Fay, "Courts of Indian Offenses, Courts of Indian Resistance"

Alexandra Fay (University of Tulsa College of Law) has posted "Courts of Indian Offenses, Courts of Indian Resistance," which is forthcoming in the Michigan Law Review (2026). The abstract: 

In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, they were almost universally replaced by tribal courts in the twentieth century, and they have been widely derided as crude assimilationist tools.

This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle in the American context. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native judges entrusted with Washington’s assimilationist designs frequently declined to enforce the “Indian offenses,” instead using the courts to resolve crimes and disputes recognized by their tribal communities.

The Article uses three decades of annual reports from the Commissioner of Indian Affairs and archival records from three Courts of Indian Offenses to illustrate the structure and function of the courts at the turn of the twentieth century. It engages with concepts from subaltern studies, tribal legal studies, and law and colonialism literatures to explore how tribal law adapted and survived despite the formal imposition of Anglo-American legal forms. The Article ultimately suggests that the Courts of Indian Offenses may be understood as contested institutions through which tribal leaders preserved tribal self-government against the imperatives of empire.

The full paper is available here, at SSRN.

-- Karen Tani

Jagodinsky to Discuss Habeas Corpus in the American West

[We have the following announcement.  DRE]

Please join the American Philosophical Society next Tuesday, March 25th at 12PM ET for our weekly brown bag featuring Katrina Jagodinsky, an Associate Professor of History at University of Nebraska-Lincoln and two-time APS Phillips Fund Award recipient.

Dr. Katrina Jagodinsky will discuss Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924, which is a growing database of habeas petitions from county, state, and federal courts that highlights the remarkable diversity of legal protagonists and actors contributing to American legal tradition. Using digital tools and mixed analytical methods, Petitioning for Freedom documents surprising trends and suggests the potential for innovative research practices to uncover marginalized people's legal strategies over the long nineteenth century.

This will be an all-virtual Brown Bag at 12PM ET.   Join Zoom Meeting.  Meeting ID: 896 3862 0185.  Passcode: 006521.

Cuenca's "Making of Urban Customary Law in Medieval and Reformation England"

Esther Liberman Cuenca has published The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press):

Drawing on a quantitative analysis of hundreds of printed and archival sources from 77 towns, The Making of Urban Customary Law in Medieval England is the first cross-regional investigation into the history of urban customs since Mary Bateson's seminal, two-volume work Borough Customs (1904-1906). In contrast to English common law and church law, which both had long institutional and academic traditions devoted to training men in their legal philosophies, customary law constituted local practices that acquired the force of law over time. Urban customary law regulated political officeholding, trade, property holding, and even moral behaviour in English towns.

The Making of Urban Customary Law argues that urban customs, which governed the lives of people in English towns, were crucial to the development of a distinct, bourgeois identity in England-an evolution that this new study tracks from the early twelfth to the late sixteenth centuries. In the years following the Black Death, and especially during the Reformation period, this law became more concerned with defining political authority, maintaining morality, and articulating a consensus about the “common good” for townspeople.

This book makes two principal claims: First, customary law advanced the business interests of an urban oligarchy. These were urban (male) elites who drafted laws and obtained privileges to enhance their wealth and assert their political independence from local lords, and often made claims about the legitimacy of their privileges or laws by rooted them in history or some kind of ancestral past. These lawmakers also made considerable efforts to establish their identities as morally upright and even-handed patriarchs. In so doing, urban customary law played a central role in the development of a distinct bourgeois identity in medieval and Reformation England. Second, this law lent particular meanings to the “common good” in towns, as it helped these lawmakers articulate policies that cohered to their vision of an ideal civic community.

--Dan Ernst

LHR 42:3

Law and History Review 42:3 (August 2024), the publication of which was delayed by a cyberattack on the publisher last summer, is now available online.

Inventing Birthright: The Nineteenth-Century Fabrication of jus soli and jus sanguinis
Nathan Perl-Rosenthal, Sam Erman

The Law of Nations in the Diplomacy of the American Revolution
Benjamin C. Lyons

The Cartojuridism of the British East India Company
Sabarish Suresh

Between Empire and State: Haudenosaunee Sovereignty at the League of Nations
Kate Alba Reeve

What Happened to Nancy Jackson? A Riddle of Race and Resistance on the Southern Frontier
Anders Walker

A Christmas Eve Murder and the Notorious Georges: Community Identity in Northern British Columbia, 1913/14
Jonathan Swainger

Pathologization, Law, and Gender in Cases of Infanticide in Spain and the Netherlands in the Mid-Twentieth Century: A Comparative Perspective
Willemijn Ruberg, Sara Serrano Martínez

Witnesses for the State: Children and the Making of Modern Evidence Law
Laura Savarese

A Grand Jury Exhortation
Benjamin Keener

Anglo-Romano Common Law on Natural Subjecthood, Lansdowne MS 486 ff. 142–143
N. R. W. Dudani

Sources and U. S. Citizenship in the Antebellum United States: A View from Abroad
M. Scott Heerman

Book Reviews

Margaret McGlynn, The King's Felons: Church, State and Criminal Confinement in Early Tudor England Oxford: Oxford University Press, 2023. Pp. xx, 371.
Paul Cavill

Laura Flannigan, Royal Justice and the Making of the Tudor Commonwealth, 1485–1547 Cambridge: Cambridge University Press, 2023. Pp. xv, 304.
Daniel F. Gosling

Corrigendum

“Let the Commander Respond”: The Paradox of Obedience in the Imperial Japanese Armed Forces – CORRIGENDUM

--Dan Ernst

Thompson on Mandamus and Democracy

Elizabeth Lee Thompson, Southern Methodist University Dedman School of Law, has published Mandamus as a Democracy Tool, which is forthcoming in the Denver Law Review:

Legal scholars recognize the centrality of state courts and procedures to United States democracy but the study of state proceedings and their impact represents a largely unexplored arena. This Article illuminates one largely ignored procedural area—the writ of mandamus, which is a centuries-old writ recognized in all fifty states that a court issues to compel performance of a duty by a court or public official. The Article examines mandamus concerning public officers—specifically governors and secretaries of state—through an empirical study of 497 state cases over the last almost two centuries.

The Article composes the first empirical national study of mandamus petitions seeking to command action by public officers. The central conclusion is that mandamus forms a valuable democracy tool for citizens, particularly for citizen-directed litigation aimed at pressing public officials to correctly conduct elections. This principal conclusion contributes to a range of insights, including the predominance of mandamus cases concerning officials’ duties to conduct elections and certify candidates—and how these election cases display how individuals employed mandamus to press their democratic rights. The Article also recognizes the related trend of citizens employing mandamus to assert complaints arising from initiative and referenda processes, a finding that underscores how mandamus repeatedly supported direct democracy efforts.

Moreover, the Article brings a new perspective to recent scholarship that notes an increased politicization and frequency of state court mandamus filings and the related area of original jurisdiction. In contrast, this Article—with evidence from hundreds of cases—uncovers individuals’ and political groups’ enabling use of mandamus, including through its somewhat increased use over the last quarter century. Although recognizing mandamus’s potential drawbacks, the Article seeks to establish and encourage the role of mandamus as an accessible and powerful mechanism to support citizens’ rights and hold public officers accountable to perform duties.

--Dan Ernst

Self-Contradictory Victory Announcements

Today’s post about my new book, We the Men, focuses on another form of forgetting in America’s dominant stories about itself—forgetting the work the nation still has to do.

As modern Americans, many of us have encountered people who announce or assume that the nation has left the sexist bad old days behind.  Still, I was surprised to discover just how early in American history those premature declarations began appearing and how important a role they have played in perpetuating inequality.

Wildly exaggerated accounts of American progress toward sex equality have been common in both everyday settings and legal institutions since before the Nineteenth Amendment’s 1920 ratification made sex-based disenfranchisement unconstitutional. These declarations are routinely framed in terms of American women universally, although white women have tended to be top of mind.

The stories forget what remains undone, even to the extreme of proclaiming that the United States has already achieved sex equality. For example, a 1918 textbook assured young readers that: “All men and women are regarded as equals before the law.” At the time, thirty-three out of forty-eight states maintained sex-based restrictions on the franchise. Although women had spent decades mobilizing for equality, discrimination against women at work, in marriage, and in every other arena was still legal and pervasive throughout the nation.

Judges have been suggesting or proclaiming that the nation has moved past sex discrimination for almost as long as American women have been mobilizing to challenge male supremacy. In fact, many of the judiciary’s sunniest proclamations about American progress have appeared in decisions denying women equality, as courts rationalize their rejection of women’s claims by insisting that women already have so much.

I call these decisions “self-contradictory victory announcements” because judges boast about America’s embrace of sex equality while simultaneously enforcing male supremacy. While women are not the only marginalized group to have experienced the judiciary’s self-contradictory declarations, cases perpetuating women’s inequality have long been prominent triggers for self-contradiction.

The Supreme Court continued its long tradition of self-contradictory victory announcements in Dobbs v. Jackson Women’s Health Organization (2022). This decision overruled Roe v. Wade (1973) in the course of upholding an anti-abortion law from Mississippi, the Gestational Age Act of 2018.

Dobbs repeatedly invoked overstated accounts of women’s advances to defend the Justices’ decision to leap backward and eliminate a constitutional right that women had held for generations.  For example, Dobbs sought to justify the Justices’ decision to give legislatures so much control over women’s lives by announcing that: “Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”

This line of argument turned on obscuring how far America still has to go. Dobbs never mentioned that men held 85.1% of the seats in the Mississippi legislature that passed the Gestational Age Act in 2018. Dobbs also did not mention that the Mississippi governor who championed the bill and signed it into law was the latest in the state’s uninterrupted line of white male governors. Boasting about women’s electoral and political power while ignoring these persistent inequalities made it easier to deny how politicians can endanger women when constitutional safeguards disappear.

— Jill Hasday

 

ASLH Prizes

[We have the following announcement from the American Society for Legal History.]

Each year the ASLH and the Cromwell Foundation sponsor a number of prizes for books, articles, dissertations, and digital  legal history projects. Scholars are encouraged to apply, and to encourage others to apply. Please note that in some cases eligibility criteria have shifted slightly from last year. Applicants should double-check the specific language to ensure eligibility.

All ASLH prize nominations (including self-nominations) are due June 1.

--Dan Ernst  The descriptions of the prizes appear after the jump.

Weekend Roundup

• To celebrate its 90th anniversary, the Stair Society held a legal history moot, according to Scottish law in 1851, a case involving wages for domestic service and an action of seduction (SLN).

• Claire Priest, YLS, will give a talk on Peruvian legal history in the Helsinki Legal History Series seminar on March 25. 
  

• Daniel Huslebosch, NYU Law, will deliver a virtual talk, “Confiscation in the American Revolution: Taking Property, Making the State,” before the Schenectady County Historical Society on April 2, at 7:00pm (News10).

• Kim Lane Scheppele, Princeton University, will deliver the Robert H. Jackson Lecture at Chautauqua this August.

• The American Historical Association and the Organization of American Historians have issued a joint statement on "federal censorship of American History."
  

• The Madison minimizers still have their work cut out for them, judging from this essay for Voice of America.
  

• 
  Law professors and historians at Willamette University "addressed the authoritarian tendencies of President Donald Trump’s second administration and debated historical similarities with European fascism" (Salem Reporter).
  

• Members of the Women and the Law Division of Indiana State Bar have created All Rise, a coloring book on inspirational women in the state's history.
  

• University of Illinois Urbana- Champaign's notice of The Origins of Critical Race Theory: The People and Ideas That Created a Movement, by Aja Y. Martinez and Robert O. Smith (NYU Press).

• Lawbook Exchange's March catalogue of Scholarly Law and Legal History.
  

• In Time's "Made by History" series: Historians Call Trump a “Transformative President” (Justin Peck).  1860s Prussia Teaches Us About Constitutional Crises (Christine Adams).  The Long Fight against the Department of Education (Austin Steelman). The Dangers of Politicizing Civil Service (Yong Kwon).  The 1930s Case That Sparked a Deportation Debate (Rebecca Brenner Graham).  What the 1990s Tell Us About DOGE (Jacob Bruggeman & Casey Eilbert).
  

• ICYMI: A notice of the first six months of the honorary historian of the New York State Unified Court System, former Court of Appeals Judge Albert M. Rosenblatt (LAW360).  Social Security Is Not a Ponzi Scheme, writes Lawrence B. Glickman (Boston Review).  Peter Neal says, No, Let's Not Bring Back Letters of Marque (Lawfare).  The Wisconsin Historical Society and the Barron County Historical Society are preparing a new historical marker on Ojibwe treaty rights and the “Walleye Wars” near Rice Lake (Barron News-Shield).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Jia on Constitutional Education in China and the US

My Georgetown Law colleague Mark Jia has posted The Possibilities of Constitutional Education:

Constitutional scholarship has traditionally focused on formal constitutional actors: courts, legislatures, and executives. These actors are often regarded as primary sources of constitutional law, or in some cases, as final arbiters of constitutional meaning. More peripheral in this literature are actors thought to transmit what courts and high officials have established. These constitutional educators, including law professors, legal journalists, and civics planners, are often overlooked for defensible reasons: they lack the normative authorities of formal institutional actors, and they do not exercise power as it is often understood in public law.

This Article advances a general theory of constitutional education to show what is possible through centering the output of constitutional educators. In an age of global constitutional change and local constitutional upheaval, constitutional education can shed light on basic questions of constitutional order. The analytic value of constitutional education lies not in studying it in isolation, but from examining how primary constitutional research subjects—texts, ideas, methods, decisions, and reasons—are refracted through a distinct set of downstream epistemic actors. Focusing on two case studies, the United States and China, the Article shows how the study of constitutional education can illuminate the functions of authoritarian constitutions, the construction of constitutional culture, and the dynamics of constitutional change. In so arguing, the Article also suggests that certain constitutional patterns may transcend divisions between autocracy and democracy, constitutions and constitutionalism.

--Dan Ernst

Shusterman on the English Standing Army Controversy and the 2d Amendment

Noah Shusterman, Chinese University of Hong Kong, has posted England’s Standing Army Controversy (1697-99) and the Origins of the Second Amendment:

This article explores the writings of England's Standing Army Controversy at the end of the seventeenth century, and the links between those writings and the debates over military policy during the founding era that would eventually lead to both the Constitution’s militia clause and the Second Amendment. Staring in 1697, a small group of British authors turned what had been a long-standing but undertheorized distrust of professional armies into an elaborate theory in favor of citizens’ militias. These authors argued that standing armies were inconsistent with a free society; that militias were superior fighting forces; and that maintaining a professional army would inevitably result in the army's leaders becoming despots. To prove their arguments, the authors used a combination of historical examples and theoretical discussions, drawing on Ancient Rome, Medieval Europe, and their understandings of what would or would not motivate soldiers. These writings became relevant to colonists in North America once the British began stationing troops around Boston during the buildup to the American Revolution. The ideas of the Standing Army Controversy provided colonists with a framework and vocabulary that linked Britain's action to those of other tyrannies, because of the use of professional soldiers against a civilian population. As states began issuing their own constitutions in 1776, several included language that grew out of the Standing Army Controversy, including the claim that "standing armies, in times of peace, are dangerous to liberty." These fears of standing armies, and the belief in citizen-soldiers rather than professional soldiers, remained the basis for the Second Amendment and for the broader debates it grew out of. The claim that a well-regulated militia is necessary for the security of a free state grew out of the writings of the Standing Army Controversy.

--Dan Ernst

Gallanis on Revolutions in American Trust Law

Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has posted American Revolutions in the Law of Trusts, which is forthcoming in the ACTEC Law Journal:

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan.

This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness. The Article's primary aim is to shape how American trust law is understood, historically and today.

The Article's contribution is as fundamental as periodization. We used to teach that the "Roman Empire" was followed by the "Early Middle Ages." This periodization was transformed by the pioneering scholarship of the historian Peter Brown. Professor Brown is credited with creating the field of Late Antiquity, approximately AD 250-750. Analogously, this Article's framework of the five revolutions is designed to shape our understanding of the history and development of America's distinctive trust law.

Part I of the Article identifies and analyzes the five revolutions. Part II offers a personal assessment of American trust law's distinctiveness. A brief conclusion follows.

--Dan Ernst

Green on 18th-Century Constitutional Notions of "Tradition"

Jonathan Green, Arizona State University Sandra Day O'Connor College of Law, has posted Some Traditional Questions About “History and Tradition”:

Recently, in Vidal and Rahimi, the Supreme Court reaffirmed that “history and tradition” are probative of, and in some cases dispositive of, the outer bounds of constitutionally enumerated rights. But for the Court’s originalists, that move is puzzling. If the Constitution’s legal content resides in the original meaning of its terms, how might a tradition of political practice that arose long after a constitutional provision’s adoption be legally relevant?

Eighteenth-century English jurists had an answer to that question. By 1791, it was well-established that where a written source of law codified a preexisting, common law right—like the freedom of speech (at issue in Vidal), or the right to keep and bear arms (at issue in Rahimi)—the scope of that right would continue to be defined, as before, by custom. The codification of an unwritten right in written law did not alter its status as a customary right, whose limits were set by a tradition that preceded and succeeded the text’s enactment. So, if the provisions at issue in Vidal and Rahimi codified preexisting unwritten rights into our Constitution, then under Founding-era interpretive rules, the original meaning of First and Second Amendments would just direct contemporary judges to look beyond their words, to pre- and post-enactment tradition. From the eighteenth century looking forward, the Court’s turn to “history and tradition” is entirely reconcilable to originalism, and may be required by it.

At the same time, excavating how tradition delimited the outer bounds of fundamental rights in the decades before ratification throws up a number of interpretive puzzles. Whose tradition, exactly? What is tradition, anyway: how did past jurists conceptualize it? And where an unwritten right had been codified into written law, to what extent could later practice reshape its original scope? These questions vexed English jurists across the eighteenth century, and were unsettled when our Constitution was adopted. If classical English constitutionalism offers a way to square originalism to “history and tradition,” it also highlights the challenges of using tradition to define the scope of rights today. Under the surface, eighteenth-century jurists had questions about “history and tradition” too.

--Dan Ernst

ASLH Student Research Colloquium

[We have the following call fro applications from the American Society for Legal History.  DRE]
 
The American Society for Legal History will host its eleventh annual Student Research Colloquium (SRC) on Wednesday, November 12, and Thursday, November 13, 2025, in Detroit, Michigan, USA. Each year, the SRC brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress dissertations or other research projects with each other and with ASLH-affiliated scholars. This year's faculty coordinators will be Emily Prifogle (University of Michigan) and Rowan Dorin (Stanford University).

Target applicants include early-post-coursework Ph.D. students and historically minded law students. All students whose research touches on legal-historical themes are encouraged to apply, whatever their chronological or geographical focuses. Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history. A student may present a paper at the annual meeting and participate in the SRC in the same year.

The ASLH will at least partially and, in many cases, fully reimburse the SRC students’ travel, hotel, and conference-registration costs.   To apply, please submit the following three items to John Wertheimer at:  srcproposals@aslh.net:

•  a cover letter that describes, among other things, how far along you are and approximately how many years remain in your present course of study;
• an up-to-date CV; and
• a two-page, single-spaced research statement that contains a working title and describes the in-progress research project that you would like to present at the colloquium.

Application deadline: June 1, 2025.

CFP: Northwestern Law Review's Empirical Issue

[We have the following CFP.  DRE.]

The Northwestern University Law Review (NULR) is proud to be opening submissions for the seventh annual empirical issue! NULR is exceptional among flagship law reviews in the United States in that it publishes an annual issue fully dedicated to empirical legal scholarship. We seek to bring cutting-edge, interdisciplinary, empirical work to our legal audience, and enrich our understanding of the law, legal actors, and legal doctrine through robust and reliable examination of qualitative, quantitative, and mixed-method data. Publication at our Journal is especially of interest to authors who would like to benefit from an expedited publication timeline, have their work peer-reviewed from specialists in the field, be supported by a dedicated team of editors who can assist in sharpening the piece’s contribution for the legal audience, and who seek to have their work make impact on legal policy and advocacy in the United States. To provide some examples, we have previously published work evaluating racial bias in police stops, an examination of duplicative proceedings in international litigation, and a field experiment assessing incidence of judicial recusals when potential conflicts of interest come to light. You can find our past empirical issues here.

The exclusive submission window for the Vol. 120 Empirical Issue of the Northwestern University Law Review will open on April 1, 2025, and run until April 28, 2025. A subset of submissions will be selected to move forward to peer review. The Law Review will make every effort to notify authors of rejection or of advancement to peer review by June 30, 2025. Final publication decisions will be issued by August 10, 2025, with the publication date set in March 2026.

Submitted publications must be between 15,000 and 30,000 [words], and conform generally to the style and formatting expectations that are common to law reviews. For more information, please visit our website: Empirical Issue - Northwestern University Law Review or reach out to Thomas Burnett, Senior Empirical Editor for the Northwestern University Law Review at thomas.burnett@law.northwestern.edu.

Kathryn T. Preyer Prize for Early Career Scholars

 [We have the following announcement from the American Society for Legal History.  DRE]

The deadline for submissions to the Kathryn T. Preyer Prize for early career scholars is April 1, 2025.  Please email a CV, contact information, and draft paper (50 pages) max to preyeraward@aslh.net.  

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to early career legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.

Submissions are welcome on any topic in legal, institutional and/or constitutional history. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. While papers simultaneously submitted to the ASLH Program committee are eligible, Preyer Award winners must present their paper as part of the Preyer panel and will be removed from any other panel.

Submissions should consist of a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers should not exceed 50 pages (12-point font, double-spaced). In past competitions, the Committee has given preference to draft articles and essays, though the Committee will also consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is April 1, 2025.

The two Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting. The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.

Please send submissions by April 1, 2025 to preyeraward@aslh.net.

Jenkins and Peck on Antibusing Legislation and the Civil Rights Coalition

 Jeffery A. Jenkins and Justin Peck’s The Collapse of the Civil Rights Coalition: Congress and the Politics of Antibusing Legislation, 1966-86 is now available online from Law and History Review:

The legislative coalition responsible for passing the 1964 Civil Rights Act did not set out to use busing as a means to end school segregation. When it came time to implement relevant portions of the law, however, busing became the primary method for reversing “separate but equal” education. In this paper, we provide a legislative policy history detailing the unanticipated, but nearly two-decade long, congressional battle over busing. Through a detailed examination of congressional hearings, floor debate, and roll-call votes, we shed light on the collapse of the pro-civil rights coalition responsible for the landmark achievements of the early 1960s. In its place emerged a new, bipartisan, and interregional bloc of lawmakers—led by southern Democrats and Republicans but joined by a pivotal group of (ostensibly liberal) northern Democrats—who were opposed to efforts by the Supreme Court and administrative state to end school segregation in the North as well as the South.

--Dan Ernst

Bogle on Viscount Stair and Commercial Law

Stephen James Bogle, University of Glasgow School of Law, has posted James Dalrymple, Viscount Stair, 1619-1695: a pioneer of law and commerce?

James Dalrymple, Viscount Stair (NYPL)

James Dalrymple, Viscount Stair (1619-1695), is rarely associated with commercial law, yet this connection is both justified and valuable. While he does not explicitly use the term 'commercial law' or structure his writings around commercial transactions, his Institutions of the Law of Scotland, drafted between 1659 and 1661 and first published in 1681, offers an innovative theory of law and commerce. This nuanced outlook merits closer examination. Arguably, this perspective on Stair has largely been overlooked, perhaps due to the way in which the Institutions is presented as a comprehensive account of Scots customary law. However, as argued in the conclusion, to neglect the commerciality of Stair is to the detriment of our historiography of commercial law. Recognizing Stair as not only a lawyer but also a thinker on commerce highlights the significance of legal treatises to broader historical narratives. Moreover, today, there are efforts to rebuild connections between the fields of political economy and law, seeking to understand how economics and politics shapes legal thinking, and vice versa. Such efforts, however, can be enriched, it is argued here, by considering, from a historical perspective, what might otherwise appear dogmatic works of commercial law scholarship. To do that, we first need to identify who might be worth examination.

As will be argued, Stair took the ideas he found in the natural jurisprudence of Hugo Grotius - and perhaps also, those relating to free trade on the high seas - and incorporated it into domestic legal writing about internal commercial activity. Stair’s transformation of Grotius's ideas on international law, trade, and human sociability into the domestic context has not always been appreciated. However, when framed in this manner Stair’s project represents an interesting contribution to the development of commercial law literature in the early modern period.  To adequately contextualise Grotius and Stair requires a deeper examination of seventeenth century natural jurisprudence, which continued to inform legal, economic, and political ideas well into the eighteenth century. Thus, for example, Istvan Hont has shown that natural jurisprudence, including the work of eighteenth-century Scottish philosophers, provided a key bridge between legal and economic ideas, and the eventual development of national state policy. Of course, much of this is beyond the compass of this present enquiry, but it does nonetheless underscore the importance of taking commercial law scholarship seriously. Our first task, however, is to establish Stair as a notable example of commercial law scholarship, explain why, and then suggest avenues for future study.

--Dan Ernst

Forgotten Women and Men’s Spontaneous Enlightenment

My new book, We the Men, explores how America’s dominant stories about itself forget about women. This post draws on that book to highlight one mode of forgetting—simply ignoring women and their struggles for equality.

 

Some examples are concrete (literally). A 2021 survey of federal courthouses found more than 165 named for a man and just four named for a woman. Only three women made a 2021 list of the fifty most frequently commemorated people in America’s public monuments, compared to forty-four white men, many of them slaveholders.

Struggles over commemorating women have drawn much less mainstream attention than commemoration conflicts framed as centrally about race, even though many struggles over commemorating women are simultaneously intertwined with race. Perhaps our male-dominated commemorative landscape is such a perennial fact of life that it sometimes fades into the background as we enter yet another government building with a man’s name over the door or walk through yet another public square featuring a man immortalized on horseback.

But commemorations are not just decorative flourishes or scenery. They shape the vision of America that we carry around with us, which is why generations of women have fought to reconstruct the commemorative landscape and why they have faced such persistent resistance.

For example, women in and out of Congress have been fighting since the 1990s for construction of an American Women’s History Museum. That battle has lasted so long because of sustained opposition from conservative lawmakers and anti-feminist activists. As of this writing, Congress has not passed the statute required to build on the National Mall, and the museum remains years away from opening.

Women’s erasure also runs through the stories that powerful Americans tell with torrents of words rather than blocks of concrete and stone. Politicians delivering odes to America on significant anniversaries commonly celebrate the Founders for establishing government by the consent of the governed. That account depends on excluding almost everyone who was not a white male property owner.

Supreme Court opinions regularly ignore women when remembering the Court’s key decisions. They skip over both rulings that offered crucial support to women striving for equality and the many cases where the Court blocked or undid women’s progress. Law professors making lists of the Court’s most important or most terrible constitutional judgments routinely omit decisions about women’s rights.

Indeed, I was surprised to discover how frequently legal authorities and popular writers marginalize women even within discussions of women’s status. When judicial opinions mention women, judges on and off the Supreme Court often write as if men decided on their own to expand women’s rights and opportunities. I call these tales “spontaneous enlightenment stories,” and they feature in generations of popular press and political debates as well. These stories attribute progress to consensus and men’s wisdom while erasing the conflict and female agency that forward momentum required, with women needing to demand change and fight for reform against determined opponents.

For example, it remains all too common for judges, politicians, and textbook writers to describe the Nineteenth Amendment as a gift from men that “gave” all women the vote. That account is doubly misleading.

First, framing the Nineteenth Amendment as conclusively establishing women’s access to the polls misdescribes reality and implicitly centers white women. While the amendment prohibits sex-based denials of the franchise, it guarantees no one the right to vote. Laws on the books or tactics on the ground have denied many women the vote since 1920, especially women of color. Battles over voting and voter suppression rage to this day.

Second, the Nineteenth Amendment was not a gift. It was a multigenerational battle that required suffragists to overcome furious, sometimes violent, opposition. Suffragists were shot at, assaulted, knocked from picket lines, dragged on the ground, arrested while their assailants went free, brutalized in prison, and force fed.

American newsmen were apparently unable or unwilling to provide detailed photographs of anti-suffragist violence, which helped shield the violence from scrutiny. A suffragist artist refused to let the violence go undepicted. Nina Allender’s cartoons for the National Woman’s Party attracted widespread attention. Her cover art for a September 1917 edition of the Suffragist newspaper shows a male mob surrounding suffragists to wrest their banners from their hands and destroy them. One delighted hooligan has ripped the word “democracy” from a woman’s banner and claimed it for himself. The drawing was captioned: “Training for the Draft.” It illustrated how women battling for suffrage faced their own ferocious combatants, at a time when the nation was drafting young men to fight World War I.

— Jill Hasday

Fountaine on Lawyers and the Rule of Law in the Third Reich

Cynthia Fountaine, University of North Texas, has posted Complicity in the Perversion of Justice: The Role of Lawyers in Eroding the Rule of Law in the Third Reich, in St. Mary’s Journal on Legal Malpractice and Ethics:

A fundamental tenet of the legal profession is that lawyers and judges are uniquely responsible—individually and collectively—for protecting the Rule of Law. This Article considers the failings of the legal profession in living up to that responsibility during Germany’s Third Reich. The incremental steps used by the Nazis to gain control of the German legal system—beginning as early as 1920 when the Nazi Party adopted a party platform that included a plan for a new legal system—turned the legal system on its head and destroyed the Rule of Law. By failing to uphold the integrity and independence of the profession, lawyers and judges permitted and ultimately collaborated in the subversion of the basic lawyer–client relationship, the abrogation of the lawyer’s role as advocate, and the elimination of judicial independence. As a result, while there was an elaborate facade of laws, the fundamental features of the Rule of Law no longer existed and in their place had grown an arbitrary and chaotic system leaving people without any protection from a violent, totalitarian government.

--Dan Ernst

Weekend Roundup

• A recording of David Sugarman's lecture, “Hidden Histories of the Pinochet Case,” which he delivered at the University of Cambridge on December 3, 2024, is now on-line. 
  

• This March 11 event is open only to the YLS community; still, we want to note Historical Roots of the Current Catastrophe: A Conversation, with John Fabian Witt and James Q. Whitman.
  

• A podcast of Heather Cox Richardson in conversation with Dylan Penningroth on February 26 on the evolution of the Republican Party and what gives her hope for America (Berkeley Talks).

• 
  Over at Regulatory Review, a symposium has been underway on How Government Built America, by Sidney A. Shapiro, Wake Forest University School of Law and Joseph P. Tomain, University of Cincinnati College of Law.  It includes and exchange with Edward Balleisen: here and here.

• The Brennan Center has posted a report of the session at the annual meeting of the American Historical Association on originalism and the Supreme Court.  The participants were Thomas Wolf, Jane Manners, Jack Rakove, and Jennifer Tucker.

• “We should look for judges who are likely to display good judgment in their rulings," says Mark Tushnet on the Modern Law Library podcast, "and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory."  He also his experience as law clerk to Justice Thurgood Marshall.
  

• The Organization of American Historians has launched an oral history project for federal employees.   
  

• The legal historian (and University of Wisconsin-Madison Chancellor) Jennifer Mnookin's message on that "Dear Colleague" letter and recent executive order affecting colleges and universities.    The legal historian (and Dean of Georgetown Law) William M. Treanor replies to (Interim) U.S. Attorney Edward R. Martin's DEI letter. 
  

• David W. Blight, Beth English, and James Grossman on the Executive Order “Ending Radical Indoctrination in K-12 Schooling” (New Republic).

• The American Enterprise Institute has named Philip Hamburger a nonresident fellow in its Social, Cultural, and Constitutional Studies research division.
  

• The Smithsonian Magazine's notice of Martha S. Jones's The Trouble of Color: An American Family Memoir. The book is among Ebony's "must reads" and New York Times's Six Books We Recommend This Week.
  

• The Special Collections Department at the Williams & Mary Law Library has posted a digital recreation of its recent exhibit, Women in History & the Law. 
  

• A notice of Emma Kaufman's recent article on the history of private criminal prosecution (NYU Law). 
  

• An AP story has put Justin Simard's Citing Slavery Project back in the news. 

•  Jedidiah Kroncke reviews Allison Powers's Arbitrating Empire (Jotwell).

• The Rise and Fall of Treason in English History, by Allen Boyer and Mark Nicholls, has been reviewed in the English Historical Review.
  

• ICYMI, Birthright Citizenship Edition:  Kate Masur on the Strict Scrutiny podcast.  Eric Segall and Anthony Michel Kreis on Dorf on Law.  Gerard N. Magliocca on Balkinization.

• ICYMI:  Researchers uncover stories of Black Londoners who escaped slavery (Guardian). The Long History of Executive Excess (Governing). 
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Upham on "Black and Tan Conventions and the 14th Amendment

David R. Upham, St. Thomas University, has posted The "Black and Tan Conventions," Diverse Originalism, and the Fourteenth Amendment

This essay will highlight the contributions of the biracial "Black and Tan Conventions" that drafted state constitutions pursuant to the Reconstruction Acts of 1867.  I make the following conclusions: (1) that the work of these Conventions was necessary to the making of the Fourteenth Amendment, (2) that this work provides critical, if not dispositive, evidence as to that Amendment’s original meaning—especially as to what the Amendment did not prohibit—and (3) that members of the bench, bar, and academy have unjustly neglected this contribution—a neglect that has become a deafening silence among those advocating racial diversity or originalism, and the combination thereof as “diverse originalism.”

--Dan Ernst

DeBrincat on Colonial Connecticut Judges

Dominic DeBrincat, Missouri Western State University, has published, open access, Solomon in the Wilderness: Colonial Connecticut Judges and Their Qualifications, in Law, Culture and the Humanities:

In colonial America, governments relied on county court judges to render justice and maintain order. To be effective, judges needed wisdom to administer three diverse sources of authority: God’s law, English common law, and provincial statutory law. This article uses one colonial tribunal—Connecticut’s New London County Court—to explore an unasked question: what qualified these men to serve wisely as judges? Examining colonial Connecticut judges’ lives and careers unveils a bundle of shared characteristics that prepared them well to manage neighbors’ legal affairs: personal wealth, public service, military leadership, New England Indian relations, and religious administration experience.

--Dan Ernst

Desan on the US History of Public Banking

Christine A. Desan, Harvard Law School, has posted Public Banking in the United States: Historical Lessons for Today, which is forthcoming in the Williamette Law Review:

This article reviews the long history of American public banking from its start in colonial Pennsylvania to current state-level initiatives.  That history includes banks owned exclusively or in part by states – every one of the original 13 states owned stock in some of the banks it chartered.  States also conditioned charters to private investors on activities conducive to the public welfare and imposed significant taxes on bank capital.  Public ownership declined over the 19th century for several reasons, including the development of legal doctrines that enlarged corporate autonomy and their privileges as business entities, as well as the rise of profits available to banks as commercial actors.  There is a strong case for returning to public banks.  At the economic level, private retail banking lends according to criteria overly narrow to reach all deserving borrowers, particularly those whose wealth accumulation has been limited by past discrimination.  At the ethical level, a return to public banking comports with the way money is created. That operation is pervasively supported by public authority, a reality that public banking would make more transparent.

--Dan Ernst

AHA Congressional Briefing on Deportation

[We have the following announcement.  DRE.]

The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on United States deportation policies and practices. The briefing will take place on Thursday, March 13, at 9:00 a.m. ET in Rayburn House Office Building Room 2075.

Panelists Hidetaka Hirota (Univ. of California, Berkeley), Ana Raquel Minian Andjel (Stanford Univ.), and Yael Schacher (Refugees International), with moderator James Grossman (American Historical Association), will discuss history of policies related to immigration and deportation throughout US history. Topics will include the origins of deportation policy, the post WWI "Palmer Raids," mass deportations of Mexican Americans during the 1930s and 1950s, evolving policy changes around asylum, and other issues.

The event is open to the public; no registration is required. A breakfast spread and coffee will be served. If you have any questions, please email brosenbaum@historians.org.

The AHA’s Congressional Briefings series seeks to provide Congressional staff members, journalists, and other members of the policy community with the historical context essential to understanding contemporary issues. The sessions are strictly nonpartisan and avoid advancing particular policy prescriptions or legislative agendas. Recordings of our recent briefings providing historical perspectives on are available on the AHA’s website.

Berger-Howe Fellowship to Hayes

[We have the following announcement.  DRE]

The Raoul Berger-Mark DeWolf Howe Legal History Fellowship for 2025-2026 at Harvard Law School has been awarded to Jelani Hayes.  A fifth-year doctoral candidate in history at Harvard, she received her B.A. from Penn and her law degree from Yale, where she was editor-in-chief of the Yale Journal of Law & Feminism.  Her dissertation, which she expects to complete during the fellowship, is entitled, “Mother Country: The Making of the Modern Family Regulation System, 1954-1978.”

CFP: Legal Education Prognosticators in Retrospect

[We have the following announcement.  DRE]

The Journal of Legal Education is the official scholarly journal of the [Association of American Law Schools] and in that role it has and continues to play an important role in chronicling the development of legal education in the United States. For a special symposium issue dedicated to analyzing that role, the editors invite submissions of articles that reflect on one or more articles published in the journal which at the time of publication discussed the future of United States legal education and then assess how the events in the years following the publication exhibited the arguments put forward by the authors. For example, publication of the McCrate and Carnegie reports inspired articles on the what the future should hold in light of those studies. How prescient were the authors of those articles? Other articles have discussed and assessed what at the time were new developments in pedagogy, scholarship, and the profession in general. Have those developments simply continued, flourished, or withered away?

The goal is to publish in JLE work honoring its history by presenting thoughtful assessments of the plans and predictions put forward in the past with the goal of helping think more rigorously about our own future.  The entire run of JLE is available on HeinOnline and from the mid-1980s on Westlaw. Both platforms, of course, have search functions, and Hein provides a complete view of each issue.

Proposals for individual responses or collections of shorter responses all responding to the same article with an abstract of the work are due March 24, 2025 to the New York Law School editorial team at JLE-CFP@law.nyls.edu. Contributors will be notified promptly with the expectation that final drafts of articles will be due July 15, 2025.

CFP: ASLH 2025

[We are reposting the Call for Papers for the annual meeting of the American Society for Legal History to be held in Detroit on November 13-15, 2025, ass the deadline on March 25 is approaching.]

The Program Committee of the American Society for Legal History invites proposals for the 2025 meeting to be held November 13-15 in Detroit. Panels and papers on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography. The online portal opens on December 9, 2024. The deadline for Pre-Conference Symposia proposals is Friday, February 28, 2025. The deadline for all other submissions is Tuesday, March 25, 2025. All proposals except for pre-conference symposia must be submitted through this link.

Panel proposals should include the following: a CV with complete contact information for each person on the panel, including chairs and commentators; 300-word (maximum) abstracts of individual papers; and a 300-word (maximum) description of the panel. Only complete panel proposals will be considered.

Scholars looking to build a panel may post their potential paper topics here. We encourage individuals to peruse this spreadsheet to identify other scholars with common interests, beyond their familiar networks. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All program participants must be current members of the Society by the date of the Annual Meeting. Information on how to build a successful panel can be found here. The Program Committee especially encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

In addition to traditional panels featuring presentations of work in progress, the Program Committee welcomes other forms of structured presentation for a 90-minute slot, such as a skills/pedagogical workshop (chair, 3-4 presenters) or a roundtable format (chair, 3-5 presenters).

Following last year’s highly successful inaugural session, this year’s Annual Meeting will also dedicate a session to a presentation and discussion of Digital Legal History projects. Individuals interested in participating in this session should submit a short description of their project (up to 300 words) as well as a CV. As a complement to the session, there will be a poster display of the accepted projects. Accepted participants in the Digital Legal History session will be asked to submit a poster design to the organizers by early October. Posters will be printed onsite.

In addition to the above formats, this year’s meeting will also consider New Directions panels. The purpose of these panels will be to identify cutting-edge methodological and topical directions in legal history, to define new subfields, and/or generate dialogue among scholars whose recent books (published since 2022 or forthcoming) have tackled common historiographic questions. These panels will feature three to five authors of new books organized by theme, chronology, methodology and may also include scholars writing review essays of a field, or others similarly positioned. The session abstract should include the author, title, publisher, and publication date for each proposed book. Please note that the Program Committee will devote only a small number of sessions to this type of panel. The New Directions panels replace the Author-Meets-Readers (AMR) panels which were formally on the program; AMRs will not be available for the 2025 meeting.

[For a table setting out requirements for the submission of various types of panels, please visit the ASLH website.]

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. We especially encourage proposals for pre-conference events that will involve scholars in emerging fields or in fields previously underrepresented at ASLH conferences and/or that will promote early career scholarly development. We encourage those considering submitting a proposal for pre-conference symposia to be in touch with the program committee chairs. To submit a proposal, please email the program co-chairs directly to provide a short proposal (1-2 pages) including program title, the intended length of program, and a program description, as well as a CV and contact information for each presenter. The Program Committee is available to consult with organizers of such symposia as they develop their proposal, but pre-conference symposia must be self-funded. Organizers are encouraged but not required to host their symposia at the conference hotel. Please note that the deadline for these submissions is earlier than the deadline for main conference submissions so that organizers whose symposia are not selected have an opportunity to submit their panels to the main conference.

As a general matter, we will not be able to accommodate special scheduling requests, nor will we be able to support hybrid or virtual presentations or panels. (For a fuller explanation of this policy, please see the ASLH Annual Meetings FAQ page.) Until a draft of the program is circulated, prospective presenters, chairs, and commentators at the main conference should plan to be available in person on Friday, November 14, and Saturday, November 15.

The ASLH has a strict one-appearance policy (excluding appearances at pre-conference symposia). Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows, contingent faculty, and scholars from abroad.

The members of the Program Committee are Maggie Blackhawk, Jocelyn Hendrickson, Zach Herz, Hide Hirota, Youssef Ben Ismail, Jedidiah Kroncke, Tim Lovelace, Jane Manners, Noah Rosenblum, Natasha Wheatley, and Yanna Yannakakis. The co-chairs of the Program Committee are Deborah Dinner (deborah.dinner@cornell.edu) and Jessica Marglin (marglin@usc.edu).

Machona on the Ilbert Controversy of 1883

Now available online from Law and History Review: Constitutional Panic in British India: How the Ilbert Bill Controversy of 1883 Revealed the Constitutive Character of Racial Discrimination in the British Empire, by Gwinyai Machona:

Until today, not only the general public but also scholars of colonialism and imperialism debate about the extent to which Europeans were aware of the centrality of racial discrimination for colonialism and empires. Those who stress that racism was the foundation of European colonialism appear to be anachronistic. However, as this essay demonstrates, at least the British of the late nineteenth century were well-aware of the constitutive character of racial discrimination for their Empire. During the “constitutional panic” which the proposal of the Ilbert Bill in 1883 caused, the arguments exchanged in newspapers, town hall meetings and parliamentary debates revealed the racist foundation of British India. One contemporary observed “the unhappy tendency of this controversy to bring into broad daylight everything which a wise and prudent administrator should seek to hide.” This essay seeks to bring into broad daylight once again what has been widely forgotten or ignored. Statements in Parliament expressing that it was “perfectly impossible and ridiculous, so long as we retained our hold on India, to give Native races full equality” testify for explicitness of the debate. Analyzing the arguments against the Ilbert Bill, which sought to introduce full racial equality in the judiciary, serves for better understanding the foundation of British India.

--Dan Ernst

Legal Transfer and Legal Geography in the British Empire

The Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie have published, open access, Legal Transfer and Legal Geography in the British Empire: Global Perspectives on Legal History, edited by Donal K. Coffey and Stefan Vogenauer:

The legal history of the British Empire is in its infancy. The research field ‘Legal Transfer in the Common Law World’ in the Max Planck Institute for Legal History and Legal Theory under the Directorship of Prof Stefan Vogenauer has been engaged in scientific examination and analysis of this field. In 2021, the Third Legal Histories of Empires Conference was held in the National University of Ireland, Maynooth. A stream looking at the state of the art in Legal Transfer in the Common Law World was organized by Stefan Vogenauer and Donal Coffey, who have co-edited this volume which flows from that stream.

The book argues that a comparative approach can overcome jurisdictional and ahistorical biases still often present in the legal history of empires. In an imperial legal superstructure, such as the British Empire(s), models of legislative and interpretative methods were self-consciously adopted and adapted to different jurisdictions. Moreover, the process of decolonisation disclosed similarities and divergences in the legal development of these territories. Useful insights can be gleaned from a comparison across different methodologies which are concerned with a similar normative framework between and within societies, and their relationship to the natural world.

The volume has two parts. The first presents four case studies for legal transfers in chronological order. Philip Girard’s chapter traces the evolution of the law regulating employers’ liability for injured workers in Quebec. Matilde Cazzola’s work looks at the evolution of the ‘protective principle’ and its deployment through a comparative lens, with a particular focus on the United Kingdom and the Australian colonies in the 19th century. Scott A. Carrière looks at the evolution of law in colonial Newfoundland, and in particular at the relationship between contract law, charters, and Company States. In Hong Kong, Christopher Roberts and Hazel W. H. Leung analyse the evolution of vagrancy law.

The second part contains a number of contributions engaging with the burgeoning field of legal geography in the context of the Empire. This is based around the ‘Property [In]Justice’ ERC group in University College Dublin headed by Amy Strecker. It includes chapters on the Caribbean by Amanda Byer, Southern Africa by Sonya Cotton, Kenya by Raphael Ng’etich, and a chapter by Sinéad Mercier on Ireland.

The different areas of law covered – including inter alia public law, employment law, land law – demonstrate the vitality of the comparative method.

--Dan Ernst.  TOC after the jump.

Birthright Citizenship: Kreis et al. and Lash

Anthony Michael Kreis, Georgia State University College of Law, Evan D. Bernick, Northern Illinois University College of Law, and Paul A. Gowder, Northwestern University Pritzker School of Law, have posted Birthright Citizenship and the Dunning School of Unoriginal Meanings, which is forthcoming in Cornell Law Review Online:

This essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett and Ilan Wurman. Under the guise of "originalism," Barnett, Wurman, and others propose an ahistorical, revisionist interpretation of the Fourteenth Amendment's Citizenship Clause. They suggest that the term "jurisdiction" should be understood as "allegiance," seemingly to give the veneer of legitimacy to the Trump Administration's view that the children of undocumented immigrants may not be American citizens. The essay argues that Barnett and Wurman's approach, which attempts to radically redefine the historical understanding of citizenship, is methodologically flawed and undermines core principles of constitutional law. The critique exposes the inaccuracies and inconsistencies in their position and scrutinizes the scholarly merit of new theories of birthright citizenship that are wildly inconsistent with constitutional text, history, precedent, and unbroken tradition. The essay concludes by examining the professional responsibility of legal scholars to engage in rigorous, fact-based historical analysis rather than politically motivated reinterpretations that threaten to destabilize fundamental constitutional rights.

And Kurt Lash, University of Richmond School of Law, has posted Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment Citizenship Clause:

The current debate over the original meaning of the so-called Birthright Citizenship Clause generally divides over how much weight to give each of the two requirements for birth citizenship. Some scholars emphasize the role of birth on American soil, making it dispositive unless trumped by a limited and closed set of common law “exceptions.” Other scholars claim the second requirement of “jurisdiction” must be given equal and independent weight. For example, some scholars claim there must be independent evidence that one has become “subject” by way of mutual consent or positive allegiance to the American sovereign.

This essay proposes a different and more historically justified way to understand the dual requirements of birth citizenship: Prima facie citizenship. As explained by Attorney General Edward Bates in his influential 1862 Report “On Citizenship,” prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the person was not born “subject to the jurisdiction” of the United States. That requirement involves considerations of familial allegiance to the law-speaking authority of the people of the United States.

This approach solves a number of conundrums unexplained under either of the standard approaches. For example, it explains why children born on the same “invader-occupied” American soil have different citizenships depending on the allegiance of their parents. It also explains why children born to foreign diplomats are not American citizens even if born on the obviously American soil of an American hospital. Finally, and most importantly to the framers of the Fourteenth Amendment, it explains why children born on American soil to Native American parents who refused to be bound by either the laws of their Tribal Government or the laws of the United States were not considered to have been born “subject to the jurisdiction of the United States.”

This last group are most analogous to children born to non-citizen parents who intentionally enter the United States in violation of the law-speaking authority of the sovereign people of the United States. According to the original understanding of the Citizenship Clause, these children were born in the United States, but not in a manner “subject to the jurisdiction thereof.” This would not be true, however, of children born to parents kidnapped and illegally smuggled into the United States in violation of laws banning the international slave trade.

--Dan Ernst

We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality

I am excited to spend March as a guest blogger for the Legal History blog. Thanks to Karen Tani and Dan Ernst for inviting me. 

My posts will preview my latest book, We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Oxford University Press forthcoming March 13, 2025). The United States Constitution purports to speak for “We the People.” I wrote this book because too many of the stories that powerful Americans tell about law and society include only We the Men. 

America’s dominant modes of forgetting about women help perpetuate women’s inequality, rationalizing the status quo, promoting complacency, and undercutting reform. I argue that remembering women’s stories more often and more accurately can help the nation advance toward sex equality. 

Stay tuned for more posts. Let’s celebrate Women’s History Month—while it still exists.

 — Jill Hasday

Welcome, Jill Hasday!

We at LHB are thrilled to welcome back Professor Jill Hasday as a guest blogger for the month of March. Some highlights from Professor Hasday's University of Minnesota faculty webpage:

Professor Jill Hasday teaches and writes about anti-discrimination law, constitutional law, family law, and legal history. She is the author of three books: Family Law Reimagined (Harvard University Press 2014), Intimate Lies and the Law (Oxford University Press 2019), and We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Oxford University Press forthcoming 2025).  Intimate Lies and the Law won the Scribes Book Award for “the best work of legal scholarship published during the previous year” and the Foreword INDIES Book of the Year Award for Family and Relationships.

Professor Hasday’s articles have appeared in many leading law reviews, including the Harvard Law Review, Stanford Law Review, New York University Law Review, Michigan Law Review, California Law Review, Georgetown Law Journal, UCLA Law Review, Vanderbilt Law Review, and Minnesota Law Review.

Professor Hasday received her B.A. from Yale University in 1994, graduating summa cum laude with distinction in history and winning election to Phi Beta Kappa. In 1997, Professor Hasday graduated from Yale Law School, where she was an articles editor of the Yale Law Journal and received honors in all graded courses. After law school, Professor Hasday clerked for Judge Patricia M. Wald of the United States Court of Appeals for the D.C. Circuit.  Professor Hasday joined the University of Minnesota Law School as a tenured faculty member in 2005. She has been the Centennial Professor in Law since 2013.

She will be blogging mainly about her new book We the Men, which we profiled earlier this month (here).

Welcome, Professor Hasday!

-- Karen Tani