Weekend Roundup

• Lauren Benton, President of the American Society for Legal History, 2020-2021, has announced that the annual meeting of the ASLH scheduled in New Orleans for November 4-7 is still on.  In her email to ASLH members, she acknowledges that “the decision to attend is highly personal and contingent on many factors” and provides much information to help members make it.  (A Twitter thread is here.)
  

• In JOTWELL's Legal History Section: Mary Ziegler (Florida State University College of Law) on Jennifer Holland's Tiny You: A Western History of the Anti-Abortion Movement (2020).

• Writing for the blog of the Society for Historians of the Gilded Age and Progressive Era (SHGAPE), Elizabeth D. Katz (Washington University, St. Louis) discusses "Women’s 'Chilly Path' to the New York Judiciary."
  

• The American Bar Foundation has announced that its Research Director, Ajay Mehrotra, will leave the position next year.  A former LHB Guest Blogger, Professor Mehrotra will remain a Research Professor at the ABF and will continue his position as Professor of Law at Northwestern University Pritzker School of Law.  He is the author of Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013) which won the Society for U.S. Intellectual History Annual Book Award for 2014.
  

• In the web-based Journal of the American Revolution: Haimo Li on Jefferson and Burke's attitudes towards the French Revolution.

•  Over at legally_queer, "Public Parks and Police Entrapment of Gay Men."   
  

• A recording of Sam Erman's Constitution Day lecture on Almost Citizens for the Supreme Court Historical Society is now available on YouTube.
  

• The FDR Presidential Library and Museum is sponsoring a virtual conference on October 12-15, 2021: Examining American Responses to the Holocaust: Digital Possibilities.
  

• ICYMI: Martha S. Jones's book deal (NYT).  "A sheet of paper at Columbia’s Rare Book and Manuscript Library shows how a Black woman sought—and won—justice in 1791 America" (Columbia News).
  

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

Dayton on Phillis Wheatley's Lost Years

Credit: NYPL

Sometimes when you’re a legal historian just doing your job you turn up something unexpected and wonderful.  Cornelia H. Dayton, University of Connecticut, was minding her business, reading the records of every contested will case in colonial Massachusetts she could find, when she came across one with an appellant by the name of Peters.  His wife was never mentioned by name but turned out to be Phillis Wheatley, the celebrated African-born poet, manumitted by her owner in the 1770s.  Wheatley’s life after her marriage to John Peters in 1778 has been quite obscure–until Professor Dayton discovered over 120 documents generated by litigation over a bequest in Peters’s former owner.  The result is the just-published Lost Years Recovered: John Peters and Phillis Wheatley Peters in Middleton,” New England Quarterly 94 (September 2021): 309-351.

Professor Dayton has won the Walter Muir Whitehill Prize of the Colonial Society of Massachusetts for the article.  She will discuss it in the Pauline Maier Early American History Seminar of the Massachusetts Historical Society on Tuesday, September 21, 2021, from 5:15PM - 6:30PM.

–Dan Ernst

Stanford Law and History Workshop

 [We share the following announcement.]

Stanford Center for Law and History Workshop: 

2021-2022 Schedule

The Stanford Center for Law and History has announced the lineup for its 2021-2022 workshop. Feel free to email us at sclh@law.stanford.edu to be added to our mailing list or if you have any questions.  As each workshop approaches, we will send an email to those on our list with details concerning location and/or accessibility via Zoom.

Oct. 19, 2021: Mark Krass, Stanford Law and Political Science

Debunking the Non-Delegation Doctrine for State Regulation of Federal Elections

Nov. 2, 2021: Margarita Lila Rosa, Lecturer and Mellon Postdoctoral Fellow, Stanford 

Marginalia: Black Women and Emerging Carceral Geographies in Rio de Janeiro, 1880-1888

Nov. 16, 2021: Sara Forsdyke, Classical Studies & History, University of Michigan

Democratic Justice: The Jury Trial in Ancient Greece and Criminal Justice Reform In the United States

Jan. 18, 2022: Orit Malka, Taube Center for Jewish Studies, Stanford

The Law of the Land: Ancient Religion v. The Modern State

Feb. 1, 2022: Susanna Blumenthal, Minnesota Law and History (Speaker via Zoom)

The Apprehension of Fraud in Modern America

Mar. 1, 2022: Lisa Ford, University of New South Wales History (Speaker via Zoom)

Commissions of Inquiry and the Remaking of British Colonial Slavery, 1822 - 1831

Mar. 29, 2022: Emanuele Conte, Roma Tre University

From history to Theory and Back. Otto von Gierke, Santi Romano, and Francesco Calasso on Medieval Institutions and Legal Pluralism

April 12, 2022: Kevin Mumford, University of Illinois History

Unmasking the Fourth Ku Klux Klan and the Problem of Hate

May 10, 2022: Francesca Trivellato, Institute for Advanced Study, School of Historical Studies

Renaissance Florence and the Origins of Capitalism: A Business History Perspective

--posted by Mitra Sharafi

Landauer on Alexandrowicz and international law (part 2)

Carl Landauer, international lawyer, has published "The Polish Rider: C. H. Alexandrowicz and the reorientation of international law, Part II: declension and the promise of renewal" in the London Review of International Law, volume 9, issue 1 (March 2021), pp.3-36. We posted this on part 1 when it came out last year. Here's the abstract for part 2: 

This article is the second of a two-part analysis of the work of the international legal historian, CH Alexandrowicz. Part II analyses Alexandrowicz’s narrative of the decline of international law represented by 19th-century positivism and the scramble for African territory, where legal principles such as the protectorate became mere tools for acquisition, and treaties bereft of obligation. It traces his sympathy for the post-independence ‘new states’, his hope for the renewal of international law, the Romantic narrative imbuing his secular, modernist eschatology, and his continuing engagement with Indian Constitutional development.

Further information is available here.

--Mitra Sharafi 

Bentham around the World

Just out from Talbot Publishing: Bentham Around the World, edited by Simon Palmer and Zhai Xiaobo.  It is a title in the JCL Studies in Comparative Law, Second Series.

This collection of essays covers the reception of Jeremy Bentham's legal and political thought in a variety of different countries and historical periods. Authors from around the world explore how Bentham's utilitarian program of legal and political reform was disseminated (and sometimes distorted) in the United States, France, Germany, Japan, Russia, China, Italy, Spain and Australia. Themes or issues shared amongst the essays include the prominent role Etienne Dumont's famous redactions of Bentham's texts played in the early international reception of Bentham's thought, the ways in which Bentham's theories of law and government both succeeded and failed to penetrate political cultures that possessed natural law leanings and, relatedly, the apparent philosophical plasticity of Bentham's thinking (from which both liberal and authoritarian traditions have tried to profit). Together, the essays offer a fresh perspective on the relationship between Bentham's legal and political thought and the global history of utilitarianism.

–Dan Ernst

Kexel Chabot on "Interring the Unitary Executive"

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted Interring the Unitary Executive:

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.

Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

–Dan Ernst

Kresin’s "Comparative Law In Warsaw"

O.V. Kresin’s Comparative Law In Warsaw, 1800-1835, edited and translated by William E. Butler has now been published the Lawbook Exchange's JCL Studies in Comparative Law, Second Series.

The Partitions of Poland (1772, 1793, 1795) and Napoleon’s invasions of Central and Eastern Europe (1806–1813) made the territories of the former Polish-Lithuanian Commonwealth an unexpected recipient of legal traditions and substantive law imposed by conquering neighbors. At the same time the science of comparative law was beginning to develop. Influenced by these events and a keen interest in German legal thought and French codification, Polish jurists debated the appropriate balance of imported versus autochthonic law, the proper role of legal education, the development of a legal consciousness and the social role of the jurist. This is the first comprehensive study in English to examine the genesis of comparative legal studies in Poland, and Polish contributions to that field, during this decisive era in European history.

Oleksiy Kresin is “a leading Ukrainian comparative lawyer” and Head of the Center of Comparative Jurisprudence, Koretsky Institute of State and Law, National Academy of Sciences of Ukraine. William E. Butler is the John Edward Fowler Distinguished Professor of Law, Dickinson School of Law, Pennsylvania State University.

--Dan Ernst

Lobban on imperial incarceration

Michael Lobban (LSE) has published Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa with Cambridge University Press. The book is available on an open access basis. From the publisher: 

For nineteenth-century Britons, the rule of law stood at the heart of their constitutional culture, and guaranteed the right not to be imprisoned without trial. At the same time, in an expanding empire, the authorities made frequent resort to detention without trial to remove political leaders who stood in the way of imperial expansion. Such conduct raised difficult questions about Britain's commitment to the rule of law. Was it satisfied if the sovereign validated acts of naked power by legislative forms, or could imperial subjects claim the protection of Magna Carta and the common law tradition? In this pathbreaking book, Michael Lobban explores how these matters were debated from the liberal Cape, to the jurisdictional borderlands of West Africa, to the occupied territory of Egypt, and shows how and when the demands of power undermined the rule of law.

 Praise for the book: 

"Michael Lobban has produced an extraordinary work of forensic history-reconstructing a wide range of legal practices spanning the breadth of English dominion throughout Africa over two centuries. His book stands as a ‘truth commission’ for past wrongs and an essential precursor to any possible reconciliation." - Richard Abel

"Original and meticulously researched, Lobban’s book places the legal politics of detention at the heart of histories of rebellion, protectorates, and martial law. A valuable addition to the legal history of Africa and the British Empire." - Lauren Benton

"Michael Lobban is the leading historian of English legal thought. Here he brings his formidable talents to bear on law’s role in facilitating and regulating detention without trial in Britain's African colonies. This is at once an important contribution to history, to legal theory, and to our understanding of empire." - David Dyzenhaus

Further information is available here.

--Mitra Sharafi

Jelani Cobb Profiles Derrick Bell

 "The Man Behind Critical Race Theory, Jelani Cobb's New Yorker profile of Derrick Bell, is here.

Capozzolla to Discuss "Bound by War"

UNLV’s observance of Constitution Day is “a virtual/live discussion led by Christopher Capozzola on his book, Bound By War: How the United States and the Philippines Built America's First Century, on September 17, 2021, 4pm to 5:15pm (Pacific Time, we assume).  “The long and entwined military history of the United States and the Philippines has raised fundamental questions about the U.S. constitution. How have Americans and Filipinos debated that shared constitutional history, and how might it inform contemporary policy?”  Preregister and submit questions here.

--Dan Ernst

Weekend Roundup

• Just announced: On "Thursday, November 4, immediately before the main conference begins, the American Society for Legal History is hosting an in-person preconference event on Regulation and Administration in American Life: Legal Historical Perspectives."

• ASLH members: last call for submissions to the Projects and Proposals Committee.
  

• Over at Talking Legal History, Siobhan M. M. Barco talks with former LHB Guest Blogger Samuel Fury Childs Daly “about his J. Willard Hurst Prize winning book A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020). Daly is Assistant Professor of African and African American Studies and History at Duke University."

• 
  John Fabian Witt reviews Samuel Moyn's Humane: How the United States Abandoned Peace and Reinvented War over at Just Security and discusses it with Professor Moyn on the Digging a Hole podcast.
  

• Law schools on their recent hires of legal historians: NYU on Maggie Blackhawk and Noah Rosenblum. Iowa on Andrew Lanham.   
  

• Over at JOTWELL: Christopher Walker (Ohio State University Moritz College of Law) on Emily Bremer's "The Rediscovered Stages of Agency Adjudication"; Erin F. Delaney (Northwestern Pritzker School of Law) on Paul F. Scott, "The Privy Council and the constitutional legacies of Empire,"

• The Bristol Centre for Law and History Research welcomes Dr Andrew J. Bell, a lecturer at the University of Bristol Law School.  "His research focuses on the law of obligations, comparative law and – excitingly for us! – comparative legal history.”  More.
  

• In Custodia Legis, the blog of the Law Library of Congress, continues to offer interesting glimpses of its Herencia collection: "The Royal Order of October 1749 and the Historic Consequences of the Great Roma Round-up"; "Limpieza de Sangre: Legal Applications of the Spanish Doctrine of 'Blood Purity.'"
  

• From the Washington Post's "Made by History" section: Maia Silber (Princeton University), "The Supreme Court ended the eviction ban but not the fight against evictions"; Warren E. Milteer Jr. (University of North Carolina at Greensboro), "Voters elect representatives. But often it is politicians who pick their voters"; and more.
  

• Over at the LPEBlog, the symposium on Destin Jenkins' Bonds of Inequality continues.

• The Lilian Goldman Law Library at Yale Law School has announced a new exhibit: “Fresher, More Recent Tragedies”: Media and the Memory of the Attica Prison Uprising.

• ICYMI: Relocating the grave of a leading Tennessee lawyer (Tennessean).  “A rock star of local theater will help tell the stories of enslaved people in Prince George’s County, Maryland, who successfully filed lawsuits in the 1700s that led to their freedom” (WTOP).
  

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

A Legal History of Australia

Sarah McKibbin, Libby Connors, and Marcus Harmes have published A Legal History for Australia (Bloomsbury):

This is a contemporary legal history book for Australian law students, written in an engaging style and rich with learning features and illustrations. The writers are a unique combination of talents, bringing together their fields of research and teaching in Australian history, British constitutional history and modern Australian law.

The first part provides the social and political contexts for legal history in medieval and early modern England and America, explaining the English law which came to Australia in 1788. This includes the origins of the common law; the growth of the legal profession; the making of the Magna Carta; the English Civil Wars; the Bill of Rights; the American War of Independence.

The second part examines the development of the law in Australia to the present day, including the English criminal justice system and convict transportation; the role of the Privy Council in 19th century; Indigenous Australia in the colonial period; the federation movement; Constitutional Independence; the 1967 Australian referendum and the land rights movement.

The comprehensive coverage of several centuries is balanced by a dynamic writing style and tools to guide the student through each chapter including learning outcomes, chapter outlines and discussion points.

The historical analysis is brought to life by the use of primary documentary evidence such as charters, statutes, medieval source books and Coke's reports, and a series of historical cameos - focused studies of notable people and issues from King Edward I and Edward Coke to Henry Parkes and Eddie Mabo - and constitutional detours addressing topics such as the separation of powers, judicial review and federalism.

A Legal History for Australia is an engaging textbook, cogently written and imaginatively resourced.

–Dan Ernst

Blocher and Gulati on the US's First Overseas Territory

Joseph Blocher, Duke University School of Law, and Mitu Gulati, University of Virginia School of Law, have posted Navassa: Property, Sovereignty, and the Law of the Territories, which is forthcoming in the Yale Law Journal:

The United States acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the history of the law of the territories—a story that continued 50 years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States. Modern scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights, citizenship, and self-determination. But the property framework, and accompanying private-law tools, can also play an important role in understanding and dismantling the existing colonial structure.

–Dan Ernst

FDR and the Supreme Court

FDR, March 9, 1937 (LC)

The Franklin D. Roosevelt Library's Constitution Day event is FDR and the Supreme Court, a live conversation, on YouTube Premier and Facebook Live, with Library Director Paul Sparrow, Ralph Blumenthal, Baruch College, and John Q. Barrett, St. John's University School of Law. Q&A in the comments to follow the discussion. Friday, September 17, 2021, 6pm ET.

--Dan Ernst

Hoffer's "Daniel Webster and the Unfinished Constitution"

Peter Charles Hoffer, University of Georgia, has published Daniel Webster and the Unfinished Constitution (University Press of Kansas):

Daniel Webster and the Unfinished Constitution reveals Webster as the foremost constitutional lawyer of his day. Peter Charles Hoffer builds a persuasive case that Webster was more than a skilled practitioner who rose rapidly from his hardscrabble New Hampshire origins. Hoffer thoroughly documents the ways in which Webster was an innovative jurist. While Chief Justice John Marshall gets credit for much of our early constitutional jurisprudence, in fact in a series of key cases Marshall simply borrowed Webster’s oral and written arguments.

For Webster, Marshall, and many lawyers and jurists of their day, professions of adherence to the Constitution were universal. Yet they knew that the Constitution could not be fixed in time; its text needed to be read in light of the rapidly transforming early republic and antebellum eras or it would become irrelevant. As Chief Justice Marshall explained in Bank of the United States v. Deveaux (1809): “A constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles.” But were these “broad and general principles” themselves fixed? For Webster there were landmarks: the Contract Clause and the Commerce Clause. While others were exploring and surveying the Northwest Territory and the Louisiana Purchase, Webster set out to map the spaces in the constitutional and legal landscape that were unmarked.

Some encomia after the jump.

–Dan Ernst

Reynolds's "Instruments of Peacemaking"

Michael Reynolds, Visiting Senior Research Fellow, Department of International History, London School of Economics and Political Science, has published Instruments of Peacemaking 1870-1914 (Bloomsbury):

This book focuses on Anglo-American disputes arising out of the civil war in the United States and British interests in the American continent: the Geneva Arbitration, the Venezuela-Guiana Arbitration and the Bhering Sea Arbitration. It draws on those cases as model proceedings which laid the foundations and inspiration for a promotion of international law through the Hague Conferences and by the work of English and American jurists. It considers the encouragement these cases gave to the promotion of public international law and how that contributed to the resolution of inter-state disputes.

Table of Contents after the jump

–Dan Ernst

Akande to Osgoode Hall

Rabiat Akande has joined Osgoode Hall Law School at York University in Toronto as an Assistant Professor. Prof. Akande's research examines West African legal history, among other topics. 

From her faculty profile: 

Professor Rabiat Akande works in the fields of legal history, law and religion, constitutional and comparative constitutional law, Islamic law, International law, and (post)colonial African law and society. Her current research explores struggles over religion-state relations in comparative contexts and illuminates law’s centrality to one of modernity’s most contested issues–the relationship between religion, and the state, and society–while also interrogating law’s complex relationship with power, political theology, identity, and socio-political change. These issues are at the forefront of her book project, "Constitutional Entanglements: Empire, Law and Religion in Colonial Northern Nigeria" (under contract with Cambridge University Press), which traces the emergence of “secularism” as a constitutional idea of ordering religion-state relations in early to mid-twentieth century British Colonial Northern Nigeria, and grapples with the postcolonial legacy of that inheritance.

Dr. Akande is a lifelong Academy Scholar at Harvard University Academy for International and Area Studies where she was in residence from 2019 to 2021. She graduated from Harvard Law School in 2019 with her dissertation, “Navigating Entanglements: Contestations over Religion-State Relations in British Northern Nigeria, c. 1890-1978” receiving the Law and Society in the Muslim World Prize. At Harvard University, Dr. Akande held the Clark Byse fellowship at the Law School, and was a Dissertation Fellow and Graduate Student Associate at the Weatherhead Center for International Affairs. She also served as an editor of the Harvard International Law Journal. Dr Akande taught several courses at Harvard, both at the Law School, and the Department for African and African American Studies. She also served as adjunct faculty at Northeastern University School of Law. Prior to her graduate work, Dr. Akande was an associate at G. Elias Solicitors and Advocates, Lagos. She obtained her Bachelor of Laws from the University of Ibadan, graduating with a First Class Honors and at the top of her class and later studied at the Nigerian Law School from which she also graduated with a First Class Honors.

Dr. Akande’s work has been supported by fellowships and grants including the Cravath International research fellowships, the Weatherhead Center for International Affairs fellowship, Harvard Academy grants, the Program on Law and Society in the Muslim World research grant, as part of a Law and Society Association International Research Collaborative, among others.

Congratulations to Prof. Akande and to Osgoode Hall!

Further information is available here.

--Mitra Sharafi 

Legal History Chair at Tilburg Law

 [We noticed this listing a Chair in Legal History at Tilburg Law.  DRE.]

The field of legal history is currently represented at Tilburg Law School within the Department of Global Law and Governance by a team of 5 tenured/tenure track faculty (1 part-time professor, 1 associate professor, 3 assistant professors), plus a varying number of junior lecturers and PhD fellows. (See [here]). The group provides several mandatory courses at the bachelor level in the LLB Dutch Law (Europese Rechtsgeschiedenis, The World’s Legal Systems) and the LLB Global Law (History of International Law; Global Legal History). It also offers legal history courses in at the master level and general history courses in the University’s bachelor in Liberal Arts and Sciences. It presently has two main research focuses: history of international law and, more recently, history of economic law. Both are included in the department’s research program Global Law and Governance.

The new chair in legal history is expected to develop an own research line and provide intellectual inspiration and leadership to the legal historians at Tilburg. The acquisition of external research funding is part of the portfolio of tasks. She/he will take a prominent and visible role in teaching, both in the mandatory courses at the bachelor level and in optional courses at the master level. Teaching may both be in English as in Dutch. She/he will also be available for managerial tasks within the department and the law school.

A Transnational Legal History Workshop

 [We have the following announcement.  DRE]

The current pandemic has encouraged many to experiment with new formats for research and teaching. In our own contribution to the trend, the Max Planck Institute for Legal History and Legal Theory and the Faculty of Law at Tel Aviv University, in cooperation with the Faculty of Law at Goethe-Universität Frankfurt, will be hosting an online Transnational Legal History Workshop this coming semester.

Participants will discuss pre-circulated legal history papers that go beyond national framings, with authors hailing from institutions around the world. A sample of authors and topics:

• James Whitman, "From Masters of Slaves to Lords of Lands: Imagining Ownership in the Western World"
  

• Doreen Lustig, "Towards a Grassroots History of International Law"
  

• Tamara Morsel-Eisenberg, "Rabbinic Responsa and Legal Communication"
  

• Paul du Plessis, "The Limits of Legal History"
  

• Elisabetta Fiocchi, "Transnational Entanglements in Land Law and Land Registration in the 19th Century"
  

• Heikki Pihlajamäki, "Transnational Elements in Colonial Laws: Spain, Portugal and the Netherlands"
  

The workshop will meet online Tuesdays at 7 pm Frankfurt time from mid-October to mid-January (with a break for Christmas/New Years).

Participation in the workshop is open to all interested scholars, junior and senior alike. Students may be able to receive academic credit through Tel Aviv University.

For more information and to register participation, please contact mpitauwkshp@gmail.com.

Thomas Duve (MPI & Goethe)
David Schorr (TAU)
Stefan Vogenauer (MPI & Goethe)

Colley on warfare and constitutions

 Linda Colley (Princeton University) has published The Gun, the Ship, and the Pen:
Warfare, Constitutions, and the Making of the Modern World with Norton. From the press:

A work of extraordinary range and striking originality, The Gun, the Ship, and the Pen traces the global history of written constitutions from the 1750s to the twentieth century, modifying accepted narratives and uncovering the close connections between the making of constitutions and the making of war. In the process, Linda Colley both reappraises famous constitutions and recovers those that have been marginalized but were central to the rise of a modern world.

She brings to the fore neglected sites, such as Corsica, with its pioneering constitution of 1755, and tiny Pitcairn Island in the Pacific, the first place on the globe permanently to enfranchise women. She highlights the role of unexpected players, such as Catherine the Great of Russia, who was experimenting with constitutional techniques with her enlightened Nakaz decades before the Founding Fathers framed the American constitution. Written constitutions are usually examined in relation to individual states, but Colley focuses on how they crossed boundaries, spreading into six continents by 1918 and aiding the rise of empires as well as nations. She also illumines their place not simply in law and politics but also in wider cultural histories, and their intimate connections with print, literary creativity, and the rise of the novel.

Colley shows how—while advancing epic revolutions and enfranchising white males—constitutions frequently served over the long nineteenth century to marginalize indigenous people, exclude women and people of color, and expropriate land. Simultaneously, though, she investigates how these devices were adapted by peoples and activists outside the West seeking to resist European and American power. She describes how Tunisia generated the first modern Islamic constitution in 1861, quickly suppressed, but an influence still on the Arab Spring; how Africanus Horton of Sierra Leone—inspired by the American Civil War—devised plans for self-governing nations in West Africa; and how Japan’s Meiji constitution of 1889 came to compete with Western constitutionalism as a model for Indian, Chinese, and Ottoman nationalists and reformers.

Vividly written and handsomely illustrated, The Gun, the Ship, and the Pen is an absorbing work that—with its pageant of formative wars, powerful leaders, visionary lawmakers and committed rebels—retells the story of constitutional government and the evolution of ideas of what it means to be modern.

Praise for the book:

 "As a piece of historical thinking, argument and writing, it is magisterial by every criterion, the most impressive outcome, thus far, of what has already been a career of great creativity. It is a measure, equally, of how the discipline of history has changed over the past twenty years." - Richard Drayton

"[A] terrific new global history of constitutions.... [of] many captivating stories.... Colley has produced a brilliant world history. The Gun, the Ship and the Pen is a compelling and stylish corrective to any notion that constitutions are a somnolent backwater devoid of drama and historical significance." - H. Kumarasingham

"A wide-ranging, beautifully written global history... Colley’s narrative is rich, and she emphasizes the colorful characters who have contributed to constitution-making projects around the world." - Tom Ginsburg

"If there were a Nobel Prize in History, Colley would be my nominee… An incandescent, paradigm-shifting new book." - Jill Lepore

More information is available here.

--Mitra Sharafi

Weekend Roundup

• The Federal Judicial Center has posted another entry in its "Spotlight on Judicial History" series: The 1957 Employers' Liability Cases.
  

• Via Legally Queer on Instagram: Justice Thurgood Marshall's LGBTQ Legacy.
  

• Orville Vernon Burton and Armand Derfner discuss their book Justice Deferred: Race and the Supreme Court on Illinois Public Radio.
  

• Twitter--or at least our portion of it--is abuzz with news of a website at Rutgers University that is chock full of documents on state constitutions, which we gather is the work of G. Alan Tarr.  H/t: Julian Davis Mortenson and Rachel Sheldon.  It contains "scanned constitutions, convention records, and legislative materials for the historical constitutions of all 50 states." 
  

• Congratulations to John R. Wunder on his receipt of the 2021 Sower Award in the Humanities from Humanities Nebraska.  And congratulations to Molly Brady, who writes, among other things, on the history of property law, on her tenuring!
  

• Over at Minnesota Law's Riesenfeld Rare Books Blog: Ryan Greenwood on early American classics. 

• 
  Quite a line-up for the Legacies of the Constitution at Iona College on September 16.

• New online from Law and History Review and Cambridge Core: A “Practically American” Canadian Woman Confronts a United States Citizen-Only Hiring Law: Katharine Short and the California Alien Teachers Controversy of 1915, by Brendan A. Shanahan.

• The NEH summer institute, "Law and Culture in Medieval England" was hosted virtually by Western Michigan University over the summer. You can check out the schedule and readings listed here.
  

• Nicholas Bagley and Gary Lawson debate administrative law before the Notre Dame Student Chapter of the Federalist Society. (You might want to skip the first 9 minutes to avoid the tiresome pugilist metaphors.)
  

• From the Washington Post's "Made by History" section: Lina-Maria Murillo (University of Iowa), "Before Roe v. Wade, U.S. residents sought safer abortions in Mexico"; Emily DiVito and Suzanne Kahn (both of the Roosevelt Institute), "The filibuster has long hurt American workers too"; Susan Nagel (independent), "A conflict among the Founders is still shaping infrastructure debates in 2021"; and more.

•  In the Atlantic, Mary Ziegler (Florida State University), "The Justices Are Telling Us What They Think About Roe v. Wade." Ziegler published related pieces on SCOTUSblog ("Supreme indifference: What the Texas case signals about the court’s treatment of abortion") and in the Boston Globe ("What happens next in Texas?") (with Rebecca Rebouché (Temple Law School)), and she was quoted elsewhere (e.g., in this Washington Post piece).
  

• In PennToday: an interview with Serena Mayeri (Penn Law) on the Texas abortion ban: "what the law means and what’s next for Texas and the nation." 
  

• Update: Akron Law celebrates its centennial (Akron Legal News)
  

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

Kornbluh and Tani on Polier, Wickenden and Reich's Poverty Law

Felicia Kornbluh, University of Vermont, and Karen Tani, University of Pennsylvania, have posted The Poverty Law Education of Charles Reich, which appeared in the Touro Law Review 36 (2020): 807-821:

This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about the facts on the ground, including potential constitutional violations, and encouraged him to write about these issues. Subsequently, they used their powerful networks to circulate Reich’s writings and amplify his arguments. This history showcases Reich’s deep connections to left-liberal reformers who came of age during the New Deal: although he famously critiqued some of their handiwork, he relied heavily on their ideas, expertise, and good will.

--Dan Ernst

Schmitt on Slavery and Congress's Enumerated Powers

Jeffrey M. Schmitt, University of Dayton School of Law, has posted Slavery and the History of Congress's Enumerated Powers, which is forthcoming in the Arkansas Law Review:

Legal scholarship often ignores or minimizes slavery’s profound influence on the history of federal powers. In fact, a number of influential scholars contend that constitutional history supports an understanding of Congress’s enumerated powers that would leave no subject reserved to the states. This scholarship, however, is inconsistent with the history of the Founding, early Congress, and Marshall and Taney Courts. Before the Civil War, virtually all American elites agreed that Congress had no power to interfere with slavery in the states. Because slavery was fundamental to the national economy, this meant that the federal government had no power to regulate social or economic activity within the states, regardless of its connection to interstate commerce. The modern regulatory state is thus incompatible with how federal powers were understood before the Civil War, and legal scholars should stop pretending otherwise. Especially at this time of racial reckoning, legal scholarship should acknowledge slavery’s pervasive influence on constitutional history. Doing so will both undermine the moral legitimacy of originalism and emphasize the need for a living Constitution.

–Dan Ernst

Priel on Judges' Breakfasts

Dan Priel, Osgoode Hall Law School, York University, has published Law Is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea, in the Buffalo Law Review 68 (May 2020): 899-930:

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea.  In this Essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the Essay also shows that the idea is improperly attributed to the legal realists, as there are many references to it, in legal and non-legal sources, from long before the advent of legal realism. This suggests that the phrase has long reflected something of a received wisdom about adjudication. Tracing the question of the significance of digestion to one's health, I argue that what we today take to be a humorous claim, may have been a much more serious one. For much of the nineteenth century it was widely believed that one's health depended on one's digestive health. Interestingly, this view is now once again taken seriously by scientists, which suggests that rather than scorn, the realists deserve credit for suggesting that the question be studied seriously.

--Dan Ernst

Legal Biographies: An Online Workshop

 [We have the following announcement. DRE]

The Legal History Section of the Society of Legal Scholars and LSE’s Legal Biography Project are holding a joint online workshop on Legal Biographies on the afternoons of 9 and 10 September 2021.  You can register for this event via Eventbrite [here]. The programme is as follows:

9th September 15.00-18.00 BST: Lives in Context

15.05-15.55 BST: Morad El Kadmiri (UCL Faculty of Laws)

Wigmore and the Land of the Rising Sun: Revisiting Orientalism Through the Experience of a Late 19th Century Legal Westerniser

16.00-16.50 BST: Neil Harrison (Northumbria University)

Sir Joseph Cowen as Commissioner and Chairman of the Tyne Improvement Commission from 1850 to 1873: the Influence of his Networks on his Interpretation of the Law and his Actions

17.00-17.50 BST: Helen Rutherford (Northumbria University)

The People’s Judge: Examining the Life and Work of the Coroner for Newcastle upon Tyne 1857-1885

10th September 15.00-18.00 BST: Uses, Abuses and Methods in Legal Biographical Writing

15.05-15.55 BST: Sean Morris (University of Helsinki)

Walter George Frank Phillimore (1845 – 1929): The Early Years and Devotion to Church-Law Relations

16.00-16.50 BST: Charlotte Smith (University of Reading)

Legal Biography and Religion: Some Reflections

17.00-17.50 BST: John Tribe (University of Liverpool)

Pride & Posterity: A Reappraisal of the Earl of Birkenhead’s role in the passage of the Law of Property Act 1925

British Legal History Conference: Deadline Extended

[We are moving this post up, as we have just learned that the deadline for submissions has been extended to September 27, 2021.  DRE]

Law and Constitutional Change: The 25th British Legal History Conference 2022, in association with the Irish Legal History Society.  Queen's University, Belfast.  6-9 July 2022

Abstracts are invited for the 25th British Legal History Conference which is being run jointly with the Irish Legal History Society and hosted by Queen's University Belfast, on Wednesday 6 July - Saturday 9 July 2022.  

The conference was originally scheduled for 2021. Queen's, Belfast, was given the honour of hosting the BLHC in 2021, because it is a significant year in the "Decade of Centenaries"  in Ireland, north and south, marking both the centenary of the opening in June 1921 of the Parliament of Northern Ireland, established under the Government of Ireland Act 1920, and the centenary of the signing of articles of agreement for the Anglo-Irish Treaty in December 1921, leading to the establishment of the Irish Free State.   The conference theme, "Law and Constitutional Change", was chosen against this background.  The Covid-19 pandemic intervened, making postponement unavoidable.  

Organising the conference in 2022 will, however, allow us to celebrate the half-centenary of the British Legal History Conference, first held in Aberystwyth in 1972.  Our hope is that attendance at the conference can be in person, but this will be kept under review and, if necessary, the option of online attendance/participation will be considered.

Conference papers can examine from any historical perspective the relationship between law and constitutional change. The difficulty of defining constitutional change was noted by the Select Committee on the Constitution in their report, The Process of Constitutional Change (HL Paper 177, 2011, para. 10), but they identified several examples, without being exhaustive: parliamentary sovereignty; the rule of law and the rights and liberties of the individual; the union state; representative government; and state membership of international organisations, such as (then) the EU and the Commonwealth.  These are, of course, only examples and the conference theme will be interpreted in all its breadth.

In the context of present-day analysis of the political and constitutional upheavals in British-Irish relations in the early 1920s, the President of Ireland, Michael D. Higgins, has adopted the Irish word, Machnamh, meaning reflection, contemplation, meditation and thought, for a series of online reflections.  In the spirit of Machnamh, we invite you to join the conversation on law and constitutional change in Queen's, Belfast, in July 2022.

Please note the following rules:

• If you submitted an abstract in 2020, you must make a fresh submission.
• Abstracts must be for individual papers only, not for panels. Co-authored papers are acceptable.
• Only one abstract should be submitted per person.
• Abstracts must be submitted as Microsoft Word documents using the online portal on the Call for Papers page of the conference website.  Please do not submit by email.
• Abstracts must not exceed 500 words.
  

Please indicate if your proposal is contingent on the availability of an option of online participation.  The deadline for submission of abstracts is [September 27, 2021].  Queries can be emailed to BLHC-2022-info@qub.ac.uk  At the conference, individual oral presentations will last 15-20 minutes.

We hope to publish the programme on the conference website in October 2021.  Details of plenary speakers will also appear there in due course. Proposals from postgraduate and early career researchers are welcome. Further information about travel to Belfast, accommodation, and so on, will be added to the conference website during 2021-2022.

Poster competition. This, the second joint BLHC - ILHS conference, was proposed by Sir Anthony Hart, retired High Court judge, former president of ILHS and enthusiastic supporter of BLHCs, who died suddenly in July 2019.  A poster competition is planned during the 2022 conference as a tribute to Tony.  There will be two prizes, including one for the PGR/early career category. The prizes are generously funded by the Journal of Legal History and by the Irish Legal History Society.  Details of the competition will be posted on the conference website.

Ledolter and VanderVelde's "Analyzing Textual Information"

Johannes Ledolter and Lea S. VanderVelde, both of the University of Iowa, have published  Analyzing Textual Information: From Words to Meanings through Numbers (Sage):

Researchers in the social sciences and beyond are dealing more and more with massive quantities of text data requiring analysis, from historical letters to the constant stream of content in social media. Traditional texts on statistical analysis have focused on numbers, but this book will provide a practical introduction to the quantitative analysis of textual data. Using up-to-date R methods, this book will take readers through the text analysis process, from text mining and pre-processing the text to final analysis. It includes two major case studies using historical and more contemporary text data to demonstrate the practical applications of these methods. Currently, there is no introductory how-to book on textual data analysis with R that is up-to-date and applicable across the social sciences. Code and a variety of additional resources are available on an accompanying website for the book [here].

Professor VanderVelde tells us that she and Professor Ledolter wrote the book as “an introduction to the tools of text analysis, using ... two historical databases that I’ve been creating for some time now:  the Territorial Papers of the United States, and the Congressional Globe of the 39th Congress.  These databases differ in the challenges that they present for text analysis.  The Territorial Papers are letters originally hand written, full of misspellings, but published in the 20th century.  The Congressional Globe consists of the back and forth of oral statements taken down by trained stenographers, but set in narrow columns of hand-carved, hand-set type.  The book takes the reader step by step through the process of cleaning the texts, coding metadata, and using increasingly sophisticated methods of analysis: visualization, sentiment analysis, and topic modelling."

--Dan Ernst

Seeley, "Race, Removal, and the Right to Remain: Migration and the Making of the United States"

The Omohundro Institute of Early American History and Culture and the University of North Carolina Press have published Race, Removal, and the Right to Remain: Migration and the Making of the United States, by Samantha Seeley (University of Richmond). A description from the Press:

Who had the right to live within the newly united states of America?

In the country’s founding decades, federal and state politicians debated which categories of people could remain and which should be subject to removal. The result was a white Republic, purposefully constructed through contentious legal, political, and diplomatic negotiation. But, as Samantha Seeley demonstrates, removal, like the right to remain, was a battle fought on multiple fronts. It encompassed tribal leaders’ fierce determination to expel white settlers from Native lands and free African Americans’ legal maneuvers both to remain within the states that sought to drive them out and to carve out new lives in the West. Never losing sight of the national implications of regional conflicts, Seeley brings us directly to the battlefield, to middle states poised between the edges of slavery and freedom where removal was both warmly embraced and hotly contested.

Reorienting the history of U.S. expansion around Native American and African American histories, Seeley provides a much-needed reconsideration of early nation building.

Advance praise:

“Since the founding of the United States, lawmakers have funneled enormous energy into policing and confining the mobility of Native and Black people while casting free movement as white privilege. Against these fantasies, Indigenous people crafted powerful arguments to claim sovereignty and territory, while African Americans mobilized to remain in communities they called home. Seeley brings a much-needed perspective to these interconnected histories of race, rights, and migration.”—Honor Sachs

“Positing removal as a foundational concept in American life, Seeley radically expands its meaning and traces its impact beyond the discrete moment of the Trail of Tears and the Indian Removal Act. This is pathbreaking work, a significant intervention in early American historiography.”—Michael Witgen

More information is available here.

-- Karen Tani

Weekend Roundup

• Ancestry has opened its collection of Freedmen's Bureau records to the public.   
  

• 
  Over at Völkerrechtsblog (“an academic blog on all matters of international public law and international legal thought”): Legal Imagination as Bricolage, a review symposium on Martti Koskenniemi’s To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870.
  

• Above the Law's Kathryn Rubino interviews Patricia Cain about Paving the Way: The First American Women Law Professors and her career.
  

• Congratulations to Ajay Mehrotra, American Bar Foundation and Northwestern Law, upon his election to the American Law Institute! 
  

• The University of Arkansas School of Law Alumni Society Board of Directors has awarded its 2021 Commitment to Justice award to the federal judge (and legal historian) Morris Arnold. (More.)
  

• On September 16th from 3-4 p.m. EDT, the Library of Congress will present (via webinar) its annual Constitution Day Lecture. Kurt Lash (University of Richmond) will present “The Transformation of the Bill of Rights: Incorporation Doctrine and the Fourteenth Amendment.” More information here. 
  

• From the Washington Post's "Made by History" section: Aimee Loiselle (Central Connecticut State University) on 2021’s ‘Stillwater,’ 1979’s ‘Norma Rae,' and the protagonists' fight against Hollywood to to tell their stories; E. Kyle Romero (Loyola University in Maryland), "Nativism in U.S. politics has thwarted refugee resettlement before."
  

• From In Custodia Legis, more posts inspired by the "Herencia" collection: "Criminals and Coins: Understanding 17th Century Spanish Economy through Counterfeit Currency"; "Who’s to Blame for Lost Silver and Gold? Laments of Financial Troubles in Spain 1588."
  

• The Balkinization symposium on James Pfander's Cases Without Controversies comes to a close, with several author responses (here's the first).
  

• "Roosevelt Institute Morgenthau Scholar Dr. Abby Gondek talks to FDR Library Supervisory Archivist Kirsten Carter about how data visualizations from 3,000 letters from the public about the Emergency Refugee Center in Oswego, NY, reveal the US government’s response through the War Refugee Board to rescue refugees during the Holocaust."  (FDRLibrary YouTube)
  

• ICYMI:  Lawrence B. Glickman on "Business as Usual: The Long History of Corporate Personhood" (Boston Review).  Melvin I. Urofsky reviews Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, by Erwin Chemerinsky (NYT).  Mary Ziegler on the Texas, the Supreme Court and Roe v. Wade (NYT).
  

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

Campbell on Neutrality in 1st Amendment Jurisprudence

Jud Campbell, University of Richmond School of Law, has posted The Emergence of Neutrality, which is forthcoming in the Yale Law Journal:

This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is largely untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, protecting speech within socially defined boundaries. And the modern embrace of content and viewpoint neutrality, it turns out, occurred only in the 1960s as the Supreme Court merged earlier strands of rights jurisprudence in novel ways. The emergence of neutrality, this Article shows, was more gradual, more contested, and more contingent than we now assume. Recovering this history exposes the novelty of the modern neutrality paradigm, and it casts new light on the history of other First Amendment concepts, like prior restraints, low-value speech, and overbreadth.

To understand these developments, it is necessary to trace a second doctrinal genealogy focusing on the very idea of fundamental rights. Older views of expressive freedom, this Article reveals, were embedded in a different conceptual framework for thinking about rights. And once again, the role of neutrality was radically different. Today, neutrality is ubiquitous in rights discourse, reflecting the prevailing view that rights are domains in which people can make their own moral choices. Thus defined, rights need not be absolute, but they at least demand governmental neutrality with respect to values—a view that is reinforced by the undesirable alternative of judges defining non-neutral boundaries. Yet this neutrality-based view of rights also emerged well into the twentieth century, reflecting a transmogrified synthesis of earlier ideas.

Recovering these older paradigms powerfully illustrates how deeply our own perspective shapes the way that we view the Constitution. Things that appear natural when reading the First Amendment, it turns out, are refracted through a distinctively modern lens. Integrating history into modern rights jurisprudence thus poses a substantial and unresolved challenge, warranting further engagement by scholars and judges.

--Dan Ernst

Pollman, "Corporate Personhood and Limited Sovereignty"

Elizabeth Pollman (University of Pennsylvania Carey Law School) has posted "Corporate Personhood and Limited Sovereignty," which is forthcoming in the Vanderbilt Law Review. Here's the abstract:

This Essay, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as right-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their constitutional treatment, the Court’s nineteenth-century rulings bolstered key features created by corporate law and simultaneously situated the corporation as subordinate to the state in a system of federalism. And, finally, the Essay suggests that the balance of power struck in the first century of Supreme Court jurisprudence on corporate rights has been eroded in the modern era. The Supreme Court’s failure to develop a consistent approach to corporate rights questions and its tendency to reason based on views of corporations as associations of persons have exposed a significant flaw in the Court’s evolving corporate personhood jurisprudence: it lacks a limiting principle. 

The full essay is available here.

-- Karen Tani

Carter on the Second Founding and the First Amendment

William M. Carter, Jr.,University of Pittsburgh School of Law, has published The Second Founding and the First Amendment in the Texas Law Review.  Form the introduction:

The nation's founding compromise with slavery resulted in a Constitution that proclaimed universal liberty in theory while protecting human enslavement in practice.  After centuries of struggle and a cataclysmic Civil War, a new constitutional order emerged: A Second Founding of the nation that sought to dismantle the legacies of slavery and turn American law away from nearly two hundred fifty years of race-based enslavement and discrimination. In order to remedy the First Founding's defects, the Second Founding amended the Constitution to prohibit slavery and empower Congress to remediate slavery's lingering effects; to recognize Black citizenship and protect rights to due process and equal protection for all; and to enfranchise African-Americans on a national basis.

These specific constitutional changes, while monumental, do not fully capture the scope of the Second Founding's constitutional moment as envisioned by its Framers. The post-Civil War Constitution also addressed the systemic legacy of the system of enslavement upon our constitutional order. No more would the Constitution, in the words of Senator Charles Sumner, be interpreted as it had been previously: that is, "in every clause and line and word, [in favor of] Human Slavery." Rather, there would be a new mandate to constitutional interpretation, whereby the Constitution would be "interpreted uniformly and thoroughly for human rights.”

Notwithstanding the clear break from the prior constitutional order that the Civil War Era represented, the Supreme Court's cases interpreting pre-Civil War constitutional provisions generally treat the Second Founding as merely a continuation of the First Founding. Nowhere is that truer than in the Court's cases interpreting the First Amendment's guarantee of freedom of speech. This Article takes the Second Founding seriously by examining the many denials of free speech inflicted upon enslaved persons and their allies during the pre-Civil War Era; the expressed views of the post-Civil War Framers regarding freedom of speech and the promise of full and equal protection of Black and antiracist speech henceforth; and, most importantly, the views of enslaved persons regarding freedom of speech.

–Dan Ernst

François on "Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence"

My Georgetown Law colleague Aderson Bellegarde François’s article, A Lost World: Sallie Robinson, the Civil Rights Cases, and Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence, has been published in the Georgetown Law Journal:

“It is the sound of vanishing—the music as it plays itself to silence, the train as it travels away, a voice left on magnetic tape.”

The Supreme Court tells stories about who and what we are—the sort of “knowledge about [the] past that is shared, mutually acknowledged and reinforced by a collectivity.” The Court is uniquely suited for this role: not just because of the moral authority it brings to the task of adjudication, and not just because of the rituals it uses for its decisionmaking, but also because the very act of telling and retelling in issuing decisions results in layers of these stories being deposited on and shaping constitutional doctrine. In time, and with each iteration—like sandy water flowing over sedimentary rock—these stories settle, gather together, harden, and become part of constitutional topography—sheer repetition makes them reified. These stories, a mix of fact and aspiration, a mingling of doctrine and metaphors, rubbed smooth of contradictions, translated for public consumption, even when hotly contested in the caverns of academia, keep us bound to a “conscious community of memory,”—a pact about the larger lessons to be derived from our past. There is a federalism story about how the Founders’ experience with a distant, indifferent king led them to set up a government with defined limited federal power; a free-speech story about how our collective ability to think and speak freely contributes to an open marketplace of ideas; and a right-to-bear-arms story about how the Second Amendment serves as a bulwark against government tyranny. There is no equivalent story—at least none that the Court itself has had a role in telling—about how slavery and white supremacy shaped the American identity.

To the contrary, the singular effect—if not purpose—of the Supreme Court’s jurisprudence on the experience, status, and place of Black people in America has been to erase slavery from the constitutional stories the Court tells about American democracy. The Court has managed this feat so successfully that the main role slavery plays in the collective constitutional imagination today is as remembrance of how its abolition affirmed the genius of the Framers’ vision and redeemed the righteous-ness of the country’s Founding. This act of willful forgetting began in earnest during Reconstruction, when, even as Black people roamed the countryside and searched newspaper ads for mothers, fathers, sons, and daughters sold away to distant plantations before the war, the Court explained that the Thirteenth Amendment abolished nothing more than involuntary servitude, that neither the Thirteenth nor the Fourteenth Amendment imposed an obligation upon the federal government to protect Black people from white violence, and that Black people’s invocation of the Fourteenth Amendment’s equality principle was akin to their wanting to become a special favorite of the law.

This Article is an attempt at digging up one story of slavery and trying to input it into the collective constitutional imagination. The Article uses one decision to tell the story—the Civil Rights Cases. It also uses one person—a woman named Sallie Robinson. Apart from those she loved and who loved her in return, Sallie lived out her days in relative obscurity, but that life—at least the pieces and fragments of it we can gather— is as legitimate a part of our constitutional myth making as the lives of the men on the Court whose writings hardly ever acknowledged that people like Sallie existed and mattered.

–Dan Ernst

Anderson, "The Second: Race and Guns in a Fatally Unequal America"

New from Bloomsbury Publishing: Carol Anderson (Emory University), The Second: Race and Guns in a Fatally Unequal America (2021). A description from the Press:

In The Second, historian and award-winning, bestselling author of White Rage Carol Anderson powerfully illuminates the history and impact of the Second Amendment, how it was designed, and how it has consistently been constructed to keep African Americans powerless and vulnerable. The Second is neither a “pro-gun” nor an “anti-gun” book; the lens is the citizenship rights and human rights of African Americans.

From the seventeenth century, when it was encoded into law that the enslaved could not own, carry, or use a firearm whatsoever, until today, with measures to expand and curtail gun ownership aimed disproportionately at the African American population, the right to bear arms has been consistently used as a weapon to keep African Americans powerless--revealing that armed or unarmed, Blackness, it would seem, is the threat that must be neutralized and punished.

Throughout American history to the twenty-first century, regardless of the laws, court decisions, and changing political environment, the Second has consistently meant this: That the second a Black person exercises this right, the second they pick up a gun to protect themselves (or the second that they don't), their life--as surely as Philando Castile's, Tamir Rice's, Alton Sterling's--may be snatched away in that single, fatal second. Through compelling historical narrative merging into the unfolding events of today, Anderson's penetrating investigation shows that the Second Amendment is not about guns but about anti-Blackness, shedding shocking new light on another dimension of racism in America.

Advance praise:

“In this extraordinarily important book, Dr. Anderson shows that the Second Amendment was designed, and has always been implemented, to enable white Americans to dominate their Black neighbors. In her trademark engaging and unflinching prose, Dr. Anderson traces America’s racist history of gun laws from the 1639 Virginia colony’s prohibition on Africans carrying guns to the recent police murders of Breonna Taylor and Emantic Bradford, Jr., showing how calls for ‘law and order’ have concentrated guns in the hands of white people while defining Black gun ownership as a threat to society. Anderson’s deft scholarship convincingly places the right to use force at the center of American citizenship, and warns that the Second Amendment, as it is currently exercised, guarantees that Black Americans will never be equal.” -- Heather Cox Richardson

“Carol Anderson brings her storied sense of the intertwining of past and present, her keen insights into the wiles of racism, and her passionate prose to this extraordinary take on the meaning of the Second Amendment. This is a necessary history of the roots of gun obsession in slavery, racial assumptions, legal and political fictions that may have put America on a ‘fatal’ spiral we can only hope to prevent. Let's dream that this book echoes across the partisan canyon.” -- David W. Blight

More information is available here. History News Network recently published an interview with Anderson about the book, here. Another interview, conducted by New Books Network, is available here.

-- Karen Tani