The making of the Reed Rules – the source of today's U.S. House procedure – has often been studied, yet no one has previously noticed the extent to which they originated in a today forgotten Republican plan to federally regulate Southern House elections. This article shows how and why the Reed Rules and federal election regulation became fused in the 51st Congress. Republican members of the House not only had preferences over the internal governance of the House; they also simultaneously had preferences over the structure of the party system. In following this article's analysis of the linkage between the Reed Rules and the strategy of party conflict in the Gilded Age one comes to better appreciate the role of party building as a source of congressional development.

Labor, gender and, class have each been identified as important reconstructive forces of the American constitutional order, but rarely has a single organization provided an opportunity to directly study the interrelationship of all these forces during a critical period of constitutional change. This article examines one such organization during the years leading up to the New Deal: The Women's Trade Union League. The WTUL, which uniquely mixed middle-class and working-class membership, was founded in 1903 to facilitate trade union organizing by women. Its labor approach, however, would ultimately fail, pushing the league to more fully embrace its connections to the middle-class leadership of the women's movement, thereby transforming its strategic approach and constitutional outlook away from the anti-statist voluntarism of the labor movement to the pragmatic and statist maternalism of the women's movement. The WTUL would subsequently become an important contributor to the legislative program of progressive reformers flourishing during this period under the gendered exception to free contract liberty won in Muller v. Oregon in 1908. This strategic organizational transformation would create tensions within the league and between the league and women workers, as well as invite constitutional consequences for women workers that would resonate for years, long past the constitutional revolution of 1937 and the apparent constitutional reintegration of male and female labor. This case study, therefore, provides a unique lens through which to view not only the constitutional tradeoffs of the adoption of the gendered Constitution as an alternative to the labor Constitution, but also the impact of the resource-conscious decision making of social-movement actors that is often overlooked by constitutional scholars preoccupied with judicial decision making.

From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.

Traditional accounts of presidential hostility toward judicial authority rely on the federal judiciary's structure for explanatory leverage, focusing particularly on the court's potential to reach countermajoritarian rulings. By evaluating executive-judicial relations during the early republic, that is, the years prior to the Civil War, I suggest that anti-court sentiment stemmed not only from antipathy toward unelected judges or the seemingly undemocratic possibilities of judicial review, but also from a civic republican apprehension toward opposition. I show, first, that Jefferson, Jackson, and Van Buren considered open and stable opposition to be a harbinger of civil unrest and strove to preserve unity among the federal branches, and second, that this fear and corresponding aspiration toward unity underlay these presidents' concerns about judicial authority. As such, I argue that the presumption of the judiciary's countermajoritarian difficulty could be understood as a political development rather than a structural anomaly of the Constitution. In making this claim, I highlight the power of entrepreneurial presidents to drive conceptual change. Furthermore, focusing on the politics of opposition as a key element in the development of presidential-judicial relations broadens how we think of civic republicanism as an organizing political principle, defining not only early American political culture and electoral politics, but also influencing matters of governance.