Back to Features

Current Issue : Winter 2007-2008

Jason Mazzone

Professor Jason Mazzone is navigating uncharted territory in constitutional scholarship, and his efforts are making waves that are lapping at the shores of the U.S. Supreme Court itself. With a focus on the history of the early American republic, his extensive publications address a range of constitutional issues that resonate today. "I look at how the provisions of the Constitution were put in place and how they played out in the first decades of our history as a nation in order to generate lessons about how to implement them today," he says. He views the early republic as "a foreign nation" worthy of study in what could be called a comparative historical approach.

Mazzone's attraction to history is evidenced by a string of advanced degrees, several of which he earned in the pursuit of historical scholarship — a doctorate and an LL.M. from Yale Law School, a J.D. from Harvard Law School, and a master's in sociology from Stanford University. His dissertation examined how, in the years following ratification of the U.S. Constitution, ordinary Americans came to understand themselves as governed by and as participants in a system of national constitutional government. He is currently expanding his dissertation into a book by comparatively examining how other countries create the cultural conditions for constitutional rule.

Mazzone also has a longstanding interest in intellectual property and in the law's response to technological changes that increase public access to but also private control over cultural resources. His book on this topic, Copyfraud and Other Abuses of Intellectual Property, will be published by Stanford University Press in 2009.

In his published writings, Mazzone has addressed constitutional topics ranging from federalism to free speech. His latest article, published in the Minnesota Law Review (see abstract), shows that state courts were actually applying the Bill of Rights' protections against state government long before passage of the 14th Amendment and its eventual "incorporation" of the Bill of Rights as applicable to the states. In resurrecting the important role state courts played in enforcing federal constitutional rights against the states prior to the Civil War, his article challenges conventional accounts of constitutional history. "Long before the celebrated rulings of the federal courts, the state courts developed a sophisticated body of law based on the federal Constitution," he says. "Taking a cue from the statutory limits in the 1789 Judiciary Act, the state courts understood that the U.S. Supreme Court only had the power to review constitutional claims that were denied by a state court. Federal review formed the floor that states were free to raise their protections above."

In a new article, Mazzone uses historical evidence to consider some modern reforms. "Would there be benefits to restoring the old practice of the Supreme Court reviewing only cases in which the states have failed to protect a constitutional right?" he asks. "There are good arguments on either side. But as the Court emphasizes the values of federalism in other areas, it would do well to consider the advantages of the earlier tradition in which only some kinds of state court rulings on federal constitutional issues were subject to correction." At least one Justice is interested. In his dissent in Kansas v. Marsh, a 2006 case dealing with capital sentencing, Justice John Paul Stevens urged the Court to return to its "older and better practice of restraint," and criticized the majority for stepping in where a state supreme court had merely imposed more generous constitutional protections.

The full Court has an opportunity to consider Mazzone's argument this term, with two cases, Danforth v. Minnesota and Virginia v. Moore, presenting issues of whether state courts can apply constitutional protections more vigorously than the Supreme Court. Mazzone's particular blend of historical and constitutional scholarship could very likely find its way into the next generation of Supreme Court jurisprudence concerning federalism.

Jason Mazzone | Abstract

The Bill of Rights in the Early State Courts

The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments. The jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-20th century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check.


SCHOLARSHIP FOCUS Constitutional Law and History

COURSES Constitutional Law, American Legal History, Criminal Procedure

  • Copyfraud and Other Abuses of Intellectual Property (Stanford University Press) (forthcoming 2009)
  • The Commandeerer in Chief, 83 Notre Dame L. Rev. ___ (2007)
  • The Bill of Rights in the Early State Courts, 92 Minn. L. Rev. 1 (2007)
  • Copyfraud, 81 N.Y.U. L. Rev. 1026 (2006)
"Long before the celebrated rulings of the federal courts, the state courts developed a sophisticated body of law based on the federal Constitution."