The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights

David T. Hardy[*]

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Few if any legal figures in the early republic held the status of St. George Tucker.  Educated in the law by William and Mary’s George Wythe, Tucker succeeded him as the College’s professor of law, a post he held from 1790 until his appointment to the bench in 1804.[1]  While at William and Mary, he produced an edition of Blackstone’s Commentaries,[2] annotated in light of American law.  The text became “the standard work on American law for a generation” and Tucker remained the most frequently cited American legal scholar for over two decades.[3]  Tucker’s role in American legal scholarship was likewise striking.  He has been termed “the first modern American law professor” and creator of the American law degree.[4]

Tucker had exceptional opportunity to observe the legal events at the Founding.  His closest friend, John Page, and his brother Thomas Tucker served in the first House; they and others kept him informed, by correspondence, of its events.[5]  He was temperamentally suited to analyze the Framing period.  His edition of the Commentaries was far from a reprint of the original; Tucker documented at length where the American States had refused to adopt common law principles, and where the new Constitution and Bill of Rights diverged from them.[6]  While Blackstone had seen the common law as supra-personal and beyond improvement, Tucker delighted in documenting how Americans of his time had improved upon it and eliminated its shortcomings.[7]

Largely forgotten today, Tucker returned to some legal prominence last Term, when the majority in District of Columbia v. Heller[8] cited his annotated Blackstone’s Commentaries as proof that the Second Amendment had originally been understood as an individual right to arms.[9]  The dissent also invoked Tucker’s lecture notes to argue that, during the Framing period, he had seen it as a militia-related right of States.[10]

Tucker taught his law students from extensive handwritten lecture notes, compiled in bound volumes.  His notes were preserved, and today are archived in the Tucker-Coleman Collection of the Earl Gregg Swem Library at the College of William and Mary.[11]  The following is a transcription of the portion dealing with the Bill of Rights, which follows Tucker’s discussion of the limits placed upon Congress by Article I, Section 10.  The main text appears to date from 1791–92, with some marginal notes added later.[12]  Given his position and their dating, Tucker’s notes are exceptional evidence of original public understanding and indispensible tools for originalist interpretation.

Honor's Constitutional Moment: The Oath and Presidential Transitions

Paul Horwitz[*]

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Introduction

Ever since Bruce Ackerman introduced us to the phrase, constitutional lawyers have come to think of “constitutional moments” as momentous and irregular.[1]   They are assumed to be extraordinary occasions on which the nation rethinks its constitutional commitments and, in effect, rewrites them outside the formal constitutional amendment process.  In two centuries of constitutional history, Ackerman identifies only three such constitutional moments, including the Founding itself.[2]   The rest of the time, constitutional government exists in the realm of ordinary politics.[3]

I want to suggest another approach.  Constitutional moments are momentous, but they are not irregular.  To the contrary, they are routine.  In particular, the changeover of executive power that we are undergoing right now bears witness to a simple proposition: every presidential transition is a constitutional moment.

American politics routinely treats the peaceful transition of executive power as evidence of the Republic’s continuity and stability.  But each presidential transition is also a moment in which at least one branch of the federal government must consider anew what the Constitution means and what it demands, and ratify or rescind the constitutional readings that have come before.  Every such succession embodies the tension inherent in constitutional moments—the tension between consistency and change.

This Essay argues that the constitutional moment represented by the presidential transition is instantiated in a single act: the taking of the presidential oath.  That oath is both an official action and a deeply personal one, and the combination is significant.  It suggests the intimate connection between the official duties assigned to the President by Article II of the Constitution and the personal honor of the President.  By committing himself to preserve the Constitution and fulfill his Article II duties, the President ties his own honor to a particular understanding of the Constitution.[4]   That understanding is indefeasible: he cannot simply defer to the understanding of the courts, of Congress, of prior presidents, or even of the people.  In taking the Constitution’s measure, the President is ultimately on his own.

We have come to think of honor as a largely obsolete virtue.[5]   But it has not yet vanished, and its importance crests in the moment of the taking of the presidential oath, as virtually every individual to take the oath has recognized.  As Barack Obama prepares to take his own oath as the 44th President of the United States, it is worth considering what that oath means and what implications it has for his presidency.

The Future of International Antitrust and Improving Antitrust Agency Capacity

D. Daniel Sokol[*]

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One of the key issues in international antitrust has been how to make antitrust effective around the world.  Most antitrust laws have been adopted or significantly modified since 1990.[1]   A number of key jurisdictions are either fairly new to antitrust altogether or to an antitrust regime that effectively employs the latest in economic thinking and the legal tools necessary to promote competition.[2]   Jurisdictions that have made antitrust a new and important cornerstone to economic policy include Brazil, Russia, India, and China.  Because of the stakes involved in the ability of antitrust to foster economic development and to prevent misguided antitrust policy from operating as a regulatory tax, it is critical that the future of antitrust focus on improved capacity around the world.[3]   By capacity, I mean the ability of a given agency to undertake well reasoned and effective decisionmaking in the implementation of antitrust policy.  There are two concerns for countries in various stages of antitrust development: harmonization of domestic antitrust with international antitrust “best practices,” and implementation of an effective antitrust regime.[4]   In an effort to solve these issues, policymakers in antitrust emphasize two dynamics to shape the development of increased capacity of younger antitrust regimes.  The first is international antitrust institutions, such as the International Competition Network, that develop antitrust norms.[5]   The other is technical assistance, either from these international antitrust institutions or directly from more developed antitrust agencies or other aid providers.  By technical assistance, I mean the process through which agencies improve their capacity to undertake competition policy.

This Essay focuses on how both external (international institutions) and internal (agency capacity and technical assistance) dynamics shape the capacity of younger agencies to undertake antitrust in their jurisdictions.  Both approaches play an important role in improving capacity.  In the case of technical assistance, this Essay analyzes survey data from recipient agencies of antitrust technical assistance to determine the most effective means of improving antitrust agency capacity.  Part I explains the type of capacity building that antitrust agencies undertake themselves.  The rest of this Essay focuses upon international efforts that can assist agencies in capacity building, but it is important not to overlook capacity building efforts that can occur at the agency level.  Part II describes the work that international antitrust institutions undertake to improve agency capacity.  Part III provides an analysis of survey data that shows how technical assistance from outside providers can improve agency capacity.  Part IV concludes and offers recommendations to improve developing world antitrust agency capacity building.