H. Jefferson Powell returned to the Duke Law faculty in May 2012 after serving as deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice and as a professor at George Washington University Law School. He previously served on the Duke Law faculty from 1989 to 2010.
His scholarship has addressed the history and ethical implications of American constitutionalism, the powers of the executive branch, and the role of the Constitution in legislative and judicial decision-making, among other subjects. His recent books include The President as Commander in Chief: An Essay in Constitutional Vision (2014), Constitutional Conscience: The Moral Dimension of Judicial Decision (2008) and No Law: Intellectual Property in the Image of an Absolute First Amendment (2009), which he co-authored with Duke Law Professor David Lange.
(From Powells presentation at duke.edu)
Read more about professor Powell.
Professor Powell will give a research seminar on the following topic: The rise of the US constitutional tradition: 1292-1835.
The American boast that the US Constitution is the oldest national constitutional instrument is not entirely false, but it implies a great over-simplification of the process by which the Constitution came to be viewed (as it is today) as the ultimate, authoritative legal text within the US legal system. Indeed, one of the most basic constitutional questions facing the United States in the first decades of the Republic was the issue of what role the document labeled “the Constitution of the United States” would play in the Republic’s political and social life, and the understanding that was clearly in place by the death of Chief Justice John Marshall in 1835 was the product of a very long constitutional prehistory as well as intense post-adoption debate in the 1790s. We will look at the process by which the Constitution acquired its modern status through four stages, although our discussion will focus on the third.
(a) the emergence of a common law tradition of political-legal inquiry (William Bereford’s appointment to the Court of Common Pleas in 1292 serving as a convenient starting point);
(b) the period 1775-1789 during which Americans experimented with the formulation and implementation of written constitutional documents culminating in the federal Constitution;
(c) the time of intense partisan, ideological and political debate from 1791-1803 which saw, on the intellectual level, a struggle between the usually Federalist image of the Constitution as primarily an authorization for national decisionmaking about social welfare and the usually Republican understanding of the Constitution as a legal instrument limiting national power and to be construed like any other legal text;
(d) the era of consolidation in which the major institutions of American political life came to agree on an understanding of the Constitution as a document that is at one and the same time a symbol of national unity and a controlling text interpreted from a common law perspective. The death of moderate Federalist Chief Justice Marshall, who played a significant role in shaping this understanding, serves as a marker for the end of the period.