Showing posts with label Congressional power. Show all posts
Showing posts with label Congressional power. Show all posts

Monday, September 22, 2014

Scott Discusses "Reining in the State" at the National Archives

At the National Archives in Room G-25, Research Center (Penn. Ave. Entrance), on Thursday, September 25, at noon, the National Archives will host Katherine Scott, Assistant Historian in the Senate Historical Office, as she discusses her book, Reining in the State: Civil Society and Congress in the Vietnam and Watergate Era (2013). An H-Net review is here.

Saturday, July 12, 2014

Weekend Roundup

  •  NYC's Former Pro-Slavery Stance Examined in Governors Island Exhibit, a post by Emily Frost on the website DNAinfor New York, reports that “an exhibit on NYC's history during the Civil War that examines the city's ambivalent history on the institution of slavery — including a former city mayor's unwavering support for it — is headed to Governors Island this summer.”
  • "The Declaration's influence wasn't limited to the American colonies of the late 18th century," writes David Armitage in the Wall Street Journal.  "No American document has had a greater impact on the wider world. As the first successful declaration of independence in history, it helped to inspire countless movements for independence, self-determination and revolution after 1776 and to this very day. As the 19th-century Hungarian nationalist, Lajos Kossuth, put it, the U.S. Declaration of Independence was nothing less than "the noblest, happiest page in mankind's history."  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, June 6, 2014

New Release: Poucher, "State of Defiance: Challenging the Johns Committee's Assault on Civil Liberties"

New from the University Press of Florida: State of Defiance: Challenging the Johns Committee's Assault on Civil Liberties (June 2014), by Judith G. Poucher (Florida State College). The Press explains:
The Johns Committee, a product of the red scare in Florida, grabbed headlines and destroyed lives. Its goal was to halt integration by destroying the NAACP in Florida and smearing integrationists. Citizens were first subpoenaed under charges of communist tendencies and later for homosexual or subversive behavior.

Drawing on previously unpublished sources and newly unsealed records, Judith Poucher profiles five individuals who stood up to the Johns Committee. Virgil Hawkins and Ruth Perry were civil rights activists who, respectively, foiled the committee’s plans to stop integration at the University of Florida and refused to divulge Florida and Miami NAACP records. G. G. Mock, a bartender in Tampa, was arrested and shackled in the nude by police but would not reveal the name of her girlfriend, a teacher. University of Florida professor Sig Diettrich was threatened with twenty years in prison and being "outed," yet he still would not name names. Margaret Fisher, a college administrator, helped to bring the committee's investigation of the University of South Florida into the open, publicly condemning their bullying.
By reexamining the daring stands taken by these ordinary citizens, Poucher illustrates not only the abuses propagated by the committee but also the collective power of individuals to effect change.
A few blurbs:
"Looks at Florida's Johns Committee in a new way: through the lives and memories of Floridians affected by its persecutions in the 1950s. Their stories are inspiring, disturbing, and instructive."--Sarah H. Brown

"Readers will learn a great deal from the lives of these unsung but extraordinary people who refused to cower before this instrument of legislative terror."--Steven F. Lawson
More information is available here.

Friday, May 30, 2014

A Congressional Briefing on the History of Congress and the Intelligence Community

[From the National History Center's website:]

The National History Center of the American Historical Association will be presenting a Congressional briefing on the history of Congress’s relationship with the intelligence community.  The briefing will be held on June 9, 2014, at 9:30 a.m. in Room 121 of the Cannon House Office Building.  Professors Laura Donohue of Georgetown Law School [sic: Georgetown University Law Center]  and Mark Lowenthal of The Intelligence & Security Academy and Johns Hopkins University will discuss the origins and consequences of the Church Committee and more.  James Grossman, the Chairman of the National History Center’s Board and Executive Director of the American Historical Association, will moderate the discussion.

[Read more.]

Wednesday, May 14, 2014

Reid on "The Great National Highway Debate of 1830 and Congress as Constitutional Interpreter"

Charles J. Reid, Jr. (University of St. Thomas School of Law) has posted "Highway to Hell: The Great National Highway Debate of 1830 and Congress as Constitutional Interpreter." Here's the abstract: 
This Article focuses on the role of the Constitution in the 1830 Congressional debate over the Buffalo to Washington to New Orleans National Road. It takes as its inspiration David Currie's monumental study of the ante-bellum Congress as constitutional interpreter. It moves beyond Currie, however, in the intensity of its focus on a single congressional debate.

The debate over the National Road was largely a proxy for the larger struggles over slavery and sectionalism. The Road's supporters generally represented Northern or Western states and took a nationalist view of the Constitution. They understood the Union as an organic entity, a single nation, comprising a single People, united to attain large and shared objectives. They understood the Constitution as facilitating these objectives. They were bold in the various creative if not novel constructions they placed on the Constitution. They paid little heed to arguments about states' rights or limited and enumerated constitutional powers.

The opposition was centered in the South although it drew support from some Northern sympathizers. They viewed the highway as a threat to the Southern slave-based economy and mustered various constitutional objections to it. The Constitution was one of limited and enumerated powers, they argued, and it did not include the authority to construct highways. Similarly, they argued, the Constitution created a loose "confederacy" of sovereign states, united for only a few specifically identified purposes. States' rights was, on this analysis, the central organizing principle of the Constitution. In all of this, the great concern was with the preservation of an "agricultural" way of life, understood by all to refer euphemistically to plantation slavery.

It becomes apparent that the contest over slavery, which was certainly the greatest constitutional debate of the nineteenth century - and very possibly the greatest constitutional struggle of all time - was playing out principally outside the purview of the judiciary. It was taking place, rather, in the halls of Congress and the court of public opinion.
The full article is available here, at SSRN.

Hat tip: Legal Theory Blog

Thursday, May 8, 2014

New Release: Van Atta, "Securing the West"

New from Johns Hopkins University Press: Securing the West: Politics, Public Lands, and the Fate of the Old Republic, 1785-1850 (April 2014), by John R. Van Atta. The Press explains:
Few issues defined the period between American independence and the Mexican War more sharply than westward settlement and the role of the federal government in that expansion. In Securing the West, John R. Van Atta examines the visions of the founding generation and the increasing influence of ideological differences in the years after the peace of 1815.
Americans expected the country to grow westward, but on the details of that growth they held strongly different opinions. What part should Congress play in this development? How much should public land cost? What of the families and businesses left behind, and how would society's institutions be established in the West? What of the premature settlers, the "squatters" who challenged the rule of law while epitomizing democratic daring?
Taking a broad approach, Van Atta addresses three interrelated queries: First, how did competing economic beliefs and divergent cultural mandates influence the various outcomes of this broad debate over the means, timing, and purposes of settling the trans-Appalachian West? Second, what alternative visions of western society lay behind the battles among policy makers within the government and the interested parties who would sway them? Third, why did settlement of the West take such a different course in the end from that which the earliest leaders of the republic intended?
This story explores dimensions of the federal lands question that other historians have minimized or left out entirely. Van Atta draws upon a range of sources known to have influenced the public discourse, including congressional debates, committee reports, and correspondence; editorial writings by the famous and unknown; and news coverage in various widely circulated newspapers and magazines of the period.

Much of the attention focuses on Congress—the elected leaders who advocated divergent plans about western lands. In Congress, more than any other place, public leaders articulated basic concerns about the character, structure, direction, and destiny of society in the early United States.
By 1830, many other important national concerns had become critically entangled with land disposition, creating points of ideological tension among rival regions, parties, and interests in the early years of the republic—particularly in Jacksonian America.
More information is available here.

Thursday, May 1, 2014

Mikhail on the Necessary and Proper Clause and "the Common Affairs of the World"

We noted earlier that my Georgetown Law colleague John Mikhail would be posting over at Balkinization on his ongoing research on the necessary and proper clause.  (We noted the publication of an initial installment of that research here.)  The latest, very substantive post, went up yesterday.  It commences:
Historians and other scholars often assume that the phrase “necessary and proper” was novel or constructed out of thin air at the constitutional convention.  As my last post indicated and this post will seek to demonstrate, this assumption seems clearly erroneous.  A different assumption, which also appears to be misleading in many respects, is that “necessary and proper” was a term of art in 1787, which only a trained lawyer or someone with specialized knowledge would be able to use or interpret correctly.   Both of these familiar narratives appear to lend at least indirect support to the Supreme Court’s recent Necessary and Proper Clause jurisprudence, insofar they imply that the original meaning of “necessary and proper” was either highly opaque or highly technical.  On either alternative, the natural tendency is for ordinary language “drawn from the common affairs of the world” (John Marshall) to become unduly refined and artificial.

Because I was skeptical of the received wisdom on this issue, I decided to examine every occurrence of “necessary and proper” and three closely related phrases—“proper and necessary,” “necessary or proper”, and “proper or necessary” (henceforth “the target phrases”)—which I could locate in various archives, published records, and electronic databases.  These resources included the James Wilson Papers; the Robert Morris Papers; the records of the Ohio, Indiana, Illinois-Wabash, and other early American land companies; the Journals of the Continental Congress; the Letters of Members of the Continental Congress; the Avalon Project at Yale Law School; and the Founders Online project of the National Archives, a new searchable database of the collected papers of six prominent founders (George Washington, John Adams, Thomas Jefferson, James Madison, Benjamin Franklin, and Alexander Hamilton).

What emerged from this investigation was a powerful confirmation of the fact that both of these influential accounts of the origins of the Constitution's “necessary and proper” language appear to be fundamentally misguided.  On the basis of this initial study, in fact, at least three countervailing lessons can be drawn with reasonable confidence.  
More

Monday, April 28, 2014

Congress and Reconstruction, and More in Washington, DC

Amanda Moniz, the Assistant Director of the National History Center, has commenced a much-needed service for Washingtonians interested in history by gathering news of public historical events in the capital.  To contribute, email her at amoniz@historians.org.

Of note for legal historians are two “Researcher Talks” at the National Archives, which are held at noon in the Research Center, G-25, Archives 1.  On May 1 the speaker is Nancy Beck Young, who will discuss Why We Fight: Congress and the Politics of World War II.  On May 5 Romain Huret, Associate Professor of American History at the University of Lyon, will discuss American Tax Resisters.  For more information, please call 202-357-5350.

But the main event this week is A Just and Lasting Peace”: Ending the Civil War, the 2014 United States Capitol Historical Society Annual Symposium, to be held from 8:30 AM to 5:00 PM on Friday, May 2, 2014, in the Dirksen Senate Office Building, Room G-50.  The speakers are Gregory P. Downs, Carole Emberton, Paul Finkelman, Matthew Pinsker, Anne Sarah Rubin, Michael Vorenberg, and Peter Wallenstein.  I'll note the papers of Professor Finkelman and Vorenberg below.  The rest are here; other information, including that relating to registration here.
“Henry Wirz and Concept of War Crimes: Vengeance or Justice," by Paul Finkelman

“Judgment at Washington: Lew Wallace, Henry Wirz, and the Elusive Quest to End the Civil War," by Michael Vorenberg

Monday, March 17, 2014

New Release: Risen, "The Bill of the Century: The Epic Battle for the Civil Rights Act"

New from Bloomsbury Press: The Bill of the Century: The Epic Battle for the Civil Rights Act, by Clay Risen. From the Press:
The Civil Rights Act of 1964 was the single most important piece of legislation passed by Congress in American history. This one law so dramatically altered American society that, looking back, it seems preordained—as Everett Dirksen, the GOP leader in the Senate and a key supporter of the bill, said, “no force is more powerful than an idea whose time has come.” But there was nothing predestined about the victory: a phalanx of powerful senators, pledging to “fight to the death” for segregation, launched the longest filibuster in American history to defeat it.

The bill's passage has often been credited to the political leadership of President Lyndon Johnson, or the moral force of Martin Luther King. Yet as Clay Risen shows, the battle for the Civil Rights Act was a story much bigger than those two men. It was a broad, epic struggle, a sweeping tale of unceasing grassroots activism, ringing speeches, backroom deal-making and finally, hand-to-hand legislative combat. The larger-than-life cast of characters ranges from Senate lions like Mike Mansfield and Strom Thurmond to NAACP lobbyist Charles Mitchell, called “the 101st senator” for his Capitol Hill clout, and industrialist J. Irwin Miller, who helped mobilize a powerful religious coalition for the bill. The "idea whose time had come" would never have arrived without pressure from the streets and shrewd leadership in Congress--all captured in Risen's vivid narrative.

This critical turning point in American history has never been thoroughly explored in a full-length account. Now, New York Times editor and acclaimed author Clay Risen delivers the full story, in all its complexity and drama.
A few blurbs:
“What a compelling story for our times! Clay Risen’s riveting account of the actual legislative history of the Civil Rights Act of 1964 reveals the infinite complexity of its passage, never certain until the end. And for us now, Bill of the Century explains the crucial roles played by many thousands inside and outside Washington, especially civil rights campaigners and religious believers: ordinary citizens galvanized into civic engagement. This book speaks to a broad readership at our own critical point in American history.” –  Nell Irvin Painter
The Bill of the Century is edge-of-your-seat, as-it-happens history. It’s a thrill to read and an invaluable contribution to our understanding of the civil rights era. Clay Risen makes clear that the passage of the Civil Rights Act was not, as popular mythology would have it, a one- or two-man show; it took a movement in the truest sense. Risen renders that effort—and its unsung heroes—in vivid prose, and shows just how much they had to overcome, working together, in order to bend the arc of history toward justice.” –  Jeff Shesol
Much more information is available here, at the author's website.

Sunday, February 9, 2014

Sunday Book Roundup

Los Angeles Review of Books reviews Gerard Magliocca's American Founding Son : John Bingham and the Invention of the 14th Amendment (NYU Press) in a piece titled "When Legislators Actually Mattered."
"Professor Gerard Magliocca spares no detail in his comprehensive review of John Bingham’s life and his drafting of the 14th Amendment to the Constitution. For history buffs, constitutional scholars, and civil war experts, the book is a smorgasbord of facts about a critical period in America’s history. The reader is taken step by step through the political and legal hurdles required to enact one of the most significant post–Bill of Rights provisions of our Constitution."
HNN reviews James Tobin's The Man He Became: How FDR Defied Polio to Win the Presidency (Simon & Schuster).
"Yes, Roosevelt’s tale has been well told by a wide variety of accomplished historians. But Toobin’s book is unique in that it focuses on the crucial period following his 1921 polio diagnosis up until his election to the presidency in 1932. This is the story of not only FDR’s struggle with polio, but of the Democratic Party in the 1920s, and Roosevelt’s tenuous place in it.
How much did polio shape the essential character of the man? After reading this account, one can only come to the conclusion: a whole lot—and probably even more than anyone will ever know."
The Los Angeles Times reviews Joshua Zeitz's Lincoln's Boys: John Hay, John Nicolay, and the War for Lincoln's Image (Viking Adult).

H-Net adds reviews of Guy Laron's Origins of the Suez Crisis: Postwar Development Diplomacy and the Struggle over Third World Industrialization, 1945-1956 (Woodrow Wilson Center Press) (here); and Melissa R. Klapper's Ballots, Babies, and Banners of Peace: American Jewish Women's Activism, 1890-1940 (NYU Press) (here).
"In Ballots, Babies, and Banners of Peace, Melissa R. Klapper explores the activist trajectories of American Jewish women who “believed in [their] responsibility and power to make a difference not only to [their] own Jewish family and community but also to the wider world” (p. 2). Focusing on progressive movements for woman suffrage, birth control, and peace, Klapper provides a compelling portrait of Jewish women’s late nineteenth- and early twentieth-century efforts to navigate the intricate terrain of identity politics and to reconcile their religious, ethnic, national, and communal identities with their activist commitments during a time of significant change."

Sunday, January 26, 2014

Sunday Book Roundup

There's only a few book reviews this week dedicated to Martin Luther King, Jr. Day. The LA Times has collected some readings on MLK's mentor, Bayard Rustin. Salon has posted an excerpt about the holiday's creation from David L. Chappell's Waking From the Dream: The Struggle for Civil Rights in the Shadow of Martin Luther King, Jr. (Random House). Here's a peak:
"McDonald piled on. He cited specific black people who had criticized King. He added that Harry Truman had called King a rabble-rouser. He thought it “racist” to reserve a holiday for black Americans: Why not an Indian American holiday? “I happen to be part Cherokee,” he said. “Why not a Chinese American? Why not an Hispanic? . . . [W]e are supposed to be e pluribus unum.” He returned again to his hope that, “in the spirit of openhandedness,” Congress would ―open up the surveillance records . . . so that we would . . . have an opportunity to see if there is something there that a future time would prove to be greatly embarrassing.”"
The Washington Post has three reviews that might be of interest today. The first is a review of Ping Pong Diplomacy: The Secret History Behind the Game that Changed the World (Scribner) by Nicholas Griffin. David Garrow reviews Betty Medsger's The Burglary: The Discovery of J. Edgar Hoover's Secret FBI (Knopf). And, Jonathan Yardley reviews Will Swift's Pat and Dick: The Nixons, and Intimate Portrait of a Marriage (Threshold).

In addition to his Washington Post piece, David Garrow has also posted on SSRN "Toward a Definitive History of Griggs v. Dukes Power Co." published in Vanderbilt Law Review. In it he discusses Robert Belton's The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story (University Press of Kansas) edited by Stephen Wasby.

The Washington Independent Review of Books reviews Thomas W. Lippman's America's Great Game: The CIA's Secret Arabists and the Shaping of the Modern Middle East (Basic Books).

H-Net adds a brief review of Chaim M. Rosenberg's Child Labor in America: A History (McFarland), a "sweeping account of children who toiled as canners, messengers, sellers, shiners, cleaners, pickers, sowers, bellhops, cutters, and spinners in English, colonial, and American history. While much of what he describes will be familiar to historians of U.S. labor or the Gilded Age and Progressive Era, the book is a worthwhile reminder of the breadth of our nations’ past (and even continued) reliance on the low wages, long days, and physical ordeals of working children."

Also on H-Net is a review of Exit Strategies and State Building edited by Richard Caplan. There's also a review of David Bodenhamer's The Revolutionary Constitution (Oxford).
"David J. Bodenhamer has written a lucid and informative topical history of American constitutional law and constitutionalism in The Revolutionary Constitution. Bodenhamer, a professor of history, adjunct professor of informatics, and founder and executive director of the Polis Center at Indiana University-Purdue University Indianapolis, has provided a constitutional history that embraces a very modern understanding of constitutionalism. Arranging the book in ten topical chapters, Bodenhamer addresses each topic in isolation, covering the full American historical period for the respective topic. The result is a series of essays about important themes of American constitutional history, such as the origins of constitutionalism in America, federalism, equality, rights, and--Bodenhamer’s overarching intended theme--the history of “power and liberty.” But there is another theme, sometimes expressed, often implied: that of pragmatism."

Wednesday, January 15, 2014

The Constitution, Congress, and the Media

 [We have the following announcement of an event at the New-York Historical Society.]

The Bernard and Irene Schwartz Distinguished Speakers Series The U.S. Constitution, Congress, and the Media
Saturday, February 22, 9-11 AM

In the age of the 24-hour news cycle, strained relations between the partisan forces in Congress are being amplified across the nation like never before. Following the New-York Historical Society's Friday-night screening of Frank Capra's political drama "Mr. Smith Goes to Washington," experts in constitutional law and legal history (Kenji Yoshino, Robert Post, and Linda Greenhouse) examine the interplay between the U.S. Constitution, Congress, and the media.

Students and education faculty may reserve free tickets, by calling (212) 485-9268 and mentioning code HIST214.

Sunday, December 8, 2013

Sunday Book Roundup


Patrick Weil's The Sovereign Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press) is reviewed in Law and Politics Book Review.
"French social scientist Patrick Weil has written a book that focuses on a seemingly minor aspect of U.S. immigration law: denaturalization policy, or the process by which one loses one’s American citizenship. Weil uses denaturalization policy as a vehicle to comment on other aspects of the American politics, most immediately the arbitrariness and politically contingent nature of one’s United States citizenship status, not just of immigrants, but also of native-born citizens. Weil notes that “Present–day Americans feel secure in their citizenship” (p.1). One comes away from the book having new appreciation for the precariousness of one’s U.S. citizenship and the ease at points in U.S. history when the government can arbitrarily revoke one’s citizenship, thereby possibly rendering even a native-born citizen effectively stateless."


This week H-Net has added several new reviews, including a review of Michael David Cohen's Reconstructing the Campus: Higher Education and the American Civil War (University of Virginia Press), a review of David Chalmers's And the Crooked Places Made Straight: The Struggle for Social Change in the 1960s (Second Edition, Johns Hopkins University Press), a review of Christopher Heath Wellman and Phillip Cole's Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford University Press), and a review of Nick Vaughan-Williams's Border Politics: The Limits of Sovereign Power (Edinburgh University Press).


Brian Z. Tamanaha's Failing Law Schools (University of Chicago Press), has also been reviewed. Reviewer Steve Sheppard writes,
"U.S. law schools are under pressure. A drumbeat of criticism against the national enterprise of legal education labels it a “scam”; a confidence game; and, for a few schools, actionable fraud.[1] That criticism may have struck a chord among potential students: as of 2013, applications to law schools in the United States had fallen by 32 percent from 2010, leading some critics to rejoice.[2] Failing Law Schools is a centerpiece of this movement, hailed for its “disturbing, scandalous truth” about legal education (back cover).[3] In it, Brian Z. Tamanaha, a law professor at Washington University at St. Louis, offers criticism and calls for change, based on observations intermixed with claims from economics and the history of legal education."
Yet another H-Net review is that of Nancy Beck Young's Why We Fight: Congress and the Politics of World War II (University Press of Kansas). The book "closely examines the key legislative issues of the mid-twentieth century, and the means by which a very different congressional structure succeeded and failed in attempts to address them." And, it "is thoroughly researched and well footnoted. It is not an especially easy read, as it assumes a fair knowledge of the personalities and issues that it addresses. In that regard, however, it is entirely appropriate for a graduate reading course in political science, and is highly recommended for anyone with a special interest in the subject."

Often in the Book Roundup we post interviews from NewBooksinHistory.com. Don't miss this week's interview with our guestblogger, Susan Carle, about her new book Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford). And, don't forget that they're looking for a new interviewer for New Books in Law.

Wednesday, December 4, 2013

Now on SSRN: Parrillo on the Rise of Legislative History

Although we posted a pointer to Nicholas Parrillo’s new article, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, as part of a farewell message, now that he’s posted it on SSRN, we are reposting the abstract.  It is in volume 123 of the Yale Law Journal.
A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents — a debate that has dominated statutory interpretation for a generation — cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable?

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user — a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

Sunday, December 1, 2013

Thank you, Nick Parrillo

Thank you, Nicholas R. Parrillo, Yale Law School, our guest blogger for November, for three terrifically interesting posts: on his new book, Against the Profit Motive; on the records of American state legislatures; and on readers’ expectations of scholarly monographs might change if most appear principally or exclusively in on-line formats. 

While we’re at it, we should note the appearance in the online version of volume 123 of the Yale Law Journal, of Professor Parrillo’s remarkable, monographic article Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950 (2013). (We’ll post the link to the SSRN version when it becomes available.)  Here is the abstract:
A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents—a debate that has dominated statutory interpretation for a generation—cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable?

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

Sunday Book Roundup

Sara Mayeux has written a thoughtful review of Susannah Sheffer's Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys (Nashville Vanderbilt University Press).
"For legal historians, however, the book’s format tempers its incidental value as a quasi-primary source in the history of the modern American death penalty. Many of Sheffer’s sources were in college or law school during the punitive turn of the 1980s and ’90s. Their memories could add depth to our understanding of the day-to-day operations of what Justice Harry Blackmun called “the machinery of death,” forming a more personal, ground-level complement to big-picture sociological and historical works like David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010) and James Q. Whitman’s Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (2005) that ask why capital punishment has persisted in (parts of) the United States beyond its abolition in other Western democracies."
Also on H-Net this week are two more reviews of interest. The first is a review of Peter Andreas's Smuggler Nation: How Illicit Trade Made America (Oxford University Press).  And, Cynthia Harrison reviews Holly J. McCammon's The U.S. Women's Jury Movements and Strategic Adaptation: A More Just Verdict (Cambridge University Press).
"Without question, the history of women’s service on juries has been neglected. It would perhaps be logical to assume that jury service came along with suffrage, that the Nineteenth Amendment had enrobed women with political rights in addition to the guarantee of suffrage. To the contrary, as Professor Holly J. McCammon shows in this exceedingly well-researched study, jury service for the most part fell under state rather than federal jurisdiction, resulting in different treatment in different states."

Friday, November 15, 2013

Reinstein on Congress, the President, and the Recognition Power

Robert Reinstein, Temple University James E. Beasley School of Law, has posted Is the President’s Recognition Power Exclusive? which is forthcoming in the Temple Law Review.  Here is the abstract:
The power of the United States government to recognize foreign states and governments is much broader than the authority merely to place a symbolic stamp of legitimacy on that state or government. Recognition allows foreign governments to establish diplomatic relations with the United States and also confers other substantial benefits on those governments. Despite its importance to foreign relations, the recognition power was not enumerated in the United States Constitution or discussed in the Constitutional Convention or ratification debates.

A recent decision of the Court of Appeals for the District of Columbia Circuit, Zivotofsky ex rel. Zivotofsky v. Secretary of State, is the first to hold, in the context of a conflict between an act of Congress and an executive decision, that the recognition of foreign states and governments is an exclusive executive power. A seemingly innocuous passport statute created a conflict between executive and congressional policies over a controversial, and as yet unresolved, political issue: the status of Jerusalem. The court relied on post-ratification history which, it concluded, established that Presidents consistently claimed, and Congress consistently acknowledged, that the recognition power was exclusively an executive prerogative. The passport statute was held to unconstitutionally infringe on the Executive’s recognition power.

This Article provides the first in-depth analysis of the historical relationship of the executive and legislative branches to the recognition power in nearly a century. The Article examines in detail the post-ratification recognition events discussed by the Court of Appeals, beginning with the decisions of the Washington administration during the Neutrality Crisis in 1792-93. The Article also examines events not addressed by the Court of Appeals, most significantly early congressional acts of recognition and the 1979 Taiwan Relations Act.

The Article concludes that post-ratification history establishes an authority in the President to recognize foreign states and governments but provides little support for any claim of an exclusive recognition power. However, post-ratification history is not by itself dispositive and the legal importance of the history is examined through the lens of certain fundamental questions, including the significance of presidential and congressional inactions, acquiescence and acknowledgement. The Article analyzes these questions through constitutional doctrine and normative values, ultimately concluding that the constitutional text, original understanding, structure, and post-ratification evidence do not support an exclusive recognition power in the Executive. The President’s recognition power is subject to the legislative control of Congress.

Saturday, October 12, 2013

Weekend Roundup

  • In an op-ed in the New York Times, historian Sean Wilentz (Princeton University) argues that by refusing to raise the debt limit, Congressional Republicans run afoul of the Fourteenth Amendment. The piece inspired comment from Jack Balkin (Yale Law School), here.
  • The Yale Law Library Rare Books Blog introducesBuilt by Association: Books Once Owned by Notable Judges and Lawyers, from Bryan A. Garner’s Collection.” The exhibition, curated by Bryan A. Garner with Mike Widener, is on display until December 16, 2013, at the Lillian Goldman Law Library. 
  • Via H-Law: "FASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for a fellowship that uses the conduct of lawyers and judges in Nazi Germany as a launching point for an intensive two-week early summer program about contemporary legal ethics." More information here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Monday, September 23, 2013

A Retrospective on the Church Committee

As the first session of a three-part discussion series, Surveillance and Foreign Intelligence Gathering in the United States: Past, Present, and Future, tomorrow Georgetown Law’s Center on National Security and the Law will be hosting a retrospective on the Church Committee.  Senator Patrick Leahy (D-Vermont), Chairman, Senate Judiciary Committee, will deliver the keynote.  Panelists are Former Vice President Walter Mondale, Church Committee Member; Former U.S. Senator Gary Hart, Church Committee Member; Former U.S. Ambassador William Miller, Church Committee Staff Director; and Dr. Loch Johnson, Former Special Assistant to Senator Frank Church.  My colleague Laura K. Donohue, Professor of Law and Director of the Center on National Security and the Law, Georgetown University Law Center, will moderate.

The organizers explain:
This is a crucially important time for the United States—a number of foreign intelligence gathering programs using new technologies have recently been unveiled, and the public, the media, and scholars are just beginning to address their implications. Part one of this three-part discussion series will focus on the 1975-76 Church Committee (formally known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities), which exposed government surveillance abuses and played a key role in the creation of the Foreign Intelligence Surveillance Act. Following the keynote address by Senator Leahy, an esteemed panel of former Church Committee members and top staff will discuss this turning point in American history.
The keynote and panel will take place on Tuesday, September 24, 2013, from 9:45 a.m. to 12:00 p.m., in the Hart Auditorium, McDonough Hall, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, D.C. 20001.

Update

Monday, September 2, 2013

Green, "Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History."

Christopher R. Green (University of Mississippi - School of Law) has posted "Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History." Here's the abstract:
The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises two problems for the Fourteenth Amendment’s legitimacy: Congress (a) proposed the Amendment while excluding Southern representatives in 1866, and (b) required Southern states to ratify as a condition for readmission in 1867. Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these problems. Ackerman explains the Amendment’s legitimacy on the basis of President Johnson’s 1868 capitulation to a non-Article-V process, confirmed by the Supreme Court in 1873. Harrison relies instead on the unreviewable finality of congressional membership decisions and pressured state ratifications, Amar on congressional power to republicanize Southern states with black suffrage, and Colby on the normative desirability of an intergenerationally-authored Fourteenth Amendment including cases like Brown and Roe.