legal academics created a paradigm of institutional time and space that, by erasing material histories of structural inequality, made it possible to reconstitute an old social order redicated on racial classifications of whiteness.

For at least half a century, scholars of the early American Constitution have noted the archival prominence of a doctrine known as the "federal consensus." This doctrine instructed that Congress had no power to interfere with the institution of slavery in the states where it existed. Despite its ubiquity in the records, our understanding of how and why this doctrine emerged is hazy at best. Working from a conceptual map of America's founding that features thirteen local governments coalescing into two feuding sections of North and South, commentators have tended to explain the federal consensus either as a vestige of a much older constitutional tradition rooted in localism or as the result of a brokered political compromise between the sections. Cast as an archaic relic of the colonial era or as a one-off political compromise, the doctrine has appeared in the most recent scholarship as one that by the mid-1800s had devolved into a limp and unpersuasive rhetorical disclaimer. This Essay offers a different origins story for the federal consensus, one that invites us to re-center the doctrine's central importance in the founding constitutional order. Drawing on a model of inquiry that expands the conventional map of America's founding to include the material modes of production and exchange, this Essay allows us to see how the bedrock principle of noninterference emerged not only from the oft cited vestiges of localism and sectionalism but also from the customary practices and exigencies of long-distance maritime trade in the Atlantic world. As economic historians have shown, long before the doctrine appeared in print in 1790, America's merchant class had forged a trading network along the Atlantic coast, creating an interregional economy that spanned from the Massachusetts Bay to the plantation coast and outer-lying islands. Predicated on a rule of noninterference with the underlying modes of enslaved labor on which white wealth depended, these preexisting norms of racialized property ownership and commercial exchange provided a useful starting point for the rules of constitutional union at a time when the concepts and structures of public law constitutional governance in the newly created United States remained inchoate and ill-defined. By recovering this genealogy and expanding our map of the founding, this Essay offers a more complete view of the origins of one of the oldest and most consequential rules of constitutional union. In doing so, it allows us to see the institution of racial slavery not simply as one confined to a single section of the South and upheld by its peculiar doctrine of states' rights but as a fundamentally American institution, one upheld by a rule of federal and state inaction in the face of slavery's systemic taking of Black lives.

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders' dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should at least count for something, a historian named Jonathan Gienapp in the Stanford University History Department has returned from the archives with a paradigm-shifting proposition. Not only were the intentions of the drafters of the Constitution diverse, as scholars have long recognized. Not only were the meanings of their chosen words uncertain, as others have since emphasized. Instead, the very thing that we might think of as the U.S. Constitution simply did not yet exist in that storied moment when ink met parchment and we the people said aye.

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America's antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty of a state. In particular, beginning in the mid-1830s, abolitionist lawyers in Boston who confronted the limits of inherited arguments based on national citizenship turned to the Constitution's clause guaranteeing the privileges and immunities of state citizenship. By pairing this Article IV clause with the then-prevailing norm of a state's sovereign duty to protect its citizens, these lawyers argued that failure on the part of Massachusetts to intervene in the police laws of the southern coastal states targeting free blacks would imperil the state's beleaguered standing. These arguments in turn became the basis for the country's first challenge to the laws of the southern states that stripped black men of their liberty without due process, as lawmakers in Boston organized an Article IV lawsuit with the aim of vindicating the state's coequal sovereign status. Propelled by this convergence of interests, state citizenship remained a distinct status for the drafters of the Fourteenth Amendment who envisioned that states would continue to play a role in the protection of individual rights. By excavating this neglected history, this Article reveals a constitutional terrain defined not by a feuding North and South, but by an ever-shifting number of jurisdictions, bound in a domestic economy rooted in race-based slavery. At the same time, this Article unearths a robust precedent for current state initiatives to extend protections to individuals denied national citizenship. In doing so, it offers a more expansive definition of state sovereignty: one premised not simply on a state's autonomy from the national government, but also on a state's duty to protect its citizens.

Part I of this Note describes current scholarship on the history of military commissions and identifies a gap in the prevailing narrative, namely, an explanation for why the military favored a legal process over collective reprisals or summary executions. Part II seeks to address this gap, by examining the circumstances in which the military convened the commission and the context in which President Abraham Lincoln approved it. Part III concludes that this historical perspective helps clarify the original role of military commissions as articulated in the Supreme Court case of Hamdan v. Rumsfeld and calls into question whether an institution that emerged as a substitute for force is the right vehicle for providing due process.