In the fight over Brown's history, the participants respond

What happened in Brown v. Board of Education (1954), and what it all meant at the time, was a matter of contention in Parents Involved in Community Schools v. Seattle School District No. 1, the race in education case decided by the Supreme Court on Thursday. While it is common to draw upon past cases, Chief Justice John Roberts made the extraordinary move of quoting from the NAACP plaintiff's brief in Brown, and the oral argument made by NAACP Robert Carter in the Supreme Court. In doing so, he went beyond the usual judicial move of reinterpreting past precedents, and implied that a rigid, ahistorical "colorblindness" vision of 14th amendment equality was what the plaintiffs themselves had sought in Brown in the first place.

Thurgood Marshall is not present to tell Chief Justice Roberts just what he thinks of this strategy, but the New York Times yesterday went back to some of the surviving lawyers who participated in Brown. (Sorry I am a bit behind the news cycle on this -- I have been secluded in the archives in Austin, and then on an airline while all of this news has been breaking. But long after the headlines are over, the use of history in this case will remain one of the most curious and important aspects of the Roberts Court's handiwork.)

The Chief Justice quoted Robert Carter, one of the attorneys who argued Brown in the Supreme Court. Now a senior Federal District Court Judge, at the age of 90, he said: “All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.” The coverage continued:

Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation “preposterous.”

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.”

William T. Coleman Jr., another lawyer who worked on Brown, said, “The majority opinion is 100 percent wrong.”

“It’s dirty pool,” said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, “to say that the people Brown was supposed to protect are the people it’s now not going to protect.”

Some of the participants in Brown have written memoirs: Jack Greenberg, Crusaders in the Courts; Constance Baker Motley, Equal Justice Under Law: An Autobiography; Robert Carter, A Matter of Law: A Memoir of Struggle in the Cause of Equal Rights.
Thurgood Marshall did not write a memoir, but there are several works on his life, including Mark Tushnet, Making Civil Rights: Thurgood Marshall and the Supreme Court, 1956-1961, and Juan Williams, Thurgood Marshall: American Revolutionary. Marshall did a number of oral history interviews. The most comprehensive is published in an excellent collection, Mark Tushnet, ed., Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences (with a superb Forward by Randall Kennedy).

There are many good web resources on civil rights history. For a review of Brown v. Board of Education-related websites in the Journal of American History (by yours truly), click here. The websites are:

Separate Is Not Equal: Brown v. Board of Education. Created and maintained by the National Museum of American History, Kenneth E. Behring Center, Smithsonian Institution, Washington, D.C.

The University of Michigan Library Digital Archive: Brown v. Board of Education. Created and maintained by the University of Michigan Library, Ann Arbor.

Brown at 50: Fulfilling the Promise. Created and maintained by Howard University School of Law, Washington, D.C.

Photo description & credit: The Legal Defense Fund team of the NAACP (left to right): Louis Redding, Robert Carter, Oliver Hill, Thurgood Marshall, and Spottswood W. Robinson, on Smithsonian site, Separate is not Equal.

Roberts misreads Brown and its history in today's school case

There is much to be said about the uses of history in today’s important case, Parents Involved in Community Schools v. Seattle School District No. 1. History mattered to the Supreme Court in grappling with the role of race in student assignment, but history became a battleground, as Justices disagreed over both the lessons of history, and also the underlying narrative – what the substance of civil rights history has been.

For basic news coverage of the ruling, the New York Times story is here. For excellent blogging on the cases, start with SCOTUS Blog. The opinions are here. My article cited in Breyer’s dissent can be found here. More to come on the issue Breyer takes up: American equality in a global context, and implications for thinking about the national stake in these cases. Because I am away at the LBJ Library this week, I’m commenting today just on one issue.

The most important move in Chief Justice John Roberts’ majority opinion is to decontextualize 14th Amendment equality, and to take it out of the history of the subordination -- not subordination of any individual -- but of individuals who were members of certain groups: African Americans and other nonwhites. To accomplish this, Chief Justice Roberts invokes the icon of 20th century equality: Brown v. Board of Education. But he misreads Brown to support an argument that 14th amendment rights are not about groups. Roberts suggests: "This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) ("At stake is the personal interest of the plaintiffs in admission to public schools . . . on a nondiscriminatory basis" (emphasis added))."

Roberts’ quote is not from the substantive 14th amendment ruling in Brown I, but from Brown II, the decision that delayed Brown’s implementation out of a concern about its impact on groups. The Court was concerned that enforcing the rights of the plaintiffs might lead to resistance, so those rights were put on ice for many years, until a decade later when the Court decided that "the time for mere 'deliberate speed' has run out," and the time for meaningful remedies had arrived.

The quote Roberts uses to abstract and individualize the substantive right of equality does not pertain to the substance of the right at all. Instead, it has to do with the nature of the remedy, and the way principles of equity should be invoked. Here’s the full paragraph:

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

The plaintiffs’ "personal interest" is their ability to invoke the remedy. The nature of the right being remedied is defined in Brown I, which is framed in group terms. The groups are, of course, racial groups. And so in order to recognize the rights at stake in Brown, to remedy them, and to guard against their future violation, consistent with Brown, government entities would seem bound to pay attention to groups, and certainly not disabled from doing so.

More unfortunate than Roberts’ misuse of Brown II is the majority’s effort to wrap their handiwork in the garb of the architects of the legal struggle that achieved Brown in the first place. The Chief Justice quotes from the brief for the plaintiffs in Brown. He quotes NAACP lawyer Robert Carter, now a federal judge, who was one of the advocates, along with Thurgood Marshall, in the Supreme Court. He takes their statements out of context to imply that they argued for a form of colorblindness that is now used to undo their handiwork.

If the Court wishes to carve a new path, the 5 member majority in this case has the power to do it. They need not rewrite the history of Brown to achieve this purpose.

Earl Warren to LBJ on Thurgood Marshall

I am working at the LBJ Library this week (hence the sparse posting), and I ran across something unexpected yesterday. After Thurgood Marshall's nomination to the U.S. Supreme Court in June 1967, President Johnson was deluged with mail and telegrams about the appointment. They ran overwhelmingly in favor of Marshall. The staff prepared pro forma responses. But there was one letter they weren't quite sure about the protocol for.

It came from Chief Justice Earl Warren, handwritten on small-sized Supreme Court stationary. He took the time to congratulate the president on "an excellent appointment. Few men come to the court with better experience or a sounder preparation for our work. Also it is in keeping with your policy of opening governmental opportunities to all without regard to race, religion or economic status. In this respect no other President has done as much as you have."

Warren continued, "All of us know Thurgood," a reference to his frequent appearances before the Court as a civil rights litigator and then Solicitor General. The Justices "will welcome him to the court in the belief that he will make a real contribution to its jurisprudence during the many years we hope he will be able to serve."

"We look forward with anticipation to his early confirmation and qualification."

Gerzog and Tax History in Davenport: Res Judicata Applied

Wendy C. Gerzog, University of Baltimore, has posted an essay, Davenport: Res Judicata Applied. It appeared recently in Tax Notes. The essay begins this way:

Davenport is the latest in a long series of decisions on what is essentially the same case that has been heard in several forums and jurisdictions. That long history of litigation illustrates how some taxpayers have successfully delayed paying transfer taxes for approximately 27 years and counting. The Fifth Circuit, however, has stymied those lollygaggers — or at least one of them.

And here's the very short abstract:

The Fifth Circuit applied res judicata in Davenport and the gift tax on 1980 gifts may finally be paid. The article details a long history of litigation culminating in this case.

Details on "The Family Jewels"

The New York Times has assembled a panel of historians and intelligence experts who are blogging about the newly released CIA documents about agency domestic surveillance and other unlawful activity here. The original story about the CIA's decision to release long-sought secret documents from the 1950s to 70s is here. The National Security Archive has updated its story here.

New Political Science Working Paper Blog

Political Science Weblog has just been launched. According to blogger Henry Farrell, the blog "seeks to serve as a rough-and-ready guide to political science papers which are likely to have some appeal to a general audience (as measured by the editor’s idiosyncratic notions of ‘appeal’). As currently constituted, the blog will post entries consisting of the abstracts of the papers, bibliographic details, and, where available, links to the papers in question." You can submit an abstract: "To submit papers for consideration, send the details (including URL, cut-and-pastable abstract and bibliographic details please) to henry at the domain name henryfarrell with the suffix .net." Welcome to the blogosphere!

Valcke on Comparative History and the Internal View of French, German, and English Private Law

Catherine Valcke, University of Toronto, has posted an abstract for a recent article, Comparative History and the Internal View of French, German, and English Private Law. It appeared in the Canadian Journal of Law and Jurisprudence. The article itself is not posted, but you can find full citation information and the author's contact information here. Here's the abstract:

This Article explores the different intellectual and socio-political contexts that attended the emergence of the French, German, and English legal systems with a view to understanding French, German, and English private law from the perspective of the participants in these systems. The French legal system is a child of the Cartesian dualism that marked the Age of Reason, according to which the material world can and ought to be fully dominated by the human intellect. This conception of the relation of facts to ideas arguably is reflected in the structure and design of the French civil code, in such institutional features as the French conception of the role of the judge, as well as in the tendency of French jurists to view contractual consent subjectively. In contrast, the German legal system congealed at a time when Cartesian dualism was losing ground to German idealism. The dialectic conception of facts and ideas favoured by the German idealists arguably made its way into several institutional features of the German legal system, including the content of the BGB, the codification process, the conception of the role of the judge, the style of judicial decisions, and the greater inter-penetration of public and private law. It may also partly explain why German jurists have tended to view contractual consent as simultaneously objective and subjective. Finally, whereas both the French and the German legal systems emerged from highly intellectual contexts, the English legal system grew from a maize of pragmatic political and administrative considerations that left little room for explicit ideas. The emphasis on hard facts still is palpable in many aspects of contemporary English law, in particular, the doctrine of stare decisis, the conception of the judicial function, and the mode of reasoning by analogy. It arguably also is reflected in the tendency of English judges to privilege the objective conception of contractual consent.

Civil rights histories, soon to fade away

Even his wife was afraid to be with him. "Those were no easy days," Johnnie Johns said of the early 1960s. He had been practicing law in Baton Rouge for seven years before the students called him. They wanted him to be their lawyer, but they wouldn’t tell him why. It was only later, when he was in the D.A.’s office to negotiate a plea bargain, that Johns would discover that he was counsel to students in the first deep South sit-in during the year of the sit-ins, 1960.

"They’re sett’in!" a voice called through the hallways.
"Who’s sett’in?"
"The Ni---rs! The Ni---rs are sett’in!"

The D.A. had no time for the plea bargain and quickly dropped all charges against Johns’ client. Johns headed straight for the jail. The students, who had sat quietly at white restaurant counters, were arrested and detained for "disturbing the peace." Thousands of students would sit-in that year, but it was these students who would find themselves the parties to a Supreme Court case, Garner v. Louisiana, that would help protect the rights of the others.

It was hard for Mr. Johns to talk about those times, he told me. It had always been hard and dangerous – an African American lawyer in Louisiana who took civil rights cases from the beginning of his practice. But now it was worse. The threatening phone calls, the cars that blocked yours on the railroad tracks when the train was coming, the attempts to force you off the road and make it look like an accident. Thurgood Marshall and the other Northern lawyers faced threats as well. But then they went home. Johns lived it every day. "When you walk out your office, you meet them."

The sit-in movement involved civil rights lawyers in a new phase of the movement. It was not just that their old legal strategies did not fit. The lawyers felt a paternalistic desire to protect the students from harsh treatment, sexual abuse and other hazards in Southern jails. To this day one student, Kenneth Johnson, told me, he has been unable to forget a scene he witnessed in the few hours it took Johns to raise their extraordinarily high bail. A legal brain trust worked to craft novel legal arguments, and front-line lawyers worked with local communities to raise bail funds to get the students out of jail.

Johnnie Johns, 87 years old and still practicing law in Baton Rouge, has many stories to tell about these hard times. He has been told he should write a memoir, but he has cases to handle. He doesn’t have time. Mr. Johns is one of a generation of lawyers who played a role in a civil rights revolution. The students, of course, have their own stories to tell. There is much that legal historians can learn from all these witnesses to history. For the generation of civil rights lawyers, they are just enough older than the students that their numbers are dwindling. There are books, dissertations and essays to be written from these sources. It is not hard for an enterprising researcher to find lawyers like Johnnie Johns, still practicing in the South, and to find the students who sat-in in Baton Rouge and elsewhere. All they need are the right historians to notice them in time.

This account is based on oral history interviews by Mary Dudziak with Johnnie Johns and Kenneth Johnson, June 2007.

Photo credit: Some of the Southern University students who participated in the Baton Rouge sit-ins.

Mazzone on The Bill of Rights in the Early State Courts

Jason Mazzone, Brooklyn Law School, has posted a new article, The Bill of Rights in the Early State Courts. It is forthcoming in the Minnesota Law Review. Here's the abstract:

The Bill of Rights originated as a constraint only on the federal government. However, early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Although in 1833 in Barron v. Baltimore, the U.S. Supreme Court dismissed a Fifth Amendment takings claim brought against state government, state courts remained free to apply the Bill's protections against their own state legislatures and executives. Largely forgotten today, state court applications of the federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history of the federal Bill of Rights in the early state courts reveals some deficiencies of constitutional law in the modern era.

Cousins on Poor Law Politics and Elections in Post-Famine Ireland

Mel Cousins, Oxford Brookes University, has posted an essay, Poor Law Politics and Elections in Post-Famine Ireland. It appeared in History Studies. Here's the abstract:

There has, to date, been limited study of poor law politics and elections in Ireland in the nineteenth century. Feingold's important study of poor law politics examined what he sees as the revolt in local government which was linked to the land war in the late 1870s and 1880s. Feingold's thesis is that the boards of guardians which administered the poor law in Ireland were effectively controlled by landlords up to the 1870s and that this control was gradually called into question by tenant-farmers from the 1870s, particularly the later 1870s, on. This led to the important social transformation of power in Ireland. Feingold's work is enormously valuable but does tend to give the impression that the boards of guardians in the period before the 1870s were simply administrative in nature and that politics was rarely involved at board level in this period. This article reviews the evidence on the poor law politicisation and elections in the decades before the land war focusing in particular on the period of the 1860s-1870s.

Reviewed: Frielander, The Years of Extermination: Nazi Germany and the Jews, 1939-1945

THE YEARS OF EXTERMINATION: Nazi Germany and the Jews, 1939-1945 by Saul Friedländer was reviewed by Richard J. Evans, Cambridge University, in Sunday's New York Times. Evans finds that the book "now establishes itself as the standard historical work on Nazi Germany’s mass murder of Europe’s Jews." Friedlander "has written a masterpiece that will endure." Evans writes:

And yet “The Years of Extermination: Nazi Germany and the Jews, 1939-1945” is no ordinary academic book. True, Friedländer seems to have read virtually every printed source and secondary work on his vast subject in English, German and French. His judgments are scrupulous and levelheaded. And he treats the historical controversies that have raged around so many of the topics he covers with untiring fair-mindedness. He writes without a trace of polemic or of facile retrospective moralizing. The book meticulously satisfies every requirement of professional historical writing.

What raises “The Years of Extermination” to the level of literature, however, is the skilled interweaving of individual testimony with the broader depiction of events. Friedländer never lets the reader forget the human and personal meanings of the historical processes he is describing....The result is an account of unparalleled vividness and power that reads like a novel....

[Jews] were the victims, Friedländer argues, not of anonymous processes generated in the machinery of Nazi and SS administration, but of one man above all: Adolf Hitler. Friedländer is critical of the recent, voluminous literature, mainly by a younger generation of German historians, that attempts to depict the extermination program as the outcome of coldly rational processes of decision-making by administrators, “experts” and officials in the German-occupied areas of Eastern Europe, who decided that the Jews would have to be killed so that the limited food supplies available in the area could go to the Germans, or to make room for German settlers or Germans left homeless by Allied bombing raids.

Such arguments do not explain the manic obsessiveness with which Heinrich Himmler, the head of the SS and the man in charge of implementing the extermination program, tracked down Jews to arrest and kill, even traveling to Germany’s ally Finland to try and persuade its government to surrender that country’s tiny Jewish population, which was of no objective economic or strategic importance to Germany at all. Nor do these arguments do justice to the virulent language of hatred used by the Nazi leaders, Hitler and Goebbels in particular, when they spoke, as they did almost unceasingly, of the Jews.

To read the rest, click here.

Reviewed: Van Overtveldt, The Chicago School: How the University of Chicago Assembled the Thinkers Who Revolutionized Economics and Business

The Chicago School: How the University of Chicago Assembled the Thinkers Who Revolutionized Economics and Business by Johan Van Overtveldt is reviewed by Kim Phillips-Fein, NYU, in this weekend's Chicago Tribune.


Phillips-Fein begins by noting that when first published in 1962, Milton Friedman's Capitalism and Freedom received little notice. But then, "by 1982, the nation had elected a president who believed that cutting tax rates and shrinking the government were the keys to economic growth. No longer did policymakers agree that the market was the problem and the state the solution." She continues:

How did this intellectual shift happen? "The Chicago School: How the University of Chicago Assembled the Thinkers Who Revolutionized Economics and Business," by Johan van Overtveldt, director of a Belgium-based think tank and a contributor to The Wall Street Journal Europe, tells the story through the lens of the University of Chicago, Friedman's scholarly home.

During the 1950s, '60s and '70s, the Gothic buildings on the Midway housed the country's most-prominent challengers to Keynesianism. The name of the school became virtually synonymous with the idea that free markets are the most fair and efficient way to distribute wealth, while any government intervention distorts the economic order. And even before the rise of the Chicago School, in the early years of the 20th Century, the University of Chicago was home to many important and influential economic thinkers. Hyde Park has nurtured record numbers of winners of the Nobel Memorial Prize in Economic Sciences -- more than twice the number at either Harvard University or the University of California at Berkeley, the runners-up....


Overtveldt makes special note of the school's "apparently inspiring isolation." Cut off from the traditional centers of culture and power -- New York City and Washington, D.C. -- and divided from the Loop by a 20-minute drive (Hyde Park lacking even decent elevated train service), the leafy Quads have protected scholars from alluring distractions while providing a haven for intellectual iconoclasts. As Deirdre McCloskey, a former U. of C. professor, notes, " 'Don't you know that the greatness of the University of Chicago has always rested on the fact that the city of Chicago is so boring that the professors have nothing else to do but to work?' "...


The modern Chicago School only developed after World War II, when thinkers like Friedman and George Stigler began to advance their critique of Keynesian economics. Through scholarship on a variety of different theoretical issues -- consumption, inflation, economic thought -- they reasserted the centrality of price theory and the primacy of the rational individual as the unit of analysis.

Overtveldt is at his best in his depiction of the ruthless yet stimulating internal culture of the department during these years. Workshops that might be polite but sleepy seminars at other campuses became "bloodbaths" at Chicago. Graduate classes were exercises in " 'terror.' " Rather than quench debate, Overtveldt argues that for those who could withstand the pressure, the intellectual hazing helped hone their economic analyses....


To critics, the willingness of the Chicagoans to analyze discrimination economically or children as an investment often seemed shocking. As economist Robert Solow of the Massachusetts Institute of Technology says, " 'There are some things that should not be analyzed as if they were subject to being bought and sold.' " But the frisson of the Chicago School was precisely its stance of being ever-willing to discard social norms and vague notions of the common wisdom for the crystalline logic of economic laws.

Yet despite the light it sheds on a fascinating corner of academic life, "The Chicago School" falls short of providing a full picture of the influence of Chicago economics on the discipline, or on American politics more broadly. Overtveldt's writing about economic ideas is at times too dense for the general reader, while for the specialist it fails to provide an effective synthesis of the common strains linking the different Chicago economists, as well as a sense of how their ideas differed from, and helped shape, the mainstream....Finally, Overtveldt chooses to focus tightly on the academic work of the Chicago economists, to the exclusion of historical context. This makes it hard to get a full sense of the political significance of their ideas.


For the rest of this excellent review, click here.

New Blog: Religion and American History

Paul Harvey, Professor of American History, University of Colorado at Colorado Springs, and author of Freedom's Coming: Religious Culture and the Shaping of the South from the Civil War through the Civil Rights Era, and other works, has just launched a new blog: Religion and American History. It is surely to be of interest to many legal historians. Welcome to the blogosphere!

Kendall reviews Lesaffer, Peace Treaties and International Law in European History

Randall Lesaffer, ed., Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (Cambridge University Press, 2004) is reviewed on H-Law by Walter J. Kendall III, John Marshall Law School. Kendall writes:

The nineteen European university-based authors of the essays in this very useful book use peace treaties as the lens through which to discern and systematize the long neglected history of what they call international legal practice, as opposed to doctrine and discourse (p. 1). These studies begin with the late fifteenth century, recognizing that the writings of the Spanish neo-scholastics in response to the age of discovery, the rise of great dynastic states, and the Reformation coalesced and formed the seed bed for the modern state system dominated by sovereign territorial nation states (p. 3). The studies, in turn, end with Versailles, because it “marked the turning point in the history of international law. Not only was it the first punitive peace between sovereigns since at least the late Middle Ages, thus dealing a blow to state sovereignty, but it also was the starting point for the era of international organizations. Moreover, during the twentieth century, peace treaties gradually lost their monopoly in the field of peace settlement.”(p.4).

After his introductory chapter, the editor of the book, Randall Lesaffer,addresses “the myth of Westphalia.” He argues that the basic principles it is usually associated with, sovereignty, religious neutrality, and a balance of power are not found in its treaties as principles of inter-state relations(p.9-10). He sees both remnants of medieval ways (e.g., the use of oaths as a method of notification) (p. 26) and new features portending fundamental change (e.g., the presence of amnesty clauses implying that the parties engaged in a mutually just war) (p. 38-39) in the treaty provisions. Further, Lesaffer considers the mid-seventeenth century as a period of “crisis” in the European legal order (p. 10) reducing the salience, if I may use that word here, of Westphalia.

Crisis or not, the next author, Heinz Duchhardt, looking at treaties before and after 1650 sees important changes in treaty practice. Earlier circumstances had reduced the unifying authority and arbitral role of both the Pope and the Emperor over the respublica Christiana, leaving a void in the international system. He argues it wasn’t until the Treaties of Utrecht (1713) that the construct of the balance of power was in place to fill those roles.

Heinhard Steiger completes part I by covering the period from the Treaty of Paris (1814) to the Treaties of Versailles (1919-20). He moves beyond a focus on the dominating power of what Grewe called the “English era,” to what he calls “the international law of civilized nations” by including the then colonial world in his purview (p. 66-67). He briefly discusses changes during that period in both the practice of negotiating treaties, including topics discussed & persons involved, and the internal structure of the treaties themselves.

A central assumption behind the book is that modern peace treaty practice drew on medieval thought and practice, which in turn looked back to antiquity. (p.4). Part 2 “Thinking Peace: Voices from the Past,” contains six essays that look in detail at how the Roman Law of treaties and the Canon Law operated, and in turn influenced early modern treaty practice. These pieces range from the very narrowly focused study of The Kiss of Peace by Hanna Vollrath to the wide ranging study of The Importance of Medieval Canon Law and the Scholastic Tradition for the Emergence of the Early Modern International Order by Dominique Bauer.

The authors all recognize the need for “many decades of systematic research” to answer all the questions that need to be answered about the history, thought,and influence of this period (p. 5). The unsettled state of this scholarship is illustrated by the different characterizations of Martinus Garatus Laudensis’ De Confederation, Pace et Conventionibus Principum, which is included as an appendix to this volume. Lesaffer calls it “the most comprehensive autonomous treatise on peace treaty law from the learned tradition of medieval ius commune.” (p. 5). The author of the essay on Garatus himself concludes rather,that it is merely “a variegated sample of late-medieval civil law and canon law authorities on a limited range of related issues…just loose fragments …” (p.196).

Part 3, “Thinking Peace: Towards a Better Future,” contains four essays, three of which are focused on particular international law theorists. One by Mark Belissa uses the work of Gabriel Bonnot de Mably to develop the enlightenment idea of bonne foi. A second by Mathias Schmoeckel discusses how Lassa Oppenheimer’s text International Law (1905) framed, for decades after their adoption, the general understanding of the Versailles treaties ending World War I and establishing the League of Nations.

The third essay, by Ingo Hueck doesn’t seem to fit with the overall theme of the book. It rather looks at the experience and thought of the late 19th and early 20th German academic international lawyers in order to answer the question “why indeed did the strongest maritime and colonial power, Britain,develop a strong notion of securing peace and building international relationships in the age of imperialism, while the young German Empire was devoting itself to glorifying war” (p. 295). The answer he gives, based in significant part on the role of German academics at the Hague Conferences of1899 and 1907, is that German nationalism tragically marginalized the thinking of other more liberal and pacifist academics.

In part 3, Andreas Osiander’s essay also “holds a somewhat peculiar place” (p.5). It is however, a most interesting attempt “to place the general subject matter of this volume, peace negotiations and treaties, within a theoretical framework” which critiques International Relations Realism for its universalistic, a historicist, and statist assumptions (p. 289). Osiander findspeace talks “among the most fruitful sources” of the discourse in which the widely shared assumptions of a time are manifest. These assumptions have the capacity in his view to “create durable social & political structures”which in turn influence the formation of future assumptions, and so on (p. 313).

Part 4, “Making Peace: Aspects of Treaty Practice,” has four essays which develop in some depth, unrelated but fundamental dimensions of early modern treaty law practice. Ronald Asch’s essay on ius foederis, the right to pursue a separate foreign policy, illustrates the ambiguity of this and so many other concepts used through several periods of history. Should this concept be understood in seventeenth-century terms as the then otherwise obsolete right of resistance or should it be understood as a precursor of the modern notion of self-determination (p. 337)? Karl- Heinz Ziegler reviews the history of treaties between European powers and the Ottoman Empire from the middle ages to the early 20th century. Neither Christians nor Moslems have ever been fully comfortable with trusting unbelievers. Ziegler’s chronicle like review and its footnotes can serve as a valuable bibliography for further research. Stephen Neff traces the history of what he refers to as the commercial aspects of peacemaking. This sketch, which is not concerned with either indemnities or reparations as such, has value, again like most of the other essays in this book, as a catalogue of experiences, in this case, with the economic components of peacemaking. Christian Tomuschat compares the treaties of 1870 – 71 and 1919-20, each ending a war between France and Germany. He argues that each was “embedded in widely divergent political & legal contexts” (p. 395). Heconcludes that the most salient difference was the introduction of “issues of international morality” (p. 395). This in a sense can be seen as a return to the pre-modern era of respublica Christiana when it was thought that only one party to a war could be acting justly.

The editor concludes this volume with the main results of the research as he sees it. First, Westphalia does not represent the great divide it is usually thought of as either for understanding the European state system, the law of nations, or treaty law (p. 404-408). Next, treaty law as an autonomous discipline emerged in the seventeenth century (p. 406). Third, the Reformation caused the Roman & Canon law basis for the respublica Christiana to crumble(p.405). Finally, in addition to treaties and international custom, modern practice retains elements of Roman & Canon Law (p. 409).

For the rest, click here.

CIA to release files of the agency's past misdeeds

"The CIA will declassify hundreds of pages of long-secret records detailing some of the intelligence agency's worst illegal abuses -- the so-called "family jewels" documenting a quarter-century of overseas assassination attempts, domestic spying, kidnapping and infiltration of leftist groups from the 1950s to the 1970s, CIA Director Michael V. Hayden said yesterday," as reported in the Washington Post.

The documents, to be publicly released next week, also include accounts of break-ins and theft, the agency's opening of private mail to and from China and the Soviet Union, wiretaps and surveillance of journalists, and a series of "unwitting" tests on U.S. civilians, including the use of drugs."

Most of it is unflattering, but it is CIA's history," Hayden said in a speech to a conference of foreign policy historians. The documents have been sought for decades by historians, journalists and conspiracy theorists and have been the subject of many fruitless Freedom of Information Act requests.

In anticipation of the CIA's release, the National Security Archive at George Washington University yesterday published a separate set of documents from January 1975 detailing internal government discussions of the abuses. Those documents portray a rising sense of panic within the administration of President Gerald R. Ford that what then-CIA Director William E. Colby called "skeletons" in the CIA's closet had begun to be revealed in news accounts.

The best place to go for details on a story like this is the on-line National Security Archive, where you can find several documents posted, including a January 1975 Memorandum of Conversation detailing CIA Director William Colby's briefing President Gerald Ford about the CIA's "skeletons in the closet."

David on Law and Violence from a Talmudic Legal Perspective

Joseph (Yossi) E. David, Hebrew University of Jerusalem, has posted the abstract for a recent article, 'The One Who is More Violent Prevails' – Law and Violence from a Talmudic Legal Perspective. It appeared in the Canadian Journal of Law and Jurisprudence. The article itself is not posted, but citation information and the author's contact information are here. Here's the abstract:

How are we to distinguish between law and violence? On what grounds is the former legitimized while the latter is condemned? This modern question sheds light on the essential concepts of law and order and their social value. My task in this paper is to trace the roots of this question in the Jewish jurisprudential tradition by focusing on a unique norm, established sometime during the 5th to the 6th century, in which violence become a legitimized norm when a case could not be determined by means of official legal procedure. This survey shows that while ancient sources legitimized this norm of extra-legal violence, medieval thinkers redefined it and neutralized it, reduced it to an economic procedure or even explicated interesting stances regarding the honor and stability of legal institutions.

Programming note

There is more to come in the discussion of Gordon Wood's recent review, "Reading the Founders' Minds." Future posts will appear interspersed with regular content, with links from the new posts to the older ones.

Lawrence Goldstone responds to Gordon Wood

In this post, Lawrence Goldstone, author of Dark Bargain: Slavery, Profits, and the Struggle for the Constitution, responds to Gordon Wood's review of his book in the New York Review of Books, noted here on the Legal History Blog. To follow this conversation, readers will want to see the full review. It is only available on-line for those with a subscription, but one-time access can be purchased. And you can find it in your library. Here's Goldstone:

I have the greatest respect for Gordon S. Wood. He has provided incisive, encyclopedic understanding of the Founding Period for decades. I can only hope, however, that he takes more care reading historical documents than he did with my book.

In his analysis of Dark Bargain, Dr. Wood selectively excised minor arguments and made them major, while completely avoiding the central themes. In making my case for John Rutledge, for example, I focused on his role as chairman of the Committee of Detail, a group of five delegates chosen at the end of July to draft a prototype constitution. As anyone in business or government who has ever been involved in such a process will attest, the creation of a working document—as opposed to Madison’s Virginia Plan, which was an unsolicited submission—is a position of enormous influence and power. That Rutledge, perhaps the most ferociously unapologetic defender of slavery in Philadelphia, was chosen by his fellows to chair the committee, I found telling. What’s more, Madison, who was present and would have leapt to serve, was specifically excluded. The delegates needed a Virginian and chose the malleable Edmund Randolph instead. Academics never discuss Madison’s exclusion, perhaps because it would undercut the notion that he was the driving force throughout the Convention.

Not only does Dr. Wood fail to address Madison’s absence from the committee, he avoids any mention of the Committee of Detail at all in his review. Curiously, in a new book, The Summer of 1787: The Men Who Invented the Constitution (written two years after mine) David O. Stewart, a Constitutional lawyer, also grants Rutledge and the Committee of Detail a pivotal role—and Madison a diminished one. Mr. Stewart has only been praised for bringing this heretofore unexplored aspect of the Convention’s dynamics to light.

In another instance, Dr. Wood, to demonstrate my naiveté and lack of understanding, cites a famous quote by Madison, which asserts that everyone knew that the most significant rift was not between large and small states, but between slave states and free. Dr. Wood goes on to explain that Madison was merely throwing out a red herring to distract the delegates from the large/small division. But nowhere in the volume upon volume of his writings and speeches did Madison indicate he was bluffing on that afternoon in July. Quite the contrary. I, therefore, took Madison at his word—Dr. Wood claimed to read his mind. Dr. Wood’s credentials are without peer but I was unaware that they confer upon him a license to clairvoyance.

Dr. Wood states that “we have to try to rid ourselves of our knowledge of what happened in the succeeding decades.” I could not agree more. Another pivotal theme of Dark Bargain was the expectation, never realized, of population trending south and west, thereby providing southern states with a future majority in both houses of Congress. Pro-slavery delegates were thus very much playing for time in Philadelphia, with definite consequences that I discussed at length. The debate as to whether to initiate a national census, for example, was conducted along sectional lines. Once again, no mention in the review.

Finally, I thought that the distinction between the tobacco growing Upper South and rice intensive Lower South caused those sections to come down on different sides of the slave trade—a very distinct question from the slave system—and provided a fulcrum to savvy Northern delegates to use as one side of a compromise on commerce questions. No discussion from Dr. Wood.

That Dr. Wood would be so transparently selective, spend so much time and energy avoiding the crux of the argument—particularly by someone he took pains to dismiss as “the author (with his wife Nancy) of several works of history on subjects other than early America”—leads me to believe that it is the source and not the treatment that disturbs him the most.

Lawrence Goldstone
Westport, CT

Robin Einhorn responds to Gordon Wood

Robin Einhorn, author of American Taxation, American Slavery, responds to Gordon Wood's, review Reading the Founders' Minds, noted here.

I thank Mary Dudziak for the invitation to participate in this discussion, though I find myself a bit perplexed about how to respond to Wood's review. On the one hand, I am deeply grateful for his summary of my findings in such an august venue. He is right to notice that my sense of the tragedy of American history is different from his and to locate the radicalism of my view where he has: in my outright rejection of the idea that the slaveholding politicians of the early republic were the champions of liberty and democracy they pretended to be.

On the other hand, however, I am deeply sympathetic to the predicament Wood explores at the start of his essay. He seems to feel much as the Beardians felt in the wake of Richard Hofstadter, Louis Hartz, and Daniel Boorstin. Or as the consensus historians felt in the wake of Gary Nash, Leon Litwack, and David Montgomery. Or as many social, labor, political, and legal historians felt in the wake of the cultural history explosion of the 1990s. Many of them shouted "NO" as they watched younger historians abandon the subjects, themes, and approaches whose centrality they had fought to establish.

We all know that this is how scholarship works, and I fully expect it to happen to me down the line. The method that I have fought to establish, along with other members of my generation of historians, is an institutional -- rather than ideological -- approach to political history. We find what people did in the political realm to be far more significant than what they wished they had done or hoped others would eventually do, and we find the best evidence of what they did in the structure and operation of their political institutions. We define political history as the story of what people did in politics, generally leaving the analysis of their rhetoric to the intellectual and cultural historians. And, increasingly, we are finding that our attention to institutions is shoving slavery toward the center of our interpretations of American political development.

Thus, my own work is about liberty and democracy as they did (and did not) exist in real times and places -- rather than about the rhetoric of liberty and democracy. Most important, my work is about taxes. Wood says little about what I hope will be the principal scholarly contribution of American Taxation: the research that enabled me to reconstruct and describe the misunderstood, forgotten, and in some cases simply unknown tax policies and debates of early American history. My interpretations of these policies and debates certainly will not be the last word on them, but I have tried to place them onto the table for scholars to consider when thinking about the political, constitutional, and legal -- and perhaps even the intellectual and cultural -- history of the United States.

Gordon Wood questions the importance of slavery at the founding, criticizing two new books, and a broader literature

"Reading the Founders’ Minds" is the title of a review by Gordon S. Wood in the June 28 issue of the New York Review of Books. The review takes up important questions of historical method, and also a critical question about the vision at the nation’s founding. Because of the importance of this review, and also because of the sharpness of the criticism of the reviewed books, I’ve invited the authors of the reviewed books to provide commentary on the Legal History Blog, and I have invited a couple of other legal historians of this period to join in. Their posts will follow, later today and later this week.

The books at hand are Dark Bargain: Slavery, Profits, and the Struggle for the Constitution by Lawrence Goldstone (Walker) and American Taxation, American Slavery by Robin L. Einhorn (University of Chicago Press), but Wood uses the review to take aim at a broader literature that places slavery front and center at the nation’s founding. Other works on his list are Leonard L. Richards, The Slave Power (2000); Don E. Fehrenbacher, The Slaveholding Republic (2001); Paul Finkelman, Slavery and the Founders (2001); Garry Wills, "Negro President": Jefferson and the Slave Power (2003); Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation: How Slavery United the Colonies and Sparked the American Revolution (2005); and Gary Nash, Forgotten Fifth: African Americans in the Age of Revolution (2006). These books, Wood suggests, "help satisfy the seemingly insatiable desire of many historians today to place slavery at the heart of America's origins."

This treatment of slavery, he argues, is an improper form of presentism. He agrees with Bernard Bailyn, who "is keenly aware of the present's need to relate to the past and the power of that need in stimulating historical inquiry and writing. ‘There is always,’ [Bailyn] writes, ‘a need to extract from the past some kind of bearing on contemporary problems, some message, commentary, or instruction to the writer's age, and to see reflected in the past familiar aspects of the present.’ But without ‘critical control,’ this need, says Bailyn, ‘generates an obvious kind of presentism, which at its worst becomes indoctrination by historical example.’"

Wood sees historians as taking to studies of the founding their present-day concerns. Early in the 20th century, when class struggle was a topic of concern, historians like Charles Beard studied the role class at the founding. In the latter half of the 20th century, Wood argues, race has been at the forefront, and so historians have put race at the center of their work on the founding. Wood finds value in this work, but he asks whether "the historians who have written these works exercised Bailyn's 'critical control' and avoided distorting the past with their present-minded concerns?"

Wood acknowledges that "no one can deny the importance of slavery to the development of early America." He emphasizes that "the fact that slavery had been taken for granted for thousands of years prior to the mid-eighteenth century must be the starting point in any assessment of its influence on early American politics and nationhood. With the exception of some isolated people with strong principles, especially Quakers, few Americans prior to the Revolutionary era seriously questioned the institution of slavery. It was the Revolution and its emphasis on liberty that made slavery a problem for Americans."

From this starting point, Wood turns to detailed and rather sharp critiques of Goldstone and Einhorn, which don’t lend themselves to quick summaries. Those with an on-line subscription to the NYRB can find the rest here, or you can purchase one-time access for $3.00. Others can find it in your mailbox, on your newsstand, or in your library. And for Mark Graber's very positive take on Einhorn's book on the Legal History Blog, click here.

Commentary will follow. Readers are welcome to join in by using the blog comment function. Comments generally are not moderated, but you must register with Google to post a message (it is easy, and they don't spam you), and you’re able to create a pseudonym, if that is important to you.

Thanks to Al Brophy for the tip on this.

Note: I am traveling this week and next, so any glitches that need my attention may take a little longer than usual in fixing.

Originalism Throwdown: Kry takes on Davies on the Court's originalism in Crawford v. Washington

Robert K. Kry, Baker Botts LLP, has posted a new essay, Confrontation Under the Marian Statutes. It appeared in the Brooklyn Law Review. The author notes in the essay that he was a law clerk to Justice Antonin Scalia during the term that Crawford v. Washington was decided. Here's Kry's abstract:

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause prohibits admission of an absent witness's “testimonial” statements against a criminal defendant unless the witness is unavailable to testify in person and the accused had a prior opportunity for cross-examination. That holding was based in part on a claim that, at the time of the framing, those two conditions governed admissibility of pretrial examinations taken under the Marian bail and committal statutes. In his recent article, What Did the Framers Know, and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REV. 105 (2005), Professor Thomas Davies argues that Crawford's historical claim is mistaken, and that a Marian examination was admissible if the witness became unavailable, regardless of whether there had been an opportunity for cross-examination. He acknowledges that a cross-examination standard ultimately emerged in England, but contends that this development occurred too late to have informed original meaning.

This Article responds. I argue that Crawford is well supported by the historical evidence, and that Davies reaches a contrary conclusion only because he ignores relevant evidence, treats highly ambiguous sources as clearly supporting his view, and understates the degree to which post-framing sources reject his position. I first examine the pre-framing sources on which Davies relies. Although those sources show that properly taken Marian examinations were admissible, they do not address whether opportunity to cross-examine was a routine feature of Marian procedure itself and thus an implicit condition of admissibility.

I next present the affirmative case for the cross-examination requirement, focusing first on the prisoner's right to be present. Examining Marian depositions from the London Metropolitan Archives and other historical materials, I conclude that prisoners were routinely present when witnesses were deposed at committal hearings, and that presence was widely viewed as a procedural right by the time of the framing. Finally, I turn to cross-examination as such. I find that the view that a prisoner had a right to cross-examine witnesses at his committal hearing emerged during the second half of the eighteenth century, although there was still disagreement over that point when the Sixth Amendment was framed. Finally, I explain why the Confrontation Clause would have been understood to resolve that dispute in favor of cross-examination: The cross-examination rule was followed in a wide range of other contexts. Courts across the United States uniformly endorsed it after the framing. And the rule is more consistent with the text of the Confrontation Clause itself.

Goldstene on Stromquist, Reinventing 'The People': The Progressive Movement, the Class Problem, and the Origins of Modern Liberalism

Shelton Stromquist, Reinventing 'The People': The Progressive Movement, the Class Problem, and the Origins of Modern Liberalism, (Working Class in American History Series, University of Illinois Press, 2006) is reviewed on H-SHGAPE by Claire Goldstene, Department of History, University of Maryland, College Park. Goldstene writes:

Despite the insistence of some that the past should be understood on its own terms, in truth, the study of history is always, in some measure, deeply engaged with the present. Thus it is the attempt to comprehend the place of class in American politics during the twentieth century and, most assuredly, the present which animates Shelton Stromquist's Reinventing 'The People': The Progressive Movement, the Class Problem, and the Origins of Modern Liberalism. Grounded in a welcome and able synthesis of the disparate elements that comprised the Progressive movement, Stromquist's larger concern rests with the latter parts of his subtitle: "class" and "modern liberalism." To engage these critical historical issues, Stromquist employs a framework that addresses the persistent question of whether progressive economic change, in the context of the differential power accorded capital and labor, is best achieved through conflict or conciliation....

With a focus on ideology and rhetoric, he argues that the various aspects of Progressivism arose in reaction to the intense conflicts between capital and labor during the 1890s and coalesced in their quest for a "classless social harmony" that embraced a unity of labor and capital interests (p. 7). Like all syntheses, no single narrative unfolds; rather, the reader encounters a series of episodic vignettes of people, events, and organizations whose shared ideology celebrated the possibilities of social harmony. Stromquist pays particular attention to the prominent part female reformers played in advancing an agenda dedicated to class harmony while simultaneously claiming greater public space for themselves. And, while Progressive reformers ceded, in limited areas, an expanded role for the state to realize their vision, they in no way challenged the sanctity of private capital. Further, Stromquist maintains that this reluctance to confront class helped to shape, and thus narrow, subsequent reform efforts throughout the remainder of the twentieth century.

Stromquist's progressives "imagined 'the people' as a civic community in which class would lose its meaning," and, thereby, developed a notion of citizenship "drained of nineteenth-century producerist class partisanship" (p. viii). While not fully elaborated, particularly those aspects of producerism that also depended on a harmony of interests between employers and employees, Stromquist finds within producerism greater possibilities for forming a class-based social movement that might directly confront and alter power relations. This older politics and its willingness to address disparate economic power did not entirely disappear during the Progressive Era. In fact, in this telling it culminates in the U.S. Commission on Industrial Relations where dissension existed between reformers who advocated a mass labor politics to address maldistributions of wealth and power, and those who proposed a series of polite recommendations predicated upon a harmony of interests between labor and capital. This latter ideal successfully rallied Progressives around a politics that sought to temper divisive tendencies.

Importantly for the Progressives, and for Stromquist, the success of this social amelioration, which demanded an end to partisan corruption and the pursuit of "democratic renewal," like many instances of universalist rhetoric, had distinct racial boundaries that deemed immigrants and African Americans inadequately prepared for the responsibilities of full citizenship. So, despite their assertion of a universal harmony of interests, Progressives employed a definition of citizenship that "entailed assimilation to 'whiteness' and effectively circumscribed 'the people'" (p. 132). As Stromquist makes clear, a reliance on universalist language in the midst of calls for exclusion represented only one of the many contradictions inherent in Progressive ideology itself.

Indeed, the author's larger claim rests on yet another contradiction: that the unwillingness of Progressive reformers to overtly engage "the structures of class power and domination" undermined their own desire to create a community free of class antagonisms (p. viii). Despite their best efforts, a competing strand of class-based politics persisted against which Progressives continually positioned themselves and which, ultimately, "challenged the defining feature of the Progressive movement--its promise of social harmony through democratic renewal" (p. 193). Consequently, in the midst of this compelling discussion about the primacy of a quest for social harmony among Progressive reformers, conflict emerges as the theme of the book. Progressivism is born of the struggle between labor and capital and, further, contains its own inherent paradoxes.

However, in the end, the politics of conflict do not prevail and certainly one motive of the book is to understand the origins of later reform devoid of deeper class analysis. Stromquist concludes that twentieth-century reform movements, specifically the New Deal and the Great Society, depended upon this Progressive Era notion of class harmony and effectively used the state to contain the possibility of greater class conflict. Thus, by the close of the twentieth century, social activists had, in many ways, "fulfilled the destiny that Progressive reformers had defined for them"; and though the class problem was not entirely resolved, "it had at least been redefined in ways that made it seem antiquated and irrelevant by the century's end" (pp. 202-203). Stromquist's own challenge is his desire to retain class conflict as the force that drives the events of the Progressive era, while simultaneously acknowledging that, at least ideologically and with important political ramifications, a desire for and the rhetoric of class harmony triumphed--a tension that, in many ways, remains unresolved in the book.

Perhaps part of the solution resides in a deeper consideration of why the idea of social harmony remains so appealing and has exhibited such persistence....A long and venerable tradition, with origins in classical liberalism and expression in capitalist ideology, assumes that all citizens share economic interests which will, in turn, lead to civic harmony. Hence, many believe that all enjoy the same fundamental relation to the market and that under conditions of fair play all have a potentially equal chance for success. The idea of a unity of interests, between labor and capital and between politics and economics, has been, historically, exceedingly powerful in America.

To read the full review, click here.

Roark, Loneliness and the Law: Solitude, Action and Power in the Living Speech of James Boyd White

Marc Lane Roark, University of Tulsa, has posted a new paper, Loneliness and the Law: Solitude, Action, and Power in the Living Speech of James Boyd White. Here's the abstract:

The law is filled with empty spaces - what is not written; what is not said but meant; what is unsayable or unprintable. This article describes the spaces that such emptiness creates in both individual lawyers and in the law. The article begins by considering the elements of the legal idea: the action, needed to move the idea into consciousness, and the power conveying the idea's strength to the community. Proceeding from this framework, part one focuses on the loneliness that fosters legal ideas. Describing four types of loneliness: Indeterminacy, Resentment, Contemplation, and Exile, the article considers how these types of loneliness are revealed in the jurisprudence surrounding the African-American (Plessy v. Ferguson to Brown v. Board of Education) and the Asian American (Yick Wo and Korematsu) equality lines of cases. The article argues that the silent spaces of these opinions reveal as much as the written opinions.

Part 2 considers the action of the idea - both the movement of the idea from the consciousness to the material world, and the realization every lawyer comes to that his work is mere repetition. Focusing on the same line of cases, this part demonstrates how even the cases that suppose a positive change in the law, are repetitious in some ways of the past. The article suggests that the recognition of this repetition, is not only necessary but unavoidable for the lawyer-scholar to define himself.

Finally, Part 3 describes the power of the idea, lifting it out of the constraints of the material and into the spaces of the normative. Utilizing the description of place and space, the article captures the essence of grounding normative ideas into materiality and vice versa. The article however contains a cautionary tale in that certain ideas, when they become normative, can leave manifestations already materialized left to wither alone and with no normative identity (or an identity long passed). Utilizing the analogy of law as liturgy, the Article suggests that the silent spaces both tell us what the law is and what the law is not - revealing the true character of the material manifestation.

Burnham on Civil Rights-Era Murders

Margaret Burnham, Northeastern, has an excellent guest post on Jurist about the on-going trial of James Seale for the murder of Henry Hezekiah Dee and Thomas Moore, both 19 years old, by members of the Ku Klux Klan, in Mississippi in 1964. Burnham draws broader lessons from the case about the dangers to civil rights workers on the eve of Freedom Summer, and the obligations of the federal government. She begins:

For the past three weeks the James O. Eastland Federal Courthouse in Jackson, MS. has been the scene of what may turn out to be one of the most significant criminal civil rights trials in decades and yet it has been a sleeper as far as the national press is concerned. A racially mixed jury, sitting before an African-American federal judge, is hearing evidence in the conspiracy trial of an alleged Klansman accused of kidnapping and then drowning two young men in southwest Mississippi in May 1964. As I listened to some of the gripping testimony earlier this month, two points seemed clear. The first is that there were five - not three - civil rights slayings immediately prior to Mississippi Freedom Summer. And the second is that the federal government’s failure to fully alert the public to the nature of Klan/law enforcement collusion in Mississippi exposed African-Americans and civil rights activists to lethal harm.

To continue reading, click here.

New Book Blog Roll

I've added a new feature: On the left side of the blog, you'll find "Book Blogs and Press Blogs and Websites." This puts the old Publisher Blogs and Websites together with newspaper book review blogs and independent book blogs. The book blog roll is temporarily up high on the left, but will later move down closer to the "regular" blog roll.

I'm including press websites for academic presses that tend to carry a lot of legal history, and that don't have blogs.

More to be added.

Reviewed: Linklater, The Fabric of America, on statebuilding through real estate

The Fabric of America (Walker) by Andro Linklater is reviewed by Benjamin Lytal in the New York Sun. He finds it a history of the United States through the prism of real estate. Lytal writes:

From the beginning, asserts Mr. Linklater,...territory was a source of revenue for the budding American government. After the Revolutionary War, the sale of frontier land served to soak up currency and stave off war debts. At that time, few states knew where exactly they ended, and the stakes for contested lands were high....

Mr. Linklater's history is one of increasing federal power. A territory had to meet federal standards before it could be admitted as a state, and so the interior became more loyal to federal power than the original 13 colonies. The most exciting episode in this book concerns a plot to break Kentucky and Tennessee off from the union, in collusion with the Spanish government at Natchez. Only the good offices of Andrew Ellicott, Mr. Linklater's favorite surveyor and perennial hero, prevented the conspiracy, by proving in 1797 that Natchez actually lay within American territory, in modern day Mississippi — as opposed to Spanish Florida. After Ellicott promised the local white landowners that their property — including slaves — would be preserved, the assumption of American jurisdiction was assured.

The delicacy of law — in the form of a treaty or a deed — is Mr. Linklater's real subject here, though the book goes out of its way to make a larger, and more grandiose claim, about the importance of boundaries at all turning points in our history....

What emerges, throughout, is the importance of an executive authority that can guarantee ownership. "What made the settlement of the West such an iconic experience was precisely that it took place under the umbrella of the American government," Mr. Linklater writes.

For the rest, click here.

New Newspaper Book Blogs: NYT Paper Cuts and Chicago Trib TribBooks

Updated:
After the hubbub about whether book reviews are losing ground to bloggers, noted here, the New York Times and the Chicago Tribune seem to have come to the conclusion: if you can't beat them, join them. The new NYT book blog is Paper Cuts, and the Chicago Trib has launched Trib Books.

It will be interesting to see how a blog at a venerable institution like The New York Times fits in the more rough and tumble blogosphere. The blog may signal the way it has positioned itself by its title. Paper cuts come from working with...paper. Books have been published on paper for centuries. Whether books will be published on paper in future centuries is open to question. Authors, editors and sometimes readers got paper cuts in the past. In the future they may suffer a malady we have not yet imagined. So as the New York Times Book Section reaches into the future (or into the present?) with a blog, Paper Cuts situates itself in the settled history of book publishing, into the present conceptualization of the book.

A conceptual tie with the past is something historians might not object to, but find special value in. One of the best things about the blogosphere is its diversity, and it would be unfortunate for Paper Cuts to try be like other book blogs, rather than to find its own personality. Paper Cuts promises some retrospectives, and it opened with a look back, to book advertisements from 1962-73. The first week included a round-up of various Sunday book sections. More interesting is a discussion of Chinua Achebe's recent Booker Prize. It could be especially interesting on the book biz.

TribBooks seems to be warming up, with some book news and a preview of a review to appear in the paper. The high quality of Trib book reviews has often stemmed from good matches between interesting titles and scholars who can write about them for a broad readership. Let's hope the Trib will bring that quality to its blog as well.

There are enough good book blogs that I'm planning a book blogroll. I will change the "Publisher Blogs and Websites" listing on the left, after Law and History Links, to something like "Book and Press Blogs and Press Websites." I'll keep the regular website links for important university press websites that don't have a blog. If you have favorites book blogs that I should include, please mention in a comment, and I'll check them out.

Orlando Patterson on Supreme Discomfort: The Divided Soul of Clarence Thomas

Orlando Patterson weighs in on SUPREME DISCOMFORT: The Divided Soul of Clarence Thomas by Kevin Merida and Michael A. Fletcher in the New York Times this weekend. Patterson finds the book "invaluable for any understanding of the court’s most controversial figure. It persuasively makes the case that 'the problem of color is a mantle' Thomas 'yearns to shed, even as he clings to it.' In doing so, it brilliantly illuminates not only Thomas but his turbulent times, the burden of race in 20th-century America, and one man’s painful and unsettling struggle, along with his changing nation’s, to be relieved of it."

Links to earlier reviews by Kenji Yoshino and David Garrow are here.

The Ethics of Book Reviewing: Panel on Book TV, June 16

2007 BookExpo America:
Ethics in Book Reviewing Panel

John Leonard, Sam Tanenhaus, Christopher Hitchens, David Ulin, Francine Prose, Carlin Romano

Saturday, June 16, 10:00 p.m. Eastern (US) on C-Span2 Book TV

Description: A panel of book reviewers and book review editors talk about what is and what is not ethical when reviewing books. The discussion, based on a survey conducted by the National Book Critics Circle, addressed such issues as: should a reviewer be assigned to review an author that she/he knows?, should a reviewer review a book that she/he hates?, should an editor publish heavily critical reviews of first-time or unknown authors?, etc. The participants are: John Leonard (The Nation, Harper's), Francine Prose (New York Times), Christopher Hitchens (Atlantic Monthly), Sam Tanenhaus (New York Times Book Review), David Ulin (Los Angeles Times), and Carlin Romano (Philadelphia Inquirer).

On "Cashing Out" and the spread of Econo-Speak

You've heard it over and over: the result of a legal argument is described as the way something is "cashed out." This sort of language appears in law workshops and papers that have nothing to do with cash registers, cash itself, or even economic analysis. I've heard this kind of argument made by legal historians taking about basic historical questions.

Lawrence Solom offers an example, in an interesting new paper just noted here. The abstract makes a common move, although it is unclear whether the cash analogy originates from Steven D. Smith, whose work he describes, or from Solom: "Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith's view is mistaken" (emphasis added).

Perhaps the desire to speak of cashing things out simply illustrates the way that in law school environments, which are inherently multidisciplinary, non-economists pay attention to the work of their economist colleagues, and end up picking up their way of speaking. Sort of the way a child might pick up a regional accent while at summer camp, but without losing his own cultural identity. Or perhaps it suggests something more, that thinking and speaking in economic terms has increasingly become a mode of discourse within the legal academy. A worldview. A conceptual universe, so that only those problems that fit, or are discernible, within that universe are seen as important. If it doesn't "cash out" in a positive way, why are you talking about it?

It seems at least worth reflecting on this, and whether or not it is a good thing. If anyone is tracking, and writing about, the ubiquity of econo-speak in recent legal scholarship, I would be interested to know about it.

Solom, Constitutional Texting, on Smith, Law's Quandary

Lawrence B. Solom, University of Illinois, has posted a new article, Constitutional Texting. It is forthcoming in the San Diego Law Review. Here's the abstract:

“Constitutional Texting” introduces an account of constitutional meaning that draws on Paul Grice's distinction between “speaker's meaning” and “sentence meaning.” The constitutional equivalent of speaker's meaning is “framer's meaning,” the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is “clause meaning,” the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and phrases used in the Constitution have conventional semantic meanings - ordinary meanings in a natural language, English, as it was used at the various times when constitutional text was created and promulgated. The meaning of the Constitution should be understood as clause meaning. This Gricean view provides foundations for the theory that is sometimes called “original meaning originalism” or “the new originalism.”

This theory of constitutional meaning is developed in the context of commentary on Steven D. Smith's recent book, “Law's Quandary.” Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith's view is mistaken. The meaning of the Constitution is not determined by the semantic intentions of the drafters or ratifiers; rather, the best theory of the meaning of the Constitution is based on the ordinary or technical meaning of its words and phrases as they would have been understood by the relevant audiences, citizens and lawyers, at the times particular constitutional provisions were adopted and promulgated.

Part I is entitled “Introduction: Talking and Texting,” and it introduces the Gricean themes of the essay in the context of “text messages” or “texting.” Part II is called “Constitutional Texting” and it situates the essay in contemporary constitutional theory. Part III is “Smith,” and relates the themes of the essay to Smith's book, “Law's Quandary,” in the context of Paul Grice's theory of meaning. Part IV is called “Framer's Meaning and Clause Meaning” and it develops a Gricean and anti-Smithian account of constitutional meaning. Part V is “Conclusion: How to Do Things with Clauses,” and it argues that successful constitutional texting requires that framers and interpreters attend to clause meaning as the meaning of the Constitution.

Ortiz on Poverty Reduction in global and historical perspective

Isabel Ortiz, Senior Interregional Advisor, United Nations, has posted a new paper, Poverty Reduction. It is part of the Initiative for Policy Dialogue. Here's the abstract:

The paper reviews poverty trends and measurements, poverty reduction in historical perspective, the poverty-inequality-growth debate, national poverty reduction strategies, criticisms of the agenda and the need for redistribution, international policies for poverty reduction, and ultimately understanding poverty at a global scale.

It belongs to a series of backgrounders developed at Joseph Stiglitz's Initiative for Policy Dialogue.

Kelley on The Reagan Administration, the Signing Statement, and Legislative History

Christopher S. Kelley, Miami University, has posted a new article, A Matter of Direction: The Reagan Administration, the Signing Statement, and Legislative History. It is forthcoming in the Bill of Rights Journal. Here's the abstract:

In 1986, Attorney General Edwin Meese announced to a gathering at the National Press Club that a deal with the West Publishing Company to have the signing statement published in the United States Code, Congressional and Administrative News. The announcement mostly went unnoticed until November 1986, when the administration used the signing statement to change an important part of the Immigration Reform and Control Act. Following that event, a flurry of articles appeared in law journals assessing whether the signing statement was constitutionally permissible and whether it would influence judicial decisionmaking. Little attention was paid then, as now, regarding what influenced the unusual move in the first place.

In this paper, using information gleaned from interviews with Reagan Justice Department officials as well as documents released December 2005 in preparation for the Alito confirmation hearings, I discuss what external circumstances likely influenced the decision and I dispel the argument that the primary motivation was to influence judges. Instead, the signing statement was designed first to influence executive branch agents.

Diplomatic History Conference, June 21-23

Legal historians interested in the history of foreign relations, international law, war and related topics will be interested in the upcoming meeting of the Society for Historians of American Foreign Relations, next week, June 21-23, at the Westfields Marriott in Chantilly, Virginia (that is, just down the road from the Dulles airport).

The full conference program is here. The Program Committee highlights the following sessions:

• General Michael V. Hayden (USAF), the Director of the CIA, will be the speaker at our opening luncheon at 11:30 a.m. on Thursday, 21 June.

• A Plenary Session, “Domestic Politics Roundtable,” will take place on Thursday evening from 7-9 p.m. Papers: Mary Dudziak, USC, Making Law, Making War, Making America and Julian Zeizler, Boston University (soon to be at Princeton), When Liberals Were Hawks. Commenting: Mark Lawrence, University of Texas/Yale University, and Robert McMahon, Ohio State University.

• Susan Ferber of Oxford University Press will chair a Roundtable, “Diplomatically Speaking: How Historians of American Foreign Relations Communicate with the American Public,” on Friday morning (9-11), 22 June. Expected to participate are: Warren Bass (Washington Post), Ralph Begleiter (CNN), Kai Bird (The Nation), Tim Naftali (Nixon Library), and Gideon Rose (Foreign Affairs).

• Anna K. Nelson will deliver a talk, “The Pleasure (and Pain) of Writing about Powerful Women in Foreign Affairs,” at the Women Historians in SHAFR Breakfast. The breakfast begins at 7:30 a.m. on Saturday, 23 June.

• On Saturday morning (9-11), 23 June, a plethora of Kissinger scholars will give their thoughts and answers on the provocative question posed at the Roundtable, “Henry Kissinger: Cold War Villain, International War Criminal, or Conventional Cold War Statesman?”

• Our president, Rich Immerman, will deliver his presidential address, “Intelligence and Strategy: Historicizing Psychology, Policy, & Politics,” at the luncheon on Saturday, 23 June.