The American Historical Association has announced its 2024 Prize Winners, and we were pleased to see legal historian Yanna Yannakakis (Emory University) named as winner of the Friedrich Katz Prize in Latin American and Caribbean history for Since Time Immemorial: Native Custom and Law in Colonial Mexico (Duke University Press, 2023).
Congratulations to Professor Yannakakis!
-- Karen Tani
Drafting a book manuscript is daunting! I thought that, after I’d located and collected sources, organized my notes, crystalized my argument, and put together the narrative, the heavy lifting would be done. It turns out that wasn’t exactly right. The heaviest lifting was done, but I still needed to get through the pre-publication gauntlet.
This post covers the plethora of tasks that need to be completed before the book can go to press. If you’re writing your first book (or contemplating doing so!), you’ve likely heard about many of these steps. I hope this post helps you get through the list more easily.
Acknowledgments
Every book has an acknowledgments section, even if not everyone reads them. (I love reviewing acknowledgments, but even I’ll concede that many readers skip past those pages.) Crafting the acknowledgements ended up being one of my favorite parts of the book writing process. It gave me a chance to reflect on the many people who had made Family Matters possible, from my advisors during the PhD program, to the archivists who tracked down documents, to the friends and family members who supported me throughout the process.
I hope that I managed to convey my sincere gratitude to everyone involved in making my book a reality However, it’s entirely likely that I missed some names! I regret leaving the acknowledgments at the end. If I had to do it over again, I would have kept a running list of people who helped me with the book as I was researching and writing it. That way, I could be sure I hadn’t inadvertently left anyone out.
Images
I should have kept a running list of potential images too! Images can make a book stand out. However, securing the rights to print them can be a challenge. Even if a repository has an image, they do not necessarily have the copyright from the photographer.
That means securing image rights can require some sleuthing. Let me give you an example. A few months before my manuscript was due, I contacted the New York Times in hopes of licensing a photograph that had appeared in their pages in 1991. They had the image, but not the rights. My efforts to track down the photographer, Donna Binder, stalled, until I saw Sarah Schulman’s recently published book on ACT-UP. The notes mentioned an oral history interview with Binder! I didn’t know Shulman, but I emailed her anyway, asking if she would please pass along my information. She kindly did—and Binder agreed to license the image, which appears on page 207 of Family Matters.
Indexing
Images were not the only cost associated with publishing the book—indexing was another. Many authors index their own books, but I wasn’t familiar with the process. I therefore decided to hire a professional—and was very glad I did. My indexer, Derek Gottlieb, did a fantastic job. I might have been able to create a workable index, but he identified entries that I would never have thought to include. The index he created was much more comprehensive, and therefore much more useful to users, than anything I would have done myself.
Page Proofs
The indexing happened around the same time as the copy edits. A few months later, I received the page proofs. By that time, I was exhausted. I’d been working on the book for years, had just submitted my tenure packet, and was teaching a new course. But the manuscript needed to be proofread.
Thankfully, I had a team of students to help me get through this final task. Once I knew when the page proofs would come in, I contacted my Associate Dean for Research and Academic Programs. I asked for permission to hire additional research assistants for the limited purpose of proofreading the book. I’m so very grateful he agreed. At least two students read each chapter, and while they worked, I reviewed each chapter twice. They all found errors the others had missed. They also found several typos that I overlooked.
By the time the students and I reviewed the page proofs, multiple editors had reviewed the manuscript several times, and a professional copyeditor had proofed the entire book. And yet…we still identified hundreds of typos and formatting errors in the manuscript. I wish I had caught all of those mistakes earlier, but I am really glad we found them before the book went to print. (I am still very nervous that a few errors got through. If you see any typos in Family Matters, please don’t tell me!)
* * *
All book authors have to get through the pre-publication gauntlet. In my next and final post, I’ll talk about another challenge that all writers face: deciding which stories to include and which to leave on the cutting room floor.
The American Historical Association has announced its 2024 Prize Winners, and we were pleased to see that legal historian Dylan C. Penningroth (University of California, Berkeley) was a two-time winner.
Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023) won the Beveridge Family Prize in the history of the US, Latin America, or Canada since 1492 and also the Littleton-Griswold Prize in US Law and Society.
Congratulations to Professor Penningroth!
-- Karen Tani
--Dan Ernst
[We recently noticed the project on Slavery, Law and Power in the British Empire and Early America at the University of Maryland, created with the support of the National Archives and the American Society for Legal History. Here is its description. DRE.]
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Christine Kexel Chabot, Marquette University Law School, has posted Rejecting the Unitary Executive:
Critics have dismissed originalism as an empty methodology incapable of resolving our most important constitutional disputes. The debate over the unitary executive has proved particularly difficult to resolve as a matter of original public meaning. While unitary scholars claim that Article II grants the President an indefeasible power to remove all subordinates at will, their interpretation rests on minimal text and conflicts with significant historical evidence. The Supreme Court circumvented this impasse when it adopted a strong unitary interpretation of Article II in Trump v. United States.
George Washington (NYPL)
This Article develops a new methodological framework to address the underlying disconnect between ongoing historical disputes over the unitary executive and original public meaning’s claims to a determinate understanding of the Constitution. Leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus on the Constitution’s meaning. My framework responds to these empirical claims on their own terms. It requires unitary theorists who assert historical consensus to measure their claims against the entire historical record including evidence that would render these claims false. Under my approach, for example, a theory asserting an absolute claim that all that swans are white cannot withstand observations of swans that are black. A theory of historical consensus that Article II empowered the President to remove all subordinates at will likewise cannot withstand reliable historical counterevidence of restrictions on the President’s removal power.
While the supposedly competing evidence relied on by unitary executive theorists may show an unrestricted removal power over some subordinate officers, this evidence does not rule out tenure protection for other subordinate executive officers. It aligns just as well with the unitary executive’s theoretical alternative: a pluralist understanding in which Congress has discretion whether or not to restrict the President’s removal power. The framework developed by this Article makes clear what originalism’s underdetermined methodological framework has hidden from plain sight. The Founding generation rejected the unitary executive and not today’s pluralistic system of congressional discretion.
--Dan Ernst
In my last post, I covered how I went about collecting oral histories. In this one, I’ll discuss how I went about using them in Family Matters. What I learned was that oral history interviews provided so many more benefits than I expected when I started collecting them!
I initially began taking oral history interviews to fill in gaps in the historical record. Even though I was writing about the 1980s and 1990s, and therefore had a large number of written sources from which to draw, I often had questions about what happened, when, and why. Oral histories allowed me to get the answers I needed. For example, the Village Voice began offering domestic partner benefits to its employees in 1982. Its announcement generated a great deal of attention, spreading the concept and encouraging other companies to follow suit. But what led the Village Voice to make this change? To find out, I interviewed Jeff Weinstein, who was integral to making the program possible. He told me that he first began thinking about domestic partnership benefits in the early 1970s, but dismissed the notion as an impossible dream. Then, in 1979, he learned that the Village Voice provided health insurance to his straight colleagues’ unmarried partners. He reasoned that, if the Village Voice was willing to extend benefits to heterosexual domestic partners, then it might consider doing the same for their queer employees. He raised the issue with his union, which put it on the agenda during the next set of contract negotiations.
I quickly came to appreciate that the interviewees did not just fill in the missing pieces—they also provided details that enriched the story. When Weinstein told me about the union negotiations, he gave colorful commentary that brought the events to life. He described his appearance at the time—women’s clothing, long hair, and a beard—which he termed gender fuck drag.” Other interviewees volunteered details that I had not known to ask about, but which deepened the narrative. For example, I interviewed several researchers whose studies became crucial to lesbian mother custody lawsuits. One of them, Ellen Lewin, explained that she began her research after hearing about a lesbian mother’s custody battle. She did not just cite the case as a motivating factor—she told me that she undertook the work “with the fantasy that [she] would be called upon to be an expert witness in some of these cases.” That language conveyed just how personally invested she was in the legal issues her research implicated.
Oral history interviews had several other benefits. One of them was that they corrected historical misstatements. Simply because documents consistently tell one story does not mean that it is true! To give just one example, the fourth chapter of Family Matters discusses states’ efforts to ban same-sex couples from adopting or fostering children. In 1985, New Hampshire became embroiled in a debate on this issue after the state’s Division of Children, Youth, and Families (DCYF) licensed an openly gay foster parent. Newspaper accounts indicated that DCYF tried to quell public outcry by adopting a policy preventing gays and lesbians from serving as foster parents, but that the legislature considered this insufficient and therefore enacted a statutory ban. When I spoke to the director of DCYF at the time, David Bundy, he told me that this account was far from accurate. The policy his agency adopted did not in fact ban queer foster parents, because child welfare experts believed sexual orientation was irrelevant to parenting ability. DCYF’s leadership was so adamant on this point that, after the legislature stepped in, the agency did its best to circumvent the law! The statute prohibited placements in homes with homosexual adults, so social workers simply did not ask prospective foster parents about their sexual orientation. Bundy summarized the situation with by explaining: “We came up with ‘don’t ask, don’t tell’ way before Clinton.”
Collecting oral histories is time consuming, but incredibly valuable. Indeed, I am far from the only twentieth century historian to comment on the utility of these sources. (Margot Canaday has a particularly good discussion of oral history sources in her recent work, Queer Career: Sexuality and Work in Modern America.) I realize not every historian has the option of taking and incorporating oral histories. However, if it’s a possibility, I strongly recommend you take advantage of the opportunity!
Stephen M. Griffin (Tulane University Law School) has posted "History vs. Originalism: The Bill Comes Due," which is forthcoming in Constitutional Commentary. The abstract:
John Q. Barrett, St. John's University School of Law, has posted The Nuremberg Trials: A Summary Introduction:
This lecture was delivered on May 4, 2016, at Jagiellonian University in Krakow, Poland, at “The Nuremberg Symposium: The Nuremberg Laws & the Nuremberg Trials,” sponsored by the International March of the Living, the Raoul Wallenberg Centre for Human Rights, and Jagiellonian University. The lecture explains that following World War II, there were thirteen “Nuremberg trials” of Nazi war criminals and introduces those proceedings by discussing:
(1) The predicate human behavior: making war;
(2) International law's progress in addressing that behavior before World War II;
(3) Nazism as human and national regression;
(4) World War II;
(5) Legal analysis and war condemnation during World War II;
(6) The Allied nations' military defeat of Nazi Germany;
(7) The Allies' international Nuremberg trial of 1945-1946;
(8) The twelve subsequent American trials in Nuremberg;
(9) The legal legacy of the Nuremberg trials; and
(10) The human rights legacy, including the Holocaust knowledge legacy, of the Nuremberg trials.
This lecture appears in a symposium issue that also includes lectures and remarks by Wojciech Nowak, Richard Heideman, Shmuel Rosenman, Irwin Cotler, Alan Dershowitz, Samantha Power, Justin Trudeau, Robert Badinter, Luis Moreno-Ocampo, Ayelet Shaked, Zdzislaw Mach, Michael Berenbaum, Edward Mosberg, John Dyson, Dorit Beinish, Sam Rugege, Rosalie Silberman Abella, Marie Thérèse Mukamulisa, Malcolm Hoenlein, Ron Prosor, Elizabeth Buettner, Brooke Goldstein, Stuart Eizenstat, Phyllis Greenberg Heideman, David Machlis, Gregory Peterson, and Aleksandra Gliszczynska-Grabias.
--Dan Ernst
Maynooth University announces a History Research Seminar on Thursday, October 17, 2024, from 17:00 to 19:15, in AHI Seminar Room 1.33, First Floor, IONTAS. All are welcome.
Session one: 5.00pm-6.00pm
Dr Ashok Malhotra (School of History, Anthropology, Politics & Philosophy, Queen’s University Belfast)
Establishing Imperial Nutritional and Agricultural Scientific Research Institutes in British India, 1918-29
Ashok Malhotra is a historian of British India and of twentieth-century global organic farming movement. He holds a PhD from Edinburgh University and had been a British Academy Postdoctoral Fellow at the University of Warwick. His publications include Making British Indian fictions, 1772-1823 (2012). His current research project explores how colonial and agricultural research, undertaken in British India in the twentieth century, shaped the organic and environmental movements that emerged during the 1940s and 60s in Britain and the United States.
Session two: 6.00pm-7.15pm
Donal Coffey (Department of Law, Maynooth University)
An Imperial legal service in inter-War London
Dr Donal Coffey specialises in contemporary constitutional law and comparative constitutional history and is specifically interested in the constitutional history of the British Empire. He holds a PhD from University College Dublin, his publications include Drafting Irish Constitution, 1935-1937 (2018) and Constitutionalism in Ireland, 1932-1938 (2018), and he is an Affiliate Researcher of the Max Planck Institute for Legal History and Legal Theory, Frankfurt am Main.
In my last post, I discussed the challenges of writing a history that ends so close to the present day. However, there was also a clear benefit to writing a recent history: I had a rich set of sources for my research. Most of Family Matters is centered in the 1990s, when individuals and companies were increasingly using email – and still printing out the messages! As a result, I had the great fortune of being able to review hard copies of typewritten documents. (I’ll admit, I squealed every time I saw the AOL logo at the top of an email.) Moreover, I was able to fill in gaps with oral history interviews. In this post, I’ll cover how I went about collecting oral histories.
The first step in collecting oral histories is always identifying people to interview. (That was usually the simplest task in the process, thanks to the spreadsheets I discussed in my second post.) The second step is tracking the individuals down. I did name searches in google, which often produce email address or phone numbers on their institutional websites or their social media pages. If that didn’t work, I could often find groups with which they were or had been associated. I contacted those organizations, by phone, email, or snail mail, asking if they would be willing to pass a message to the individual, along with my contact information.
I also asked them if they could put me in contact with those people. That could be extremely helpful, for two reasons. First, some people felt more comfortable speaking with me after they had heard from people they trusted. One of the major players in the debates over gay and lesbian rights in the 1980s and 1990s was psychologist Paul Cameron, who produced a series of studies claiming homosexuals were more likely to molest children then heterosexuals. His anti-homosexual bias was so virulent and obvious that the American Psychological Association ultimately expelled him for ethics violations. I wanted to speak with him about what led him to his research and how he designed his studies, but he did not respond to my initial messages. However, after I interviewed another conservative researcher, who sent Cameron an email vouching for my professionalism, he agreed to speak with me.
The other way that my interviewees opened doors was by contacting individuals I could not track down myself. I’ll never forget the day my phone rang from an unknown New Hampshire number. I had been researching New Hampshire’s 1987 law banning gay and lesbian foster parents. One of my interviewees, who had advocated against the statute, recommended I speak with Donna Sytek, who was then a leading New Hampshire Republican legislator. The person had said they would try to track her down, but after weeks went by, I lost faith that would happen. My efforts to find her email, phone number, or address had failed. I had accepted it wasn’t meant to be when the phone call came through. I picked up, the person on the other line said something along the lines of: “This is Donna Sytek. I heard you wanted to speak to me?” I was flustered, thrilled, and confused. I asked her how she had found out I was searching for her. She told me that someone I had interviewed had talked to another person, who spoke to someone else, who ran into Sytek at the grocery store. Everyone had told me New Hampshire was a small state. No kidding!
Given the turmoil that surrounded the policy—and the fact that the state governor publicly reprimanded her for her actions—I had trouble believing her statement. At the same time, I completely understood her reluctance to talk about the events, especially since she was serving as the Secretary of Children and Families in Wisconsin at the time I contacted her.
Anderson was just one of the dozens of people who declined or did not respond to my requests for an interview. But just as many people—if not more—said yes. In my next post, I’ll address how I went about using the oral histories I collected. All of them helped make Family Matters a more complete and richer account of the struggle for queer rights.
Farah Peterson, University of Chicago Law School, has posted The Fourteenth Amendment and the Vénus Noire, which appears in the William & Mary Law Review:
This Essay reflects on art to make two points. It first argues that originalism is not a promising path for progressive causes. It then argues that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed.
--Dan Ernst
Yesterday, Bloomberg Law published the reporters Lydia Wheeler and Kimberly Strawbridge Robinson’s story, Justices’ History Focus Tests Lawyers, Judges, and Law Schools. Among other things, they report that the history and tradition approach of the U.S. Supreme Court is putting a premium on law students who can do legal history–beyond the skills taught in originalism “boot camps.” They quote a lawyer with a Supreme Court practice: “History and tradition I do think is tough because you’re expanding the playing field to include everything that happened, potentially at both the state and federal level at a given point in time, which could have been hundreds of years ago.” They observe, “Historical research isn’t a skill that law students traditionally learn” and quote Saul Cornell for the proposition that law schools aren’t teaching students how to do historical research. “Right when this is most important, law schools don’t have the infrastructure,” Professor Cornell said.
--Dan Ernst
 |
| Thomas M. Cooley (NYPL) |
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Kate Masur, Northwestern University, with the graphic artist Liz Clarke, has published Freedom Was in Sight: A Graphic History of Reconstruction in the Washington, D.C., Region (University of North Carolina Press):
An endorsement:The Reconstruction era was born from the tumult and violence of the Civil War and delivered the most powerful changes the United States had seen since its founding. Black Americans in Washington, D.C., and its surrounding region were at the heart of these transformations, bravely working to reunite their families, build their communities, and claim rights long denied them. Meanwhile, in the capital, government leaders struggled to reunite and remake the nation. Famous individuals such as Frederick Douglass and Ida B. Wells played central roles, as did lesser-known figures like Emma Brown, the first African American teacher in Washington's public schools, and lawyer-journalist William Calvin Chase, longtime editor of the Washington Bee.
Freedom Was in Sight! draws on the words and experiences of people who lived during Reconstruction, powerfully narrating how the impacts of emancipation and civil war rippled outward for decades. Vividly drawn by award-winning graphic artist Liz Clarke and written by Pulitzer Prize–finalist Kate Masur, a leading historian of Reconstruction, this rich graphic history reveals the hopes and betrayals of a critical period in American history.
"Reconstruction began with emancipation as lived experience and national transformation; it has never really ended. Here, in vivid visuals, a tight narrative, and rich context, Masur and Clarke give readers an experience they will not forget. So much of this story happened in and around the Washington, D.C., region, and the author and artist reveal its most significant constitutional and moral meanings for the eye and the mind. I can only wish I'd had this kind of powerful history of Reconstruction in my youth. This tale of America's second founding in the capital city as thousands of freedmen found new homes and lives is withering, visually stunning, and good history all at once."—David W. Blight, author of Frederick Douglass: Prophet of Freedom.
The Organization of American Historians is hosting a book event on October 16 at 4:30 EST; register for it here.
Mark Twain is frequently credited with the aphorism: “History doesn’t repeat itself, but it often rhymes.” All of you reading this blog post know how right he was. The present does not follow the same sequence of events as the past—changes in politics, society, and culture make that impossible. Yet even though the specifics differ, there are invariably clear parallels between the past and the present.
I see echoes of Family Matters every day, especially in my home state of North Carolina. As I discussed in my last post, LGBTQ+ rights debates have primarily taken shape at the state and local level. That continues to be true. In recent years, jurisdictions across the United States have enacted laws that limit what students can learn in schools about sexual orientation and gender identity, prohibited trans students from participating on sports teams that align with their gender identity, and restricted minors’ access to gender affirming care. These legislative battles have been waged over claims of child protection and calls for parents’ rights—much like the attacks on gay and lesbian rights that I detail in Family Matters. (If you’re interested in a short summary of how Christian conservatives have wielded child protection claims to oppose queer civil liberties, check out this piece I recently published in Time.)
 |
To stem the rising tide of violence, gay and lesbian rights advocates lobbied for changes to educational policies. They pressed schools to support queer students with in-school counseling programs, which would emphasize that same-sex sexual attraction was not shameful. They additionally demanded that schools combat bias against same-sex sexuality by teaching all students that gays and lesbians deserved the same dignity and respect as other members of society. In New York City, these advocates succeeded in securing three references to same-sex parents in a 1991 first-grade teacher’s guide. This limited mention of same-sex sexuality was enough for the city to erupt in anger and acrimony. Shoving broke out in school board meetings, thousands of parents took to the streets in protest, and the Schools Chancellor received two death threats.
Given how controversial the education reform efforts were, it is no surprise that queer rights advocates made little headway. And yet I firmly believe that these efforts were consequential. The educational reform initiatives may not have changed the curricular content of most schools, but they allowed gay and lesbian rights advocates to continue refuting the religious right’s child protection arguments. Doing so was essential, given how often Christian conservatives wielded child protection rhetoric to impede queer rights advocacy. Through curricular reform battles, gay and lesbian rights organizations communicated that the key problem was not protecting children from gays and lesbians. Homosexuality, after all, was common, unremarkable, immutable trait. Instead, schools had to focus on the needs of children with gay and lesbian parents, as well as the welfare of gay and lesbian youth, by combatting antiqueer bias. In other words, what children needed to be protected from was not the queer community, but rather homophobia.
The LGBTQ+ community and its allies are continuing to fight similar battles, waged over parallel claims about the origins of queer identity. Some days, I look at the news and it seems that the history is not just rhyming, but actually repeating itself. For supporters of LGBTQ+ rights, that fact is dispiriting. Queer rights advocates have spent so many decades combatting variations on the child protection theme that the trope seems like a never-ending game of whack-a-mole. At the same time, the fact that advocates have succeeded in the past should inspire confidence in their ability to do so again.
One of the benefits of writing a history that comes so close to the present day is that it not only helps readers contextualize the past—it also offers hope for the future. The current legal landscape might seem grim, but the law can change for the better. After all, as Family Matters demonstrates, it already has.
In my next post, I’ll take up a more pragmatic set of opportunities and challenges that came from writing a history of the present: the ability to conduct oral history research.
Photo by Nikolas Gannon on Unsplash.
Kellen Heniford, Everytown for Gun Safety, and Kari Still, Johns Hopkins Center for Gun Violence Solutions have posted Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context, which is forthcoming in the Buffalo Law Review:
In the aftermath of the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen in 2022 and United States v. Rahimi in 2024, history has taken a central role in the adjudication of Second Amendment cases. Researchers, courts, and litigators across the country have taken on the arduous task of sifting through archives of our nation’s history in order to compile a record of early American arms regulations. Litigation moves quickly, and too often, historical context is missing or selectively marshaled in these cases. This article builds upon efforts to provide that crucial context, specifically in relation to the history of the United States’ earliest enactments that banned weapons in ballrooms. Within, we (1) identify an as-of-yet uncited ballroom weapons ban in 1804 New Orleans, which is the earliest known regulation of its kind; (2) explicate the historical context surrounding that regulation, as well as the even stricter 1808 and 1817 bans that followed it; and (3) suggest general principles that may be distilled from these restrictions when they are considered within a larger historical tradition. We explain that these early nineteenth-century regulations can be understood as part of a historical tradition of weapons bans under either of two different types of sensitive places: places where there is a high probability of conflict and places where the presence of weapons is incompatible with the actual functioning of the place itself.--Dan Ernst
Joy Milligan, University of Virginia School of Law, has posted Beyond Equity: The Counterfactual Administrative State, which is forthcoming in the Georgetown Journal of Law and Public Policy:
What kind of administrative state would we have, if the United States had been a true democracy earlier? In this short essay, I begin to address that question. I argue that in light of the foregone democratic possibilities, the goal of equity asks too little of the administrative state. A broader vision directs us beyond equity, toward institutional reimagination and transformation. I suggest that the administrative state likely would have been more powerful, more centralized, and more generous in its redistributive aims, had the United States been an actual democracy earlier. People of color were both politically excluded and among those most likely to benefit from such administrative structures and programs. I illustrate this point with the case of federal aid to education, a recurring legislative campaign for more egalitarian school investments that failed from Reconstruction till the 1960s. In the case of education, rather than simply aiming to make existing institutions more equitable, we should ask what a century, or even several more decades, of egalitarian school investment might have meant for poor Black and white children, for the administrative state, and for our politics. What can we gain from asking such questions? Among other benefits, considering these counterfactuals can deepen our collective sense of democratic loss, and by the same implication, our sense of democratic potential. We have so recently and imperfectly experienced democracy, that we cannot gauge its true potential yet.--Dan Ernst
It is publication day for Curtis A. Bradley’s Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press):
In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly. But that evolution did not come through formal amendments or Supreme Court rulings. Rather, the law has been defined by the practices of Congress and the executive branch, also known as “historical gloss.”
Curtis A. Bradley documents this process in action. He shows that expansions in presidential power over foreign affairs have often been justified by reference to historical gloss, but that Congress has not merely stepped aside. Belying conventional accounts of the “imperial presidency” in foreign affairs, Congress has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority.
Historical Gloss and Foreign Affairs proposes a constitutional theory that can make sense of these legal changes. In contrast, originalist theories of constitutional interpretation often ignore influential post-Founding developments, while nonoriginalist theories tend to focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch. Moreover, the constitutional theories that do focus on practice have typically emphasized changes at particular moments in time. What we see in the constitutional law of foreign affairs, however, is the long-term accumulation of nonjudicial precedents that is characteristic of historical gloss. With gloss confirmed as a prime mover in the development of foreign affairs law, we can begin to recognize its broader status as an important and longstanding form of constitutional reasoning.
Here are some endorsements:
An instant classic. As the foremost scholar in the country on the Constitution and foreign affairs, Curt Bradley has written the single best book on the subject. Historical Gloss and Foreign Affairs is a must-read for anyone interested in understanding how constitutional law develops, and it could not be timelier.
—Michael Gerhardt, University of North Carolina School of Law
Historical Gloss and Foreign Affairs is the definitive account of the unique ways that historical practice informs the allocation of constitutional power in foreign affairs, where constitutional text is very often a poor guide to legitimate practice. Its powerful explanation of how historical gloss informs constitutional meaning is also a vital contribution to constitutional theory more generally.
—Jack Goldsmith, Harvard Law School
Professor Bradley drew upon the book when he delivered the Currie Lecture at the Duke Law School last month. He will be guest blogging on the book over at The Volokh Conspiracy.
--Dan Ernst
As I mentioned in my first post, Family Matters provides a history of law reform across the United States. But it doesn’t do so by examining federal constitutional arguments or Congressional enactments. Instead, it examines law from the ground up. It focuses on reforms at the state and municipal levels, weaving them together to explain the transformation of American law writ large.
In this post, I’ll explain the book’s methodological innovation, which is essential to its account of legal change. I’ll also discuss the research challenges this approach created—as well as how I addressed them.
Focus on the State and Local
In Family Matters, I show that the impetus for national law reform came from scattered parts of the country. By working at the local level, small groups of motivated citizens were able to secure legal changes that would have been unthinkable in other parts of the nation. Many of the debates over and gay and lesbian rights took place in liberal cities like Los Angeles, New York City, and San Francisco. However, municipalities across America responded to these developments, which queer rights advocates—and their opponents—brought to local officials’ attention. Sometimes they did so with sympathetic laws that mirrored the actions on the coasts. Just as frequently, however, elected officials enacted legislation or policies that demonstrated their hostility to gay and lesbian rights. Yet even in the face of this resistance, successes at the state and local levels undermined conservatives’ strident opposition. These developments allowed for small scale experiments that made unthreatening queer families more visible. The conspicuous existence of these households, in turn, generated legal, political, and constitutional change at the national level. In other words, it was not that decisions in progressive enclaves represented national trends, but rather that they provided the foundation for widespread change.
By examining seemingly disparate locales and areas of the law, Family Matters demonstrates how they are integrally related, each forming a piece of a larger puzzle. What I reveal is that the causes of change in constitutional law and national policy often came from outside of the capital. Moreover, the impetus for change also frequently originated outside of the courts, where state legislative enactments and municipal administrative decisions often had little to do with the Constitution’s protections. Focusing on state and local advocacy efforts, as well as the links between them, demonstrates how many small shifts in discourse can make national change possible. As a result, the book showcases a broader array of legal experiments and experiences than analyzing federal developments alone.
Conducting the Research
Crafting this narrative required piecing together archival fragments and combining them with a range of other sources. Much of the information in this book comes from the records of gay and lesbian rights organizations, whose newsletters, memos, press releases, and other materials memorialized their work. Movement leaders, advocates, and community members also preserved pamphlets, fliers, speeches, and other documents that contained crucial details and revealed connections between events in various parts of the country. I gathered this information together, traveling to archives around the country thanks to very generous grants, including two from the William Nelson Cromwell Foundation. (Junior scholars: definitely apply for these!)
Once I had the primary sources, I began putting together the puzzle pieces in several different ways. For each chapter, I created three types of documents. The first was a standard word file, in which I put notes on the primary sources. That document allowed me to quickly look up the details of events. The second was a spreadsheet, which contained some of the high-level information from the sources. For example, for my chapter on child custody cases, I created a document on the custody disputes, which contained entries for the parties’ names, date, state, geographic region, court level, outcome, attorneys, amicus brief authors, and main arguments. This spreadsheet helped me identify trends over time, as I could sort it by date, location, and outcome. (Pro tip: excel allows you to sort your data by highlight color, so I often found myself color-coding the data in different ways to make the trends easier to see.) The third was a timeline, so I could see how the various types of legal advocacy—cases, legislation, administrative regulations, business policies—intersected.
That was step one. From this information, I knew what gay and lesbian rights groups had preserved—but that was unlikely to be a comprehensive account. As a result, I had to keep hunting. Step two was a general database search for the topics, to uncover additional evidence. That often yielded another few cases, statutes, or policies. Step three was more time-consuming. In the word file summarizing the sources, I noted references to people and places. If I didn’t have sources on them, I tried to track down those individuals and events, which I did through newspaper and magazine searches, as well as oral history interviews. I followed the breadcrumbs until I could not find any new references. That does not mean that I necessarily discovered all of the events, but it did make me confident that I had uncovered most of them.
The book’s chapter on domestic partnership programs in the 1980s is a good example of how that work paid off. These programs began as benefits for municipal employees in the early 1980s, before becoming a common option at Fortune 500 companies. The municipal offerings are often discounted as irrelevant, because the programs few and far between. However, I show that they were actually extremely consequential. Until these companies began offering domestic partnership benefits, no institution recognized same-sex couples’ relationships. Moreover, since these came from municipal governments, the programs opened the door to other claims for state relationship recognition. Finally, the municipal offerings inspired employees in the private sector to demand similar benefits. The end result was that large corporations began offering domestic partner programs. I could make that argument because I could trace the through lines that connected the people and events. Employees for large corporations cited the municipal programs and used them to urge their employers to offer similar benefits. They used data from the cities and counties to convince human resources personnel. The people involved in advocating for these programs spoke to one another, sharing information and insights.
I imagine you’re reading this and thinking: telling a national story from events at the local level sounds incredibly time-consuming. It is. The amount of time the research consumed was one of the biggest challenges in writing this book. In a later post, I’ll talk about how I wrote the book while on the tenure clock, which added another layer of difficulty to the project. But I think the payoff was worth the effort—and I hope that readers agree.
Before I open the can of worms that is tenure, I want to address a different challenge. Family Matters is a legal history, but it ends with a court case from 2015 and details legal debates that are still very much live. In my next post, I’ll take up the issue of the costs and benefits of writing a history of the present.
