What I’m Working On: Professor Kevin Arlyck on the Federal Judiciary and New Book ‘The Nation at Sea’

Following the ratification of the Constitution, federal judges helped bolster national authority and credibility beyond the country’s shores in thousands of maritime cases involving merchants, pirates, slave traders and disputes with European powers. That body of decisions, he says, was as transformational to early U.S. history — and the affirmation of judicial independence — as the seminal domestic cases decided by the Supreme Court under John Marshall.

“The court’s increasingly broad assertion of jurisdiction over the sea was a way of asserting the United States’s authority,” says Arlyck, who holds a J.D. and Ph.D. in history from New York University. “That goes hand in hand with the United States moving from infant nation to proto-world power during this period.”

Since 2018, Arlyck has taught civil procedure, federal courts and legal history at Georgetown Law, where he serves as associate dean for research and academic programs. His historical scholarship, he says, is shaped by “a lawyer’s attentiveness to the development of the law and to a lawyer’s interest in certain kinds of historical questions.”

Below, Arlyck discusses The Nation at Sea, his approach to legal-historical scholarship and how early court history underscores the importance of an independent judiciary.

How did The Nation at Sea come about?

I’m very much a bottom-up historian — I like to muck around in the archives, find interesting things and then identify the bigger story. When I was in law school, I came across a [modern] Supreme Court case that referred to cases involving the prosecution of pirates in 1820. I discovered this world of litigation in the federal courts, from the 1790s through the 1820s, involving maritime violence, war, piracy and privateering at sea. Federal courts, through these cases, were involved in some of the most contentious diplomatic moments in our nation’s early history.

I spent a lot of time looking through old court records in the various regional National Archives offices and in academic libraries in front of microfilm readers. That’s not a particularly healthy way to live one’s life — and not particularly good for one’s eyes — but it was really fascinating. Federal court records are my primary sources, supplemented with research into everything from correspondence with foreign governments to pardon and Treasury records. I also did research in France and England to flesh out the international diplomacy side of things.

What conclusions did you come to?

The courts’ adjudication of these maritime cases was essential to establishing U.S. sovereignty and independence in the first 35 years after the Constitution’s ratification. In a period when the political branches of government — especially the executive — had neither the ability nor the desire to resolve highly fraught international legal disputes, the courts’ rulings assured foreign audiences that the United States had a government worthy of respect.

The book is also trying to resist — or at least complicate — the typical narrative about the Marshall Court, which is often understood to have strengthened the power of the federal government (and the Court itself) in cases such as Marbury v. Madison and McCulloch v. Maryland. Those cases were less impactful than we are often made to believe. Instead, it was the volume of business that the courts took on in resolving cases arising from decades of maritime war that most profoundly shaped the new nation’s trajectory, and the development of the courts themselves.

Can we apply any lessons from this period to the federal courts today?

The current executive branch has maintained that judges must accept whatever the president says on any question that has even a remote connection to foreign affairs, but that is absolutely not the way George Washington, our first president, thought about this. Washington, his cabinet, and his successors up through at least James Monroe thought that federal judges were not only competent to decide questions that had huge implications for U.S. foreign affairs, but that the courts were actually the right institution for deciding these legal questions. That lesson has been lost in the intervening 200 years, and it is one that we would benefit from paying attention to now.

You earned your J.D. while working on a Ph.D. in history. How does your dual role as a historian and lawyer shape your scholarship?

Being a law professor makes me a different kind of historian than I would have been had I ended up teaching in a history department. I pay close attention to the particular legal questions that people were wrestling with 200 years ago, while at the same time situating those questions in the larger historical context in which they arose. But the lawyer’s training can come at a cost. If you’re not careful, it can prompt you to read historical sources with a particular goal or argument in mind. Especially given the rise of originalism at the Supreme Court and within the judiciary more generally, I sometimes worry that we risk writing history for the purposes of answering present-day legal questions, rather than in order to better understand the past.

You clerked for U.S. Supreme Court Justice Sonia Sotomayor and Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit, a former Georgetown faculty member. Does your first-hand experience of the courts influence your scholarly approach?

It sharpened my interest in trying to get behind the opinions to understand what the judges [I studied] were thinking, what was motivating their decisions and how they were understanding the court’s role. That’s difficult, especially 200-plus years ago — you’re going on scraps of information and the further you go back, the less of a paper record there is. Frankly, much of my work draws inferences from limited evidence, but that’s the historian’s job … to draw interesting and persuasive inferences from limited evidence while at the same time recognizing the limits of that evidence.

What are you working on next?

I’ve been working on a long-term book project about federal law enforcement from ratification up through the Civil War. I’m less interested in the question of whether the federal administrative state was strong or weak, which is what political scientists seem to care about, and and am more interested in asking: How did the federal government get things done in this geographically vast country with an incredibly diverse population and thin administrative structure? As part of that project, I’m writing an article about federal officers’ personal liability to be sued for unlawful acts committed in the course of their official duties, which has implications not only for how we understand the history of federal governance as a historical matter, but also for how we think about officer liability and immunity today.