67 Am. U. L. Rev. 327 (2017)

*Leitner Family Professor of Law, Fordham Law School.  Thanks to Corey Brettschneider, Saul Cornell, Sam Estreicher, Martin Flaherty, Abner Greene, Sean Griffith, Clare Huntington, Andrew Kent, Robert Kaczorowski, Ethan Leib, John Mikhail, Henry Monaghan, Peter Onuf, Michael Ramsey, Aaron Saiger, Jed Shugerman, Bill Treanor, Larry Tribe, and Benjamin Zipursky for comments on prior drafts.  I am also grateful to faculty and students who attended constitutional history workshop presentations of the paper at Fordham and Georgetown law schools, and a panel discussion at the University of San Diego Law School hosted by Michael Ramsey.  Special thanks to Alison Shea of the Fordham Law Library for her help with old English and state statutes, and to Jessica Carnevale for research assistance.